CARMICHAEL & LINTON
[2017] FCCA 841
•27 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CARMICHAEL & LINTON | [2017] FCCA 841 |
| Catchwords: FAMILY LAW – Parenting – 3 year old – Father’s capacity – sole parental responsibility – long term supervision – property – de facto – Father’s failure to disclose – findings that Father not a truthful witness – Father’s financial resources – applied two list approach – child support – departure application – financial resources and earning capacity – application for lump sum child support dismissed. |
| Legislation: Child Support (Assessment) Act 1989, ss.3, 4, 99, 114, 116,117, 121, 123, 123A |
| Cases cited: AJO & GRO (2005) FLC 93-218 |
| Applicant: | MS CARMICHAEL |
| Respondent: | MR LINTON |
| File Number: | SYC 7622 of 2014 |
| Judgment of: | Judge Sexton |
| Hearing dates: | 20, 21 and 26, 27 and 28 October 2016 |
| Date of Last Submission: | 28 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms M. Gillies |
| Solicitors for the Applicant: | Uther Webster & Evans |
| Solicitors for the Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Ms K. Reynolds |
| Solicitors for the Independent Children’s Lawyer: | Brian Samuel & Associates |
FINAL ORDERS MADE BY CONSENT ON 28 OCTOBER 2016
The Child X born (omitted) 2013 live with the Mother.
Both parents are restrained from making negative, critical or derogatory comments about the other parent or the other parent’s family to, or in the presence or hearing of the Child, and shall use their best endeavours to ensure no other person does so.
THE COURT ORDERS THAT:
The Mother have sole parental responsibility for X.
X spend supervised time with the Father as follows:
(a)For a period of 2 hours (or up to 3 hours if permitted by the Centre) each week at the Interrelate Contact Centre at (omitted) for as long as the Centre’s services are available.
(b)Thereafter, until X commences school, for a period of 3 hours each week or such shorter time as the supervisor can accommodate, on a day of the week the Mother nominates; and
(c)From the date X commences school, for a period of 3 hours each fortnight, or such shorter time as the supervisor can accommodate, on a weekend day nominated by the Mother.
(d)On Father’s Day from 9 a.m. until midday or such shorter time as the supervisor can accommodate or if at the Centre, on a day as close to Father’s Day as possible.
(e)On the Saturday prior to Christmas Day from 9 a.m. until midday or such shorter time as the supervisor can accommodate.
(f)On or close to X’s birthday for up to 3 hours.
(g)Any other time by agreement between the parties in writing.
X’s time with the Father be supervised by a Contact Centre for as long as permitted by the Contact Centre, and thereafter by an independent agency such as Phoenix Rising or Axia at the Father’s election, or in the alternative, if the parties agree in writing, by a lay supervisor nominated by the Mother.
The parties do all things necessary as may be required by the supervising agency to engage their services, with the Father to make all necessary initial enquiries to facilitate that supervision being provided.
Changeovers occur at a Contact Centre or at a location nominated by the Mother.
The parties share equally the costs of supervision.
The Mother be at liberty to suspend X’s time with the Father up to 4 occasions each year provided that (a) she gives the Father at least 14 days’ notice and (b) the times she nominates do not occur on more than 2 consecutive occasions and (c) Father’s Day is excluded.
In the event the Father suspends contact occasions or fails to attend on time on 4 or more occasions in any one year, X’s time with the Father be reduced to 3 hours every four weeks from the commencement of the month immediately following the 4th occasion.
Whilst X’s time is taking place at a Contact Centre, all communications between the parties, in respect to parenting matters, shall be via a communication book held with that contact centre and otherwise:
(a)Communication in relation to non-urgent issues relating to X shall be via email; and
(b)Communication in relation to urgent issues relating to X shall be via mobile telephone.
The parties notify each other of any change in telephone contact numbers or email addresses, such notification to be made by email and 7 days prior to such change.
The Father be restrained from attending X’s school, day-care or pre-school or extra-curricular events unless he has the written consent of the Mother.
The Father communicate with X by sending letters, cards, photographs and/or gifts to X on the following occasions:
(a)X’s birthday;
(b)Easter; and
(c)Christmas Day
and the Mother will ensure such items are given to X when they are received.
The Mother provide a sealed copy of these orders to the Principal of X’s school or pre-school.
In the event the Father is unable to spend time with X in accordance with these Orders, he give the Mother at least 7 days’ notice that time will not take place.
In the event X would otherwise be spending time with the Father on Mother’s Day, that time be suspended and the parties use their best endeavours to facilitate X spending time with the Father the day before Mother’s Day.
The Mother facilitate communication between the Father and X by telephone, skype or facetime between 6p.m. and 6.30p.m. each Tuesday or on an alternate weekday nominated by the Mother.
The Mother ensure the Father is notified in writing as soon as practicable if:
(a)X is admitted to hospital;
(b)X is involved in a medical emergency; or
(c)X is diagnosed with a serious condition or illness that will require ongoing specialist treatment or care.
The Mother advise the Father of the names and contact details of all X’s treating medical practitioners and specialists and authorise such medical practitioners to give the Father information about X’s treatment.
The Mother notify the Father of any proposed school or pre-school enrolment for X 3 months before making such a decision and shall take into account the Father’s view as to which school X should attend.
This Order authorise any school or preschool X attends from time to time to provide the Father with copies of school reports and newsletters at the Father’s request.
The Mother and Father be restrained from discussing these proceedings in the hearing and/or presence of X.
A copy of the Court’s reasons for judgment be provided to any counsellor the Father may engage for therapy regarding domestic violence or for any other therapy.
Property orders
Within 2 calendar months of the date of these orders, the following occur simultaneously:
(a)The Father pay to the Mother by way of property settlement the sum of $349,245.50.
(b)The parties do all things necessary to discharge the loan secured by way of mortgage on the Property G property;
(c)The Father provide the Mother’s solicitors with a stamped executed Transfer in relation to the property situated at Property G in the State of New South Wales, being the whole of the land contained within Folio Identifier (omitted) (“the Property G property”);
(d)The Mother transfer the whole of her right, title and interest in the former matrimonial home to the Father.
In the event the Father fails to comply with Order 25(a), (b) and (c) by the due date, the parties forthwith do all acts and things and sign all documents necessary to list the Property G property for sale on the following terms and conditions:
(a)Pending the sale of the Property G property, the Father be responsible for, and indemnify the Mother, in relation to all outgoings on the Property G property, including but not limited to, mortgage payments (principal and interest), insurances, rates and levies;
(b)Unless otherwise agreed, the Property G property be listed for sale by private treaty with an agent or agents as agreed by the Respondent and Applicant in writing and failing agreement with an Agent as nominated by the President of the Real Estate Institute of New South Wales or his nominee (“the Agent”);
(c)The listing price of the Property G property shall be as agreed between the parties and if there is no agreement it shall be as recommended by the Agent;
(d)The Mother’s solicitors shall be instructed to act on the sale of the Property G property and provide to the Father such information as he may reasonably require from time to time;
(e)While the Father remains in sole occupation of the Property G property, he do all acts and things necessary to ensure that the Property G property:
(i)Is kept in good order and state of repair;
(ii)Is in a neat and clean condition at all times; and
(iii)Is open for all inspections required by the Agent.
(f)In the event the Property G property does not reach a reserve price at the auction, the parties negotiate with the highest bidders or any such interested persons and effect the sale of the property at a selling price as agreed between the parties, or failing agreement the parties accept the recommendation of the Agent and/or Auctioneer as to the selling price of the property and sell the property at that price provided that the selling price is not less than 90% of the reserve price.
(g)In the event that contracts for sale of the Property G property have not exchanged by or before a date six months from the date of these Orders, then the parties shall, unless otherwise agreed, make all arrangements and do all such acts and sign all such documents necessary to procure a sale by public auction upon the following terms:
(i)The auctioneer shall be as agreed between the parties in writing and failing agreement as nominated by the selling agent;
(ii)The auction shall take place within 7 months of the date of Order;
(iii)The reserve price shall, unless agreed upon between the parties, be as proposed by the Agent;
(iv)The parties equally pay and ben responsible for the payment of all auction expenses payable before the property is auctioned; and
(v)In the event that the Property G property does not reach the reserve price at the auction, the parties shall negotiate with the highest bidders at a selling price as agreed between the parties, or failing agreement, the parties shall accept the recommendation of the Agent and/or Auctioneer as to the selling price of the property and shall sell the property at that price, provided that the selling price is not less than 90% of the reserve price.
(h)In the event the Property G property is not sold by auction or by private negotiation within 14 days of the said auction, the parties do all acts and sign all necessary documents and pay all moneys as necessary to procure a second auction within a further 5 weeks of the date otherwise agreed upon the same terms and conditions as applied to the first auction.
Upon completion of the sale of the Property G property, the proceeds of sale be applied as follows:
(a)To pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the property;
(b)To pay the mortgage balance outstanding to the (omitted);
(c)35% of the balance remaining to the Father;
(d)The sum of $94,054.50 to the Father; and
(e)The balance to the Mother.
Unless otherwise specified, the Mother retain and be declared to be the sole legal and beneficial owner of all her right, title and interest in and to:
(a)The property at Property L in the state of NSW;
(b)All cash at bank and other moneys invested by her;
(c)All shares registered in her name;
(d)All personal effects in her possession;
(e)The motor vehicle in her possession;
(f)Her superannuation entitlements; and
(g)All other personal and real property in her possession, custody or control as at the date of these Orders.
Unless otherwise specified, the Respondent retain and be declared to be the sole legal and beneficial owner of all his right, title and interest in and to:
(a)All cash at bank and other moneys invested by him;
(b)All shares registered in his name;
(c)All personal effects in his possession;
(d)The motor vehicles in his possession;
(e)His superannuation entitlements; and
(f)All other personal and real property in his possession, custody or control as at the date of these Orders.
Each party remain liable for any debts, howsoever arising, in their own name at the date of these Orders and in this respect shall indemnify, keep indemnified and hold harmless the other from any liability in relation thereto.
In the event either party refuses or neglects to comply with any of the Orders herein, the Registrar of this Court at its Sydney Registry be appointed pursuant to section 106A of the Act to execute, in the name of the husband or the wife as the case may be, all deeds and instruments necessary to give effect to the orders herein, or any of them, and do all acts and things necessary to give validity and operation to the said deeds and instruments.
Child Support
Pursuant to section 117 of the Child Support (Assessment) Act1989, there be a departure from the administrative assessment of child support payable by the Father for the Child X born (omitted) 2013 as follows:
(a)For the period 27 April 2017 to 27 October 2021, the Father’s adjusted child support amount be set at $500 per calendar month.
The Mother’s application for lump sum child support be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Carmichael & Linton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7622 of 2014
| MS CARMICHAEL |
Applicant
And
| MR LINTON |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are in dispute over parenting arrangements for their only child, X, property settlement and child support. X was almost 3 years old at the time of hearing.
The parties separated in March 2014 after living together for just under three years. They never married. X has always remained in the care of the Mother. At the time of separation the parties were living in the home they had jointly purchased at Property G. On the day of separation, the Mother and X travelled to her sister’s home in Queensland for a few weeks, before returning to Sydney where they stayed temporarily with the maternal grandparents. The Mother and X then moved to the Mother’s investment unit in (omitted) where they still live. The Father has stayed in the former matrimonial home at Property G, refusing the Mother’s requests for her to live there with X until financial issues were resolved.
Dr A, consultant psychiatrist, prepared an expert report for the Court.[1]
[1] Exhibit 4
The Mother and the Independent Children’s Lawyer were represented by Counsel at the final hearing. The Father was represented in the earlier stages of the litigation, but at the hearing represented himself.
I have addressed parenting issues first in these Reasons. I have then found it convenient, in the particular circumstances of this case, to address the property issues before those related to the Mother’s child support departure application.
Background
The Father is 43 years and the Mother is 42 years of age. They met in approximately (omitted) 2009, and commenced cohabitation in (omitted) 2011. X was born on (omitted) 2013. The parties separated on 27 March 2014 after an incident which resulted in the Father’s conviction for assault against the Mother.
The Mother has a (qualifications omitted). She works three days a week as a (occupation omitted) for (employer omitted). She lives with X in a one bedroom unit she owns at (omitted). The Mother has not re partnered.
The Father says he has not been in the paid workforce since the time the parties commenced cohabitation. He was then employed as a (occupation omitted), but is also a (occupation omitted) and ran his own business as an (occupation omitted) for many years. As noted, he is living in the parties’ former matrimonial home at Property G. He adduces no evidence of any current relationship, but told Dr A he was in another relationship at the time of the assessment.
Litigation history
The Mother commenced proceedings for property settlement on 4 December 2014 in the Family Court. In January 2015, the Registrar made orders by consent providing for the Father to make financial disclosure, for the Father to have exclusive occupation of the Property G property and to meet all outgoings on that property including the mortgage payments of $1400 a month.
The Father filed a Response on 16 February 2015.
On 26 May 2015, the Father filed an Amended Response seeking parenting Orders, and on 29 June 2015, the proceedings were transferred to this Court.
On 22 October 2015, the Mother filed a Reply seeking interim and final parenting Orders, and on 23 October 2015 the matter was first listed before this Court. Orders were made for the appointment of an Independent Children’s Lawyer and the parties were directed to attend a child dispute conference. Directions were made for the Father to file additional affidavit evidence in relation to property issues and for the parties to obtain real estate valuations. The Court made interim Orders for X to live with the Mother and to spend supervised time with the Father for two hours each week at the Interrelate Contact Centre in (omitted).
The parties attended a child dispute conference with Family Consultant Ms R on 12 November 2015. It was Ms R’s opinion that:
…any progression toward X spending unsupervised time with her Father might require a determination by the Court regarding risk, which might be assisted by a psychiatric evaluation of both parents.
Ms R recommended the preparation of a Part 15 single expert report to provide a comprehensive assessment of the parties’ personality functioning and “the impact on their parenting capacity and capacity to engage in an effective co-parenting relationship.” She recommended that both parties attend a parenting after separation programme, and that the Father enrol in a “Taking Responsibility” course.
On 17 December 2015, the Court made orders in accordance with Ms R’s recommendations. Dr A was appointed the court expert. The Court noted that it supported additional time between X and the Father at the contact centre if there was availability. The Father was given leave to obtain a further valuation of the Property G property and to organise for the two valuers to thereafter confer at his expense.
On 30 March 2016, the Court noted that the Father had not arranged for the valuers to confer, and he was directed to arrange such a conference in consultation with the Mother’s solicitors.
On 1 June 2016, Dr A’s report was released.
On 11 July 2016, the Father filed an Application in a Case seeking urgent interim parenting Orders. On 13 July 2016 the Court listed the matter for final hearing in relation to parenting and financial issues. The Father was directed to file and serve an affidavit from his mother in relation to all financial arrangements entered into between him and his mother during the relationship and since separation, to include full details of the sums the Father’s mother proposed to advance to the Father to make it possible for him to retain the Property G property, an order the Father was seeking.
On 26 July 2016, the Father was given an extension of time to file an affidavit from his mother.
On 6 September 2016, the Father filed an affidavit sworn by his mother, Ms D, on 3 September 2016. He admitted that the affidavit was prepared by himself, not his mother. The affidavit failed to address relevant issues in accordance with the Court’s orders.
On 22 September 2016, the Mother filed an Amended Application seeking final property and lump sum child support departure orders.
On 20 October 2016, the first day of hearing, the Father advised that his mother would not be available for cross examination as requested by the Mother’s legal representatives.
On 28 October 2016, the final day of hearing, the Court made final orders by consent for X to live with the Mother, for each party to be restrained from denigrating the other in X’s hearing, for skype/facetime communication between X and the Father, and for the sharing of information about X’s health and schooling. An interim Order was made, again by consent, suspending X’s time with the Father on 30 December 2016. In relation to child support, an interim order was made, by consent, for the Father to pay child support in the sum of $500 per calendar month.
The Father’s credit
The Mother’s counsel submits that the Father is not a witness of truth. I accept this submission. I have addressed the evidence in support of this finding during the course of my Reasons in relation to both the parenting and financial issues.
The Mother’s credit
The Father contends that the Mother failed to provide financial disclosure. In particular, he claims that the Mother has never disclosed how she applied her earnings during the course of their relationship and since. As explained later in these Reasons, I am not satisfied the evidence supports such a finding. I am satisfied the Mother provided full and frank disclosure and that she was a careful and truthful witness.
Current parenting arrangements
X is currently spending supervised time with the Father for two hours each week at the Interrelate Contact Centre in (omitted) in accordance with the interim orders of October 2015.
Orders sought by the Father – parenting[2]
[2] Exhibit 11
The Father seeks final orders providing for equal shared parental responsibility, for the parties to be restrained from relocating X’s residence further than 20 km from the other’s residence unless otherwise agreed or ordered; for the Father to be permitted to take X to visit his family in Canberra; for X to spend gradually increasing unsupervised time with the Father from all day each Sunday and one weekday, to one overnight during the week after 3 months, to 5 nights a fortnight after a further 4 months, with half school holidays once X commences school. The Father seeks orders for X to spend additional time with him on her birthday, on the Father’s birthday, on Father’s Day, during the Christmas period, and also orders for telephone or electronic communication twice a week. He seeks other ancillary orders in relation to travel, education, attendance at school events and sharing of information.
Orders sought by Mother in relation to parenting[3]
[3] Exhibit 10
The Mother seeks an Order for sole parental responsibility, and for X’s time with the Father to be supervised indefinitely at a contact centre or by an independent agency at the Father’s expense. In particular the Mother seeks orders for X to spend the following time with the Father:
a)Until X commences school, for a period of three hours each week on a day nominated by the Mother, and that the Mother be permitted to suspend time on up to six non-consecutive occasions each year, upon giving the Father at least 14 days written notice.
b)Once X commences school, for a period of three hours each alternate weekend, on a day nominated by the Mother, on the Saturday prior to Christmas each year from 9a.m. until midday and on two other occasions for up to three hours during the Christmas school holiday period. The Mother asks for time to be suspended on Mother’s Day. She proposes that changeover occur at the contact centre, or at a location nominated by the Mother.
The Mother seeks a restraint against the Father attending X’s school, daycare, preschool or extracurricular activities without the prior written consent of the Mother, and seeks an order that a copy of Dr A’s report be provided to any counsellor the Father may engage. In cross examination, the Mother says she would pay half the costs of a supervision service, such as Axia, if necessary.
Orders sought by Independent Children’s Lawyer[4]
[4] Exhibit 9
The Independent Children’s Lawyer seeks final orders in substantially the same terms as those sought by the Mother. The Independent Children’s Lawyer also seeks an Order requiring the Mother to consult the Father prior to making any long term decision about X; that the parents notify each other of any proposed change to their place of residence; and that the Father be permitted to communicate with X by way of letters, cards, photographs and gifts on her birthday, Easter and Christmas.
Expert recommendations
In his report dated 1 June 2016[5], Dr A says X needs a secure and stable environment, that her primary attachment is to her Mother and that she is well cared for and thriving in the environment provided by the Mother, well supported by the maternal grandparents. Dr A says[6]:
It would be developmentally inappropriate for X to lose the consistency of her primary residence with her primary attachment figure, with her mother. The maintenance of the secure attachment between X and her mother is of primary importance to establish a stable routine for X to maintain a secure attachment and a secure base for the development of her evolving sense of self, her capacity to self-regulate and her capacity to move ahead with regard to her developmental milestones.
[5] Exhibit 4
[6] At page 25 of transcript of proceedings – 27 October 2016
Dr A found no evidence of a mood or thought disorder in the Mother. While she was “tearful and distressed” at times during the assessment, she was “clear and organised in her narrative”. Dr A found her reactions to the Father’s behaviours understandable in the context of those behaviours. He assesses the Mother to have excellent parenting capacity.
Dr A finds the Father to suffer significant personality dysfunction. He assesses the Father as having underlying vulnerabilities, a narcissistic personality organisation with strong self-focus, immaturity in his responses, difficulty accepting responsibility for his actions, low frustration tolerance, poor impulse control and an inability to consider an alternative point of view to his own.
In his written report and at the commencement of his cross examination, Dr A recommended that the parties share parental responsibility for X, with the Mother being authorised to make health and education decisions if the Father does not respond to her requests in a timely manner, that X spend unsupervised time with the Father, initially 3 hours twice a week increasing to weekly overnight once X is 3 years old (clarified in cross examination as approximately 6 months after unsupervised day time commences). Dr A’s recommendations in relation to unsupervised time were, however, conditional on the Father not denigrating the Mother, and completing a domestic violence programme.
However, during oral evidence, following cross examination by both counsel and by the Father, Dr A changed his recommendations. Dr A says that if the Father cannot or will not change, while stressing the importance to X of maintaining her warm and loving relationship with her Father, supervision will need to continue indefinitely. Dr A recommends weekly supervised contact as a minimum in her pre-school years, and fortnightly once she starts school. In his opinion, X will not need supervision by a professional supervisor long term, though any lay supervisor would have to be able to stand up to the Father and modify his behaviour when necessary. He agreed with the Mother’s counsel that the Mother should be able to take a holiday, and short breaks for other events. He recommends that weekly skype contact continue.
Dr A recommends the Father commit to individual counselling with a child and family psychologist to discuss attitudes towards his family circumstances, his attitude towards X’s needs, his approach to the issues of domestic violence, the need to establish and maintain a respectful relationship with X’s mother and the maintenance of day to day routines, understanding X’s communications, and her developmental needs. Such counselling would not result in any change in the Father’s behaviours unless the Father understood why the therapy was needed. Presently, the Father shows no such understanding. Dr A expresses his serious concern about the Father’s continued denigration of the Mother, and his failure to complete or accept his need for a domestic violence course. Dr A found the Father to be “extremely hostile and critical towards the mother.”[7]
[7] At page 3 of transcript of proceedings – 27 October 2016
Legal principles – parenting
Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration. To determine the child’s best interests it must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3). Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, the Court must consider all the factors before making a determination.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court must give greater weight to the second primary consideration.[8] The primary considerations are consistent with the first two objects of the Act set out in section 60B to which the Court must have careful regard.
[8] Section 60CC (2A), Family Law Act 1975 (Cth)
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
X’s care history
In the 4 months after X’s birth, before the parties separated, the Mother says she was responsible for all aspects of X’s care with the Father, by his own choice, playing a minimal support role. From the date of separation, the Mother made efforts to engage the Father in X’s life by sending emails about her development and activities, but the Father rarely responded. She tried to arrange regular weekly time based on X’s sleep routine, but the Father did not respond to most of her emails.
The Father saw X twice in Queensland immediately after separation, in the presence of the Mother’s parents. On 2 May 2014, the Father visited X at the Mother’s parents’ home in Sydney when he said to the Mother, “You are evil. You have no morals.”[9] From June 2014 until November 2014, the Father saw X in the presence of the maternal grandmother, approximately once a week even though the Mother says at times the Father’s behaviour frightened her. The Father declined the Mother’s offer of more frequent time. The Mother tried to involve the Father in X’s first birthday celebrations without success, sending an invitation to both the Father and to his parents but without reply. In November 2014, the Mother initiated mediation at Relationships Australia because she was finding the Father’s communication with her abusive and distressing. In March 2015, Relationships Australia deemed the parties unsuitable for mediation.
[9] At paragraph 204 of Mother’s affidavit sworn on 22 September 2016
From late November 2014 the maternal grandparents were no longer prepared to be involved in the contact arrangements because of the Father’s conduct. Consequently, from then until February 2015, the Mother facilitated and supervised X’s contact with the Father in public places. X usually spent such time with her Father twice a week, even though she offered a third time, because he often cancelled. He gave excuses including having his car serviced (just before Christmas) or attending a lunchtime 40th birthday. On one occasion the Father was 1.5 hours late without notice to the Mother of how long he would be and she waited with X. On an occasion in January 2015 he did not arrive at all without notice to the Mother. At the end of the visits, the Father would attempt to discuss legal matters and the Mother describes his tone and demeanour as “aggressive and argumentative.” The Father was particularly focussed on property settlement. In front of X, the Mother deposes to the Father saying[10]:
You are a child stealing gold digger who has no morals; my solicitor and I are going to ruin you; X, your mother is an idiot; I will get you in the future. You planned all of this and set me up. We all think you have had post-natal depression. You are a psycho. You’re an animal.
[10] At paragraph 225 of Mother’s affidavit sworn on 22 September 2016
To avoid X’s exposure to these exchanges, the Mother contacted AXIA, a professional supervision agency, but the Father refused contact at the AXIA contact centre because he was not prepared to travel to (omitted), so there was no contact from February 2015 for several months. In May 2015, the Father initiated the process for supervised contact at Interrelate, (omitted). Since June 2015, X has spent time with the Father each Friday at the Interrelate Contact Centre for 2 hours under supervision. Additional days were arranged for X’s birthday and for Christmas, and X spoke to the Father on Father’s Day 2015. The Mother offered additional time in (omitted) 2016 for the Father’s birthday but he was not available, and make up time for Easter as the Centre was closed. The Mother made efforts to arrange a telephone call for X and the paternal grandmother in March 2016, without success.
Since July 2016, the Father has skyped X weekly. The Mother has encouraged X to participate and has given the Father the chance to participate in X eating dinner, playing and having her bath. The skype calls have lasted up to 1.5 hours. The Father’s family have not participated and at times, including twice in the month before this hearing, the Father has chosen not to make the skype call.
Father’s capacity to parent
The central issue in this case is whether the Father’s personality characteristics and level of insight so limit his capacity to parent, that X must be supervised when in his care, indefinitely. As already noted, the Mother does not support unsupervised time. The Independent Children’s Lawyer does not support unsupervised time, consistently with the opinion of Dr A at the end of his oral evidence. It is not suggested that the Father would fail to supervise X on play equipment, or when crossing the road, or that he would not provide her with nutritious food or dress her properly. The concerns arise from his poor attunement to X’s emotional needs, his lack of empathy for the feelings of others, his self-focus, his unremitting denigration of the Mother, his willingness to lie to suit his purposes, his poor impulse control, and his lack of insight into the impact of his conduct on others, particularly on the Mother and on X. Dr A observed the Father to have[11]:
…an immature personality, with difficulty accepting responsibility for his actions in the context of his low frustration tolerance and poor impulse control…narcissistic personality traits…unable to consider an alternative point of view.
[11] At paragraph 88 of Exhibit 4
The Mother believes the Father suffers from mental disturbance, that he is delusional and paranoid. She cites examples of his behaviours towards her, towards his own mother, towards his solicitors and towards the Court. Given his immaturity, his low frustration tolerance, his poor impulse control and his poor insight, she fears for X’s wellbeing if left in his unsupervised care. She is concerned about what the Father will say to X about her as her Mother and how he might emotionally manipulate X. She is concerned that he might lose his temper with X and hurt her.
The facts giving rise to the list of concerns raised by the Mother, the Independent Children’s Lawyer and the Court expert, set out in the following section, are substantially unchallenged.
Father’s behaviours
Between May 2011 and August 2013, the Father allowed the Mother to believe that he was employed full time as a (occupation omitted) at (employer omitted). In truth, the Father’s employment ceased at (employer omitted) at the end of April 2011, just prior to the parties commencing cohabitation. The Father pretended to go to work each day, setting the alarm for 7a.m, dressing in his work clothes, and returning at night in his work van. He manufactured conversations with co-workers, for example, “the guys that work for me are slack and lazy”; “I am going to have to stay back tonight as we have an event on”; “ My work gives me a good lifestyle balance. But my boss isn’t very nice, really.” He regularly referred to his difficulties at work in conversations with the Mother, referred to leaving for work late on occasions, to coming home from work at lunchtime to hang out the washing, and about the time it took him to travel to work. On a number of occasions, the Mother collected the Father from outside (employer omitted) during working hours so that he could attend pregnancy scans with her at the (omitted) Hospital. He told her that he had been given four weeks leave to be with her when X was born. The Mother only discovered the Father’s deception when she rang his workplace in August 2013 to be told that he no longer worked there. During this period of 28 months when the Father fabricated his day to day life, the parties bought a home together, entered into a mortgage, attended IVF information sessions together and conceived X. He let the bank think that he had a $6,000 monthly income[12]. When confronted by the Mother about his deception, and since, the Father has shown no remorse. He said to the Mother[13]:
[12] Annexure C33 to Mother’s affidavit sworn on 22 September 2016
[13] At paragraph 66 of Mother’s affidavit sworn on 22 September 2016
Why should I work when I am the son of a multimillionaire? Dad can support me. I like my lifestyle. I am not going to drive in Sydney’s ridiculous traffic every day for some job. You expect me to do this for a measly $25 or $30 an hour?
….
If you tell anyone about this, I’ll leave you.
According to the Mother who observed the Father’s ‘lifestyle’ during her maternity leave, it was his habit to sleep in until mid-morning, spend 1-2 hours over breakfast and stay up until 2 to 3 a.m. The Father acknowledged lying to the Mother for over 2 years about his employment at (employer omitted). He also admitted to Dr A that he had not worked since 2011, and in relation to deceiving his partner, said “she didn’t have to know”. Dr A said in his report[14]:
…this misrepresentation was a means of managing his shame and embarrassment about having lost his job, which was lowly paid by comparison with Ms Carmichael and her friends.
[14] At paragraph 25 of Exhibit 4
The Father demonstrated no insight into the impact of his deception over such a long period on the Mother which, in Dr A’s opinion, was an example of his narcissism. He did not regard what he had done as particularly serious, and took no responsibility for causing the Mother such distress. He showed no interest in finding employment. While he told Dr A that he had applied for 10 (omitted) jobs in 2011, he described his requirements as being “very particular and fussy”. He also told Dr A that he had worked as an (occupation omitted) in the (omitted) industry and despite opportunities to do so again, had decided against doing so. He viewed his legal defence (for these proceedings) as a full time job, referring to expensive legal fees saved[15]. He was content to rely on an allowance from his Father and cash given to him by his mother.
[15] At paragraph 25 of Exhibit 4
In cross examination, Dr A says that the Father was “somebody who is quite willing to tell a lie” and that he lies very easily. Further, Dr A said that[16]:
…the father has repeatedly lied about key aspects of his experience... (he) misrepresented aspects of his own family’s experience when he came to see me [giving] different stories from himself, his mother, his brother, with regard to his father’s status and incapacity, and the reason for him not attending the assessment.
[16] At page 4 transcript of proceedings – 27 October 2016
The Father’s dogmatic approach, according to Dr A, undermines his parenting capacity. For example, he was preoccupied with X’s nutrition. The Father takes a large quantity of home cooked food to X at the contact centre each week. He has wanted X to eat at least some of the meat, fish and vegetables he brings which she has refused, choosing to eat only fruit. The Centre reports the Father persisting until X “yells that she didn’t want them and told him to go away.”[17] As X attends the Centre at 1.00p.m., she has had her lunch before she arrives. The Father has taken the view that the Mother has deliberately filled her with food (probably cheese and biscuits) before coming to the Centre to obstruct his wish for her to eat the nutritious food he has prepared. The Contact Centre notes record staff’s repeated and unsuccessful efforts to reassure him and to explain why X, at aged 3, is unlikely to be able to eat the food he offers at that time of day and that her lunchtime routine should not change to suit him. The Mother has reassured the Father that she gives X a varied diet, exposing her to a wide range of foods, but the Father does not accept her responses, constantly complaining that it is her fault X is not eating his food, and that the Mother is a liar or playing games. This is despite the Mother’s willingness to take the food home that the Father brings to the Centre to give to X at her evening meal. The Mother says the amount of food the Father brings is overwhelming, sometimes a kilo of vegetables, (the Centre staff have told the Father that X would not eat a quarter of the food he brings even for a main meal), but that she does her best to encourage X to eat the food at home. The Father uses the ‘food’ issue to further denigrate the Mother.
[17] Exhibit 14
Dr A found the Father was preoccupied with this ‘food’ issue at the assessment, and would not be persuaded when told his behaviour was inappropriate. At hearing, the Father made repeated attempts to justify his conduct at the Centre when cross examining Dr A. In particular, the Father highlighted errors in the Contact Centre notes including their incorrect reference to “custard” instead of “yoghurt.” Dr A responded[18]:
[18] At pages 55 and 56 of transcript of proceedings – 27 October 2016
…your interpretation of the report concerns me… because what you’re doing is…focussing on the details of whether it was yoghurt or custard, rather than hearing and identifying the substantive issues. And I think that one of the things that will happen in an ongoing way with regard to communication regarding X’s experience, is that there will be many times like that where there might be feedback from a contact centre or from school or by a carer or by another parent or by the mother, where they say that it was yoghurt rather than custard, and that’s essentially not important. And having the capacity to recognise, you know, what the key issues are, is actually a very – is actually a very important thing.
...
For you to be raising these issues in this context on the same level as other substantive issues concerns me, because it’s a bit like not seeing the wood for the trees. It’s about not understanding what the key issues are and then focusing on minutiae, because I would regard these as being minutiae…
…
To say yoghurt or custard is not an example of a report being skewed or a report being biased or not seeing… key issues related to parenting.
When the Mother raised the subject of X’s birth certificate in early January 2014 because it was due to be lodged, the Father refused to sign the form. He said he did not want his father’s name attached to her (he did not like his father). He suggested her name be registered as X, but that she be christened X. The Mother was concerned by his attitude, googling to find out her options in such circumstances and noting names of lawyers she could consult. However, the Father finally relented and signed the forms later that month. The Father told Dr A he had not signed X’s birth certificate because he had a “gut feeling”[19] the Mother was after his money. Dr A told the Court[20] that he “thought it was very odd…it was a somewhat paranoid position to take. And when I say “paranoid position”, not in a psychotic sense. I didn’t find there were any – being any evidence that the father was psychotic. But, rather, he was taking a – a defensive position…a very unusual position to take.” The Father later found the Mother’s note with the names of lawyers and believed she was trying to “set him up.”
[19] At paragraph 36 of Exhibit 4
[20] At page 26 of transcript of proceedings – 27 October 2016
X was initially immunised in accordance with the national immunisation schedule with the approval of the Father. On 12 November 2014, the Mother advised the Father she had a medical appointment for X’s 12 month check-up and immunisations, and invited him to attend the appointment.[21] The Father responded “I haven’t had time to research this. If you immunise her without my consent, I will sue you.”[22] The Mother sent two further emails in an attempt to resolve the issue, to which the Father did not respond. So in December 2014, the Mother had X immunised. The Father says that he never told the Mother that he actually supported that immunisation because, “she doesn’t value my opinion…”[23] and he agreed with counsel for the Mother that “there was no point because she was just going to do what she wanted to do”.[24]
[21] At Annexure C51 of Mother’s affidavit sworn on 22 September 2016
[22] At paragraph 253 of Mother’s affidavit sworn on 22 September 2016
[23] At page 104 of transcript of proceedings – 26 October 2016
[24] At page 105 of transcript of proceedings – 26 October 2016
On 30 August 2016, despite no requirement by order to do so, the Mother’s solicitors emailed the Father offering an additional visit on the day before Father’s Day and skype communication at 8.30a.m on Father’s Day itself. The Mother organised a gift and card for him from X. The Father responded on the same day advising those arrangements would suit him.[25] However, when X was waiting for her Father to skype as arranged at 8.30 a.m. on Father’s Day, he did not skype. The Mother messaged the Father that X was sitting by, waiting for his call which never came. The Father could not recall why that time would not have suited him except that he may have been out late the night before. He asks why he should “fall into line” when the Mother sets a time, even though he at no time suggested a different time for the skype call to occur. While the Father says that later in the afternoon might have suited him, he did not inform the Mother, choosing rather to ignore her and X, and to feel annoyed the Mother suggested the time for the call. The Father saw no fault with his own behaviour. Dr A gave his opinion[26]:
[25] Exhibit 5
[26] At page 8 of transcript of proceedings – 27 October 2016
There is no evidence of prioritising the child’s needs, or prioritising his relationship with the child. I think it’s a very concerning example, particularly because typically in Family Court proceedings there’s a big focus on issues such as contact on birthdays, or Father’s Day, or Mother’s Day. It is standard for a parent to be very motivated to engage with the child on that day and in this situation it was simply not convenient. And, further, there was a lack of respect for the mother, a lack of respect for the effort that she was making, and a lack of any concern or consideration for the child and the child’s experience, that the child would be excited or looking forward to that opportunity, or indeed would want to, you know, have contact with daddy on Father’s Day which is, again, you know, going to be one of those things that will happen as a part of preschool and school curriculums where children will be preparing cards or talking about Father’s Day and, clearly, the father didn’t – didn’t even consider such matters.
…
…it highlights his lack of ability to consider things in a child-focussed manner….raises concerns about his motivation and his ability to prioritise the child’s needs.
The Father has exhibited other inappropriate behaviours. The Father told Dr A about his confrontation with his previous family lawyer. He made a formal complaint that his lawyer had repeatedly lied to him. He was frustrated that she had negotiated an agreement with the Mother’s side, resulting in Consent Orders, which in his view did not adequately address his position. He described the lawyer hiding in her office to avoid him. He described being “blackmailed” and charged $6,000 for the privilege.[27]
[27] At paragraph 22 of Exhibit 4
The Father repeatedly telephoned Dr A’s office in the lead up to the assessment, “raising numerous issues.” He was advised that the contact was inappropriate.
On 22 April 2016, the Father spoke rudely with his tone of voice raised to his own mother who attended the visit. She was not holding a plastic bag open for him in the way he demanded, to dispose of a dirty nappy. In front of X he asked whether she was “capable of doing a simple task?”
The Father often arrived late at the Contact Centre despite having no other commitments in his week. The Father saw no difficulty with his habitually late arrivals, despite the contact centre staff asking him to arrive on time. He told staff on 2 September 2016, “that’s just me. I’m always late.” He told the Court he arrives late because of cooking food to take to X. The Father did not accept that his habitual lateness was disrespectful of the Mother and X, and caused considerable inconvenience to the Centre staff.
On 3 September 2016, the Father cried in front of X at the contact centre when told that she had been diagnosed with asthma. Dr A says a parent needs to be able to manage his own emotional responses and the Father’s response was not a normal parental response to finding out that a child has asthma and requires puffers.
Dr A finds that the Father takes a defensive position in the context of his perception of feeling in a vulnerable position, feeling that he needs to react against the positions taken by the Mother. He says that rather than engaging in a cooperative manner, the Father is oppositional, a very immature position to take. The Father does not accept that the Mother, as primary caregiver, will set up X’s routine, decide on her diet and sleeping regime. He asks ‘why should it be that way?’ Dr A finds no evidence to suggest that the Father has the capacity to change. When he has had the chance to take on responsibility, such as finding employment, he has not done so. His attitude has been “why should I?” and “I don’t want to.” Dr A says that any therapeutic or educational approach to the Father would need to be focussed on helping him to respect the Mother’s position, and to maintain X’s routine as set by the Mother. However, Dr A found that the Father is unable to cooperate with the Mother to focus on X’s needs, and will not accept constructive feedback from him or from contact centre staff. He has an inability to see things from another’s point of view.
I agree with Dr A’s assessment. The Father’s focus is on justifying his position of being frustrated and hostile, resentful and angry in response, and blaming others, rather than reflecting on his own behaviour, and accepting responsibility for such behaviour. To Dr A, the Father’s position was that what he was doing was perfectly reasonable; he was a victim of the inappropriate behaviour from the other person towards him. I find this observation confirmed in his attitude to his violent behaviours addressed later in these Reasons.
Father’s attitude to the Mother
Dr A recommends that supervision continue unless the Father can demonstrate an ability to stop denigrating the Mother.
The Father believes that the Mother has stolen X out of his life without cause and that he is an innocent parent without rights.[28] He expects she has been motivated by financial issues and believes that she is devious and manipulative. At the assessment, Dr A says the Father was “preoccupied with Ms Carmichael’s alleged manipulation”.[29] The Father claims she was “hell bent” on buying their Property G property as joint tenants, when he wanted to purchase as tenants in common. His correspondence with her since separation and his trial affidavit contain numerous negative remarks about the Mother.
[28] At paragraph 45 of Father’s affidavit sworn on 29 September 2016
[29] At paragraph 36 of Exhibit 4
In October 2014, the Mother sent an SMS to the Father to advise that X was ill and the contact visit could not proceed. The Father’s return message read:
…you think you always know best, bossy control freak…. What world are you living in Ms Carmichael.
The Mother then explained that X had had a high temperature for over 24 hours, and asked him to put X first and to stop rude and disrespectful text messages. Messages continued for a number of pages. The Father refers to her as a “crazy psycho”. In other correspondence, the Father refers to the Mother as “nasty, selfish, greedy, controlling, playing an evil game”. When questioned at trial about the tone and abusive content of his text messages to the Mother since separation, the Father blames the Mother. He agrees with counsel that he has been “set up to send the Mother denigrating text messages.”[30]
[30] At page 18 of transcript of proceedings – 26 October 2016
In his trial affidavit, the Father describes the Mother as “vexatious”; “vindictive”; “out of control”; “dangerous”; “very disturbed”; “very bossy”; “control freak”; “crazy psycho”; and “stress head”.[31] He accuses her of suffering from “Post Natal Depression or Narcissistic Personality Disorder.” She has “consistently lied, exaggerated, accused and twisted the truth in every way and shape possible since our separation”[32] and “she is always a Drama Queen and can make a big deal out of the smallest of things. She is also this very, very provocative person” who would “whinge, whinge, whinge.”[33] The Father describes the Mother as “selfish and deceptive.”[34] In cross examination, he says that the Mother is the sort of mother who would make false allegations against a child’s father for her own benefit and not that of the child. He said that X may be at risk of physical and emotional abuse in the Mother’s care because of her “short temper”.
[31] At pages 46ff of Father’s affidavit sworn on 29 September 2016
[32] At paragraph 53 of Father’s affidavit sworn on 29 September 2016
[33] At paragraphs 56 and 57 of Father’s affidavit sworn on 29 September 2016
[34] At paragraph 127 of Father’s affidavit sworn on 29 September 2016
During cross examination, the Father acknowledged that to achieve an order for unsupervised time, he should be able to communicate with the Mother about X. When questioned about the Mother’s good traits, his attitude momentarily softened. He said, “she is highly organised. She is intelligent, she is loving, she is caring, she is excellent with X. She…feeds her well…she’s a good person and she’s a good mother.”[35] However, he consistently maintained that he is a victim and the Mother is the one to blame. When cross examining the Mother, the Father says[36] “what about my concerns… my thoughts and feelings…” While he was encouraged to consider his role in various incidents, he showed no insight, but rather a resignation that his approach was not finding favour with the Independent Children’s Lawyer or the Court. Dr A noted:[37]
He was reluctant to acknowledge … that X was thriving in the care [of her mother].
[35] At pages 106 and 107 of transcript of proceedings – 26 October 2016
[36] At page 27 of transcript of proceedings – 21 October 2016
[37] At paragraph 27 of Exhibit 4
The Father asks the Court to accept that he no longer denigrates the Mother to X. He contends that he cut and pasted his trial affidavit from his earlier affidavits which is why there is so much vitriol about the Mother in the affidavit. He did not have time to edit the affidavit (I note that he claimed to have had no time to work because he was working full time on the case). In cross examination, he became confused and flustered by questions which demonstrated that his attitude to the Mother had not changed. Numerous examples of additional material being included in his trial affidavit from earlier affidavits were pointed out to him, much of which contained negative comment about the Mother.
Dr A was concerned that the Father’s trial affidavit included such extreme hostility and criticism of the Mother. It meant he had not taken note of the concerns set out clearly in his report. Dr A says he would have expected the Father to have moderated his language had he had a change of insight, given this issue was such a key component of his assessment and recommendations.
I share Dr A’s lack of confidence that the Father will ever develop the capacity to stop denigrating the Mother, even though his attitude is extremely detrimental to X’s wellbeing. The Father will take a defensive position in the context of feeling vulnerable, he will react against the positions being taken by the Mother and he will not engage in a cooperative manner. He says this is a very immature position to take, particularly for a man of 43 years of age with considerable life experience. Yet the Father is inflexible. And because the Mother is the primary caregiver, the Mother will be the one establishing the routine and the structure for X, developmentally. The Father must respect the Mother’s position to follow the structure that has been set up for X. The Father makes clear he does not accept that. He says, “Well, why should it be that way? You know, why shouldn’t I be just as entitled to organise things around, food and diet and so on?”
Presentation at hearing
The Father cross examined the Mother at hearing for a number of hours. The Father frequently asked irrelevant or misleading questions, despite regular objections from the Mother’s counsel, and despite the Court’s intervention. He was repeatedly asked to restrict his questions to the issues in dispute. When Dr A was being cross examined by the Mother’s counsel, the Father frequently interrupted.
Findings on capacity
I accept Dr A’s opinion. I find the Father’s attitude to the Mother is unlikely to change. He has not heeded the advice of staff at the contact centre over a long period, and his approach was not affected by the findings and recommendations contained in the expert report. He did not accept Dr A’s recommendation for individual counselling because he does not accept a need for change. Dr A explains[38]:
There’s a difficulty that the father has, in hearing that, to take that onboard and then changing his approach. One of the problems with regard to his level of immaturity and impulse control is that I think there will be a natural tendency to misrepresent his experience if it is evident that that’s required or – and that again is – is very problematic because it makes it very difficult to determine what’s true and what’s not true, what’s happening and what isn’t happening, particularly with a – a young – a young child. And so, the question of whether the father has the capacity to change, I don’t think that there is any evidence that that’s the case, and that when he has had opportunities to take responsibility, such as taking on employment, he hasn’t pursued that. And he really lacks the capacity to provide an adequate explanation for why that is the case, except to say, essentially, “Why should I?” ‑ ‑ ‑
[38] At page 29 of transcript of proceedings – 27 October 2016
I share Dr A’s concerns about “the Father’s capacity to receive, in a respectful way, information regarding appropriate care for X.”[39] I share his concern that it is unlikely that the Father would tell the Mother about anything that had happened to X whilst she was in his care.[40] If the Mother makes a suggestion, the Father is likely to reject it out of hand, for the sake of being oppositional. Dr A explained to the Father that when the Mother makes a proposal, for example the skype call on Father’s day at 8.30am, it is not necessarily her ‘controlling’ the situation as the Father sees it. There is another way to look at it. The Father did not understand him. This incident, in Dr A’s opinion, is consistent with the Father’s “immature narcissistic personality style” and “the difficulties that he has in accepting responsibility for his actions, and would be… regarded as evidence of…parenting capacity and…lack of respect for the mother and her position and her approach to co-parenting.”[41]
[39] At page 4 of transcript of proceedings – 27 October 2016
[40] At page 4 of transcript of proceedings – 27 October 2016
[41] At page 8 of transcript of proceedings – 27 October 2016
I am satisfied that, despite the advice he has been given, the Father genuinely has no understanding as to why X’s time with him has been supervised in the past, or why a question arises as to whether X needs supervision when with him in the future. He says[42]:
I have asked Ms Carmichael’s solicitor via email why the visits need to be supervised? And they can’t or don’t want to tell me why.
[42] At paragraph 42 of Father’s affidavit sworn on 29 September 2016
The Father asked questions of Dr A indicating he had no idea of what he needs to do to satisfy the court X would be safe in his unsupervised care. Dr A said[43]:
… The concern I have is that the father put to me before was there anything else he could do. I explained as best I could what he could do, and why that would be beneficial. One of the concerns that I have had today is the father’s capacity to listen, to understand, to take on board, and to change his behaviour rather than taking a position of justifying his behaviour, and – that concerns me greatly because it’s as if we go in a circle. So we get to a point, and then we go back to the beginning. And I did, you know, talk about not seeing – not seeing the wood for the trees, and I think – and I think, you know, that – that’s that’s what it is happening is – is an example of that, and maybe goes on to fundamental factors with regard to the father’s personality, and capacity to understand, and to make sense of things. And it goes back to earlier questions about the father psychological mindedness, the father’s motivation, and the father’s capacity to change. And am not sure that I can say anything more with regard to that.
[43] At pages 69 and 70 of transcript of proceedings – 27 October 2016
I accept the evidence of the expert that the Father exhibits a profound lack of insight into his own behaviours and communication style and its negative impact on others, in particular, the Mother. I accept Dr A’s opinion that, given his personality traits, the Father is unlikely to improve in the future without long term specialist intervention. I find the Father’s response to the Mother’s suggestion that he attend X’s 12 month immunisation and his refusal to include his name on X’s birth certificate, vivid examples of this profound lack of insight. I find that the expert opinion of Dr A, combined with the Mother’s and the Contact Centre’s staff’s reporting of the Father’s behaviour over a number of years, the Father’s concessions about his own behaviour, his proven capacity to misrepresent, and the Father’s presentation during the hearing, together present a compelling picture of the Father’s serious capacity issues.
I give very significant weight to these findings.
THE PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both of the Child’s parents
Dr A assesses X as having her primary attachment relationship with her Mother, with whom she has lived since her birth. X’s relationship with the Mother was assessed by Dr A as being secure and healthy. He says “a delightful rapport was observed between X and her mother”; “a particularly loving and attentive relationship”; and “highly attuned interactions were observed.”[44] I accept his assessment. The Father does not disagree that X has a close and loving relationship with her Mother.
[44] At paragraph 43 of Exhibit 4
Dr A said that there is value to X in maintaining a relationship with her Father. At the assessment, Dr A says the Father was “interested, engaged and warm in his interactions”. While Dr A observed the Father to be less well attuned by comparison with the Mother, in that he was not “sitting with X’s pace”, he found him “enthusiastic”. X “engaged in a loving and responsive manner to her father.” “X responded with affection and delight at her Father’s attention.” X runs to her Father when she sees him at the Contact Centre, which she calls “daddy’s house”. X engages in a loving and responsive manner to her Father at the Centre each week.
I am satisfied that X has a strong, secure and loving relationship with her Mother. I find that X enjoys a loving relationship with her Father, despite the limited time she spends with him. As earlier noted, the Father must accept the need for a new approach to his parenting responsibilities before opportunities to extend the range of activities he and X might share together, can be safely explored. I accept that to further develop X’s relationship with the Father, would require her to spend more time with him over a broad range of activities.
The need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The Father contends that the Mother has a short temper and an aggressive manner. He alleges she has been angry and threatening towards him. She has assaulted him at least 3 times, kicked him in the thigh in 2012 causing a “massive bruise”,[45] threatened him, held a knife up to him two or three times and once picked up a piece of timber at the Property G home “when she got angry”. She has “dangerously thrown all kinds of things at me … in one of her fits of rage.” The Father believes that he is a victim of family violence and the Mother should be held to account for provoking him. In particular, he believes (and told the contact centre staff) it was extremely unjust that he was ordered to do a ‘Taking Responsibility’ course and the Mother was not. He told Baptist Care in June 2016 that, “she is the aggressor in the relationship.”[46] Baptist Care noted “client [the Father] is not taking responsibility for his actions and is perhaps not ready for group. Worry about his impact on other men if he refuses to take ownership of his stuff.”[47] He made it clear at trial that it was his view that the Mother should be made to do an anger management course.
[45] At paragraph 54 of Father’s affidavit sworn on 29 September 2016
[46] Exhibit 13
[47] Exhibit 13
The Mother readily acknowledged to the Court and to Dr A that she became angry on occasions in her interactions with the Father, reacting to being called awful names, being hit and being threatened with a fist to her face. However, the Mother denied this indicated she had an anger management issue. She says “that she had been pushed beyond her limits” by the Father and was “unable to cope with his verbally abusive and contemptuous behaviour.” The Mother says that she used the knife to protect herself when the Father raised a fist against her when she was six months pregnant. She told Dr A on one occasion she had locked herself and X in a room to protect herself. Dr A said the Mother was, “tearful and distressed, yet clear and organised in her narrative.” He found her responses understandable in light of the Father’s provocative stances.
The Mother describes the Father as highly volatile with a quick temper. She says that after they commenced cohabitation in May 2011, she noticed the Father lost his temper over trivial events, or when she did not agree with him. He would call her names, such as “dumb shit” and “bitch.” She alleges that the Father was physically violent towards her during the relationship and that the Father repeatedly denigrated her during the relationship, and has continued to do so since separation. The Mother says that the Father’s attitude towards her appeared to worsen after she was pregnant with X. He would call her derogatory names more frequently such as “fuckwit”, “fat shit”, “bitch” and “psycho.” The Mother also says that the Father regularly threatened to leave the relationship. The Mother asked the Father to “please stop calling me names, stop speaking to me like that” but he accused her of being hysterical, “too sensitive” and “causing arguments.”
The Mother makes specific allegations:
a)On 1 May 2013, the parties visited the maternal grandparents at (omitted) when the Mother announced her pregnancy. The Father disagreed with the way the Mother had disclosed the news, and on their way home threatened that, “I will hit you when we get home”. The Father did not follow through with this threat, and the Mother therefore took no action.
b)On 12 May 2013 (Mother’s Day), the Mother suggested that the Father call his mother, even though the Father and paternal grandmother had been having disagreements. The Father did not agree with the Mother’s suggestion, and hit her stomach and left breast leaving a bruise. The Mother was three months pregnant. She did not report this incident to the police.
c)On 15 June 2013, the parties were driving to the city to see a movie. They had just purchased the Property G property and were discussing the logistics of moving. During the discussion, the Father said to the Mother, “I feel like hitting you right now.” The Mother did not know what had caused the Father’s anger, but he did not hit her so she did not take the incident further.
d)In or around August 2013, when she was six months’ pregnant with X, the Father kicked the Mother in the thigh.
e)In or around September 2013, the Father raised his fist to the Mother at their home. The Mother was frightened, and picked up a piece of wood (roughly 30cm x 5cm in size) for protection, and in self-defence. The Mother was 7 months’ pregnant.
f)On 24 September 2013, the parties, whilst driving, were talking about painting the front doors of the Property G property. The Father became angry (over something that she believed was very minor). The Father “was not going to be her lacky” and backhanded her across the face. The Mother’s nose bled heavily as the Father screamed at the Mother aggressively. The Mother begged the Father to take her to the doctor or the police. He refused. She was seven and a half months pregnant.
g)In the early weeks of December 2013, when X was less than one month old, the parties had a minor disagreement about breastfeeding X. The Father said to the Mother, “You will get it when you get home.” Although the Father still seemed angry with the Mother when they arrived home, he did not follow through with his threat.
h)On Christmas Eve 2013, when X was approximately 6 weeks old, the Father pulled the Mother off the stairs and threw her approximately 2 or 3 metres across the lounge room. [In cross examination the Father repeatedly asked her whether he pushed her down the stairs (rather than pulled)]. He kicked a box of gifts the Mother had received from her sister, breaking a set of four coffee mugs. In self-defence, she threw something at the Father. X woke up and cried. The Mother was able to settle X, and started to pack the car. She says that she was very upset, and told the Father that his behaviour was “totally unacceptable” and promised to leave the Father if “this ever happens again.”
i)On Christmas Day 2013, the Father berated the Mother in front of his mother whilst she was feeding X. He told the Mother to “shut up you idiot”. The Mother complained to the paternal grandmother about his behaviour but the paternal grandmother did not respond.
j)In late 2013 or early 2014, the Mother was cooking dinner. She asked the Father if he wanted a particular food. He started yelling from the top of the stairs, came down and cornered her in the kitchen. The Mother says she was scared and picked up a knife, asking the Father to go away and to stop screaming at her.
k)In or about January/February 2014, the Father threw something at the Mother’s head whilst she was breastfeeding X. The Mother had no idea what had triggered this. The Father asked “When are you going to kill yourself?” The Mother says that she was concerned about X’s safety, and told the Father that he had almost hit X. Around this time, the Mother asked the Father what he would do if one day X told him that a man had hit her or called her names. The Father responded, “Well if she was a whinger like you…..” (implying it would be justifiable for X to be hit).
l)In or around early 2014, the Father twisted the Mother’s arm painfully whilst she was breastfeeding X. She says that there had been no argument that precipitated the Father twisting her arm.
m)On 27 March 2014, the Mother was preparing for a five day visit to Queensland with X. The Father was in an angry mood before they left the house, and said to the Mother, “Why haven’t you filled in the luggage tags, you fuckwit?” The parties argued in the car on the way to the airport, whilst X was in her car seat. The Father was verbally abusive, threatened to turn the car back home, shouted at the Mother. The Mother eventually shouted back. The Father called the Mother a “fuckwit” as they entered the airport carpark, and the Mother says she “lightly punched” the Father’s arm and told him to stop speaking to her like that. The Father then slapped the Mother hard across her face with the back of his hand, causing the Mother’s nose to bleed. X was screaming, and the Father was screaming for the Mother and X to “Shut up.” The Mother told the Father that she was leaving him. When she arrived in Queensland that afternoon, the Mother suffered a severe nose bleed and had a black and “heavily bruised” left eye for a week.[48] The Mother says the Father said he was sorry she had a black eye but did not concede the assault was his responsibility. Nor was the Father satisfied that the Mother had not inflicted further injury on herself to cause the bruising and had not lied about the nose bleed. On 30 March 2014, the Mother made a statement at (omitted) Police Statement, and on 1 April 2014, the statement was forwarded to (omitted) police station.[49] The Father was arrested on 3 April 2014 and charged with assault. On 4 April 2014, the police obtained a provisional AVO protecting the Mother from the Father. The Mother and X remained in Queensland as the Mother said that she felt “unsafe” around the Father. On 30 April 2014, a final Apprehended Violence Order[50] for 6 months was granted by Sutherland Local Court naming the Mother and X as protected persons, and on 29 May 2014 the Father was convicted of assault. He received a nine month good behaviour bond.[51]
[48] Annexure C10 to Mother’s affidavit sworn on 22 September 2016
[49] Annexure C9 to Mother’s affidavit sworn on 22 September 2016
[50] Exhibit 2
[51] At Annexure C12 of Mother’s affidavit sworn on 22 September 2016
The Mother alleges that since separation, the Father has continued to denigrate her and to undermine her in front of X. On 2 May 2014, the Father came to see X at her parents’ residence, and whilst she was breastfeeding X, said to her in an aggressive tone[52]:
You have planned all of this and set me up. You have lied to the police. Look what you have done to me. You are evil. You have no morals.
The Maternal Grandfather asked the Father to leave, suggesting he may be in breach of the Apprehended Violence Order.
[52] At paragraph 202 of Mother’s affidavit sworn on 22 September 2016
In cross examination, the Father was adamant that any acts of violence committed by him were in self-defence, always instigated by the Mother. For example, when asked what he threw at the Mother in 2012, he said that he only threw something at the Mother after she threw something at him. He claimed to be powerless to stop the Mother manufacturing allegations. The Father claims to have spoken to several different domestic violence officers at different police stations to “make them aware of the games that Ms Carmichael is playing.”[53] He accuses the Mother of wasting police resources by reporting his behaviour to them. The Mother’s allegations about his conduct made no sense to the Father because the Mother wrote a warm and loving letter to him in 2012 referring to his “kindness” and “genuinely good heart” “laidback and relaxed style” and his “gentle” approach to children.[54] He did not accept that the Mother could have those feelings about him at that time while rejecting his abusive behaviours at other times.
[53] At page 103 of transcript of proceedings – 26 October 2016
[54] Annexure O to Father’s affidavit sworn on 29 September 2016
The Father gives his version of the events of 27 March 2014 when the parties separated. He does not mention that he assaulted the Mother resulting in the Mother being injured, despite having been convicted of the assault. The Father says[55]:
Ms Carmichael started an argument over a comment about some luggage tags and assaulted me at Sydney airport on March 27 2014. She took a flight up to Queensland that day and took my beautiful little 4 month old baby girl with her, out of my life, and stayed up in QLD with her sister for about 4 months March 27 2014 being our separation date.
[55] At paragraph 27 of Father’s affidavit sworn on 29 September 2016
(I note the Mother was in Queensland for approximately 6 weeks, not 4 months). Later in his affidavit, the Father says “I had agreed to plead guilty to my provoked reaction/retaliation towards Ms Carmichael.”[56] He made it clear to Dr A that the wrong person had been identified as the victim and that he was justified in striking the Mother. In cross examination, the Father conceded that his actions that day were “not appropriate”[57]and that his insight had improved since he had completed a parenting course.
[56] At paragraph 43 of Father’s affidavit sworn on 29 September 2016
[57] At page 77 of transcript of proceedings – 26 October 2016
The Father told Dr A about his previous marriage to “Ms C.” Although he denied any domestic violence in the relationship, he told Dr A that there was a “similar thing” where she had attacked him and he had “pushed her back, kind of thing” on two occasions. Dr A found this admission troubling as it may be suggestive of the Father repeating patterns of victim blaming in domestic relationships. Dr A believes that X may be at risk if those patterns are repeated in a later relationship. The Father has also behaved aggressively towards his own mother. He pushed her on one occasion at the Contact Centre, raised his voice to her at the Centre, and pulled his mother away on an occasion at a shopping centre when the paternal grandmother came towards the Mother and her family to greet them. The Father said “we don’t speak to those people”.
In response to questions from the Mother’s counsel, Dr A agreed that because the Father has not acknowledged or taken responsibility for his past behaviour, the Father does not have the tools necessary to change his behaviour. Dr A finds that the Father struggles to acknowledge his poor behaviour, continuing to raise justifications for his actions. He did not accept responsibility for perpetrating domestic violence and had not pursued counselling. The Father commenced a domestic violence course (as ordered by the Court) not long before this hearing, (despite an order for him to attend the course in December 2015) but the notes produced by the course provider indicated that they had some concerns about accepting him into the course because, “the client doesn’t believe he was abusive and felt that their relationship was good.” They also noted that the Father “was not taking responsibility for his actions and perhaps was not ready for the group.”[58]
[58] Exhibit 13
A question arises as to whether the Father has been truthful about his employment status. He claims no Centrelink benefits. He purchased a work van after separation in which he keeps work tools and equipment, and the van sits outside his home. It is difficult to reconcile this fact and the substantial cash funds he has at his disposal, with his claim to have no work. Exhibit 19 discloses a payment by the Father from his credit card marked “(occupation omitted) licence”. A police report dated 17 August 2015[131] states, “the vehicle is used for the victim’s [the Father’s] work”. As stated earlier in these Reasons, the Father has been prepared to lie about key aspects of his experience. He openly acknowledged trying to hide assets from the Mother. Further, he chose not to comply with the court’s order to file an affidavit from his mother addressing details of their financial relationship, and chose not to make his mother available for cross examination. It should have been straightforward to have his mother confirm that she is the source of his income. However, the Father has chosen to keep the source of his cash income a mystery.
[131] Exhibit 21
I am satisfied the Father has substantial financial resources from unidentified sources, financial resources which have not been fully disclosed in these proceedings. It is the Father’s case that even though he is unemployed, he has sufficient resources from his parents and/or others, to meet any expense that arises.
The Mother is employed part time as a (occupation omitted) earning $1492 gross a week or $1,192 net after tax. She is entitled to child support of $500 a month since an interim order was made by consent on 28 October 2016. The Mother is working part time because of X’s young age and does not seek to vary her current arrangements until X is older. According to her Financial Statement sworn on 22 September 2016, the Mother owns a unit at Property L subject to mortgage, a half share in Property G, approximately $28,000 at bank, a car subject to lease (with no equity), and a small debt to Mastercard. She has superannuation valued at $137,000.
The Mother will have the full time care of X in the future, which I am satisfied will impact on her earning capacity.
I am satisfied the Father has greater financial resources than the Mother though, as a result of the Father’s conduct in these proceedings, I cannot make findings as to the extent of the financial disparity between the parties.
Whether either party has the care of a child under 18 years
The Mother has the full time care of X and as a result, plans to continue working part time for the foreseeable future.
The responsibilities of either party to support any other person
Each party has financial responsibility for X. The Father is presently paying child support of $500 a month as a result of a consent order made on 28 October 2016. The Mother otherwise provides for her needs from her income and Centrelink benefits. Neither party in the present case has a legal obligation to support any other person or any other child.
Eligibility for pension, allowance or benefit
The Mother is eligible for family tax benefits of approximately $130 a week. Whether or not he is entitled, the Father does not claim a benefit from Centrelink and discloses no eligibility for another pension or benefit.
A standard of living that in all the circumstances is reasonable
The Mother has been living with X in her one bedroom unit at Property L. She will have the ongoing full time care and the majority responsibility for X financially. It is reasonable that she be in a position to re-house, ideally in the same area because X is settled and has her social network there. The Father wishes to retain the Property G property and depending on the extent of his financial resources, may achieve that outcome. The Father told Dr A he is in a new relationship, but details of his plans or his financial relationship with his new partner, are not known. I find it unlikely the Father’s standard of living will diminish.
Any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship
The Father is currently assessed to pay child support on the basis of a provisional annual income of $533 at a rate of $1,373 per annum or $26 a week.[132] However, as later addressed, the Father has been paying $400 a month in child support, increased to $500 a month from the end of October 2016. As a result of my decision on the Mother’s child support departure application, (addressed later in these Reasons) this payment of $500 a month will continue for at least 5 years.
Any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account
[132] At Annexure C32 of Mother’s affidavit sworn on 22 September 2016
I take into account that the Father has not disclosed his financial position, and that I cannot make findings as to the extent of his financial resources or his income. He claims to have ‘parked’ money with his parents without any verification of the amount and in the absence of any evidence from his parents. He claims to be able to source cash whenever he needs money.
In Black & Kellner[133], the husband failed to make full and frank disclosure. This made it impossible for the court to accurately identify the asset pool. The trial judge was also unable to assess the Husband’s income because of this non-disclosure. The trial judge awarded the husband approximately 6% of the known pool. The husband unsuccessfully appealed. On appeal, the Full Court indicated that the husband was lucky to have received any adjustment at all. In Weir[134], the Full Court commented that:
…it seems to us that once it has been established that there has been a deliberate non-disclosure…then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
[133] (1992) FLC 92-287
[134] (1993) FLG 92 - 338
Assessment of relevant section 90SF(3) factors
The Court must weigh all the relevant section 90SF(3) factors together and then make one adjustment.[135]
[135] Tomasetti & Tomasetti [2000] FamCA 314
The Father submits that he is entitled to an overall 50% share of the parties’ net assets. The Mother’s counsel submits that the Mother is entitled to an adjustment resulting in an overall 65% of the net assets to the Mother, while acknowledging that the full extent of the Father’s assets are not known.
On a weighing of the factors to which I have referred under s.90SF(3), and having regard to my assessment on contributions, I have decided the Mother should receive the entitlement she seeks in relation to the non-superannuation assets. The Mother will receive an adjustment of 10%. The non-superannuation assets of the parties will be divided as to 65% to the Mother and 35% to the Father.
On the basis of my findings under s.90SF(3), I have decided to make no adjustment in relation to the parties’ superannuation interests.
Is the result just and equitable?
Section 90SM(3) provides that:
The Court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.[136]
[136] Family Law Act 1975 (Cth), s.90SM(3)
The Court must be satisfied that the actual orders provide for a just and equitable distribution of the property of the parties.[137]
[137] Family Law Act 1975 (Cth), s.90SM(3)
The parties have non-superannuation assets available for distribution with a net value of $1,109,070 and superannuation assets of $149,067.The Father seeks to retain the Property G property, subject to mortgage. The Mother has no objection to this course if the Father has the means to meet the payment of her entitlement. The Father on the one hand says that his parents will give him $243,000 towards this outcome, but on the other, that they will give him no further funds. The parties agree they will otherwise keep the assets and liabilities in their name or possession.
Excluding the Property G home, the Father will have net non-superannuation assets in his name (as far as they are known) with a net value of $55,420, including the motor vehicles, his (omitted) shares, his furniture, his bank proceeds and other assets of unknown value. Excluding the joint asset of the Property G home ($925,000 - $243,000 = $682,000) the Mother will have non-superannuation net assets in her name with a value of $371,650 including her car, the Property L unit, bank proceeds and furniture. If the Mother is to receive 65% and the Father 35% of the non-superannuation assets, then the Mother is entitled to receive $277,595.50 from those (non-Property G home) assets [65% of $371,650 + $55,420= $277,595.50] which would require the Mother to pay to the Father the sum of $94,054.50 to effect a 65/35 result.
The Mother will be entitled to 65% of the net value of the Property G property, ($925,000 - $243,000 = $682,000), the sum of $443,300. If the Father is to retain the Property G property, he will be required to pay the Mother the sum of $443,300 less $94,054.50 = $349,245.50. He will be given the option to pay that sum within 2 calendar months of order.
In the event the Father does not make that payment within the time specified, the Property G property will be sold. On the figures agreed, the sale of the Property G home will realise $925,000 less sale costs, less $243,000 (loan secured by mortgage). In order of priority at the settlement of the sale, the Father will receive 35% of the balance of $925,000 less sale costs, less $243,000. That is approximately $229,950 (if sale costs are estimated at $25,000). The Father will then receive the adjusting payment of $94,054.50 for the non-superannuation assets excluding Property G, to give him 35%. The Mother will then receive the balance.
Each party will retain his/her own superannuation entitlement.
Having regard to my findings in this case, I am satisfied that the orders set out at the beginning of these Reasons are just and equitable.
CHILD SUPPORT
Orders sought by the Mother – Child Support
The Mother seeks a departure from the administrative assessment of child support, such that the annual rate of child support paid by the Father be varied for the period 22 September 2016 to 22 September 2017 to the sum of $5,500 plus CPI. The Mother relies on sections 117(2)(a)(iv), 117(2)(b)(ia), 117(2)(b)(ii), 117(2)(c)(i), 117(2)(c)(ia) and 117(2)(c)(ib) of the Child Support (Assessment) Act 1989 in support of her departure application.
The Mother also seeks an Order pursuant to section 123A of the Act for the Father to pay child support to the Mother by way of a lump sum payment of $82,500 ($5,500 p.a. for 15 years) to be deducted from his share of the sale proceeds of the Property G property. From 22 September 2016, the Mother seeks an Order that the lump sum payment is to be credited as 100% of the annual rate of child support payable, until the lump sum is exhausted.
During final submissions, the Mother’s counsel submits that in the alternative, the Mother accepts the Father’s proposal.
Orders sought by the Father – Child Support
The Father seeks an order for dismissal of the Mother’s application on condition that he pay the Mother the periodic sum of $500 a month by way of child support for a period of 5 years.
Assessment
The Father has a current child support liability based on a provisional annual income of $533[138], in the sum of $1,373 a year. However, he has paid child support of approximately $400 a month since separation. The Father says his mother has been giving him the funds to meet the monthly payment which he transfers from his (omitted) account. At hearing, the Father tells the Court that he would agree to an order to pay $125 a week for a period of five years. He then changed his position during submissions to $500 a month.
[138] At Annexure C32 of Mother’s affidavit sworn on 22 September 2016
Legal principles - child support
Jurisdiction is conferred on this court by s. 99(1) of the Child Support (Assessment) Act 1989. Section 3 of the Act provides that parents have a primary duty to maintain their children. Section 4 provides that the principal object of the Act is to ensure that children receive a proper level of financial support from their parents. Sections 114 and 121 identify that the further objects of Divisions 4 and 5 of Part 7 include:
a)that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and
b)that parents share equitably in the support of their children.
Division 4 of Part 7 of the Act governs departure proceedings. Section 116(1) provides that a carer or a liable parent may apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act and the court considers that it would be in the interest of the liable parent or carer for the court to consider whether an order should be made under this Division [139].
[139] Section 116(1)(b)(i)and(ii) Child Support (Assessment) Act 1989
I am satisfied that it is in the interest of the Mother, as X’s carer, for the court to consider the departure application at the same time as the application for property settlement. The Court’s findings in relation financial issues are relevant to both applications.
Departure application
The Mother brings her application under s.117 of the Child Support (Assessment) Act which gives the court power to make a departure order in special circumstances. The Full Court of the Family Court In the Marriage of Gyselman[140] set out a three step process that courts must follow in determining an application for a departure order under s.117. The first step is whether one or more of the threshold grounds in s.117(2) is established. If a ground is established, the next step is whether it is just and equitable within the meaning of s.117(4) to make a particular order. The final consideration is whether it is otherwise proper within the meaning of s.117(5) to make a particular order.
[140] (1992) FLC 92-279
Special circumstances – has the applicant Mother shown a ground for departure?
The Court will not interfere with the administrative assessment unless it is satisfied there are “special circumstances”, that is, that there is something special or out of the ordinary in the facts of the particular case. The onus is on the applicant to establish a ground for departure. The Mother relies on ss117(2)(a)(iv), 117(2)(b)(ia), 117(2)(b)(ii), 117(2)(c)(i), 117(2)(c)(ia) and (ib) of the Child Support (Assessment) Act 1989.
S.117(2)(a)(iv) refers to the high costs involved in enabling a parent to spend time with or communicate with the child. I have determined that X will be professionally supervised when spending time with the Father. The Contact Centre has supervised X’s contact for nearly 3 years. While there is no evidence as to how much longer the Contact Centre will provide its service, given the high demand for its services, I am satisfied that the Centre is not likely to provide its services for much longer. The professional supervision which will be required thereafter will be significantly more expensive than the fees at the Contact Centre, and the Mother will bear half the costs. I am therefore satisfied the Mother has established a ground for departure under this provision.
S.117(2)(b)(ia) refers to the special needs of the child. I am not satisfied this provision is relevant. The Mother’s counsel made no submissions on this provision.
S.117(2)(b)(ii) refers to the child being cared for, educated or trained in the manner that was expected his her parents. I am not satisfied this provision is relevant. The Mother’s counsel made no submissions on this provision.
S.117(2)(c)(i) refers to the income, earning capacity, property and financial resources of the child. I am not satisfied this provision is relevant. The Mother’s counsel made no submissions on this provision.
S.117(2)(c)(ia) and (ib) provides that a ground for departure exists if, in the special circumstances of the case, the administrative assessment of child support would result in an unjust and inequitable determination of the level of child support to be provided by the liable parent. The subparagraphs refer to the income, property and financial resources of either parent, and the earning capacity of either parent. These are the provisions referred to by the Mother’s counsel. The Mother seeks a departure order based on the Father’s failure to exercise his earning capacity, and his significant financial resources. Counsel submits that the Father has the capacity to work as an (occupation omitted) or as a (occupation omitted), and has been employed in both capacities in the past. I agree with this submission.
As already addressed, I am not satisfied the Father has fully disclosed his financial position to this Court or to the Child Support Agency. I find the financial evidence he has given unreliable. I find that the Father has significantly greater financial resources available to him than he has disclosed in his Financial Statements. While he claims to be receiving regular cash funds from his mother, he chooses not to make his mother available to give details of their financial relationship. He acknowledges never telling the Child Support Agency about the money he receives from his mother each week to pay his bills. He is unable to explain the basis of his claim to the (omitted) Bank in 2013 that he then had an income of $6,000 a month.[141] As earlier noted, the Father’s bank statements disclose deposits of an average of $700 a week between April 2014 and September 2016 and he admits to receiving significant additional cash resources whenever needed.
[141] At Annexure C33 of Mother’s affidavit sworn on 22 September 2016
I am satisfied that in the special circumstances of this case, the Mother has established a ground for departure under ss.117(2)(c)(ia) and (ib) of the Act because of the income and financial resources of the Father and because of his earning capacity.
Is it just and equitable to make an Order?
S.117(4) sets out the matters to which the Court must have regard when determining whether it is just and equitable to make a particular order. These include (as far as relevant) the duty of a parent to maintain a child; the proper needs of the child; the income, property and financial resources of each parent; the earning capacity of each parent; the commitments of each parent necessary to enable the parent to support himself or herself or any other child or person that parent has a duty to maintain; the costs incurred by the carer in providing care for the child; any hardship that would be caused to the child or carer by the making of or refusal to make the order, and to the liable parent by the making of or refusal to make the order.
X’s proper needs
In her Financial Statement sworn on 22 September 2016, the Mother deposes to expenses for X of $384 a week. This total includes $40 for clothing and shoes, $130 for child minding and $20 for holidays and entertainment. The figure of $384 does not include the costs of housing, health or other insurances, or the costs of the car required for her transport. I find the expenses modest and the Mother’s evidence was not challenged by the Father. The Mother deposes to increasing X’s childcare costs in 2017 and to the foreshadowed costs of before and after school care when X starts school. I am satisfied X’s expenses are currently well in excess of $400 a week and likely to increase once she starts school and her activities increase.
Income, property and financial resources of Father
I have made findings in relation to the Father’s financial circumstances earlier in these Reasons and the unreliability of his evidence. According to his Financial Statement sworn in September 2016, the Father has no income and relies on his mother to meet his expenses. He deposes to income from his mother of $625 a week and expenses of $725 a week. He has liquid assets in shares and bank account proceeds of over $5,000, a van, a car and no debt. As earlier stated, I doubt the veracity of the Father’s stated position. I am satisfied the Father has access to cash and substantial financial resources in the form of regular payments from his mother and perhaps others. He may be working and not disclosing his income. I am unable to specify the extent of his financial resources. The Father may borrow funds to pay the Mother to enable him to retain the Property G property, or the property may be sold. If sold, the Father will receive a share of the net proceeds.
The objects of the child support legislation are clear. The Father and the Mother have a primary obligation to support their child. I am satisfied the Father has the financial resources to meet the current interim child support order of $500 a month, either from his own resources or from his parents or other sources, and I have regard to his concession that he could meet this sum for a period of 5 years. However, I am unable to make a finding as to the Father’s capacity to meet this commitment beyond the 5 year period agreed.
Income, property and financial resources of Mother
In her financial statement sworn in September 2016, the Mother deposes to an income from her employment of $1,492, excluding child support, and family tax benefits (which must be disregarded s.117(7A)). She deposed to a taxation liability of $300 a week, and therefore a weekly disposable income of $1,192 a week. According to the figures in her Financial Statement on which she was not cross examined and which I find extremely modest, the Mother has weekly expenses of $214 in mortgage repayments, $88 in rates, $110 in car payments, $42 a week in health and home insurance and $659 in day to day expenses for herself and X. Her expenses therefore total $1,113 a week. On these figures, the Mother can just meet her expenses without any opportunity to save for any capital or unanticipated expense. Her position is slightly improved by the child support payments she receives from the Father of approximately $92 a week (increased at hearing to $115 a week). At hearing, the Mother had savings of just under $30,000, but adduced no evidence as to outstanding legal fees which are likely to be substantial.
Earning capacity of each parent
If I accept the Father’s evidence as to his most recent employment, he was earning approximately $50,000 as a (occupation omitted). He admits that if he wanted to, he could find work in that role. I find that the Father also has the capacity to work as an (occupation omitted) as he has done in the past in his own business. He has recently held an (occupation omitted) licence and owns a work van with tools and equipment. The pay rates summary from the Fair Work Ombudsman states a base rate of pay for an (occupation omitted) is $28.20 an hour, and the casual rate is $35.25 an hour[142], with significant penalty payments for overtime and shift work. Even at the base rate for a 35 hour week, the Father could earn in excess of $50,000 a year and I am satisfied he has the capacity to earn significantly more.
Commitments of each parent necessary to enable the parent to support himself or herself or any other child or person that parent has a duty to maintain; the costs incurred by the carer in providing care for the child; any hardship that would be caused to the child or carer by the making of or refusal to make the order, and to the liable parent by the making of or refusal to make the order.
[142] At Annexure C34 of Mother’s affidavit sworn on 22 September 2016
The Father does not identify his expenses at Part N of his Financial Statement sworn in either February 2015 or September 2016. He deposes to total expenses of $725 a week including $100 in child support and $100 in additional expenses for X. If I accept his figures, the Father needs $525 a week to support himself.
The Mother deposes to expenses (including tax) of approximately $1,413. There was no challenge to these expenses by the Father. I am satisfied hardship would be caused to the Mother and to X if a departure order was not made.
On the basis of my findings, I am satisfied it is just and equitable to make the departure order sought by the Mother.
Is it otherwise proper to make the order?
In determining whether it would be otherwise proper to make an order departing from an existing assessment, the Court is required under s 117(5) to have regard to the following matters:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b)the effect that the making of the order would have on:
(i)any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii)the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
The effect of any Order on the Mother’s Centrelink benefits did not feature in either party’s submissions.
The Mother receives family tax benefits from Centrelink in the sum of $129 a week.[143]
[143] Mother’s financial statement sworn on 22 September 2016
The Orders which I propose would increase the Mother’s income for the purposes of any means test which may apply to the benefits she currently receives from Centrelink. By definition, that could only result in a reduction in those benefits and therefore a reduction in the extent to which the responsibility for the support of X is borne by the taxpayer.
I am satisfied that a departure order would be otherwise proper.
Determination on departure application
On the basis of my findings as to X’s expenses, the Father’s financial position and the Mother’s financial position, I am satisfied that in the special circumstances of the case it is just and equitable and otherwise proper for an order for departure from the administrative assessment of child support, (currently $1,373 a year or $26 a week) to be made. Given the Father seeks an order that he pay $500 a month for 5 years (and an interim order was made by consent to that effect at the end of the hearing) and the Mother is seeking the lesser sum of $458.33 a month ($5,500 a year + CPI), I am satisfied it is just and equitable and otherwise proper for the Court to make the departure order proposed by the Father. Having already made an interim order in the same terms on 28 October 2016, this order will continue from the date of these orders until 27 October 2021.
Lump sum payment
The Mother also brings an application under s.123A (though such an application should be brought under section 123(1)(b)) of the Child Support (Assessment) Act 1989 for the child support payable by the Father to be paid by way of lump sum from his entitlement to property, calculated until X attains 18 years, to be credited against the amount payable under the relevant administrative assessment. To be satisfied it is appropriate to make an order, the court must be satisfied that it is just and equitable as regards the child, the carer entitled to child support and the liable parent, and otherwise proper[144]. The court must have regard to the administrative assessment and any departure determination in force in deciding the application for lump sum support[145]. In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a lump sum child support order the court must have regard to the matters in sections 117(4), (6), (7), (7A) and (8). Those matters relevant in this case include:
[144] Section 123A (1)(b)
[145] Section 123A(4)
a)The nature of the duty of a parent to maintain a child;
b)The proper needs of the child;
c)The income, earning capacity, property and financial resources of the child and each parent who is a party;
d)The commitments of each parent who is a party necessary to support that party or any other child that party has a duty to maintain;
e)The costs incurred by the carer in providing care for the child;
f)Any hardship that would be caused to the child, the parents, any other child or person the liable parent has a duty to support;
g)The manner in which the child is being, and in which the parents expected the child to be cared for, educated or trained; special needs of the child;
h)The capacity of the parent to derive income, including assets capable of producing income; and
i)Income foregone by the carer parent in providing that care.
The Court must be satisfied that the amount of the lump sum payment equals or exceeds the annual rate of child support payable for the child under the administrative assessment[146].
[146] Section 123A(1)(c)
The Mother believes she will not receive periodic payments of child support because the Father will lie about his working situation and about his financial resources as he has done in the past. If an order were made for periodic payments, it would be impossible to enforce because the funds are likely to be coming from his parents’ assets rather than from the Father’s. At present, the Father says he is making periodic payments only as a result of the goodwill of his mother. He chose not to have his mother available to give evidence as to how long she is prepared to keep paying child support on his behalf, a matter which could have been clarified.
The Mother’s counsel submits that if the Father is working and hiding it from the Mother, it will be impossible for the Mother to prove he is working and therefore she will not receive the child support to which she would have otherwise been entitled. Counsel also highlights the threats the Father has made in the past to stop child support which the Father acknowledges. In October 2014, the Father said to the Mother:
This is my mother’s idea and her money you are receiving. If it were up to me, you would get nothing – not a cent, because of everything you’ve done to me. I don’t work, so I believe the minimum I’d have to pay you is $39 per week.
In Prpic and Prpic (1995) FLC 92-574 the Full Court said as follows:
Capitalisation orders may well be appropriate where there are difficulties with enforcement or where it is proper to sever the financial link between the parties. However, as a general rule, given that payments of child support depend upon circumstances prevailing from time to time which circumstances cannot be predicted with any significant degree of certainty, it seems to us that the provision of child support by way of lump sum should not be considered to be a readily available alternative but one that is only exercised when there are circumstances that make it appropriate so to do.
I would have to be satisfied the periodic payments will not be made to make an order for lump sum maintenance. I do not take issue with the Mother’s counsel’s submissions. I accept that the Father has been financially dishonest and has threatened to stop payments in the past. However, he has not done so. In fact, he has paid child support well in excess of his liability under the child support assessment. I am satisfied that the Father does recognise his obligation to assist in X’s financial support and has not sought to defeat the Mother’s application to depart from the minimal assessment calculated by the Child Support Agency. On the contrary, the Father has sought to pay more child support than sought by the Mother, albeit for the limited period of 5 years.
Mushin J in Bendeich and Bendeich (1993) FLC 92-355, said at 79,754:
... the longer a lump sum order operates the greater the chance of a change in circumstances necessitating a variation of that order, thereby making the order unjust. Those changed circumstances might be in relation to the liable parent, custodial parent or the children. Incomes may increase or decrease and children may change their living arrangements from one parent to another.
X is only 3 years of age. There are likely to be a lot of changes in her life and in the parties’ lives. Her expenses are likely to increase. Both parties’ financial positions are likely to change in the future. The Father may be in a position to increase the level of the child support he pays. Given the history of the Father’s regular payments since separation, well in excess of his liability under the assessment, and given the orders for child support sought and agreed by him at hearing, I am not satisfied it would be just and equitable as regards X, the Mother or the Father to make a lump sum child support order.
As already noted, I have had regard to my determination in relation to child support in my determination as to each party’s entitlement to property.
I certify that the preceding two hundred and eighty eight (288) paragraphs are a true copy of the reasons for judgment of Judge Sexton
Date: 27 April 2017
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