Callas & Gordon (No 2)
[2022] FedCFamC1F 10
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Callas & Gordon (No 2) [2022] FedCFamC1F 10
File number(s): MLC 3486 of 2017 Judgment of: MCGUIRE J Date of judgment: 1 February 2022 Catchwords: FAMILY LAW – CHILDREN - Application by father to set aside parenting orders made by consent in May 2018 – Where existing orders provide for the father to spend time with the child for five nights per fortnight – Where the father seeks an order for sole parental responsibility – Where the father seeks orders that child live with him – Whether there has been sufficient change in circumstances – Consideration of child’s best interests – Capacity of parents – Child’s views – Antagonistic relationship between parents - Order for equal time
FAMILY LAW – PROPERTY – Application by the wife pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) for an order setting aside property orders made by consent in this Court on 19 April 2018 – Application opposed by the husband – Consideration of relevant principles Application dismissed
FAMILY LAW – SPOUSAL MAINTENANCE – Application brought by wife for spousal maintenance – Application opposed by the husband - Where it was found that the wife failed to satisfy the onus of proof in respect of her claim – Wife shows prima facie need but does not explain disposal of significant lump sum from property settlement – Wife gives no evidence as to any effort to mitigate her circumstances - Application dismissed
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC(2), (3) 72, 74 and 79A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) at Division 6.2.1
Cases cited: Badawi & Badawi (2017) FLC 93-784
Barker & Barker (2007) Fam LR 36
Clifton & Stuart (1991) 92-194.
Granada Tavern v Smith [2008] FCA 646
Holland & Holland (1982) FLC 91-243
Lane & Lane (2016) FLC 93-699
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92
Molier & Van Wyk (1980) FLC 90-911
Mullane v Mullane (1983) 158 CLR 436
Oastler & Oastler (1993) 92-390
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Rice & Asplund (1979) FLC 90-725
Suiker & Suiker (1993) FLC 92-436
Thorne & Kennedy [2017] HCA 49
Division: Division 1 First Instance Number of paragraphs: 232 Date of hearing: 21, 22 and 23 December 2020; 10, 11, 12 and 13 May 2021; 14 and 15 July 2021; 23 and 24 August 2021; 13 and 20 October 2021 Place: Hobart Counsel for the Applicant: Mr Teserioro Solicitor for the Applicant: Sayer Jones Lawyers Counsel for the Respondent: In person Counsel for the Independent Children's Lawyer: Mr Goddard Solicitor for the Independent Children's Lawyer: McCormack and Co ORDERS
MLC 3486 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CALLAS
Applicant
AND: MS GORDON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
1 FEBRUARY 2022
THE COURT ORDERS THAT:
PARENTING
1.That all previous parenting orders in respect of X born … 2012 (‘X) be discharged.
2.That the parents Mr Callas and Ms Gordon have equal shared parental responsibility for X.
3.That X live with her mother and father on a week about basis with such time to commence at the conclusion of school on Friday (or 9.00am if a student free day) until the commencement of school the following Friday (or 9.00am if a student free day).
4.That subject to order 3 herein X will spend time with her mother and father as follows:
(a)for one half of the long summer school holidays by agreement and failing agreement with the father from the last day of school term until 12.00pm on the middle Saturday of the school holidays;
(b)for one half of the school term holidays such time to continue in accordance with order 3 herein;
(c)at such other times as may be agreed between the parties in writing (including by text message); and
(d)on special days including her birthday, Christmas Day, Father’s Day and Mother’s Day.
5.That the mother be at liberty to elect one term holiday in each calendar year in which she can take X to LL Town, Queensland for the purposes of maintaining her Aboriginal heritage on tribal lands and spending time with members of that community including the mother's extended family and for this purpose X shall spend time with the mother for the whole school term holidays and in addition a further week (five school days) of school term provided that:
(a)the mother provides the father with two (2) calendar months’ notice in writing of such trip;
(b)the mother provides the father with contact details of where she may be reached by telephone during such travel;
(c)the mother facilitates X speaking with the father including by face time, telephone or any other electronic means as may be available in accordance with X’s wishes during such trip; and
(d)the mother advises and consults with X’s school to ensure X’s education does not suffer.
6.That in the event that the mother elects to take X to LL Town in accordance with order 5 hereof and spends the entire school term holidays with her, X shall spend the entirety of the subsequent school term holidays with the father.
7.That unless otherwise agreed between the parents in writing, all changeovers shall occur at X’s school where changeover coincides with the beginning or ending of the school day and otherwise at Shop P, Suburb H (Q Street, Suburb H).
8.That X shall remain enrolled in the R School Suburb G for the reminder of her primary schooling unless the parents agree otherwise in writing.
9.That by 1 June in X's final year of primary school the parents shall attend family dispute resolution at an agreed family dispute resolution practitioner and failing agreement at S Contact Centre in Suburb H and shall make a genuine attempt to reach agreement as to which secondary school X shall attend.
10.That the parents shall communicate with each other by text message or email regarding parenting issues pertaining to X but shall otherwise be restrained by injunction from abusing or belittling one another.
INJUNCTIVE ORDERS
11.The parents shall be and are hereby restrained by injunction from:
(a)consuming any illegal drugs or drinking alcohol to excess whilst X is in their respective care or allowing X to remain in the presence of third parties who are doing so;
(b)denigrating the other parent, their partner or family to or within the presence or hearing of X;
(c)discussing these proceedings within the presence or hearing of X or allowing her to be in the presence or hearing of any third party who is doing so; and
(d)allowing X to have access to any document produced for the purposes of court proceedings between the parents.
MEDICAL TREATMENT
12.That in the event X sustains any illness or injury requiring treatment at a hospital or treatment by a medical practitioner whilst in either parent’s care that parent will inform the other parent as soon as possible.
13.That each parent shall authorise any treating doctor to discuss X's diagnosis, prognosis and treatment with the other parent and each parent shall be authorised to attend at the time of such treatment, subject to the discretion of the treater.
14.That each of the parents shall ensure that X continues to attend counselling with Ms T at U Health Service or such other counsellor as may be agreed between them or to whom X is referred by Ms T.
EDUCATION AND EXTRA-CIRRICULAR ACTIVITIES
15.That each parent shall be entitled to attend all school and extra-curricular events normally attended by parents including, but not limited to concerts, sporting events, parent teacher interviews and working bees.
16.That each of the parents shall make their best endeavours to ensure X attends all extracurricular activities that occur during the time X is in their care.
17.That each parent shall ensure X is not enrolled in any activity that occurs during the time X is with the other parent unless they have first obtained the agreement in writing from the other parent, such agreement not to be unreasonably withheld.
GENERAL
18.That each parent shall keep the other advised at all times of their respective residential addresses and shall advise the other of any changes thereto as soon as is practicable.
19.That the Independent Children’s Lawyer shall provide a copy of these Orders to:
(a)Ms T; and
(b)R school.
20.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
PROPERTY
21.That the wife’s application pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) contained in the Response filed 19 February 2019 be dismissed.
SPOUSAL MAINTENANCE
22.That the wife’s application for spousal maintenance contained in the Response filed 11 October 2019 be dismissed.
23.That upon the making of these Orders all outstanding applications are dismissed except the Contempt Application filed by the wife on 13 January 2022 and costs applications between the parties, if any, which are to be dealt with in accordance with the Family Law Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Callas & Gordon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J
APPLICATIONS
These are both parenting and financial proceedings.
The applicant father, Mr Callas, filed an Initiating Application on 23 October 2018 seeking parenting orders in respect of the parties’ one child, X, born in 2012 ('X') (aged nine years).
The mother, Ms Gordon, in her Response seeks an order pursuant to s 79A of the Family Law Act 1975 (Cth) ('the Act'), setting aside consent property settlement orders made between the parties in the Federal Circuit Court at Melbourne on 19 April 2018.
On 14 May 2018 final parenting orders were made by consent in respect of X providing inter-alia:
(1)That the parties have equal shared parental responsibility for X.
(2)That X live with the Mother.
(3)That X spends time with and communicates with the father on a graduating basis leading to 5 nights per fortnight from the commencement of the school year in 2020 being a block of three nights over each alternate weekend and from after school on Wednesday until the commencement of school Thursday in each week.
(4)For one-week in each term school holidays.
(5)For one-half of the long summer holidays as from the holidays commencing 2021.
Although confusing by reason of numerous applications, amended applications, and oral revelations from the bar table, I understand that Ms Gordon seeks orders for spousal maintenance variously in lump sum or periodic amounts. The quantum sought also varies and remains uncertain. Nevertheless, as an unrepresented litigant, Ms Gordon made frequent comment and submissions as to spousal maintenance during the course of this lengthy trial and I believe it proper that my reasons address this issue. In her final submissions Ms Gordon sought an order for spousal maintenance of $1,600 per month for five years (or to when X turns 14 years old).
The father now proposes orders as follows:
(1)That he have sole parental responsibility for X providing that he give the mother notice of the important decisions in respect of X's health and education.
(2)That X live with him.
(3)That X spend time with the mother as follows:
(a)each alternate weekend from Friday at the conclusion of school until Monday at the commencement of school;
(b)each Tuesday evening from the conclusion of school until 7:30pm; and
(c)for one half of each school holidays.
The mother proposes orders as follows:
(1)That parents have equal shared parental responsibility for X.
(2)That X live with her.
(3)That X spend time with the father as follows:
(a)each alternate weekend from Friday after school until Sunday evening;
(b)on one night per fortnight on Wednesdays overnight; and
(c)block periods in school holidays.
The Court has had the benefit of an Independent Children's Lawyer (‘ICL’) who recommends orders as follows:
(1)That the parents have equal shared parental responsibility for X.
(2)That X live with the father;
(3)That X spend time with the mother as follows:
(a)during school terms, each alternate Wednesday from the conclusion school until the following Monday at the commencement of school (such fortnightly time to commence on the first Wednesday of each new school term);
(b)subject to order 5 hereof, for one half of all school term holidays by agreement and failing agreement from the last day of school term until 12.00pm on the middle Saturday;
(c)for one half of the long summer holidays by agreement and failing agreement for the first half from the conclusion of school on the last day of term 4 until 12.00pm on the third Saturday of such holidays; and
(d)at such other times as may be agreed between the parents in writing (including by text message).
(4)Time for each parent on special days including Christmas, X's birthday, Father's Day, and Mother's Day.
(5)The mother be at liberty to elect one term holiday in each calendar year in which she can take X to LL Town, Queensland for the purposes of maintaining her Aboriginal heritage on tribal lands and spending time with members of that community including the mother's extended family and for this purpose X shall spend time with the mother for the whole school term holidays and in addition a further week (five school days) of school term provided that:
(a)the mother provides 2 calendar months’ notice in writing of such trip to the father;
(b)the mother provides the father with contact details of where she may be reached by telephone during such travel;
(c)the mother facilitates X speaking with the father by face time, telephone or other electronic means as may be available in accordance with X’s wishes during such trip; and
(d)the mother advises X’s school and consults with them to ensure X’s education does not suffer
(6)In the event that the mother elects to take X to LL Town in accordance with order 5 hereof and spends the entire school term holidays with her, X shall spend the entirety of the subsequent school term holidays with the father.
(7)Unless agreed between the parents otherwise in writing, all changeovers shall occur at X’s school where changeover coincides with the beginning or ending of the school day and otherwise at Shop P, Suburb H (Q Street, Suburb H).
(8)X shall remain enrolled in their R School Suburb G for the reminder of her primary schooling unless the parents agree otherwise in writing.
(9)By the first of June in X's final year of primary school the parents shall attend family dispute resolution at an agreed family dispute resolution practitioner and failing agreement at S Contact Centre in Suburb H and make a genuine attempt to reach agreement as to which secondary school X shall attend.
(10)In the event that the mother relocates her primary residence more than 50 km from R School, unless agreed otherwise in writing between the parents, the time X spends with the mother pursuant to order 3(a) hereof shall be varied so as to commence at the conclusion of school each alternative Friday instead of each alternate Wednesday.
(11)The parents shall communicate with each other by text message or email regarding parenting issues pertaining to X but shall otherwise be restrained by injunction from abusing or belittling one another.
(12)The parents shall be and are hereby restrained by injunction from:
(a)consuming any illegal drugs or drinking alcohol to excess whilst X is in their respective care or allowing her to remain in the presence of third parties who are doing so;
(b)denigrating the other parent, their partner or family to or within the presence of X;
(c)discussing these proceedings or other proceedings within the hearing or presence of X or allowing her to be in the presence of any third party who is doing so; and
(d)allowing X to have access to any document produced for the purposes of court proceedings between the parents.
(13)In the event that X sustains any illness or injury requiring treatment at a hospital or treatment by medical practitioner whilst in either parent’s care that parent will inform the other parent of that fact as soon as possible.
(14)Each parent shall authorise any treating doctor to discuss X's diagnosis, prognosis and treatment with the other parent and each be authorised to attend at the time of such treatment, subject to the discretion of the treater.
(15)Each parent shall be entitled to attend all school and extra-curricular events normally attended by parents including, but not limited to concerts, sporting events, parent teacher interviews and working bees.
(16)Each parent shall keep the other advised at all times of their respective residential addresses and advise the other of any changes thereto as soon as is practicable.
(17)Each of the parent shall make their best endeavours to ensure X attends all extracurricular activities that occur during the time X is in their care.
(18)Each parent shall ensure that X is not enrolled in any activity that occurs during the time X is with the other parent unless they have first obtained the agreement in writing from the other parent, such agreement not to be unreasonably withheld.
(19)Each of the parents shall ensure that X continues to attend counselling with Ms T at U Health Service or such other counsellor as may be agreed between them or to whom X is referred by Ms T.
(20)The ICL shall provide a copy of these Orders to:
(a)Ms T; and
(b)R School.
The above Orders sought by the ICL are transcribed in painful detail into these Reasons as they each necessarily address and demonstrate the plethora of issues and difficulties manifested by these two parents in these proceedings.
RELEVANT BACKGROUND
The father is 45 years of age. The mother is 37 years. The parties commenced cohabitation in 2009 and were married in 2010. They separated in February 2017 and were divorced in June 2020.
X is the only child of the relationship and of each of the parties.
The mother is of Queensland aboriginal heritage.
On 19 May 2014 the parties together commenced a business “MM Pty Ltd” to primarily provide education services. The father has relevant qualifications.
In December 2017 the mother and X relocated from Suburb DD to Suburb G when the mother obtained employment with a government department at Suburb H. X commenced prep at the R School in February 2018 and has essentially remained at that school since.
On 19 April 2018 final property settlement orders were made by consent in the Federal Circuit Court at Melbourne.
On 14 May 2018 final parenting orders were made by consent in the Federal Circuit Court at Melbourne.
In May 2018 the father relocated from Suburb DD to Suburb YY to be closer to X.
On 11 July 2018 the father applied for an Intervention Order (‘IVO’) against the mother alleging that she had sent abusive text messages to him. The father asserts that the mother has accused him of sexually abusing X with DHHS becoming involved.
The father asserts that X’s first term 2018 school report shows her missing nine complete days and six partial days of school.
The father says the mother made allegations against him of sexual abuse of X throughout 2018. The mother did not stop the father's time with X.
On 13 August 2018 the father's partner, Ms V, applied for an IVO against the mother alleging harassment at her work place. Ms V was X's sports coach.
On 23 August 2018 the father initiated further parenting proceedings in the Federal Circuit Court. The mother applied for an IVO against the father naming herself and X as protected persons.
The father says that X’s term two 2018 school report shows her missing twelve whole days and seven partial days of school.
In January 2019 the mother unilaterally relocated from Suburb G to N Town with X being a distance of approximately 140 km. The father brought an urgent Application in a Case seeking the return of X and orders were made in those terms on 6 February 2019. The mother returned with X.
On 8 February 2019 a final IVO was made in favour of Ms V against the mother and the mother was subsequently charged with two breaches of the IVO particularised by her leaving derogatory reviews about Ms V on her workplace website.
On 18 March 2019 the mother applied for an IVO against Ms V on behalf of X.
On 1 April 2019 the mother obtained a report on X from Ms W, psychologist. That report references a referral from X’s General Practitioner after the mother raised concerns of grooming and emotional abuse by the father.
On 8 April 2019 the father and the mother mutually agreed to withdraw their respective IVO Applications at the Suburb H Magistrates Court.
The parties attended for interviews for psychiatric assessments by Dr B on 17 and 18 September 2019.
The father asserts that X’s 2nd Semester 2019 school report shows her missing sixteen whole days and two partial days of school.
Dr B’s report dated the 19 September 2019 is released.
On 5 November 2019 Ms Y's Family Report is released.
On 13 January 2020 Dr B provides a supplementary report to the father's solicitors and in response to specific questions raised by the father's solicitors.
On 11 February 2020 Dr B provided an affidavit filed on behalf of the father noting [5]:
“I note there is one small typographical error in my Supplementary Report in the final paragraph on Page One. In respect of the child of the parties, I wrote that “she should remain residing in the current parenting arrangement involving X's care being primarily with [the father]”. I understand that X is not currently residing in [the father’s] primary care, but it is my recommendation that she do so”.
THE FATHER’S CASE - PARENTING
It is relevant that these parents entered into consent orders in respect of X as recently as May 2018. The father now brings a fresh application seeking orders which would change X’s primary carer from the mother to himself. Although not argued directly, given intervening events, the Court should still be satisfied that there are changes in the circumstances of the father, the mother, or X herself of such substance or materiality as to consider and ultimately determine such a change of residence. Ongoing parenting litigation is understandably prima facie considered contrary to children's best interests.[1] As such, the father was challenged in cross-examination by the ICL as to any change in circumstances from 2018 and specifically as to the motivation for his current application. The father struggled with any specific or detailed response. He expressed concerns as to the mother's mental health but the evidence is clear that his concerns, whilst perhaps current, were evident and raised by him in the previous proceedings. Similarly, he cites the mother's drug use but where the evidence is historical and again evident and available to him when he entered into the consent orders of May 2018.
[1] Rice & Asplund (1979) FLC 90-725.
The father raises further issues as to X’s school attendance and progress at school which are factors which have arisen since the 2018 orders. He also raises matters of continuing conflict with the mother including conflict between the mother and Ms V, his current partner, involving various applications and cross applications for Intervention Orders.
The father emphasises the motivation for his application being the mother’s allegations of him sexually abusing X and/or the grooming of her. These are issues raised since the 2018 orders but ultimately subject to the scrutiny of the cross-examination.
Further, the motivation behind the father’s application must be viewed in respect of the orders that he seeks. That is, he alleges deficits in the mother’s parenting based on issues of mental health, drug use and a propensity to make unfounded allegations of sexual abuse against him. Nevertheless, he proposes orders whereby X spend unconditional block periods of time with the mother including for periods up to a week at a time during school holidays.
THE MOTHER’S CASE – PARENTING
In her final address the mother proposes orders which would reduce X’s time with the father from the time–with orders of May 2018. It is difficult, however, to understand the rationale of such a change. The motivations of the mother appear personal rather than child-focused where she presents as both extremely antagonistic towards the father personally but whilst quite obviously still grieving the demise of their relationship (as noted by the family consultant).
Under the mother’s proposed orders X would spend Wednesday nights fortnightly with the father, yet the mother frequently agitated for orders which would allow her to relocate.
The mother denies that she alleges sexual abuse and/or grooming of X by the father.
The mother says she has voluntarily attended approximately a dozen sessions of psychological therapy following a suggestion in Ms Y’s report. The mother denies any current drug use. She says that she has no diagnosable mental illness and that she has previously held responsible employment and has successfully parented X.
THE RELEVANT LAW - PARENTING
Section 60CA of the Act offers a fundamental proposition that the child's best interests are the paramount consideration for the Court. Those best interests are determined by referencing the parties’ proposals and the probative evidence before the Court to the numerous mandatory considerations set out in s 60CC(2) and (3) of the Act against the background of the Objects and Principles of the legislation set out in s 60B which provides as follows:
(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).
The s 60CC considerations are divided into 'primary' factors at subsection (2) and 'additional' factors at subsection (3). There is, however, no hierarchical distinction of importance or priority where each case sits on its own particular factual platform as to relevance and weight of the various considerations.
The primary considerations are twofold being:
(1)Section 60CC(2)(a) - the benefit of the child having a meaningful relationship with both the child's parents; and
(2)Section 60CC(2)(b) - the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.
Later amendments to the Act at s 60CC(2A) provide:
in applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b).
THE EVIDENCE
The father - credit
The father presented with a calm demeanour and despite lengthy and at times aggressive cross-examination from the mother. In respect of parenting issues he was child focused and keen to avoid conflict or argument with the mother. Nevertheless, his responses in cross-examination often indicated a lack of understanding of or commitment to his own case. At times he gave responses apparently without thought or real understanding such as when asked if there might be some impact for X at such a young age being removed from her mother's care, he responded that there would be “no impact”. His responses at times appeared prepared, rehearsed or given in a form he thought might please the Court but at times without insight into the reality of X’s circumstances and needs.
The father was defensive in his evidence and reluctant to make admissions against interest.
Whilst not aggressive in his criticism of the mother, such criticisms were subtle and frequent with a reluctance to acknowledge any of the mother’s positive traits. Frequently, his responses deflected to historical issues between the parties such as the mother’s drug use.
Broadly speaking, the father appeared to be somewhat naïve in respect of the motivation of his own case where he had entered into consent parenting orders as recently as 2018. When challenged in this respect he responded with broad generalities such as concerns as to the mother's health and historical drug use both being factors which were or should have been within his knowledge and understanding at the time of the consent orders. As such, the more recent issue of concern for him is what he sees as the mother’s allegations against him of sexual abuse of X. In the abstract therefore his evidence in support of his current application and its motivation rested to a large degree on this complaint.
The mother – credit
The mother presented as an entirely different personality to the father. Whereas he seemed at times emotionally detached, she was of assertive, vibrantly emotional, and spontaneous personality. Her focus was often distracted and her frustrations with the process evident to the extent she on occasions simply left the Court without either request or permission. She did, however, display considerable intelligence and understanding of the process and at times her cross-examination, including of the experts, was both skilful and revealing in extracting deficiencies in the evidence.
The mother’s proposals differed significantly at times throughout the trial and she frequently seemed prone to exclamation without consideration.
Like the father, the mother claimed a high level of commitment to X, but a reluctance to acknowledge virtually any competency in the father's parenting capacity or insight.
It was evident to me that the mother grieves the demise of her relationship with the father and she was uncontained in her often emotional and personally critical cross-examination of him.
Despite the difficulties of being's self–represented in relatively complex and long drawn–out proceedings, the mother was extremely well prepared with an incisive understanding of the issues, the law and the legislation. Whilst she was informed by the Court as to the process and procedure of trials in this jurisdiction,[2] the mother presented her cases in both parenting and financial issues with far greater competence than usually seen from self-represented litigants in this jurisdiction, albeit frequently unable to contain her emotions.
[2] Re F:Litigants in Person Guidelines (2001) FLC 93-072.
Ms Y – Family Consultant
Ms Y prepared one report dated the 5 November 2019 and amended slightly in a technical form only by her report of 8 November 2019.
Ms Y is a psychologist and family consultant with considerable experience in assisting these Courts.
Ms Y considered the copious material filed in this matter. She interviewed the parties and X and observed X with each parent.
At [192] and following of her report Ms Y makes recommendations:
[192] X lives with [the father].
[193]X spends alternate weekends between Friday and Monday and at least one evening each week during school time with [the mother], along with week about during school holidays.
[194]Communication with the non-caregiving parent is flexible but consistent and also as X might request.
[195]As a matter of priority, [the mother] undertakes psychological therapy and psychiatric treatment - that will address the question of medication - for at least twelve months.
[196]When the treating professionals provide positive reports of [the mother’s] psychological functioning after twelve months, then additional time such as alternative Thursday to Monday during school time for X might be considered.
[197][The mother] complies with all Court ordered random drug testing and treatment related to substance abuse.
[198][The father] and [the mother] attend further post - separation parenting education to more fully appreciate the importance of low conflict for children's development and welfare.
[199][The father] attend supportive time – limited therapy to address the effects of litigation.
[200]When [the mother] has commenced the recommended individual therapy for at least three months, she and [the father] attend family therapy with a professional…
X was 6.9 years when interviewed by Ms Y and was described as “friendly and bubbly” but presenting with a “level the anxiety that was not well contained by [the mother] particularly”. [125]
Ms Y observed X as demonstrating a level of emotional immaturity. It was clear from the interview that X had been imbued in the parental dispute.
X was asked as to her views of each of the parents and the positives about each. At [132] she says “there's nothing I like about my Mum… She yells at me only gives me one lolly all the time…” Of negatives for her father, X s “there's nothing…” [133].
Ms Y notes X’s school attendance is rated “poor”. The school rated X as below standard for work habits but high on social attitudes and responsibility and is described as “an imaginative, lovable member of the class with a caring disposition to her teachers and friends” [134].
In her observation of X and the mother, Ms Y reports:
[145]In the observation for this report, [the mother] demonstrated overall competent parenting, despite the earlier difficulty about the supervision issue. [The mother] was warm and attuned to X’s play, following her lead and engaging with the rich fantasy game of the café.
X was observed to be engaged and active when with the father and Ms Y describes at [153]:
In the observation for this report [the father] conveyed warmth with calm leadership. He remained good-humoured and focused on X, demonstrating familiarity with the child's current activities and tasks and engaging in interested conversation with her. [The father] demonstrated competent parenting and X demonstrates strong emotional bonds with him.
In her evaluation Ms Y opines that [the mother’s] own personal history has impacted on her caregiving capacity and also on her confidence in [the father’s] capacity to be a protective parent for X. Ms Y says:
[156][The mother’s] family background has exposed her to trauma and even life – threatening experiences, as well as to the effects of disrupted and abusive parenting when she herself was a child. It is likely that physical as much psychological survival was a real threat faced by [the mother] in her childhood and adolescence and so it would be no surprise that relationship bonds are strongly held values for her, but bonds that can cause considerable anxiety if under threat.
[157][The mother’s] childhood, emotionally significant adults were physically and emotionally unreliable and even abusive and while she held noble aspirations to reverse this in her caregiving of X, her traumatic past was likely to challenge these ideals. [The mother] appears to have benefited from sporadic episodes of psychological therapy, but her ongoing mistrust of [the father] in his caregiving resulted in the damaging exposure of X to multiple protective investigations and assessment.
[158]As a parent herself [the mother] has nevertheless demonstrated creditable commitment to providing for her child’s welfare and development, but as the difficulties in the relationship with [the father] intensified, the anxiety related to loss of control has resulted in the overturning at times of her 'caregiving mind' [in which she can remain focused on meeting the emotional/psychological needs of her child and shield her inter alia from anxiety].
Ms Y thought it crucial that the mother attend psychological therapy for her own well-being and also to strengthen her confidence in the father’s parenting, where the mother manifests her grief at the failure of the relationship with the father.
Ms Y had the benefit of Dr B’s psychiatric assessment when she says:
[165] On the basis of the information provided, particularly of Dr B's assessment and on my observations in preparing this report, it will be a recommendation of this report that [the mother] undertake the 'long term psychological and psychiatric treatment' proposed by Dr B.
Ms Y saw the father as demonstrating commitment as a parent and having gained insight and skills in how to meet the emotional needs of X as she develops. She saw him, relative to the mother, as having a level of emotional containment.
At [174] Ms Y notes and apparently places some importance on X having not been protected from the mother's anxiety about the father and resulting in multiple exposures to protective investigations.
Ms Y sees X as presenting with a strong and secure emotional attachment to her father but with an anxious attachment relationship with her mother albeit “one that has the potential for repair, given her interactions with [the mother] in the observation for this report”.
Significantly, in the interviews for this report and at [21] the mother indicated that “she had no concerns for X’s safety or welfare in her father's care” (at the time she had relocated for financial concerns). This comment is notable in respect of what the father says is a prime initiative for his application being the mother's consistent allegations against him of the sexual abuse or impropriety in respect of X.
At the time of the interviews the father was proposing that X should live with him and (when pressed) that X spend four nights each fortnight with the mother being Friday to Monday and a night during the school week and the father is quoted thus:
[36][The father] acknowledged the need for X to have a facilitative relationship with both parents. Of [the mother], [the father] said inter alia that “I have no issue with [the mother] because at the end of the day, X needs a Mum and a Dad … but it depends on how [the mother] feels as to how she is as a parent… the effort that she's gone to the prove I'm such a bad father and then ask me to supervise her here today [for the report appointment], makes me have concerns for her mental health…”.
The father was asked how X might respond to spending less time with her mother and the impact of the emotional separation to which he replied “she’d go well, she asked me all the time… we've got consistency…” the father confirmed that if X requested to spend additional flexible time with her mother, that would be acceptable.
At the interviews for this report the mother was proposing that X spend one night each fortnight during school terms with her father, but weekly time during school holidays. The mother acknowledged that X has a very positive relationship with the father and that she loves him.
At paragraph [43] and relevant to a number of the father’s asserted initiatives for this application, the mother is quoted:
[The mother] also referred to the claims of [the father’s] alleged sexual abuse of X as “incidents of momentary lapses” and she confirmed that in her view, “he is not grooming her…”.
Matters of family violence were canvassed by Ms Y. The mother contended that the father had been physically, emotionally, psychologically and financially abusive both during the relationship and since separation. The father denied the allegations. The father had, without any admissions, completed an anger management course in 2017.
At paragraph [49] of the report appears the following:
Undertaken in 2017, according to [the father], the individual sessions with the educator assisted him to ‘learn a lot about [the mother] and violence and what it is and where I sat in the whole picture…' [The father] referred to appreciating that communication difficulties could emerge 'with the wrong train of thought… like I thought her drug use was because of her work as [an entertainer] not about her family of origin… it's a deeper root…’.
Ms Y notes concern from the Department of Health and Human Services (Child Protection) as to the impact of the parent’s conflictual relationship on X’s welfare and development citing the possibility of “cumulative harm” to X.
Ms Y gave evidence in court and was cross-examined. She described the father as “showing a greater emotional leadership”.
In respect of matters of parental responsibility, Ms Y responded “… I don't think that the parties could talk to each other without another person present”.
Ms Y opined that X's school week was an important time for her and that the “father was more capable of providing a consistent structure… and that on balance X's best interests are served by spending more school term time in the father's care”.
Interestingly and significantly, however when cross-examined skilfully by the mother in respect of her conclusions, Ms Y stated:
“I do believe that [the mother] has the capacity to attend to X’s emotional needs… I see the parents as having equal competence and equal failings…”
Confronted with recent evidence during cross-examination, Ms Y’s recommendations changed. She saw the parents as having “moved on and grown psychologically”. She saw the mother as “working hard to ensure that her child is safe”. She opined that the parents ''have the equipment to provide competent caregiving within their domains… but not the capacity to work together”.
The ICL then cross-examined Ms Y as to her apparent change in recommendations. Ms Y was impressed that the mother had undertaken psychological therapy in accordance with her recommendations and without the need for court intervention or order and that X was “continuing to progress well'. She agreed that neither parent had asserted to her that the other parent posed an overt risk to the child. She saw a workable relationship for the parents with X available by geographical proximity, and significantly responded to the ICL:
My view of the mother has tempered but she continues to see the father as failing his parenting role… but on balance the father is more capable of supporting X's relationship with the mother than vice versa.
Ms Y opined that she saw the mother as “gaining more confidence of caregiving and understanding of parenting”.'
In conclusion, Ms Y suggested that “the child's emotional well–being will be compromised if she spends significant time away from the mother”.
In summary, therefore, and with the benefit of updated material in cross-examination, Ms Y appears to have moved from a position in November 2019 whereby X should move to live primarily with the father to one indicative of X continuing or establishing a more equal actual and emotional relationship between her parents. This opinion seems based on Ms Y's view that the mother has gained insight and personal responsibility in respect of her parenting of X.
Dr B – consultant psychiatrist
Dr B is an experienced and highly regarded psychiatrist who has provided the assessments and reports for these Courts over many years. In this matter Dr B provided a report of psychiatric assessments in respect of the parents dated 19 September 2019. He interviewed the parties over 17 and 18 September.
Dr B found the father to be a cogent historian and straightforward in his historical account which was essentially consistent with his affidavit material.
The father disclosed no history of psychiatric illness. He said that he came from a stable family background without trauma or abuse.
The father described a pattern of ongoing conflict and false allegations in the relationship with the mother which he found to be “… very stressful, wearing and financially taxing”.
Dr B found no indications in the father of disordered personality functioning and consequently presenting as no risk to X.
At her interview, the mother provided to Dr B a report and assessment from Dr Z of July 2019. Dr B also discloses having had the benefit of reports from Ms W, psychologist (1 April 2019) and a previous psychiatric assessment on the parties from Dr AA, psychiatrist.
Dr B had the benefit of viewing the video taken by the mother of X engaged in behaviour which the mother described as sexual, but which Dr B interprets as being “some playful behaviours rather than sexualised play”.
The mother’s account to Dr B is, consistent with my own observations, of her grieving the breakdown of her relationship with the father and where she reports:
… That she was still in love with who she thought he was, and spoke of her heart breaking when the relationship ended, “I was shattered”, indicating that she “still feels that way”, has never had time to reflect on things, adding “it's just been one incident after another”.
The mother indicated to Dr B that she had used cannabis between 2010 and 2013 “sporadically” and following X’s birth “from 2013 through to 2017, also sporadically” with a clear indication, therefore, that she had ceased using cannabis.
The mother also gives an historical account consistent with her affidavit material including at page 16 that she has “not smoked marijuana since 2017…”.
Giving context to Dr B's report and certainly to the issues that confront this Court, Dr B gives a comprehensive history of the mother’s childhood and adolescence highlighted by extreme family violence from family members including sexual abuse where the mother left home and school at age 12. The mother lived on the streets from 14 years of age where she was again subjected to an abusive relationship.
Dr B summarises some the mother’s history at page 19 as follows:
[The mother] described a sad, dysfunctional, sexually, emotionally, physically violent and abusive early life from which she has emerged not unscathed. As noted, her early history involved a lack of secure attachment to either of her parents with cruelty visited upon her, even by her older sister and cousin who “did stuff” (sexually abused her over a two year period). She eventually had to leave home and live with other children and their families from age 12 to 14 and from then on she was on the streets, drifting in and out of contact with abusers and those who cared for her, somehow eventually emerging from the nightmare of her life to the point where she was able to find work as [an entertainer], and there followed a brief period when life seemed good and glamorous, albeit [the mother] struggling with a violent past which she tried to drown out with heavy use of marijuana eventually being able to complete a course and found work.
The mother was then part of a very violent relationship for two years and emerged from that and eventually met [the father] who initially seemed the answer to her prayers but progressively in the context of X's birth, the relationship between herself and [the father] unravelled to the point where separation occurred in the context of her alleged return to marijuana dependence and following an argument about that, separation occurred. Following settlement [the mother] has continued to be hypervigilant in regard to X’s care with frequent reporting of various unsubstantiated allegations which continue to unfold in regard to X.
Dr B provide a diagnosis of the mother at page 20 of:
• Complex Posttraumatic Stress Disorder.
• Attachment Disorder with Anxiety.
• Borderline Personality Disorder.
• Substance Abuse (Marijuana).
In his opinion at [7] Dr B concludes in respect of the mother:
[The mother] is clearly unwell and requires appropriate long term psychological and psychiatric treatment which in my view is a necessary adjunct to any ongoing contact with X. I have significant reservations as to her capacity to care for X in current circumstances. I note that Ms Y has completed a family assessment which will throw light on the relationship between X and her parents.
Dr B was cross-examined relatively briefly by counsel for the father where questions and responses served simply to highlight the matters and conclusions favourable to the father set out in his report. Dr B confirms his opinion as to the mother being “devastated” by the breakdown of the relationship with the father. He also describes the mother as “vulnerable, distressed and fragile”. He describes the mother as “continuing at risk of seeing the world in a conspiratorial way”.
Dr B was subjected to a lengthy, well-prepared and intrusive cross-examination by the mother of a quality rarely seen in self–represented litigants. She challenged, at times successfully, the balance of the Dr B's considerations and opinion with the implication of pre-determination or even bias in the report as, for example, references to the mother's historical drug use but not to that of the father and referencing Dr AA's assessment in respect of the mother but not of the father. The mother also emphasised an error in the supplementary report of Dr B provided under letter of 13 January 2020 addressed to the father's solicitors where he says:
…as such I consider there remains an ongoing unacceptable risk to X. She should remain residing in the current parenting arrangement involving X’s care being primarily with [the father]”.
Dr B in his affidavit of the 11 February 2020 at [5] describes this error, where of course X has historically lived primarily with the mother, as “… one small typographical error in my Supplementary Report…”. I respectfully agree with the submission of the mother that such an error is not perhaps “one small typographical error” but one far more fundamental and which questions the validity of the premises from which the author reaches his conclusions.
Nevertheless, and despite the criticism, sometimes justified, by the mother of Dr B's evidence, I still find considerable value in his report generally and, in particular, his diagnoses based as they are on the comprehensive history given by the mother herself. Further, and to his credit, Dr B was able to acknowledge the deficiencies in the content and value of his report. At one stage Dr B responded to the ICL that:“I am a child psychiatrist” despite his resume suggesting experience in assessing adults.
Further, in response to cross-examination by the ICL, Dr B acknowledged that his report was contextually relevant to the time of interview now being some two years past where he responded at one stage “I'm in the dark really, aren't I? It is now two years since my report”. It was also put to Dr B by the ICL that there having been no manifest risk issues for X, as notified by Ms Y, in the two years since his assessment might “temper your opinion that the child is at unacceptable risk?” He responded “yes it would”.
The ICL put to Dr B that Ms Y opined that she did not having any concerns that the mother presented now as an unacceptable risk to X. Dr B responded “Ms Y is experienced. I respect her opinion.”
Dr B's report must also be seen within the context of other psychiatric/psychological evidence adduced in this matter albeit where none of the practitioners were presented for cross-examination.
Dr AA’s assessments predate those of Dr B and are now historical. They do, however, reference an emotional demeanour of the father different to that observed by Dr B. Dr AA also appears to place some store in the fact that the mother presented well and may have dealt with previous substance abuse issues where he says that there are no concerns as to the competency of the mother while she stays off cannabis.
The mother exhibits a report by Dr BB dated 1 April 2020 and hence post – dating Dr B's assessment. The mother was referred to Dr BB by her general practitioner and assessed on 19 February 2020. Dr BB states:
[The mother] presents with an euthymic mood. There was no evidence of low or elevated mood. There was no anxiety of clinical significance. There were no psychotic symptoms. There were no obsessive ruminations. She presented with normal energy levels, unchanged normal appetite with stable weight. She was not experiencing heightened anxiety, flashbacks or nightmares related to her traumatic childhood and domestic violence situations in her late teenage and early adult life. She reports of a healthy sleeping pattern. There were no thoughts to self-harm, suicide or harm others.
On exploration of her past medical history, there is no diagnosed mental illness. She had received 2 episodes of counselling at age 31 since leaving the domestic violent relationship.
…
[The mother] presents with a healthy normal mental state. I am unable to identify any formal psychiatry diagnosis. While she has been exposed to traumatic events in her childhood, adolescence and adult life, she has been able to reflect on these events in a manner that has left her resilient. She is future focused and is determined to return to her former line of work in the Disability support services while balancing her primary care duties towards her daughter.
The mother also consulted the Dr Z, Consultant Psychiatrist for a report dated 4 July 2019. Dr Z was not called to give evidence and his report is accepted as an annexure to the mother’s affidavit.
Dr Z describes the mother thus:
In interview, [the mother] presents as a confident, neatly groomed young woman. She is thoughtful, reflective and articulate, and a well-organised historian.
She was euthymic in her mood. She appropriately (sic) teary in discussing sensitive personal material.
Her interpersonal functioning with me was in the normal range.
There was no evidence of hallucinations or delusions and no suicidal thinking.
She had good insight into the nature of our meeting today. I am unable to identify any formal psychiatric diagnosis. There is no evidence of schizophrenia or a mood or anxiety disorder.
I do note the past history of early childhood emotional neglect and physical and emotional abuse. I also note her vulnerability to self-medicate with cannabis in her teenage years. She was last using cannabis on a semi-regular basis until two years ago. I also note very rate (sic) alcohol use in her teenage years and one episode of cocaine use in her adult years.
…
A 34-year-old single mother with no formal psychiatric diagnosis, with a history of significant emotional trauma in childhood, compounded by significant emotional and physical trauma in her adult years, who has made appropriate use of psychological services in her adult years and has established herself as an effective mother and is in the process of establishing robust career prospects for the future.
I can see no evidence that would suggest her ability to function effectively would be questioned.
There is also evidence that the mother acted on the recommendation of Ms Y in late-2019 in that she obtain some psychological counselling and attended near a dozen times on a Ms ZZ until December 2020.
SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents
This is a primary consideration and one which the father emphasises and where he argues the mother’s criticisms of him and allegations against him will potentially impact on his relationship with X.
The indications from the Family Report and the evidence of both parents generally is, however, of X having an established and successful relationship with both of her parents despite the very different personalities and parenting styles of those parents and where the parents themselves are prone to conflict and dispute.
The task for this Court is to make orders which assist X into the future in maintaining those relationships with each of her mother and her father. In this sense the term “meaningful” is a qualitative one and prospective in its consideration. That is, it is not for the Court simply to divide up the time for X between her parents but to consider what regime maximises the quality of her relationships with each of her mother and father into the future.[3]
Section 60CC(2)(b) the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence
[3] Mazorski v Albright (2007) 37 Fam LR 518 and McCall & Clark [2009] FamCAFC 82.
The father argues that the mother makes unsubstantiated claims against him of sexual abuse or grooming of X. The mother denies that this is the case but says that she has concerns as to aspects of the father's parenting and specifically where X has indicated that she is permitted to play with the father's nipples and that she sucks his fingers. Firstly, there is no evidence to substantiate any suggestion that the father has acted in any sexually improper manner towards his daughter. Indeed, the mother was at pains to tell this Court, as she did with Ms Y, that she does not make such accusations. Notably, and despite these issues, the mother has not stopped the father's time with X. It is true that she has taken her concerns to the Child Protective Authorities and in a sense has perhaps overreacted. I prefer, however, that this is more a factor of the mother's personality informed as it is by her own tragic childhood and adolescence rather than some malicious response. Indeed, it may well be the “snowballing” of a relatively minor issue which could have been easily and quickly resolved by far better communication between these parents. Whilst the mother may have overreacted in her response to X’s statements, it might also be argued that the father has similarly overreacted in ineffectively basing his case in a large part to this issue, where he has had for some considerable time the benefit of Ms Y’s Family Report where the mother unambiguously denies that she considers X to be at risk of sexual abuse by the father.
Taking the evidence as a whole, I am unable to find any risk factors of any substance in respect of X being in the care of either parent. I prefer that this situation has progressed because of personality differences, lack of communication, mutual disrespect, and the failure by one or both parents to move on from their own relationship breakdown.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity and level of understanding) that the court thinks relevant to the weight which would be given to the child's views
X is now just nine years of age. The relevant expert reports in this matter were prepared some time ago. As such, X could not then reasonably be able to rationalise any objective views and preferences as to her living and parenting arrangements. Put simply, Ms Y's report persuades me that X is desirous of a relationship with both of her parents. What is equally evident, however, is that X unfortunately seems to have been imbued to a degree in this adult dispute which I sadly see as being based on adult issues between the parents but where unfortunately X has become a conduit. Her relative positive and negative exclamations about her parents must be viewed accordingly.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) any other persons (including any grandparent or other relative of the child)
Unfortunately, the nature of X's relationship with her parent’s seems to be that she is abundantly aware of the conflict between her mother and father. She is probably aware that she might be the subject of that conflict although, as mentioned above, I prefer that these parents are prone to conflict and argument generally.
The observations of Ms Y were that X is comfortable and happy in the care of each of her parents. Ms Y’s evidence in court, some two years after the report, is indicative of the need for X to retain a high frequency of direct contact with each of the parents where perhaps she has, or soon will, learn to understand and live with their different personalities and parenting styles.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity;
(i) to participate in making decisions about major long–term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil the parent’s obligations to maintain the child
There is some merit in the father's argument that the mother is prone to making unilateral and perhaps spontaneous decisions in respect of X. Most notably was the mother's relocation with X to the K Region. This is again a factor of the mother's personality rather than some malicious intent. The indications from the evidence of both the parties in this Court is that they understand the need to communicate and contribute equally to long-term decisions for X. In this respect, and from the evidence of each of them in court, I glean some newfound insight and greater maturity in this respect.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other children, or person (including any grandparent or other relative of the child), with whom the child has been living
The orders sought by the father, although being a change of primary parent, are in reality discrete in any changes that would be forthcoming for X. She currently lives nine nights per fortnight with her mother and five nights with the father. The father proposes that the changes occur, in any substantial way, during school terms where she would go to school from his home. Similarly, the mother proposes that the father's time be effectively limited to weekends, although she has varied her position throughout this lengthy trial.
I place some weight on Ms Y's evidence given in court, being more objective than that of either of the parents, where she says that X's emotional well-being would be compromised if she spends significant time away from her mother.
Section 60CC(3)(e) the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The father, to his great credit, has moved in close proximity to the mother who had previously moved herself and X to the Suburb H area. This in itself is demonstrative of the father's commitment to a relationship with X and also where, conversely, and whilst the mother undoubtedly had proper motives for the move, shows in her a capacity to act unilaterally and spontaneously without regard to X's relationship with the father. Nevertheless, there are now no practical difficulties in X moving easily between her parents’ homes as indeed she now does.
Section 60CC(3)(f) the capacity of each of:
(i) the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, and including emotional and intellectual needs
Each of the parents is critical of the other in this respect. The mother questions both the father's commitment to and his skills in caring for X. The father challenges the mother's capacity to commit to X's education and acknowledges what the mother herself admits are financial constraints which impact on her ability to accommodate X satisfactorily and consistently.
Dr B is critical of the mother's mental health and hence her capacity to care for X.
Ms Y was initially critical of the mother’s capacity but was far more positive in her evidence in court as to the mother’s abilities and now accepts that the mother has adequate capacity to attend to X’s emotional needs.
Yet again, this consideration revolves around the different personalities of these two parents. X, however, appears to be relatively well adjusted and progressing reasonably both socially and academically.
It is true that the mother has had historical and recent accommodation crises. To her credit, however, she seems to have always found adequate accommodation for herself and X. Her financial circumstances are inferior to those of the father but again there is no evidence that X suffers neglect in the care of the mother.
Whilst Dr B opines, diagnoses and criticises the mother’s capacity by reason of mental health, there is contrary expert evidence before the Court and Dr B’s evidence generally must be seen within the criticism revealed by the mother’s cross-examination of him.
Generally in respect of the objective expert evidence, I place some real weight on that of Ms Y and, in particular, her evidence in this Court which is of a confidence in respect of the mother's capacity to care for X. Unlike Dr B who became personally and professionally defensive during his cross-examination by the mother and to a lesser extent by counsel for the ICL. Ms Y was able to assimilate and consider evidence which post-dates her Report.
The father is settled emotionally and financially. His capacity can be questioned only in respect of at times imbuing X in the adult disputes and where he acknowledges this in the witness box.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
The mother’s background is well documented in these proceedings and perhaps best summarised by Dr B and included in these Reasons above. Suffice to say that she has suffered a difficult and traumatic life but where, her parenting of X thus far is in many ways commendable, but in other ways not always with regard to X’s right to a full and beneficial relationship with her father.
The evidence suggests that the father comes from a stable and supporting background.
Section 60CC(3)(h) if the child is an Aboriginal children or Torres Strait Islander child;
(i) the child’s right to enjoy her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
The mother is of proud aboriginal heritage of Queensland origins. She is keen to involve and educate X in her culture and has indeed been active in this respect thus far.
Whilst the father professes to be sympathetic to X’s need to identify with her aboriginal culture, realistically it is the mother who will attend to these issues as she has done thus far. To his credit, however, the father proposes orders which would allow the mother and X to travel at least annually to the mother’s traditional lands. However, and having seen and heard the mother in Court and with demonstrative pride in her origins, it will be she on a more consistent basis who has the knowledge and commitment to assist X in these important aspects of her upbringing and identity.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Generally, and despite their criticisms of each other, these parents have been committed to their daughter. With some merit, the father criticises the mother's propensity to act spontaneously in respect of X and thereby potentially compromising his relationship with his daughter. The Court can, however, structure orders which limit this propensity in the mother.
The father's commitment to his responsibilities is again demonstrated by his willingness to move closer to the mother when she herself had moved to put some distance between X and the father.
The mother herself has shown admirable commitment to X despite the difficulties that she has endured historically and financially.
Section 60CC(3)(j) and (k) any family violence involving the child or a member of the child's family and any family violence orders
These matters have been set out and dealt with above. Unsurprisingly, there have been Family Violence Orders including mutually in respect of the mother and the father’s current partner, Ms V. Ms V did not give evidence for the father and the Court (and the mother), consequently were not given the opportunity to explore those issues in this jurisdiction.
To their credit, in their evidence before this Court, the mother and father each essentially committed to a more cooperative and less conflictual relationship at least in respect of their obligations towards X into the future.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
X is just nine years of age and her life thus far has been highlighted by litigation between her parents in this jurisdiction and in other courts. The indications from the Family Report are that X is understanding of the conflict between her parents. As mentioned above, however, I gleaned some commitment by each of these parents in their evidence in court to a more cooperative relationship into the future.
The orders that each of the parties now seeks in respect of X is substantially different than the current arrangement. Consequently, it is likely that one or both of the parents might be aggrieved by the orders that I make together with these Reasons. Nevertheless, they must each understand that the Court makes orders as best it can in respect of the recipe of facts given by the parties themselves. It is not the aim of this Court to make optimum or ideal orders but simply orders, on the factual platform, that attend to X's best interests circumstantially. It is then incumbent on these parents, armed with the orders and reasons, to move on and parent their child accordingly. If it is understood that litigation in these Courts is prima facie contrary to best interests of children and often destructive of their relationships with their parents, then the inevitable disputes that will arise between the mother and father in respect of X should be conciliated and negotiated with respect and with focus on X’s needs rather than to use these Courts as a forum for airing adult dispute.
FINDINGS AND CONCLUSIONS
The father claims that his application for parenting orders is motivated in part by the mother’s propensity to make unsubstantiated allegations of sexual abuse or grooming against him. Firstly, there is no evidence to allow me to make any such findings that the father represents an unacceptable risk for X. After hearing the evidence, I am of the view that this issue itself is without substance and reflects only the personalities and mutual suspicion of these two parents. Notably, and when confronted with X’s revelations that she plays with the father's nipples and sucks his fingers, the mother did not stop time–with between X and the father. She did alert the authorities but I accept her evidence that she thought this to be the proper course. I say only that it is unfortunate that perhaps such an innocent behaviour may have resulted in such lengthy litigation.
I am able to find on the evidence that X has established, successful and meaningful relationships with each of her parents in circumstances where she understands her mother to have been her primary parent since separation. I accept, however, that there is a degree of “anxious attachment” for X with the mother but also accept Ms Y’s comments that it is “an attachment with potential for repair”. I accept Ms Y's comments that X’s relationship with the father is strong and secure. Equally, however, I agree with the family consultant in that X’s emotional well–being would be compromised if she was to spend significant time away from her mother.
It is abundantly clear from my observations during this trial and supported by the expert evidence that these two parents are of significantly different personality types. The mother is volatile, emotional and spontaneous whilst being intelligent and articulate. The father is calm and considered in demeanour. Whilst these personality differences inevitably lead to conflict between the parents, X has been able to benefit from the breadth of her parents’ personalities in the positive that each can provide to her. Nevertheless, she has also been the subject of and subject to her parent’s overt conflict. Each of the parents is culpable in this respect. The evidence, and perhaps the benefit of this long trial is that both the father and the mother now have a higher degree of understanding that X must be quarantined from their adult conflict. Further, there are indications that each now have developed a greater insight and are prepared to be more cooperative in the future in the parenting of X. Frankly, litigation should, as always, be a last rather than a first resort to deal with any issues.
Generally the father has a capacity to care for X's physical, emotional and intellectual needs. He professes to be interested in her education. He is financially secure. His emotional and perhaps actual support comes from his partner and/or his mother. The Court did not have the benefit of the evidence from either. He has, however, had the care more recently of X for five nights per fortnight and the child seems comfortable, happy and well cared for with the father.
The father challenges the mother’s capacity to care for X by reason of her mental health. He relies to a large degree on the assessment of Dr B. On consideration, however, I cannot place any significant weight on Dr B’s report, assessment and diagnosis. His report was successfully challenged in many ways the by the cross-examination of the mother. The report contained factual errors, omissions, and presumptions. There is contrary psychological or psychiatric evidence to challenge the diagnosis of Dr B who, to his credit, in any event, was able to accept that his report is now somewhat aged and that he would be prepared to “temper his opinion” that X is at “unacceptable risk” in the care of the mother.
Undoubtedly, the mother’s tragic background through childhood and adolescence has impacted on her significantly. She is, however, committed to X. She accepted the advice of Ms Y, without court order, to attend for near a year on a psychologist. Ms Y emphasised that the mother “works hard to ensure that her child safe” and “has the equipment to provide competent caregiving”. Ms Y saw the mother as “gaining more confidence of caregiving and understanding of parenting”.
The mother has endured financial and accommodation difficulties. There is no evidence, however, that X is neglected. The mother is prepared to accept support. She has ambitions to return to the workforce. Whilst there have been difficulties with X's attendance at school, the evidence as a whole suggests that the mother is committed to X's education with the caveat being her propensity for spontaneous reaction and response leading to potential conflict.
I am satisfied, therefore, that each of these parents has the capacity to attend to X's care and needs. Indeed, any criticism by the father of the mother's capacity must be seen in the context of the orders that he seeks which is for X to unconditionally spend equal time during school holidays between her parents. Further, where the father raises issues as to the mother's drug use and mental health, both were apparent to him when he was prepared to enter into consent orders in 2018 delegating the primary care of X to the mother.
These parents entered into consent orders in 2018. Little has changed since that time although the personal conflict between the mother and father has continued. There is no evidence to satisfy me that the mother has continued her use of cannabis. I accept her denials in this respect. I accept that the mother has made efforts to address her mental health or personality issues as suggested by Ms Y. I accept that X is desirous of a relationship with both her mother and her father. I accept that both parents now have some greater insight into X's emotional needs and that she must not be exposed to conflict.
The parents live in close proximity and have been able to successfully work the logistics of the 2018 orders which now provide for X to spend five nights per fortnight with the father. Realistically, therefore, each of these parents must show the same degree of skill, commitment and facilities for the care of X. The benefits however would not occur should the mother relocate with X.
Section 65DAA of the Act (on there being an order for equal shared parental responsibility) obligates the Court to consider firstly whether it be in a child's interest to spend equal time between the parents. In this matter, X currently lives in an arrangement of ''substantial and significant time” between the father and mother on a nine nights/five nights per fortnight basis. There are benefits for X emanating from each of the parents and including by reason of their different personalities and parenting styles. I have found that each parent has sufficient capacity to care for X. X wants a relationship with each of her parents and perhaps to spend some more time with her father but not to the detriment of her relationship with her mother. There are no logistical or geographic impediments. Each parent professes to be interested in and committed to X's education. The father already agrees that X’s school holiday time, which amounts to about three months per year, should be shared equally. In all of these circumstances, I am of the view that X's best interests are served by living in an equal time arrangement between her parents on a week about basis. I agree with the father's proposal that accommodation should be given to the mother’s wish to travel to Queensland with X for cultural identity purposes and the orders will be structured accordingly.
The husband says that WWPL lost State Government funding for these services in 2017. This was the greatest majority of the work and hence income.
The husband says that by March 2018 (shortly before settlement) he was advised by letter from WWPL of an overpayment to MMPL of $87,552. He provides a copy of the correspondence although the author of the letter was not called by either party to give evidence before me. This information was available to the wife at the time of the settlement.
The husband says and provides corroborative evidence from the Australian Taxation Office (‘ATO’) of a tax liability as of April 2018 of $29,453.17.
The husband says that in 2016 he commenced ultimately unsuccessful proceedings in the Supreme Court of New South Wales claiming liquidated damages in respect of a franchise agreement entered into by him in 2012 and in no way related to MMPL. He suffered a cost order of $62,756. The husband says that he contemplated, and received advice, in late 2017 of a debtor's petition in bankruptcy in the face of a possible creditor’s petition. It seems that neither eventuated and that the husband met the liability.
Significantly, the consent orders entered into by the parties on 19 April 2018 provide inter alia:
5.That the husband be liable for and indemnify the wife against all payments/liabilities in respect of:
(a) MM Pty Ltd; and
(b)the husband personally or trading as NN Company including, but not limited to, any debt (or alleged debt) owed to WW Pty Ltd, the Australian Taxation Office and legal costs to Mr TT and any amounts sought to be clawed back by any liquidator or Trustee in the insolvency of MM Pty Ltd or the bankruptcy of the husband.
The husband's sister, Ms Callas, is the director of a company, VV Pty Ltd, which also provides education services. The husband has worked for VV Pty Ltd. Ms Callas purchased the shelf company 'VV Company' from Mr M who is and at all relevant times was the husband's accountant. Mr M provided accounting services for the business operated by the parties. He is also Ms Callas’ accountant.
Mr M gave evidence to this Court that he previously utilised the company for his own business purposes. Both Ms Callas and Mr M gave evidence in this matter. Mr M came to court under subpoena. His evidence was at times unsatisfactory as to detail and the provision of supporting documents. His evidence, however, was unshaken in that the purchase of VV Company by Ms Callas took place in 2017 and hence predates the consent orders between these parties. Mr M outlined the nature of the business operated by VV Pty Ltd and that the only overlap of clientele with MMPL is from one client with relatively minimal income.
Ms Callas, the husband’s sister, also gave evidence. She was employed for a period by MMPL. She agreed with Mr M that she purchased the shelf company from him and operates as a provider of education services. She agreed that she has only one client relationship consistent with MMPL, being UU Company who, on her evidence, provides only a small proportion of her business income.
Both Mr M and Ms Callas denied any form of conspiracy with the husband in respect of maintaining MMPL under a veil of VV Pty Ltd.
THE WIFE’S CASE
As I understand it, the crux of the wife’s argument is that VV Pty Ltd is a “veil” of the husband who continues to operate the same business as MMPL. She alleges a form of conspiracy between the husband, Ms Callas and Mr M to defeat her claims of an entitlement in the assets or value of MMPL.
The wife argues that she was the improperly induced into entering into the property settlement in April 2018 by the husband’s threats towards bankruptcy.
The wife further argues a failure to disclose by the husband and, in particular, as to an amount of $450,000 which she says he has retained or where he has failed to explain the disbursement of $450,000 (significantly, the husband argues that the wife herself transferred a total amount of $450,000 from joint company funds prior to settlement).
The wife says that she was not shown the statement of agreed facts which accompanied the draft property orders to the Chambers of Judge Baker in April 2018.
At [56]-[58] of her affidavit of 18 February 2019 the wife deposes:
[56]On 16 April 2018, a Statement of Agreed Facts (statement) was sent to the Associate of Judge Baker along with the Proposed Minute of Consent Orders. The statement says that “the business [being the Business referred to in this affidavit] had significant value in December 2016, but it is agreed that due to the downturn in the husbands (sic) business and accrued business debts to the ATO and WWPL [emphasis added] that there is no present value”. I am able to produce a copy of the statement if necessary.
[57]I never saw the Statement before it was filed, nor did I agree to the facts set out in the Statement.
[58]The “downturn” referred to in the Statement seems to have resulted in the Business losing the vast majority of its value. The only alleged liabilities of the Business set out in [the husband’s] March 2018 affidavit with the debt to the ATO of $29,453.71 in the alleged debt of $53,157 to [the husband]. These debts do not explain how the value of the business went from approximately $1,180,342 in December 2016 to virtually nothing when final property orders were made in April 2018. It seems that the only other explanation that has been put forward is the “downturn”.
The wife references the husband's alleged debt of $29,453.71 to the ATO claiming she was unaware of the debt and suggesting it is a result of him “evading tax”.
The wife says that she obtained a valuation of MMPL as at December 2016 at $1,180,342.
THE HUSBAND’S CASE
The husband denies any interest in the VV Company. He asserts that the wife's suspicions come only through a coincidence of involvement of his sister and his accountant but gives plausible explanations such as Mr M being also Ms Callas’ accountant and Ms Callas having worked in administrative roles at MMPL, having similar skills and experience and hence having a background in the business model but where her own qualifications are different from his and therefore the only overlap of the clientele is the relatively small income from UU Company. On the evidence I am unable to find any “conspiracy” between the husband, Mr M and Ms Callas as suggested by the wife who of course has an onus to prove such an assertion on the balance of probabilities.
The husband agrees that a valuation was obtained by the wife herself in December 2016 but that the parties, properly advised as to circumstantial changes in MMPL, agreed the business to have nil value as of the making of the Orders and Statement of Agreed Facts in April 2018. Again, he produces documentary evidence to support his claims of loss of clientele; his indebtedness to the ATO; his overpayment from WWPL; and his costs order from the Supreme Court of NSW litigation. All of this evidence was available to the wife and her legal representatives as at the date of settlement and emphasising that it was the wife herself who had obtained a valuation of the business.
The husband argues that it was open for the wife at the time of the mediation and leading towards the consent orders to have obtained a further or updated valuation herself or indeed to have argued at that time on the basis of the valuation she obtained in December 2016.
The husband says that it is relevant that the final property settlement orders oblige him to take on contingent debts of the business and the indebtedness to the ATO.
The husband points to the Statement of Agreed Facts supporting the ultimate consent orders where at [8.k] appears the following:
K (H) NN Company (sole trading business)
The business had significant value in December 2016 but it is agreed that due to the downturn in the husband's business and accrued business debts to the ATO and WWPL that there is no present value.
The husband denies any “threat” in his anticipated bankruptcy but says that the fact that the wife was aware of the possible bankruptcy demonstrated his full disclosure at the settlement negotiations and hence she being properly informed by the documentation he provided whereupon it was open for the wife to act in a number of ways including the delay of settlement until such issues were resolved. He says that he avoided bankruptcy by meeting the creditor’s claims over a period of time.
The husband says at all times in negotiations towards settlement in April 2018 he made full disclosure and scrutiny was available to the wife, her solicitor, and her barrister.
FINDINGS
The onus rests with the wife to prove, on the balance of probabilities, that the orders which were made were subject to fraud, duress, the suppression of evidence, or the giving of false evidence such as to bring about a miscarriage of justice and should therefore be set aside.
Firstly, the wife says that the true value of the business at the date of the orders was $1,180,342 and this was not included in the balance sheets where the value was given as “nil”. She deflects blame to her solicitor or counsel at the time. She says that she was unaware of the contents of the Statement of Agreed Facts which supported the making of the orders by her Honour. I find such a scenario to be inherently unlikely where the matter was settled at a mediation attended to by the wife herself together with legal representatives and conducted by a senior and experienced member of counsel and where the wife simply asserts a bald statement unsupported by evidence or corroboration.
Secondly, it was the wife herself who obtained the December 2016 valuation. She was, therefore, informed as to alternatives as to valuation. She was entitled at all times to obtain an updated valuation prior to settlement. Given that she was made privy to what the husband says was a downturn in the business subsequent to the December 2016 valuation, such supported by contemporaneous documents and now put before me, I can conclude only that the wife made a value and informed judgment at that time to settle. Importantly, however, there is no evidence before me now, subsequent to the settlement, to show that the business did in fact have other than a nil value as of April 2018, being the date of settlement. To the contrary, the husband did then and does now adduce evidence in the form of documents to support his contention of a loss of value of the business.
Thirdly, the wife asserts more generally a failure by the husband to disclose or the suppression of evidence in what she says has been effectively the transfer of the benefit of MMPL to Ms Callas and her company, VV Pty Ltd. The wife adduces no evidence to support this claim other than her own suspicions. Neither Mr M nor Ms Callas were shaken in their evidence that VV Pty Ltd is a separate entity than MMPL with a different clientele save and except for one overlapping client. There is evidence from the husband supported by correspondence corroborating his claims of a “downturn” in the business of MMPL by reason of the loss of funding from WWPL which was the significant source of income for MMPL. In any event, it was open to the wife in April 2018 to challenge the husband's claimed “downturn” in the business as specifically referenced in the Statement of Agreed Facts. Specifically, the husband adduces a letter from WWPL dated 26 March 2018 now before me as an annexure to his affidavit and without objection. That letter states:
Dear [the husband]
Further to our meeting last month discussing the progression of our 2018 [government] funding application we regret to inform you that it has now been finalised and we have not attained the contract and therefore we are unable to continue any funded courses including […] studies.
Also, as discussed, we have now completed our final cost analysis for 2016–2017 […] program. In light of the [government] audits both in 2016 and 2017 which incurred claw backs costs and the expenses outlaid to rectify concerns identified through the audits, our financial review has identified we have overpaid you in excess of $87,552.00.
This amount is payable by you as the claw back amounts and expenses outlaid for compliance and student concerns were directly related to you and or staff you were responsible for.
I request that we meet urgently to discuss this matter further as I would prefer not to engage our legal team.
The author of the above the letter was not called by either party for clarification or cross-examination.
Similarly, the husband annexes without objection to his affidavit the financial statements for MMPL as of 31 March 2018. Prima facie, they support his evidence of a downturn in the business.
The husband annexes without objection to his trial affidavit correspondence between his and the wife’s solicitors dated 9 April 2018. That letter waives privilege. The letter predates the settlement and final orders. It deposes inter alia:
MM Pty Ltd
This company is in the process of being wound-up/deregistered. Bank accounts have been closed, the company is not (sic) longer trading and the only outstanding matter is the outstanding tax debt owed to the ATO (see attached letter from Accountant and last financial statements for the company).
The amount owing to the ATO is $29,453.71.
On 26 March 2018, our client became aware of another debt owing by either the company or him, through sole trader entity to WWPL in the sum of $87,552.00 (see attached letter of demand).
Decrease in value of our client's businesses
As you would be aware from the financial documentation already disclosed, our client's main business was with WWPL [and] UU Company. Our client no longer has contracts with either of these organisations. Neither of these organisations are on the current […] Approved Provider List (see attached). Further, [skills] training is no longer on the […] Skills List (see attached). This means that our clients businesses are no longer eligible to receive Victorian Government funding […]. …
Bankruptcy
It is looking highly likely that our client will have to enter into bankruptcy whether on petition or voluntarily, based on his current situation. He has sought advice from a legal firm specialising in bankruptcy, XX Lawyers and discussed his situation.
Our client was advised that if he were to enter into bankruptcy, the money which has been transferred out of his accounts may be treated as an uncommercial or unreasonable transaction by the bankruptcy trustee and may need to be repaid. Given that it is our client's position that these money transfers were made to your client's accounts, our client bankruptcy may have a serious financial effect for your client.
Further, it is necessary to liquidate MM Pty Ltd, the directors of that company (at any given time, which includes your client) may be personally liable for the company's unpaid debts if personal guarantees have been given, the company was trading insolvently or again, money transferred from the company accounts is treated as an uncommercial transaction or unreasonable director transaction. Again, this could have serious financial consequences for your client.
Again, please advise if your client requires further information to satisfy your client in this regard.
Until receiving the letter of demand from WWPL, we were not aware of the extent of our client’s financial situation and the potential effect it may have on your client situation.
…
Given the above, I am generally satisfied that the husband made the full and proper disclosure relevant to the issues between the parties in the negotiations towards settlement. In any event, I accept the submission of counsel for the husband that the wife does not otherwise point to any specific documents that she says were not disclosed.
The wife questions the husband’s claimed indebtedness to the ATO or says that it was a debt to which she made no contribution and it represents evidence of “tax evasion”. As the debt is evidenced in documents annexed to the husband’s affidavit at $29,646.05 as at about April 2018. Whilst the statement of agreed facts is silent with any specificity as to this liability in the balance sheet at [7] it is referenced generally at [5] of the ultimate final orders where the husband provides an indemnity to the wife in respect of that debt as he does for all other liabilities. There can, therefore, be no miscarriage of justice or injustice to the wife even if such liabilities had not been disclosed in their particulars, which, in my view, they were.
In conclusion, therefore, I am not satisfied that the wife has discharged her onus of proof. The orders were made by consent accompanied by a statement of agreed facts with the inference being of agreement reached at mediation with experienced counsel and where the wife was legally represented.
The orders as agreed and supported by the statement of agreed facts provide the wife with 68.5 per cent of the assets in circumstances where the husband also took on the liabilities to the ATO and other personal liabilities. The statement of agreed facts discloses that the parties’ wealth “was largely built up during the course of the parties’ relationship”.
Essentially the wife complains that the business MMPL was included in the statement of agreed Facts towards settlement at nil value. She had obtained a valuation. She had the opportunity to confirm the valuation in obtaining an update. She had available to her the husband's claim that the business had lost its income support and hence its value. She had available to her documentation from the husband corroborating his claim. She had the opportunity to test these claims. Significantly, the wife adduces no evidence before me that, in fact, the business did have a value other than nil as at date of the consent orders.
The wife claims that she was induced into settlement by the husband's threats of bankruptcy. I can find no fraud or misrepresentation in circumstances where the husband now provides documents contemporaneous with the settlement in early 2018 which are indicative of either a debtors’ or creditors’ petition for bankruptcy. The fact that the he avoided such bankruptcy ultimately is immaterial to my consideration here.
On the evidence before me, I find generally that the wife entered into final consent orders in April 2018 fully informed and legally represented. I find no evidence of suppression of evidence on the part of the husband or of fraud, duress, the giving of false evidence, or the suppression of evidence. I find no miscarriage of justice. I find no evidence of incompetence in the legal representation of the wife at the relevant time. There is no evidence before me, supported by my observations of the wife throughout this trial, that she laboured under any disadvantages or power imbalances with the husband such that would satisfy me that she entered into the consent orders unwillingly or that her will and independent judgement was other than free and informed.
Given the above, I will not grant the relief sought by the wife pursuant to S 79A of the Act and her application in this respect is dismissed.
SPOUSAL MAINTENANCE
The wife also pursues an order for spousal maintenance from the husband in the quantum of $1,600 per calendar month for five years. The application is opposed.
Notably, the wife also made an interim spousal maintenance application during the course of this lengthy trial such being dismissed by my order of 23 March 2021 after a hearing on the papers on 12 March 2021.
THE RELEVANT LAW
Section 72 of the Act provides:
(1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
Section 74 of the Act provides:
(1)In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
An applicant for spousal maintenance carries an onus in what is often referred to as “crossing the threshold” in that the applicant must prove on the balance of probabilities firstly, that she/he has “needs” and, secondly, that she/he is unable to meet those financial needs herself/himself. Only then, and if this evidentiary threshold is crossed, does the Court turn to consider the capacity of the respondent to contribute to the maintenance of the applicant.
The parties were divorced on 4 June 2020 and hence the application is made in time.
THE WIFE’S CASE
The wife claims to be impecunious. She has provided a sworn financial statement in these proceedings. Her income is reliant upon Centrelink. She has no substantial assets. She has no savings. She has a rental obligation although recent moves in her accommodation do not allow me to quantify that with any specificity. She had previously had a rental commitment of $376 per week. She disclosed further ongoing expenses of $290 per week. The legislation makes clear that a means tested Centrelink benefit is not to be considered as income.
X has until now lived primarily with the wife for nine nights per fortnight. The husband contributes child-support of approximately $137 per month.
Prima facie, therefore, the wife has needs far in excess of her income which is effectively nil.
Evidence during the course of these proceedings suggests the mother is in a relationship. I do not have evidence, however, as to any financially dependent or supportive aspects of this relationship. The relevant person did not give evidence in these proceedings.
The husband challenges the wife’s claim that she does not have the capacity to meet her own needs. The evidence before me now, consistent with that at the interim hearing is that at settlement the wife received cash of $296,839 together with a property JJ Street, City KK then with an agreed value of $85,000. The evidence is that the wife disposed of that property for $55,000 thereby giving her cash of some E$350,000. The wife gives the Court no explanation as to how she has divested herself of $350,000 in the period of little more than three years. Whilst I accept that her self–support and support of X has been limited to Centrelink benefits and the child-support, she has apparently spent on average some $116,000 per year. She has no assets to evidence this expenditure.
The wife’s affidavit material does not enlighten me further as to her expenditure of $350,000. In fact, her affidavits are almost entirely critical in their examination of the respondent's finances and do not address her own financial situation in any relevant detail.
The husband also challenges the application for spousal maintenance on the basis that the wife gives no evidence of any attempts to obtain employment and thereby mitigate her situation. On her own evidence she has previously been employed in a number of responsible positions with government entities. She has historically engaged in various other forms of employment. To her great credit she has obtained qualifications and experience. She frequently reminded the Court during these lengthy proceedings that she had ambitions of either continuing or completing a university degree. She is both intelligent and articulate. Whilst she has had the responsibility for the primary care of X, the husband also contributed in X spending five nights per fortnight with him which would have allowed the wife to have pursued some employment opportunity. Put simply, she gives no evidence of any attempt to obtain employment. My understanding is that the mother is in receipt of a Newstart Allowance which obligates the recipient to make applications for employment. She gives no evidence to this Court of any such applications. The orders that I am about to make in respect of X being in the week–about care of the parties should broaden the capacity of the wife for employment. The wife offers no physical or mental health limitations to her obtaining employment.
The Act obliges the Court to consider the earning “capacity” of an applicant for spousal maintenance and not simply the current income. Where the onus is on the applicant to prove her case on the balance of probabilities, the wife has not discharged this onus. Further, she has had available to her a substantial cash sum which, if invested, would have brought some considerable income. She does not give any evidence as to what became of the amount of some $350,000.
Whilst I am generally satisfied as to the wife’s needs, I am not persuaded that she has discharged the onus to prove an incapacity to meet those needs or to mitigate her own claimed financial difficulties. Consequently, I need not proceed further to consider the husband's capacity to contribute to the wife's needs.
The wife’s application for spousal maintenance will be dismissed.
I certify that the preceding two hundred and thirty-two (232) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 1 FEBRUARY 2022
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