CALLIHAN & CALLIHAN
[2020] FCCA 2034
•30 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
CALLIHAN & CALLIHAN [2020] FCCA 2034
Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made – property adjustment – orders made.
Legislation:
Family Law Act 1975 (Cth), ss.65Y, 106A, 81, 60CC, 60B, 60CA, 75, 79
Australian Passports Act 2005 (Cth)
Cases cited:
Betros & Betros [2017] FamCAFC 90
Lotta & Lotta [2017] FamCA 50
Applicant: MR CALLIHAN
Respondent: MS CALLIHAN
File Number: PAC 2106 of 2018
Judgment of: Judge Newbrun
Hearing dates: 11, 12 and 13 March 2020
Date of Last Submission: 16 April 2020
Delivered at: Parramatta
Delivered on: 30 July 2020 REPRESENTATION
Counsel for the Applicant: Mr Hill of Counsel
Solicitors for the Applicant: Gonzalez & Co
Counsel for the Respondent: Mr Reeves of Counsel
Solicitors for the Respondent: Mahony Family Lawyers Solicitors for the Independent Children’s Lawyer Ms Raheem - Brian Samuel & Associates ORDERS
Parenting
(1)That the Mother have sole parental responsibility for the children X born in 2014 and Y born in 2017 (“the children”).
(2)That the children live with the Mother.
(3)That the children spend time with the Father supervised by Suburb B Children’s Contact Service, or such other supervision service as agreed to by the parents in writing, for one period of 2 hours each 3 months.
(4)That the Father be permitted and authorised to forward to the children any presents, cards, photographs or letters in respect to any special occasions such as the children’s birthdays, Christmas, or any other occasions of special significance to the children.
(5)That pursuant to section 65Y of the Family Law Act 1975 (Cth), the Mother shall be authorised and entitled to remove the children from the Commonwealth of Australia for the purpose of travel at her discretion.
(6)It is noted that Order 1 vests in the Mother sole parental responsibly for the purposes of the Australian Passports Act 2005 (Cth) such that the Mother is accordingly authorised to obtain any passport or travel document required to facilitate the children travelling overseas without first notifying or obtaining the consent of the Father.
Property
(7)That the Father shall, should he wish to retain the property situate at and known as C Street, Suburb D, NSW (“the property”), pay to the Mother within 8 weeks from the date of these Orders, the sum of $58,749.
(8)That simultaneously with Order 7, the parties do all acts and things and sign all necessary documents to discharge the mortgage in favour of E Bank (“the mortgage”) secured over the property and forthwith the Father shall refinance the mortgage into his sole name and shall indemnify and keep indemnified the Mother from any liability thereon.
(9)That should the Father fail to comply with Orders 7 and 8 above, then the parties shall forthwith do all things and sign all documents necessary to cause the property to be sold by private treaty at the earliest possible date at a price to be agreed upon between the parties and failing such agreement at a price to be determined by the President of the New South Wales Division of the Australian Property Institute (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in the following manner and priority:
(a)Payment of agent’s commission, advertising expenses, conveyancing adjustments, and legal expenses of the sale.
(b)Payment of costs incurred, if any, in relation to the nomination of a real estate agent or solicitor (if any), and in payment of costs in relation to determination of value or selling price by the President of the New South Wales Division of the Australian Property Institute or his/her nominee.
(c)Discharge of all mortgages and charges secured on title.
(d)The balance then remaining to be divided as to:
(i)50 per centum plus $15,185 to the Mother; and
(ii)The balance to the Father.
(10)That within 28 days the Father shall transfer to the Mother his right title and interest in the Motor Vehicle 1.
(11)That within 14 days the Mother shall do all things required of her to transfer to the Father, her right, title and interest in the F Shares, with the Father to meet the costs of and associated with the transfer.
(12)That as between the Father and Mother, and subject to the above Orders, the Father and Mother shall each respectively retain all interest in and entitlement to:
(a)Any motor vehicle in his/her respective possession or control.
(b)All items of furniture and contents in his/her possession or control.
(c)His/her contributions and accumulated entitlements with respect to or arising from his/her membership of any superannuation fund.
(d)His/her employment related entitlements including but not limited to annual leave, sick leave and long service leave.
(13)That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court in which these Orders are made be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
(14)That pursuant to section 81 of the Family Law Act 1975, the parties acknowledge that these Orders are intended to operate so as to finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them.
(15)That each party has liberty to apply in relation the implementation or enforcement of these Orders upon seven days’ notice.
IT IS NOTED that publication of this judgment under the pseudonym Callihan & Callihan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTAPAC 2106 of 2018
MR CALLIHAN Applicant
And
MS CALLIHAN Respondent
REASONS FOR JUDGMENT
Introduction
1.This is the determination of final property and parenting proceedings between the parties.
2.The parenting hearing relates to the children X born in 2014 (X), and Y born in 2017 (Y) (the children).
3.The Mother lives in Suburb G with the children. The Father lives in Suburb D, which is in the City H area.
Proposals
4.The Father in his Amended Initiating Application filed 26 February 2020 sought final parenting orders, inter alia, that the parties have equal shared parental responsibility for the children and that they live with him; and that the Mother spend time with the children during school term times every second weekend from after school Friday to Sunday at 5pm; and the children spend time with the Mother during half of all school holiday periods.
5.The Mother in her Amended Response filed 20 January 2020 sought final parenting orders, inter alia, that she have sole parental responsibility for the children; that the children live with her; and that the children spend no time with the Father (or in the alternative, the children spend time with the Father supervised by Suburb B Children’s Contact Service, or such other supervision service as agreed to by the parents in writing, for one period of 2 hours each 3 months).
6.The ICL sought final parenting orders (see Exhibit G), inter alia, that:
a)the Mother shall have sole parental responsibility;
b)that the children live with the Mother;
c)that the children spend supervised time with the Father for a period of two hours on the first Saturday of each calendar month, and that the Father’s time with the children be supervised by Family Ties (or such other agency or contact service agreed to by the parties), and that the Father pay the costs of such supervised time;
d)that the Father be permitted and authorised to forward to the children any presents, cards, photographs or letters in respect to any special occasions such as the children’s birthdays, Christmas, or any other occasions of special significance to the children;
e)that the Mother shall continue to attend on her counsellor/therapist until such time that her counsellor/therapist considers it no longer to be necessary;
f)that the Mother’s counsellor shall address in the Mother’s counselling and therapy the issue of the children’s relationship with the Father and the possibility of the children’s time with the Father being extended and/or increased in the future to include the possibility of unsupervised time;
g)that a copy of the Court’s orders and the family report prepared by Ms J and dated 5 June 2019 be released to the Mother’s counsellor/therapist;
h)that all communications between the parties via email are to be in respect to parenting issues only;
i)that in the event that the children express a clear wish to the Mother as they get older to increase their time with the Father, the Mother is to use all reasonable attempts to implement the children’s wishes.
Material relied upon
7.The Mother relied upon the following documents:
a)Affidavit of Ms Callihan (the Mother) filed 18 February 2020 and exhibit bundle thereto;
b)Affidavit of Ms K (former partner of the Father) filed 12 February 2020;
c)Affidavit of Mr L (adult son of the Father from a former relationship) filed 12 February 2020;
d)Affidavit of Ms M (the Mother’s aunt) filed 12 February 2020;
e)Affidavit Ms N (Mother’s sister) filed 21 February 2020;
f)Affidavit of Ms O (clinical psychologist) filed 14 February 2020;
g)Amended Response filed 17 February 2020;
h)Notice of Risk filed by the Mother on 27 July 2018;
i)Her Financial Statement filed 17 February 2020;
j)Family Report dated 6 June 2019.
8.The Father relied upon the following documents:
a)Amended Initiating Application filed 26 February 2020;
b)Affidavit of Mr Callihan filed 17 February 2020;
c)Financial Statement of Mr Callihan filed 14 February 2020;
d)Affidavit of Mr P filed 2 March 2020.
9.The ICL relied upon his Case Outline.
10.The following exhibits were relied upon by the parties and ICL:
a)Exhibit A: Family Report dated 6 June 2019;
b)Exhibit B: Mother’s Tender Bundle;
c)Exhibit C: Sleeve 12 – Tagged ICL 1
Sleeve 13 – ICL 1 to 9
d)Exhibit D: Sleeve 2 – Tagged M 2.1
Sleeve 3 – Tagged M 3.1 & M 3.3
Sleeve 9 – Tagged M 9.4
Sleeve 12 – Tagged M 12.3
Sleeve 13 – 13.3, 13.4, 13.5, 13.6, 13.7 & 13.8
e)Exhibit E: Sleeve 12 – Tagged F 1;
f)Exhibit F: Balance Sheet – 9.3.2020;
g)Exhibit G: Proposed Minute of Orders Sought by ICL.
11.The Court has had regard to all of the evidentiary material relied upon, along with the documents tendered into evidence and the oral evidence taken. The Court has also considered the oral submissions, and written submissions including Case Outline submissions.
Parenting
Evidence
12.Throughout these reasons (including the Court’s discussions under s.60CC of the Family Law Act1975) the Court will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
13.The Father is aged 51 years, and the Mother is aged 35 years.
14.The parties commenced cohabitation in England in about 2013. They separated in about late March 2018.
15.During the parties’ relationship, and to date, the Mother has been the primary carer of the children.
16.During that relationship, the Mother was a stay-at-home parent for the children whilst the Father worked in paid employment. When the Father was at home he was normally resting from his work. Whilst the Mother prepared the evening meal the Father would normally watch over the children.
17.The Father, during the relationship, exhibited anger (including by yelling and throwing items, and road rage) and frustration towards the Mother and the children, in particular X, as well as towards third parties. The Father exhibited anger in the presence of the Mother and the children, including whilst driving. The Court accepts the Mother’s evidence in this context.
18.The Court refers to the report of Mr P dated 15 February 2020 in relation to his mental health assessment of the Father. This psychologist diagnosed the Father as having an adjustment disorder, with the psychologist ultimately opining that this diagnosis was “not a core element or enduring feature of his psychological functioning but is, rather, a response to the stress of his life since he and his Wife separated, and his struggle to see things regulated such that he has reasonable access to his children.” The Court accepts this diagnosis, but observes that according to Mr P it is a response to the stress of the Father’s life since the parties’ separation.
19.Inter alia, in relation to certain tests administered to the Father by the psychologist, Mr P, the Father reported getting fairly angry when: “people don’t really listen when you talk to them”; “when people think they are better than you”; “you make plans with a person who backs out”; “being accused of something you did not do”; and, “being overcharged for a repair”.
20.Mr P opined that based upon his assessment of the Father, the Father was not a chronically angry man. Despite this opinion, the Court, again, finds that during the parties’ relationship, the Father exhibited significant anger and frustration towards the Mother and the children, in particular X, including towards third parties, and accepts the Mother’s evidence in this context.
21.During the parties’ relationship, the Father exercised excessive physical discipline upon X. For example, on 30 March 2018, the Father had attempted to force X into his car seat whilst the child was resisting. The Father struck both X’s hands which led the child to let go and fall onto the ground. The Court accepts the Mother’s evidence in relation to the Father exercising excessive physical discipline upon X, including hitting him, during the parties’ relationship.
22.In late October 2017, the Father pulled a chair that X was sitting on, out from underneath him, which caused X to fall backwards and land on the ground on his back.
23.There was another incident in late October 2017 when the Father was bathing X and X was splashing water out of the bath. The Father hit X across the face with an open hand which caused X’s head to fling back. The Mother asked the Father, “why is that necessary? He is bleeding from the head, any harder and you could have caused a concussion.” The Father replied, words to the effect, “I didn’t mean it on purpose it just happened.”
24.At the end of February 2018, at the R Hospital, the Father was eating lunch at a table. The child X was not interested in sitting at the table with the Father and ran away. The Father got up and heaved X by the arm and dragged him 7 metres back to the table saying words to the effect, “you fucking naughty cunt” and “there will be trouble later.” X sat at the table for a moment and then ran away again and hid behind an ATM. He was screaming hysterically. The Mother’s sister tried to comfort X with no success. The Father continued to sit at the table and did not try to engage with X to comfort him. The Mother was asked by her sister to come down and it took about 20 minutes to calm X down.
25.During the parties’ relationship, the Father verbally abused the Mother and X. He verbally abused the Mother in the presence of the children. The Court accepts the Mother’s evidence in this context.
26.The Father verbally taunted X. He threatened to harm or chastise X. For example, on 30 March 2018, after the Father had struck X’s hands, referred to above, the Father told the Mother that, “I’m going to break his fucking neck. Next time I see him, I’ll fucking kill him.” The Court accepts the Mother’s evidence in this context.
27.The Father physically intimidated the Mother during the relationship. For example, the Father would hold his fist up in the air in a motion to threaten the Mother. The Mother felt that the Father would strike her with his fist if she did not stop questioning him about his anger and violence. The Court accepts the Mother’s evidence in this context.
28.The Father threatened to hurt the Mother during the relationship on a regular basis. For example, he would say to the Mother, “I will throw you out the window”, and “I will knock your fucking head off”. These statements were made to the Mother in the presence of the children. The Court accepts the Mother’s evidence in this context.
29.On 5 April 2018 the Father left a voicemail message on the Mother’s phone. In one message the Father said words to the effect, “Surprise, surprise, ignoring me again are ya, if I have to come down this weekend there will be hell to pay, I wasn’t going to come down this weekend, but now I am, fucking get ready.” In cross examination by the Mother’s counsel, the Father did not agree that this was a threatening message to the Mother. Later, in cross-examination by the ICL, the Father stated that the Mother probably would have been intimidated hearing the Father’s voicemail. The Father was questioned by the ICL as to whether he acknowledged the Mother’s fear in being too scared to go home and staying in a hotel after receiving the Father’s voicemail message, to which the Father stated that, “It’s one big front”.
30.On 6 April 2018 a provisional ADVO was made against the Father for the protection of the Mother. In the “Grounds of the Application” for the ADVO, (page 19 of Exhibit B) it is stated that the Father himself stated to the police that he was angry and frustrated from the above incident on 30 March 2018 and may have said things out loud. In relation to the above message on 5 April 2018, the police “Grounds of the Application” further state that the Father was electronically interviewed about the incident on 5 April 2018, and the Father admitted to making the phone call to the Mother and leaving the voice message. The Father had stated, “I said it out of frustration.”
31.On 9 April 2018, a final order, ADVO, was made against the Father for the protection of the Mother, with the order to expire on 5 April 2020.
32.The Father spent no time with the children from 6 April 2018 to 15 December 2018.
33.The Father spent supervised time with the children from 15 December 2018, through 2019, and it was continuing up to the final hearing on 12 March 2020. This supervised time occurred for about two hours each fortnight. The contact reports are annexed to his trial affidavit. The children appear to have enjoyed these supervised visits with the Father.
34.X has, and continues to Exhibit, significant emotional and behavioural difficulties. The Court accepts the Mother’s evidence in this context.
35.The Court refers to the report of X’s treating clinical psychologist, Ms S, dated 28 January 2020, including the history provided by the Mother to that psychologist.
36.In the above report, the Mother expressed concerns about X’s behaviour following visits with the Father including increased hyperactivity, seeming “in his own world”, repeatedly making noises and being unable to engage well in conversation, talking to himself, and increased clinginess. She reported similar behaviours can occur to other triggers that remind X of the family violence, such as an argument between herself and X.
37.The above psychologist stated that X presented with mild symptoms of post-traumatic stress disorder. The Court accepts this diagnosis. The psychologist recommended that X continue to engage in therapy to continue to address his symptoms of PTSD, particularly related to toileting and to his coping ability following visits with the Father.
38.Exhibit C, Sleeve S12, the subpoenaed records of Ms S, Suburb B Therapy Centre, tabs ICL 1, M 12.3, refer to a consultation between X and the clinical psychologist Ms S, on 2 December 2019, with the clinical notes stating, inter alia, that X described the Father hitting him, his sister and the Mother, and described one occasion when the Father hit him after wetting himself on the carpet. The child X stated that he feels scared seeing the Father at visits.
39.The Mother has experienced stress and anxiety in her parenting of X. Through her counselling and parenting education she has learned to manage this stress and anxiety. She has learnt and put into practice effective techniques in parenting X.
40.The Mother continues to experience significant stress and anxiety in facilitating the children’s changeover for supervised time with the Father. For example, on 23 December 2019, the Mother experienced intense feelings of anxiety and worry when she was collecting the children from the supervised visit. On arriving to collect the children, and having observed X to be sitting on his own with the Father, the Mother started to feel her anxiety levels rise. She felt shaky and sick to her stomach. She started to worry that she was going to have a panic attack. The Mother’s mind flashbacked to occasions when X had been harmed by the Father. The Court accepts the Mother’s evidence in this context.
41.The Court refers to the report of clinical psychologist, Ms O, dated 4 February 2020, being a mental health assessment report. The Court accepts her opinion that the Mother’s presentation did meet the DSM-5 diagnostic criteria for post-traumatic stress disorder.
42.The Court refers to the history taken by the psychologist from the Mother (which the Court accepts) that inadvertent contact with the Father when the children have supervised visits can elicit a strong physiological response and make it difficult for the Mother to respond to the supervisor. The psychologist stated that, “The degree of parenting related stressors (of the Mother) appears to be entirely expected in context. The understandable stress of the Court process, concerns for the children and ongoing contact with her Husband contributes to her overall stress.”
43.The Court accepts the psychologist’s opinion that the degree of distress and impairment of the Mother, within the context of her diagnosed PTSD, varies between mild (at times between contacts with the Father) to moderate/severe (during court contacts with the Father).
44.The Court accepts the psychologist’s opinion that the presence and degree of this disorder (PTSD) does not preclude the Mother being able to provide safe and effective parenting.
45.Even if the Court is wrong in accepting Ms O’s opinion that the Mother suffers from PTSD, the Court accepts the Mother’s evidence in relation to experiencing symptoms of stress and anxiety in relation to having experienced or witnessed family violence perpetrated by the Father towards herself and/or the children, in relation to these proceedings, and in relation to facilitating supervised time between the children and the Father.
46.The parties gave oral evidence. The Court does not propose to set out the entirety of their oral evidence.
47.The Father stated that if the children were living with him, inter alia, he would enrol them in school and he would have a professional babysitter.
48.The Father stated that he had done the Circle of Security and Magic 1 2 3 parenting courses.
49.The Father stated that he did not think he had an anger management problem.
50.The Father stated that if the Court ordered that the children live with the Mother, he would wish to spend alternate weekends and not less than 50% of the school holidays with the children, at his home. In this context, the Father stated that he would work on Sundays from 9 PM to 5 AM Mondays and from Monday to Friday, 5 PM to 1 AM.
51.In cross examination of the Mother by the Father’s counsel, the Mother was asked as to whether it was important for the children to spend time with the Father. In response, the Mother stated that it was important for the children to attend visits as ordered (by the Court). The Mother was asked whether it was important for the children to spend time with the Father. The Mother’s response was that generally both parties should have a relationship with the children if it was safe.
52.The Mother was asked whether she could identify any psychological benefits to the children as they grow up in having a relationship with the Father. The Mother responded by stating, words to the effect, “In a safe environment yes, but psychologically X has been impacted by the Father in a negative sense.”
53.The Mother stated that she does not encourage conversations about the Father with the children because it upsets X.
54.The Mother stated that X had had six sessions with the clinical psychologist Ms S. His last attendance upon the psychologist was in January 2020. The child’s next appointment was at the end of March 2020. The Mother stated she was not present during every consultation between the child and the psychologist. She stated that consultations between the child and the psychologist involved emotion coaching; recognising one’s feelings and speaking about them. The Mother stated that the child’s behaviour had improved since his consultations with the psychologist.
55.The ICL asked the Mother about any safety concerns she might have in relation to the children spending unsupervised time with the Father. She responded by stating that with her experience of the Father, the Father was unable to control his anger; he was unable to regulate his emotions.
56.The ICL asked the Mother whether, having read the supervised contact reports, which were generally positive, that gave her comfort that the Father would not hurt the children. The Mother stated that they gave her comfort that the children were not in distress, however, she stated that she knows the Father “cannot be that person all the time” and referred to the two-hour supervised visits in this context.
57.The ICL asked the Mother whether, when the children were spending supervised time with the Father, she was stressed and anxious. The Mother stated that “it comes and goes”.
58.The Mother stated that she has been receiving psychological treatment through Ms T, since about mid-2018 and her consultations are fortnightly. She intends to continue to obtain treatment from Ms T. The Mother stated that she has been assisted with such treatment including in relation to issues of parenting, coping, and tools to calm down when she is particularly panicked. She stated that such treatment assists her in relation to her anxiety levels relating to the Father.
59.The Mother was asked whether her anxiety levels would decrease over time if the children were spending supervised time with the Father, and the Mother responded by stating that her anxiety levels would not be heightened. The Mother confirmed that her anxiety is triggered when the children see the Father. The Mother stated that she fears the Father wants to hurt her and the children.
60.The Mother stated that she had no problems if the Father was to send presents or cards on the children’s birthdays, as long as the presents were relevant for their ages.
61.The Court accepts the evidence of the Mother’s older sister, Ms N. Her evidence was not disturbed having been cross-examined. Her evidence was supportive of, and consistent with, the Mother’s evidence relating to, inter alia:
a)the Father’s anger and loss of temper in front of the children,
b)X being scared when the Father became angry and lost his temper,
c)the Mother’s adverse reaction to the Father’s anger,
d)the Father verbally abusing and losing his temper with X, and exerting excessive physical discipline upon him, including that child’s adverse reaction to such behaviour by the Father, and,
e)X’s observed fear of the Father when being verbally threatened and abused by the Father,
f)the challenging behaviours of X, and
g)the Mother’s anxiety in facilitating supervised time with the Father.
62.The Court accepts the evidence of the children’s paternal aunt, Ms M. Her evidence was not disturbed having been cross-examined. The parties and X (when X was only 15 days old) lived with Ms M and her Husband for about five months in 2015. Her evidence was consistent with the Mother’s evidence relating to, inter alia:
a)the Father’s impatience and frustration in dealing with X’s behaviour (albeit when X was a baby),
b)the challenging behaviours of X.
63.The Mother relied upon an Affidavit of the Father’s former partner in the UK, Ms K, in relation to the issue of alleged family violence. The Father and Ms K had been in a relationship during the period from about 1993 to 1996. Ms K gave oral evidence and was cross-examined by way of video link.
64.The Court accepts that the Father verbally abused, and exhibited anger towards his former partner Ms K. Such anger had occurred on at least one occasion in the presence of their child Mr L, born in 1993. This evidence is consistent with the Mother’s evidence relating to such conduct having been experienced by her during the parties’ relationship at the instance of the Father.
65.The Court is not satisfied on the balance of probabilities that the Father sexually abused his son from a previous relationship, Mr L.
Exhibits
66.The Court does not propose to set out the contents of all the exhibits.
67.Sleeve S 12, the subpoenaed records of Ms S, Suburb B Therapy Centre, tabs ICL 1, M12.3, refer to a consultation between X and the clinical psychologist Ms S, on 2 December 2019, with the clinical notes stating, inter alia, that X described the Father hitting him, his sister and the Mother, and described one occasion when the Father hit him after wetting himself on the carpet. He stated that he feels scared seeing the Father at visits.
68.Sleeve S 13, tab ICL 7(3) being a Victims Services Over 22 Hours report, dated 2 January 2020, in relation to the Mother, refers to the Mother experiencing anxiety triggered by her fear of harm to herself and the children from the Father. It refers to the Mother being triggered by any parallels between the past domestic violence and the family law process. It states that the frequency of tasks associated with the family law process, including fortnightly supervised contact for the children, mean the Mother is experiencing frequent triggers of past trauma. It refers to the Mother attending counselling regularly for one hour per fortnight, and never missing an appointment. It refers to the Mother reporting that the counselling is important to her and she uses it to manage her stress “and feelings of overwhelm”.
69.Sleeve 2, the subpoenaed records of the NSW Police service, tab M2.1, refers to the Father’s sentence of a section 10 Bond, 12 months, in relation to the offence of stalk/intimidate intend fear physical etc. harm (personal), with the offence date being 5 April 2018. It also refers to the Father’s sentence of a section 10 Bond, 12 months, for contravene prohibition/restriction in AVO (domestic) with the offence date being 6 April 2018.
The family report
70.Ms J, family consultant, prepared a family report dated 6 June 2019. She interviewed the parties and the children on 7 May 2019.
71.The family report writer stated under the heading “Limitations of the assessment process”, that the Father advised that he sought to rely on support from the Paternal Grandmother if orders were made for the children to live with him. The family report writer noted that the Paternal Grandmother currently lives in the United Kingdom. She was not interviewed nor was an observation conducted between her and the children. The Court observes an affidavit from the Paternal Grandmother filed 13 January 2020 confirms that the Paternal Grandmother lives in the United Kingdom; that she is currently aged 73 years; that since the parties’ separation she has not been able to have a close bond with the children; and that she has had contact with the children three times in 2019 and in January 2020. There is no reference in the Paternal Grandmother’s Affidavit to the Paternal Grandmother moving to live in Australia.
72.The family report writer stated that the Father lives alone in Suburb D near City H in New South Wales. She states that the Father is employed full-time as a factory worker and works a three shift roster, including early-morning, day and night shifts.
73.The Court observes that the Father states in his Affidavit filed 17 February 2020, that he works as a factory worker for Employer U in City H, and that he works full-time hours on a rotating two-week roster so his days change. In cross examination by the ICL, the Father stated that his work hours are now 5 PM to 1 AM. He stated that if the children were living with him he would engage a professional baby sitter whilst he worked such hours, and which would cost $200 per week.
74.The family report writer stated that X will commence kindergarten this year. The child Y is cared for by the Mother at home. The parents live about 170 km from each other which appeared to be a two-hour drive.
75.The parents reported to the family report writer that there was a final two-year ADVO, listing the Mother as a protected person from the Father, which expires in April 2020. Both parents reported that this order was made following the Father leaving a voicemail message on the Mother’s mobile telephone.
76.The Mother reported to the family report writer that the Department of Family and Community Services had undertaken an assessment with herself and the children in April 2018 and the file had since been closed.
77.The Father told the family report writer that ideally he would like to continue to work, at least part-time but hopefully full-time, but said that his workplace offers flexible hours.
78.The Father stated that his current approach to discipline would be reprimanding the children for misbehaviour and using a timeout approach to help the children calm down.
79.Under the heading, “Family Violence”, the Father stated to the family report writer that some days after X’s tantrum in March 2018, being upset and worried, he left an angry message on the Mother’s voicemail. He stated that in hindsight it was not an appropriate message to have left.
80.X stated to the family report writer that if the Father gets angry that he hits him and throws him.
81.The Court refers to the observations of interactions between the children and the Father, at the family report interviews, reported by the family report writer. Whilst the children engaged in play with the Father, X refused to hug, kiss or say goodbye to the Father. The child Y reacted positively with the Father.
82.Under the heading “Evaluation”, the family report writer stated that X presented as resistant to a relationship with the Father and his presentation during observation with the Father reflected some of his stated resistance. The family report writer stated that, however, given X’s age, his apparent developmental stage and ability to provide meaningful and reasoned views, it was recommended that little determinative weight be given to his stated views.
83.The family report writer observed that at one point, during the observation, the Father seemed to take offence that X had stated that he did not love him. She stated that the Father’s response to X’s statement appeared to be focused on his own emotional experience and then he made a reference to the child Y being a good girl because she agreed that she loved the Father. The family report writer stated that if this was indicative of how the Father behaves with the children that may indicate that he lacks some insight into how his behaviour impacts the emotional well-being of the children.
84.The family report writer stated that if the Court determines that the Father has perpetrated coercive controlling violence, it was recommended that the children live with the Mother and that she have sole parental responsibility. She stated that the Court could consider making orders for the children to spend no time with the Father, depending on the severity and veracity of the family violence allegations.
85.The family report writer stated that if the Court determines that the Father has perpetrated family violence of the coercive controlling type, it may assist if he undertakes and completes a men’s behaviour change program. However, she stated that in this circumstance, the Father’s denial that such behaviour occurred, or that he was responsible for its occurrence, may suggest very limited capacity for him to change his behaviour in the future.
86.The family report writer stated that if the Court determines that the Father has engaged in physically and/or emotionally abusive behaviours towards X then it may be of assistance for the Father to undertake a Men’s Behaviour Change Program. She stated that the Court may need to consider the children’s emotional well-being and safety in spending time with the Father.
87.The family report writer stated that if there is veracity to the allegations made by the Mother then it may have contributed to a situation of X being realistically estranged from the Father.
88.The family report writer stated that there is no functional co-parenting relationship between the parents, and it would appear likely that conflict has been present within their relationship prior to separation. She stated that currently both parties demonstrate a lack of trust in the other. She stated that if there was veracity to the allegation that there was coercive controlling violence perpetrated by the Father, this was likely to be a contributing factor to the poor parenting dynamic.
89.She stated that ongoing exposure to parental conflict could lead the children to experience emotional and/or behavioural difficulties including challenging behaviour, depression and/or maladaptive conflict resolution strategies. She stated that given the high levels of conflict, it was suggested that the parent with whom the children live with, have sole parental responsibility as a means of protecting them from their parents’ conflict.
90.The family report writer stated that there are some concerns about the limitations of and untested nature of the Father’s proposal that the children live with him.
91.The family report writer recommended that if the Court determines that the Father has perpetrated coercive controlling family violence, or has engaged in physically and emotionally abusive behaviours towards the children, that the children spend no time with him, that the children live with the Mother and she have sole parental responsibility.
92.The family report writer gave oral evidence. The Court does not propose to set out the entirety of such oral evidence.
93.The ICL’s counsel questioned the family report writer as to the report of X’s treating psychologist, Ms S, dated 28 January 2020. The following evidence was given by the family report writer:
Okay. And you see that X has presented with mild symptoms of post-traumatic stress disorder?---Yes.
And what this psychologist says – that it’s associated with a history of family violence?---Yes.
There hasn’t been any findings about family violence in this matter yet, but – noting that, would it be in X’s best interests to continue spending even supervised time with the Father if he is being – or if he has mild or exhibits mild symptoms of post-traumatic stress disorder from the family violence?---In the instance that it’s determined that family violence has occurred?
Yes?--Then, it could be detrimental to X to spend time with Mr Callihan if he’s the cause of his symptoms of trauma related to family violence.
So I’m going to show you the psychologist notes between X and his psychologist. Yes, so the psychologist is Ms S?--Thank you.
Right. So what you read there is a session between the child, X, and the psychologist – the session being on 2 December 2019, so it is quite recent. And the psychologist had a one-on-one session with the child, and during that he stated that:
Dad is not allowed in our home.
He described dad hitting him, Y and mum. Described one occasion when dad hit him after wetting himself on the carpet. He also states that he feels scared to see dad at visits. And he spoke about dad for five to 10 minutes and he wanted to have a rest from speaking about his Father. I mean, noting that, would it benefit X to continue spending time with his Father if he still can recall these incidences of him being smacked by his Father?---That might depend if his account is accurate. I’m – I’m not sure if that has been determined yet – that X was harmed by Mr Callihan.
Would it benefit X to spend unsupervised time?---In the instance that it was determined that X was harmed by Mr Callihan, it’s likely he would be – he – he might find the experience of spending any time with Mr Callihan as traumatising.
94.The Father’s counsel questioned the family report writer in relation to the Court making a finding of no time in relation to the Father. The following evidence was given:
And I’m going to jump straight to your qualifications and jump to your field of expertise, mental health of child and adolescent. If the court was to make a finding of no time in relation to the Father, how would that impact on the two children, Y and X, in their adolescent years – not having a Father figure in their life?
---Look, it – it can depend. Children who – and I think if we look specifically at these children, there would be some short-term difficulties potentially for them. There could be kind of more intermediate or medium-term difficulties which might be captured around their adolescence, and then there’s potential long-term consequences for not having a relationship with their Father. The first thing that might occur is some grief and loss around that loss of relationship. If that’s not supported for them moving into adolescence, it’s possible that it would cause ongoing difficulties in terms of their identity, their mental health, their relationships with peers and with others.
95.The Court questioned the family report writer in relation to long-term supervision, and the following evidence was given:
HIS HONOUR: Ma’am, what’s your view about long-term supervision if the court, hypothetically, was to consider ordering continued supervised time between the children and the Father, not progressing to any unsupervised time? What are the issues there?
---Well, the social science doesn’t really indicate much for or against that kind of long-term supervised visits. I – I think, though, for children, developmentally, as they grow they’re going to develop an awareness that their time with that parent is supervised, and that stands outside of the – the norm of what children often experience. So there might be some questions and some kind of curiosity about that. It would really depend on how it’s managed with each of the parents. Supervised time time-limited – it’s also – it doesn’t necessarily capture or provide the children with a realistic experience of that parent. So if it’s activity-focused, if it’s time-limited it doesn’t kind of include the other parenting issues that might come up in terms of routines, rules, boundaries, homework, having to manage the more complex parenting tasks. So it’s a skewed experience of that parent.
And your observations of the child with the Father at the family report interviews – observations that you stated appear to indicate the child was resistant to a relationship with the Father – if you assume that the Father has perpetrated family violence against X, then are your observations of X with the Father consistent or not consistent with such assumption?---Could be consistent.
96.The Mother’s counsel questioned the family report writer in relation to X’s behaviour, the following evidence was given:
Your observation of X’s behaviour and having now read Ms S’s notes – some of them – in respect of X’s behaviour, in your opinion is that consistent with a child exposed to family violence?---It could be.
97.The Mother’s counsel questioned the family report writer in relation to the Mother’s responses to supervised time, and the following evidence was given:
If the Mother’s descriptions of X’s behaviour are accepted by the Court, then would you agree that the primary carer of X needs to be operating at their optimal parenting capacity?---Ideally, yes.
Now, I think you said in answer to some questions that the Mother’s description of her responses to the contacts – the time around contact with the Father is that she may be re-traumatised by those visits; is that right?---Yes.
Now, if it’s accepted by the Court that the Mother is suffering from PTSD, would you – is it your opinion that in order for the Mother’s mental health to improve, no contact would be ideal---?---It could---
----with the Father? Sorry. No contact with the Father would be ideal?---It – it could be an option to be – to consider.
98.The Mother’s counsel questioned the family report writer as to the voicemail message sent by the Father to the Mother 5 April 2018. The following evidence was given:
So you would know, then, that the Father left a voicemail that said:
Surprise, surprise. Ignoring me again, are you? If I have to come down this weekend there will be hell to pay. I wasn’t going to come down this weekend, but now I am. Fucking get ready.
Is that what you know of that?---Yes.
Now, yesterday the Father was cross-examined about this voicemail, and he accepted that he ought not to have put swearing in there. However, he did not accept that it was a threatening voicemail. Does that suggest to you that the Father lacks insight? ---Could do.
In your opinion, is a message of that nature more indicative of coercive control violence rather that conflict-instigated violence? ---If the message was with the purpose of threatening, or intimidating or using a power dynamic, then it would be more likely to fit within the coercive, controlling family violence dynamic.
99.The family report writer was questioned by the Mother’s counsel as to the Father’s evidence stating that he did not have a problem with anger, and the following evidence was given:
Now, the Father yesterday in cross-examination said that he did not have a problem with anger. And when it was suggested to him that perhaps he could attend an anger-management course, he rejected that proposal on the basis that to do so would be to admit that he had an anger-management problem. Does this suggest to you that the Father is unlikely to change his behaviour?---If there’s information or evidence before the Court that suggests that anger is a problem for Mr Callihan and he is unable to acknowledge and accept that, then it might indicate that – that he’s not open to change.
…..
If you assume the Mother’s evidence relating to the Father’s anger and frustration exhibited towards the Mother by the Father and the children is correct, and if you assume the separation between the parties was on about 30 April 2018, and if you assume that the supervised time during a recent duration has not involved the Father exhibiting any anger towards the children in that supervised time, is, nevertheless, or not the Father’s previous anger and frustration exhibited towards the Mother and children, on the assumption I’ve given you, still pertinent?---Yes.
….
Ms J, could you just give a reason why you say that?---Certainly. So the first thing that comes to mind is if he has behaved in a manner as described by Ms Callihan – if – if we accept that, the first issue is the lack of acknowledgement or taking responsibility for that. Secondary to that is, then, because he’s able to sustain interacting with the children in a limited, controlled setting – doesn’t necessarily equate to him not becoming angry, or frustrated or behaving negatively towards the children on an unsupervised or longer period of time.
100.The Mother’s counsel questioned the family report writer in relation to the effect upon the Mother of the children having contact with the Father, and this evidence was given:
And given the Mother’s descriptions of her physical reactions to the thought of coming into contact with the Father and the thought of the children having contact with the Father, in your opinion is the Mother’s mental health likely to improve if she must bring the children into contact with the Father?---It’s possible that her mental health will be negatively impacted by having to do that.
101.The Mother’s counsel questioned the family report writer as to the Mother potentially supporting the children through any grief or loss experienced in not spending time with the Father. The Following evidence was given:
Now, you talked about the adverse impacts on the children if they have no contact with their Father, and I think you spoke about in the short term there would be grief and loss, and you also spoke about the ongoing problems might manifest in relationship issues – other problems that they have – but what you also said was that the later issues will depend, to some extent or largely, to the support that those children receive; is that right?---Yes.
So in your assessment, given what you know of the Mother’s engagement with parenting courses – that she sought psychological support – what is your opinion of the Mother’s capacity to support the children through that grief and loss?---I think Ms Callihan, based on the information that I have available, presents as quite child-focused in her approach to parenting. It seems like she has engaged support when required, and from the information provided by the professionals working with the family it seems like she’s following their directions as instructed.
And so with that in mind, is that what you would like to see from a parent who is supporting a child through grief and loss?---Yes.
102.The Court accepts the evidence of the family report writer.
Relevant legal principles
103.Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
104.The objects 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.
105.In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
106.Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
107.The primary considerations under s60CC(2) are the benefit to the child of having a meaningful relationship with both of the child’s parents (the meaningful relationship primary consideration), and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence (the need to protect primary consideration). Greater weight is to be given to the need to protect the child from the relevant harm.
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
108.The Mother has been the primary carer of the children from birth to date. During the parties’ relationship, the Father assisted the Mother with the care of the children to a limited extent and the Court accepts the Mother’s evidence in this context.
109.The children have a meaningful relationship with the Mother and will benefit from a continuance of those relationships.
110.The Father spent no time with the children from 6 April 2018 to 15 December 2018. Thereafter, throughout 2019, and continuing up to the final hearing, he spent supervised time with the children for some 2 hours each fortnight.
111.The child X has probably experienced an estrangement in his relationship with the Father, having experienced and witnessed family violence at the instance of the Father, and having not spent time with the Father for a significant period post separation until the commencement of supervised time. For example, X presented as resistant to a relationship with the Father at the family report observation. Further, for example, on 8 February 2020, at a supervised visit, X was non-responsive following the Father telling him that he had missed him. X nevertheless appears to have enjoyed spending supervised time with his sister and the Father over the course of the supervised visits. And there would appear to be some positive aspects to his present relationship with the Father, including an ability to have close physical contact with the Father and to verbally engage positively with the Father (for example, at the observation session between the child and the Father at the family report interviews).
112.Y, aged 3 years, has also enjoyed spending supervised time with the Father, and, according to the family report writer, she appears to have an “established relationship” with each parent. In this context, the Court observes that this child, like X, spent no time with the Father from separation on about early April 2018 to mid-December 2018; by mid-December 2018 Y was aged only one year, nine months. And further, Y thereafter only spent supervised time (usually fortnightly but on occasions less frequently) with the Father from mid-December 2018, through to the final hearing in mid-March 2020. In other words, Y’s relationship with the Father has probably been significantly established through the confines of supervised time with the Father, and she would not have experienced spending time with and being cared for by the Father in unsupervised settings where she would have been provided with a more realistic experience of the Father. Nevertheless, Y would appear to have a positive relationship with the Father.
113.The Mother supports the children having a relationship with the Father provided it is safe for them for that to occur.
114.The Court refers to its discussion below under the need to protect primary consideration, in relation to supervised time between the children and the Father.
115.Should the children spend supervised time with the Father for one period of 2 hours each 3 months, there is a reasonable prospect that the children can at least maintain their current relationships with the Father.
116.Should the Father decide to meaningfully address the issues discussed below, under the need to protect primary consideration and under the additional consideration in s60CC(3)(m), including, inter alia, developing insight into his perpetration of family violence, and anger management, the continuation of supervised time with the Father may well enable the children, prospectively, to proceed to develop a more meaningful relationship with the Father in a more timely fashion than would otherwise be the case.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
117.It is important to observe, in relation to the discussion below under this need to protect primary consideration, that under section 60CC (2A) of the Act, the need to protect primary consideration is to be given greater weight than the meaningful relationship primary consideration.
a) Unsupervised time?
118.There is an unacceptable risk of physical and/or psychological harm posed to the children, in particular X, should they spend unsupervised time with the Father. Similarly, there will be an unacceptable risk of such harm posed to the children if they were to live with the Father.
119.The Court refers to its previous findings in these Reasons relating to family violence perpetrated by the Father against the Mother and the children, in particular X. The Court finds that the Father’s threatening and abusive behaviour towards the Mother constituted coercive and controlling family violence.
120.Again, the Father, during the relationship, exhibited anger (including by yelling and throwing items, and road rage) and frustration towards the Mother and the children, in particular X, as well as towards third parties. The Father exhibited anger in the presence of the Mother and the children, including whilst driving. The Court has accepted the Mother’s evidence in this context.
121.The Court should state at this point that, contrary to the submission of the Father, the Mother asserted that the Father exhibited anger and frustration, as referred to above, within certain family contexts, and did not seek to assert that the Father was an angry man per se, and nor did she seek to assert that the Father was a chronically angry man.
122.The Father, during the parties’ relationship, struggled to maintain his emotions, and was prone to suffer emotional dysregulation, when, inter alia, seeking to parent or discipline X, and/or when resolving disagreements with the Mother. The Father’s emotional dysregulation resulted in significant anger, frustration, verbal abuse, excessive physical discipline and physical violence being perpetrated against the Mother and X, and such family violence had occurred in the presence of Y.
123.The Court finds that the Father lacks insight into his past family violence and antisocial behaviour (including his exhibited anger and frustration) exhibited towards the Mother and the children, in particular X.
124.Despite the children having enjoyed their supervised time with the Father, again, for some two hours each fortnight, including the Father not exhibiting anger or displaying anti-social behaviour towards any of the children during such supervised time, the Court has no confidence that the Father will be able to effectively and safely parent the children in a child focused manner if spending unsupervised time with them. The Court observes that the above supervised time was usually spent over a limited period of two hours each fortnight and it was supervised.
125.Should the Father spend unsupervised time with the children, there is a significant risk that the Father will exercise excessive physical discipline upon the children and verbally abuse them, in particular X, who has significant emotional and behavioural difficulties, with consequential detrimental effects upon their physical and emotional well-being.
126.Further, should the Father spend unsupervised time with the children, there is a significant risk that the Mother will experience increasing stress and anxiety in relation to the care and safety of the children, with a consequential adverse impact upon her parenting capacity.
127.The Father’s proposal that the children live with him is not child focused, observing that the Mother has been the children’s primary carer from birth to date. In this context, the Father lacks insight as to the likely detrimental emotional effect upon the children were they to be taken out of the Mother’s primary care.
128.In reaching the Court’s above views, in relation to there being an unacceptable risk of harm posed to the children in spending unsupervised time with the Father, the Court has not overlooked the Father completed the Circle of Security and Magic 1 2 3 parenting courses. In this context, again, the Court refers to its finding that the Father lacks insight into his past family violence and antisocial behaviour exhibited towards the Mother and the children, in particular X.
b) Supervised time?
129.The Court refers to its discussion above under the meaningful relationship primary consideration. Again, should the children spend supervised time with the Father for one period of 2 hours each 3 months, there is a reasonable prospect that the children can at least maintain their current relationships with the Father.
130.The Court is of the view that should there be ordered supervised time on a more extensive basis than one period of two hours each three months (for example, such as is proposed by the ICL, namely supervised time each month) there is a significant prospect that the Mother will continue to experience significant anxiety and stress, will need to continue to obtain psychological treatment, and may well experience a reduction in her parenting capacity.
131.And further, there is a significant prospect that the child X, in such circumstances, will continue to experience an exacerbation of his emotional and behavioural difficulties.
132.In the current context of the children spending fortnightly supervised time with the Father, again, whilst the child X appears to have enjoyed his supervised time with the Father, he nevertheless remains resistant to further developing his relationship with the Father, he has exhibited adverse behaviour on his return to the Mother’s primary care following spending supervised visits with the Father, and he recalls having experienced family violence at the instance of the Father. And he has expressed to his treating psychologist on 2 December 2019 feeling scared in seeing the Father at the supervised visits. X has been diagnosed with PTSD.
133.The Mother, for her part, continues to experience anxiety and stress triggered by her fear of harm to herself and/or the children from the Father arising out of the previously discussed family violence. She continues to experience anxiety and stress in facilitating the children spending supervised time with the Father even having regularly engaged in psychological treatment. The Mother has been diagnosed with PTSD, and the Court refers to its discussion of the evidence in that regard.
134.The Court is of the view that should the children spend supervised time with the Father for one period of two hours each three months, being a significant reduction from the present regime of supervised time every fortnight, there is a significant prospect that the Mother’s anxiety and stress will be lessened reducing the risk that her parenting capacity may become impaired. And there is a significant prospect, in these circumstances, that the children, in particular X, will not experience significant emotional harm or adverse affect upon their behaviour.
135.The evidence of the family report writer is consistent with the Court’s views expressed above.
c) The Mother’s parenting capacity:
136.The Court refers to its discussions immediately above.
137.The Court is of the view that the Mother has been and continues to be a child focussed parent to the children despite her anxiety related symptoms arising out of her experience of having been subjected to family violence by the Father and having witnessed the children being subjected to such violence by the Father. The Mother has managed to be such a parent to the children having insight in relation to her mental health issues (stress and anxiety), and having sought and obtained mental health treatment.
138.The Court finds that the Mother is a thoughtful and effective parent to the children and is coping with her parenting of them.The Court has not overlooked that on occasions in the past the Mother has experienced difficulties parenting the children. She admitted to instances of parenting that were inappropriate. The Court finds that the Mother has conscientiously developed strategies to effectively parent X who has significant emotional and behavioural problems; the Mother’s oral evidence in this context was impressive.
d) Alienating conduct by the Mother?
139.The Court does not accept that the Mother, post separation, has deliberately sought to alienate the children, or any one of them, from the Father. The Court finds that the Mother, inter alia, in not previously facilitating the children spending time with the Father, had sought to act protectively towards the children in circumstances where she and the children experienced, in particular, significant family violence perpetrated by the Father. The Court accepts the Mother’s evidence that on occasions when X did not want to spend supervised time with the Father, the Mother encouraged this child to attend the supervised visits.
140.The evidence of the family report writer is consistent with the Court’s above views under this need to protect primary consideration.
141.The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
142.The child Y is too young to express any relevant view.
143.As to the child X, it would appear that he has not stated any clear, express view as to spending time with the Father. In any event, even if he had, the Court, consistent with the evidence of the family report writer, would not place any significant weight upon such views.
144.Nevertheless, the Court would assess that this child’s apparent resistance in developing his relationship with the Father, his adverse behaviour on his return to the Mother’s primary care following spending fortnightly supervised visits with the Father (the Court refers to the Mother’s evidence in this context), his statements to his treating psychologist on 2 December 2019 as to having been hit by the Father and feeling scared in seeing the Father at the supervised visits, are consistent with a lived experience of being subjected to family violence at the instance of the Father.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
145.The Court refers to its discussion above under the meaningful relationship primary consideration.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
146.The parents appear to have taken such opportunities.
(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
147.Both parties appear to have contributed towards the financial maintenance of the children, consistent with their financial resources, during the relationship. Post separation, the Father has paid child support, albeit that at times the Father has been in arrears.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
148.The Court refers to its discussions above under the primary considerations.
(e) The practical difficulty and expense of a child spending time with and communicating with the 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
149.The Court recognises that the Mother and children live in Sydney’s Region V, and the Father resides near City H. Practically, the Father has been able to maintain supervised visits for an extensive time in these circumstances.
(f) The capacity of:
(i) each of 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, including emotional and intellectual needs
150.The Mother has such capacities.
151.The Father probably has the capacity to provide for the children’s intellectual needs. As to the Father’s ability to provide for the children’s emotional needs, the Court refers to its discussions above under the primary considerations, including in relation to the Father’s perpetration of family violence. In this context, the Court also refers to the family report writer’s observations and comments in relation to the Father’s inappropriate verbal response to the child X’s statement to the Father that he did not love him, at the family report interviews.
(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
152.The Court refers to its discussions above under the primary considerations.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
153.Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
154.The Mother has demonstrated appropriate attitudes.
155.As to the Father, the Court refers to its discussions above, in particular under the need to protect primary consideration.
(j) Any family violence involving the child or a member of the child's family
156.The Court refers to its discussion above under the meaningful relationship and need to protect primary considerations.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter
157.On 6 April 2018, a provisional ADVO was made against the Father for the protection of the Mother. On 9 April 2018, a final order, ADVO, was made against the Father for the protection of the Mother, with the order to expire on 5 April 2020. The Court refers to the evidence, previously discussed, in this context.
(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
158.The primary final parenting orders sought by the Mother, in the alternative, would probably be least likely to lead to the institution of further proceedings in relation to the children. The Court refers to its discussions above under the primary considerations.
m) Any other fact or circumstance that the Court thinks is relevant
159.The Court refers to its discussions above under the primary considerations.
160.The Court recognises that it is proposing a significant reduction in the Father’s supervised time with the children. The Court has not overlooked the evidence of the family report writer to the effect that long-term supervised time may not provide the children with a realistic experience of the parent with whom they are having supervised time, subject to how the parents manage such time.
161.The Court is aware of legal authority relating to the permanent imposition of supervision; see, for example, Betros & Betros [2017] FamCAFC 90, and the authorities referred to in paragraph 13 of that decision.
162.In view of the risk issues pertaining to the children and Mother in this case, as discussed above under the need to protect primary consideration, and in circumstances where the Father, inter alia, lacks insight and remains unremorseful for his past family violence, and remains unrehabilitated in this context, supervision should remain indefinitely. Again, as discussed under the meaningful relationship primary consideration, there is benefit to the children in continuing supervised time.
163.The family report writer referred to steps the Father could take to assist him in developing a better understanding of the children’s emotional well-being. The family report writer referred to the assistance the Father might receive if he undertook and complete a men’s behaviour change program, if the Court was to find that the Father had perpetrated family violence of the coercive controlling type, particularly if he was to admit such found family violence perpetrated by him. Without being prescriptive, the Court would expect the Father to have at least addressed such suggestions of the family report writer in the event that he was to prospectively seek fresh parenting orders in relation to the children.
164.In addition to the Court’s proposed supervised time as discussed above under the meaningful relationship primary consideration, it will be in the best interests of the children that the Father be permitted and authorised to forward to the children any presents, cards, photographs or letters in respect to any special occasions such as the children’s birthdays, Christmas, or any other occasions of special significance to the children.
165.The ICL seeks orders that the Mother continue to attend on her counsellor/therapist, and that “The Mother’s counsellor shall address in the Mother’s counselling and therapy the issue of the children’s relationship with the Father and the possibility of the children’s time with the Father being extended and/or increased in the future to include the possibility of unsupervised time.” It will not be in the best interests of the children to make such orders.
166.With due respect to the ICL, his above proposed orders and associated submissions do not address the Father’s need to address his own past family violence perpetrated against the family through insight, treatment, and reformation; such need of the Father cannot be addressed through the Mother’s own counselling and therapy.
Parental responsibility
167.It will be in the best interests of the children that the Mother have sole parental responsibility for the children. The Mother remains fearful of the Father and there is justification for that fear by reason of past family violence perpetrated by the Father against the Mother and the children, in particular X. She continues to experience anxiety and stress in facilitating supervised time between the children and the Father. The Mother does not trust the Father. There is no functional co-parenting relationship between the parties. The Mother has been making major decisions for the children post separation. There is no satisfactory communication between the parties. They have not communicated with each other for a considerable time. Should the Mother be required to reach agreement with the Father, in a timely fashion, relating to major decisions affecting the children, there is a real risk that conflict will occur between the parties, with associated detriment to the children. And further, there is a real risk that the Mother’s fear of, and anxiety and stress in relation to, the Father may be exacerbated with resultant adverse effects upon her parenting capacity. The evidence of the family report writer is consistent with the above views relating to parental responsibility.
168.In circumstances where the Mother has sole parental responsibility for the children, where the children will live with her and spend supervised time with the Father, and in any event where there is no significant evidence that the Mother will leave Australia with the children and not return to Australia in a timely fashion, it will be in the best interests of the children that the Court make the Mother’s proposed orders in relation to obtaining passports for the children, and in relation to authorising the Mother to remove the children from Australia for the purposes of travel at her discretion.
Summary
169.Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
(1)That the Mother have sole parental responsibility for the children X born in 2014 and Y born in 2017 (the children).
(2)That the children live with the Mother.
(3)That the children spend time with the Father supervised by Suburb B Children’s Contact Service, or such other supervision service as agreed to by the parents in writing, for one period of 2 hours each 3 months.
(4)That the Father be permitted and authorised to forward to the children any presents, cards, photographs or letters in respect to any special occasions such as the children’s birthdays, Christmas, or any other occasions of special significance to the children.
(5)That pursuant to section 65Y of the Family Law Act 1975 (Cth), the Mother shall be authorised and entitled to remove the children from the Commonwealth of Australia for the purpose of travel at her discretion.
(6)It is noted that Order 1 vests in the Mother sole parental responsibly for the purposes of the Australian Passports Act 2005 (Cth) such that the Mother is accordingly authorised to obtain any passport or travel document required to facilitate the children travelling overseas without first notifying or obtaining the consent of the Father.
Property
170.The Husband sought final property orders, as set out in his Amended Initiating Application filed 26 February 2020, inter alia that the Wife transfer all her interest in the property at C Street, Suburb D, NSW, to the Husband, with the Husband to indemnify the Wife of all liabilities relating to that property. Otherwise, he sought orders that each party be declared the owner of any property presently possessed by either of them or held in their respective names.
171.The Wife sought final property orders, as set out in her Amended Response filed 17 February 2020, that the property at C Street, Suburb D be sold, with the net proceeds of sale to be divided as to 65% to the Wife, and the remainder to the Husband. She sought orders that the Husband transfer to her his interest in a Motor Vehicle 1, and that the Husband return a Motor Vehicle 2 to Ms N. She sought an order that she transfer to the Husband her interest in the F Shares. Otherwise she sought orders that each party be declared the owner of any property presently possessed by either of them or held in their respective names.
Evidence
172.The Court refers to its discussions below under headings “Contributions”, and “Section 75(2)”.
Legal principles
173.In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281. The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.
282. The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283. Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284. There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285. In many cases this requirement is readily satisfied where the parties are no longer in a marital or defacto relationship and, thus, for example, the common ownership or use of property by Husband and Wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286. In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the Wife seeks an order for adjustment of property and the Husband contends that there should be no such adjustment.
287. It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288. In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties present property rights without a consideration of s 79 (4) matters.
289. Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290. The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
174.The parties’ agreed balance sheet was as follows:
| Balance Sheet Note: This document can be sent by electronic means between the parties prior to it being filed at court. | a) | Name | CALLIHAN & CALLIHAN | |
| File No | PAC2106/2018 | |||
| Date | Time am/pm | |||
| Before | JUDGE NEWBRUN | |||
ASSETS
Ownership Description Wife/de facto partner's value Husband/de facto partner's value 1 Joint C Street, Suburb D NSW 320,000 255,000 2 Husband Motor Vehicle 3 21,000 E 19,000 3 Husband Household Contents for Husband E 5,000 E 3,000 4 Joint Motor Vehicle 1 E 17,000 E 20,000 5 Wife NAB Bank Account ...68 1,130 6 Wife NAB ISaver account – ...59 Nil 7 Wife Motor Vehicle 2 E 1,300 8 Wife Household Contents in wife's home E 5,000 9 Joint F Shares Nominal E 24,000 10 Husband NAB Account ...46 unknown E 7,000 11 Husband UK Bank Account Unknown 12 Husband UK Bank Account Saver Unknown Total $ 370,430 $ 328,000
| ADDBACKS | |||||||
| Ownership | Description | Wife/de facto partner's value | Husband/de facto partner's value | ||||
| 13 | |||||||
| 14 | |||||||
| Total | $ 0 | $ 0 | |||||
| LIABILITIES | |||||||
| Ownership | Description | Wife/de facto partner's value | Husband/de facto partner's value | ||||
| 15 | Joint | C Street, Suburb D NSW | E 195,872 | E 190,000 | |||
| 16 | Husband | Car Loan for Motor Vehicle 3 | Unknown | E 21,000 | |||
| 17 | Wife | Personal Loan to Ms N | 4,000 | ||||
| 18 | Joint | Loan to Ms W | Unknown | 50,000 | |||
| 19 | Husband | Loan to Z Finance | Unknown | E 35,000 | |||
| Total | $ 199,872 | $ 296,000 | |||||
| SUPERANNUATION | ||||||||
| Member | Name of Fund | Type of Interest | Wife/de facto partner's value | Husband/de facto partner's value | ||||
| 20 | Husband | Super Fund AA | Accumulation Interest | E27,000 | 27,000 | |||
| 21 | Wife | Super Fund BB | Accumulation Interest | 116,391 | ||||
| 22 | Husband | UK Pension fund | Unknown | |||||
| Total | $ 143,391 | $ 27,000 | ||||||
175.As to item 1, the value of the property at Suburb D, in cross examination, the Father ultimately accepted the valuation of this property at $320,000, having been shown the joint valuation document which he stated was the valuation “I was ordered to do”. In the balance sheet, Exhibit F, page 2, there is reference to the “Joint Property Valuation Report obtained 23.7.2019”. The figure of $320,000 shall go into the balance sheet.
176.As to item 2 in the balance sheet, the Husband’s Motor Vehicle 3, with the Wife asserting a value of $21,000 and the Husband asserting an estimated value of $19,000 there is no significant evidence as to when in 2018 this car was purchased by the Husband, noting the parties separated on about 30 March 2018. The associated liability for this car in item 16 is $21,000 as asserted by the Husband in his Financial Statement. Accordingly, there being no significant evidence that this car was purchased by the Husband with funds arising out of the relationship, and in any event noting the asserted accompanying liability for the car, both items shall be removed from the balance sheet.
177.As to item 3 in the balance sheet, the Husband’s $3,000 figure for his household contents shall go into the balance sheet, again as an admission against interest by the Husband, there otherwise being no evidence of value.
178.As to item 4 in the balance sheet, the jointly owned Motor Vehicle 1, the Court will adopt a midway value for this car, $18,500, noting that the Wife’s estimate is $17,000 and the Husband’s estimate is $20,000, in the absence of evidence otherwise.
179.As to item 5 in the balance sheet, the sum of $1,130 in the Wife’s NAB account ...68, the Court observes from paragraph 184 of the Wife’s trial Affidavit that there were numerous transfers of funds from the Husband’s UK account to this account, albeit that there were subsequent transfers out of the NAB account. The Wife makes no submission that the item 5 sum did not arise out of the parties’ relationship, and it will remain in the balance sheet.
180.As to item 7 in the balance sheet, the Motor Vehicle 2, E$1,300, the Court has considered the Wife’s evidence in relation to this car and the Husband’s oral evidence. On the balance of probabilities, the Court accepts the Husband’s oral evidence and finds that this car was not collected by the Wife from the Husband, and that he placed the car outside his house, and it was later removed. The Wife’s evidence relating to the E-tag use and registration change of the car is consistent with a third-party using the car. The Court is unable to find that the Husband was in breach of the orders made by the Court at the conciliation conference on 28 March 2019 for the Husband to make the keys for this car available to the Wife within seven days. Item 7 shall be removed from the balance sheet.
181.As to item 10 in the balance sheet, the Husband’s NAB account ...46, $7,000, paragraph 184 of the Wife’s trial Affidavit refers to a transfer by the Wife of the parties’ Australian savings of $15,000 into this account on about 11 March 2018. The Husband makes no submission that the item 10 sum did not arise out of the parties’ relationship, and it will remain in the balance sheet.
182.As to item 15 in the balance sheet, the mortgage loan balance, the Wife’s Financial Statement refers to a sum certain for this liability, namely her 50% share of this liability, $97,936, which figure when doubled totals $195,872, being the Wife’s asserted figure for this liability. On the other hand, the Husband’s figure of $190,000 for this liability is merely an estimate (“E”) in his Financial Statement. The Wife’s figure of $195,872 shall remain in the balance sheet.
183.As to item 17 on the balance sheet, the Wife’s asserted personal loan from her Mother in the sum of $4,000, shall remain in the balance sheet, the Court accepting the Wife’s evidence that the said sum was borrowed to pay off a credit card debt in existence at the time of the parties’ separation. No submission was made by the Husband to the contrary.
184.As to item 18 being the asserted loan from the Paternal Grandmother in the sum of $50,000, although the Husband stated in cross-examination that he did not rely on the Affidavit of the Paternal Grandmother, the Wife conceded in her written submissions that this sum should be treated as a contribution of the Husband; accordingly, such item will be removed from the balance sheet, and the Court shall treat the said sum as a financial contribution of the Husband.
185.As to item 19 in the balance sheet, the Husband’s asserted loan from “Z Finance” in the sum of $35,000, he asserts in paragraph 140 of his trial affidavit that one of the parties’ joint liabilities is a loan for home improvements to “CC Finance” in the sum of $35,000, which sum corresponds to the sum in item 19. His Financial Statement asserts a loan from “Z Finance” in the sum of $35,000. However, he then states in paragraph 142 that he raised a loan for home improvement but in the lesser sum of $20,000. There was no significant cross-examination of the Husband on this issue. The Husband’s asserted loan to Z Finance in the sum of $35,000 shall be replaced by the figure of $20,000 in the balance sheet.
186.Accordingly, the final balance sheet should be as follows:
| Balance Sheet Note: This document can be sent by electronic means between the parties prior to it being filed at court. | b) | Name | CALLIHAN & CALLIHAN | |
| File No | PAC2106/2018 | |||
| Date | Time am/pm | |||
| Before | JUDGE NEWBRUN | |||
ASSETS
Ownership Description Wife/de facto partner's value Husband/de facto partner's value 1 Joint C Street, Suburb D NSW 320,000 2 Husband Household Contents for Husband E 3,000 3 Joint Motor Vehicle 1 $18,500 4 Wife NAB Bank Account ...68 1,130 5 Wife Household Contents in wife's home E 5,000 6 Joint F Shares E 24,000 7 Husband NAB Account ...46 E 7,000 Total $378,630
| ADDBACKS | |||||||
| Ownership | Description | Wife/de facto partner's value | Husband/de facto partner's value | ||||
| 8 | |||||||
| 9 | |||||||
| Total | $ 0 | $ 0 | |||||
| LIABILITIES | |||||||
| Ownership | Description | Wife/de facto partner's value | Husband/de facto partner's value | ||||
| 10 | Joint | C Street, Suburb D NSW | E 195,872 | ||||
| 11 | Wife | Personal Loan to Ms N | 4,000 | ||||
| 12 | Husband | Loan to Z Finance | $20,000 | ||||
| Total | $ 219,872 | ||||||
| SUPERANNUATION | ||||||||
| Member | Name of Fund | Type of Interest | Wife/de facto partner's value | Husband/de facto partner's value | ||||
| 13 | Husband | Super Fund AA | Accumulation Interest | E27,000 | 27,000 | |||
| 14 | Wife | Super Fund BB | Accumulation Interest | 116,391 | ||||
| Total | $ 143,391 | |||||||
187.From the above, it can be seen that the parties’ non-superannuation assets are $378,630. Liabilities are $219,872. Accordingly the net non- superannuation assets are $158,758. The parties’ total superannuation assets are $143,391. The total of net non-superannuation assets plus superannuation of the parties is $302,149.
Section 79(2) of the Act
188.The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
Contributions
189.In circumstances where the parties’ contributions to non-superannuation assets and superannuation assets can be seen to be quite separate, a two pool approach is appropriate to adopt.
Contributions: Pool A: non-superannuation assets
190.The parties’ relationship was for about 4.5 years, a relatively short relationship.
191.At commencement of cohabitation, the Wife had a 30% share in a Motor Vehicle 2 registered in her Mother’s name in Australia, and about $5,000 in her bank account.
192.At commencement of cohabitation, the Husband owned two cars and a motorbike in the UK which he later sold. He used the sale proceeds to finance the parties’ living costs for 5 months from 2014. The Husband also had an interest, with the Paternal Grandmother, in a property in City Q, UK.
193.The Husband commenced working full-time in Australia from about 2015 doing contract work. He was the sole income earner. His income was used for family expenses. His income was paid into the Wife’s bank account, and the Husband would receive an allowance. Also paid into the Wife’s bank account was her Centrelink benefits.
194.Since arriving in Australia in 2014, the Wife has not worked in paid employment. The Wife, during the parties’ relationship, was the primary homemaker and parent, and her contributions in this regard during the relationship were significantly superior to those of the Husband. Post separation to date, the Wife has been the sole carer of the children. These contributions of the Wife were contributions of substance.
195.The property was sold in about 2016. Net sale proceeds of about £108,000 were paid into the Husband’s bank account in about 2016. In due course, from remaining funds of about £98,000, the parties caused to be paid various sums for the family’s needs, including the purchase of vehicles, the repayment of a bank debt owed in respect to the parties’ F Shares, towards the purchase price of the property at C Street, Suburb D in about late 2017 ($50,000), referred to below, and for later renovations to that property. These financial contributions of the Husband from the above proceeds of sale of the City Q, UK property were contributions of substance.
196.The property at C Street, Suburb D in about late 2017 was purchased for about $255,000 in the joint names of the parties. The parties raised a mortgage for the balance of the purchase price in the sum of about $205,000.
197.The property at C Street, Suburb D was not in an appropriate condition to be lived in with the children at the time of purchase. After the parties signed a contract for the purchase of the property in October 2017, the Husband opted to transfer his job to City H so that he could have more time to renovate the property when he wasn’t working. When the purchase settled in November 2017, the Husband moved into the property and the children and the Wife remained living in Sydney. The Husband would travel down to Sydney on days off or on the weekend. After final separation in March 2018, the Husband returned to the property and has remained living there since about that time.
198.Following the purchase of the property at C Street, Suburb D, the Husband has personally attended to renovating this property, although there is no expert or other evidence quantifying his labour.
199.The Husband spent $60,000 from his earnings acquired post separation on materials for the renovations, however, the Wife was caring for the children which enabled the Husband to earn this income.
200.The Husband raised a loan of $20,000 for home improvement to that property, which loan has been taken into account in the balance sheet. In any event, the Wife was caring for the children which likely enabled the Husband to earn income to meet the loan repayments for this loan.
201.The Court observes that the mortgage loan, originally taken out for $205,000, has a balance at trial date of $195,872.
202.For the period from November 2017 to March 2018, the mortgage loan repayments for the property at C Street, Suburb D (about $985 per month) was serviced from a bank account into which the Father’s wages ($2,800 per fortnight) and the Mother’s Centrelink payments ($550 per fortnight) were paid. Since April 2018 the Husband has made the mortgage repayments and again, he has had the benefit of living in the property since that time.
203.The Wife rents premises in Suburb G for $287 per week.
204.Throughout the relationship, the parties each received gifts and accommodation assistance from their respective family members.
205.The Husband made no express contention as to what percentage figure should be ascribed to his contributions to trial date.
206.The Wife contended that her contributions should be assessed at about 50%.
207.Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to the net non-superannuation assets ($158,758) as at trial date to be 70% to the Husband and 30% to the Wife. That results in a disparity of about $63,503 in favour of the Husband.
Section 75(2): Pool A
208.The Husband is in reasonable health. He works in full time employment with Employer U in City H.
209.The Wife’s physical health is reasonable, however, she does suffer anxiety related symptoms and obtains treatment accordingly (the Court refers to its discussion of the Mother’s mental health previously in these Reasons).
210.Pursuant to this Court’s Reasons relating to parenting, the Wife will have the primary care of the children, with the Husband spending supervised time with them. The youngest child is aged only three years, and the eldest child is 5 ½ years.
211.The net non-superannuation assets are modest in the sum of $158,758.
212.The Husband has been paying child support, and as at February 2020, was in arrears by about $1,329. The Husband has been in arrears with child support payments as asserted by the Wife on occasions between 21 November 2018 and up to 17 February 2020.
213.The Husband works in full-time employment as a factory worker for Employer U. In his Financial Statement he states that his gross weekly wage is $1,500.
214.The Wife is presently a full-time carer of the children. She resides in rented premises with the children. The child X requires particularly significant parental care by reason of his emotional and behavioural difficulties. The Wife incurs certain out-of-pocket expenses in relation to X’s care. Her Financial Statement states that she receives $675 per week in government benefits and $167 per week in child support; a total of $842 per week.
215.Whilst the Wife has certain qualifications related to the customer service industry, she has not worked in that industry since 2014 and she lacks self-confidence. Particularly in view of the parental needs of X, and taking into account the Mother’s experience of anxiety related symptoms, albeit that she is seeking treatment in relation thereto, there is a significant prospect that the Wife will not be in a position to enter the workforce at least until the youngest child Y commences primary school. Should she enter the workforce she will have to contend with the children’s care. And further, taking into account those above matters, the Court would assess that there is a real risk that the Wife may not enjoy consistent employment in any event.
216.The Court would assess that the Husband’s earning capacity is greater than the Wife’s earning capacity.
217.The Wife has a superannuation entitlement of $116,391, compared to the Husband’s entitlement of about $27,000. However the Wife is only aged 35 years. The Husband is aged 51 years.
218.The Wife made certain submissions in relation to contended financial nondisclosure by the Husband, including in relation to a bank account, a contended UK pension entitlement of the Husband, and an asserted loan from Z Finance. The Court is not persuaded that there has been material financial nondisclosure by the Husband. Ultimately, there was scant evidential material before the Court in this context.
219.As to the prospective UK pension entitlement of the Husband, the Court takes into account that, based upon the oral evidence of the Husband, the Husband may obtain a state pension from the UK government when he reaches 65 years. The Husband asserted that his Mother presently obtains a UK state pension in the sum of £150 per week, which the Court takes into account in this context. Again, the Husband’s age is presently 51 years.
220.The Husband made no express contention relating to s75(2).
221.The Wife, in final submissions to the Court, contended for a significant s75(2) adjustment.
222.Taking into account the above matters, there should be an adjustment in favour of the Wife of 20%; that 20% represents, in dollar terms, $31,751, by reference to the net non-superannuation assets ($158,758). This adjustment results in an adjusted contributions finding of 50% in favour of the Husband and 50% in favour of the Wife.
Contributions: Pool B: superannuation assets
223.Turning to the parties’ superannuation entitlements, the Husband did not make any relevant contribution to the Wife’s superannuation entitlements, which pre-existed the parties’ relationship.
224.There is a paucity of evidence relating to the accumulation of the Husband’s superannuation of $27,000, and the Court is unable to determine, accordingly, whether the Wife indirectly contributed to such entitlement of the Husband.
Section 75(2): Pool B
225.The Wife’s pre-existing superannuation entitlement is $116,391. The Husband’s superannuation entitlement is only $27,000. The Court observes that neither party sought a splitting order, and each party sought an order enabling each of the parties to retain their own superannuation entitlement. In these circumstances, noting the adjustment in favour the Wife under section 75(2) in Pool A and the factors leading to that adjustment, and also noting the modest superannuation entitlement of the Husband in comparison to the Wife’s, it is not appropriate that there be any adjustment under s75(2) in relation to Pool B.
226.Accordingly, the parties should retain their respective superannuation entitlements.
Justice and equity
227.Pursuant to the Court’s adjusted contribution assessment in relation to the net non-superannuation assets, $158,758, the parties should each receive $79,379.
228.Should the Husband retain:
a)his motor vehicle and the debt associated with it (noting that this asset and associated debt did not enter the balance sheet);
b)his household contents: $3,000;
c)the F Shares: $24,000;
d)his NAB account ending ...46: $7,000;
e)the property at C Street, Suburb D, with associated mortgage debt, net $124,128; and
f)debt to Z Finance: $20,000,
leaving the Husband with net non-superannuation assets (which entered the balance sheet) of $138,128, he will be required to make a cash payment to the Wife of $58,749.
229.The Wife will retain:
a)Motor Vehicle 1: $18,500;
b)NAB account ending ...68: $1,130;
c)her household contents: $5,000;
d)cash payment from Husband, $58,749; and
e)debt to Ms N: $4,000,
leaving the Wife with net non-superannuation assets (which entered the balance sheet) of $79,379, being 50% of the net non-superannuation assets.
230.Each party will retain their superannuation entitlements.
231.In the event that the property at C Street, Suburb D is sold, then the net proceeds of sale of the property shall be divided between the parties as to 50% to the Mother, together with a cash payment to her of $15,185 (see the paragraph immediately below), with the balance remaining to the Father.
232.The Court now summarises its calculations relating to the above sum of $15,185. Assuming that the parties shall each retain the assets presently in their respective names, then the Husband should pay the Wife additionally a cash sum of $15,185. In relation to the net assets in the final balance sheet, apart from the real estate property and associated mortgage debt, (assets totalling $34,630), the wife should at the outset receive 50% of $34,630, being $17,315. Because the wife already holds net $2,130 she should receive a payment of $15,185. Such latter payment to the Wife would result in her holding $17,315 ($2,130 in net assets already held, plus the $15,185), representing 50% of $34,630.
233.Accordingly, in the event that the Husband is able to make the aforesaid cash payment to the wife of $58,749, he will be able to continue to house himself in the property at Suburb D, he will have a car subject to an associated debt, cash of $7,000, the F Shares debt to Z Finance; in these circumstances he will likely be required to borrow funds to make the above cash payment to the Wife. He will retain his present modest superannuation of $27,000, however, such entitlement may increase should he continue to work in full-time employment, noting his present age of 51 years. He may become entitled to a modest UK pension on turning 65 years.
234.The Wife, in the above circumstances, for her part, will retain a car, modest cash at bank, household contents, she will receive a cash payment from the Husband of $58,749 (which can be utilised to pay rent, or, possibly, in due course, assist the Wife with obtaining a loan to purchase a home, but subject to the Wife’s ability to obtain and sustain employment in the future), and will retain her superannuation entitlement presently in the sum of $116,391 but again noting the Wife is only aged 35 years.
235.In the view of the Court, it is not reasonable to delay the finalisation of these property proceedings by reference to what the Husband contends are relevant COVID-19 factors. Neither party adduced relevant evidence in this context. In this context, the Court also refers to the Wife’s anxiety related issues, previously discussed in these Reasons; it is reasonable to determine these property proceedings now without delay so as to minimise the risk of the Wife experiencing any unnecessary exacerbation of her anxiety related issues.
236.The Court is of the view that the Court’s proposed property adjustment Orders will represent a just and equitable property settlement between the parties.
I certify that the preceding two hundred and thirty six (236) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 30 July 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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