Danaher & Danaher
[2023] FedCFamC2F 1058
•18 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Danaher & Danaher [2023] FedCFamC2F 1058
File number(s): NCC 1858 of 2021 Judgment of: JUDGE BETTS Date of judgment: 18 August 2023 Catchwords: FAMILY LAW – Parenting – one child, aged 8 years – where the parents currently live some distance apart – where the father has complex mental health issues – where the mother raises risk issues concerning the father’s mental health if he were to spend time with the child unsupervised – where the father seeks a gradual build-up of unsupervised time with the child during the school holidays – where the father seeks to be able to take the child to New Zealand – where the Court considers that the father poses no unacceptable risk to the child – where the Court orders that the father spend unsupervised time with the child with appropriate safeguards – best interest of the child.
FAMILY LAW – Property – fourteen year marriage – where the husband seeks 75% of the net assets – where the wife seeks 65% of the net assets – where the husband owned a property in New Zealand prior to the relationship – where the husband’s mother has a life tenancy in the New Zealand property – where the husband is in receipt of medical invalidity benefits and where wife remains in employment with primary care of the child – how the Court should deal with the husband’s New Zealand property – just equitable outcome.
Legislation: Family Law Act 1975 (Cth), Pt VII and Pt VIII
Land Transfer Act 1952
Land Transfer Act 2017
Cases cited: Black v. Kellner (1992) FLC 92-287
Harridge and Anor & Harridge and Anor [2010] FamCA 445
Isles & Nelissen [2022] FedCFamC 1A 97
M & M (1988) FLC 91-979
Mallett & Mallett (1984) FLC 91-507
MRR & GR (2010) FLC 93-424
Stanford & Stanford (2012) FLC 93-518
Division: Division 2 Family Law Number of paragraphs: 312 Date of last submission/s: 1 May 2023 Date of hearing: 17, 18 November 2022, 16 February 2023 and 1 May 2023 Place: Newcastle Solicitors for the Applicant: Self-represented litigant Solicitors for the Respondent: Self-represented litigant ORDERS
NCC 1858 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DANAHER
Applicant
AND: MS DANAHER
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
18 AUGUST 2023
THE COURT ORDERS THAT:
PARENTING ORDERS
1.That all previous parenting orders be discharged.
2.That the Mother have sole parental responsibility for the major long-term issues of the child X born in 2015 (“X”).
3.That X live with the Mother.
4.That X spend time with the Father as agreed in writing between the parents, and failing agreement as follows:
(a)during the Queensland end of term 3 school holidays in 2023, for five (5) consecutive days in Town B as follows:
(i)from 9am to 1pm on day 1;
(ii)from 9am to 2pm on day 2;
(iii)from 9am to 3pm on day 3;
(iv)from 9am to 4pm on day 4; and
(v)from 9am to 5pm on day 5;
with such time to occur on dates nominated in writing by the Father to the Mother at least fourteen (14) days prior;
(b)during the Queensland end of term 4 school holidays in 2023, for ten (10) consecutive days as follows:
(i)from 9am to 5pm on day 1 in Town B;
(ii)from 9am to 5pm on day 2 in Town B;
(iii)from 9am to 5pm on day 3 in Town B;
(iv)from 9am on day 4 to 12 noon on day 5, with the Father not to take X more than 50 kilometres away from Town B;
(v)from 9am on day 6 until 12 noon on day 8, with the Father not to take X more than 50 kilometres away from Town B;
(vi)from 9am on day 9 until 2pm on day 10, with the Father not to take X more than 50 kilometres away from Town B;
with such time to occur on dates nominated in writing by the Father to the Mother at least twenty-eight (28) days prior and not to include Christmas Day;
(c)during the Queensland end of term 1 school holidays in 2024:
(i)from 9am on day 1 to 2pm on day 4;
(ii)from 9am on day 5 to 2pm on day 8;
with such time to occur on dates nominated in writing by the Father to the Mother at least twenty-eight (28) days prior and the time may include X’s birthday;
(d)during the Queensland end of term 2 and end of term 3 school holidays in 2024:
(i)from 9am on the first Saturday after school finishes to 2pm on the second Sunday;
(e)during the Queensland end of term 4 school holidays in 2024:
(i)from 9am on the first Saturday after school finishes to 5pm on the third Saturday. IT IS NOTED that this will include Christmas Day;
(f)from 2025 onwards, during the Queensland end of term 1, end of term 2 and end of term 3 school holidays:
(i)in odd numbered years from 9am on the second Saturday after school finishes to 5pm on the third Sunday;
(ii)in even numbered years from 9am on the first Saturday after school finishes to 5pm on the second Sunday;
(g)from 2025 onwards, during the Queensland end of term 4 school holidays:
(i)in odd numbered years from 9am on the fourth Saturday after school finishes until 5pm on the last Saturday before school resumes;
(ii)in even numbered years from 9am on the first Saturday after school finishes until 5pm on the fourth Saturday;
(h)and unless otherwise agreed in writing between the parents, handovers are to occur at C Park in Town B.
5.Pending the Father completing the ‘Circle of Security’ Course and the ‘1-2-3 Magic’ Course and providing the Mother with a copy of his certificates of completion of both courses, overnight time pursuant to order 4 is not to occur and any overnight time will instead end at 5pm on the day in question.
6.The Father may communicate with X by way of telephone or video call as agreed in writing between the parents, and failing agreement as follows:
(a)on any Monday and Thursday that the Father does not otherwise spend time with X pursuant to these orders;
(b)on X’s birthday if the Father does not otherwise spend time with X pursuant to these orders;
(c)on Father's Day;
(d)on the Father’s birthday;
(e)on Christmas Day if the Father does not otherwise spend time with X pursuant to these orders;
with the Father to initiate the telephone or video call some time between 5pm and 6pm and the Mother to ensure that X is available, that the relevant device to be used by X is appropriately charged and in mobile service or internet range, and that the Father is able to communicate with X in as quiet and private an environment as can be arranged.
7.The Mother may communicate with X by way of telephone or video call as agreed in writing between the parents, and failing agreement as follows:
(a)commencing in 2024, on any Monday and Thursday that the Mother does not otherwise spend time with X pursuant to these orders;
(b)on X’s birthday if the Mother does not otherwise spend time with X pursuant to these orders;
(c)on Christmas Day if the Mother does not otherwise spend time with X pursuant to these orders;
with the Mother to initiate the telephone or video call some time between 5pm and 6pm and the Father to ensure that X is available, that the relevant device to be used by X is appropriately charged and in mobile service or internet range, and that the Mother is able to communicate with X in as quiet and private an environment as can be arranged.
8.For the purposes of orders 5 and 6, the parents are to advise each other of their current mobile telephone number and address, and notify the other in writing of any change within twenty-four (24) hours of such change occurring.
9.While X is in either parent’s presence or hearing, that parent is restrained from:
(a)criticising or making derogatory statements about the other parent, or about any member of the other parent’s family or household;
(b)allowing any other person to criticise or make derogatory statements about the other parent, or about any member of the other parent’s family or household;
(c)physically disciplining X or threatening him with physical discipline.
10.Each of the parents is restrained from bringing X into physical contact with the maternal uncle Mr D unless at all times that parent, or another adult, is to be present.
11.These orders authorise:
(a)any school/s attended by X to provide to each parent (at the parents’ own expense) a copy of all X’s school reports, school correspondence, school photographs (and photograph order forms) and all other correspondence or documents relating to X which are ordinarily provided by the school/s to a parent;
(b)any doctor/s attended by X to provide to each parent (at the parents’ own expense) any medical information relating to X, including copies of any medical reports or the results of any medical testing.
12.For the purposes of order 11b, a parent who takes X to consult a doctor must:
(a)at the time of the appointment, advise the doctor of the terms of this order, including showing a copy of the order to the doctor or giving them a copy of the order if requested; and
(b)as soon as possible after the attendance, notify the other parent about it in writing including giving the contact details of the doctor, the reason for the attendance, and details of any diagnosis or advice given by the doctor and any medication prescribed.
13.Each of the parents is to do all acts and things to ensure that X has a valid Australian passport at all times, with the Father to pay the costs associated with lodging the passport application. The Mother is to hold X’s passport at all times except when the Father requires the passport to travel with X to New Zealand in which case the Mother is to give X’s passport to the Father at handover and he is to return the passport to her at the first handover after he and X return to Australia.
14.Commencing in the Queensland end of term 4 school holidays in 2024, the Father may travel with X to New Zealand. Unless otherwise agreed between the parents in writing, such travel is only to occur during periods when the Father is spending time with X pursuant to these orders and is not to occur more than once in each four (4) consecutive Queensland end of term school holiday periods.
15.For the purposes of order 13, at least thirty (30) days prior to travelling the Father is to give the Mother:
(a)notice in writing of his intention to travel, including an itinerary for himself and X, and contact telephone numbers and address details where he and X will stay in New Zealand; and
(b)copies of return airline tickets to Queensland.
16.For the purposes of these orders, “writing” refers to an exchange of messages between the parents via a parenting App, or by text if the parents have not agreed upon the use of a parenting App. THE COURT ENCOURAGES the parents to agree upon the use of a parenting App.
PROPERTY ORDERS
17.That a base amount of $155,865 is allocated, as required by section 90XT(4) of the Family Law Act 1975, MS DANAHER (‘the Respondent’) out of MR DANAHER (‘the Applicant’)’s interest in the Super Fund 1.
18.That in accordance with section 90XT(1)(a) of the Family Law Act 1975:
(a)The Respondent is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and
(b)The Applicant's entitlement to payments out of his interest in the Super Fund 1 and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of these Orders.
19.That the Trustee of the Super Fund 1 (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Respondent by Order 2; and
(b)pay the entitlement whenever the Trustee makes a splittable payment out the Respondent’s interest in the Super Fund 1.
20.That these Orders have effect from the operative time and the operative time for this Order is four (4) business days after service upon the trustee of a certified copy of these Orders.
21.That these Orders bind the Trustee of Super Fund 1.
22.That the Applicant will retain all right, title and interest in the property known as E Street, City F, New Zealand to the exclusion of the Respondent.
23.That, unless otherwise specified in these Orders and as between the parties:
(a)Each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of that party as at the date of these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the Bank’s record thereof; and
(b)That, except as otherwise provided for by these orders, each party is solely responsible for, and shall indemnify and keep indemnified the other party against any obligation to pay any part of, all debts and liabilities, including contingent liabilities, standing in their respective sole names at the date of these orders.
24.That, if either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Newcastle Registry of the Federal Circuit Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.
25.The wife is to serve the Trustee with a copy of these orders as soon as possible.
26.Liberty is granted to the parties and the Trustee to seek to relist the proceedings by way of email to [email protected] in the event of any issue arising concerning the super splitting orders.
OTHER ORDERS
27.The Wife’s Application in a Proceeding filed 10 November 2022 is dismissed.
28.Should either party wish to seek a costs order against the other having read these Reasons, then that party is to bring an Application in a Proceeding within twenty-eight (28) days, supported by an affidavit, any costs schedule and written submissions. Absent the filing of any such Application, the matter will be removed from the list of active pending cases.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
OVERVIEW
These are complicated parenting and property settlement proceedings arising out of the breakdown of the marriage between Mr Danaher (“the husband”) and Ms Danaher (“the wife”).
The husband was born in New Zealand in 1971 and is aged 52. Since being medically discharged from his employer in 2021, he has remained unemployed. He is entitled to a invalidity pension as a result of his various injuries.
The wife was born in Australia in 1974 and is aged 49. She works in office administration.
The parties commenced cohabitation in Australia in 2006 and married in 2008. In 2015 the wife gave birth to their only child, X who is presently eight (8) years of age.
The parents’ relationship was emotionally distant throughout and at times somewhat unstable and volatile. Each of the parents has mental health issues and each of them perpetrated family violence at different times.
Final separation occurred in November 2020 when, in the course of an argument, the husband dragged the wife into the bathroom, grabbed a razor and made a threatening motion of ‘slashing his wrist’ though he did not actually go through with it. The wife was extremely frightened if not terrified, backing out of the room while keeping an eye on him and telling him “This is not OK behaviour, just stop it”. She then quickly left with X and complained to Police, who took out an Apprehended Violence Order (AVO) for the wife’s protection as well as charging the husband with the offence of ‘stalk/intimidation’.
Since then, X has lived exclusively with the wife who was essentially homeless for the ensuing seven (7) or so months. In that period the wife facilitated around five (5) x one (1) hour supervised visits with the husband at a local McDonalds which, given the events of 3 November 2020, were informally supervised by the wife and a friend.
In mid-2021 the wife relocated with X from the City G region to Town B, a small country town in Queensland where she lives with the maternal grandmother. The husband initially objected to the relocation and instituted these proceedings. But he too then relocated away from the City G region, citing rental unaffordability. He moved to Town H, a small country town in New South Wales which is some seventeen (17) hours’ drive away from Town B.
The parenting proceedings largely revolve around the husband’s mental health issues and any associated risks he poses to X. His mental health and functioning are complex issues and have been examined by numerous experts over many years, including experts specifically appointed for the purposes of these proceedings.
The parents agree that X should remain living with the wife. The dispute primarily relates to the arrangements that should be put in place in order to foster the father/son relationship going forward.
The wife is concerned about the risks posed to X as a result of the husband’s mental health condition. That said, she said she will abide the Court’s decision. If the Court considers that the husband does pose an unacceptable risk of harm to X, the wife’s case is that there should be supervised time only. If the Court does not find an unacceptable risk, the wife concedes that the husband’s time should be unsupervised and include weekend and school holiday time.
The husband contends that there are no risk issues and he seeks unsupervised time with X during school holidays. Fundamentally, the husband just wants to be able to see his son, even if it starts just with day visits graduating to overnights.
Regardless of the outcome, both parents agree that the husband should be able to travel with X to New Zealand - but on the wife’s case it may require that they be accompanied by an agreed supervisor.
Aside from risk, issues of cost and practicality inevitably arise given the tyranny of distance. Those issues are further exacerbated if the Court makes an order for supervision.
In relation to the property proceedings, the parties are poles apart. The husband seeks 75% of the net assets and the wife seeks 65%.
The property proceeding also has its complexities. The major asset is an unencumbered home in New Zealand which was already owned by the husband before the parties met. It had been the husband’s childhood home and, following his parents separating, in the 1990s, the husband purchased his late father’s half share of the home so that his mother could remain living there. His mother later transferred her half share to the husband and the two of them entered into a Memorandum of Lease for Life (the ‘Lease’), which purports to create a life tenancy in favour of the husband’s mother. His mother has remained living there to this day and, at 83 years of age, intends to live out her days there.
The husband disputes that the wife has any claim in respect of the home and he opposes any orders being made in respect of the home. Given the Lease, he contends that the home should not be treated as an ‘asset’ at all, but rather as a ‘financial resource’. But if the home is to be treated as an asset, he contends that it should be quarantined from the other assets for the purposes of the contributions assessment as the wife’s contributions towards the home are de minimis.
The wife contends that the Lease is not valid, that the home should be treated as an asset and that the contributions should be assessed globally over all the assets including the home. She simply seeks that the husband pay her a cash sum which equates to her retaining 65% of the net matrimonial property – including the value of the home.
Though the husband’s mother is aware of the proceedings and has sworn an affidavit in support of the husband, the wife has not joined her as a party. If the Court makes the order the wife seeks, the husband will have to raise a significant cash sum and, given his modest other assets, this would likely require that the home be sold, thereby trampling whatever right the husband’s mother may have to remain in occupation pursuant to the Lease or otherwise. Very deliberately, the wife elected not to seek any specific orders in respect of the home by way of enforcement or otherwise.
The husband’s mother’s right to occupy the home was the proverbial “elephant in the room”. For that reason, on the first day of the hearing the husband’s counsel Ms Ticehurst objected to the wife’s form of order, contending that as she was not a party the order would be unenforceable against the husband’s mother. The husband’s counsel Mr Jackson replied that the wife was at this stage seeking specific relief in respect of the home and that if questions of enforcement arose later on then the wife would “take the risk”.
The major issues in the property proceedings relate to the home and in particular:
·the validity of the Lease;
·whether the home should be treated as an asset or as a financial resource;
·how the Court should assess the parties respective contributions in respect of the home; and
·more broadly, whether it would be ‘just and equitable’ for this Court to make any orders which, in order to be enforced, will likely require the sale of the home in circumstances where the husband’s mother’s rights may be thereby trampled.
There are also various other factual and legal disputes concerning the parties’ respective contributions and future needs, and issues relating to the financial disclosure of the parties, particularly the husband.
FINAL HEARING & MATERIAL RELIED UPON
At the hearing, Ms Ticehurst of counsel appeared for the husband and Mr Jackson of counsel appeared for the wife.
The hearing was originally listed for two (2) days on 17 and 18 November 2022. Unfortunately, in the course of the hearing it emerged that the husband had failed to disclose a recent Permanent Impairment Claim that had been lodged on his behalf with the J Authority. As a result, the matter had to be adjourned part-heard to 16 February 2023. The husband was ordered to pay the wife’s costs thrown away in the amount of $4,235, to be treated as a distribution to the husband for the purposes of the proceedings. The husband was also ordered, within fourteen (14) days, to file and serve an affidavit setting out the relevant circumstances concerning the J Authority claim and to issue the relevant subpoena to J Authority.
In the intervening period, the husband’s solicitors filed a Notice of Ceasing to Act.
When the proceedings came back before me on 16 February 2023 the husband appeared in person, representing himself. Mr Jackson again appeared for the wife, this time by video-link. The husband had not complied with the previous orders. But he had filed an affidavit that very day in which he addressed his J Authority claim, including deposing that he had since withdrawn it on 8 December 2022. The husband also produced a bundle of further documents which he sought to tender. Unsurprisingly, the wife formally objected to this late material.
In the circumstances the matter was stood down to later in the day so that Mr Jackson could consider the husband’s material and take further instructions. Ultimately, when the matter was called back on I gave the husband leave to rely upon his affidavit, subject to the wife’s evidentiary objections to various paragraphs. The matter was otherwise adjourned to 1 May 2023 for closing submissions. The orders specifically noted that on 1 May 2023:
·the Court would rule on the wife’s evidentiary objections to the husband’s affidavit;
·the wife wished to cross-examine the husband on the affidavit; and
·the husband could orally apply to re-open the evidence for the purpose of tendering the bundle of documents he had produced and that the Court had not yet ruled on any such application.
When the matter came back before me on 1 May 2023, the husband appeared by telephone. Mr Jackson appeared by video-link, uninstructed. He informed me that his former instructing solicitors had withdrawn because the wife could no longer afford their services.
Mr Jackson withdrew the wife’s formal objections to the husband’s affidavit, instead simply contending that it not be given any weight. Mr Jackson did not seek to further cross-examine the husband on it. For his part, the husband did not apply to re-open the evidence and tender further documents.
The husband was quite emotional. He said he was now not only impecunious but “homeless” as well. He said that even though the Court should make parenting orders for him to see X, he did not have the financial capacity to implement such arrangements and that the wife would frustrate such orders in any event. He accused the wife of teaching X to “hate him” and said that she would never allow he and X to have a relationship. Essentially, he blamed the wife for his current predicament, and the Court for enabling her. It took some patience and effort on my part to keep him focussed on the issues that the Court had to decide and after a while, he was able to engage. At the end of the hearing, judgment was reserved.
For the purposes of the hearing, the husband ultimately relied upon the following documents:
(a)Case Outline Document filed 15/11/22;
(b)Amended Initiating Application filed 20/10/22;
(c)Affidavit of the husband filed 20/10/22;
(d)Financial Statement of the husband filed 14/11/22 (filed late but leave given);
(e)Affidavit of the husband’s mother Ms K filed 15/11/22 (filed late but leave given);
(f)Updating affidavit of the husband filed 16/02/23 (filed late but leave given).
The wife relied upon the following documents:
(a)Case Summary Document filed 13/11/22 (which included the wife’s proposed Minute of Order);
(b)Affidavit of the wife filed 17/10/22;
(c)Financial Statement of the wife filed 17/10/22;
(d)Further response affidavit of the wife filed 15/11/22 (filed late but leave given).
In the course of the hearing, the parties also tendered various other exhibits, including expert affidavits and reports. These will be referred to as relevant. The wife further refined her proposed parenting order and this became exhibit 10.
The wife had also filed an Application in a Proceeding on 11 November 2022, shortly prior to the first tranche of the hearing. By that Application she had sought to access moneys held by her in a specific bank account in order to pay her legal costs for the hearing. By orders of 7 June 2022, she had been restrained from accessing such moneys without the husband’s consent or an order of the Court. The wife’s application was supported by an affidavit of herself, and an affidavit of her solicitor, both filed 10 November 2022. On 14 November 2022 the husband filed a Response and affidavit of himself opposing the Application.
I have had regard to these ‘costs’ affidavits in the substantive proceedings, as they provide the Court with useful evidence as to each party’s expenditure on legal costs not otherwise contained in their trial affidavits. The costs application was rather curious however in that, while it was not actively pressed at the hearing, nor was it formally abandoned. In closing submissions Mr Jackson asked that the Application still be considered “live” notwithstanding that its purpose had been to fund representation at a hearing which was by then complete.
PART I – THE PARENTING PROCEEDINGS
THE LAW
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Pursuant to s 60CA of the Act, the Court must make parenting orders which are in the ‘best interests’ of the child concerned. In arriving at a ‘best interests’ determination, s 60CC of the Act prescribes ‘primary’ and ‘additional’ considerations to which the Court must have regard and is in the following terms:
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Given the focus on risk in this case, I would observe that s 60CC(2)(b), as further explained by s 60CC(2A), requires the Court to make orders that are appropriately protective of children. Relevantly, ‘abuse’ of a child is defined in s 4 of the Act as including an assault on the child, serious neglect of the child, or causing the child to suffer serious psychological harm. ‘Family violence’ is comprehensively defined in s 4AB.
In M & M (1988) FLC 91-979, the High Court of Australia held that a parenting order will not be made where such order exposes the child to an ‘unacceptable risk’ of harm. Though the relevant provisions of the Act have since been amended, the ‘unacceptable risk’ test remains good law. Determining whether or not a risk is ‘unacceptable’ requires the Court to consider both the likelihood and magnitude of future risks. It is not a discretionary assessment but an evidence-based conclusion. [1]
In the unreported decision of Harridge and Anor & Harridge and Anor [2010] FamCA 445, Murphy J helpfully reviewed a number of relevant authorities relating to ‘unacceptable risk’, observing that the question of unacceptable risk directs Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, the facts could be said to raise an unacceptable risk of harm to the child.
Murphy J said it was extremely important in a parenting case to identify the nature of the risk or risks said to be present and how, and the extent to which, the identified risk or risks are said to impact on orders reflecting best interests. His Honour went on to observe that:
71.Frequently (I would venture, too frequently) “risk” is referred to as an all-embracing term, a “general” finding of which can (purportedly) be seen to have some form of “ipso facto consequences” for the orders made. Yet, “risk” is, without more, but a convenient description; orders must, surely, address its constituent components which must, axiomatically, vary according to the circumstances of each case.
In the context of risks to children, it should also be noted that, pursuant to s 68B of the Act, the Court may grant injunctions in order to protect a child where such injunctions are considered ‘appropriate’ for the child’s welfare.
I will briefly touch on the concept of ‘parental responsibility’ and the related statutory pathway.
Section 61B of the Act defines parental responsibility in relation to a child as meaning ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.’ Pursuant to s 61C of the Act, each of the child’s parents has parental responsibility subject to Court orders. When making a parenting order in relation to a child, the Court is to apply a presumption that it would be in the best interests of the child for the parents to have equal shared parental responsibility: s 61DA(1). That presumption does not however apply if the Court has reasonable grounds to believe that a parent has, amongst other things, engaged in ‘family violence’: s 61DA(2).
If an order is made for equal shared parental responsibility, then the statutory pathway in s 65DAA of the Act is engaged and the Court must consider making an equal time order as the first option. Section 65DAA also requires the Court to consider the ‘reasonable practicability’ of any proposed parenting orders: see the decision of the High Court of Australia in MRR & GR (2010) FLC 93-424.
SHORT HISTORY
Each of the parents suffered mental health difficulties; their relationship was emotionally distant but at times things could become quite volatile. I accept the husband’s evidence that from time to time the wife expressed suicidal ideations and damaged some of their joint property. I accept the wife’s evidence that early in the marriage the husband assaulted her a number of times leaving bruising.
In 2007 the husband contracted a medical condition, requiring emergency hospitalisation. He remained in hospital for a week, undergoing treatment and being administered medication. After his recovery, he found that he suffered from migraines, memory ‘blackouts’ or vague periods, and he had trouble concentrating and processing information. He began to struggle at work, which was not helped by his sense (rightly or wrongly) that he was being bullied by his superiors and ‘set up to fail’. In short, life became much more of a struggle for the husband.
After X’s birth in 2015, the parents adopted what might be called ‘traditional’ roles. The wife had taken time off work while pregnant (due to complications) and after X came along she immediately took on the role of primary carer. She remained off work for around the first eighteen months of X’s life, attending to all of his day-to-day needs during that time. After the wife returned to the workforce, she still remained X’s primary carer. The husband worked full-time throughout and there is dispute about the exact extent of the husband’s day-to-day involvement with X when he was at home. On the basis of the wife’s evidence I find that at times the husband and X had some difficulty communicating and that the husband could misinterpret X’s misunderstandings or mistakes as deliberate misbehaviour. But whatever the exact dynamics of the father/son relationship, they were able to develop a loving and meaningful relationship over time.
Both parents physically disciplined X on occasions. The husband kept a ruler at home, on one side of which was written “swift to deploy” and on the other “behavioural Adjustment tool”. Both parents hit him with it on rare occasions. Though use of an implement in this way could potentially constitute an assault and therefore ‘abuse’ as defined in the Act, X was never physically injured on such occasions. The ruler was kept on display primarily as a psychological tool to manage X’s behaviour.
The parents travelled with X to New Zealand either annually or every second year, staying with the husband’s mother in the New Zealand home. Despite tensions in their relationship, those trips were uneventful. In early 2020 the husband took X to New Zealand on his own for twelve nights. The wife did not attend as her passport had expired. The wife trusted the husband to care for X appropriately – and he did. They returned home on the due date.
By that stage the parents’ relationship was all but over. They were not communicating much; they had not shared a bedroom for some years. The wife would go away on weekends so she could ‘have some space’ and while away she left X in the husband’s care. She trusted him to care for X appropriately and nothing untoward occurred.
In late 2020 the husband received a transfer to Adelaide for two (2) years, effective from early 2021. The wife told him she would not be coming.
Against that backdrop, on 22 September 2020 the parents entered into a Parenting Plan whereby it was agreed (amongst other things) that the wife and X would relocate to Town B and that the husband would spend holiday time with X including being able to take him to New Zealand. Whatever interpersonal difficulties the parents had experienced to that point – and there were many – they had nonetheless been able to navigate X’s future care arrangements in an amicable and child-focussed manner.
The events of November 2020 referred to earlier, changed the entire landscape. Though the husband had been violent to the wife many years before, this particular event was extremely frightening if not terrifying - and completely out of character. The wife’s trust in the husband was deeply shaken.
Sensibly, the husband self-admitted to hospital for mental health treatment in November, remaining there until his discharge. He thereafter attended for some CBT sessions with a psychologist, as well as consulting with his GP.
The husband consented to a final AVO being imposed for twelve months, which was varied soon after on the wife’s application to include requirements that the husband not go within one hundred (100) metres of the wife’s home or workplace.
I observed earlier that the wife and X were essentially homeless for the next seven (7) months prior to the relocation. During this period they stayed with various different friends in the greater City G region.
In early 2021, the husband’s employer decided to medically discharge the husband. By that stage he was no longer agreeable for the wife to relocate with X to Town B and told her so.
The wife was anxious about the husband’s mental state and about X’s safety with him. She decided to relocate to Town B over his objection and without telling him in advance.
During a supervised visit on 21 May 2021 X told the husband that he and the wife were moving; at that time the wife falsely denied it.
On 1 June 2021, when she had already left, the wife emailed the husband in these terms:
Hi [Mr Danaher], We are going to Qld. Regards, [Ms Danaher]
On 4 June 2021, the husband instituted these proceedings seeking X’s return to the City G region. But he then relocated to Town H and, shortly before the first return date, his solicitors advised the wife’s solicitors that he would no longer be pressing X’s return.
On 24 June 2021 (the first return date) the parents entered into consent orders on an interim basis whereby X was to live with the wife, the husband was required to undertake a mental health assessment and Mr L was appointed as single expert to prepare a Family Report. Orders were also made for the husband to have video-calls with X:
3.Pending a mental health assessment of the Applicant father, he shall communicate with the Child via Skype or FaceTime or WhatsApp or Microsoft teams or Zoom between the hours of 4pm and 6pm on a Tuesday and Thursday.
The implementation of order 3 soon became problematic. On 14 July 2021 the wife texted the husband in these terms:
Dear [Mr Danaher], Video calling availability is Tuesdays and Thursdays around 7pm. As it always has been. Please notify 12 hrs approx before your call so I can prepare the tablet device. [Ms Danaher]
While it may have been more convenient and orderly for the wife to be given the requested notice, order 3 did not require it. The husband objected to the notice requirement but the wife nonetheless declined to answer a number of his calls on the basis of him failing to give such notice.
On 11 October 2021, Mr L conducted the Family Report interviews and observations in Sydney. This is the last time that the husband has seen X face-to-face although the interaction was only brief because the husband had to quickly be removed after Mr L found out that he was not vaccinated against Covid-19. A comprehensive Family Report was issued on 3 November 2021 (exhibit 1). In it, Mr L recommended that the husband undertake the 1-2-3 Magic Course, the Circle of Security Course, and that the husband spend unsupervised time with X during school holiday periods including being able to take him to New Zealand.
Dr M, Clinical & Forensic Psychologist, undertook the husband’s mental health assessment. He issued a comprehensive report dated 1 November 2021. He was specifically asked to consider whether the husband’s mental health impacted his parenting capacity or otherwise exposed X to a risk of physical or psychological harm if the husband was to care for him. He concluded that the risk was ‘moderate’.
Around the same time the husband was separately assessed for work compensation purposes by a Psychiatrist, Dr N. Dr N issued a report on 25 November 2021 (exhibit 3). This report raised the spectre of an organic problem – namely an acquired brain injury arising out of the husband’s 2007 medical condition. Worse, Dr N considered it to be progressive in nature.
Due to border closures, the wife and X had found themselves ‘stuck’ in New South Wales for around nine (9) weeks after the Family Report interviews. During this time the wife and X were again essentially ‘homeless’, with the wife having to take up some short-term accommodation with relatives and enrol X in distance education. Pointing to the Family Report recommendations, the husband asked to spend some time with X during this time. The wife did not agree, although the video-calls continued.
In December 2021 the wife and X returned to Town B.
Between January 2022 and August 2022, the husband went back to New Zealand to live with and support his mother whose health was not good. He did not tell the wife he had gone; nor did he tell her when he returned to Town H. Both in Australia and in New Zealand, the husband consulted with a GP and received mental health treatment.
In 2022, Dr M was provided with a copy of Dr N’s report. Noting the complexity of the husband’s presentation, Dr M recommended formal assessment of the husband’s cognitive function by a neuropsychologist. Depending upon the outcome of that assessment, Dr M suggested that he (or another forensic specialist) may be able to integrate such findings into a parenting capacity assessment. [2]
In light of that recommendation, another single expert was appointed to assess the husband, Consultant Clinical Neuropsychologist Professor Mr O. He prepared a comprehensive report of 9 October 2022 (exhibit 2). Broadly, he found that the husband’s cognitive performance was in the average range, that there was no progressive brain injury and that the concerns about the husband’s functioning were of a psychological nature.
I will refer in more detail to the reports and oral evidence of the above experts later in these Reasons.
BEST INTERESTS FINDINGS
Primary considerations in s 60CC(2)
The wife and X have a loving and meaningful relationship. She has always been X’s primary carer and she will continue in that role on either parent’s proposed orders. The husband agreed that X should remain living with the wife, reasoning that X would be “happiest” with her.
Despite his limited face-to-face time with the husband, Mr L observed a relationship of obvious affection between father and son at the Family Report interviews. He witnessed mutual smiling and a warm interaction. He described this observation as “very telling forensic evidence” which was inconsistent with X being in any way an “alienated child”. I respectfully agree. [3]
In my view X would benefit from the opportunity to foster his ongoing relationship with the husband. The challenge here is balancing that benefit against any associated risks.
The risks to X
Notwithstanding his position that X should stay living with the wife, the husband made some particularly serious allegations against her which he adamantly maintained throughout the hearing. For instance, he accused her of holding a knife to his throat on two (2) occasions, and twice deliberately endangering his life while they were driving. He says the first occurred when she unexpectedly pulled the handbrake at speed (nearly causing a collision with an oncoming vehicle) and the second occurred when she drove through an intersection so as to cause them to be hit by another vehicle (on the passenger side where the husband was sitting) which he says she later admitted was a deliberate attempt to kill him. The husband also said that when X was a young boy he had twice seen the wife hit him with such force as to cause him to “drop to the ground” though she apparently later apologised to the husband for doing it.
The wife denied these allegations. She said for instance that the collision was entirely accidental. Broadly, she accused the husband of embellishing or exaggerating the extent of her mental health issues which she said had been well-managed, particularly since 2011. She denied that her mental health has ever posed any risk to X.
Given the way in which the hearing was conducted and the issues that are in dispute, it is unnecessary for me to further explore these risk allegations beyond what I have already said at paragraph 47 of these Reasons.
I now turn to the crux of the case – the risk issues relating to the husband. Pointing to the husband’s complex mental health issues and associated functional deficits, she fears that unsupervised time places X at risk of suffering serious physical and/or psychological harm. She says such risk is unacceptable and can only be rendered acceptable by imposing a requirement for supervision.
In relation to the risk of physical harm, the wife points to the following:
·because of the husband’s condition, he and X at times have difficulty understanding each other. Given that the husband has rather a suspicious and paranoid way of thinking, the wife fears that a miscommunication will be wrongly interpreted by him as deliberate defiance. In turn she fears that the husband will become angry or frustrated with X and potentially physically discipline him, perhaps excessively;
·because of the husband’s condition, the wife fears that he may be neglectful of X’s basic care and safety needs in a given situation. She would be particularly concerned about this if the husband does in fact have a progressive brain injury as Dr N suggested.
But it is the risk of psychological harm which troubles the wife most. Indeed, in the witness box she said that the psychological risks were the only reason she sought supervision. In a nutshell, her concern about psychological harm is that:
·the husband now has a persistent negativity (if not hatred) of her, probably worsened by his mental condition. As a result he talks about her to X in a negative way, and that he does so without necessarily even realising it. She fears that his condition robs him of any insight about this and that he therefore cannot develop the appropriate self-restraint. She says that X is too young to be able to deal with such denigrating and manipulative behaviour, the exposure to which she fears will ultimately be psychologically destructive to X.
The psychological risk was also the primary concern of the Family Report writer.
Although in the witness box the husband denied any intention to manipulate X, he willingly agreed at the same time that he believes that the wife does not want the husband to have any relationship with him. He even volunteered that the wife made him “physically sick”.
I accept the wife’s evidence that the husband has written letters to X in which, although there were many positives, he had also said such disparaging things as “Mummy wants to keep us apart”; and “Dear X, I hope Mummy will read this letter without bias.” [4]
I also accept the wife’s evidence that during some video-calls with X the husband has openly criticised her, or her parenting of him. When the husband was in New Zealand in 2022, she heard him say to X things like:
·“Why has mummy turned the video off?” in an accusing tone;
·“Have you received my birthday gift to you yet? Has mummy destroyed it?”
I accept the wife’s evidence that X has seemingly become uncomfortable on occasions and that he has told her such things as that “Daddy doesn’t respect me and listen to me sometimes”, “Daddy is lying to me” and “I don’t want to talk to Daddy tonight.”
All of these risks revolve around the husband’s complex mental health issues. It is useful to begin therefore by referring to the expert evidence.
Psychiatrist, Dr N
Dr N found it very difficult to get a coherent history from the husband whose conversation was “extremely tangential and concrete.” The husband recognised his own anxiety but tended to externalise his problems, obsessively ruminating about his marriage breakdown.
Given the husband’s high level of disorganisation and his complex symptom presentation, Dr N performed some cognitive tests which were suggestive of brain dysfunction, consistent with Dr N’s observations as to the husband’s presentation.
Ultimately Dr N considered that the husband’s problems were essentially organic in nature, traceable to his 2007 medical condition, which he suspected had led to a gradual and progressive decline in the husband’s cognitive performance. He formally diagnosed the husband with:
·Major Depressive Disorder; and
·an Acquired Brain Injury Secondary to a medical condition.
Dr N assessed the husband as being impaired in the 25% - 30% range, of which his cognitive impairment was a major contributor. He said the husband required ongoing psychological therapy and daily medication. According to Dr N, the husband “certainly displays a loss of self-control and he does not appear to have learned from his experiences.” Dr N did not anticipate any significant improvement in functioning; rather he expected the husband’s condition to progressively worsen over time.
Consultant Clinical Psychologist, Professor Dr O
Helpfully, Professor Dr O reviewed and summarized the large volume of medico-legal evidence relating to the husband, including the reports of Dr N and Dr M to which I will turn shortly.
Professor Dr O took a history from the husband as well as conducting his own neuropsychological assessment. The husband complained about short-term memory problems, including completely forgetting to have done something (described as being akin to a ‘blackout’), every four (4) to six (6) weeks. Although the husband could manage his self-care and the activities of daily living, he suffered from pervasive anxiety and depression. Though he had not had a migraine for some years, he was still taking his prescribed medications to manage same. He also took an anti-depressant for anxiety.
As noted earlier, Professor Dr O found that the husband’s cognitive performance was in the average range. He had average memory function, low average executive functioning and somewhat slow cognitive processing speed. These were unchanged from previous assessments, which was inconsistent with his condition being progressive in nature.
Professor Dr O administered the Personality Assessment Inventory (‘PAI’). The results showed significant elevations across several clinical scales, increasing the possibility of multiple diagnoses. He found the husband’s thinking to be peculiar in some respects, that he was likely to be socially isolated and with limited warm interpersonal relationships. He found the husband to be hyper-vigilant, with significant suspicion and hostility and probable impairment due to somatic symptoms.
Although the PAI results contained some inconsistencies which are relatively common among persons who are feigning mental disorder, Dr O observed that:
Nonetheless, profile patterns of this type are usually associated with marked distress and unless there is extensive distortion or exaggeration of symptomatology severe impairment in function is typically present.
Ultimately, Professor Dr O raised three (3) possible diagnoses for the husband:
·Post-traumatic stress disorder (‘PTSD’);
·Major depressive disorder, single episode, unspecified; and
·Persistent depressive disorder.
Professor Dr O considered that the husband’s medical condition had resulted in perhaps a mild attenuation of his processing speed and, to some extent, his executive function. But he concluded that these features are not progressive and do not impact the husband’s parenting capacity in any conspicuous way. His primary concerns about the husband were psychological in nature and in that respect Professor Dr O deferred to the opinion of Dr M.
The Professor was briefly cross-examined at the hearing. Ms Ticehurst had no questions; Mr Jackson’s were only very brief and did not cause him to in any way modify his opinions.
Clinical and Forensic Psychologist, Dr M
Dr M interviewed the husband by audio-visual link over different days in September and October 2021. He found the husband cooperative, but clearly anxious (if not paranoid). His answers were somewhat egocentric and often led off on irrelevant tangents.
The husband’s presentation revealed serious deficits of insight. He did not have a good grasp of the overall complexity and dynamics of the parenting dispute; instead he simply conveyed the view that the wife was being malicious and controlling and that she “doesn’t want me to have any access to my son.” He described himself as an introverted loner, who has difficulty trusting others as in his experience “people are cruel”. He admitted to past anger management issues, but at the same time accused the wife of “baiting him”. He said that that anger was no longer an issue for him.
Dr M considered that the husband had chronically low insight into, and poor emotional awareness of, his own anxiety symptoms. He simply suppressed anxiety, which in turn generated somatic physical complaints (such as the migraines). He explored a possible autism diagnosis, finding that while some traits were present, they were insufficient to make a positive diagnosis.
Dr M administered the PAI, which revealed high levels of defensiveness, that he was generally tense, unhappy and pessimistic, had limited social skills, significant suspicion towards others and was very uncomfortable in social situations.
Dr M also administered the MCMI-IV personality assessment. This revealed some marked challenges for the husband. It confirmed that he was distrustful and suspicious by nature and extremely sensitive to ridicule and rejection by others. He is highly defensive, socially withdrawn and may come across as eccentric, with de-personalised and at times peculiar thinking. He may also lack the self-esteem to appropriately express his anger if he feels publicly reproached or humiliated. As Dr M observed:
…[H]is inner template on which he relies for understanding and interpreting reality is likely to be at times compromised.
Dr M considered that all of these features coalesce to form a self-fulfilling pattern of ongoing anxiety, social isolation, low self-esteem, a sense of alienation, and ineffectual social patterns:
The MCMI-IV indicates that [Mr Danaher] is experiencing a moderate level of impairment on traits of Paranoid, Avoidant and Schizoid Personality Disorder. His diffuse condition as indicated by trait impairment on MCMI-IV has at times resulted in clinical syndromes in the areas of dysthymia and severe anxiety disorder. [Mr Danaher]’s history suggests the presence of these traits although his functional level appears to be better than that predicted by the test.
Although a raft of diagnostic possibilities are raised by the test…his condition is best characterised by mixed personality disorder with paranoid, avoidant traits, with underlying long-term low self-esteem, (dysthymia) and generalised anxiety.
Ultimately though, as Dr M observed:
Diagnostic clarity can be poor and from the perspective of a parenting assessment the critical issue is not so much the diagnosis but the impairments.
Dr M addressed the risk issues in his report as follows (footnotes deleted):
94.Risk Assessment. The primary requirement asked of me was for a risk assessment for [Mr Danaher] in the context of parenting capacity and mental health. As such, a risk assessment in regards to general parenting risk was undertaken with [Mr Danaher]. Risk assessment refers to attempting to structure ways of dealing with uncertainty. It is, by its nature an exercise in probability. There are two broad types of data used in risk assessment. The first of these data types refers to historical or static variables, so called because they are invariant – such as a person’s gender, whether they have previous convictions and the like. The second type refers to dynamic factors, often called “dynamic needs” and can be altered by time, treatment or opportunity. The critical issues in considering the assessment of risk is aligning the level of risk identified with the management strategies required to ameliorate that risk.
95.For the current assessment the assessment of dynamic risks (those changeable by time or treatment) was utilised. Since there has been no child protection notification, it is not appropriate to use an actuarial device as the minimum requirement for using such a device is a child protection history.
96.A tool developed to assess dynamic indices of risk, pioneered in the United States and adapted by Dr Chris Lennings for work in Australia is the Family Strengths and Needs Assessment (Bolton and Lennings, 2010). The aim of this assessment is to compare the child protection risks a person may pose against a set of thirteen risk factors known to be of specific importance in predicting such risk…
97.The philosophy behind structured clinical assessment is that of needs assessment. Needs represent deficit conditions, it is proposed that offending (in this case child abuse) behaviours occur out of a set of generally specific needs. For instance, criminal activity is more common among those with substance abuse problems, mental health problems, accommodation instability, and the like. The needs represent accommodation stability, need for impulse control over substances, and need for psychological well-being. Risk factors are conceptualized as needs because, by doing so, the assessor can identify the kinds of rehabilitative actions necessary to reduce the re-occurrence of the undesirable behaviour...
98.Risk Summary. While [Mr Danaher]’s needs outweigh his strengths, it is notable his mental health needs have been exacerbated historically and there appears to be some improvements. Nonetheless these do not appear to be borne out of insight or improved coping, rather than in the context of reduced stressors from the relief of being out of his employment and his relationship with [Ms Danaher]. There are at least some chronic and persisting symptoms that have not been the focus of previous psychological treatment including perceptual distortions, erroneous (paranoid) interpretations of the behaviours and intent of others, social skills, including interpersonal communication and social avoidance, that have negatively impacted on his relationship, social, and employment functioning at times. His parenting was nevertheless adequate in the periods that he had his son in his care. He can provide for [X]’s basic needs in term of food, accommodation, medical care and school and educational attendance for example. Notwithstanding he appears capable of learning, and would likely improve his parenting skills by engaging in appropriate parenting programs and psychological treatment around his current mental health and parenting issues. On the basis of the FSNA risk assessment is judged to be moderate in the context where [Mr Danaher] had substantial custodial care of his son, although at this stage the practical issue of the geographic distance between [Ms Danaher] and [Mr Danaher] mean no meaningful shared care program can occur. The moderate risk is modifiable in the context that [Mr Danaher] attended courses designed to increase his emotional awareness of his child’s needs, such as circles of security or 123 Magic with individual treatment for challenging his erroneous (paranoid and suspicious) thought patterns, to increase social skills-interpersonal communication and for emotional coping.
(my underlining)
Specifically asked whether the husband’s mental health issues affected his capacity to provide for X’s needs, Dr M responded as follows:
110.[Mr Danaher] has adequate parenting skills. He reports parenting patterns that are age appropriate for [X] in domains of expectations, discipline, communication, protection and nurturing for food, clothing, medical attention and school attendance. There have been a couple of occasions where he has reacted poorly to [X]’s behaviour, and to a mild degree this appears to have been in part a symptom of emotional coping. [Mr Danaher] feels bad about his behaviour with regard to these events and he does not want to repeat such behaviours. These appear driven by poor emotional regulation associated with anxiety, rather than impairment arising from ASD traits.
111.[Mr Danaher]’s limited insight into his psychological condition and needs however remains a risk factor. In the context of minimal stressors symptoms of his condition have been somewhat ameliorated. He does have some idea of early warning signs of a deterioration of his mental condition, and responds well to mandated treatment when it is required of him. He has been compliant with medication in spite of his low insight when it is required of him. He would however benefit from ongoing psychological treatment to addressing his mental health needs including emotional coping in the context of his parenting.
Specifically asked whether the husband’s mental health issues expose X to any physical or psychological harm if he was to care for the child, Dr M said:
112.The parenting risk factor appears to be past history of mental health difficulties and history of relationship strain and alleged abuse when living with [Ms Danaher]. For the moment, his mental health needs show improvements however there remains tension in the post separation relationship. Nevertheless, he continues to lack insight into his symptoms and aspects of his overall condition, particularly troublesome is his minimisation of what appears to be ongoing symptoms of anxiety, low grade depression, suspiciousness of others intents, and avoidant personality traits. Notwithstanding, although he has engaged in treatment previously, his poor insight remains a risk factor for his mental health needs returning with an increase in life stress.
113.[Mr Danaher]’s parenting skills will be strengthened if he engages in parenting programs. [Mr Danaher]’s emotional and mental health needs have seemingly been long standing in terms of his underlying vulnerabilities of dysthymic and anxiety type features and it is these features that remain the most concerning in the context of his stated desire for a co-parenting role. Given that parenting can be stressful, especially in the context of a high conflict post separation co-parenting relationship, further psychological treatment is likely to be of benefit. The difficulties he appears to have experienced from 2012 in both his unemployment and his relationship indicate a period of time when despite treatment he was unable to resolve the challenges of the high stress situations provided to him, and he continues to show some dysfunction in emotion perception and communication that will need to be addressed in the context of the fractious co-parenting relationship.
In the witness box, Dr M confirmed the complexity of the husbands’ psychological condition and his lack of insight. He said the husband thinks in an egocentric way, can misunderstand people’s intentions and become paranoid, and when under stress may react in strongly emotional ways. Further to paragraph 113 of his report, Dr M said that parenting programmes are important for the husband because his psychological condition impacts his parenting; such courses may help him compensate for some of his deficits.
That said, Dr M agreed with the husband’s counsel that the husband’s existing parenting skills were adequate.
Weighing up the risks posed by the husband
I begin by observing that I accept the evidence of Professor Dr O and am satisfied that the husband’s general cognitive abilities fall within the average range. Moreover, whatever cognitive difficulties the husband does have are not progressive in nature. From a cognitive perspective he is a perfectly adequate parent. The issues of risk arise from the state of the husband’s mental health and functioning.
Though he has some distortions in this thinking, and probably comes across to others as somewhat eccentric or even odd, the husband is able to adequately manage his day-to-day life. Though his presentation may potentially cause X a degree of confusion or even distress at times, Mr L considered that it would not cause X any serious psychological harm. X only has one father, and he will have to learn to accept him ‘warts and all’.
The husband’s mental health issues have been longstanding; the wife has seen them first hand for years. She had personally witnessed communication difficulties between the husband and X, including seeing the husband become frustrated with him. But it did not raise any significant concerns for her. She had willingly left X in the husband’s care during the marriage, particularly as the relationship spiralled in 2020. She had even allowed him to take X to New Zealand earlier that year.
In short, the wife trusted the husband to appropriately care for X right up until November 2020. And even though the husband perpetrated a harrowing event of family violence on that day while X was in the home, it was the wife’s own evidence a ‘one-off’ event and entirely out-of-character.
On the evidence before me, the husband does not pose any unacceptable physical risks to X. There is no unacceptable risk of physical discipline on the husband’s part. I accept the husband’s evidence that he only physically disciplined X for serious infractions in behaviour and I am satisfied that he generally hit him on the bottom not with the ruler, but with his hand. I accept his evidence that his preferred method of discipline is to use ‘time out’. In November 2021 the husband completed the Positive Parenting Programme (‘PPP’) which I accept taught him useful practical things designed to enhance X’s physical and emotional safety when in the husband’s care - including communicating with, disciplining, and generally interacting with X in emotionally positive ways.
Nonetheless, out of an abundance of caution the Court should impose a restraint against physical discipline. I am satisfied that the husband will comply.
In relation to physical risks to X generally, I am mindful of the fact that he is eight (8) years old; he is no longer a toddler. He does not need the husband to ‘hover’ over him in the home to keep him safe; he is of an age where he can increasingly manage his own basic day-to-day physical safety needs. This does not mean the husband is unable to properly supervise him where necessary; I consider that the husband does have that capacity.
In short, any physical risks posed to X by the husband are not ‘unacceptable’ and such risks that do exist will diminish with the passage of time.
I turn then to the risks to X of a psychological nature – which were Mr L’s major concern.
In this context, Mr L was concerned by two (2) identified emotional risks, namely:
·the ruler having been used to potentially inculcate fear into X as a form of behaviour management; and
·the husband’s negative view of the wife and its potential impact on X. The first issue can be disposed of quite quickly. In short, both parents used the ruler in this way during the marriage. It was not ideal but it did not do X any serious psychological harm. Moreover, Mr L thought that an injunction against physical discipline was an appropriate protective response.
The second risk is the much more significant.
Part of the problem is that the husband genuinely blames the wife for everything that has gone wrong in his relationship with X; he accepts absolutely no responsibility. He is locked into a victim mentality which in turn fuels his ongoing resentment and negativity of the wife.
His victim mentality is longstanding. According to his former workplace psychiatrist Dr P:
he has always minimised his component in issues and said that it was other people’s fault. Therefore, I am not sure that he can be helped until this way of thinking changes somewhat. [5]
Asked in the witness box about always blaming others for his problems he responded, in reference to the wife, that “If someone wants to destroy you, they will destroy you.” His victim mentality was again on full display; he made no attempt to hide it. Indeed he genuinely embraced it.
Mr L was concerned that the husband’s negative feelings would be likely to manifest in his communications with X, which in turn would be likely to cause X to experience anxiety-inducing loyalty conflicts between two (2) loved parents. [6] In this case that risk is heightened in my view by the husband’s difficulty in reading emotional cues and displaying empathy; if X became upset at what the husband was saying to him, the husband may be oblivious and simply keep going.
But as noted, Mr L still recommended that the husband be able to spend block time with X on an unsupervised basis during school holiday periods. In the witness box, he suggested that time should occur by way of conservative stepped arrangements. For perhaps the first six (6) months he thought that the time should be limited to 3 – 4 days, initially daytime only, graduating to a week by around the twelve (12) month mark. In the longer term, he thought that X could manage half holiday periods.
Mr L also considered that there should be no orders for time until the husband completes the ‘Circle of Security’ Course. His reasoning was that this Course teaches parents about childhood attachment patterns and how they can resonate into adult life, including the parents’ own lives. He said that the Course teaches parents to be more reflective and to look deeper into underlying patterns of attachment in their own lives and in X’s life (including educating parents on the potential harm to children of engaging in parental denigration). He said that the Course educates parents on how to better read and manage X’s cues while in their care.
To assist the husband to better manage X’s day-to-day behaviours, Mr L also recommended that the husband undertake the 1-2-3 Magic Course before time commences.
There are of course no guarantees about what, if anything, the husband may learn from the Courses. As Mr L stated in the Family Report:
95…It is to be hoped that [Mr Danaher], who undoubtedly loves [X] and has his best interests at heart, would be able to recognise and understand that…the one that would suffer most, in both the short and long term, would be [X].
In cross-examination Mr Jackson seized on the word ‘hope’ in that paragraph, taking Mr L through some of the wholly negative evidence the husband had given about the wife at the hearing. Mr L was clearly disappointed to hear about that evidence, labelling it “less than helpful”. He admitted that his recommendations were to some extent founded on the hope that the husband would develop more insight through completion of the suggested Courses and probably also with the assistance of a qualified therapist.
Mr L stressed that it was better to “err on the side of caution” to avoid the wife or X becoming unduly alarmed and that the parents must avoid exposing him to any parental animosity. Asked what the parenting arrangements should be in the event the husband did not change, Mr L confessed that:
The husband needs to develop insight or we are in serious difficulty.
Mr L was adverting there to the possible requirement for supervision, which he clearly did not support. He reasoned that supervision was actually a disproportionate response to the nature of the psychological risks. He said that any supervisor would need to be in close proximity to the father/son interactions so as to be able to quickly intervene if needed and that such a level of supervision would induce anxiety for both X and the husband, would compromise spontaneity and over the long term inhibit the development of a mutually enjoyable and meaningful relationship. Mr L also considered that the costs of a private supervisor could well be prohibitive, rejecting the wife as a suitable supervisor. [7]
In short, supervision seems to be a disastrous and almost self-defeating outcome. However, unsupervised time exposes X to some risk of psychological harm which may be able to be mitigated by the husband undertaking the Courses and/or receiving therapeutic assistance.
To date, the husband’s denigrating/manipulating behaviour and its impact on X (as set out in paragraphs 85 – 87 of these Reasons), do raise some concerns. On the weight of the evidence I am satisfied that the husband is highly likely to want to explain to X his perspective on why they haven’t been able to spend time together (ie. that it was all his mother’s fault). As they spend increasing time together, the husband’s perceived ‘need’ for such explanations will diminish. The husband is also likely to be hyper-vigilant to any perceived slights from X and on the ‘lookout’ for evidence that the wife has denigrated him to X. In such event he is likely to want to defend himself, potentially denigrating the wife in the process.
Mr L said that X will want to please each of the parents and that if X says or does something which is of concern to a parent, it is important that parent not immediately “jump to conclusions” but instead demonstrate “reflective capacity” – which is something I think both parties, but particularly the husband, will find challenging.
The possibility of emotional harm to X is real and of concern. But from an emotional perspective, stifling X’s opportunity for a relationship with his father also entails a measure of harm in the long term. Ultimately the Court must decide whether the emotional risks attending unsupervised time are ‘unacceptable’, or risks worth taking (if necessary, with safeguards).
Denigration and manipulation, like other types of risk, exists on a spectrum. Ongoing high-level denigration and disrespect by a parent towards the other can be enormously damaging to a child. This is particularly so where the child has to regularly go between the two parents’ homes. Though unhelpful for children, parental denigration can be relatively low level as well; occasional insults or criticism of the other parent are unlikely to cause a child serious psychological harm. This does not mean that such conduct should be condoned, but supervised time is surely not the answer either.
When asked about the potential impact of exposing X to his negative attitude about the wife, the husband said matter-of-factly that he “would not talk to X about it.” I am satisfied that at some level the husband knows that denigration will harm his own relationship with X. If only for the sake of his own relationship with X, the husband will likely show some measure of restraint. Moreover the husband is very eager to enjoy quality time with X. Given the husband’s ill-feeling towards the wife and his rather concrete way of thinking, he is not going to himself want to initiate discussions with X about the wife. When he is spending time with X, the husband’s preferred mindset will be not to think about her.
I am mindful also that the husband is only seeking to spend time with X for fairly limited blocks during school holiday periods; that his opportunity to spend time with X is therefore inherently time-limited; that there will need to be a ‘leading-in’ or ‘stepped’ approach to time to ensure that X is comfortable with transition; that these early interactions are likely to be the most difficult and challenging for the husband and X; and that the wife can monitor X after such interactions. I am also mindful of distances, costs and practicalities.
I am satisfied that the risks attending unsupervised time are worth taking, with appropriate safeguards. These will include a requirement that the husband undertakes Circle of Security and 1 – 2 – 3 Magic Courses before overnight time commences. In my view this is the appropriate balance. I am satisfied that the husband will do the Courses; he had already enrolled in Circle of Security at an earlier time only to withdraw from it when he mistakenly thought (given its attachment model) that it was only for parents of young children only. Interestingly, Mr L said that this was an easy mistake to make. Anything he learns from the Courses will be helpful for him; I am satisfied that he will be motivated to learn what he can. He has the capacity to engage in parenting courses, and to learn something from them, as evidenced by his completion of the ‘PPP’.
I am also satisfied that, although the husband has low insight into his mental health condition, he nonetheless consults his treating practitioners regularly and is compliant with his prescribed medication regime and that he will continue to seek out appropriate mental health treatment. He knows he needs to do so, even if he does not fully grasp his own mental health problems. While it seems he did stop taking his medication at one stage while in the care of Dr P, I am satisfied that this was a result of a misunderstanding on the husband’s part and that he has since further engaged with his treating practitioners and resumed taking his medication.
For the reasons advanced by Mr L, supervision orders would be a disproportionate response to the risks. In relation to the husband, I endorse Mr L’s observation in the witness box that:
“You have to deal with what you’ve got.”
Additional considerations in s 60CC(3)
Because there is an overlap between the s 60CC(2) and s 60CC(3) considerations, I will try not to be unduly repetitive in what follows.
X’s views were not specifically canvassed in the Family Report. However, it is common ground that X loves his father and that he desires some form of ongoing and meaningful relationship with him. Though the wife has always been X’s primary carer, the father/son relationship is foundational in nature and of real importance to X.
X no doubt benefits from the important relationship he has with the maternal grandmother. In my view X would also benefit from the opportunity to foster his relationship with the paternal grandmother in New Zealand.
The wife has always been actively involved in all aspects of X’s care. She is a devoted mother who has made many sacrifices for him, including since November 2020 doing what she had to do in order to keep a roof over his head - twice.
The husband played a support parenting role for X up until November 2020. Since then his role has been very limited but to his credit he has never given up on his son. He wants to once more play an active role as X’s parent.
The husband has had a patchy, and generally unsatisfactory, attitude to meeting his financial obligation to support X. Apart from a lump sum payment to the wife of $3,910 in June 2021, he has been rather resistant to supporting X. Despite a fairly notional child support assessment of $13 - $15 per week, by the time of the hearing he had accumulated arrears of $2,880. He openly admitted in the witness box that he had not paid the arrears because he did not want to be funding the wife’s legal costs. He had no real compunctions about not paying child support, reasoning that the wife’s family are “very well off”.
Regardless of the orders this Court makes, X’s living arrangements will remain the same. But face-to-face time between the husband and X is long overdue and needs to be implemented; from X’s perspective this will be a change for the better.
There are real and enduring practical difficulties and expenses associated with maintaining the father/son relationship which need to be managed. Long-term, the husband plans to live in NSW, South Australia or Victoria. He will not move to Queensland as he does not like the warmer climate. The wife intends to stay living in Town B.
In 2019 and 2020, the wife transferred various lump sums to the husband totalling $90,000 as follows:
·12/11/19 = $10,000;
·7/2/20 = $30,000;
·11/2/20 = $20,000;
·5/4/20 = $30,000.
The husband used some of those funds to repay the V Company. He used $2,300 to buy Equipment Item 1, $7,100 to buy a covered Motor Vehicle 4, and the rest was spent on various tools, and general living expenses.
In 2020 the wife obtained full-time employment with the University of City G. (Broadly, her annual income from 2017 onwards ranged between $21,000 and $52,000.)
As noted in my parenting Reasons, the parties’ relationship was spiralling in 2020. Because of the husband’s $312,000 in transfers, the wife at that stage held most of their matrimonial capital. At the same time as she was transferring lump sums to the husband, she also secretly ‘parked’ $65,000 with her brother Mr D as referred to in paragraph 174 of my parenting Reasons. The $65,000 comprised the following payments:
·20/03/20 = $15,000;
·05/04/20 = $30,000;
·12/07/20 = $10,000;
·18/09/20 = $10,000.
The New Zealand home
The husband’s mother lived in the home throughout the relationship. The parties (and later X) visited her most years, staying at the property while they were there.
Notwithstanding the nominal rental payments provided for in the Lease, the husband’s mother in fact paid rent into his New Zealand bank account sufficient to meet the property outgoings as well as paying for various maintenance and improvements. The rent was effectively ‘quarantined’ and resulted in the home being ‘fully funded’ throughout; the parties did not have to draw on either their Australian income or Australian bank accounts in order to fund the property.
It is true that the parties did do some work at the home during their visits; the husband’s mother would present them with a list of jobs that needed doing. The husband did much of the work but the wife assisted him. This included painting weatherboards and outside walls, gardening and mulching, installing flat pack shelving in the laundry, and general cleaning and tidying. In the witness box, the husband accepted that around $25,000 - $30,000 (NZD) was spent on various improvements and maintenance works for the home.
Post-separation
Even after her transfers to Mr D, the wife’s combined bank account balances at separation were $271,951. The husband’s Australian bank balance was $25,067 including the moneys still left over from the $90,000 the wife had transferred back to him.
The husband at least had a roof over his head; in contrast the wife initially had to rent a room at friends’ houses. The wife had been left with very little furniture and chattels. She spent several hundred dollars buying other household items. Some household items were gifted to her, such as a TV and fridge.
In early 2021, the V Company commenced the process of discharging the husband on medical grounds. Various papers relating to his impending discharge were presented to him, which he signed. These included, in early 2021, an Application for Invalidity Benefits. [11]
On 3 March 2021, the wife’s then solicitors wrote to the husband’s solicitors about property issues. In that letter the wife undertook to preserve the moneys in her account until a settlement could be negotiated (around $266,000).
In mid-2021 the husband was formally discharged from the V Company and has not returned to paid employment since.
In mid-2021, the husband received $41,022 on account of long service leave and invalidity entitlements. From this amount, he paid $760 for his rental property at Town H and six (6) months’ rent in advance of $4,940. He paid lump sum child support to the wife of $3,910, $8,000 off his credit card debt and the rest went on living expenses and legal costs.
In mid-2021, Super Fund 1 advised the husband that they had processed his application for a Super Fund 1 benefit following his invalidity retirement from the V Company, and that he had been classified as Invalid. Their letter noted that:
·he was entitled to an ongoing pension benefit of $61,359 per annum. (This was calculated by dividing his employer benefit of $674,950 by his pension conversion factor of 11). The pension was payable in the amount of $2,359 per fortnight, with $2,133 of that amount being untaxed and $226 being taxed.
·he still retained preserved member benefits of $174,340. [12]
As noted earlier in my parenting Reasons, the wife moved to Town B in mid-2021 and the husband moved to Town H shortly afterwards. After moving to Town B, the wife spent $15,000 cash to buy camping equipment to store her items (Item #14 of the Balance Sheet).
By this stage the wife had new solicitors (being the law firm that represented her at the hearing). The husband’s solicitors wrote to the wife’s solicitors in June 2021 seeking that the wife abide by her earlier undertaking not to withdraw moneys from her account. There was no response. On the first return date (24/06/21) the parties entered into a consent order whereby the wife paid the husband the sum of $20,000 by way of an interim distribution – which he used to pay his solicitors.
In December 2021 the parties agreed to a further interim distribution of $25,000 each from the moneys held by the wife.
As noted earlier in my parenting Reasons, the husband lived in New Zealand with his mother from January 2022 until August 2022.
In April 2022, the wife’s solicitors finally responded to the letter concerning the wife’s undertaking. In short, the wife did not agree to abide by it. The delayed response was deliberate and worked to the wife’s advantage as, by December 2021, she had already accessed the account to pay costs to her solicitors of $114,000.
On 4 May 2022 the husband filed an Application in a Proceeding seeking to restrain the wife from spending the moneys remaining in the account. By the time of her Financial Statement of 17 May 2022 the account balance had further dropped from its $135,909 December 2021 balance to a mere $25,923. However, some $60,000 of that had been transferred into an account controlled by the wife’s mother – which was no more than a clumsy attempt by the wife to put it out of the husband’s reach.
By consent this $60,000 was deposited to the trust account of the wife’s solicitors and on 7 June 2022, orders were made for the wife to transfer $10,000 of those moneys back to her account, bringing its balance to $35,000. The wife was otherwise restrained from drawing on those moneys. The Court authorised the wife to apply the other $50,000 held in trust to meet her legal fees.
By the time of the hearing, the large cash reserves held by the wife at separation were largely dissipated. They have been accounted for in the Balance Sheet as best I can on the evidence, including by way of add-backs. I am mindful that there should be no double-counting. To be fair to the wife, she has also paid substantial joint litigation expenses from her account, including Court expert fees for Professor Dr O ($3,690) and for Mr L ($13,090). While it is inappropriate to expect either party to give an exact accounting of their post-separation expenditure, I am broadly satisfied that the parties have lived within their means as best they could and have not otherwise been wasteful.
Since separation, the wife has had to provide for all of X’s care, and practically all of his financial needs. She has had to keep a roof over his head throughout, including when they were effectively homeless in the initial period after separation and again when they were ‘stuck’ in New South Wales after the Family Report interviews. This was a very expensive and awkward period for the wife, illustrated by the fact that she had to sell a $1,500 Motor Vehicle 4 in Brisbane for $1,500 in order to purchase a Motor Vehicle 3.
The day-to-day challenges for the wife in caring for X as a single parent, while at times also working two (2) different jobs in order to stay afloat financially, cannot be under-estimated. Her efforts in meeting all of X’s day-to-day, social and educational needs has been considerable. She has had to make many sacrifices.
The husband has also had a longstanding PayPal account, EE Company account and DD Company account which he has used since separation. For instance, he has also sold off some furniture, some books and other items in Australia, as well as firewood and some other property in New Zealand. Though he has not made full and frank disclosure of these account transactions, I am satisfied that the transactions and accounts are de minimis. [13]
Post-separation: the New Zealand home
The husband’s mother has continued to occupy the home as before.
As at June 2021, the husband’s mother was paying rent into his New Zealand account of $300 [NZ] per fortnight; this was later increased to $400 [NZ] per fortnight.
In the witness box the husband conceded that some small amount of the rental money had been applied for his own personal purposes unrelated to the home – being a $192NZD airfare and a $180NZD payment to ‘FF Store’. He said he had also used the rent money to pay for some panel beating work on his mother’s car.
As noted, the husband lived in the home for around seven (7) months in 2022.
Overall assessment of contributions
In my view, contributions substantially favour the husband, primarily on account of the New Zealand home which by and of itself constitutes approximately 51% of the net matrimonial property. In context and noting that the home was ‘self-funding’ throughout, I regard the wife’s contributions towards the home as being very limited. In my view, but for her contributions as a homemaker and parent, the wife’s contributions towards the home could fairly be described as de minimis. Though of less significance, the husband also brought the ‘seed capital’ into the marriage in the form of the Town Z home as well as bringing in a greater superannuation balance.
The wife’s financial, homemaking and parenting contributions were nonetheless of real substance and need to be given real value.
Overall, I would assess the respective contributions as 75% - 25% in the husband’s favour.
SECTION 75(2) FACTORS [14]
On my Balance Sheet calculations, the husband presently holds $1,070,797 in assets (73%) and the wife holds $393,095 (27%). That is to say, the wife holds slightly more, and the husband slightly less, than their respective contributions-based entitlements.
Should there be any further adjustments to each party’s contributions-based entitlement on account of the factors set out in s 75(2)?
The husband is 52 years old and lives in rental accommodation in Town H. He suffers compromised health. He retired from the V Company with a range of impairments including: depression and anxiety; and other medical conditions.[15] He also has an injury which causes him pain, limits his standing tolerance and causes him to walk with a limp.
CSC assessed that the husband’s vocational and trade skills, qualifications and experience meant that he might reasonably be able to work in the future as a “labourer”. This is overly optimistic. I do not consider that the husband has any meaningful capacity to work in the future.
The husband does however enjoy a measure of financial security and comfort by reason of his ongoing invalidity pension entitlements. His total income is $1,401 per week of which he receives Super Fund 1/incapacity payments of $1,201 and the rent of $200 (NZD) paid by his mother into his New Zealand account. In terms of his weekly expenses, there was a minor taxation error in his updated Financial Statement in that his true expenses are $714 not $669. In short, the husband has a surplus of income over expenses of $687 per week. That figure is not a fair reflection however in that, from August 2022, he was paying his legal representatives $600 per week pursuant to a payment plan. Notably, he did so while not paying any consistent child support.
The husband owns the New Zealand home subject to the Lease. In terms of ‘cash’ assets his bank accounts are modest. (Though he could do so, the husband would find it unthinkable to sell off his record collection.)
The wife is 49 years old. Physically she is in very good health. Her mental health is well-managed, including with ongoing support from a counsellor. The wife has an impressive work history and has consistently been in employment since moving to Town B; this has included doing shift work. At present she works as an administrative officer for GG Company where she earns a gross income of $690 per week. According to the ‘Financial Summary’ at Part B of her Financial Statement, the wife’s income exceeds her expenses by $116 per week. But Part H of that Statement discloses that the wife incurs additional expenses of another $115 per week for X and $100 per week to help support her elderly mother. For this reason her Financial Statement is internally inconsistent and the ‘Financial Summary’ inaccurate. When those additional expenses are properly accounted for, her expenses in fact exceed her income by over $100 per week.
The wife lives in her mother’s home at Town B. She contributes to their household expenses as set out above. She has a modest goal of building a small home there down the track, which she estimates will cost around $37,000.
The wife has much greater ‘cash at bank’ than the husband. But like him she also has to keep paying off legal fees into the future. Both parties have preserved superannuation; the husband’s is greater.
Although the husband will play a parenting role going forward, it is the wife who will continue to be responsible for practically all of his day-to-day parenting. Moreover, she is likely to do so without receiving any meaningful child support payments; the husband is only assessed to pay her around $50 per month. The wife does not otherwise receive any meaningful Government benefits ($1 per week).
At this stage both parties are managing to attain a reasonable, but by no means affluent, standard of living. When the husband’s mother passes away, there will be a significant change to his circumstances in that he will then own the New Zealand home unencumbered. But this may not occur for many years. Neither party sought to adjourn the hearing and the Court therefore has to do the best it can to achieve a just and equitable outcome on the basis of things as they presently stand.
Neither party seeks maintenance from the other. No submissions were made as to any relevant creditors being affected by an order; the major creditors would appear to be the legal representatives.
The wife’s employment was somewhat ‘disrupted’ during the marriage as a result of following the husband on his employment to New South Wales, as well as carrying, giving birth to, and subsequently caring for, X. Though of relatively limited import, I also note that the wife cared for the husband’s mother in New Zealand for a month when the latter was unwell.[16]
The husband is not in an intimate relationship and does not cohabit with anyone else. The wife is however in an intimate relationship with Mr HH who lives in Town B. But she said that he is not her “partner” as they do not live together. Her affidavit did however disclose that she and Mr HH had jointly signed a lease for a home at Town B and that she used the garage and a room there to store her items. She pays rent of $175 per week to the landlord. I accept her evidence that they do not cohabit but they are clearly in a committed relationship and I suspect they may well cohabit at a future time once these proceedings are over. I know nothing of Mr HH’s financial circumstances.
Overall adjustment under s75(2)
The s 75(2) factors clearly favour the wife, primarily by reason of her ongoing care of X and the limited child support she is likely to receive from the husband.
In my view a 12.5% adjustment is warranted, which equates to $182,986.
JUST & EQUITABLE OUTCOME
On the basis of the above analysis, the husband is entitled to an overall 62.5% of the net property or $914,932 and the wife is entitled to 37.5% or $548,960.
The husband presently holds $1,070,797 and the wife holds $393,095. Therefore the husband must pay the wife a further $155,865.
It is well and good for Mr Jackson to submit that the Court can make ‘generic’ orders and leave the question of enforcement for later, but in my view the making of an order and its eventual enforcement are not entirely independent matters. In general, a Court should not make an order in the first place unless it both capable of enforcement and intended by the Court to in fact be enforced. This is because, fundamentally, a Court’s role is to quell justiciable disputes. This is ordinarily done by way of enforceable orders, not those which are merely hypothetical or akin to an advisory opinion.
So where does the money come from?
Selling the record collection would not be just and equitable given the husband’s mental health and his connection to it. Moreover, the sale proceeds would be insufficient anyway and the wife herself seeks no such order – perhaps mindful of the practical difficulties that would inevitably arise in terms of enforcement.
I cannot make orders which require the husband to sell the New Zealand home while the Lease remains in force as this would require his mother’s consent which she will not give, and nor should she be obliged to consent. She has the right to live out her life in her family home and this Court should not interfere with that right, particularly where the wife chose not to join the husband’s mother as a party.
But on the facts of this case, it would not be ‘just and equitable’ in any event for me to make any order which may result in a sale of the New Zealand home while the husband’s mother is alive. I accept the unchallenged evidence of the husband’s mother that just after separation on 3 December 2020 the wife called her to tell her that she and X were staying with a friend and that “I won’t be touching your house” to which Ms K replied “Well you know you can’t anyway.” In my view this reflects how the husband, his mother and the wife all viewed that home during the marriage. At least while the husband’s mother was alive, it was not open to the parties to deal with it. The fact of the parties’ separation does not change that.
Might the husband potentially be able to borrow the money against the New Zealand home without it then having to be sold? In my view this is rather doubtful given his reliance on benefits and on balance I am not satisfied that he can. But if he could, and if he fell behind on the repayments during his mother’s lifetime, this could result in forced sale of the home which again cannot be countenanced.
In the end, I consider that the only ‘just and equitable’ solution is to make a super splitting order from the husband to the wife. I accept that this will be preserved until the wife attains retirement age.
WIFE’S APPLICATION IN A PROCEEDING
The final orders I have made ‘free up’ the moneys in the wife’s S Bank accounts; the injunction of 7 June 2022 falls away. The wife can therefore access the moneys as she pleases.
In my view the proper course is to dismiss the Application. Should either party wish to seek a costs order against the other having read these Reasons, then that party is to bring an Application in a Proceeding within twenty-eight (28) days, supported by an affidavit, any costs schedule and written submissions.
CONCLUSION & ORDERS
For these Reasons I propose to make orders in accordance with those sought by the husband in his Amended Initiating Application, save that the super split will be greater. I am also including a specific order requiring the wife to serve the Trustee of Super Fund 1 with a copy of these orders as soon as possible.
As the husband had specifically sought a super splitting order, I assume his lawyers have previously afforded procedural fairness to the Trustee. But in case of any issue arising, the parties and the Trustee have liberty to apply in respect of the super splitting order.
I certify that the preceding three hundred and twelve (312) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 18 August 2023
[1] See the decision of the Full Court in Isles & Nelissen [2022] FedCFamC 1A 97.
[2] Husband’s affidavit, annexure “M”
[3] Exhibit 1 (para 96)
[4] Exhibits 1 (paras 54 & 55)
[5] Exhibit 11. The report is dated 5/5/21.
[6] Exhibit 1 (para 95)
[7] Ibid.
[8] Annexure “B” to the husband’s affidavit
[9] Exhibit 5
[10] Exhibit 8
[11] Exhibit 5
[12] Exhibit 7
[13] My finding is fortified by the fact that the wife did not seek to include them in the Balance Sheet
[14] These also include any relevant matters arising pursuant to s 79(4)(d), (f) & (g).
[15] Exhibit 6
[16] This does not fall within s 79(4)(c) but can be taken into account under s 75(2)(o)
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