Bradbury & Lander

Case [2022] FedCFamC1F 548

Federal Circuit and Family Court of Australia

(DIVISION 1)

Bradbury & Lander [2022] FedCFamC1F 548

File number: CAC 239 of 2017
Judgment of: GILL J
Date of judgment: 2 August 2022
Catchwords:

FAMILY LAW – PARENTING – Where the father seeks sole parental responsibility for the child – Where the mother is impacted by mental health issues – Where the mother holds deeply entrenched views that the father has been abusive and neglectful towards her and her child – Where the mother has been exerting controlling and coercive behaviour and communication towards the father – Where there is risk that the mother’s behaviour and influence will negatively impact upon the child – Orders made for the child to live with the father, who will also have sole parental responsibility, and for the child to spend time with the mother.

FAMILY LAW – PROPERTY – Settlement in relation to short marriage with small pool – Where both parties are in a parlous financial position – Where caution is exercised in considering any adjustment of the limited assets held by the parties – Where the father sought no adjustment to property – Where the mother sought adjustments, including of superannuation – Where no procedural fairness had been accorded to the superannuation trustee – Spousal maintenance application dismissed – Assets to remain with the parties.
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 65DAA, 72, 74, 75, 90XT, 90XZD, 102NA
Cases cited:

Aleksovski v Aleksovski (1996) FLC 92-705

Bevan v Bevan (2013) 49 Fam LR 387

Chorn & Hopkins (2004) FLC 93-204

DJM & JLM (1998) FLC 92-816

Dickons v Dickons (2012) 50 Fam LR 244

Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143

In the Marriage of Robb (1994) 490 FamLR 489

Jabour & Jabour (2019) FLC 93-898

Jollie & Dysart [2014] FamCAFC 149

Saska & Radavich [2016] FamCAFC 179

Stanford v Stanford (2012) 247 CLR 108

Strand & Strand (No 2) [2018] FamCAFC 247
Division: Division 1 First Instance
Number of paragraphs: 342
Date of hearing: 7 – 11 June 2021
Place: Canberra
Counsel for the Applicant: Mr Haddock
Solicitor for the Applicant: Infinity Legal
Counsel for the Respondent: Mr Stagg
Solicitor for the Respondent: Legal Aid ACT
Solicitor for the Independent Children's Lawyer: Ms Burgess

ORDERS

CAC 239 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BRADBURY

Applicant
AND:

MS LANDER

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

GILL J

DATE OF ORDER:

2 AUGUST 2022

THE COURT ORDERS THAT:

Parenting orders

1.That Mr Bradbury (“the father”) has sole parental responsibility for the child, Y, (“Y”) born in 2013.

2.That Y shall live with the father.

3.That the father provide to Ms Lander (“the mother”), basic information relating to Y’s education, outside school care, extracurricular activities, therapeutic programs, general health, and well-being, by email at the commencement of each school term.

4.That the father provide to the mother, copies of Y’s school reports and any medical or psychological assessment reports within…

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AGLC
Bradbury & Lander [2022] FedCFamC1F 548
Case
[2022] FedCFamC1F 548
Decision Date

CaseChat Overview and Summary

In the case of Bradbury & Lander, the parties were involved in a dispute concerning parenting and property settlement following their separation. The court was required to decide on the allocation of parental responsibility for their child, Y, as well as the distribution of their limited property pool. The father sought sole parental responsibility and the mother contested this, citing concerns about the father’s treatment of her and Y. The court also had to consider the financial implications of the separation, including spousal maintenance and adjustments to the property pool.

The court found that the father should have sole parental responsibility for Y, with specific arrangements for the mother to spend time with Y. This decision was based on the mother’s mental health issues and her potentially coercive and controlling behaviour, which the court deemed could negatively impact Y. The court ordered that Y live with the father and that the mother be restricted in her communications with the father to protect Y from any harmful influence. The court also dismissed the mother's application for spousal maintenance, noting the parlous financial position of both parties and the father's refusal to adjust the property settlement.

Regarding property, the court determined that the property should remain with the parties, as any adjustment would be difficult to achieve given the minimal size of the property pool. The court also dismissed the mother’s application for adjustments to the superannuation, finding that procedural fairness had not been accorded to the superannuation trustee. Consequently, no adjustment to the superannuation was made. The court ordered the father to deposit a specific sum into an account nominated by the mother and assigned the debt owed by the mother to the father to the mother, expunging the debt.

Orders

Orders of the court

CAC 239 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BRADBURY

Applicant

AND:

MS LANDER

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

GILL J

DATE OF ORDER:

2 AUGUST 2022

THE COURT ORDERS THAT:

Parenting orders

1. That Mr Bradbury (“the father”) has sole parental responsibility for the child, Y, (“Y”) born in 2013.

2. That Y shall live with the father.

3. That the father provide to Ms Lander (“the mother”), basic information relating to Y’s education, outside school care, extracurricular activities, therapeutic programs, general health, and well-being, by email at the commencement of each school term.

4. That the father provide to the mother, copies of Y’s school reports and any medical or psychological assessment reports within two weeks of receiving such reports.

5. That the mother may attend events at Y’s school to which parents are invited providing the father is not attending. The father must advise the mother the day before the event if he is NOT going to attend.

6. That the mother is restrained from contacting the father except by SMS limited to no more than 50 words and no more frequently than twice a week:

(a) To notify the father of Y requiring hospitalisation while in the mother’s care;

(b) To notify the father of any delay in arrival at changeover locations;

(c) To notify the father if she intends to be in Brisbane at Christmas holiday handover time and to confirm with the father whether he will also be in Brisbane at such times.

7. That Y shall spend time with her mother during each gazetted ACT school term, commencing on the first weekend following the commencement of the term, as follows:

(a) From after school each alternate Friday (or if the Friday is not a school day, from 3.00 pm) until the commencement of school the following Monday unless the Monday is a public holiday in which case until the commencement of school on the Tuesday.

8. That Y shall spend time with her mother during gazetted ACT school holidays as follows:

(a) In the school holiday periods following terms 1, 2 and 3, from after school on the last day of Term until 3pm on the fourth day following the end of school (that is, if school ends on a Friday, Y is to return on the following Tuesday).

(b) In the school holiday period following the end of term 4:

(i) In holidays commencing in even numbered years:

A. From 12.00 pm on Christmas Eve until 12.00 pm on 30 December;

B. From 12.00 pm on the Monday falling in the last full week of the school holidays until 12.00 pm on the Friday following.

(ii) In holidays commencing in odd numbered years:

A. From 12.00 pm on 29 December until 12.00 pm on 4 January;

B. From 12.00 pm on the Monday falling in the last full week of the school holidays until 12.00 pm on the Friday following.

9. That changeovers for the purposes of these orders shall occur as follows:

(a) The mother shall collect the child from school at the commencement of her time with the child, and return her to school if it is a school day;

(b) The father shall deliver the child to, and collect the child from the mother’s home on non-school days by waiting outside the mother’s home. The mother shall cause the child to walk to the father’s car but the mother must remain within the doorway of her home;

(c) If the mother and father are both in Brisbane at handover time during the Christmas school holidays, the mother will collect the child from, and return the child to, the home of Ms E, or another location nominated by the father, but must not enter the premises at any time, nor allow her agent to do so;

(d) If either of the parties is not in Brisbane during the Christmas school holiday changeover time then such changeover shall occur as set out in 9(b) above; and

(e) The father and mother may nominate an agent to collect or return Y providing that the maternal grandmother, Ms B Lander, is not the agent and is not permitted by the mother to attend any changeovers.

PROPERTY ORDERS

10. That, unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent Orders:

(a) Each party be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders;

(b) That money standing to the credit of the parties in their sole bank accounts be the property of the person named on said account:

(c) Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;

(d) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;

(e) Each party be solely liable for and indemnify the other against any credit card debt or personal loans in that party’s sole name.

11. That the $19,500 debt owed by the mother to the father in respect of the outstanding costs orders is assigned to the mother such that the debt is expunged.

12. That within a period of four months from the delivery of these orders that the father cause to be deposited into an account nominated by the mother in writing the sum of $40,000 (Forty Thousand Dollars).

13. In aid of the immediately preceding order the mother shall within fourteen days nominate to the father in writing the account details for the deposit of the monies referred to in that order.

14. All outstanding applications before the Court be 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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

This is the understanding to be given to the references to family violence within the Act, and is the understanding to be applied to the allegations of disagreement and of family violence that are made by the parties, as dealt with below.The evidence It is convenient to draw the various issues under broad headings relating to:·the assessment of the mental health of the parties and their particular characteristics;·the allegations of family violence; ·the nature of the communications between the parties; ·the father’s non-compliance with orders in the lead-up to trial; ·the parties’ parenting capacity and relationship with Y; ·the impact of parental conduct upon Y; and ·the evidence of the Family Report writer.Mental health of the parties The parties were both psychologically assessed by a single expert, psychologist Ms L. The father’s position was that the mother’s behaviour, in particular toward him, was an indicator that she is mentally unwell. Whether or not mental unwellness is the explanation for the asserted behaviour, the father wants the behaviour to end.REPORTS BY Ms L Clinical psychologist, Ms L, undertook assessments of both parties regarding their respective psychological states. She prepared two separate reports dated 20 August 2017. Applicant Father The father completed the Personality Assessment Inventory (PAI). Despite minor validity concerns, the test indicated no psychopathology or reasons for concern in respect of the father. At the time of the assessment, the father did not appear to be experiencing any significant mental health issues or meet the diagnostic criteria for any mental illness.[6] His anxiety was described as reactive and not of a level to meet the criteria for an anxiety disorder. The father being a shy, introverted man, is prone to anxiety at times as in his discomfort in social situations. While the father indicated that he had not had a formal diagnosis, he suspected that he was on the autism spectrum. Ms L concluded that the father has learned to manage social situations in life and would not meet the required criteria to be considered to have an autism spectrum disorder.[7][6] Report by Ms L 20 August 2017, paragraph 5. [7] Report by Ms L 20 August 2017, paragraph 4b.3. In summary Ms L observed:At the time of interview, he did not appear to be experiencing any significant mental health issues or meet the diagnostic criteria for any mental illness. Some mild anxiety can be attributed to this dispute. To his credit, [Mr Bradbury] was seeking help for this reactive anxiety. Respondent Mother The mother explained at interview that she was stressed “out of her mind” because a “violent monster has my three year old.” She said that she was unable to sleep because of worry, remaining awake for hours. She sought to impress upon Ms L her concerns at being subjected to family violence prior to separation. As with the father, the mother undertook the PAI in a manner that raised minor validity concerns. Unlike the father the PAI showed indications of the presence of clinical features likely to be of difficulty for the mother, indicated that she was ruminative in relation to physical concerns, experiencing specific fears and anxieties and as likely to display significant symptoms related to traumatic stress.[8] [8] Report by Ms L 20 August 2017, paragraph 4a.6.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The mother’s position would be to retain assets to the value of $502,000, and superannuation of approximately $4,500 (she having already received $20,000 of her superannuation). If the loans are accepted, she would hold debts of approximately $553,000, leaving a net negative equity.Consideration Particularly given the father’s position that there should be no adjustment, careful consideration must be given to whether it is just and equitable to adjust the property at all. Given the cooperation of the parties during the short period of their marriage from 2012 until approximately early 2017, during which time they had Y and shared in their efforts both in the care of Y and X, and in the retention and acquisition of their property, the ending of that period of mutual cooperation points toward it being just and equitable to adjust their property interests. Whether it remains so will depend upon the analysis of their contributions and the factors contained at s 79(4)(e)/75(2) of the Act. The only way for a cash adjustment to flow to the mother would be for the father to sell the house in which he and the child reside. He correctly submits that this leaves little funds available to him to rehome himself and the child. He submits that this tells against an adjustment to the mother.[71][71] Transcript 11 June 2021, p.244 lines 29–34. It may be seen that the asset of primary significance is the equity held in the Suburb GG home of $232,000. This is followed by the equity in the Suburb FF property, once the mortgage and $160,000 are taken into account of approximately $50,000. The equity in the mother’s property at Suburb FF is completely offset by her debts. The equity in the father’s home, the former matrimonial home, is largely offset by his non-legal expenses debts, leaving $114,000 equity there. Where the net pool, excluding legal expense loans is as minimal as it is here, caused in part by the borrowings each have made to sustain their living expenses post separation, and where the contributions and s 75(2) matters each favour the holder of the limited current assets, caution is called for in identifying any adjustment as just and equitable. Caution should also be exercised in attempting an adjustment on the basis of percentages as their application to a pool of such small size brings a potentially false impression of mathematical certainty that may conflict with a genuine consideration of whether the outcome is just and equitable. There is a strong argument in favour of adjusting the superannuation. A significant part of the father’s superannuation has been accumulated since the start of the relationship. However, as at the trial, the parties had been separated for about as long as they were in a relationship, and there was no indication as to the extent to which the increase in the superannuation was the product of post separation contributions. There was also no indication that the values ascribed by each of the parties accords with s 90XT of the Act. Further, there was no evidence to suggest that the trustee of the relevant scheme has been accorded procedural fairness in accordance with s 90XZD of the Act. The consequence is that there is no scope to make a superannuation splitting order pursuant to s 90XT, a result that accords with the position put by the father.