Dawkins and Ogden

[2016] FCCA 565

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAWKINS & OGDEN [2016] FCCA 565

Catchwords:
FAMILY LAW – Parenting – property – sole parental responsibility – Father’s mental health issues – protection from risk – no time with the Father – property adjustment arising out of the breakdown of de facto relationship.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2), 60CC(3), 60CC(3)(c), 60CC(3)(d)(i), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(h), 60CC(3)(i), 60CC(3)(k), 60CC(3)(l), 60CC(3)(m), 61DA, 69ZT, 79, 79(2), 79(4), 90SF(3), 90SM, 90SM(3), 90SM(4)

Evidence Act 1995(Cth). s.140

Cases cited:
Stanford & Stanford [2012] HCA 52
Watson & Ling [2013] FamCA 57

Applicant: MR DAWKINS

Respondent: MS OGDEN

File Number: MLC 11336 of 2013

Judgment of: Judge Stewart

Hearing dates: 28 & 29 September 2015 & 1 October 2016

Date of Last Submission: 1 October 2015

Delivered at: Melbourne

Delivered on: 16 March 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent: Mr Epstein of Samantha Ward Pty Ltd

Solicitors for the Independent Children’s Lawyer: Ms O'Loughlin of Coulter Roache Lawyers Pty Ltd

ORDERS

1. The Mother have sole parental responsibility for the child X born (omitted) 2008 (“X”).

2. All previous parenting orders be and are hereby discharged.

3. X live with the Mother.

4. The Father spend no time with X.

5. The Mother advise the Father immediately in the event that X suffers any serious illness or injury.

6. The Mother authorise all schools which X may attend from time to time to provide the Father, at the expense of the Father, copies of all school reports, school notices and school photograph order forms in relation to X.

7. Liberty is granted to the Father to send cards and gifts to X and the Mother be at liberty to review all cards and gifts and assess them for suitability before providing such gifts and/or cards to X.

8. The appointment of the Independent Children’s Lawyer be and is hereby discharged.

9. Within 60 days of the date hereof (“the date”), the Mother pay to the Father the sum $34,500 (“the payment”).

10. Contemporaneously with the payment, the Mother refinance the mortgage over the property situated at and known as Property H (if necessary) and provide the Father with written evidence that he is no longer a co-borrower on the mortgage.

11. Liberty is granted to the Father to apply on short notice with respect to the enforcement of order 10 hereof in the event that the payment is not made by the date.

12. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-

    (a)each party be solely entitled to the exclusion of the other party to all property (including choses-in-action) in the possession of such party as at the date of these orders;

    (b)monies standing to the credit of the parties in any joint bank account be divided equally between the parties;

    (c)insurance policies remain the sole property of the owner named therein;

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

    (e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

13. Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in the Factsheet attached and these particulars are included in these orders.

14. All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

AND THE COURT NOTES THAT:

(A)In the event the Mother locates any personal possessions or chattels which belonged to the Father during the relationship she will make arrangements to return the same to him.

IT IS NOTED that publication of this judgment under the pseudonym Dawkins & Ogden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11336 of 2013

MR DAWKINS

Applicant

And

MS OGDEN

Respondent

REASONS FOR JUDGMENT

1. These are proceedings relating to both parenting and property matters.

2. The parenting proceedings relate to the parties’ child X (“X”) born (omitted) 2008 who is 7 years old. The issues relate to parental responsibility, where X should live and how she should spend time with the parent with whom she is not living.

3. The property issue relates to what property adjustment, if any, should take place arising out of the breakdown of the parties’ de facto relationship, which spanned a period of approximately 6 years.

4. I have listened to the evidence of the parties and the Family Report Writer. I have read the affidavit evidence and other material filed or presented in this case. Given the way the evidence has been presented it is not practicable to refer to each and every issue raised in the proceedings, nor is it necessary to do so. If I have not referred to a particular fact or matter it does not necessarily follow that I have not had regard to it.

5. In these reasons, unless it is clear from the context that this is not so, a statement of fact is a finding of fact.

The parties proposals

The Applicant Father

1. It was difficult to discern what the Applicant Father’s application was in relation to X. In December 2013 he filed his Initiating Application seeking an initial progression of his time with X, leading to alternate weekends from Friday to Sunday and each Wednesday on an overnight basis. However, during the proceedings and also at the interviews for the Family Report in June 2014, the Father sought orders that X live primarily with him and spend time with the Mother.

2. In terms of property the Father sought a property settlement on an appropriate basis having regard to the length of their de facto relationship. At the conclusion of the proceedings the Father indicated that the Mother should make a payment to him in the sum of approximately $80,000.

The Respondent Mother

1. The Mother’s position with respect to X is that she should live with the Mother, spend no time with the Father and that she should have sole parental responsibility for her.

2. The Mother seeks an order that the Father’s property application be dismissed.

Background facts

1. The background and/or non-controversial background matters appear to be as follows.

2. The Mother was born in 1969 and is 46 years old. She has married Mr J (“Mr J”), who is 64 years old. The Mother and Mr J live together in the (omitted) area. The Mother is self-employed (omitted).

3. The Mother has four other children besides X. Mr C and Ms K who are in their early twenties and Y and Z who are in their mid-teens.

4. The Father was born in 1972 and is 43 years old. He is unemployed and in receipt of a disability pension through Centrelink. X is his only child.

5. The parties commenced cohabitation in 2007.

6. The Father held negligible property at the commencement of cohabitation.

7. The Mother’s initial financial contributions consisted of a vehicle, household furniture and an entitlement to property settlement which was ultimately received by her in mid-2009, in the sum of approximately $209,000.

8. The parties separated in March or June 2013, with the Mother asserting separation occurred in March 2013 and the Father asserting separation was in late June 2013.

9. In July 2013 the Mother obtained an intervention order against the Father and at or around that time the police removed the Father from the home the parties shared in Property H. On 17 July 2013 the Mother obtained an Intervention Order against the Father for a period of one year, listing X and two other children on the order.

10. Shortly after separation the parties entered into a parenting plan. In accordance with the parenting plan X was to spend time with the Father every Sunday during the day for a varying number of hours.  The time X spent with the Father was to be under the supervision of friends and family.

11. The Father also obtained an Intervention Order naming the Mother as the Respondent at or around that time. The Intervention Order restrained the Mother from destroying property.

12. Between June/July 2013, when the Father left the Property H property, and September 2013 the Father was generally seeing X during the day on a supervised basis. There was a fifteen minute accidental meeting where the Father was able to walk around with X on an unsupervised basis.

13. X’s time with the Father broke down in September 2013 after which the Mother permitted time to occur at a Children’s Contact Centre in (omitted). In November 2013 the Father undertook the intake procedures at the Children’s Contact Centre. By the time the Father commenced his initiating proceedings in mid-December 2013 the Mother had not completed the intake procedures.

14. In the intervening period the Father was continuing to pursue his application for an Intervention Order against the Mother, alleging that the Mother had threatened to discard his belongings at the tip.

15. In late December 2013 the Father resumed seeing X on a supervised basis at the Children’s Contact Centre.

16. Throughout January 2014, the parties agree that the Father’s time with X was occurring at the Children’s Contact Centre, however, each of the parties have a different view as to how that time was proceeding. The Father says and complains that the Mother was providing inducements to X to leave and the staff at the Contact Centre told X she was not required to stay. He otherwise suggests that X was happy to see him. Alternatively it is alleged by the Mother that the time at the Contact Centre was difficult and she had difficulty overcoming X’s reluctance to attend.

17. On 15 January 2014 the Mother consented to a final Intervention Order naming her as the respondent.

18. In February 2014 the Father filed an Amended Initiating Application seeking a property adjustment between the parties.

19. On 17 February 2014 the proceedings first came before the Court. On that day the matter was adjourned to a few days later, on 20 February 2014. At that time the parties, and in particular Father, were represented by solicitors. The Father is highly critical of his legal representation.

20. On 20 February 2014 the parties agreed that the Father should obtain a letter from a psychologist for the purpose of the preparation of a report. Further orders were also made permitting the Father to have telephone communication with X. The Court made various procedural orders and otherwise the proceedings were adjourned to April.

21. In April, interim orders were made by the Court providing for the Father to spend time with X during the day, mostly on the weekend. This time was unsupervised. Changeovers were to occur at the Children’s Contact Centre in (omitted) (or the (omitted) Police Station) and various financial orders were made.

    31.At this time the Mother had filed a Response to the Father’s Initiating Application seeking sole parental responsibility and for the Father to spend supervised time with X at the Children’s Contact Centre.

22. In July 2014 the Family Report, which had been ordered, was prepared by Mr M (“the Family Report Writer”). That report was released on 17 July 2014 and due to matters that were raised in the report a Department of Human Services (“DHS”) (as they then were) report was also ordered.

23. On 17 July 2014 the Father consented to an Intervention Order against him for one year, notwithstanding his position that he had not been violent to X, the Mother or any of the Mother’s other children.

24. On 30 July 2014 an order was made appointing Independent Children’s Lawyer.

25. Following the release of the Family Report on 17 July 2014 and due to matters contained in the Family Report, X stopped seeing the Father.

26. On 19 June 2015 an Intervention Order was made against the Father in the Geelong Magistrates’ Court following a defended hearing. The Court at that time also dismissed a cross-application made by the Father naming the Mother as a Respondent.

The witnesses

The Father

1. The Father gave evidence and was cross-examined. He has a very unusual personality style. I had the valuable opportunity to observe him in Court. The Father was generally unable to focus on issues in the case and had a quite tangential thought process.

2. The Father was variously loquacious, avoidant, abrasive, sarcastic, disrespectful to the lawyers and the Court and referred to matters so bizarre that they seemed highly unlikely to have occurred. 

3. In numerous instances the Father was concerned that matters he disclosed, or refused to disclose, might be used against him in an inappropriate way.

4. The presentation of the Father rendered his evidence and his capacity to accurately recount history as being highly unreliable.

The Mother

1. The Mother gave evidence and was cross-examined. She was not untouched by her interactions with the Father and clearly found any dealings with him impossible to manage. She expressed clear frustration with respect to the proceedings and the parenting issues pertaining to X. In contrast to the Father, the Mother was able to directly answer questions and put her case in a succinct and understandable way. Although the Father puts the Mother’s mental health, at least historically, in issue I have no concerns as to the Mother’s capacity to care for X as may be impacted by any mental health issues.

2. Overall, the Mother’s recall of history was superior and more cogent than the Father’s.

The Family Report Writer

1. As a final witness in the proceedings the Family Report Writer, Mr M, gave evidence and was cross-examined.

The Issues

The Father’s mental health, personality style and unusual behaviour

Presentation in Court

1. I have serious concerns that the Father is unwell. Given his refusal to undertake a psychiatric assessment, there has been no evidence available to assess his mental, psychiatric, emotional or psychological health. The Father’s refusal to undertake a psychiatric assessment was, at least in part, due to his suspicion and paranoia regarding the use of that assessment and the possible adverse impacts on his life. He told me that information had historically been used against him.

2. From time to time the Father refused to accept the authority of the Court and was quite challenging and assertive in his presentation style. For instance, he would often leave the bar table and walk to the rear of the courtroom. He adopted a dramatic courtroom style and would point at people in the courtroom, including the lawyers and the Mother. He was unable to contain himself or follow direction.

The Father’s health history

1. In 2005 the Father was diagnosed with schizophrenia and placed in the (omitted) Centre, a mental health clinic. At that time the Father had a current diagnosis of schizophrenia and a provisional differential diagnosis of paranoid delusional disorder. The Father was described as being guarded, suspicious and reluctant to answer any question about his health.

2. The Father’s presentation in 2005 is historical and has the significant weakness that it does not relate to the Father’s position now. However, in circumstances where the Father has declined to undergo a psychiatric assessment, historical information is the best that is available to assess the Father’s current functioning.

3. At the very least the Father’s historical health issues would tend to suggest that the Father had mental health issues prior to X’s birth and the relationship. A mental report suggests that in 2005 the Father had limited insight as to how his presentation impacted on others.

4. The lack of present medical evidence available to the Court in these proceedings is as a result of the Father’s own decision not to participate in an assessment. Thus, he has deprived the Court and, more importantly X, of an opportunity to assess his present functioning. If his functioning is impaired due to mental health issues, it is now impossible to assess whether there is any prospect of improvement in the Father’s position by treatment. That in turn would lend itself to a future consideration of X spending time with him.

5. Although the Father was not necessarily willing to accept a previous diagnosis of schizophrenia, he did agree that he had been diagnosed with a paranoid personality disorder in 2005.

6. The Father told the Family Report Writer:-

   Mr. Dawkins stated that he attended upon a psychologist at the request of his solicitor to obtain an assessment regarding his mental health so he could spend time with X.  He stated that the psychologist, Mr G prepared a report for this Honourable Court and following such he was able to once again spend time with X.  Whilst discussing his mental health further, Mr. Dawkins acknowledged that he was hospitalised previously and some nine years ago he was diagnosed with schizophrenia.  He said this was updated a year later and he was then diagnosed as having a paranoid personality disorder. He denied having any current psychiatric issues and said he suffers from sleep apnoea.  Mr. Dawkins said he has not attended upon a psychologist or psychiatrist in approximately eight years, is not prescribed any medication and has not attended any mental health professionals in a significant period of time.  Mr. Dawkins appeared to suggest there are no issues of concern with respect to the stability of his mental health.

The Father’s belief that the Mother is engaged in employment as a prostitute

1. The Father holds an abiding belief that the Mother is engaged in employment as a prostitute and he has implicated and involved X in that belief. His position, denied by the Mother, had not abated at the final hearing and was one of his criticisms of the Mother which he said supported his position that X should be in his primary care.

2. For instance, the Father told me during his evidence:-

   Well - well, it's not what has happened in my head because my daughter actually took me to the place where she worked. So that's not in my head. When I was with my daughter at one stage when I was - she was in my care, we were driving my car and she goes, “that's where mummy works” and she took me to a place in (omitted) where her friend has been working for many, many, many, many years as a prostitute. And I asked her what does she do there and she says, “she does massage"”. And in addition to that - in addition to that, she was actually leaving the house when I was there towards the end at the same times and- and coming back at the same times over a period of weeks, right?

   So there's a whole lot - and there's more things than that too that basically proves what I'm - well, it doesn't prove it but it's pretty consistent with what - you know, what I'm saying. And she has got friends that are in the industry and so that's a lot - a lot more involved. Anyway, so yes, then she described the back of the place too with a certain amount of accuracy. You know, she knew there was a driveway and she said certain things. So anyway, after that - yes. So after that - so what I believe happened is - looking back, is that she - that was the first opportunity she had to try the industry out when she removed her son and me from the house and I knew nothing about it, and she called me back into the relationship.

   HER HONOUR: So you think-

   MR DAWKINS: - because of my daughter. She called me back -

   HER HONOUR: You think she has been working as a prostitute. Is that right?

   MR DAWKINS: Well, what I'm saying is that my daughter told me that - showed me where she worked, and - and that - that - that place, undeniably that's what it is, right?

3. This was a recurring theme during the interviews for the Family Report. For instance, the Family Report Writer reported:-

   Mr. Dawkins appeared to struggle discussing his relationship with X and what they do during their time together.  He swiftly returned to the subject of Ms. Ogden and stressed his belief that she is working as a prostitute. Quite oddly, he evidenced his view upon a voice mail message received from Ms. Ogden and stated, “This is the way someone working in a massage parlour thinks” and then Mr. Dawkins started reciting quotes from Socrates, which made little sense.  He further believes she is working as a prostitute due to the company she keeps.

The Father’s belief that X may be abused in the Mother’s care

1. In evidence and during the interviews for the Family Report, the Mother said that the Father would not allow her to take X anywhere there were males as “he believed she would likely be sexually abused”. The Mother said that during the relationship that the Father would stalk her and would stare at her from a distance when she was working in the (employer omitted), which she said made “her and other customers feel quite uncomfortable”.

2. Further, the Mother said that her relationship with the Father also ended because as X became older the Father would ensure that X was segregated from her older brothers as “he believed they were sexually abusing her”. She said that the Father would repeatedly ask X if her older brothers had “touched her inappropriately or digitally penetrated her” and he would not permit her older brother to be left alone with her. The Mother believed the continual questioning to be highly inappropriate.

3. I accept the Mother’s evidence.

The Mother reports odd behaviour of the Father

1. The Mother reported numerous instances of odd behaviour on the part of the Father.

2. She told the Family Report Writer:-

   a)to support her view that the Father’s mental health may not be stable, the Mother recalled receiving a bag of second-hand clothing from a friend that the Father believed was a prostitute. The Mother asserts that the Father took the bag of clothing out in the back garden and whilst holding a lighter in his hand poured petrol over. Whilst she said the Father did not ignite the clothing she believed that he only withheld from lighting the bag because “she had petrol on her from attempting to wrestle the lighter from him”. As a result of the incident the Mother asserts that the Father badly assaulted her.

   b)the Mother recalled an incident during the parties’ relationship when the Father:-

   …picked up the landline telephone, did not dial any number, but started talking into the phone. He reportedly told her that he knew the police were listening to him and that was whom he was talking to.

3. I accept the Mother’s evidence.

X discloses that the Father washes his genitals in her presence and other disclosures

1. A serious issue was raised following the preparation of the Family Report. When X was being interviewed by the Family Report Writer she said as follows:-

   When asked if there was anything she disliked or wished to be different regarding her parents, X said she was unsure regarding her mother, but regarding her father, she conveyed a litany of complaints and this was of particular significance clinically for a child of only six years of age. X said she did not like it when her father washes his, “privates in the sink in front of me”, stating that such occurs in toilets at restaurants, disabled toilets and on other occasions she waits outside the toilets and knows he is washing his genitals in the sink.  X explained that prior to her parents’ separation her father did the same thing at home and this too would occur in front of her whilst she was on the toilet. Whilst it is of note that X conveyed a very strong dislike of her father’s behaviours, there was no information to suggest that she had been subjected to any inappropriate sexual behaviour. X added that she tries not to look at her father when he is doing so, but said, “Sometimes I see his privates”.

2. Further, the Family Report Writer noted that:-

   During both interviews with X, she raised significant issues with respect to future time with her father.  She disclosed that prior to her parent’s separation that on occasions her father would wash his genitals in the basin and she was exposed to such behaviours. During discussions with this Family Consultant, X disclosed that her father continues to display such behaviour when they spend time together. As noted above, X stated that her father takes her often the disabled toilets, when they spent time together and she needs to use the toilet.  On such occasions her father accompanies her, but she feels most uncomfortable when he washes his genitals in the basin in the toilets whilst she is using the toilet. Such behaviours reportedly occur when they are at a restaurant or other public areas and X expressed feeling most uncomfortable.

3. The Family Report Writer said:-

   In this Family Consultant’s opinion, there was no information to suggest there has been any sexual impropriety on the part of Mr. Dawkins.  Notwithstanding, X conveyed clearly her sense of feeling uncomfortable with her father’s behaviours and recalled with some embarrassment having actually seen his penis.  In this Family Consultant’s opinion, such reported behaviours by Mr. Dawkins are unusual at best and highly inappropriate at worst.  It is unclear as to why Mr. Dawkins would allegedly engage in such behaviours in not only a public area, but also in the presence of his six year old daughter.  Regardless of the reason, it is assessed that such behaviours are highly inappropriate, should not occur and therefore raises concern with respect to Mr. Dawkins spending unsupervised time with X.

4. Due to X’s disclosures the Family Report Writer assessed that:-

   Following the observation session between Mr. Dawkins and X, this Family Consultant assessed that child protection concerns may possibly exist given the information disclosed by X and Mr. Dawkins’ overt display of anger towards X. Hence, this Family Consultant made a formal notification to DHS. The content of that particular notification has been documented and placed upon the court file for future reference by this Honourable Court.

5. Shortly following the notification to DHS, the Family Consultant was advised the matter required an urgent investigation given X’s scheduled time with the Father would be the following Sunday:-

   On 2 July 2014 Mr S from DHS (omitted) telephoned this Family Consultant to advise the outcome of DHS’ investigation. He indicated that X made disclosures of having been physically assaulted/chastised by Mr. Dawkins. DHS recommended to Ms. Ogden that she not allow Mr. Dawkins to have any unsupervised time with X, she agreed to do so and that DHS would be writing to this Honourable Court to convey such advice formally.

6. Following X’s disclosures during the interview process for the Family Report (as they had not been raised in any previous material), a notification was received by DHS (as they then were). DHS with the Sexual Offences Child Investigation Team (“SOCIT”) conducted a joint interview with X on 27 June 2014:-

   a)the interview was conducted with no family members present;

   b)X said she did not want to have contact with her Father;

   c)X said that she had been slapped on the face by her Father for telling a lie;

   d)X said she was scared of her Father;

   e)there was no direct disclosure by X to DHS or SOCIT of the same nature as X had disclosed to the Family Report Writer. The report merely refers to those disclosures having been made previously to “other professionals”;

   f)Child Protection spoke to the Father who denied the matters raised;

   g)The Father did not co-operate with Child Protection in the risk assessment. Instead, “he presented as hostile and angry and was not able to provide coherent and logical responses” to questions;

   h)Child Protection recommended that the Father’s unsupervised time with X cease and she should only have supervised time with the Father;

   i)Child Protection recommended that the Father be directed to undertake a comprehensive psychological assessment.

7. As was reported by the Department of Human Services during their assessment, the facts and matters referred to within X’s disclosures were denied by the Father to Child Protection and also during his evidence.

8. Because the Father has denied matters as set out, and because there is no corroborative evidence of the same, I am unable to make a positive finding that any of the disclosures or assertions made by X had occurred. The allegations are serious and require serious consideration of the evidence. In assessing the evidence I am mindful of section 140 of the Evidence Act (Cth) 1995. The standard of proof to be applied is on the balance of probabilities but in making that assessment in this instance I have regard to the gravity of the matters alleged. 

9. However, the style, nature and demeanour of X when making the disclosures regarding the Father washing his genitals in the sink give rise to a real concern that X will be at unacceptable risk of abuse and/or inappropriate treatment whilst in the care of the Father:-

   a)the disclosure that the Father washed his genitals in a hand basin was an issue that had not been raised by the Mother in any material. It first came to light in the Family Report and the Mother denied any prior knowledge of it. I accept her denials. It would seem to me to be highly unlikely that a child of X’s age would be capable of imagining such an unusual scenario;

   b)X’s use of language, referring to the Father washing “his privates in the sink in front of me” is age-appropriate. It was accompanied by a statement by X placing the event in both place and time. She was able to identify the location of such acts taking place in different places and also the timing of such events being both before and after the parties had separated;

   c)X was able to convey to the Family Report Writer her contemporaneous feelings in relation to the event. She expressed a strong dislike of what was occurring;

   d)X was able to articulate how she reacts to the event occurring. She told the Family Report Writer she tries not to look at her Father, but said, “Sometimes I see his privates”. X has again described this in an age appropriate manner and without any sense of exaggeration or fabrication. The fact that she refers to “sometimes” seeing his privates suggests that she has found herself in that situation more than once and can differentiate between different times.

10. There can be no doubt that X made these disclosures to the Family Report Writer.

11. I accept that X made the disclosure of a slap to the face to both the Family Report Writer and to Child Protection during interview. Although there was no witness evidence from either DHS or SOCIT the provisions of section 69ZT of the Family Law Act 1975 (“the Act”) apply.

Other Matters

1. X told the Family Report Writer that her Father always asked her questions about her Mother, including who her Mother sleeps with. She said her Father asked her whether her Mother was “doing massage” and she said she just answered “yes” because he asked so many questions. X told the Family Report Writer that the Father pointed out a house where he thought the Mother worked and that she simply agreed with the Father’s questions because she did not know what else to say. X’s style of conversation with the Family Report Writer was age appropriate and explicable and she had made similar complaints to her Mother. There was no concern on the part of the Family Report Writer that X’s statements were not truthful. On the basis that X’s statements are correct the interactions between X and her Father, instigated by her Father, are an inappropriate involvement of her in the Father’s skewed view of reality. At the very least these issues, as she has revealed, would be perplexing for X. This ongoing exposure to conflictual issues between her parents has the capacity to detrimentally impact X emotionally and psychologically, particularly as she gets older and develops a greater understanding of her Father.

2. I therefore find that X is at an unacceptable risk of physical abuse and exposure to highly inappropriate behaviour in her Father’s care if she were to have unsupervised time with her Father. On that basis alone the Father’s application to have X live with him fails and the question then becomes, having regard to other factors, whether X should have ongoing supervised time with the Father.

The Father has demonstrated uncontained behaviour on the social media site Facebook:-

1. In an apparent reference to the Intervention Order proceedings in the Geelong Magistrates’ Court in June 2015, an entry on the Father’s Facebook page reads as follows:-

   I WALK LATE INTO COURT AND THE JUDGE LOOKS LIKE SHE WANTS TO 69 (omitted)! SHOULD OF SEEN THE COMPASSION SHE SHOWED FOR HIM! NOONE CARED ABOUT ALL THE TIMES I HAVE BEEN DRAGGED IN THEIR BECAUSE HE IS TRYING TO GET AWAY WITH DOING THE MINIMUM PROCEDURLY! I SWEAR HE THINKS HIS SOCRATES

2. The Father then went on to say:-

   NEXT TIME I WILL GO THERE AS DEMOSTHENES OR PLATO.

3. He said:-

   DOCTOR PATEL IS HELPING ME WITH MY FAMILY! WE ARE THE STUPID PEOPLE!. 

   (In an obvious reference to the infamous Queensland doctor who was held responsible for a number of patient deaths). This comment lacks context but is concerning.

4. The Father then said “INSPECTOR ROGER ROGERSON IS HELPING ME WITH MY FAMILY!” (in an obvious reference to the New South Wales Police Officer convicted of criminal offences and implicated in criminal activity). Again the comment lacks context but it is concerning.

5. There was a Facebook message on 29 May 2015 in which the Mother said related to X. However, I cannot draw that conclusion from the message and cannot place that entry into any meaningful context

6. These comments were juxtaposed against relatively mundane matters put on his Facebook page.

7. Although I am not precisely sure whether the Father actually denied the entries were his (such was his oblique style of giving evidence) or whether he was simply not prepared to admit the entries were his, given that the entries are on the Father’s Facebook page, there are photographs of him on that page, and there is other relatively mundane material on that page which seem to also be his entries, I am satisfied that the Father posted these various entries.

8. The comments are indicative of a significant lack of respect for authority and a lack of appropriate containment on the part of the Father. 

Other Matters

1. The Family Report Writer made further reference to a complaint by X that the Father made her walk an estimated distance of around 3 kilometres with a broken foot and crutches because he did not have access to a motor vehicle and would not carry her.

2. The Mother referred to various matters in her affidavit material which would appear to evidence unusual behaviour on the part of the Father.  She said:-

   a)that during the relationship the Father complained of stones being thrown on the roof by neighbours and police helicopters;

   b)the Father complained that the police and “bikies” were watching him;

   c)that the Father would talk on the telephone but nobody was on the other end;

   d)the Father was concerned that the police were bugging his telephone;

   e)the Father would walk outside to talk to her because he thought the house was bugged;

   f)the Father imagined there was a police helicopter hovering above him. In this regard the Mother placed a recording made by her in relation to one of these occasions and the Family Report Writer observed:-

   It is acknowledged that the identity of the individuals in these recordings, the timeframe and the context of such cannot be verified, but in this Family Consultant’s opinion, the voices heard do sound quite similar to those of Mr. Dawkins and Ms. Ogden.  A few isolated pieces of information are noted rather than the entirety of the recordings.  On the audio recordings it sounds as though Mr. Dawkins is talking about a helicopter flying overhead, which he has taken a video of, several Police cars having gone by and he questioned what was happening.  He then appeared to suggest Police wanted to lock him up and he was frightened.  He further indicated to Ms. Ogden that he believed Police have something in store for him, he counted three ambulances and Police having passed him and also spoke of bikies beating people up, chopping them up and getting rid of them.

   In what sounded to be an emotional state, Mr. Dawkins is heard apologising to Ms. Ogden because of what has affected him (presumably his mental health) in his life has now affected her as well.  He asserted that the things he believes are genuinely real because he can actually see the Police cars, as opposed to seeing aliens which are not real.  He spoke of also believing that he was being followed by Police from the caravan park where he lives.

3. The Mother said that the Father would constantly ask X if she had been sexually abused by her elder brother when there was no suggestion that had occurred.

Conclusion with respect to the Father’s capacity and functioning

1. In relation to the a matters set out above I accept the evidence of the Mother, the Family Report Writer and Child Protection regarding the disclosures X has made and the behaviours of the Father. Although I cannot find that every event has happened exactly as X has described it, the cumulative description of various events by her, together with the Mother’s evidence, paint a disturbing picture of the Father’s temperament and capacity to interact with X in an appropriate way.

2. These factors, combined with my observations of him as holding paranoid or persecutory beliefs, being quite uninhibited, loquacious, forgetful, unreliable, avoidant, abusive and at times aggressive lead me to the conclusion that the Father may still be suffering from an untreated medical condition which has the capacity to detrimentally impact on X, and may have already done so.

3. It is not possible to form a conclusive view as to any diagnosis or prognosis as that evidence is unavailable. However, I can rely on the Father’s personality style and functioning as is described above.

4. Given the Father’s stated position that he will not submit to any psychiatric or psychological assessment, I can do little more than rely on the facts before me and how they have impacted on X and how the Father’s functioning and personality style might impact upon her into the future. I find that the Father has had these unusual personality traits for a number of years and I personally observed his unusual personality style in Court. The matters referred to are concerning, particularly when considered collectively and I find in this case that if X was in the unsupervised care of the Father:-

   a)there is an unacceptable risk that she would be subjected to physical abuse;

   b)there is an unacceptable risk that she would be exposed to inappropriate behaviour, in particular exposure to the Father’s genitals;

   c)there is an unacceptable risk that she would be exposed to inappropriate questioning by the Father;

   d)there is an unacceptable risk that she would be exposed to the Father’s unusual and skewed version of his own reality; and

   e)in a general sense there is an unacceptable risk that X would be exposed to family conflict.

5. I find that the Father has no capacity to protect X from the abovementioned issues and has no insight into the impact of his behaviours on X (and others).

The Law

1. I turn to the legislative pathway which will guide me in respect to the ultimate outcome of these proceedings. In doing so. I shall try not to repeat matters earlier set out in these reasons but rather incorporate them as I am guided through the decision making process by the legislative pathway.

2. The best interests of X are of paramount consideration. In determining those best interests there are two primary matters or considerations and several additional matters or considerations to take into account.

Primary considerations

1. The primary considerations are set out in section 60CC(2) of the Act.

2. I must consider the benefit to X in having a meaningful relationship with both of her parents.

3. It is the Mother’s case that due to risk issues pertaining to the Father’s interactions with X that a meaningful relationship between X and her Father is not possible.

4. It is the Father’s primary case that X should live with him due to his concerns about the Mother’s capacity to care for her. However, he says that she should continue to have a meaningful relationship with her Mother via a spend time regime.

1. In the alternative to the Father’s application for X to live with him, I also will consider whether it is appropriate for X to spend time with him and if so on what basis.

2. I must also consider as a primary consideration the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. The Father suggests, and is highly critical, of the Mother in numerous areas which are tantamount to an assertion by him that X is at risk in the Mother’s care. Notwithstanding the strident criticisms that the Father levels at the Mother, I find that the Mother is capable and able to care for X.

4. As I have previously set out, I regard X as being at risk of physical and psychological harm from being subjected to, and exposed to, abuse, neglect and family violence whilst with the Father.

Additional Considerations

1. Section 60CC(3) of the Act are additional considerations to which I have regard to in the context of evaluating what might be in the best interests of X.

X’s view’s

1. It is the Mother’s position that X is very reluctant and has been very reluctant to spend time with her Father.

2. The Family Report Writer’s conclusion with respect to X’s particular views was as follows: –

   X did not convey any particular views with respect to the future parenting arrangements or time with her father. However, she did express several criticisms and identified issues she did not like whilst spending time with him.

3. X is of an age where her views would not be determinative. In these proceedings, the risk issues for X and the nature of her relationship with her parents, and in particular her Father, is by far the more serious issue to assess.

I must consider the nature of the relationship between X and her parents.

1. In respect of the Father, X’s relationship with him has been seriously impacted by his presentation.

2. It is reported that X feels anxious and apprehensive regarding her Father.

3. During the interviews for the Family Report the Family Report Writer describes the Father as becoming angry with X during the observation session. At the time these interviews were conducted the Father and X were spending regular time together and had spent time together the weekend before the interview. When X declined to give the Father a hug he started to appear frustrated and shortly afterwards engaged in competitive behaviour with X, refusing to play a game with her until she gave him a hug. The Family Report Writer reports as follows: –

   At this stage of the session, Mr. Dawkins’ presentation and demeanour dramatically changed as he angrily starred at X, his eyes fixated, nostrils flared and his lip up-turned, he then picked up the dice for the game and rolled it twice. X asked her father to pick up the colour of block that matched the colour he rolled on the dice, as it seemed X was attempting to engage her father in the game. It was particularly noted that X did not make any eye contact with her father and remained looking towards the floor.

   Mr. Dawkins asked X why she did not want to give him a hug and she replied that she simply did not want to.  Mr. Dawkins said to X again that this (their interactions) was not how it previously was at Bethany and it was clear to him that her mother was influencing her.  Mr. Dawkins leaned back in his chair and continued starring at X intently and maintained quite an angry look upon his face.  Whilst Mr. Dawkins remained leaning back in his chair, X commented to her father twice, “just play”, but he remained silent, leaning back in his chair angrily staring at X.

4. This interaction is concerning. It is suggestive of a relationship between the Father and X which is not always easy and is at times characterised by outbursts of anger. When combined with my concerns that X may have been physically chastised by the Father the issue becomes more alarming. It would seem to me that the relationship between the Father and X is fractured at least.

5. The Mother has been X’s primary carer. She is the person to whom X will look to for her primary support and for the totality of her needs. The observation session during the interviews for the preparation of the Family Report between X and her Mother were unremarkable, which is in stark contrast to the observations between X and her Father.

6. X also has a close relationship with her brothers, sisters and step-father, Mr J. She is well supported within her home.

Consider the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent: section 60CC(3)(c)

1. In respect of the Mother it is quite apparent that she has been reluctant to facilitate time between X and her Father. However, I have determined throughout the course of these reasons and, after hearing the matter, that her reluctance in that regard is justified. The Mother was concerned and trying to protect the health and safety of X by limiting her from being exposed to the Father’s behaviour. I do not say that the Mother’s reluctance is rigid or unyielding but is rather borne out of her own experience and her desire to protect X.

2. The Father’s behaviour is so florid and uncontained it is difficult to assess any capacity on his part to promote a relationship between X and significant others in her life. In any event, it is unnecessary to do so, given the findings and the need to protect X from risk.

Consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents: section 60CC(3)(d)(i)

1. X has not seen her Father since the release of the Family Report in 2014. The Father had indicated, reluctantly, that he would consider seeing X at a Children’s Contact Centre as a last resort. If this were to occur the change of circumstances in X’s day to day routine would be minimal. However, of greater concern is the effect of the Father’s interactions with X which would be difficult to contain, even in a formally supervised setting.

Consider 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: section 60CC(3)(e)

1. Both parties reside in the (omitted) area. There is a Children’s Contact Centre available in the (omitted) area

2. A Children’s Contact Centre requires a degree of co-operation from parties in order for parties to be able to continue to avail themselves of that service. I have serious concerns as to the capacity of the Children’s Contact Centre’s workers to contain the Father in an appropriate way so as not to expose X to risk of psychological and emotional harm. I note, for instance, that it was difficult for me to contain the Father in the confined structures of the courtroom and it was also difficult for the Family Report Writer to confine and contain the Father in the context of the interviews for the preparation of the Family Report when the Father was interviewed with X.

3. For this reason I consider that containing the Father in any structured environment will continue to be difficult and that impacts on the practicality of any arrangements that should be made.

4. In terms of geography, there does not seem to be any serious impediment in a practical sense with respect to X living or spending time with each of her parents.

Consider 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: section 60CC(3)(f)

1. I have dealt with the capacity of each of the parents to care for X.

2. Suffice to say I regard the Father’s capacity as seriously impaired and refer to and repeat the other matters set out in these reasons as to why that is so.

3. The Mother has a demonstrated capacity to care for X and X is doing well in her home environment with the Mother.

Consider 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: section 60CC(3)(g)

1. This issue was not traversed in any serious way during the course of the proceedings.

Consider if the child is an Aboriginal child or a Torres Strait Islander child and:  (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: section 60CC(3)(h)

1. Not relevant.

Consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents: section 60CC(3)(i)

1. The Mother has shown an appropriate attitude to X and to her responsibilities as a parent. She has met X’s needs both emotionally and physically.

2. For the reasons that I’ve previously set out, the Father is incapable of meeting X’s needs and has not done so.

Consider any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person: section 60CC(3)(k)

1. The Mother has alleged family violence perpetrated by the Father towards her.

2. Each of the parties allege family violence by the other. 

3. The Mother says that the Father has assaulted her and engaged in stalking behaviour.

4. Likewise, the Father alleges that the Mother has engaged in violent behaviour towards him; kicking punching and pushing and enlisting her children to engage in the same behaviour.

5. There was an aggressive incident between the Father, Mr J and Z on the streets of (omitted). I note that there are disputed facts in relation to that incident and given that Mr J was not called as a witness, I am not prepared to simply accept the version as set out in the Mother’s material in relation to that incident. The Father asserts that Mr J was the protagonist in the situation where as it is asserted by the Mother that the Father engaged in wholly uncontained and abusive behaviour towards Mr J and her son. However, what I can draw from that incident is that there is an aggressive and competitive relationship between the two men and there is a capacity for that interaction to become angry.

6. There are further instances where the Mother alleges that following separation the Father engaged in difficult and aggressive behaviours.

7. X has witnessed family violence and has been a victim of family violence herself in terms of the findings that I have made.

8. The Mother has a current Intervention Order against the Father.

9. The Father also has an Intervention Order, or had an Intervention Order, against the Mother but that related primarily to the destruction of property.

10. Ultimately I have formed the view that there is underlying aggressive behaviour and such behaviour was, at first instance, bound up in the breakdown of the relationship and was probably mutual to an extent.

11. Following the breakdown of the relationship it is likely that the Father was aggressive towards the Mother, X and her family. Although clearly family violence, in my view, these issues are intimately entwined with the Father’s presentation and the concerns I have about those issues.

12. The orders that I make will protect X from exposure to any further family violence.

Consider 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: section 60CC(3)(l)

1. It is preferable that these be final orders.

2. The Father may still make a future application to spend time with X. However, having regard to the findings that I have made, such an application would also need to be accompanied by evidence that the Father has addressed some of the personality issues and concerns that I have described, and to establish that the Father is not in fact suffering from a mental health condition. Whilst I would not seek to impose my own view on any future judicial officer, it is difficult to see how any future application could be made by the Father without that evidence.

Parental responsibility

1. Section 61DA provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility.

2. Parental responsibility in relation to a child means all duties. powers, responsibilities and authority which by law parents have in relation to children.

3. When two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly. The concept of shared parental responsibility carries with it the requirements to consult the other parent in relation to the decision to be made and to make a genuine effort to come to a joint decision about that issue. This means that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared. 

4. The presumption that it is in the best interests of the child that parents have equal shared parental responsibility does not apply (or is rebutted) in the following circumstances:-

   a)if the Court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence or abuse of the child or another child who is a member of the parent’s family;

   b)where evidence is adduced, upon which the Court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

5. For the reasons I have set out, the presumption of equal shared parental responsibility does not apply to X when having regard to the issues of risk and the need to protect her from risk. X’s welfare dictates that their Mother should have sole parental responsibility.

Consider any other fact or circumstance that the court thinks is relevant to determining the child’s best interests: section 60CC(3)(m)

1. I do not believe there are any other facts or circumstances relevant to the determination of these proceedings, and in so far as they relate to X.

Conclusions as to parenting

1. This is a very sad case. As a result of the issues placing X at risk from physical and psychological harm as I have set out, X will be deprived of a relationship with her Father. Her interests demand that this occurs. I note that this was the application of the Independent Children’s Lawyer. I concur.

2. I have considered whether or not supervised time should occur between X and her Father. However, there are two significant impediments to that: –

   a)the Father’s expressed reluctance to spend time with X on a supervised basis although he did say he would do so. If supervised time were to occur the Father would find it difficult to understand and accept the reasons for supervision; and

   b)my concern that the difficulties that confront the Father and his presentation are such that X is still at risk of at least some level of emotional or psychological harm given that the Father is completely unable to contain himself.

   I have therefore concluded that supervised time between X and the Father cannot adequately protect X and therefore cannot proceed.

3. Although I have determined that X should not spend time with the Father and that the Mother should have sole parental responsibility, I am not convinced that the Father should not receive information about her. At the very least, if the Father is in a position in the future to rekindle his relationship with X, he should have some knowledge about how she has been progressing. This knowledge will provide a foundation upon which any future connection between father and daughter can be built and is therefore to X’s benefit. I will make orders accordingly.

4. Similarly, the Father should be permitted to send gifts, cards and keepsakes to X. Given the issues in this case, the Mother will be at liberty to review the items for appropriate content before passing them on to X.

5. For all of the forgoing reasons and having regard to all of the factors impacting on X, the orders I will make are proper and appropriate for her and are in her best interests.

Property Issues

1. The Father (who is the Applicant in relation to the property adjustment between the parties) brings his application for an alteration of property interests pursuant to this section 90SM of the Act.

2. The de facto relationship between the parties existed for a period of approximately 6 years between 2007 and 2013. The de facto relationship between the parties broke down in early to mid-2013.

3. Pursuant to section 90SM(3) of the Act, I must not make an order altering the property interests between the parties unless I am satisfied that it is just and equitable to do so (see Stanford & Stanford [2012] HCA 52).

4. The vast majority of the property was bought in by the Mother and most significantly, she made a contribution in the sum of approximately $209,000 to the acquisition of the home in Property H. The parties have a child together which has been a significant aspect of the dispute between them. Pursuant to the decision that I have made in the parenting proceedings, X will continue to live primarily with her Mother and not see her Father.

5. Essentially, all of the property available for distribution between the parties is in the Mother’s name. As the parties have separated, the Father wishes to divide the assets, having regard to his contributions to the same.

6. In considering whether it is just and equitable to make an order, I have taken in to account that the Father’s contribution to the assets and resources of the Mother were minimal.

7. The current legal and equitable property interests of the parties appear to be as follows:-

   a)the Mother has a legal interest in the property situated at and known as Property H, (“the Property H property”). I find that this property has a current value of $340,000 and is encumbered by mortgage in the sum of approximately $107,500. The property is in the Mother’s sole name and therefore has a net equity of approximately $232,500. Although the Mother is the sole registered proprietor of the Property H property, the Father appears to be a joint borrower on the mortgage (although the evidence in relation to this is somewhat unclear);

   b)the Mother has a (omitted) business which operates out of a (omitted) (“the business”). The plant and equipment recorded in the business returns is approximately $6,200. The Mother’s Financial Statement values her interest in the business at approximately $11,400;

   c)a motor vehicle worth around $5,000;

   d)the Mother has superannuation entitlements in the sum of approximately $23,300.

8. The Father appears to have negligible property interests in either real or personal property or superannuation entitlements.

9. The Mother has or will have the responsibility for the mortgage debt over the Property H property. She also owes her Father the sum of $25,000 for the acquisition of the business and her daughter a further $10,000 for the acquisition of the business. I accept her evidence in this regard. She owes her father a further $10,000 for the acquisition of her motor vehicle.

10. Before I even turn to consider the factors pursuant to section 90SM(4) of the Act, I should note that in a general and overall sense it is abundantly clear that it was the Mother’s property settlement proceeds from her previous relationship which funded the acquisition of the Property H property. It is also clear that the funds to acquire the (business omitted), being the Mother’s business, were sourced from the Mother’s family which I also accept. The Mother asserts, and I accept, that her superannuation entitlements were accrued prior to the commencement of the parties’ relationship.

1. In that sense, the consideration of whether it is just and equitable to make an order at all is a very real consideration in these proceedings. 

2. In Stanford & Stanford [2012] the High Court observed that while the power conferred by section 79 of the Act is not to be exercised in accordance with fixed rules, three fundamental propositions should not be obscured. Those propositions are, in summary, as follows:-

   a)first, it is necessary to consider whether it is just and equitable to make a property settlement by identifying the existing legal and equitable interests of the parties property;

   b)second, it is necessary to consider whether the parties’ rights and interests in property should be altered;

   c)third, in determining whether a property settlement is “just and equitable” one does not begin with an assumption that one or both of the parties has a right to have the property of the parties divided between them, or has an interest in marital property simply by virtue of the matters set out at section 79(4) of the Act.

3. Further, the High Court said at paragraph 36 of their judgment:-

   To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

4. As Murphy J observed in the case of Watson & Ling [2013] FamCA 57, as a result of the matters set out in Stanford:-

   The Court’s approach to s 79/s 90SM may be less compartmentalised than what a strict or unthinking adherence to four (or three) “steps” might otherwise reveal. The task is essentially holistic; is it just and equitable in the particular circumstances of the particular relationship or marriage under consideration to make an order and, if so, its terms must similarly meet that criteria.

5. To further inform about whether it is just and equitable to make an order I propose to consider the matters set out in section 90SM.

Financial and non-financial contributions

Contributions made prior to the relationship

1. The evidence in this case demonstrates that the overwhelming contributions made to the Property H property, the business and the Mother’s superannuation entitlements were made by the Mother. At the commencement of the relationship the Mother held her superannuation entitlements and her entitlement to a property settlement which was realised in 2009.

2. At the commencement of the relationship the Father owed his mother $6,000; a liability which was repaid out of the Mother’s funds during the relationship.

Financial Contributions made during the relationship

1. The Mother earned a modest income from the business for part of the relationship. To the extent that the Father assisted with the business from time to time he also made direct financial contributions.

2. The Father is an unreliable historian. However, he does say that he assisted in the Mother in the business and such assistance is conceded by the Mother (although not to the same extent as is alleged by the Father).

3. The Father was in receipt of a disability benefit throughout the course of the relationship. There is a dispute between the parties as to whether the Father kept his benefits or made contributions to the family. On balance I accept that the Father’s Centrelink benefits were applied towards family’s expenses.

4. Putting aside initial financial contributions, I find that both parties made direct financial contributions to the parties’ property and the welfare of the family generally.

Non-financial contributions

1. The Father had a role as carer for X. I reject his evidence that he was the primary carer for X during the course of the relationship, although I accept that he had a continuing and regular role in that regard.

2. The parties have been separated for some considerable period of time and the Mother has had primarily care for X since separation, with no assistance from the Father.

3. There was a dispute between the parties as to the Father’s other non-financial contributions. The Father said that he assisted in the construction of the (business omitted) and made other contributions via personal exertion within the parties’ home. The Mother was unwilling to make more than a limited concession with respect to the Father’s contributions. On balance I find that the Father made some contributions to the business and the home which were not substantial.

4. In terms of the asset pool it is convenient at this point to observe that the asset pool is as follows:-

Property H property net equity	$232,500	The Father asserts that this figure should be $30,000 greater. However, he previously agreed to the lower value and has provided no evidence to support the higher figure. I accept the Mother’s figure
Business	$11,400	I take the higher figure as an admission against interest by the Mother.
Motor vehicle	$5,000
Mother’s Superannuation entitlements	$23,300
total	$272,200.00
Liabilities
borrowings from the Mother’s father	$35,000	Combined loan for business and car.
borrowings from the Mother’s daughter	$10,000
total	$45,000.00
Net position	$227,200

1. Following separation the Mother disposed of a motor vehicle and retained the sale proceeds of $1,000.

2. I turn to consider the significant matters relevant to section 90SF(3):-

   a)the Father is reliant on a disability support pension for his support. He lives in modest accommodation in a Caravan Park and has no superannuation entitlements. His circumstances are unlikely to change;

   b)The Mother sets out her income from the business at $250 per week, which has been disputed by the Father. The Father was unable to establish higher earnings by the Mother and I accept her evidence. The Mother has a superior income and has the benefit of having married Mr J and now has rental income from the Property H property. Equally she has the responsibility and care of the party’s child, X with no significant child support from the Father;

   c)the Father is 43 years old and he is in poor health;

   d)the Mother is 46 years old, is in reasonable health and in part-time employment. Overall I find that the Mother’s earning capacity and potential for ongoing earning capacity as being superior to the Father’s;

   e)both parties’ earning capacities are well below the average income;

   f)I am not persuaded that the Father is likely to work in the foreseeable future, nor provide child support beyond a minimal amount into the future;

   g)the Mother will be the sole carer for X;

   h)the financial circumstances of Mr J were not put before the Court in any significant way. However, I accept that he will provide the Mother with a financial resource and support her in to the future; and

   i)neither party has sought a superannuation splitting order.

3. On balance, I determine that it is just and equitable to make a property order in these proceedings. The parlous circumstances of the Father convince me that this should be the case, even though his entitlement is modest. The modest nature of his circumstances persuades me that he should receive his entitlement which I assess at around fifteen percent of the net property of the parties. Although in some respects such an amount is quite modest, I cannot ignore that it will be of greater significance to a person in the Father’s position.

4. Therefore, the Father should be paid $34,500 by the Mother.

Further Issues

1. The Father sought the return of numerous chattels which the Mother had previously made available. Notwithstanding there being ample opportunity provided to the Father to collect chattels he did not do so. In the circumstances, I decline to make an order for the return of chattels but shall make a notation that the Mother has indicated an intention to return the chattels belonging to the Father if she retains the same.

I certify that the preceding one hundred and seventy-eight (178) paragraphs are a true copy of the reasons for judgment of Judge Stewart

Date: 16 March 2016