FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Blatch & Blatch [2021] FedCFamC1F 219
File number(s): SYC 1613 of 2021 Judgment of: CAMPTON J Date of judgment: 30 November 2021 Catchwords: FAMILY LAW – PROPERTY AND PARENTING – Application for review of Senior Registrar’s decision – Circumstances since Senior Registrar’s decision lead parties and Independent Children’s Lawyer to seek discharge of Senior Registrar’s orders - Application for review allowed – Interim parenting arrangements – Balancing of risks posed by father’s alleged family violence and alcohol consumption – Where the children have had minimal contact with the father since separation – Further supervised time - Where the mother seeks an interim payment of funds by way of partial property settlement – Issues of non-disclosure and non-compliance with orders – Partial property Order made in favour of the mother – Father in arrears of child support – Application for enforcement of arrears – Declaration of arrears of child support owed to the mother – Mother has standing to enforce child support arrears. Legislation: Child Support (Registration and Collection) Act 1988 (Cth) s 30, s 113A
Evidence Act1995 (NSW) s 50
Family Law Act 1975 (Cth), 60CC, 60CG, 65D(1), 79, ss 80(1)(h)
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) r 12.06
Cases cited: Amador & Amador (2009) 43 Fam LR 2009; [2009] FamCAFC 196
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
Goode & Goode [2006] FamCA 1346
M v M (1988) 166 CLR 69
Mallory & Mallory [2019] FamCAFC 221
Marchant & Marchant (2012) FLC 93-520; [2012] FamCAFC 181
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Salah & Salah(2016) FLC 93-713; [2016] FamCAFC 100
SS & AH [2010] FamCAFC 13
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Strahan & Strahan (2011) FLC 93-466; [2009] FamCAFC 166
Swift & Swift [2020] FamCA 991
Yarwood & Shore [2013] FCCA 2219
Division: Division 1 First Instance Number of paragraphs: 151 Date of hearing: 12 November 2021 Counsel for the Applicant: Dr Barnett Solicitor for the Applicant: Byrnes Legal Counsel for the Respondent: Mr Sansom Solicitor for the Respondent: Lander & Rogers Solicitor for the Independent Children’s Lawyer: Brian Samuel & Associates ORDERS
SYC 1613 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BLATCH
ApplicantAND: MS BLATCH
RespondentINDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
30 NOVEMBER 2021
THE COURT ORDERS THAT:
1.All existing interim parenting orders as to the children X born … 2010 and Y born … 2012 (“the children”) are discharged.
PENDING FURTHER ORDER, THAT:
2.The children live with the mother.
3.The children spend time with the father as follows:
(a)On each alternate Sunday, commencing from the date of these orders, for a period of four alternate Sundays from 10.00 am until at 3.00 pm; and
(b)Thereafter each alternate Sunday from 9.30 am until 5.00 pm;
(c)On 24 December 2021 from 10.00 am until 4.00 pm;
(d)In the event Father’s Day does not fall on a weekend when the children would spend time with the father pursuant to these orders, the children shall spend time with the father on Father’s Day from 9.30 am until 5.00 pm;
(e)In the event that Mother’s Day falls on a weekend when the children would spending time with the father pursuant to these orders, such time is to be suspended on Mother’s Day and shall occur on the following Sunday from 9.30 am until 5.00 pm.
(f)Until such time that the father produces to the mother and the Independent Children’s Lawyer three (3) consecutive carbohydrate deficient transferrin (“CDT”) test results recording a return of less than 2.1per cent in accordance with Order 4 below, the father’s time with the children for the purpose of these orders is to be supervised by the B Contact Centre and such time is to be reportable, with all costs associated with the supervision service provided by B Contact Centre to be met by the father solely.
(g)In order to give effect to these orders, changeovers occurring on a supervised basis are to take place at the home of the maternal grandparents at D Street, Suburb C, in the State of New South Wales, with the supervisor and the father to collect the children at the commencement of time and to return the children at the conclusion of time, and changeovers without the presence of a supervisor are to take place at a McDonalds Family Restaurant as nominated in writing by the mother, with such McDonalds changeovers to be facilitated by a third party of the mother’s choice if she so elects.
4.The father shall undergo random blood tests to identify the level of carbohydrate deficient transferrin in the father’s blood CDT testing and such testing shall occur as follows:
(a)That the father is required to undertake the first such test within 48 hours of the date of these orders, and otherwise thereafter within 24 hours of notification by email and by text message from the Independent Children’s Lawyer to the father, the father to provide the Independent Children’s Lawyer with his current mobile telephone number and email address, and to advise the Independent Children’s Lawyer as to any change to his mobile telephone number and email address, with a copy of the email notification being sent to the father’s solicitor, the mother’s solicitor, and the mother.
(b)That such requests for CDT testing occur on no more than two (2) occasions per month until the father achieves a CDT return result of less than 2.1 per cent on three (3) consecutive occasions, and thereafter shall occur on not more than once per month, and for the purposes of this Order, the test undertaken by the father with a CDT return result of 1.5per cent dated 29 October 2021 will be the first such CDT return result of less than 2.1per cent;
(c)That the tests be conducted at a laboratory accredited by the National Association of Testing Authorities Australia, in accordance with the current Australian Standard for the collection and detection of drugs of abuse;
(d)That the father do all acts and things and sign all documents to authorise the testing laboratory to release the test result directly to the mother, the mother’s lawyers, the father’s lawyers and the Independent Children’s Lawyer.
(e)That the cost of the tests be borne solely by the father.
5.In the event the father produces a CDT return result of greater than 2.1per cent, or fails to undertake a CDT test within 48 hours of a test request being made by the Independent Children’s Lawyer, the time to be spent by the father with the children will revert to being supervised by B Contact Centre on the terms earlier identified in these orders and such supervised time will continue until such time as the father produced three (3) consecutive CDT test results recording a return of less than 2.1per cent and upon provision of those three (3) consecutive CDT test results any requirement for supervision of time spent be discharged.
6.The father be restrained from:
(a)Consuming alcohol twelve (12) hours prior to the children spending time with him or during the children’s time with him; and
(b)Entering the boundaries of the maternal grandparent’s residence.
7.The mother and the father be restrained from;
(a)Exposing the children to family violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the child, the mother, the father or any other member of either party’s household;
(b)Physically disciplining the children;
(c)Denigrating the other party or members of the other party’s family in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so.
(d)Conveying messages through the children or using the children as a go-between to convey messages to each other;
(e)Discussing these proceedings or any issues arising out of these proceedings with the children or permitting any third party to do so;
(f)Making critical or derogatory remarks on social media, such as Facebook or Twitter in relation to the other parent, or referring in any way to the proceedings.
8.In the event that either child shall suffer any injury, be hospitalised or suffer any significant illness, the parent in whose care the child is in shall notify the other parent immediately, except in the case of an emergency where they shall do so as soon as is reasonably practicable.
9.In the event that they have not already done so, each of the parents are to enrol in and complete a parenting after separation programme such as the E Program offered by F Family Services or equivalent such programme offered by G Counsellors or H Family Services.
10.Pursuant to Chapter 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Dr J be appointed as the single expert witness to prepare a report to assist the Court in relation to proceedings relating to the welfare of the children X born … 2010 and Y born … 2012.
11.That the report address the following matters:
(a)The needs, perceptions and attachments of the children.
(b)The nature of the relationship between the children and each of the children’s parents and with any other significant persons.
(c)The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
(d)The likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from either of their parent’s or any other person with whom the children have been living.
(e)The maturity, sex, lifestyle and background of the children and of the children’s parents and any other characteristics of the children that the expert considers are relevant.
(f)The capacity of each parent and of any other significant person to provide for the needs of the children including the children’s physical, emotional, psychological and intellectual needs.
(g)The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents or any other relevant person.
(h)Whether the children are at risk of physical or psychological harm in the households of either parent.
(i)So far as the expert is able to comment, the mental health of each parent and the effect if applicable on the mother and the father’s respective care of and capacity to care for the children.
(j)Any family violence involving the children or a member of the children’s respective families and households.
(k)Any previous family violence order(s) in respect to any member of either party’s household.
(l)Any drug or alcohol issues in respect to the mother or the father and its impact if applicable on the parents capacity to care for the children.
(m)Any special needs of the children.
(n)Any other matters that the Court expert consider relevant.
12.The cost of the Chapter 7 Single Expert Report is to be paid by the mother and the father in equal shares.
13.The mother and the father do all things necessary to facilitate the preparation of the report, including attending upon the expert and arranging for the children to attend upon the expert.
14.Leave be granted to the Independent Children’s Lawyer to have photocopy access to material produced under subpoena for the purpose of providing the same to the court expert and that the fees in respect of that photocopying be waived.
THAT BY CONSENT
15.The parties are to attend a COMP mediation conference facilitated by Legal Aid NSW and the Independent Children’s Lawyer, such conference not to occur until the release of the Chapter 7 expert report.
16.Leave be granted to the Independent Children’s Lawyer to provide a copy of the Chapter 7 Single Expert Report to the Legal Aid NSW mediation conferencing, who shall provide a copy of the report to the mediator engaged pursuant to Order 15 above.
THAT PENDING FURTHER ORDER
17.Pursuant to s 79 and s 80(1)(h) of the Family Law Act 1975 (Cth) the father pay to the mother the sum of $200,000 by way of interim property settlement within 14 days of the date of these orders.
18.To facilitate the payment of funds pursuant to Order 17 the parties forthwith and in any event within 7 days do all such things as are necessary to cause the sum of $200,000 to be withdrawn from the second mortgage drawdown facility secured upon the property at L Street, Suburb K in the State of New South Wales (“the Suburb K Property”) and be paid as the mother directs.
19.In the event:
(a)The father fails or neglects to comply with orders 17 or 18 hereof; or
(b)The father provides to the mother’s solicitor within 14 days of the date of these orders notice in writing as to his election to effect a sale of the Suburb K Property;
then forthwith upon such default or provision of notice in writing:
(c)The parties shall list the Suburb K Property for sale by public auction within six (6) weeks from the date of these orders, with such agent as the parties may agree to appoint, and in default of agreement as to the identity of an agent within twenty-one (21) days from the date of these orders, with such agent as the President of the Real Estate Institute of New South Wales shall appoint, with the costs of such appointment to be borne equally by the parties as and when they fall due;
(d)The reserve price for the purpose of such auction shall be the price as mutually agreed upon between the parties or in default as to agreement at the reserve price within fourteen (14) days of the date scheduled for the public auction at such reserve price as nominated as fair market value by the Single Real Property Expert Valuer, and with the costs of and incidental to such nomination by the Single Real Property Expert Valuer to be borne equally by the parties as and when they fall due;
(e)The parties shall co-operate in every way with the agent including making keys available, permitting inspections in the Suburb K Property at all reasonable times requested by the agent, not doing or saying anything to hinder or prevent the sale being effected, ensuring that the property including its grounds are in a neat and tidy condition at the time of inspection by the agent and prospective purchasers and they will equally meeting any advertising or marketing costs of the sale.
20.Upon completion of the sale of the Suburb K Property the proceeds of the sale are to be paid in the following priority:
(a)In payment of all costs and expenses of the sale including legal costs and disbursements, agents commission, auction fees and marketing fees.
(b)In payment of an amount sufficient to discharge any mortgage upon the said property.
(c)In payment to the mother of the sum of $200,000 by way of interim property settlement if not already paid pursuant to Order 17 and 18.
(d)In payment to the mother of the arrears of Child Support due by the father identified in Order 23 below in the sum of $36,743.54 as at 1 November 2021 as remain outstanding as at the date of completion of the sale, together with any additional arrears of Child Support that has accrued subsequent to 1 November 2021 up until the date of the completion of the sale of the Suburb K Property.
(e)In payment of the balance into an interest bearing deposit style account in the name of the mother and father to be operated by Landers & Rogers Solicitors pending further order of the Court.
21.Pending further order, the father be responsible for and pay all outstanding instalments of principal and interest due on any mortgage or loan facility secured upon the Suburb K Property, all rates, taxes and other outgoings in respect of the property and all comprehensive insurance premiums in respect of the property as and when they fall due, and in the event any such payments are in arrears for a period greater than three (3) months, the parties shall forthwith do all such things as are necessary to list the Suburb K Property for sale on the terms identified in Order 19 above, such auction sale to occur within six (6) weeks of the event of default pursuant to this Order, and the balance of proceeds of such sale be applied in the following priority identified in Order 20 hereof.
22.The interim application of the mother as contained in her Minute of Order for periodic and non-periodic child support departure as identified in paragraphs 29, 30 and 31, her relief requiring the father to undertake a psychological assessment as contained in paragraph 11, and her relief seeking orders facilitating the father to meet half his share of the costs of expert evidence and the provision of material to an expert, be withdrawn.
23.The Court declare that the father is in arrears of periodic child support payable to the mother in the sum of $36,743.54 as at 1 November 2021.
24.The Court declare that the mother has standing to enforce payment of such child support arrears.
25.The father pay to the mother within forty-two (42) days of the date of these orders the sum of $36,743.54 by way of such child support arrears.
26.Within fourteen (14) days of the date of these orders the mother serve the Registrar of Child Support with a copy of these orders.
27.In the event the father fails or neglects to comply with Order 25 then the parties do all such things as are necessary to cause the Suburb K Property to be listed for sale and sold on the terms as identified in Order 19 hereof and shall apply the proceeds of such sale on the terms identified in Order 20 hereof save that the date of the auction shall be 6 weeks for the date of the failure of the father to comply with Order 25 hereof.
28.That in the event any party makes application for an order as to costs of or incidental to the hearing of the review of interim parenting orders or the Application of the mother for interim financial orders or as to enforcement of child support arrears or as to disclosure, such application be made by way of an Application in a Proceeding supported by an Affidavit to be filed and served within twenty-one (21) days of the date of these orders, and any Response to the Application in a Proceedings for costs and Affidavit in support thereof be filed and served within twenty-one (21) days thereafter, with each party to file and serve short written submissions of no greater than five (5) pages in support of the Application in a Proceeding or Response to the Application in a Proceedings thereto.
29.That in the event no Application in a Proceeding as to costs is filed pursuant to Order 27, each parties’ costs of the hearing of the Application for Review, interim financial relief, enforcement of child support arrears and disclosure be reserved.
30.That within twenty-eight (28) days of the date of these orders the father disclose the following to the mother:
(a)The father’s income tax return as lodged and notice of assessment as issued for the financial years ending 30 June 2020 and 30 June 2021 (if available);
(b)M Pty Ltd final financial statements for the financial year ending 30 June 2020 and 30 June 2021 (if available).
(c)N Pty Ltd, company tax return and financial statements for the financial year ending 30 June 2020 and 30 June 2021 (if available);
(d)CC Trust tax return and financial statements for the financial year ending 30 June 2020 and 30 June 2021 (if available);
(e)Business Activity Statements for M Pty Ltd for the 2020 and 2021 taxation years;
(f)Copies of all relevant bank statements for the trust account and currency accounts held by M Pty Ltd from 1 January 2019 to date;
(g)Statements for the father’s O Company account for the period June 2018 to March 2019 and documents recording his current account balance;
(h)Documents recording as to how N Pty Ltd and the CC Trust hold their assets;
(i)Copies of any superannuation member benefit statements for superannuation interests in the father’s name immediately prior to the establishment of the Blatch Superfund; and
(j)Statements from P Finance and Q Finance verifying the current balance of such liabilities.
31.Save and expect as to costs all outstanding interim applications and responses thereto are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blatch & Blatch, which has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J
INTRODUCTION
The father applies to review interim parenting orders made by a Senior Registrar on 21 April 2021.
In summary the orders subject to review provided that the children X born in 2010 and Y born in 2012 ("the children") live with the mother, for a course of family therapy to be completed, and after its completion for the children to spend reportable supervised time with the father for 3 hours each alternate Sunday. orders were made for the father to undergo random blood tests to identify the level of Carbohydrate Deficient Transferrin in his blood ("CDT testing"). Consent orders were made that father be restrained from:
(a)Consuming alcohol twelve (12) hours prior to the children spending time with him or during the children's time with him; and
(b)Entering the boundaries of the maternal grandparent's residence at changeover.
The evidence of each parent in the hearing before the Senior Registrar was read in the hearing of the Review. It focused on the very limited time that the father had spent with the children for the 2.5 year period post the parties’ physical separation, the blame each party directed to the other for that circumstance, the conflict that had infused between the them over that period and its flash points, and the identification of and assessment of risk to the children in spending time with the father arising from:
(a)family violence of a physical, psychological and financial character, and as to coercive and controlling behaviour; and
(b)the father’s alcohol consumption, its impact on his parental capacity, and its impact on his relationships with the mother and with the children; and
(c)the diminished capacities of the parties to regulate behaviour from time to time.
The father did not apply for a Stay of the Senior Registrar’s orders pending the determination of the Review.
The scope of the evidence in the Review enlarged from that before the Senior Registrar on 21 April 2021. Each party now relies a further volume of evidence as to events and circumstances that have occurred over the six month period following 21 April 2021.
The mother pursuant to the 21 April 2021 orders requested that the father undergo nine random blood tests to identify his CDT level. The father disclosed that he undertook four such tests and disclosed four test results.
It was an agreed fact at the hearing of the Review that a CDT reading of greater than 2.1 per cent indicated “probable recent or ongoing excessive alcohol use”.
The four test results disclosed by the father recorded sequentially CDT levels of 2.9 per cent, 2.4 per cent and 2.4 per cent and 1.5 per cent.
The four sessions of family therapy with Ms R were completed on 24 June 2021. The parents attended on the therapist individually. The children did not attend on the therapist. The therapy was not confidential. Neither party, nor the Independent Children’s Lawyer, proposed to obtain a report from the family therapist.
The father commenced to spend supervised time with the children on 4 July 2021. Exhibit 5 contains 11 reports of the supervised time to 7 November 2021.
At the time of the hearing on 21 April 2021 the father had ceased to pay any monies pursuant to an administrative the current periodic child support assessment to the mother. The last payment was made in March 2021. The periodic sum payable was $307 per week. Exhibit 4 records that payment of periodic child support was in arrears in the sum of $36,743.54 as at 1 November 2021.
Each party and the Independent Children’s Lawyer on the hearing of the Review sought:
·A discharge of all the current interim parenting orders;
·Did not seek the making of the interim order as to parental responsibility;
·Agreed that an interim order ought to be made that the children live with the mother;
·Sought the appointment of a Chapter 7 Court Parenting Expert, but could not agree as to the identity of the expert; and
·Sought differing regimes of orders regulating the terms of time to be spent by the father with the children, focusing their evidence and submissions as to the fact of, and as to an assessment of, risk to the children (if any) in the circumstances of differing spend time with regimes in the care of the father, including whether that time spent ought to continue to be supervised.
For the reasons following, it is determined that it is in the best interests of the children to spend a further period of reportable supervised time with the father, with the relaxation of supervision being dependent on the father’s compliance with a varied CDT testing regime producing results indicative of a reduction in his alcohol consumption. His time to be spent with the children will expand from that ordered by the Senior Registrar but will be limited to day-time periods only pending the release of an opinion of the Court Parenting Expert, Dr J. The report is expected to be available in mid-2022.
The mother as an adjunct to the hearing of the Review prosecuted interim relief for property settlement and/or litigation funding, and for interim periodic and non-periodic child support departure. The mother sought enforcement of the arrears of periodic child support payable by the father and further orders to facilitate disclosure.
The interim child support departure relief and the order requiring the father to undertake a psychological assessment were withdrawn by the mother at the commencement of the hearing. Other parts of the relief sought as to the father paying his share of single expert costs and as to documents requested being provided to an expert, had been rectified by the father in the shadow of the hearing. Orders will be made as to each prayer being withdrawn.
The father sought that the interim financial relief of the mother be dismissed. He did not dispute the fact of, or quantum of, the arrears of child support. The father opposed any orders enforcing recovery of the child support arrears. He did not oppose the orders sought as to disclosure, but pressed for a longer time frame to comply.
As to interim property settlement, it is determined that the mother has established the requisite indicia to ground discretion to exercise an interim property power for a payment to her of $200,000. Orders will be made that the father pay to the mother the sum of $36,743.54 in arrears of child support as at 1 November 2021 within 42 days, and in the event of his failure or neglect to do, for the property at L Street, Suburb K in the State of New South Wales (“the Suburb K Property”) to be sold by way of enforcement of that liability.
DOCUMENTS RELIED UPON BY EACH PARTY AND THE INDEPENDENT CHILDREN’S LAWYER.
The father read and relied upon the following documents
·Initiating Application filed 8 March 2021
·Application in a Case (Review) filed 4 May 2021
·Affidavit of Mr Blatch filed 16 April 2021
·Affidavit of Mr Blatch filed 12 May 2021
·Notice of Child Abuse, Family Violence or Risk filed 8 March 2021
·Tender Bundle of the father being 134 pages marked as Exhibit 5
·The father also, with the consent of the mother and conditional consent of the Independent Children’s Lawyer (subject to the admission into evidence of Exhibit 6), relied upon with leave his Affidavit filed 11 November 2021 and Financial Statement filed 11 November 2021.
The mother read and relied upon the following documents
·Amended Response filed 12 May 2021
·Affidavit of Ms Blatch filed 9 April 2021
·Affidavit of Ms Blatch filed 5 November 2021
·Notice of Risk filed 9 April 2021
·Affidavit of Mr S filed 9April 2021
·Financial Statement of Ms Blatch filed 5 November 2021
·Tender Bundle of the mother being 58 pages marked as Exhibit 4
The father’s case outline document containing his Minute of Order sought by way of the parenting Review and as to interim financial relief was marked as Exhibit 1.
The mother’s case outline document containing her Minute of Order was marked Exhibit 2.
The Independent Children’s Lawyer’s outline of case containing his Minute of Order was marked Exhibit 3. He did not rely upon any other documents.
The Costs Notice and updated Costs Notice for the father became consolidated Exhibit 7. The Costs Notice and updated Costs Notice for the mother became consolidated Exhibit 8.
A direction was made at the commencement of the hearing that no document in either party’s tender bundle would form part of the evidence unless it was identified in submissions.
THE PARENTING REVIEW
Each party and the Independent Children’s Lawyer sought orders for the appointment of a Chapter 7 Court Parenting Expert. It was agreed that each of the parties would equally meet the cost of the Court Parenting Expert.
The father sought that Ms R be appointed as the Chapter 7 Court Parenting Expert. He asserted that a report could be produced in a short time frame at a modest cost, contending that Ms R would be available to attend upon the parties and the children in December 2021 and that the costs of the preparation of her report will be in the range of $6,000.
It was an agreed fact that the alternate expert the father proposed, Dr J, was available to attend upon the parties and the children in Sydney during the first week in March 2022, and that the costs of the preparation of his report will be in the range of $20,000.
The mother and the Independent Children’s Lawyer promoted the appointment of Dr J. They each opposed Ms R as she had completed the family therapy. The Independent Children’s Lawyer identified the email from Ms R circulated to the parties at the conclusion of the therapy as contained in Exhibit 6. The Exhibit included a statement by Ms R did not consider joint sessions to “be viable’ and that a focus in the sessions was the “reduction of stress and exposure of the children to parental acrimony”. He submitted that Ms R could be in a position of conflict should she now assume a different role as the Chapter 7 Expert.
The father had not sought or obtained the consent of Ms R to accept an appointment as a Chapter 7 Expert. This is an important matter weighing against her engagement as the Chapter 7 Expert.
The mother contended that Dr J held superior qualifications as the Chapter 7 Expert by way of his practise as a clinical psychologist to opine as to the relevant s 60CC factors presented in this matter.
It emerged as an agreed fact during the hearing that Ms R is now not available to attend upon the family until 3 March 2022 and that the cost of her report will be in the range of $9,900.
I accept the submissions of the mother and the Independent Children’s Lawyer. I find that Dr J is best qualified expert of the options proposed, and that he is reasonably available to prepare a report as the Chapter 7 Expert. The parties have the capacity to meet his anticipated costs in equal shares. Orders will accordingly be made confirming that appointment.
Doubt was expressed as to the source of power to direct that the parties attend a COMP mediation facilitated by the Independent Children’s Lawyer as sought by each of the mother and the Independent Children’s Lawyer. After some exchanges it was agreed that a consent order would be made in such terms.
Objection was taken by the father to each of the s 50 Evidence Act1995 (NSW) schedules contained in Exhibit 4. After receiving submissions the mother conceded that some of the entries in the schedules were controversial. The tender of each schedule was withdrawn.
The father on review seeks a speedy increase in the regime of the time to be spent to occur without supervision culminating in block periods of time being spent over the forthcoming Christmas school holiday period and for substantial and significant time to be spent during the school term commencing in Term 1 2022, such term time to be from after school on Thursday until before school on Monday in each alternate week. From the end of Term 1 school holidays in 2022 he seeks half of each school holiday periods be spent by the children with him. He seeks time spent on special days. He proposes similar non-denigration orders as made 21 April 2021, an order without admissions restraining him from consuming alcohol 12 hours prior to or during the time the children spend with him, and on a further without admissions basis, to undertake a regime of carbohydrate deficient transfer (“CDT”) on a monthly basis, with the father to meet the cost of that testing process.
The mother seeks that the father’s time with the children be expanded from the three hours ordered 21 April 2021 each alternate Sunday to now occur from 9.30 am until 4.00 pm on each alternate Sunday, on Christmas Eve and on Father’s Day, and that such time spent be supervised by B Contact Centre, with changeover to occur at the home of the maternal grandparents at D Street, Suburb C, where the children would be delivered to the care of the supervisor. She seeks orders as to non-denigration and for the father to undertake random CDT testing on receipt of 24 hours’ notice from her legal representatives, on not more than two occasions per month.
The Independent Children’s Lawyer proposed that the children would spend time with the father on an unsupervised basis for a period of eight weeks each alternate Sunday from 10.00 am until 2.00 pm and thereafter each alternate Sunday from 10.00 am until 5.00 pm together with specified times on Christmas Day and Father’s Day. He proposed that changeover occur at a McDonalds Family Restaurant nominated by the mother and that changeover could be facilitated by a third party of the mother’s choice. The Independent Children’s Lawyer sought other injunctive orders and non-denigration orders and orders that the father be restrained from consuming alcohol 12 hours prior to spending time with the children or during the children’s time with him. He sought orders for the father to undergo random CDT testing not more than once per month. He further sought that each of the parents enrol in a parenting after separation course.
BACKGROUND
The father initiated parenting proceedings on 8 March 2021. The mother by way of her Response filed on 9 April 2021 sought different orders as to the parenting of the children and orders of a financial character, including by way of period and non-periodic Child Support Departure.
The parties commenced cohabitation in 2003, married in 2005 and separated within the home at the Suburb K Property between April 2018 (on the father’s evidence) and November 2018 (on the mother’s evidence). The mother and the children vacated the home on 2 December 2018. An Order for Divorce was made on 21 September 2020.
The mother gives evidence that the father engaged in a pattern of family violence over the course of the relationship including occasioning physical and verbal abuse towards her, monitoring her phone history, and withholding her car keys and phone for periods of time. The mother provides examples of the father throwing or threatening to throw objects at her on at least two occasions, including a bottle opener and her mobile phone. She also alleges that the father wielded his superior financial position to leverage control over her, by restricting her access to funds and by rebuking her for expending monies on, for example, the doctor. The mother gives an evidence as to an occasion when she requested the father not attend a planned holiday with her family, and subsequently receiving a text message from the father stating “make sure your half of the mortgage is there or when you go I will change the locks”.
The mother alleges that on occasions the father’s conduct occurred in the presence of the children.
The father directly puts in issue the fact and contents of these allegations. He apportions fault for conflict in the presence of the children to the mother.
The mother gives evidence as to an exchange between the parties on 2 December 2018. She asserts that on this date and in the presence of the children, the father became verbally abusive towards her while the parties were preparing dinner at their home. She deposes to the father demanding repeatedly that she leave the home, and to him taking her mobile phone and car and house keys. Upon the mother demanding the return of the phone, she deposes to the father “propelling [her] up” and she then falling horizontally straight onto her back, causing her severe pain. She says that she then left the home and reported the incident to police.
The father’s version of 2 December 2018 is that the parties engaged in an argument, during which he perceived the mother to grab her phone. He says that he was concerned she would begin filming him. He alleges she has done so in the past. The father took the mother’s phone. He denies instigating any form of physical contact with the mother, but rather deposes to the mother pushing him against a wall and grabbing at him in an attempt to retrieve her phone. He says that her doing so caused him “sharp pain” in his ankle. In response to the pain, the father says that he “pushed [the mother] off [him] with [his] left arm”. He agrees that the mother ended up on her bottom on the floor. He did not report her being visibly distressed.
It is uncontroversial that the children were present during the exchange at the home on 2 December 2018, and that their experience of the exchange was adverse to their best interests.
The impact on the children of being present and experiencing significant conflict between their parents is yet to be explored or opined by way of any expert evidence.
The father was charged with a criminal offence of common assault arising from the exchange on 2 December 2018. An Apprehended Violence complaint made by the police on behalf of the mother grounded orders restricting prohibiting the father’s conduct directed to the mother and his contact with her.
After the mother and the children vacated the Suburb K Property on 2 December 2018 they commenced to reside with the mother’s parents. They have now lived with the maternal grandparents for nearly three years.
Following the exchanges on 2 December 2018 it is uncontroversial the children spent very limited time with the father. Some limited contact did occur at school or sporting events until the commencement of supervised time on 4 July 2021. Each party blames the other for this limited time spent from late 2018 until mid-2021. The affidavit evidence records a series of exchanges between parties and/or their solicitors as to arrangements for time to be spent over this period. Each set of exchanges progressed and then broke down or failed to crystalise. The cause of these failures cannot be determined in an interim hearing.
The father was convicted in the Local Court on 27 September 2019 of one count of common assault. An Apprehended Violence Order made restricting and prohibiting the father’s conduct was made for a period of two years.
On appeal the District Court on 15 October 2020 quashed the conviction and discharged the Apprehended Violence Order.
The mother gave evidence in her Affidavit as to a continuing pattern of calculated controlling, harassing and what she contended to be inappropriate behaviour by the father from 2 December 2018 until the District Court determinations on 15 October 2020. This evidence includes the father following her home in the car on at least two occasions, loitering in his car around the children’s school and attending the mother’s home without notice or invitation and refusing to leave when asked. The mother gives evidence that on two occasions she was required to call the police to assist with the father’s removal from outside her home, although she says that on each occasion he left of his own volition before police ultimately attended.
The mother gives evidence that the father frequently engaged in intimidating behaviour at the children’s Saturday sporting events. She describes the father “glaring at [her], taking photos, smirking” and on a number of occasions, approaching her with comments about the ongoing dispute between them, including “you’re damaging those kids”. She deposes to these incidents causing her to feel stressed, anxious and intimidated.
The mother’s evidence is that the father’s conduct has a similar impact on the children, causing them to feel intimidated and anxious. She records a reluctance expressed by the children to spend time with the father during this period, deposing to remarks made by the children where they identified feeling worried about their father attending social and sporting events and expressing a wish that he not attend. She says she observed the children turn away from their father upon his approach, wiggle out of his embraces, and become visibly upset by his unexpected appearances.
The mother says that the children have said to her things that indicate they have been informed of matters in these proceedings by the father, for example, X saying that “he told me that it (the assault) wasn’t what I thought it was, or what I had seen. He said that he had a really sore ankle and so that’s why he pushed you away. And he would never do something like that”.
Of the gifts the mother asserts the father has given the children, one included a smart-watch which had on it a video of the father where he records himself saying, “Don’t listen to them when they tell you I’m not allowed to see you”.
The father in contrast deposes to the children being excited to spend time with him, and reports the children being comfortable and affectionate towards him on the occasions that he did attend sporting and other social events. He recounts being met with enthusiasm upon arriving at one of the children’s father-daughter events, with the child exclaiming to her teacher “Look! My daddy came!” He provides evidence of conversations he shared with the children where they expressed their desire to be around and spend more time with him, including by saying “I’m so glad you are here dad” and “I want to spend time with you”. The father apportions blame for any inability of the children to spend time with him on the mother, providing descriptions of the mother (for example) taking the children’s hand and pulling them away from him.
As to the conflict which took place at the children’s sporting events, the father provides a starkly different account of the events to that of the mother. He says that on the majority of occasions he kept his distance from the mother, and that it was she who acted in an openly hostile way towards him. He asserts that on about six occasions, he received calls from police informing that a report had been made about him by the mother, which caused him to feel harassed.
While finding of fact as to what occurred will await a final hearing, it is uncontroversial the conflict had an adverse impact on children and their interests. The Chapter 7 Expert will be able to discern the children’s observations, experience and perceptions of these events.
The mother exhibited a letter sent by the father solicitors to her solicitors, dated 6 August 2019. Contained within that letter was a statement that the father “…will not sign any documents for [U School] until he gets reasonable access to his children and has sensible discussions about a property settlement to ensure that he can afford to meet the school fees in the future.”
This letter was sent on the father’s instructions and with the benefit of legal advice. The undercurrent of intimidation and coercion generates disquiet. It is a window into the father’s attitudes and his incapacity to separate or prioritise the needs of the children from his own.
The mother gives evidence as to her observations of, and experience of, what she describes as the father’s excessive alcohol consumption over the period of cohabitation, and of the impact his “problematic drinking” had on both she and the children. Her observations and experience of the father’s behaviour after he has consumed alcohol are indicative of an incapacity to regulate his anger and behaviour and a diminished ability to care for the children. They include being unable to drive the car at times where a parent was required to do so, with the mother deposing to two occasions where the burden of driving the children to hospital fell solely on her because the father had been drinking. It also included one occasion where the father was slow or failed completely to react to one of the children running around the home. The mother says that as a result the child injured herself on a coffee table, requiring stitches. The mother drove the child to a medical centre on that occasion.
A Senior Registrar made interim parenting orders on a defended basis on 21 April 2021 in the following terms:
1.The children X born … 2010 and Y born … 2012 ("the children") live with the mother.
2.Pursuant to s.68L of the Family Law Act 1975, an Independent Children's Lawyer be appointed for the children:
•X born … 2010 and
•Y born … 2012
3.The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.
4.The Court advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of NSW of this order forthwith.
5.Each party make available to the Legal Aid Commission of NSW forthwith copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.
6.After the parties have attended four sessions of family therapy in accordance with these orders, the children spend time with the father each alternate Sunday from 1pm to 4pm with such time to be supervised by B Contact Centre ("the supervisor") who shall be requested to provide a written report to the parties in respect of each period of supervision, with the cost of such supervision and report to be paid for by the father.
7.Changeover take place at the home of the Maternal Grandparents (D Street, Suburb C) when the children will be delivered into the care of the supervisor.
8.The father shall undergo random blood tests to identify the level of carbohydrate deficient transferrin in the father’s blood ("CDT testing") and such testing shall occur as follows:
8.1The father shall do all acts and things necessary to obtain within seven (7) days of the date of these orders pathology test request forms from his general practitioner for CDT testing;
8.2The father is required to undertake such testing within 24 hours of notification from the mother's legal representatives
8.3That such requests for CDT testing occur no more than two (2) times per month;
8.4That the tests be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of drugs of abuse;
8.5That the father do all acts and things and sign all documents to authorise the testing laboratory to release the test results to both the mother and the mother's legal representatives;
8.6That the cost of the tests be borne by the father.
9.By consent and pursuant to Part 10.4 of the Family Law Rules, orders, declarations and notations are made in terms as set out hereunder:
1. Each party be restrained from:
1.1Denigrating the other parent, the children or any member of the other parent's family, in the presence and/or hearing of the children, and each parent do all acts and things necessary to prevent any third party from denigrating the other parent or any member of the other parent's family in the presence and/or hearing of the children;
1.2Discussing these proceedings, including the contents of any document filed by or on behalf of either parent, with the children; and
1.3Showing the children any document filed by or on behalf of either parent;
2. On a non-admission basis, the father be restrained from:
2.1Consuming alcohol twelve (12) hours prior to the children spending time with him or during the children's time with him; and
2.2Entering the boundaries of the Maternal Grandparent's residence.
3. That both parents shall do all acts and things necessary to attend upon Mr T ("Mr T") for the purpose of reportable family therapy, NOTING THAT given the history of family violence, the mother has concerns about engaging in joint sessions with the father.
4. For the purpose of Order 3 herein:
4.1Each party shall attend appointments with the Family Therapist at such frequency and for such duration as the Family Therapist recommends;
4.2Each party shall meet their own costs associated with Family Therapy.
4.3That the children attend upon Mr T or an alternative practitioner recommended by him (in the event that he deems it unsuitable for the children to attend upon him) for the purposes of providing the children with therapeutic support and each party shall do all acts and things necessary to facilitate and encourage the children's attendance in accordance with the therapist's recommendations and with the costs of the children's attendance (if any) to be paid equally by the parties.
4.4Each party be granted leave to provide a copy of their Affidavit material to Mr T.
10.All parenting interim applications are otherwise dismissed.
11.The matter be adjourned to Registrar Turner on 1 June 2021 at 2.15pm for Directions at the Family Court of Australia in Sydney.
IT IS NOTED THAT:
A. The Senior Registrar declined to make orders for the appointment of a Chapter 15 Expert today because the Court does not have the necessary information to make a determination as to which expert is more appropriate. The Senior Registrar is hopeful that common sense will prevail and that the parties can reach a consent position otherwise this will result in time lost and a further delay.
Further orders were made on 13 May 2021 appointing Ms R as the family therapist identified in the orders of 21 April 2021.
It was an agreed fact for the hearing of the review that nine CDT tests were requested by the mother pursuant to the Order made 21 April 2021, the requests being made on 5 May, 7 June, 6 July, 23 August, 31 August, 14 September, 20 September, 19 October and 28 October 2021.
The father undertook the four tests being 6 May, 1 September, 21 September and 29 October 2021, and disclosed the results of such tests on 17 September 2021 (for the tests undertaken on 6 May and 1 September 2021), and 12 October 2021 (for the test undertaken on 20 September 2021) and in the shadow of the Review, the result of the 29 October test.
The father conceded his non-compliance with five of the nine requests. There was no issue as to his receipt of the requests. His failure to comply for the months of June, July, and August creates an adverse inference. His explanations for non-compliance, including that he had obtained referrals for the incorrect test type, that he was unwilling to attend a testing clinic due to escalating COVID-19 case numbers, that he received a request “too late” to complete a test, and that he had already submitted to testing twice within a one month period, are unconvincing. The father was well aware of the allegations of risk arising from his alcohol consumption at the time of the interim hearing. He had the benefit of legal advice at that time and thereafter. He knew, or ought to have known, that the process of testing and the results produced would be objective evidence indicative of his capacity to limit his alcohol consumption.
The father submitted that on a consideration of all of the evidence he did not present an unacceptable risk in the event he spent unsupervised time with the children. As to his alcohol consumption he said that he drinks alcohol socially and moderately. He concedes that on occasions, he drinks to excess, but does not see that as presenting a risk to the children. He denied the mother’s characterisation of the occasion where one of the children injured herself on a coffee table. He does not deny drinking on that occasion but says the reason he did not drive the children to the medical centre was because he was comforting the child in the back of the car.
The father said in his affidavit the CDT results that had been received were higher than the problematic 2.1 per cent level because his “base level would have been higher” and that “significant abstinence has been required to get the base level down, as moderate consumption appears to show elevated CDT levels”. I reject the father’s lay opinion.
Counsel for the father submitted that the CDT return may vary dependent upon each individual, but properly conceded that the father did not proffer any evidence as to he being likely to produce different CDT returns from the average member of the population.
THE LAW & DISCUSSION
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode [2006] FamCA 1346 (“Goode”).
Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts.
In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) ("the Act") dealing with parenting.
Pursuant to s 65D(1) of the Act, subject to certain sections, a Court may make such parenting order as it thinks proper.
Section 61DA provides that when making a parenting order in relation to a child the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child in the family or family violence. Further when making interim orders the presumption applies unless the court considers that it would not be appropriate.
I find that the presumption does not apply in the circumstances of this case. Irrespective of which parties version as to the events of 2 December 2018, or as to which version of the conflict at school and sporting events post that date is accepted, reasonable grounds exist to believe that a parent has engaged in family violence. The evidence is largely uncontroversial as to an incapacity of the parents to work together over the past three years. Neither party nor the Independent Children’s Lawyer seek an interim order for parental responsibility.
I further find it is not in the best interests of the children to make an order allocating parental responsibility on an interim basis at this time.
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.
THE PRIMARY CONSIDERATIONS: S 60CC(2)
The primary considerations, which are contained in s 60CC(2), are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[1]
[1] McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].
ALLEGATIONS OF RISK
The risk of harm to the children is a central but not the only issue in this case. The High Court in M v M (1988) 166 CLR 69 at [78] identified that the formulation of parenting orders depend on the nature and degree of risk presented. The formulation of orders in this case are about balance.
The Full Court in SS & AH [2010] FamCAFC 13 confirmed that it is not feasible when dealing with the immediate welfare of children to simply ignore an assertion because the accuracy has been put into issue. In Deiter & Deiter [2011] FamCAFC 82 (“Deiter”) the Full Court said that the assessment of risk cannot be postponed until the last piece of evidence has been given and tested.
In Deiter, the Full Court said when making an interim order a court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children. It is likely that the interim parenting arrangement under consideration will be in place at least until mid-2022. It further appears uncontroversial as between the parties, and a submission was actively promoted by the Independent Children’s Lawyer that any orders as to the terms of the time spent by the father with the children wold be subject to potential review after the issue of the Court Parenting Expert’s report.
Discussion and assessment of risk
In this matter the risk posed by the father as in spending time with the children is identified as being the as yet unknown short and long term impacts from exposure to significant family violence and conflict, as to the impacts of the father’s consumption of alcohol, as to the absence of capacity of the father to regulate his behaviour, and as to the impact of the children’s engagement in the criminal law proceedings on their relationship with each of their parents.
Risk is not the only, or necessarily the determinative, factor at play in the crafting of appropriate interim parenting order in this matter. It remains one factor to be taken into account (noting sections 60CC(2A) and 60CG of the Act) in the determination of what is in the children’s best interests (see, for example Mallory & Mallory [2019] FamCAFC 221 at [78]).
For the purposes of this interlocutory determination the father submitted that significant weight ought to be placed upon the District Court Judgment on Appeal as to the reliability and accuracy of the mother’s evidence, and specifically as to the mother’s evidence in that forum that prior to the event in December 2018, being that the father “had not previously been violent”. He highlighted that in the District Court Judgment, significant weight had been given to a finding that, in circumstances of an evolving family breakdown, in a relationship that was not “replete with a history of physical violence” it was “less likely the appellant would carry out such a violent and dangerous manoeuvre”. He contends that significant weight ought to be given to these matters in this hearing.
I am unable to accept that submission for the purpose of the current interlocutory determination. The evidence of family violence extends far beyond the events of December 2018. This confined submission of the father is contrary to the weight of all of the evidence as to family violence. Section 4AB(1) of the Act expresses a broader definition of family violence which goes beyond the occasioning of physical violence.[2]
[2] See Amador & Amador [2009] FamCAFC 196.
I am mindful that serious allegations of family violence cannot be disregarded just because the evidence is controversial and factual findings cannot ordinarily be made during an interim hearing. The Court must remain alive to controversies, the ultimate resolution of which may have a significant bearing upon the orders which meet the children’s best interests (see Salah & Salah(2016) FLC 93-713 at [33]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]).
I attach significant weight to the fact and alleged circumstances of family violence, and to the conflict between that parties, and its impact on the children. This gives rise to an obligation to act cautiously.
I accept the submissions of the mother and the Independent Children’s Lawyer that risk exists as to the father’s capacity to reduce his consumption of alcohol arising from his failures to undertake five CDT tests pursuant to the April 2021 orders, and from three of the four returned results. The father’s limited compliance with the CDT testing regime, coupled with an objective reading of the test results disclosed, identifies that he has continued to consume significant quantities of alcohol from April 2021 to date. I do not accept the submission of the father to the effect that “when he puts his mind to it he won’t drink”.
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case. I will refer to those which are relevant in this case.
I accept the submissions of the Independent Children’s Lawyer that the relationship between the children and the father is currently in a “re-establishment” phase. The circumstances of the period leading to the separation occurring under the one roof, the event of 2 December 2018, and the limited time spent by the father with the children for the past three years require the Court to be cautious in the continued progression of the restoration of that paternal relationship. I am mindful as to the absence of social science evidence on the impact of the children giving of evidence by the children in the two sets of criminal proceedings.
Significant weight is given to the impact on the children’s relationship with their father arising from the conflict that they observed between their parents at school and sporting events.
As to the likely effect of any change in the children’s circumstances, I am cautious to make a substantial shift in the current care arrangements for the children pending the provision of the report from the Court Parenting Expert. That opinion will provide evidence as to the effect on any extended periods of separation of the children from their mother, with whom they have solely lived for the past three years, should the father achieved his time spent orders.
The reports prepared by the supervising time agency record positive and tactile interactions between the father and the children, that the father was thoughtful and well prepared for the purposes of the supervised time spent and, at the end of time spent, the children spontaneously requested further opportunities to spend time with their father or to extend the time. The Court does not have the benefit from any expert social science evidence as to the children’s views or the weight to be attached to them. I attach limited weight to the views of the children recorded in the supervised contact reports.
The children gave evidence on behalf of the police during the proceedings in the Local Court and District Court. As recorded in submissions by the Independent Children’s Lawyer doing so would not have been a positive experience for the children. The Court does not have the benefit of expert evidence of the children’s perceptions of this experience and how it has impacted their relationship with their father.
During the course of the hearing I expressed concern of the attitude of the father in refusing to contribute to the children’s periodic and non-periodic needs.
The parties determined it was in the best interests of the children to attend U School during the marriage. The father, notwithstanding his superior financial circumstances compared to those of the mother, has refused to contribute to the children’s school fees since August 2019, being the same time as he caused the letter identified earlier in these reasons to be sent to the mother’s solicitors. He would not sign the required documents to allow Y to be enrolled in the U School commencing in Year 3. That enrolment had previously been agreed between the parties. The mother has sold a quantity of shares to pay school fees since this time.
By way of further compounding conduct, it is uncontroversial that;
(a)The administrative assessment of child support payable by the father to the mother for the children issued on 8 October 2019, and as at 1 November 2021 arrears had accumulated to the amount of $36,743.54; and
(b)That the father had not paid any periodic child support to the mother since March 2021, a period of eight months; and
(c)As set out later in these reasons, he has had a capacity to do so.
The approach he has taken towards this financial support of the children, and his conduct in using his financial superiority to intimidate and coerce the mother at the expense of the children, does the father little credit. He has had the capacity to prioritise his capital and liquid funds to meet the cost of other endeavours, including his legal fees, in preference to financially supporting the children. He has not done so.
In my view it is necessary for the father to get some further “runs on the board” so as to ameliorate risk posed by the absence of his capacity to restrict his alcohol intake. I do not accept on consideration of the objective evidence that the father has displayed an ability to control and regulate his consumption of alcohol to date. It is in the interests of the children for the father to objectively demonstrate a sustained reduction in his consumption of alcohol, before they are to spend periods of unsupervised time with him.
In my view, a further period of supervised time coupled with a varied CDT testing regime will ensure safe guards of converting the unacceptable situation as to the father’s consumption of alcohol, and its impact on his conduct and presentation, to mitigate risk for the benefit of the children.
Such a regime of time spent will ensure adequate caution as to the capacity of the children to continue to build up their confidence and trust in their father, having regard to their experiences of him to date.
CONCLUSION AS TO THE PARENTING REVIEW
In coming to a decision about what orders are in the children’s best interests, I must balance the various matters to which I have referred. Having regard to both the primary considerations and the additional considerations set out in s 60CC of the Act and in light of the history of the matter, I am of the view that the regime of orders identified earlier in these reasons are in the best interests of the children at this stage, and ameliorate risk, achieving balance in the best manner possible.
Accordingly, I make the orders as set out in the forefront of this judgment.
INTERIM PROPERTY
The High Court in Stanford & Stanford (2012) 247 CLR 108 observed that it is necessary for the Court to be satisfied that justice and equity will be achieved as part of the adjustment process to be undertaken pursuant to s 79 of the Act.
The requirements identified by the High Court are readily satisfied in this matter having regard to:-
(a)the long marriage of the parties;
(b)their relationship having broken down and them living apart now for more than three years;
(c)the title to the home jointly owned by the parties and their superannuation interests needing to be changed when consideration is given to the contribution and other factors; and
(d)by way of the fact that both parties have invoked s 79 seeking orders for property settlement which they agree is necessary.
The Full Court in Strahan & Strahan (2011) FLC 93-466 (“Strahan”) identified the principles effectible to interim or partial property orders and set out the steps in determining whether to make an interim property distribution. Subject to the interests of justice, the usual approach in respect of s 79 is a once and for all order[3]. The test is not confined to “compelling circumstances”. That said, more is required than the mere fact that upon a final hearing the mother would receive the property sought.[4] The “overarching considering” as to the appropriateness of the exercise of an interim property power by the Court must be answered in the affirmative in the interests of justice.
[3] Swift & Swift [2020] FamCA 991 at [16]
[4] Marchant & Marchant (2012) FLC 93-520; [2012] FamCAFC 181
As was explained by the Full Court in Strahan, s 80(1)(h) is a wide enabling provision for interim property decisions. All that is required before the power to make an interim property order is a reason or reasons as to why it is appropriate that the order be made. The Full Court identified the notion of “a level playing field” as one which almost axiomatically is in the interests of justice, and is an important matter to consider when deciding whether it would be appropriate to make an interim property order.
As to the identification of, and value of, the property of the parties, a collaboratively prepared balance sheet was not tendered. The process of obtaining court expert valuations of real property and corporate interests is yet to be completed. A balance sheet document constructed from financial statements that had been filed by each party formed part of the mother’s Case Outline document, Exhibit 2. That document was not the subject of any adverse submission or criticism by the father.
The latest financial statements read by each party materially record:
(a)The jointly owned home at L Street, Suburb K (“the Suburb K Property”) having a value of between $3,900,000 (mother) and $2,900,000 (father) subject to a mortgage in the range of $1,009,896 - net equity not less than $1,890,104);
(b)The father’s interest in M Pty Ltd – the father admits a value of $150,000 less a loan account $65,000 – net $85,000. The father contends outstanding taxation liabilities are payable by this entity for the financial years ending 30 June 2019, 2020 and 2021 in the sum of $170,000.
(c)The father’s fully encumbered Motor Vehicle 1, and his motorbike valued at $10,000. It is his evidence that he disposed of the Motor Vehicle 2, which he deposed as to having in his possession as at 1 June 2021 and a loan on that vehicle being paid out.
(d)Interests in the Blatch Family Trust which are yet to be valued. The father contends that this trust holds no assets and has no value.
(e)The father’s superannuation interests in the SMSF valued at approximately $464,570.78 and the mother’s V Super Fund interests valued at approximately $258,482.
The mother’s income at the commencement of the relationship was agreed to be $55,000 per annum. The father’s was higher, the mother asserting it was approximately $70,000 per annum and the father asserting $80,000 per annum.
The mother gives evidence as to the parties having little of significance by way of assets, liabilities or superannuation at the commencement of the relationship. Both parties record having a car, the father estimating his to have been worth $20,000. The father also asserts having $20,000 in savings and superannuation in the range of $40,000.
Throughout the relationship both parties remained working, the father in a full-time capacity and the mother also in a full-time capacity until the birth of the first child, X. The mother took 12 months maternity leave and thereafter returned to work three days per week. Upon the birth of the parties’ second child, Y, the mother took a further period of two years maternity leave and again returned to work three days per week at the conclusion of that period.
The mother says that there were periods where each was reliant solely on the income of the other, the mother while on maternity leave, and the father for a period of 6 to 12 months after joining the M Pty Ltd business as a partner in 2008. The father deposes to earning an income at least equivalent to the mother’s during that period. Also around the time of the father joining as a partner, the mother gives evidence that the parties contributed monies to the M Pty Ltd enterprise in the range of $25,000 to $30,000. The father denies any such payment.
The mother gives evidence that she received $7,000 from her parents in around 2006 for the purchase of the parties’ first property at Z Street, Suburb W for $575,000. The father denies having knowledge of that contribution.
It is agreed that the mother received $50,000 from her mother in late 2006, which was deposited into a joint account and expended by the parties on living expenses.
The father’s case is that the parties shared equally in the parenting and homemaking responsibilities. The mother asserts she took on more of these contributions than the father. Upon the mother and the children moving out of the Suburb K Property, the mother assumed the role of sole carer for the children. By virtue of the father not having met his child support obligations, and not contributing to the children’s school fees, the mother has also assumed a disproportionately high share of the financial responsibility for the children since 2019.
The father’s income in his latest financial statement is in the range of not less than $350,000 per annum. The mother by her financial statement recorded an annual income of $137,709 in her employment as a professional with BB Company.
The father is assessed to pay the mother child support of $1,355.67 per month. He has not made any payments since March 2021.
The father holds 50 per cent of the issued shares in M Pty Ltd. The 30 June 2020 published financial statements of the entity record that they were prepared on 18 December 2020. It was uncontroversial that these documents were not disclosed by the father until they formed part of his tender bundle for the hearing, some 11 months later. He gives no explanation as to his failure to disclose them earlier, notwithstanding requests made by the mother, the requirement to do so by way of the rules, and orders made to that effect.
The father concedes among his continuing and longstanding disclosure failures not disclosing the management accounts for M Pty Ltd for the year ended 30 June 2021. Notwithstanding the truncated interim character of these proceedings, the inferences available against the father arising from his conceded disclosure failures identified in a longstanding authority are available. His current financial circumstances are not verified by the provision of objective documents.
Among the deficiencies in the father’s disclosure is the absence of evidence of how much the father paid in the Local Court and District Court proceedings, or as to the source of funds to pay such costs.
The mother records in her costs disclosure filed on 12 November 2021 pursuant to rule 12.06 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) that she has incurred $118,582 in legal fees in these proceedings to date. $105,031.77 of those fees had been paid by the mother as at 12 November 2021, and the source of those funds is recorded to be the mother’s “earnings and borrowings from [her] parents”. The mother’s estimated legal costs to the completion of these proceedings are $246,582.09 (including fees already incurred).
The father’s costs disclosure filed on 12 November 2021 records that he has incurred $91,460.15 in legal fees in these proceedings to date. $81,213.65 of those fees had been paid by the father as at 12 November 2021, the source recorded to be the father’s “wages, earnings and pre tax drawings which will be subject to future tax treatment”. His estimated legal costs to the completion of these proceedings are $207,060.15 (including fees already incurred).
In this matter the mother submits, and I am satisfied that, it is appropriate and in the interests of justice to exercise an interim property power grounded from circumstances where the mother has established that:
·the home at L Street, Suburb K has been solely occupied by the father to the exclusion of the mother and the children since 2 December 2018. He has retained the benefit of such occupation and the lion’s share of the remainder of the patrimony post separation to the exclusion of the mother; and
·the father refused to contribute to the private school fees of the children attending at U School since August 2019, such school expenses now being solely met by the mother, including by way of her liquidating a share portfolio in 2019. The mother proposes to use capital to meet future school fees. The Court is mindful as to the importance of the maintenance of the children’s educational arrangements throughout the course of the litigation.
·the father currently being in arrears of periodic child support in the sum of $36,743.54, he not making any child support payments since March 2021, and hence the entire cost of periodic support of the children is currently being met by the mother; and
·the father, being delinquent in compliance with his disclosure obligations subsequent to requests made by the mother and orders and directions made by the Court, has implicitly caused the mother’s legal costs to have been inflated; and
·the mother seeking interim funds to anticipated legal costs, and to have some capacity to secure her own accommodation after living with her parents since December 2018.
The value of the funds claimed by the mother can be sourced from a redraw facility secured by way of second mortgage over the parties’ jointly owned Suburb K Property, with such facility currently standing at a nil balance due.
It was an agreed fact that should the full value of the undrawn facility, being approximately $547,000, the repayments on the full redraw would be approximately $3,104 per month, and should $200,000 be drawn on the facility, those repayments would reduce to $1,100 per month ($13,200 per annum).
I do not accept the submission of the father that he is not in a position of relative financial strength when compared with that of the mother. I do not accept the submission of the father as to a “practical difficulty in getting access to the funds as sought” by the mother, and the further submission that he could not, if so minded, maintain “making payments on the greater mortgage”. On the father’s evidence sworn in his Financial Statement filed 11 November 2021, he has capacity to meet those repayments. He is able to redirect the $350 per week he spends on entertainment and hobbies and the $250 per week he spends on holidays (total $600 per week, or $31,200 per annum) to meet the cost of the draw down.
The value of the equity in the home is in the range of $1,890,100 to $2,895,000.
On a final basis the mother sought leave to particularize her final orders sought after the single expert valuation evidence had been completed, and the father providing full disclosure. On a final basis the father proposes to pay to the mother the sum of $850,000 and that he retain the home, assuming responsibility for the mortgage, and that he retain his corporate interests.
A payment to the mother of $200,000 is well within what the father contends is a just and equitable adjustment of property in favour of the mother at final hearing. I find that the quantum of $200,000 by way of the proposed adjustment is conservative, with the remaining property is sufficient to meet the legitimate expectations of both parties at a final hearing. The proposed order is capable of being reversed or adjusted if subsequently considered necessary to do so. [5]
[5] See Medlow & Medlow (2016) FLC 93-692.
Taking into account all of the circumstances identified above, I am satisfied that it is appropriate to alter the interests of the parties on interim basis pending further order by making the interim property order as sought by the mother.
At the hearing the father sought the opportunity to raise any funds to be paid to the mother prior to a sale of the Suburb K Property. I will permit that opportunity and orders will be made accordingly.
In the event the father is of the view that the mother accessing $200,000 of the parties own property cannot be sustained, he agreed at the hearing that the Suburb K Property ought to be sold so as to facilitate the mother's access to such funds.
The mother sought to be appointed trustee for the parties in the implementation of the sale of the Suburb K Property if it is to be sold. Notwithstanding the father’s disclosure failures, and failures to comply with court orders to date, I am of the view that at this point, he ought not to be excluded from input in the sale process. The Suburb K Property is the most significant item of property owned by the parties. The father has a substantive entitlement at law as to input in its sale process, and it ought not be further restricted at this point.
Having regard to the determinations made above it is unnecessary to further consider any exercise of an interim costs power as sought by the mother.
CHILD SUPPORT ENFORCEMENT
The mother pursuant to s 113A of the Child Support (Registration and Collection) Act 1988 (Cth) seeks to enforce against the father payment of outstanding arrears of periodic Child Support and applies for consequential orders in the event the father fails to pay any amount of current arrears by way of sale of the Suburb K Property he presently occupies. She further seeks orders that pending any disposal of the Suburb K Property, the father pay all of the mortgage instalments, rates and other outgoings in respect to the property and indemnify her as to same.
The mother’s enforcement of that obligation is for the benefit of the parties’ children.
Section 113A of the Child Support (Registration and Collection) Act 1988 (Cth) sets out a mandatory procedure whereby the Child-Support Registrar must be notified by the payee of the payee’s intention to seek recovery of a child support debt[6] and as to the procedure for the recovery of a child support debt by a payee.
[6] Yarwood & Shore [2013] FCCA 2219 at [19] – [20].
It is not disputed that the mother is a payee of a registered maintenance liability. Exhibit 4 records notice given by the mother to the Child Support Agency as to recovery of the outstanding periodic arrears payable by the father, and the consent of the Agency pursuant to s 30 of the Child Support (Registration and Collection) Act 1988 Act to the mother prosecuting enforcement of the arrears in this Court. The father does not put into issue the capacity of the mother to recover the child support debt. He did not make submissions as to the mother’s proposed timeline of the payment of the debt, and implicitly conceded as to the mother’s request that, if order to be paid, such payment be made within 42 days.
It is further uncontroversial that:
(a)The administrative assessment of child support payable by the father to the mother for the children issued on 8 October 2019 and as at 1 November 2021 arrears had accumulated to the amount of $36,743.54; and
(b)That the father had not paid any periodic child support to the mother since March 2021, a period of eight months; and
I find that the value of the arrears of periodic child support payable by the father as at 1 November 2021 is $36,743.54.
I find that the mother has standing to enforce the recovery of the arrears in that sum as at the date of the hearing.
The father presented a case that he had made other payments by or on behalf of the children outside the Child’s Support Agency that were yet to be determined by the Agency to be non-agency payments (such as loan repayments in respect to the home he solely occupied or car repayments in respect to his motor vehicle), and that enforcement of any arrears ought to not occur until these claims had been determined by the Agency.
It emerged during the hearing that the father’s claims were determined and rejected by the Child Support Agency on 26 February 2021, and that he had not availed himself of any Appeal or Review of that determination to the Administrative Appeals Tribunal since that time – greater than 8 months ago. The case he promoted to avoid determination of any enforcement of the arrears was disingenuous.
The evidence supports a finding on enforcement that father had in reality made an election not to make any payments of a periodic or non-periodic nature to support and maintain the children since March 2021. His evidence as to not having the financial capacity or available financial circumstances to do so was hollow.
The mother contended that the funds to pay the arrears can be sourced from the redraw facility secured over the parties’ jointly owned Suburb K Property. On one view, this in reality may generate a circumstance whereby a portion of the value of the arrears paid would be sourced from the mother’s share of the home she jointly own with the father. The father says he wishes to retain the home in specie as part of any final property adjustment. Should he wish to retain that option, he ought to source the arrears from alternate avenues. If the home is sold and the arrears paid from that source, the trial judge has the capacity to take that circumstance into account in the final s 79 determination.
UPDATED FINANCIAL DISCLOSURE
The Rules are clear in respect to the obligation imposed on parties in respect to each party’s ongoing duty to provide financial disclosure to the other. The father has the province of most of the documents recording the relevant financial circumstances of the parties
Correspondence between the parties’ solicitors[7] indicated that there has been a longstanding issue as to the adequacy of the financial disclosure provided by the father to date. It is not possible to examine all of the documentation that has been provided. The father concedes that he has not complied with requests made, or directions made. He says 28 days are required to ensure compliance with outstanding disclosure requests made by the mother. An order will be made providing such time frame so as to ensure his compliance with the orders made.
[7] Exhibit 4
The Rules of this Court are to be complied with, as are the orders of this Court. They are not mere suggestions or guidelines. Parliament enacted the Family Law Act 1975 (Cth) in the expectation of such compliance. Failure to do so, by any party, will inevitably lead to further litigation. This will further deplete the property of the marriage and be contrary to the interests of the parties and their children. ;
I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 30 November 2021
- AGLC
- Blatch & Blatch [2021] FedCFamC1F 219
- Case
- [2021] FedCFamC1F 219
- Decision Date
CaseChat Overview and Summary
The court was required to weigh the primary considerations under section 60CC(2) of the Act, particularly the need to protect the children from harm, against the benefit of maintaining a meaningful relationship with both parents. The court also had to assess the risk of harm to the children based on the allegations of family violence, the father’s potential alcohol consumption, and the children's exposure to criminal law proceedings. Furthermore, the court needed to decide whether an interim property order was appropriate under section 79 of the Act, considering the long duration of the marriage, the breakdown of the relationship, and the necessity for property settlement.
The court determined that the proposed regime of supervised and gradually unsupervised visits with the father, subject to strict conditions, was appropriate given the circumstances. The court balanced the need to protect the children from the alleged harm with the benefit of maintaining a relationship with the father, ultimately concluding that the proposed measures would ensure adequate caution and facilitate the children’s gradual rebuilding of trust and confidence in their father. The court also found that the criteria for an interim property order were met, leading to the establishment of a fair and equitable distribution of assets between the parties.
The court made orders for the interim parenting arrangement as proposed by the Independent Children’s Lawyer and granted the interim property order as requested by the parties, considering the long marriage and the necessity for a property settlement.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.THE PRIMARY CONSIDERATIONS: S 60CC(2) The primary considerations, which are contained in s 60CC(2), are:(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents. Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[1] [1] McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].ALLEGATIONS OF RISK The risk of harm to the children is a central but not the only issue in this case. The High Court in M v M (1988) 166 CLR 69 at [78] identified that the formulation of parenting orders depend on the nature and degree of risk presented. The formulation of orders in this case are about balance. The Full Court in SS & AH [2010] FamCAFC 13 confirmed that it is not feasible when dealing with the immediate welfare of children to simply ignore an assertion because the accuracy has been put into issue. In Deiter & Deiter [2011] FamCAFC 82 (“Deiter”) the Full Court said that the assessment of risk cannot be postponed until the last piece of evidence has been given and tested. In Deiter, the Full Court said when making an interim order a court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children. It is likely that the interim parenting arrangement under consideration will be in place at least until mid-2022. It further appears uncontroversial as between the parties, and a submission was actively promoted by the Independent Children’s Lawyer that any orders as to the terms of the time spent by the father with the children wold be subject to potential review after the issue of the Court Parenting Expert’s report.Discussion and assessment of risk In this matter the risk posed by the father as in spending time with the children is identified as being the as yet unknown short and long term impacts from exposure to significant family violence and conflict, as to the impacts of the father’s consumption of alcohol, as to the absence of capacity of the father to regulate his behaviour, and as to the impact of the children’s engagement in the criminal law proceedings on their relationship with each of their parents. Risk is not the only, or necessarily the determinative, factor at play in the crafting of appropriate interim parenting order in this matter. It remains one factor to be taken into account (noting sections 60CC(2A) and 60CG of the Act) in the determination of what is in the children’s best interests (see, for example Mallory & Mallory [2019] FamCAFC 221 at [78]).