BOCELLI & HOLLAND
[2016] FamCA 450
•8 June 2016
FAMILY COURT OF AUSTRALIA
| BOCELLI & HOLLAND | [2016] FamCA 450 |
| FAMILY LAW – CHILDREN – Parenting Orders – Where there is a long history of family violence – where both mother and father pose a risk of psychological harm to the child – where older children have suffered harm from both parents – where all children have been diagnosed with mental health issues – where extended family members pose a risk – where father does not accept the psychological harm and poor life outcomes of all children are a consequence of his and the mothers exposure to conflict – where parents are ordered to attend counselling – where orders do not protect the child from harm, however, leaving the parties without any regime would likely be a worse outcome for the child – Where the parents coerce the children to be on their “team” – Where parties communication cannot support shared parental responsibility – Where sole parental responsibility is ordered – where child to live with father and spend time with the mother. FAMILY LAW – PROPERTY – where proceedings not ready for trial – where parties contributions are assessed as equal – where the parties have a net debt – where the father is required to pay the mother for school fees – where residual balance should be used to fund parties’ counselling. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAC, 79 Evidence Act 1999 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Ms Bocelli |
| RESPONDENT: | Mr Holland |
| INDEPENDENT CHILDREN’S LAWYER: | Chris Wright |
| FILE NUMBER: | CSC | 310 | of | 2008 |
| DATE DELIVERED: | 8 June 2016 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 7 and 8 April 2016 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr McGregor |
| SOLICITORS FOR THE RESPONDENT: | Bassano Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Lawrence |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER | Murray Lyons |
Orders
CONTRAVENTIONS
Leave is given for the Contravention Application filed 12 May 2015 to be withdrawn.
PARENTING
All prior parenting orders be discharged.
The father have sole parental responsibility for B born … 2005 (“the child”).
The parties have sole responsibility for making decisions about the day to day care, welfare and development of the children during the periods when the children is living with them except as otherwise provided for in these orders.
It is a condition of the child living with the father that the father does not allow contact between the child and Mr C Holland.
It is a condition of the child spending time with the mother that the mother does not allow contact between the child and Mr D.
The child live with the father.
The child spend time with the mother, unless otherwise agreed to in writing:
(a)from after school on Friday until the following Monday before school each alternate weekend;
(b)in the Queensland gazetted school holidays in the first week of the school holidays for terms one, two and three commencing from the conclusion of school for that term until the middle Saturday of the two week holiday with the child being returned to the father’s care at midday at the McDonalds Family Restaurant at Suburb E;
(c)the child spend time with the mother on the weekend of Mother’s Day from the conclusion of school on the Friday before Mother’s Day until the commencement of school on Monday;
(d)the child spend time with the mother on the child’s birthday from midday until 6:00pm each year with changeover to occur at McDonalds Family Restaurant at Suburb E;
(e)for the Christmas school holidays in 2016 and each alternate year thereafter from 4:00pm on 1 January until 4:00pm on 22 January;
(f)for the Christmas school holidays in 2017 and each alternate year thereafter from the conclusion of school of term four until 1 January with changeover to occur at 4:00pm.
Special days with the father
In the event the child is living with the mother on Father’s Day, then the child will remain living with the father from the conclusion of school on a Friday (immediately before the Sunday of Father’s Day).
Communication between the parents
The mother and father are to communicate by way of email unless as otherwise provided for in these orders.
Either party is only to telephone the other party in the event of a medical emergency or as otherwise provided for in these orders.
Communication between the children and the mother
Unless otherwise agreed between the mother and father, or at such times as requested by the child:
(a)the mother is to speak to the child on the Wednesday between 6:30pm until 7:00pm with the mother to call the child in the week she will spend with him;
(b)in the alternate week (when the child does not spend time with the mother), the child is to call the mother on the Wednesday between 6:30pm until 7:00pm and the father is to facilitate (have the telephone working) such telephone call being made to the mother.
Counselling
The parents are to forthwith attend at F Counsellors for the purposes of family counselling/co-parenting counselling and attend as directed by Mr F until he considers that the parents are able to meet the co-parenting goal, and the parents are directed to use the net proceeds of sale held in the solicitor’s trust account regarding the sale of the G Street property to pay for such counselling, but otherwise contribute equally to the costs of such counselling.
The Family Reports and Judgment and Reasons prepared for in this matter are to be released to Mr F, with the Independent Children's Lawyer to send these reports to him within 14 days of the date of these orders.
The parents do all acts and things necessary to ensure that the child attends with a General Practitioner to obtain a mental health referral to attend with a counsellor at F Counsellors and the child is to attend with such practitioner until the child and the practitioner are agreed that these therapeutic goals have been met.
Exchange of information
The mother and father shall:
(a)keep the other parent informed at all times of their residential address and mobile contact telephone number and email address within 48 hours of such change being made;
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This order authorises any treating medical practitioner to release the child’s medical information to the other parent.
During the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and do not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully.
The father shall refrain from making critical or derogatory remarks about the mother or members of her family in the presence or within the hearing of the child and that the father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the mother or members of her family in the presence or within the hearing of the child.
The mother shall refrain from making critical or derogatory remarks about the father or members of his family in the presence or within the hearing of the child and that the mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the father or members of his family in the presence or within the hearing of the child.
The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
PROPERTY
The father is to pay to the mother the sum of $3,377.50 within three months of the date of these orders.
Otherwise the parties are to retain absolute and sole ownership or all chattels, monies superannuation or other assets in their name or possession, to the exclusion of the other.
Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bocelli & Holland has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC310/2008
| Ms Bocelli |
Applicant
And
| Mr Holland |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The most unfortunate thing about this case is the unchallenged evidence of the Family Report writer, that irrespective of whether the child in question lives equally with both parents, or lives primarily with one and spends time with the other, it is highly likely that the ongoing conflict between the parties will effect emotional harm to him. In due course, that will likely manifest itself in either drug addiction, violent behaviour, early departure from home, poor academic performance, depression and anxiety or phobic behaviours, or self-harming behaviours. Moreover, the Family Report writer’s evidence was that because the child in question is introverted, his susceptibility to suffering that harm and sustaining those consequences is heightened.
Nor is this idle speculation; all of the parties’ other six older children have in varying degrees and combinations demonstrated those outcomes to date. Yet notwithstanding this fact, and the Family Consultant’s unchallenged evidence, in the witness box neither of the parties was able to present any plan to protect the child the subject of these proceedings from that harm. Each continued to blame the other, and would accept no responsibility for the hostility that exists between them. It is distressing to record that my task in this case requires me to craft orders in full knowledge that they will likely effect lifelong harm to the child, or put another way, I am practically unable to craft orders which can protect the child from such harm.
As ultimately formulated, Ms Bocelli (“the mother”) seeks orders that the child B, born in 2005 and hence presently 11 years of age (“the child”) live with her and spend supervised time with Mr Holland (“the father”) at the H Contact Centre, to the maximum extent that that Centre can facilitate it. However in the event that the child expresses a wish to not spend time with the father, then the mother says that she ought not be required to make the child available. She does not justify the supervision requirement on the basis of any unacceptable risk of harm which the father is said to pose, but rather merely to ensure that the child is returned to her.
For his part, the father seeks orders that the child lives with him, and spends alternate weekend time with the mother from after school on Friday until before school on Monday, together with time on the child’s birthday and each alternate Christmas. He does not propose any holiday time other than to the extent that the weekends fall within that period.
The Independent Children's Lawyer ultimately in substance, supported the father’s position.
There were also property proceedings before me. However the un-contradicted fact is that the parties have net debt. The property proceedings were not in fact ready for trial, as no valuations of the assets had been obtained, nor was agreement as to their value. The parties appeared to think that their bitterness and hatred towards each other would fill the evidentiary void.
I will deal with the children’s proceedings first and then give my judgment in the property claim.
BACKGROUND FACTS
The relationship
Whilst ordinarily I would discuss the parties’ backgrounds prior to the commencement of their relationship, before turning to an historical narrative of it, here that is unnecessary, as their relationship commenced in 1979 when the mother (who was born in 1965 and hence is presently 50) was 14 years of age, and the father (who was born in 1962 and hence is presently 53) was 17 years of age. They commenced a de facto relationship approximately two years later and married in 1991. By then they already had the first of what to prove to be seven children, that being Mr C, born in 1987, and hence presently 29 years of age.
The mother contends that from early on in the relationship the father was physically violent towards her. Even prior to their marriage, the relationship was punctuated by separations. It appears as though the parties have never managed to achieve good communication. For his part, the father contends that the domestic violence was mutual and usually precipitated by some erratic behaviour of the mother, whom he claims verbally and physically attacked him on occasion.
The father concedes that he was a strong and too strict disciplinarian of Mr C. This was confirmed in the Family Report interviews conducted with Mr C on 19 March 2014 in which he remembers “being flogged” by the father if he did not eat everything on his plate.[1]
[1]First Family Report paragraph 52.
Into this environment were born a further six children: Mr J (born in 1993 and hence presently 23 years of age); Mr K (born in 1994 and hence presently 21 years of age); Ms L (born in 1996 and hence presently 19 years of age); M (born in 1998 and hence presently 17 years of age); N (born in 2000 and hence presently 15 years of age) and the child.
Ms P, the Family Report writer, opined that the history she obtained from the parents and the children “indicate the [Holland] family has always been a highly volatile environment. Arguments, yelling and aggressive behaviour appear to be part of the fabric of this family. The children’s reflections about their parents indicate that they see their parents as angry people who could also be very punitive in their discipline… Despite these perceptions the children’s interactions with both their parents during the observations suggest that their parents could also be very passive in their parenting styles. The children repeatedly behaved belligerently towards both parents without any fear of reprimand or sense of guilt or remorse.”[2]
[2]Paragraph 111.
At [118] she continued:
The children’s medical and school histories are indicative of their upbringings. The subpoenaed records from their schools and medical visits show all the children have histories of psychological disturbance and suffer ongoing significant emotional distress. The medical and school records show the six younger children have histories of school refusal, behaviour problems and poor academic performance. [Mr C], [Mr J], [Mr K], [N] and the child have been diagnosed with Attention Deficit Disorder and all have been prescribed Ritalin.
In addition, Ms L has been diagnosed with anxiety and depression, and M has been diagnosed with anxiety disorder and school phobia and prescribed antidepressants. Ultimately her paediatrician refused to continue her treatment as she was “too difficult for me to manage.”
At paragraph 120 of the First Family Report Ms P opined:
The fact that all seven children have been diagnosed with mental disorders is strong support for the premise that the root cause of the children’s mental health issues relate at least as much to family dysfunction as they do to any hereditary factors.
None of this was challenged in any way, shape or form during the course of Ms P’s cross-examination. I accept that evidence in its entirety.
In 2008 the parties separated for ten months. It appears that the precipitator for that was a fight between the parties which saw the mother locked up by police for four hours. For that ten month period all of the children resided with the father rather than the mother, and that was confirmed by Court Order made on 9 July 2008, which order also provided for the children to spend weekend time with the mother.
In the first Family Report interviews, the mother told Ms P that “she reconciled with [Mr Holland] in November 2008 purely because she could not stand being without the children anymore.”[3] However other than cohabitation in the former matrimonial home, it does not appear as though it was a reconciliation in any real sense. Indeed the mother told Ms P that she believes “she went through the motions of their life, uncommitted but subservient to [Mr Holland] to remain with her children.” She claims the parties finally separated in April 2012 but the father maintains that the relationship continued, albeit on and off, until February 2014. Nothing turns on this dispute and I do not need to determine it.
[3]Paragraph 13.
Post-separation
The mother commenced a relationship with a Mr D in November 2013, which relationship continued at the time of trial. The father has not re-partnered. The children have intermittently switched between living with one or other of the parents, and it is plain that both parents have actively sought to encourage the children to live with them rather than the other, as a provocative demonstration of that child’s loyalty to them. Ms P correctly identified that the parties regard the children as “trophies.”
Equally plainly, the children clearly identify themselves as being pressured to demonstrate allegiance to one or the other parent. Worse, it seems clear that the older members of the family who have aligned themselves with one parent actively exert pressure upon younger children to join or stay on the particular parental team with which they themselves are currently aligned. However in her First Family Report at paragraph 121, Ms P opined that “the conflict and loyalty divisions evident pre-separation have been exaggerated by the parents’ separation. It is likely the family was largely divided for some time prior [to] the parents’ physical separation in 2012. The separation has simply exacerbated these dividing lines.”
Perhaps unsurprisingly, all of the children in varying degrees show the effects of the psychological and emotional harm that has been visited upon them by their parents. Mr C, who is aligned with his father, is a drug abuser, and is probably addicted to ice. He has engaged in various crimes which are unnecessary to detail, which have seen him initially sentenced to some diversionary programs as a minor, but ultimately to prison for four months as an adult. When affected by ice, he is prone to violence, and has physically attacked one of his sisters. For his part, the father, perhaps in some misplaced idealism of Mr C based upon the fact that he has stayed loyal to the father, downplays Mr C’s problems, and denies that he presents any risk of harm to other family members.
Mr J was diagnosed with attention deficit disorder as a child and thereafter displayed troubling behaviours.
Mr K was also diagnosed with attention deficit disorder as a child. At present, he has sided with his father in the family dispute, but notwithstanding that, in his first Family Report interview, when Ms P explained generally the effects on children of high conflict separated families, she reported that his demeanour changed. At paragraph 58 she continued:
He was no longer hostile and defensive but became quiet and listened intently often nodding in response to questions. His responses demonstrated he had forgotten he was a child in the family and deserved to be parented in a way that met his needs and interests rather than having to campaign his parents’ interests or peace make for them. As Mr K thought more about this issue his frustration over his parents became clear. He confirmed his parents never got along well and showed his frustration about this with the statement “why did they have to have so many kids anyway?” He then agreed the way his parents have behaved has hurt all the children, including him. He also agreed his parents’ behaviour has placed the children in the middle of their dispute and this has been hard on all of them.
At the time of trial Mr K was residing with the father, and it appears to be conceded by both parties that he abuses alcohol. The mother also claimed that he abuses marijuana.
Ms L has not spoken with her father for many years. That is because, at least according to her, in about 2008 her father called her a slut, and she has never forgiven him. She also perceived that the father always treated the boys in the family better than the girls. One of the criticisms made of both parents by Ms P is that they enrol their children as their agents for coercing or persuading other children to join their team, or to keep them on there. That was never clearer than from material appended to the mother’s affidavit filed 6 April 2016, from which it appears that Ms L was asked by the mother to provide a letter to the court describing her parenting, and without any express request by the mother, proceeded to obtain similar declarations from M, N and most worryingly, the child himself. I will discuss the child’s alleged preferences in relation to with whom he should live in due course.
M during the course of the first Family Report interviews conceded that she had taken to self-harming. Ms P reported[4] “she hurts herself because she feels so hurt about how her parents are behaving… She agreed her self-harming behaviour is her way of trying to get her parents to stop and pay attention to what she needs. She conceded that it has not worked as she still feels neither parent listens to her.” Later in that interview she conceded to Ms P that there is a risk that she will in the future take drugs, from which Ms P concluded “she may be at risk of significant drug abuse in the near future if things in her family do not improve.”
[4]Paragraph 74.
Previously M had been diagnosed with an anxiety disorder and school phobia at 13 years of age, which saw her home schooled for two years thereafter. Plainly she has had a troubled childhood and remains troubled.
N has been diagnosed with attention deficit disorder as a child. She reported to Ms P in the first Family Report interviews that she “feels pressure from Ms L to reject her father, Mr C and Mr K.” Ms P further reported “her father constantly pressures her when he sees her. He taunts her with derogatory comments about her mother and Mr D that make N feel very uncomfortable. She thinks her father tries to buy her love sometimes…”
Finally, the child has been diagnosed with attention deficit disorder, and during the course of the first Family Report interviews “presented as highly defiant, disrespectful and was restless in his interview.”[5] He was virtually uncontrollable by either of his parents during the course of the interviews and interactions. Ms P reported that “he idealises his father and sees his father’s side of the family as being “all the boys.” He desperately wants to be part of the boys’ team declaring he, his father, Mr C, Mr K and Mr J are a team together. He spoke disrespectfully about his sisters describing them in pathological terms such as “psycho” and “bitch”, whilst describing his brothers as “awesome” and “cool.” He described his father as “awesome” and mother “sometimes mean.”” Sadly, by the time of the second Family Report interviews in October 2015, Ms P opined[6] “… [the child] seems more caught in the middle of his parents’ conflict than ever before…” Later at paragraph 81, she continued “[a]s the youngest child and final trophy for these warring parents he is possibly experiencing the greatest pressure from each parent.” He expressed to Ms P that his preference was to live with his father and spend time with his mother every alternate weekend.
[5]Paragraph 85.
[6]Paragraph 77.
Problems also attend the mother’s new partner, Mr D. Although the mother initially maintained independent housing, she now lives with Mr D in his house. There were problems when the mother had her own housing, as she would frequently prefer to spend evenings with Mr D in his house, rather than with the children in her house. Plainly she was prioritising her new relationship over the children. However since moving with the children that live with her into Mr D’s house, other problems have arisen. Mr D appears to have an alcohol abuse problem, engaging in drinking at least 5 drinks every day, and despite the protestations from the mother that he is not affected by alcohol in consequence, one would have to have strong reservations. For instance the father – without seeming contradiction – whilst being cross-examined by the mother, recounted an occasion when Mr D had rung him at 10 o’clock at night and was slurring his words and otherwise affected by alcohol.
Further, Mr D has a son from a previous relationship named Mr Q. One weekend when he apparently knew that the mother and Mr D would be away from their home, he set up a temporary methamphetamine lab in their garage. It appears as though he, like Mr C, is addicted to the drug ice. In consequence of that, Mr D called the police, and Mr Q at the time of trial remained on the run from police, with warrants outstanding for his arrest.
In the first Family Report Ms P’s attempted interactions between various members of the family. Generally speaking when it involved the warring sides of the family, it was chaotic, tense and confrontational. Things appeared to be no better at the time of the second interviews, when the father observed with M, N and the child. M and N simply sat in a corner and ignored him.
A feature of recent events is the parties’ disregard of court orders in relation to the child. Initially there were orders for equal shared time between the parents, in accordance with the then recommendations of Ms P. However whilst that may have been successful for a period of time, in fact the parents on occasion withheld the child, or if the other parent was withholding the child, would either encourage him to catch the school bus to their home rather than the withholding parent’s home, or arrange to collect him from school. Whilst it may be that the father has been a greater perpetrator of such breaches of orders than the mother, both have done it. In consequence, up until February of this year, the child had no predictable structure or routine as to in whose parents’ home he would be living at any time, notwithstanding the orders clearly provided for week about.
In light of the fact that the father had been withholding the child from the mother for some months, when the matter became before me in February 2016, the parties consented to orders which saw the child live with the father and spend weekend time with the mother. That appears to have generally worked, although the mother now protests that she only consented to those orders in consequence of the Independent Children's Lawyer telling her that it was likely to be the only way she would get to see the child. I am not blind to the fact that the reason why the orders may have been complied with, on the whole, for these couple of months, is probably only because the parties were well aware that the trial would proceed in April, and hence were under the close scrutiny of the Court.
As at the time of trial it appears as though neither of the parties were in employment. The father is a tradesman and appears to periodically work in a business which he claims is owned by his sister. The mother, when she is in employment, works in administration.
One symptom of the parties’ ongoing conflict has been the failure of each of them to pay outstanding school fees in respect of some of the children. They are now in a sizable sum, some $23,400.00. In consequence of that, the child could not be re-enrolled in his old school, and commenced at a new school in 2016. Unfortunately the evidence did not contain any detail as to his progress there.
THE ISSUES
With the assistance of the parties I identified the following as the issues in this case, in that their determination was likely to substantially inform the outcome of the trial.
1.What is the nature of the relationship between the child and:
(a)The father;
(b)The mother.
2.Would the child benefit from a meaningful relationship with:
(a)The father;
(b)The mother.
3.What, if any, risk to the child is posed by living with:
(a)The father;
(b)The mother.
4.Would a meaningful relationship between the child and the other parent be facilitated by:
(a)The father;
(b)The mother.
5.What would be the likely effect on the child of a change in residence from the present arrangements to living:
(a)Primarily with the mother;
(b)On an equal shared care basis.
6.Is the parties’ communication sufficient to enable any form of shared parental responsibility, or consultation mechanism if sole parental responsibility were ordered.
After I have addressed the relevant statutory provisions and legal principles, but in advance of a traverse of the s 60CC considerations, I will consider those issues and then determine the appropriate parenting orders in this case.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that 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. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that 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 either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[7]
[7] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
The standard of satisfaction required
S 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal. Nonetheless an allegation of that kind is also potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s 140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[8]
[8] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[9]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[9] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
WHAT IS THE NATURE OF THE RELATIONSHIP BETWEEN THE CHILD AND EACH PARENT
Overview
Ultimately this was not a major battle ground between the parties, although each contended that they were a better parent than the other. Really the issue came down to the fact that neither parent appears to have the insight that their attempts to enlist the child into their respective warring team, substantially detracts from the benefits which the child might otherwise obtain from the relationship.
The father
The child and the father appear to have a good relationship, although that may be because the father perceives that the child is presently more on his team than the mother’s, and wishes to cement that recruitment. However plainly the child does enjoy spending time with his father, and connects with him in relation to the sorts of activities which they can jointly undertake. Moreover, I have already remarked that the child perceives that he, the other boys and the father a part of the same team. Of course this is idealising the father and the other family members, but nonetheless it is a feature of his perception of the father.
The mother
Ms P’s unchallenged evidence was that the mother also has a good relationship with the child, and said that the relationship with the mother was a mere tender one. On the other hand, the mother was plainly unable to control the child during the first Family Report interviews, and alternated between passively accepting his out of control behaviour, with what Ms P suspected was a more hostile and over-aggressive approach on other occasions as well.
Evaluation
Ms P’s evidence was that ultimately there was an even balance in the nature of the relationship between the child and each of the parents. I accept that evidence.
WOULD THE CHILD BENEFIT FROM MEANINGFUL RELATIONSHIP WITH EACH OF THE PARENTS
Plainly the child loves both parents; the problem is that each seek to actively sabotage the other’s relationship with the child, so as to ensure that he joins or remains on their team.
But for his embroiling the child in his conflict with the mother, the child would plainly benefit from a meaningful relationship with his father.
Likewise, but for her actively seeking to recruit the child to her team, the child would benefit from a meaningful relationship with his mother. She plainly loves him and that love is reciprocated. He obtains nurture from her, perhaps greater than he obtains from his father, in view of the mother’s generally softer approach to her children.
I am satisfied that the child would benefit from a meaningful relationship with both of his parents, as each has much and different things to benefit him in relation to.
RISK TO THE CHILD POSED BY LIVING WITH EACH OF THE PARTENTS
Overview
This was the primary battle ground between the parties. That is because each associated that the risk of emotional harm to the child was posed exclusively by the other, rather than themselves. Further, each asserted that the respective households posed physical risks to the child, as I shall discuss shortly.
The father
The physical risks associated with the father’s household lie with the prospect that Mr C might from time to time be living there. Indeed both parties consented to orders in February 2016 which obliged the father to ensure that Mr C was not in the house at any time when the child was living with him. The father’s unchallenged evidence is that Mr C has not in fact been seen by him since about December 2015, and the only interaction between Mr C and other family members of which the father is aware, was when one of the other brothers gave him a lift from H Town to Suburb E a few weeks prior to trial. Ultimately the father conceded that a condition of the child living with him must be that Mr C does not reside at the house as well.
However the real problem with the father lies not in physical risk, but emotional risk. As with all of the other six children, the father continues to expose the child to his poisonous views of the mother and her new partner, and the family members who have sided with her. Whilst the father’s evidence was that the child is happy living with him, the father did not appear to have the insight that the child likely presents as happy in each parents’ care, because he wishes to appease that parent’s perception of their relationship with him. That was Ms P’s evidence and I accept it. Moreover the father does not appear to accept that the psychological harm and poor life outcomes that each of the other six children have suffered to date, are the direct consequence of his and the mother’s exposure of them to their conflict. He therefore cannot identify any need to change his behaviour in relation to the child, or the other children more generally. As I shall discuss in the evaluation phase, sadly it follows that it is highly likely that if the child lives with the father, he will, as have all of the other six children, suffer emotional harm.
The mother
Like the father, a risk of physical harm to the child if living with the mother was identified, in the form of Mr Q. Mr Q is said to be an ice addict and involved in drug production. However unlike Mr C, Mr Q is less likely to in fact attend at Mr D’s house, because there is an outstanding warrant for his arrest. It is likely that the charges which he faces – namely production of methamphetamine – will see him incarcerated, so he has good reason to seek to evade capture.
Also it was said that there were two other risks associated with the mother’s household. The first is related to Mr D’s alcohol use. In the second Family Report interviews it is plain that the children that were then interviewed identified that indeed Mr D does suffer adversely from the effects of liquor, and becomes angry and can snap when he is drunk. The second risk relates to the fact that Mr D clearly regards the house in which the mother and some of the children live as his house, to be governed by his rules. On two occasions he has either required the mother and children to leave the house or, on the mother’s version, she has voluntarily chosen to leave the house, in consequence of conflict between her and Mr D. Moreover, the relationship between the mother and Mr D may be becoming a little stretched. At the time of the second Family Report interviews, Mr D had formed the view that he was going to move to R Town, with or without the mother and children. That would not appear to be a strong endorsement of his commitment to the relationship. The father contended, and I accept, that there is some risk that the mother may suddenly become homeless if her relationship with Mr D temporarily or permanently sees him require her and the children to leave his house.
However again as with the father, it is really the emotional risk which the mother poses to the child when he is in her care which is the main source of concern. There can be no doubt that she actively seeks to recruit the child to her team, and is aided in this respect by the other girls who live with her. Nothing could be plainer that this is an ongoing dynamic than the appalling letter which Ms L caused the child to write in support of the mother’s case in these proceedings.
It reads as follows:
I would like to live with mom because my mom treats me well and I love her very much I obviously love my dad but sometimes he gets angry over nothing, he raises his voies (sic) if I don’t do the dishes or if I don’t empty the bin, mom treats me like it’s the last day of her life evry (sic) day of her life and she doesn’t express her love with gifts. I now (sic) she loves me because of how exited (sic) she is to see me evry (sic) two week (sic) but I wist (sic) that would change and I now (sic) she wists (sic) ad (sic) treats me nice as well but he expresses his love with gifts most of the time. Sometimes he calls me names like fat lazy f**king c**t, and I don’t like it but he only calls me names like that when he’s real mad.
That Ms L had a hand in the production of this is conceded by the mother because she recognised that the handwriting of the words “fat lazy f**king c**t” were not in the child’s writing, but rather Ms L’s.
Precisely how the child came to write this letter is a little unclear, but may be reasonably conjectured. The mother concedes that she had a conversation with Ms L in which she asked her to provide her with a letter detailing her experience of her parenting by the mother, and Ms L did so. The mother says – and I am prepared to accept – that she did not seek similar support from the children in her household under the age of 18, but this did not stop Ms L from recruiting them. I am perfectly satisfied that, whether individually or collectively, Ms L sought to persuade the other two girls and the child to join her in preparing statements of support for the mother, and they did so.
The mother was so blinded by what she perceived as being a statement of love and support by the child, that she didn’t stop to consider the effect on him of being so suborned by Ms L, but immediately identified it as potentially useful tool in her ongoing hostility with the father in this litigation. Although in evidence she described it as a “beautiful thing” for a mother to receive, she did not appear to identify that it was not such a beautiful thing for the father to receive.
A more glaring illustration of the “Team Mum” attitude in the mother’s household could scarcely be imagined.
The mother plainly hates the father with a passion. Both in her evidence, her cross-examination of the father, and in her submissions, her bitterness was palpable. It is inconceivable that she can contain her hatred of the father from the children, whether by direct utterance or otherwise. I have little doubt that at every opportunity she will seek to cajole, importune or otherwise influence the child to join her team and abandon the father’s.
Evaluation
The tragic reality of this case was highlighted in the oral evidence of Ms P, which was unchallenged in any respect. Her evidence was that, irrespective of whether the child lives primarily with the mother, or the father, or spends equal time with each, there is a high probability that he will continue to suffer emotional harm, and if that risk does indeed eventuate, the magnitude of the harm which he suffers is also likely to be high. She identified that the eventuated risk is likely to manifest itself as drug or other substance addiction, violent behaviour, early departure from home, poor academic performance, depression and anxiety and phobic behaviours, and recourse to self-harm. Further, she said that because the child was introverted, there was therefore an increased susceptibility to an adverse emotional outcome.
In her first Family Report she observed:[10]
It appears both parents preoccupation with the hostilities between them has severely comprised their parenting capacities. Both parents’ narratives indicate they filter their children’s experiences, interests and needs through their own conflict-saturated and competitive views. As a result there is little evidence to suggest either parent demonstrates a parenting capacity adequate to respond to and support their children through their parents’ separation.
[10]Paragraph 115.
There is no reason to think that has changed since 2014. Indeed at paragraph 75 of the second Family Report she noted:
[M] feels [Mr C] and [Mr K] are very supportive of her and believes they are trying to help all the children although her mother tells her it is not true. [Mr C] and [Mr K] told her yesterday she should think about living with them. They tell her it is not good for her to live with [Ms L] because of the way she treats her. [Ms L] recently told her she should be euthanized.
At paragraph 77 she continued:
[M] conceded she realises it is not a good environment at her mother’s house but is unsure if it would be any better at her father’s.
The sad consequence therefore, is that there is no proposal which can protect the child from the high probability that he will suffer emotional harm, in consequence of which he will likely manifest one or more of the behaviours discussed above. I will return to this theme when discussing the appropriate orders.
WOULD MEANINGFUL RELATIONSHIP WITH CHILD BE FACILITATED BY THE PARENTS
There is no need to discuss this in any detail. The answer is a resounding no, and neither party contended to the contrary. Indeed Ms P unchallenged evidence was that, not only did she see no evidence of facilitation of a meaningful relationship between the child and the other parent, but each parent actively sought to sabotage the child’s relationship with the other.
LIKELY EFFECT ON CHILD OF CHNGE OF PRESENT ARRANGEMENTS
Perhaps a little unexpectedly, Ms P’s evidence was that there would be no significant effect on the child of a change in arrangement to live primarily with the mother, or on an equal shared care basis. In part that was informed by the fact that, save for the last two months, there has been no predictability or regularity in his living arrangements, which have altered from time to time as the ongoing conflict between the parents manifested itself. The child is used to trying to appease both of his parents, and has become if not accepting of, then at least used to, the fact that each of them tries to recruit them to their respective team. That said, Ms P did opine that there may be slightly more peace for the child if the present arrangements continue, in that at least there will be some certainty for him. I must say that the history of this family does not incline me to think that there will ever be peace for any of these children.
COULD PARTIES’ COMMUNICTION SUPPORT SHARED PARENTAL RESPONSIBILITY OR CONSULTATION
Again this matter was not controversial. Neither party contended that they could communicate with the other. Indeed the father now refuses to even respond to text or email messages from the mother, and will not answer her calls. Whilst the mother contends that she would be perfectly willing to communicate with the father, it is inconceivable that those conversations, or other forms of communication, would not, if not immediately be, then rapidly become, poisonous. The only certainty is that any interaction between these parties in any form will be acrimonious, spiteful, bitter and counter-productive.
SECTION 60CC CONSIDERATIONS
It will be appreciated that in discussing the issues, I have already traversed both of the primary considerations, and a number of the additional considerations. However I make the following further observations.
In the most recent Family Report interviews, the child expressed a wish to live with the father and spend weekend time with the mother. Although one may not normally give the wishes of an eleven year old child great weight, Ms P ultimately did give them weight in formulating her recommendation that the child indeed live with the father and spend weekend time with the mother in accordance with his wishes. I am also inclined to give those views some weight. In this context I should say that the expressed wishes of the child as contained in his handwritten note appended to the mother’s affidavit of 6 April 2016 deserve absolutely no weight. It was plainly the product of some form of involvement of Ms L, and I am not at all satisfied that it represents the honest and independently formed view of the child.
It appears as though child support has not been a major issue in contention between the parties, but rather each has looked after the children in their care from time to time.
Neither of these parents have the capacity to provide for the emotional needs of the child.
I am satisfied that there has been family violence involving family members, including physical fights between the mother and father, between Mr C and Mr D, and between the mother and M. There is likely to have been more. Sadly that is because physical violence appears to be part of the ordinary – or at least acceptable – repertoire of interaction between family members in this group.
It appears as though family violence orders have applied from time to time between the parties, but I can draw nothing more from them than that physical violence is tolerated as an acceptable form of interaction in this group.
Whilst plainly it would be preferable to make an order that is least likely to lead to the institution of further proceedings, I have little doubt that the parties will continue to seek venues and opportunities to play out their hatred, bitterness and hostility to each other.
PARENTAL RESPONSIBILITY
Ms P recommended equal shared parental responsibility. However she conceded in her oral evidence that she was by no means firmly wedded to such an order, and only reached because she considered that there was some chance, if the parties were obliged to communicate in relation to major decision making about the child, that the inevitable conflict between them might at least raise for consideration competing points of view. Correctly in my view, Ms Lawrence, who appeared as counsel for the Independent Children's Lawyer, identified that the role of each parent would be that of contradictor to the other, the potential benefit being that at least a range of viewpoints would be promulgated.
However I am comfortably satisfied that the parties could never agree upon an outcome. No matter what the decision, I am quite confident that each would adopt a contrary point of view and inflexibly stand on it, in consequence of which each matter would conclude in a stalemate. Moreover, I am not at all persuaded that there would be any consultation. Each parent has a long history of acting unilaterally without consultation to the other, and plainly has no interest in receiving the other’s view. The most recent example of that is the father changing the child’s school without consultation or notice to the mother.
I am satisfied that there should be an order for sole parental responsibility, which, in the event that the child lives principally with one parent, should logically follow that residence. If there were to be equal shared care ordered, then nonetheless there would need to be sole parental responsibility for major long-term decision making given to one parent. Since as shall be seen, I do not propose to order equal shared care, I am satisfied that sole parental responsibility should be awarded to the primary residence parent.
WITH WHOM SHOULD THE CHILD LIVE
I have already adverted to the fact that, no matter what living arrangements are ordered for the child, it is highly likely that he will suffer emotional harm of considerable consequence, which shall likely lead to substantial adverse outcomes for him of the kind identified by Ms P, and which have already manifested themselves in varying degrees in his siblings. It is sad to observe that not one of his siblings has escaped unscathed from being trapped in the vortex of hatred and conflict between these parties. At paragraph 23 of these reasons, I have recited Mr K’s tragic acknowledgment that the way both of these parties have behaved has hurt all of the children, including him. One would have hoped that reading this observation from one of their adult children would have caused the parties to seriously reflect upon their ongoing interaction with each other, and to desperately seek to change it, whether with external help or otherwise. But it has not. If anything, the conflict has intensified.
Sadly, whilst usually I would weigh up the competing positives and negatives of each of the parties’ proposals, here there really are few positives to be considered on any of the competing scenarios. Perhaps the only positive in the father’s proposal is that in October last year, the child expressed a desire to live with his father and spend weekend time with his mother. Indeed this was the only factor relied upon by Ms P in ultimately formulating her recommendation that the child live with the father. As to the positives in the mother’s proposal, I note Ms P’s view that the mother’s relationship with the child is one that is more nurturing than that of the father.
The following are the negative features of equal shared care:
·There is a high probability of serious emotional harm being suffered by the child;
·In the past, orders for this arrangement have been chaotically not complied with, and there is no reason to think that the outcome would be any different again;
·Equality is only likely to spur each of the parents on with greater fervour to win the last remaining trophy child.
The following are the negative points associated with living with the father:
·There is a high probability of serious emotional harm being suffered by the child;
·The father will not facilitate a relationship between the child and the mother, or his siblings who live with her;
·There is some risk associated with Mr C, but that can be sufficiently mitigate by orders.
The following are the negative considerations arising from the child living primarily with the mother:
·There is a high probability of serious emotional harm being suffered by the child;
·There is some risk associated with the child Mr Q, but that can be sufficiently mitigated by orders;
·Mr D appears to be under the influence of alcohol on a daily basis, probably to varying degrees from day to day;
·There is the prospect that the mother will on occasion prioritise her relationship with Mr D over her relationship with the children, as she has done in the past;
·There is the prospect that the mother may, if the relationship with Mr D deteriorates, become homeless;
·The mother will not facilitate a relationship between the father and the child, or his siblings who live with him.
I do not overlook the fact that one could argue that there is a benefit associated to each of the parent’s homes, namely that the child will develop good sibling relations with the children then in that house. However the reality of that situation is that it comes at a cost: the child will not develop good sibling relations with the children in the other parents’ house.
I have already remarked that this case is an extremely tragic one, because no proposal adequately – or at all – protects the child from the high probability of serious emotional harm. In a sense therefore, neither of the proposals are in the best interests of this child. Were there a competing application by a grandparent or other extended family member, it would likely be a highly attractive one, but there is not.
As I indicated to the parties during the course of the trial, at one point I did seriously give thought to making no order, and simply dismissing each party’s application. That is because it is unfortunate and unsatisfactory for the court to be involved in ordering a regime which is almost certain to effect harm to the child. Nonetheless, but not without considerable hesitation, I have determined that leaving these parties without any regime of orders, would likely be an even worse outcome for the child, because thereafter they would be in an unregulated free-for-all as they compete for the child’s residence. In so observing I am not suggesting that has not been a substantial feature of the parties conduct to date, but the absence of orders would simply guarantee it.
In a sense it does not matter what I order, because the child will likely be harmed in any event. Nonetheless, I asses that there is some slender advantage in the proposal contended for by the father and the Independent Children's Lawyer, namely that the child should live primarily with the father. The factors which ever so slightly tip the balance in that regard are firstly that the child expressed a wish to Ms P to so live, and there are more disadvantages to the mother’s proposal than there are with the father’s. To that extent, I am persuaded that as between the competing proposals, the father’s is more in the child’s best interests than the mother’s, or indeed equal shared care, but as is patent from my earlier observations, it is difficult to conclude that such arrangement is in fact in the child’s best interests, given the high probability that it will harm him.
TIME AND COMMUNICATION WITH MOTHER
The mother did not articulate the orders which she would seek in the event that I ordered that the child live primarily with the father. I am satisfied however that the child should spend alternate weekend time with her and half of school holidays.
To the extent that there was disagreement between the father and the Independent Children's Lawyer, it was that the father proposed that the child should spend more special days with the mother than did the Independent Children's Lawyer, and also proposed a communication regime. The Independent Children's Lawyer opposed those orders on the basis that it would be better for the child to have less, rather than more, transitions between the warring tribes, and that a communication regime would inevitably fail because it could not be kept immune from the conflict between the parents. I accept that submission. There will therefore be orders as proposed by the Independent Children's Lawyer in this regard.
OTHER ORDERS
Counselling
Perhaps in light of some observations I made during the course of the trial, the father proposed that the parties be required to forthwith attend counselling with a view to trying to improve their co-parenting. The Independent Children's Lawyer said, in substance, that such an order would simply be a waste of time and money, because these parties have no interest in improving the relationship between them. Whilst I accept that is indeed the case, and that it is likely that counselling will be futile, as I observed to the counsel for the Independent Children's Lawyer during the course of submissions, it can at least do no harm.
The parties have never in the past sought or undertaken such counselling, and although the prospect of it succeeding is perhaps infinitesimal, perhaps, just perhaps, brutal counselling of these parties may achieve something. If it did, then the benefits to the child would be enormous. Indeed the benefits to the other children would likely be enormous also. Given that there is no downside to the counselling being ordered, I will order in accordance with the proposal of the father. The parties should have liberty to publish the Family Reports and these reasons to that counsellor, and the Independent Children's Lawyer be required to so furnish him or her with them.
Exchange of information and restraints
I am satisfied that the orders dealing with these matters proposed by the father are in the best interests of the child and will make them. Of course in relation to, for instance, the restraint on the parents from making critical derogatory remarks about the other, I am perfectly satisfied that it will be breached, as neither party has any respect for orders of this Court, as is well illustrated by the haphazard way in which they have retained the child from each other, even though there were explicit orders for week about care. However the fact that they will inevitably be breached does not mean that the orders per se are not in the best interests of the child.
CONCLUSION
The father will likely perceive that my orders mean that he has won the final trophy. He has not. I am quite satisfied that having the child in his care will not protect him from emotional harm, which the father appears perfectly happy to continue to inflict upon not only the child, but all of his children, in furtherance of his hatred of the mother. That cannot be construed as any kind of a win. There simply is no winner in this case. Unfortunately, certainly the child has not won, and that must be a source of lasting regret for everybody involved in this case.
For the foregoing reasons I will pronounce orders as set out at the commencement of this judgment.
PROPERTY
Introduction
The property proceedings were in a complete shambles at the commencement of the trial, and did not improve as it progressed. In reality they were not ready to be tried. No valuations were obtained, and no agreement as to values, whether of assets or liabilities, could be had, with one or two exceptions. Moreover, the mother’s case as finally argued during submissions – but not really addressed in her evidence – was that the father had failed to disclose a beneficial ownership in a business, and was in consequence receiving more income than he was disclosing. However the mother did not wish to further cross-examine the father, and did not express any wish to put any further material into evidence.
Cases such as this, which are not ready for trial, but the parties ask to be determined, are always unsatisfactory. It inevitably means the court is acting upon vague and imprecise information, and the only certainty is that to the extent that there is justice in consequence of the orders, it will be rough justice at best. Nonetheless, that is what the parties have asked me to do.
Background facts
This was a long relationship of more than 30 years. Neither party brought into the relationship any assets of significance. At the conclusion of their relationship, whilst the parties did have a jointly owned home, subsequently it was sold and there is only $1,700.00 by way of residual balance of the net sale proceeds kept in a solicitor’s trust account. As shall be seen, in fact the parties are in a position of net debt.
Parties’ proposals
The mother proposes that the parties should be declared equally liable for outstanding school fees in the sum of $23,400.00, and that the father should reimburse her for certain payments which she made post-separation. She further proposes that the vehicles and motor cycles in the father’s possession should all be sold to settle the outstanding debts, seemingly being both the father’s share of the school fees and other monies he allegedly owes her. She also seeks the return of some personal chattels which she says the father has retained. Otherwise she seeks that each party retain their superannuation entitlements.
For his part the father only seeks that the residual balance of the sale of the former matrimonial home be deployed to cover the costs of the counselling ordered in the children’s proceedings, but that otherwise each parties’ application in relation to property be dismissed.
Relevant statutory provisions and legal principles
Section 79 of the Family Law Act deals with the division of property of parties to a marriage. It has long been established that the preferred approach to be adopted to determining property disputes under s 79 is a four step one which involves:
·The identification of the property of the parties including their assets, financial resources and liabilities;
·The evaluation of the “contributions” or s 79(4)(a), (b) and (c) issues;
·The evaluation of the matters referred to in s 79(4)(d), (e), (f) and (g) including, by reference to s 79(4)(e) the matters set out in s 75(2); and
·A determination as to whether the result is just and equitable by reference to s 79(2) of the Act.
After the High Court’s decision in Stanford v Stanford[11] it may be taken as commonly accepted that the first step requires the identification of the parties existing legal and equitable interests in property, and thereafter, it is incumbent upon the court at the outset to determine whether or not it is just and equitable to make an order altering the interests of the parties in that property. However as the High Court itself indicated in Stanford, in many cases that step will be uncontroversial: for instance, if there is jointly owned property which is impracticable for the parties to jointly enjoy consequent upon separation, such as the former matrimonial home.
[11](2012) 247 CLR 108.
Assets and liabilities
The following is the parties’ positions in relation to assets and liabilities:
Name of item
In possession of party
Wife’s value
Husband’s value
Agreed value
Assets
Net proceeds of sale held in solicitors’ trust account
J
1,700
Motor Bike
H
12,500
Bank account NAB#...
W
107
Motor vehicle
W
30,000
Bank account (WBC) #...
H
974
Bank account (WBC) #...
H
1,000
Sunsuper
H
14,300
Q Super
W
32,200
Liability
Master card
H
40,600
Visa
H
8,200
Aussie Loan
W
26,788
Visa
W
1,000
GE Capital Finance
W
4,000
St George Finance
W
33,000
Outstanding school fees
W
?
?
24,300
On my calculation, even treating superannuation as vested property, and accepting the values attributed by the parties, they are in a position of net debt, in the sum of $45,107.00.
Contributions
This was a long marriage in which the parties introduced nothing of consequence into the relationship, and left with net debt. Each of them worked hard during the relationship in their respective roles, whether it be as income earner, or parent, or a combination of both. I am quite satisfied that the parties’ contributions should be assessed as equal.
Section 75(2) factors
Both parties are in reasonable health, and as that the time of trial were not in employment. Both have the capacity for gainful employment. Each have the care of children, and although the father will under these orders also have the care of the child, I am not satisfied that there should be any disparity in relation to the assessment of the s 75(2) factors.
Evaluation
I am therefore satisfied that the parties should be entitled to an equal share of the respective assets identified in the table. The difficulty however is that the mother is the party liable for post-separation school fee debts incurred in relation to at least the child, and probably other children as well. In this respect the father says that the mother chose to enrol the children in those schools post-separation, and did not have his agreement to incur the liability. On the other hand, plainly those fees were a benefit to the parties’ children, and nowhere in the evidence can I find some protest on the part of the father in relation to the children attending those schools, or any suggestion contemporaneously made that he should not contribute at all to the costs. True it is in his evidence he contended that if the mother chose to enrol them in the schools, then it should be at her expense, but the mother pointed out that the father had indeed contributed to the school fees in 2008, which the father appeared to accept.
Leaving aside the monies in the solicitors trust account, and treating super as a vested asset, if the school fees are left wholly the responsibility of the mother, then on my calculations, the outcome of the proceedings will see the mother leave the relationship with a net debt of $26,781.00 and the father a net debt of $20,026.00. Accepting that the values are not agreed, that their super is not presently available to discharge their liabilities, and that the school fees are a significant debt incurred in relation to the parties’ children, I am satisfied that the school fee debt should be divided such that the parties achieve equality. That would require the father to pay the mother $3,377.50. I will direct that sum to be paid within three months of these orders.
I am satisfied that the residual balance proceeds of sale should be used to fund the parties’ counselling, and that otherwise the parties be equally liable for its costs.
CONCLUSION
For these reasons I am satisfied that, save for the payment of $3,377.50 to the mother, the father’s proposal is otherwise the preferable one in order to do (admittedly rough) justice and equity between the parties and will so order.
I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 8 June 2016.
Associate:
Date: 8 June 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Remedies
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Procedural Fairness
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