DEMOPOULOS & FULLARD - [2016] FamCA 930

FAMILY COURT OF AUSTRALIA

DEMOPOULOS & FULLARD

[2016] FamCA 930

FAMILY LAW – CHILDREN – Undefended – Where the respondent disengaged from the proceedings and did not attend upon the single expert for the updating report – Where the single expert held serious concerns as to the respondent’s mental health and was of the view she may be suffering from a delusional disorder – Where the respondent has not sought therapeutic intervention – Where the Court is satisfied that the respondent presents an unacceptable risk of harm to the child – Orders made for the child to continue to spend supervised time with the respondent until such time as she completes treatment with a mental health professional.

FAMILY LAW – PROPERTY SETTLEMENT – Undefended – Where the only asset for division is the proceeds of sale of the former matrimonial home – Where the applicant made a significant direct contribution to the purchase of the property – Where the parties contributions were otherwise equal – Where the Court finds the parties’ contributions should be assessed fifty-five per cent in favour of the applicant and forty-five per cent in favour of the respondent – Where the applicant will have primary care for the parties’ child – Where the Court finds section 75(2) factors favour a five per cent adjustment in favour of the applicant – Orders made.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65AA, 65DAA, 75(2), 79, 117
Family Law Rules 2004 (Cth) r 19.81

Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Penfold v Penfold (1980) 144 CLR 311
Stoddard & Glover [2016] FamCA 674
Stoian & Fiening (Costs) [2014] FamCA 944
Wrensted & Eades (2016) FLC 93-697

APPLICANT:

Mr Dem

RESPONDENT:

Dr Fullard

INDEPENDENT CHILDREN’S LAWYER:

Ms Karagiannis

FILE NUMBER:

SYC

2390

2015

DATE DELIVERED:

4 November 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

5 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maurice

SOLICITOR FOR THE APPLICANT:

McDonell Milne Toltz Family Lawyers

FOR THE RESPONDENT:

No appearance by or on behalf of the respondent

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney Central Family Law

Orders

Parenting

All previous parenting orders made in these proceedings are discharged.
The applicant is to have sole parental responsibility for the child, B born … 2010 (“the child”).
B is to live with the applicant.
B is to spend time with the respondent on at least one occasion each week, such time to be supervised by D Group, or such other organisation which provides supervision services as the parties may agree from time to time, and at the respondent’s cost.
In the event that the child is unavailable to spend time with the respondent during any week by reason of illness, absence on holidays or other commitments, the child shall make up time with the respondent at such times as may be agreed between the parties and the supervisors.
The applicant is granted leave to provide to any organisation engaged to provide supervision of the child’s time with the respondent, a copy of the reports of Dr F in these proceedings and these Orders.
The supervision of the child’s time with the respondent is to continue until such time as she has attended upon a mental health professional recommended by Dr F and following a course of therapy, obtains from that mental health professional a certificate confirming that she is fit to care for the child on an unsupervised basis.
The respondent is to inform the applicant in writing of the name and address of the mental health profession upon whom she is to attend no later than seventy-two (72) hours prior to her initial appointment with such professional.
The parties are granted leave to provide to the mental health professional referred to in Orders (7) and (8) above, a copy of the reports by Dr F in these proceedings once the respondent commences therapy with him or her.
Contemporaneously with providing the applicant with a copy of the certificate referred to in Order (7) above, the respondent shall authorise the mental health professional who issued the certificate to speak with the applicant about her therapy.
The respondent is hereby restrained from attending at the child’s school at those times that the child attends.
The respondent is hereby restrained from:
(a)       Discussing these proceedings with the child or within the child’s presence or hearing;
(b)       Discussing any allegation made in these proceedings with the child; or
(c)       Denigrating the applicant, any member of the applicant’s family or any partner, to the child or within the child’s presence or hearing.

Property

Within seven (7) days of the date of these Orders, the parties are to do all acts and things, execute all documents and writings and give all instructions, authorities and consents necessary to cause the proceeds of sale of the former matrimonial home at G Street, Suburb E, currently held in trust for the parties by P Lawyers, Solicitors, to be distributed in the following manner:
(a)       In payment to the applicant the sum of $425 000;
(b)       One half of the balance to the applicant;
(c)       Subject to Orders (18) and (19) below, the sum of $55 000 which is to be held in escrow; and
(d)       The remaining balance to the respondent.
Other than as provided by these Orders, the parties are each entitled to retain the ownership of all other items of property presently in the name, possession or control of each of them respectively, including but not limited to money, shares, investments, motor vehicles, insurances, entitlements to superannuation benefits, furniture, furnishings and household effects, and personal effects.
Other than as provided by these Orders, the parties are each to remain solely responsible for the payment of all and any debts and liabilities presently in the name of each of them respectively.
The parties are each do all acts and things, sign all documents and give all consents necessary to fully implement these Orders.
In the event that the respondent refuses or neglects to execute any deed, document, instrument or writing necessary to give effect to these Orders within seven (7) days of being required to do so under these Orders, then the Registrar of the Family Court of Australia at Sydney is hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all such deeds, documents, instruments and writings in the name of the respondent and to do all such acts and things necessary to give validity and operation to these Orders.

Costs

The respondent is to pay the following costs of the applicant, from the sum of $55 000 held in escrow pursuant to Order (13)(c) above, on a party/party basis as agreed or assessed:
(a)       Costs of 27 November 2015;
(b)       Costs of 20 April 2016;
(c)       Costs of 22 August 2016; and
(d)Costs thrown away by the final hearing listed to commence on 26 April 2016 being vacated.
Should the applicant’s costs be agreed or assessed as a sum which is less than $55 000, the balance of the sum held in escrow is to be released to the respondent upon payment being made in accordance with Order (18) above.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Demopoulos & Fullard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2390 of 2015

Mr Demopoulos

Applicant

And

Dr Fullard

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns an application for both final parenting and property orders sought by Mr Demopoulos (“the applicant”).
The parenting orders are sought in respect to the parties’ son, B, born in 2010 (“the child”). Regrettably, the child’s mother, Dr Fullard (“the respondent”) suffers from ongoing mental health issues. To date the respondent has not sought therapeutic intervention to address those issues. In those circumstances, these orders will provide for the child to spend supervised time with the respondent until such time as those issues are addressed.
The property proceedings have been unnecessarily complicated as a result of the respondent failing to comply with orders of the Court regarding the sale of the parties’ former matrimonial home. The respondent’s non-appearance at several court events also resulted in the initial final hearing dates being vacated. Ultimately, the respondent failed to appear at the final hearing and the matter proceeded on an undefended basis
In those circumstances, the Court was required to determine what constituted a fair and equitable distribution of the parties’ matrimonial property in the absence of a case being presented to the Court by the respondent. The Court was, however, greatly assisted by counsel for the applicant who approached his task of assisting the Court in a fair and balanced way that brought credit to his profession.

The respondent’s non-participation

Since 24 September 2015 the respondent has effectively disengaged herself from these proceedings. By way of summary:
a)On 24 September 2015 orders were made by Johnston J on an urgent basis changing the residence of the child from the respondent to the applicant following the release of the first Report by the Single Expert, Dr F (“Dr F”), on 17 September 2015. The respondent was represented by counsel on that occasion.
b)On 26 October 2015 the respondent’s then solicitors, Q Lawyers, filed a Notice of Ceasing to Act.
c)On 18 November 2015, on the applicant’s application, orders were made by Le Poer Trench J appointing the applicant as the trustee for sale of the former matrimonial home. The orders further provided for the respondent to vacate the former matrimonial home within twenty-one days. The respondent did not appear before the Court.
d)On 27 November 2015 the respondent did not attend a telephone procedural hearing conducted by Registrar Bastiani. The benchsheet from that hearing notes that the respondent’s then solicitors had been notified of the listing by the Court on 21 October 2015.
e)On 14 December 2015 the matter came before me in the context of a First Day Less Adversarial Trial. The respondent appeared on her own behalf on that occasion.
f)On 21 December 2015 I dismissed the respondent’s application to set aside the orders made on 18 November 2015 and ordered that a Writ of Possession issue but lie in the Registry for a period of twenty-eight days to enable the respondent to find alternative accommodation. The respondent appeared on her own behalf before the Court on that occasion as well.
g)On 18 January 2016 a Notice of Address for Service was filed on behalf of the respondent by R Lawyers.
h)On 27 January 2016 the respondent attended a Conciliation Conference with her solicitor which resulted in interim property consent orders being made.
i)On 24 March 2016 R Lawyers filed a Notice of Ceasing to Act.
j)On 4 April 2016 the respondent did not attend an appointment with Dr F for the preparation of the updating Report.
k)On 20 April 2016, at the request of the Independent Children’s Lawyer (“the ICL”), the matter was listed for mention due to concerns as to the respondent’s non-compliance with directions which were made for the filing of material as well as in respect to the respondent’s non-attendance upon Dr F. The respondent did not appear before the Court on that occasion and did not respond to telephone calls made to her on the day. The final hearing, which had been listed to commence on 26 April 2016, was vacated and re-listed to commence on 5 September 2016. The parties were ordered to file and serve any updated affidavits by no later than l5 July 2016.
l)On 11 July 2016 an application brought by R Lawyers, for payment of outstanding legal fees from a partial property settlement due to be received by the respondent, was heard before Gill J. The respondent did not appear before the Court on that occasion either. Whilst the matter proceeded, it was adjourned to 14 July 2016 for further argument with the respondent to be notified of the listing. Despite being notified, on 14 July 2016, once again, the respondent did not appear before the Court.
m)On 22 August 2016 the matter was listed for mention to ascertain its readiness for the final hearing listed to commence on 5 September 2016. The respondent did not appear before the Court and orders were made that if a party did not appear on the first day of the final hearing, the matter would proceed in the absence of that party.
n)The respondent has not filed any affidavit material since 16 September 2015. The last document filed by the respondent was a Financial Questionnaire on 27 January 2016, when the respondent attended a Conciliation Conference with her then solicitor.
o)Despite the orders made on 22 August 2016, which the applicant’s solicitors were required to inform the respondent of by 24 August 2016, the respondent did not appear before the Court on the first day of the final hearing. Accordingly, I ordered that the final hearing would proceed in the absence of the respondent on an undefended basis. The final hearing was concluded within one day.

Evidence

The applicant relied upon the following:
a)Amended Initiating Application filed 17 June 2015;
b)Financial Statement filed 12 August 2016; and
c)Affidavits of the applicant filed 30 March 2016 and 12 August 2016.
The Court also had the benefit of two reports prepared by the Single Expert, Dr F, dated 15 September 2015 (“the first Report”) and 12 April 2016 (“the updating Report”) respectively (together “the Reports”). As previously noted, the respondent did not attend upon Dr F for the preparation of the updating Report.
Neither Dr F nor the applicant were required for cross-examination.
As result of the failure by the respondent to file a trial affidavit and to attend the final hearing, there was no challenge to the applicant’s evidence.
I find that the evidence set out in the applicant’s affidavit material is plausible and, where appropriate, supported by documentary evidence. In those circumstances, I accept the veracity of the applicant’s evidence.
I also accept the observations and opinions expressed by Dr F in the Reports.

Detailed Chronology of Events

The applicant was born in Hobart in 1966 and is currently 50 years of age. The respondent was born in Melbourne in 1974 and is currently 42 years of age.
The parties are both employed by the S University in Sydney..
In May 2000 the parties commenced cohabitation.
In 2001 the applicant became employed at T College.
In 2004 the respondent completed a PhD and became employed by the S University.
In November 2007 the parties entered into a contract for sale to purchase, in equal shares, the property at G Street, Suburb E (“the Suburb E property”).
On 18 January 2008 the parties entered into a co-tenancy agreement. The agreement provided that in the event of separation, and upon completion of a sale of the Suburb E property, the applicant would receive $425 000 from the proceeds and the balance would be divided equally between the parties. The amount of $425 000 represented the deposit paid by the applicant towards the purchase.
Between January and April 2008 the parties completed renovations on the Suburb E property.
In 2009 the parties married.
In 2010 the parties’ first child, B, was born. The child is currently aged 6 and in Kindergarten at school.
In January 2011 the respondent returned to work.
On 24 November 2013 the parties purchased a German motor vehicle in the applicant’s sole name for the sum of $15 990.
In January 2014 the child commenced pre-school at the C School. Around this time the applicant deposed that he started to notice changes in the respondent’s behaviour which gave rise to concern. For example, on 11 January 2014, the applicant alleges the respondent told him that she was in love with her physiotherapist and could communicate with him telepathically.
Between January and March 2014 the parties completed further renovations to the Suburb E property.
In December 2014 the applicant became employed by the S University. At this time, the applicant alleges that the respondent began to make allegations that the applicant had “acted in a threatening way towards her and… had been violent towards her”.
In January 2015 the applicant deposed that the respondent’s “irrational behaviour… heightened”. This included making an allegation that her parents had sexually abused her as a child.
On 20 January 2015 the applicant alleges that the respondent would not let the child speak over the telephone to the paternal aunt “because she swears” and proceeded to take the child to the park in very little clothing and barefoot. When they returned shortly after, the respondent refused to speak to her parents, whom the applicant had called. The applicant says when he tried to prevent the respondent leaving the home a second time with the child, the respondent called the police. The applicant says that he was told by the police to have “a late dinner and return when things had calmed down”. He followed this advice and returned around midnight.
On 4 February 2015 the applicant alleges that the child told him that he had been talking to the paternal uncle and the respondent had hung up the phone. When the applicant confronted the respondent, she told him it had been a telemarketer. The applicant then called his brother and confronted the respondent, telling her that she had lied to the child. The respondent told the applicant that he was being “very aggressive” and she felt threatened. The applicant says the police subsequently attended the home.
On 5 February 2015 at 2 am, the applicant was served with an application for Apprehended Domestic Violence Order (“ADVO”).
On 6 February 2015 the parties’ separated. The respondent remained at the Suburb E property with the child whilst the applicant moved into rental accommodation nearby.
On 18 March 2015 the ADVO proceedings were listed before the Local Court at Suburb U. The applicant opposed the application and the proceedings were listed for a defended hearing. Interim orders were made in the terms of the ADVO application, which had sought orders that:
a)The applicant must “not assault, molest, harass, threaten or otherwise interfere with” the respondent;
b)The applicant “must not engage in any other conduct that intimidates” the respondent; and
c)The applicant “must not stalk” the respondent.
Between February and April 2015 the applicant deposed that, notwithstanding the ADVO proceedings, the parties continued their previous arrangement for the care of the child whereby the applicant would attend the Suburb E property to care for the child each morning, after school and over the weekend.
On 29 March 2015 the applicant alleges that he attended the Suburb E property to spend time with the child and during the course of the morning, the respondent became agitated and told him she would call the police because he was “threatening [her] and the child”. The applicant left the property and attended the local police station to report the incident.
On 30 March 2015 the respondent alleges that she returned home to find the child and the applicant sitting on the lounge together under a doona. The respondent reported to Dr F that:
…she found [the applicant] with a “fixed sexual stare” on his face; “a frozen, traumatised, orgasmic stare, very, very unwell, starting [sic] into space”.

In discussing the incident with Dr F, the respondent further reported that the child had been wetting the bed and had made statements to her about wanting to pull the applicant’s pants down and that the applicant had urinated in the bed. The respondent subsequently reported these disclosures to JIRT and the police.
On 31 March 2015 the applicant says that he attended the Suburb E property to prepare the child for school. The applicant alleges that the respondent would not permit him to take the child to school and told him she would collect the child in the afternoon. Later that evening, when preparing the child for bed, the applicant says the respondent told him that the bedroom door was to remain open at all times. After questioning why, the applicant says that the respondent then told him she was going to call the police. The applicant left the home, returning shortly after. The applicant says the police attended and took no further action, allowing him to remain at the home to settle the child to sleep.
On 1 April 2015, after putting the child to sleep, the applicant alleges that the respondent confronted him seeking an explanation as to why, days earlier, the applicant “had a doona over [his] lap and the child… underneath” and had a “sexual look” on his face when she entered the room. The applicant says the respondent then told him that she thought it was unsafe for the applicant to be around the child by himself.
On 2 April 2015 the applicant alleges that the respondent refused to allow him to collect the child from school and insisted that from then on she would be collecting him.
On 3 April 2015 the applicant alleges that he attended the Suburb E property to have breakfast with the child. Whilst watching a YouTube video of a scene from a Star Wars film with the child, the applicant says that the respondent confronted him and told the child that his father is mentally ill and that she is trying to support him and keep him safe from his father. The applicant says he subsequently tried to take the child for a drive but the respondent would not let him “after what [the applicant] did to him two days ago”. Eventually the parties went to the Park all together but the respondent refused to leave the child’s side.
On 12 April 2015 the applicant alleges that he arrived at the Suburb E property to spend the day with the child but the respondent would not leave the house without the child coming with her and became increasingly agitated. The applicant attended the local police station to report the incident but whilst there, the respondent phoned the police and made a statement that the applicant had abused the child. The applicant says that he was not detained or interviewed and subsequently the parties spent a day out with the child at Suburb V.
On 14 April 2015 the applicant alleges that he arrived at the Suburb E property to find that the respondent had changed the locks. The respondent allegedly told the applicant that she had changed the locks because “of [his] aggression and threatening behaviour”. The applicant says the respondent then repeatedly told him that he was “very unwell”, “mentally unstable” and that he required “serious mental health support”. The applicant alleges that this occurred in front of the child who became distressed.
On 15 April 2015 the applicant alleges that he received a telephone call from the child repeatedly saying that “Mummy told me you are not coming around to read stories to me anymore”. The applicant says he then heard the respondent in the background saying to the child: “I don’t want you speaking to Daddy anymore. I want you the hang up.” Later that afternoon, the applicant arrived at the Suburb E property but the respondent refused to let him in, telling the child: “Daddy is unwell the child. Keep away from Daddy.” The applicant says he contacted the police, who went to speak to the respondent. The applicant asserts that the police told him that there was nothing they could do and “only a Court Order will fix this up”.
On 17 April 2015 the applicant commenced these proceedings by way of an Initiating Application seeking final parenting and property orders.
On that date the applicant alleges that he received a telephone call from the child asking to see him. The applicant then attended the Suburb E property and was let in by the child. After he came into the house, the applicant says that the respondent told the child: “Daddy’s not going to come into the house. I’ve changed the locks. It’s very unsafe having Daddy here when he goes into a state that is unwell”. The applicant says that that the respondent continued to make such comments in the child’s presence and said to him:
You are completely damaged. There is something very wrong with you. You are looking at me and staring at me in that way. You are deeply unstable… You are threatening. Your behaviour is such that I don’t feel safe to have you around K-I-D-S. You’re simply not. When you start looking at the child in a S-E-X-U-A-L way with a glazed look on your face then there is something seriously psychotic about your behaviour and if you won’t acknowledge it’s psychotic then you’re psychotic…
On 18 April 2015 the applicant alleges that the respondent called him and told him that the child was afraid of him. When the applicant eventually convinced the respondent to put the child onto the phone, the child told him that “Mummy says she’s going to stop us going to [Suburb V]” and became very distressed. The applicant says he then attended the Suburb E property but the respondent would not let him into the home. The applicant says he could see the child crying at the window and calling out to him. He then called the police who arrived at the home, advising him to return to his own residence.
On 19 April 2015 the applicant alleges that he once again returned to the Suburb E property to see the child. He says the respondent refused to let him and would not let the child go anywhere with him.
On 20 April 2015 the applicant deposed that the child’s school advised him that they had “received a Court Order from your Wife which prevents you from picking up the child up from school”. The applicant later attended the school and following discussions between the applicant, school staff and the police, it was confirmed that the interim ADVO did not prevent the applicant from picking the child up from pre-school.
Between 21 April and 12 June 2015 the applicant alleges that the respondent withheld the child from pre-school.
On 22 April 2015 the applicant alleges that he ran into the respondent and the child at a local shopping centre, with the child running up to him and holding him tightly. The applicant says that the respondent became agitated and started make a scene trying to physically pull the child away from the applicant. The respondent subsequently called the police who attended a café where the applicant had taken the child. Later that afternoon, the applicant alleges that he attended the Suburb E property to collect clothing but the respondent would not let him into the home. The applicant says whilst he waited for the respondent to collect his clothing, he communicated with the child through the bedroom window. The applicant says that as the child was playing on the bed, he slipped over and the respondent would not allow him into the house to check on him. The applicant then attended the local police station and three officers accompanied him to the home where the applicant briefly saw the child.
On 25 April 2015 the applicant deposed that a social worker from Suburb L Acute Care mental health team contacted him at the request of the respondent.
On 26 April 2015 the applicant alleges that he received a telephone call from the respondent telling him that the child wanted to speak to him. When he spoke to the child, the child asked if he could come to the house and meet him at a friend’s birthday party. The applicant says that the respondent, overhearing what the child had said, told the applicant that he was not going to come in. When the applicant attended the Suburb E property, the respondent refused to open the door and told him that the child was not leaving her care.
On 28 April 2015 the applicant deposed that he met with social workers from the Suburb L Acute Care mental health team and was advised that he showed no evidence of psychosis.
On 7 May 2015 the applicant alleges that he attended the Suburb E property to see the child but was required to speak to him from behind a deadlocked door and deadlocked bedroom window. The applicant says that the child tried to give him a picture but the respondent would only permit it if the applicant stood opposite the house and across the road. The applicant said he complied with the request but the child rushed out of the home and tried to pull the applicant inside. The applicant says that the respondent became hysterical, telling him “Leave this house”, and proceeded to telephone the police. The applicant says he remained in the house until the police arrived and left soon after.
On 10 May 2015 the applicant alleges that he attended the Suburb E property but the respondent and the child did not appear to be home. The applicant says that as he walked towards his car, the child called out as he and the respondent were exiting from a taxi. The applicant says that the respondent then became hysterical telling him to stay away from the child. The applicant attended the local police station and was advised that the police had been called to the Suburb E property by the respondent. The applicant deposed that he was then advised by the police to stay away from the property until the ADVO proceedings had concluded.
From that date until 24 September 2015 the applicant deposed that he did not spend time with or communicate with the child other than on one occasion.
On 29 May 2015 the respondent’s then solicitors sent a letter to the applicant’s solicitors seeking an undertaking that the applicant would not attempt to remove the child from pre-school. The respondent’s then solicitors advised that:
It is our client’s concern that [the child] has not been attending preschool as a result of fears that your client will remove him from preschool. Therefore [the child] has not attended preschool for nearly one month.
On 5 June 2015 the applicant’s solicitors replied to the letter dated 29 May 2015 advising that the applicant was willing to provide the undertaking subject to the respondent agreeing to the applicant spending time with the child on Mondays, Thursdays and Fridays between 3pm and 6pm.
On 10 June 2015 the ADVO proceedings were heard and, by consent, adjourned part heard to 16 September 2015 with the interim ADVO made on 18 March remaining in place. The applicant further consented to an extension of the ADVO to list the child as a protected person and to prevent the applicant’s attendance at the child’s pre-school.
The applicant deposed that the child subsequently re-commenced attending pre-school.
On 11 June 2015 the respondent’s then solicitors replied to the letter dated 5 June 2015 advising that the respondent was not prepared to accept the undertaking as proposed and offered the applicant supervised time with the child on a date and time to be agreed.
On 24 June 2015 these proceedings were listed for interim hearing before Senior Registrar Campbell. The Senior Registrar made orders which, inter alia, provided that, pending further order:
a)The child live with the respondent;
b)The child spend time with the applicant each alternate weekend from after pre-school Friday until 4pm Sunday as well as each Tuesday and Thursday from after pre-school until 7pm;
c)Changeover occur at the child’s pre-school or at the Suburb E property on days when the child did not attend; and
d)The applicant be restrained from “entering within the boundaries of” the Suburb E property.
By consent Dr F was appointed as the Single Expert in these proceedings and the parties agreed to bear the costs of Dr F’s report equally.
The Senior Registrar also made interim property orders by consent which provided:
a)For a sale of the Suburb E property by auction with the parties to each receive a partial property settlement of $50 000 and the balance to be held in a controlled monies account pending further order.
b)That the parties share the use of the German motor vehicle, including any costs associated.
c)Pending receipt of a child support assessment, the applicant pay to the respondent one half of school fees for the child’s attendance at C School as well as one half of his fees for attendance at the holiday pre-school.
On 26 June 2015, the day after the interim hearing, the applicant alleges that the respondent sent him a text message proposing that the parties go to dinner together with the child. Later that day, the respondent advised the applicant via text message that she had asked the school to remove the paternal uncle as an emergency contact.
On 26 June 2015 the respondent’s then solicitors sent a letter to the applicant’s solicitors seeking an undertaking that pending the release of Dr F’s first Report, the applicant would not permit the paternal uncle to be in the presence of the child or to speak to him on the phone. Another letter was then sent on 30 June 2015 repeating the request for an undertaking by the applicant.
Between 30 June and 24 September 2015 the applicant alleges the respondent once again withheld the child from pre-school.
On 9 July 2015 the respondent’s then solicitors filed a Notice of Ceasing to Act. The applicant also deposed to receiving a text message from the respondent saying that she had been in contact with “JIRT and child protection” as she believed that the child “would be placed [in] a risk of harm in your care”.
On 16 July 2015 the applicant’s solicitors forwarded to the respondent a letter in relation to the appointment of X Real Estate for the sale of the Suburb E property.
On 30 July 2015 the child was interviewed by JIRT.
On 31 July 2015 the applicant filed a Contravention Application for alleged breaches of the orders of 24 June 2015 by the respondent withholding the child from spending time with the applicant during the month of July.
On 17 August 2015 the applicant’s solicitors sent a further letter to the respondent enclosing a copy of the agency agreement with X Real Estate for her to sign. The applicant says no response was received.
On 21 August 2015 the matter came before Senior Registrar Campbell who ordered that the orders of 24 June 2015 were to continue pending further order.
On 7 and 8 September 2015 the parties and the child attended upon Dr F for the purposes of being interviewed for the first Report.
On 9 September 2015 the applicant’s solicitors sent a third letter, this time to the respondent’s new solicitors, enclosing the agency agreement with X Real Estate for her to sign. The applicant says no response was received.
On 17 September 2015 the report of Dr F dated 15 September was released by Le Poer Trench J to the ICL only and the matter listed urgently in light of recommendations made by Dr F that the child’s residence be changed immediately from the respondent to the applicant.
On 23 September 2015 Johnston J released the report of Dr F to each of the parties and ordered that the child remain in the care of the Court’s Child Dispute Services. His Honour subsequently adjourned the proceedings to 24 September 2015 and ordered that the child “be in the care of his father from the present time until 2.00 pm on 24 September 2015 when the father is to return the child to the care of the Manager of Child Dispute Services”.
On 24 September 2015, at the conclusion of the interim hearing, Johnston J made the following orders:[1]
[1] See also Demopoulos & Fullard [2015] FamCA 915.
1.        The documents titled “Short Minute of Orders proposed by the Independent Children’s Lawyer” which includes a one page document headed “Consent Orders” and “Minute of Additional Orders Proposed by the Father” shall be Exhibit A and orders are made in accordance with Exhibit A, as set out hereunder:
1. That the Independent Children’s Lawyer be granted leave to make an urgent oral application for interim orders.
PENDING FURTHER ORDER:
2.        That the child [B] born … 2010 live with the Father;
3.        That the Father have sole parental responsibility for the child;
4.        That the Mother spend time with the child on at least one occasion each week and that such time be supervised by [D Group];
5.        That the father shall arrange for the child to resume attending at [C School] within 14 days;
6.        That the Mother be and is hereby restrained from attending at the child’s school at those times that the child attends.
7.        That the Mother and the Father be and are hereby restrained from:
(a)      discussing these proceedings with the child or within the child’s presence or hearing;
(b)      discussing any allegation made in the proceedings with the child;
(c)      denigrating the other parent or any member of the other parent’s family to or within the presence or hearing of the child;
(d)      presenting the child to any medical practitioner or counsellor for any further assessments or interviews relating to the possibility that he has been subjected to any form of abuse otherwise than in the case of a genuine emergency or by order of this honourable court.
8.        Otherwise, the parties will ensure that the child attends at [Suburb E] Family Medical Practice for any medical issue other than in the case of a genuine emergency.
9.        That the parties have liberty to relist the matter on 48 hours’ notice;
10.      That the Mother have leave to provide any therapist she may consult with a copy of the report of the Single Expert herein and a copy of these orders;
11.      Such further order as this Honourable court deems appropriate;
12.      That the parties shall be equally responsible for the costs of [Dr. F] giving evidence in this matter on 23rd and 24th September, 2015 and each party shall pay their share of the costs within 21 days of receiving the Memorandum of Fees/Invoice.
Minute of Additional Orders Proposed by the Father
1. That all previous interim parenting orders be discharged.
2. That between 1:00pm and 1:15pm on Friday 25 September 2015 the mother shall place the following items on the front porch of the former matrimonial home at [G Street Suburb E] (“the home”):
a) [the child’s] clothes, iPad, daily personal belongings, medicine, his favourite toys, school bag, drink bottles and school sandwich containers his pillows and doona, his … camera ([the child’s] belongings)
3. That the father shall attend the front porch of the home with a witness of his choice between 1:30pm and 2:00pm on Friday 25 September 2015 and shall remove the child’s belongings from the front porch.
4. That the mother shall ensure that the front gate to the property is not locked or obstructed between 1:15pm and 2:15pm on Friday 25 September 2015 and whilst she may remain in the home during those hours if she chooses she may not go beyond the front door during that period.
5. That the father be at liberty to ask for a Police officer or officers to attend with him at the time specified in Order 2 noting that there is an existing interim apprehended violence order for the protection of the respondent.
2. That pursuant to s 62B and s 65DA(2) 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
3.        I request the Registry Manager to arrange for the first available date in the Less Adversarial Trial system to be allocated to the substantive parenting/property proceedings before whichever of the judges can be first available.
4.        I order that the mother have leave to make an oral application for a stay of the orders and such application is dismissed.

Between 24 September 2015 and 7 January 2016 the applicant alleges that the respondent did not spend any time with the child.
On 26 September 2015 the respondent sent a text message to the applicant asking if the applicant and the child would like to have dinner with her. The respondent also forwarded to the applicant an email sent by her to her then solicitor advising that she would like to withdraw all legal proceedings between the parties including in relation to the ADVO.
Between 11 October and 3 November 2015 the applicant says that the applicant made no contact with him.
On 13 October 2015 the respondent’s then solicitors sent a letter to the applicant’s solicitors confirming that the respondent did not wish to proceed with any applications before the Court.
On 26 October 2015 the respondent’s then solicitors filed a Notice of Ceasing to Act.
On 3 November 2015 the applicant filed a Notice of Discontinuance in relation to his Contravention Application.
On 18 November 2015, on the applicant’s application, Le Poer Trench J appointed the applicant as trustee for sale of the Suburb E property and ordered that the respondent vacate the property within twenty-one days of the orders being served upon her. The respondent did not appear before the Court on that day and his Honour granted the respondent liberty to apply on short notice to set the orders aside. Nonetheless, his Honour listed the applicant’s application for the issue of a Writ of Possession on 21 December 2015.
On 30 November 2015 the applicant alleges two police officers attended his home, following a report made by the applicant, raising concerns about the child’s welfare. The applicant says that the officers checked on the child and left shortly after.
On 14 December 2015 the matter came before me in the context of a First Day Less Adversarial Trial. The respondent appeared on that occasion and sought that Le Poer Trench J’s orders of 18 November be set aside. I listed the competing applications on 21 December and listed the final hearing for four days commencing on 26 April 2016.
Soon after, the parties completed the paperwork necessary for D Group to commence supervising the respondent’s time with the child. Arrangements were made for the respondent to spend time with the child on 20 December 2015.
On 17 December 2015 the applicant gave notice to the respondent that he intended to take the child to spend Christmas with the paternal family in Hobart. The respondent responded objecting to the proposal and making allegations in relation to the paternal uncle.
On 18 December 2015 the applicant says that the police arrived at his home as result of concerns expressed by the respondent as to the child’s welfare and that the applicant had been previously sexually abused. The applicant denies that he had been sexually abused. The police requested that the applicant bring the child to the police station later that afternoon so they could satisfy themselves of his wellbeing. The applicant complied with their request.
On 21 December 2015 I dismissed the respondent’s application to set aside the orders of 18 November. I ordered that the Writ of Possession issue but lie in the Registry for a period of twenty-eight days.[2]
[2] See also Demopoulos & Fullard (No. 2) [2015] FamCA 1195.
On 22 December 2015 the applicant departed for Hobart with the child to visit the paternal family.
On 24 December 2015, after receiving a number of text messages from the respondent objecting to the trip and repeating allegations in relation to the paternal uncle, the applicant responded to the respondent advising her that the child was well and that they would be returning to Sydney on 4 January 2016.
On 25 December 2015 the applicant says he received another text message from the respondent. Later that day, the police arrived at the paternal grandmother’s home as the family were about to sit down for Christmas lunch as a result of concerns raised by the respondent as to the child’s welfare.
On 3 January 2016 the police once again attended the paternal grandmother’s home, following another call to them from the respondent.
On 8 January 2016, for the first time, according to the applicant, the respondent spent time with the child in accordance with the orders of 24 September 2015 under the supervision of D Group.
On 20 January 2016 orders were made by Loughnan J for the execution of the Writ of Possession.
On 21 January 2016 the respondent vacated the Suburb E property, leaving the property in what the applicant alleges was a state of disrepair.
On 27 January 2016, following a Conciliation Conference, orders were made by consent that by way of partial property settlement, the applicant be declared the sole legal and beneficial owner of the German motor vehicle and pay to the respondent the sum of $6948.73 within seven days.
On 11 April 2016 the applicant signed the agency agreement, with X Real Estate, in his capacity as trustee for the sale of the Suburb E property.
On 19 April 2016 the updating Report of Dr F was released to the parties by the Court.
On 20 April 2016, at the request of the ICL, the matter was re-listed for mention due to concerns as to the respondent’s compliance with directions for the filing of material and non-attendance upon Dr F. The respondent did not appear before the Court and did not respond to telephone calls made to her during the mention. The April hearing dates were subsequently vacated and the final hearing was re-listed for four days commencing on 5 September 2016. The parties were ordered to file and serve any updating affidavits by no later than l5 July 2016.
On 15 May 2016 the applicant deposed that whilst driving in the car with the child, the child reported seeing his mother. Later that day, the applicant alleges that he received a telephone call from the local police that the respondent had contacted them concerned about the welfare of the child and that the applicant had “looked at her” in Suburb Z. The respondent subsequently attended upon the applicant’s home and demanded to be let in. The applicant called the police who, after speaking to the parties and the child, left. The respondent also left the property at the direction of the police.
On 16 May 2016 the applicant says that he was contacted by a worker at Suburb L Community Healthcare Centre who told him that they had received a referral from the respondent in relation to concerns about the applicant’s mental health.
On 21 May 2016 contracts for the sale of the Suburb E property were exchanged. The property was sold for the sum of $1 420 000.
On 24 June 2016 the applicant received a telephone call from the paternal uncle who informed him that the respondent had reported him to his employer for “alleged child abuse”.
On 2 July 2016, a day on which the respondent had spent time with time with the child, the applicant alleges that he was contacted by the police over concerns reported by the respondent about the child’s welfare. The police attended the applicant’s residence and spoke to the applicant and the child, subsequently leaving and taking no further action.
On 18 July 2016 settlement of the sale of the Suburb E property occurred. After a distribution from the proceeds of sale of $100 000 to the parties by way of partial property settlement, the balance of $911 872.31 was placed into a controlled monies account.
On 4 August 2016 Gill J dismissed an application made by the respondent’s former solicitors for payment of the sum of $36 993.91 from the respondent’s partial property settlement. His Honour further dismissed an application that the respondent be restrained from dealing with her partial property settlement pending further order.[3]
[3]See also B Family Lawyer Pty Ltd & Fullard and Anor [2016] FamCA 641.
On 22 August 2016 the matter was listed before me for mention to ascertain its readiness for the final hearing listed to commence the following week. The respondent did not appear and orders were made that if a party did not on appear on the first day of the final hearing, the matter would proceed in the absence of that party.
On 5 September 2016 the final hearing commenced. As previously noted, the respondent did not attend and the final hearing proceeded in her absence.

Orders Sought

In a Minute contained within a Case Outline document filed on 30 August 2016, the applicant sought the following orders:
Parenting Orders
1. That all previous parenting orders made in these proceedings be discharged.
2. That the Husband be granted sole parental responsibility for the child of the marriage, namely [B] born … 2010 (“[the child]”).
3. That [the child] live with the Husband.
4. That [the child] spend time with the Wife on at least one occasion each week, such time to be supervised by [D Group], or such other organisation which provides supervision services as the parties may agree from time to time, and at the Wife’s cost.
5. That in the event that [the child] is unavailable to spend time with the Wife during any week by reason of illness, absence on holidays or other commitments, [the child] shall spend make up time with the Wife at such times as may be agreed between the parties and the supervisors.
6. That the Husband have leave to provide to any organisation engaged to provide supervision of the child’s time with the Wife a copy of the reports of [Dr F] in these proceedings and these Orders.
7. That the supervision of the child’s time with the Wife continue until such time as she has attended upon a mental health professional recommended by [Dr F] and following a course of therapy, obtains from that mental health professional a certificate confirming that she is fit to care for the child on an unsupervised basis.
8. That the Wife inform the Husband in writing of the name and address of the mental health professional upon whom she is to attend no later than 72 hours prior to her initial appointment with such professional.
9. That the Husband and/or the Wife have leave to provide to the mental health professional referred to in Orders 7 and 8 a copy of the Report by [Dr F] in these proceedings once the Wife commences therapy with him or her.
10. That contemporaneously with providing the Husband with a copy of the certificate referred to in Order 7, the Wife shall authorise the mental health professional who issued the certificate to speak with the Husband about her therapy.
11. That the Wife be and is hereby restrained from attending at the child’s school at those times that the child attends.
12. That the Wife be and is hereby restrained from:-
(a) Discussing these proceedings with the child or within [the child’s] presence or hearing;
(b) Discussing any allegation made in the proceedings with [the child];
(c) Denigrating the Husband, any member of the Husband’s family or any partner, to or within the presence or hearing of the child.
Property Settlement Orders
13. That herein within seven (7) days of the date of these Orders and subject to Order 14 the Husband and the Wife do all acts and things, execute all documents and writings and give all instructions, authorities and consents necessary to cause the proceeds of sale of the former matrimonial home at [G Street, Suburb E] currently held in trust for the parties by [P Lawyers], Solicitors, to be distributed between them in the following manner:-
(a) In payment to the Husband of the sum of $425,000 plus one half of the then remaining balance; and
(b) In payment to the Wife of the then remaining balance.
14. That other than as provided by these Orders, the Husband and the Wife each be entitled to retain the ownership of all other items of property presently in the name, possession or control of each of them respectively, including but not limited to money, shares, investments, motor vehicles, insurances, entitlements to superannuation benefits, furniture, furnishings and household effects, and personal effects.
15. That other than as provided by these Orders, the Husband and the Wife each be and remain solely responsible for the payment of all and any debts and liabilities presently in the name of each of them respectively.
16. That the parties each do all acts and things, sign all documents and give all consents necessary to fully implement these orders.
17. That in the event that the Wife refuses or neglects to execute any deed, document, instrument or writing necessary to give effect to these Orders within seven (7) days of being required to do so under these Orders, then the Registrar of the Family Court of Australia at Sydney is hereby appointed pursuant to Section 106A to execute all such deeds, documents, instruments and writings in the name of the Wife and to do all such acts and things necessary to give validity and operation to these Orders.
18. That contemporaneously with the payment to the Wife pursuant to Order 13 herein, the Wife pay the Husband’s costs of the proceedings assessed in the sum of $55,000 which shall be deducted from her share of the proceeds of sale payable to the Wife pursuant to Order 13(b) and paid to the Husband.
The ICL supported the orders proposed by the applicant in respect to parenting.
The ICL also provided to the Court a Minute in relation to the costs of the ICL and costs paid by Legal Aid on the respondent’s behalf for the updating Report of Dr F. I subsequently made orders that:
3. Within 28 days of the date of these orders the father shall pay to Legal Aid NSW the sum of $3,512.15 on account of the costs of the Independent Children’s Lawyer herein unless his liability to contribute towards these costs is waived;
4. Within 28 days of the date of these orders the mother shall pay to Legal Aid NSW the sum of $3,025.00 being the mother’s half share of the costs of the updating of the report of the Single Expert herein.

Consideration: Parenting

Concepts and principles

Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)).
Section 61DA(1) provides that the Court must apply a presumption that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. Relevantly for these proceedings, s 61DA(4) provides that:
(4)The presumption may be rebutted by evidence that satisfies the court 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.

The time a child spends with each parent when the presumption of equal shared parental responsibility is rebutted

As I will discuss, the dysfunctional nature of the parties’ relationship is such that it would be inappropriate to apply the presumption of equal shared parental responsibility. In those circumstances the pathway set out in s 65DAA does not apply and the Court is not obliged to consider equal time or substantial and significant time. The Court is then “at large” to consider what arrangements will promote the best interests of the child having regard to s 60CC and the considerations contained therein.
Those arrangements may nonetheless include equal time or substantial and significant time (Goode & Goode (2006) FLC 93-286 at 80,899). As will become clear, as a result of mental health issues faced by the respondent, I do not consider that it is appropriate to make an order for equal or substantial and significant time in this matter.

Paramount consideration in making parenting orders

Section 60CA provides that in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65AA.
Section 60CC sets out the list of matters that the Court must have regard to in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all s 60CC considerations, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those 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.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).

Identifying unacceptable risk of harm

The primary issue for determination is whether the prospect of the child spending unsupervised face-to-face time with the respondent presents an unacceptable risk to the child of physical and/or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
In his often cited paper entitled ‘Unacceptable risk – A return to basics’[4] the Hon. John Fogarty A.M., relevantly stated that:
·    The decisive issue is and always remains the best interests of that child.
·    All other issues are subservient.
·    The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
[4] (2006) 20 Australian Journal of Family Law 249.
For reasons which I will subsequently discuss, I have determined that there is an unacceptable risk that the child will suffer psychological harm if orders were made for him to spend unsupervised time with the respondent.

Submissions: Parenting

The applicant

Counsel for the applicant relied on his submissions set out in a Case Outline document filed on 30 August 2016 together with a written Summary of Oral Submissions which was provided to the Court.
By way of summary, counsel for the applicant submitted during his oral submissions that:
a)Due to the respondent’s concerning state of mental health, the need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse or neglect is the overriding consideration for the Court and outweighs the benefit of the child having a meaningful relationship with the respondent. Protection of the child has thus far been achieved since Johnston J in September 2015 changed the child’s primary residence, placing him in the care of the applicant.
b)Whilst long term professional supervision of the child spending time with the respondent is not ideal, it is the only alternative available other than the child not spending any time with her. This is in circumstances where the respondent has been unable or unwilling to seek the medical assistance urged upon her in Dr F’s first Report in September 2015 where Dr F went so far as to describe the type and dosages of medication he would recommend. Based on the evidence of the applicant, the respondent’s delusional behaviour, which centres on allegations about the applicant and his family, has continued and appears to have intensified more recently.
c)Unfortunately, there is at present no solution unless the respondent voluntarily seeks medical assistance as the Court cannot order the respondent to undertake therapy if she refuses to do so. However, continuing professional supervision will ensure that the child will continue to spend time with his mother and remain safe in doing so whilst being properly cared for by his father.
d)The orders proposed by the applicant have been framed to permit a review of supervision of the respondent’s time with the child in the event that she was to successfully obtain medical treatment. This would give the respondent the incentive to seek such assistance and the Court would be able to take comfort that ordering supervision to continue would not necessarily be on an indefinite basis.
e)The Court otherwise has detailed evidence about the applicant’s arrangements for the care of the child, particularly in Dr F’s updating Report. In that report, Dr F described the child as “thriving” in the applicant’s care and this is corroborated with all objective indicators, including the child’s school reports. During the course of the marriage, the applicant was in any event a “co-carer”, or “equal carer”, for the child and the parties were jointly responsible for all aspects of the child’s care and even divided their work responsibilities around his care. In that respect, counsel for the applicant made reference to paragraphs 12 to 15 of the respondent’s affidavit filed 23 June 2015 in which the respondent corroborates the applicant’s evidence and puts beyond doubt the ability of the applicant to care for the child into the future.
f)In respect to the costs of ongoing professional supervision, the respondent is currently paying these costs and the applicant proposes for this arrangement to continue. This is in circumstances where the vast majority of financial and physical burden for the child’s care has now fallen onto the applicant and to bear the costs of supervision would involve a further drain on the applicant’s financial resources. The applicant has complete care of the child, other than the two occasions a week where the child spends time with the respondent for a couple of hours.

The ICL

As previously noted, the ICL adopted the submissions made on behalf of the applicant and supported the orders as proposed by him. The ICL noted that they are similar to those currently in place pursuant to the orders made by Johnston J on 24 September 2015.
In support of those orders being made, the ICL tendered two further documents produced by the child’s school. This included the child’s first school report (Exhibit 14) which indicated the child was doing exceptionally well at school and a letter from the respondent to the school (Exhibit 15) which suggests that the respondent’s concerning behaviour is continuing.

Parental Responsibility

The respondent’s conduct in these proceedings is, in itself, an indication of how difficult it is to engage with the respondent with a view to obtaining her views and input regarding arrangements for the child. Unfortunately, this included the failure by the respondent to attend the appointment arranged with Dr F on 4 April 2016 for the preparation of the updating Report.
Further evidence of the respondent’s inability to engage in respect to matters concerning the child is that, despite orders being made on 24 September 2015 for the child to see his mother on at least one occasion each week with that time being supervised by D Group, there was a considerable period of time before that occurred. It was necessary for the ICL to initiate those arrangements after a further court event on 14 December 2015.
More generally, the series of events in these proceedings demonstrates the difficulty that the parties have had in communicating with each other in the past. Those difficulties appeared to emerge after December 2014. Subsequent to that period, the respondent accused the applicant of acting in a threatening and violent manner towards her as well as engaging in inappropriate conduct of a sexual nature with the child. The respondent called the police on a number of instances and also alleged that the applicant suffered from mental illness. These allegations of mental illness were often made in front of the child.
According to the evidence of the applicant, which I accept, the respondent commenced to distance herself not only from him but also from other persons with whom the parties were acquainted, including the parties’ respective families. The applicant’s evidence in that respect is consistent with the observations of Dr F in the first Report at paragraph 61.
The respondent has also made numerous attempts to prevent the applicant from seeing the child. Her actions were successful on several instances and resulted in one period where the applicant had no contact with the child between 10 May 2015 and 24 September 2015. The respondent’s efforts included withholding the child from pre-school to avoid the prospect of the child coming into contact with the applicant.
The evidence presented by the applicant satisfies me that if the Court made an order for equal shared parental responsibility, it would result in a completely unworkable arrangement, which would not be in the child’s best interests. The presumption set out in s 61DA of the Act is therefore rebutted.
In those circumstances s 65DAA does not apply and the Court is not required to consider the child spending equal time or substantial and significant time with each of his parents.
While the Court is therefore at large in respect to what parenting orders should be made, it is nonetheless necessary to ensure that the child’s best interests is the paramount consideration having regard to those matters set out in s 60CC of the Act.

Section 60CC Considerations

Primary considerations

The first Report of Dr F, in particular, expressed serious concerns for the respondent’s mental health. The first Report also noted a lack of willingness on the part of the respondent to address those mental health issues.
At paragraph 13 of the first Report, Dr F noted that the respondent “doubted that she needed to talk through her own issues”.
At paragraph 19, Dr F also noted that “it was recommended by the report writer that she attend psychological intervention”. Dr F said that the respondent dismissed that advice stating “I’m a very stable person doing my best”.
At paragraph 62, Dr F noted that:
She again dismissed my recommendation that she should have psychological help and medication. She asked: “Why would you suggest I need medication? I’m not in any way unwell. I’ve been in a situation where I’ve been exposed to very difficult circumstances.”
At paragraph 90, Dr F noted that, in his telephone conversation with the child’s teacher, the teacher reported observing:
…a dramatic change in the [respondent]’s persona at the school at the time of the parental separation. Her manner and behaviour had changed dramatically.
At paragraph 102, Dr F noted:
[The respondent] resented being informed to pursue further intervention. Further, she informed the report writer that she was planning to see a different doctor to ensure that [the child] should be referred to a different psychologist for therapeutic intervention. This was based on feedback from the Police following her most recent allegations. This occurred following the assessment. It was evident that she was unable to hear the child’s categorical wishes, declarations of his love and evident safety in the care of his father. This highlighted the [respondent]’s lack of insight. Given this, there is almost no possibility of her preoccupations resolving without a psychopharmacological intervention.
Dr F further noted, however, in that same paragraph that:
There was no indication that [the respondent] was likely to be agreeable to any such intervention given that she disputes the foundation of the need for such treatment.
Dr F expressed his concerns in respect to the respondent’s mental health in the following terms:
[The respondent]’s mental state was highly concerning. She presented as a high functioning and intellectually gifted individual, who had focussed her considerable intellectual energy on her belief that [the child] was at risk as he had been sexually abused or was going to be sexually abused by his father. This preoccupation was in part driven by her Obsessive Compulsive Personality structure. Just as she had the capacity to focus on … tasks to produce a PhD, … and maintain a senior … role, this year she has focussed on evidence to support her view that [the child] was unsafe. She was unable to consider any alternative to her conclusions. This had the features of an over-valued idea and was held with delusional intensity. This was suggestive of a Delusional Disorder.
At paragraph 116 of the first Report, Dr F concluded:
The situation identified warrants immediate intervention. Unless there is convincing evidence to support the [respondent]’s view that [the child] has been sexually abused by the father (beyond the extensive documentation perused), I would recommend that [the child] immediately be placed in his father’s care.
Dr F recommended that the child’s contact with his mother should be “contingent on her ability not to interrogate him about his safety and to not present him to multiple health practitioners and counsellors”.
Due to the concerning mental health of the respondent, the protection of the child from physical or psychological harm from being subject to, or exposed to, abuse or neglect is the overriding consideration for the Court.

Additional considerations

In addition to considering s 60CC(2) I have had regard to the matters set out in s 60CC(3). The considerations that I regard as being of most relevance in this matter are discussed below.
In relation to s 60CC(3)(a), weight should be given by the Court to the child’s views. In Dr F’s first Report, the child expressed a wish to have contact with his father and the paternal family (at paragraph 107). Dr F also expressed similar views in the updating Report, noting that the child had informed him that he enjoyed living with his father, loved his extended family in Hobart and felt safe and well cared for by them (at paragraph 34).
In relation to s 60CC(3)(b), Dr F observed, in the first Report, that the child had a loving and connected relationship with both of his parents and this was observed despite the applicant having little contact with the child in the months between separation and September 2015.
In relation to s 60CC(3)(c)(i), prior to the orders of Johnston J made on 24 September 2015, the applicant had been prevented by the respondent from participating in any decisions concerning the child.
In relation to s 60CC(3)(c)(ii) and (iii), between separation in February 2015 and April 2015, the applicant continued to share the care of the child with the respondent. The applicant was subsequently excluded by the respondent following her allegations against the applicant and the ADVO proceedings. Even after orders were made by Senior Registrar Campbell on 24 June 2015, the respondent still refused to comply with orders that the child spend time with the applicant. Ultimately, this led to the proceedings before Johnston J in which the child’s primary residence was changed from the respondent to the applicant.
In relation to s 60CC(3)(ca), the child has been supported by his father since September 2015.
In relation to s 60CC(3)(d), Dr F expressed the view, in the updating Report, that the child is “thriving” in his father’s care and appears to be a happy and engaged child without any emotional distress. He has also failed to express any sense of loss or disorganisation following the change of his primary residence in September 2015. I am satisfied that any significant change to the child’s current care arrangements would be highly detrimental to his best interests.
In relation to s 60CC(3)(e), the applicant proposes that the respondent bear the costs associated with professional supervision of her time with the child until such a time when she seeks appropriate professional assistance. Given the financial burden on the applicant as a result of having the full time care of the child, I accept that it is appropriate for the respondent to continue to bear those costs until such time as she seeks professional assistance for her mental health.
In relation to s 60CC(3)(f), as noted Dr F, in his first Report (at paragraph 102), made a diagnosis of the respondent’s mental health which he believed to be highly concerning. Although he found the respondent to be highly functioning, she was preoccupied with the idea that the child was going to be sexually abused by the applicant and/or the paternal family. The respondent’s inability to consider that the child might not be unsafe in his father’s care and that the paternal family did not pose a risk suggested to Dr F that the respondent might be suffering from a Delusional Disorder, particularly where the respondent was unable to consider the child’s categorical wishes, declarations of love and evident safety in the care of the applicant. Dr F recommended anti-psychotic and anti-depressant medications but the respondent would not agree.
The applicant, meanwhile, was suffering an adjustment disorder with depressed mood prior to the child’s return to his care. In Dr F’s updating Report (at paragraph 35), it was stated that this had now resolved.
In relation to s 60CC(3)(g), the applicant is of European heritage and wishes that the child have the opportunity to know and celebrate that heritage with his paternal family.
In relation to s 60CC(3)(i), the applicant now has a track record of providing a stable home environment and upbringing for the child. Unfortunately, the respondent has shown a lack of preparedness to obtain appropriate therapeutic intervention to address her mental health issues and to address her delusional thoughts. In those circumstances I am satisfied that the time that the child spends with the respondent needs to be supervised.
The Court is generally reluctant to make orders for supervised time on an indefinite basis unless there are exceptional circumstances justifying that course of action. In this case I am satisfied that such exceptional circumstances exist. The period of time that supervision needs to occur is, however, substantially dependent upon the respondent’s preparedness to obtain therapeutic intervention with a view to addressing her mental health issues.
In relation to s 60CC(3)(j), the respondent has made allegations in relation to the applicant and the paternal family, namely the paternal uncle, which were considered by Dr F in the updating Report (at paragraphs 26 to 29). Dr F was not satisfied that there had been any inappropriate sexualised behaviour involving the child by the father or any member of the paternal family. The applicant maintains that the respondent’s allegations are a complete fabrication. The applicant provides, as an example, the fact that the respondent called the police to visit the paternal family’s home on two occasions when the applicant took the child to Hobart for Christmas.
I further note that, by letter dated 9 August 2016, the respondent wrote to the principal of the C School (Exhibit 15) and said as follows:
I wrote to… in January this year to inform them about a serious matter pertaining to my son’s welfare of the school. My son… is in Kindergarten.
The matter concerned the Emergency Contact list that my ex-husband… and I both signed. I requested the removal of [the applicant]’s brother… from the emergency contact list but [the applicant] did not agree to the removal. In the first week that the school opened in January this year, I informed… that [the paternal uncle] had been reported for suspected child abuse. In my email I noted down the Police Event number and the Reference Number provided to me by Child Protection NSW. I was later informed by the Acting Principle [sic] that [the paternal uncle] was no longer on the Emergency Contact List. The [principal] also emailed me to inform that he had been away but that he would respond to my email in due course. I informed the [principal] about the Deputy Principle’s [sic] response and noted that it was good news that [the paternal uncle] had been removed. [The paternal uncle] is a primary school teacher based in Hobart and the Teachers’ Accreditation Board in Tasmania has also been informed about his status. The Police have also provided me with a recent update.
I am writing to you directly about this matter because I am aware that [the paternal uncle] has visited Sydney this year and it is very important that he not be placed in contact with my son at the school.
In summary: I was informed by the Acting Principle [sic] of IGS in January this year that [the paternal uncle] was no longer on the Emergency Contact List for the school. I request that the Principle [sic] please inform me in writing whether [the paternal uncle] has been allowed onto the grounds of the C School since he was removed from the Emergency Contact List? As you would be aware when matters concerning child abuse are concerned, the school is legally obliged by mandatory reporting laws in NSW to protect children at risk of harm.
I await your response in writing as a matter of haste.
The respondent has not presented evidence to the Court that justifies the concerns she has expressed. The concerns are inconsistent with the observations of Dr F that the child feels safe in the company of his father and his paternal family. In that respect, I note that at paragraph 7 of the updating Report, Dr F noted that he asked the child about his trip to Hobart with the applicant over the Christmas period and specifically noted that:
When asked if there was anything he didn’t like, [the child] responded, “No. Not even one single thing.” There was nothing to indicate from [the child’s] manner that he was hesitant or had reservations regarding his contact with [the paternal uncle] or experience in Hobart. This was inconsistent with his mother’s expressed concerns. [The child] identified himself as the happiest in the family, “Me! Because I get all excited. I’m the only one in the family.”
(Emphasis in original)
Accordingly I am satisfied that the respondent’s concerns regarding the child being abused or at risk of abuse by his father or members of the paternal family are without foundation.
In relation to s 60CC(3)(l), given the respondent’s mental health, I have found that, at present, she is unable to care for the child other than for short periods under supervision. The applicant’s proposed orders address the possibility that the respondent may seek appropriate assistance and become capable of caring for the child unsupervised in the future. That is appropriate and the orders I propose to make will facilitate that occurring without the need for the parties to approach the Court for further orders.
In terms of other facts and circumstances that I am required to consider pursuant to s 60CC(3)(m), I note that in the updating Report Dr F refers to the child as “thriving” in the care of his father. This is also consistent with the child’s school report (Exhibit 14) which indicates he has “made a very solid start to Kindergarten”.
This contrasts with concerns expressed by the child’s class teacher in the period following the parties’ separation when the child was in the respondent’s care. At paragraph 90 of the first Report, Dr F noted that the teacher’s concerns related to the child’s absences from pre-school and that there appeared to be signs of “developmental disruption” in the child.

Summary of s 60CC considerations

The respondent’s mental health is such that any orders providing for the child to spend unsupervised time with her presents an unacceptable risk of psychological harm to the child.
The orders which are proposed by the applicant appropriately make provision for a change in circumstances should the respondent decide to address her mental health issues.
Accordingly, I will made an order for the child to spend unsupervised time with the respondent in the event that she receives appropriate professional intervention and treatment for her mental health and obtains a certificate from that treating medical professional confirming that she is fit to care for the child on an unsupervised basis.
The Court does not have power to compel a party to attend upon and receive professional treatment. Accordingly, the decision as to whether that occurs is entirely up to the respondent. Orders providing for the removal of supervision in circumstances where the respondent engages in and receives appropriate therapeutic treatment, will hopefully encourage the respondent to address her mental health issues which, in turn, will enhance the prospect of the child maintaining a meaningful relationship with both of his parents.

Property: The Law

Subject to s 79(2), s 79(1) of the Family Law Act 1975 (Cth) (“the Act”) empowers the Court in property proceedings to “make such order as it considers appropriate”.
Section 79(2) provides that the Court shall not make an order altering the interests of the parties to the matrimonial property unless the Court is satisfied that, “in all the circumstances, it is just and equitable to make the order”.
In exercising its discretion, the Court is required to take into account the matters set out in s 79(4). Section 79(4) is divided into two limbs. The first limb is in respect to those matters set out in paragraphs (a) to (c), which deal with what are commonly known as the “contribution” factors. Contributions can, in turn, be direct or indirect, financial or non-financial contributions to the matrimonial property. The second limb is in respect to those matters set out in paragraphs (d) to (g), which primarily relate to the future needs of the parties but can include any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account.
As noted, s 79(4) applies once the Court has determined that it is just and equitable to make an order adjusting the matrimonial property. The section is a legislative guide to assist the Court in considering how its broad discretion should be exercised to make appropriate orders to adjust the matrimonial property. This is to be contrasted, for instance, with s 75(1) which provides that in exercising jurisdiction in respect to spousal maintenance the Court “shall take into account only the matters referred to in subsection (2)”.[5] In other words, s 79(4) sets out a non-exhaustive list of matters to be considered in order to do justice between the parties.[6] Those matters are:
(a)      the financial contribution made directly or indirectly by or on behalf     of a party to the marriage or a child of the marriage to the        acquisition, conservation or improvement of any of the property of      the parties to the marriage or either of them, or otherwise in relation         to any of that last‑mentioned property, whether or not that          last‑mentioned property has, since the making of the contribution,         ceased to be the property of the parties to the marriage or either of      them; and
(b)      the contribution (other than a financial contribution) made directly        or indirectly by or on behalf of a party to the marriage or a child of     the marriage to the acquisition, conservation or improvement of any         of the property of the parties to the marriage or either of them, or      otherwise in relation to any of that last‑mentioned property, whether          or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage     or either of them; and
(c)      the contribution made by a party to the marriage to the welfare of         the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the      capacity of homemaker or parent; and
(d)      the effect of any proposed order upon the earning capacity of either      party to the marriage; and
(e)      the matters referred to in subsection 75(2) so far as they are       relevant; and
(f)       any other order made under this Act affecting a party to the       marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
[5] Emphasis added.
[6] Marinko & Marinko (1985) FLC 91-609 at 79,944.

In considering those matters relevant to the second limb, s 79(4)(e) requires the Court to have regard to those matters set out in s 75(2) insofar as they may be relevant. Those matters are:
(a)      the age and state of health of each of the parties; and
(b)      the income, property and financial resources of each of the parties        and the physical and mental capacity of each of them for appropriate     gainful employment; and
(c)      whether either party has the care or control of a child of the       marriage who has not attained the age of 18 years; and
(d)      commitments of each of the parties that are necessary to enable the       party to support:
(i)       himself or herself; and
(ii)      a child or another person that the party has a duty to        maintain; and
(e)      the responsibilities of either party to support any other person; and
(f)       subject to subsection (3), the eligibility of either party for a pension,     allowance or benefit under:
(i)       any law of the Commonwealth, of a State or Territory or of        another country; or
(ii)      any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to      either party; and
(g)      where the parties have separated or divorced, a standard of living         that in all the circumstances is reasonable; and
(h)      the extent to which the payment of maintenance to the party whose          maintenance is under consideration would increase the earning   capacity of that party by enabling that party to undertake a course of       education or training or to establish himself or herself in a business    or otherwise to obtain an adequate income; and
(ha)     the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;     and
(j)       the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity,         property and financial resources of the other party; and
(k)      the duration of the marriage and the extent to which it has affected        the earning capacity of the party whose maintenance is under consideration; and
(l)       the need to protect a party who wishes to continue that party’s role       as a parent; and
(m)     if either party is cohabiting with another person—the financial   circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i)       the property of the parties; or
(ii)      vested bankruptcy property in relation to a bankrupt party; and
(naa)   the terms of any order or declaration made, or proposed to be made,     under Part VIIIAB in relation to:
(i)       a party to the marriage; or
(ii)      a person who is a party to a de facto relationship with a party to the marriage; or
(iii)     the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)     vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)      any fact or circumstance which, in the opinion of the court, the   justice of the case requires to be taken into account; and
(p)      the terms of any financial agreement that is binding on the parties to     the marriage; and
(q)      the terms of any Part VIIIAB financial agreement that is binding on      a party to the marriage.

Approach

For reasons which I have set out previously in Stoddard & Glover [2016] FamCA 674 at [79] – [87], I intend to take the following approach to these proceedings:
1)Identify the parties’ existing legal and equitable interests in property.
2)Assess whether or not it is just and equitable to make an order, as is required by s 79(2).
3)If it is just and equitable to make an order, undertake an assessment of the parties’ direct and indirect, financial and non-financial, contributions according to s 79(4).
4)Undertake a further assessment of the parties’ future needs and other matters by applying s 79(4) including, as required by s 79(4)(e), having regard to those matters set out in s 75(2) insofar as they may be relevant.
5)After making the above assessments according to ss 79(4) and 75(2), take a “holistic” overview to ensure that the outcome of the hearing and specifically, any orders for the alteration of property interests are appropriate, just and equitable.

Consideration: Property

Section 79(2)

I am satisfied that it is just and equitable to make orders pursuant to s 79 of the Act adjusting the parties’ property interests in this matter. In that respect I have had regard to the fact that the parties have separated on a final basis and they will each need access to previously joint funds to move on with their lives living separately and apart, including establishing separate households.
The applicant will also bear a greater financial burden associated with his responsibilities as the primary carer of the parties’ child, the child.

The property pool

I accept the applicant’s contentions in respect to the parties’ assets, liabilities and superannuation which are as follows:

Owner		Description	The applicant’s value
1.	J	Proceeds of sale of [the Suburb E property]	911,872
2.	J	German motor vehicle	E 11,00
3.	A	Funds in bank accounts	3,937
4.	R	Funds in bank accounts	NK
5.	J	Household contents	E 5,000
6.	A	Personalty	E 8,530
7.	R	Interim distribution of part proceeds of sale	50,000
Total			$ 990,339
8.	A	Personal Loan – ME Bank	50,000
9.	A	Personal Loan – AA Demopoulos	72,000
10.	A	Outstanding legal costs	1,189
Total			$123,189
Net Assets			$867,150
Member		Name of Fund	The applicant’s value
11.	A	UniSuper	118,149
12.	R	UniSuper	E 248,826

In submissions the applicant appeared to recognise that, in considering a fair and equitable distribution of the parties’ property, it was also appropriate to include on the balance sheet the respondent’s liability in the sum of $36 994 to R Lawyers for outstanding legal fees.
On the evidence available, I accept the accuracy of the applicant’s contentions in respect to the matrimonial property pool.

Contributions

The evidence satisfies me that subsequent to the parties acquiring the Suburb E property, they each made equal direct and indirect contributions to the matrimonial property pool.
In terms of direct contributions, this included paying separate mortgages in respect to the Suburb E property of approximately $225 000 each, as well as sharing expenses in maintaining the Suburb E property and jointly planning for and undertaking renovations.
In terms of indirect contributions, I am satisfied both parties equally contributed to the running of the household and contributed equally in the day to day care of the child.
The applicant is, however, entitled to recognition for the initial financial contribution he made to the purchase of the Suburb E property with his mother providing a sum of $425 000 towards the purchase. This enabled the parties to gain a foothold in the Sydney property market and significantly reduced the interest burden that the parties would otherwise have incurred if those funds had not been provided.
Based upon the parties’ respective contributions to the marriage, both indirect and direct, financial and non-financial, I am satisfied that there should be a distribution of the matrimonial property of 55 per cent to the applicant and 45 per cent to the respondent.

Section 75(2) adjustment

In terms of the matters set out in s 75(2) that are relevant to my consideration, I note the following:
a)The respondent’s salary is approximately $127 000 per annum. That figure is significantly greater than the applicant’s salary of approximately $66 000 per annum.
b)The ability of the applicant to advance his career moving forward is also limited due to his primary care of the child.
c)There is currently no evidence as to whether the respondent’s mental health is impairing her capacity to work and whether she is presently working. In the first Report at paragraph 102, Dr F noted that the respondent’s obsessive compulsive personality structure was not inconsistent with her ability to focus on her tasks in her employment.
d)Consistent with that assessment by Dr F, I note that the respondent continues to pay child support and bear the costs of professional supervision of her time with the child by D Group. This suggests that the respondent continues to receive an income.
Having regard to the applicant’s more limited earning capacity and his ongoing responsibilities as the primary carer of the child, I am satisfied that a further adjustment of 5 per cent in favour of the applicant is appropriate in the circumstances of this matter.

Overview of proposed orders

The orders I will make will distribute the parties’ property interests 60 per cent in favour of the applicant and 40 per cent in favour of the respondent. This will have the same effect as dividing the property, over and above the sum of $450 000 (representing the amount initially contributed by the applicant to the purchase of the Suburb E property), by approximately 50 per cent.
This is a fair and equitable distribution of the parties’ matrimonial property in circumstances where I have found that, other than the applicant’s initial financial contribution of the sum of $425 000, the parties have made an equal contributions to the matrimonial property pool.
This adjustment is also consistent with a distribution contemplated by the parties in the event of the break down in their relationship as reflected in clause 4.1 of the “Agreement between Co-tenants” signed by the parties on 18 January 2008, following the purchase of the Suburb E property.[7] That agreement was recognised by the respondent during the course of these proceedings in Part I of her Financial Statement filed on 26 August 2015.
[7] Applicant’s affidavit filed 30 March 2016 at Annexure “NN”.

Costs

The applicant has sought costs in respect to costs that he has unnecessarily incurred as a result of the respondent’s conduct during these proceedings. By way of summary, those submissions were to the following effect:
· While the Court may have sympathy for the respondent’s state of mental health, and may consider her as not being as accountable as someone who has made a deliberate decision to waste costs, her actions have resulted in the applicant unnecessarily incurring significant legal costs. This conduct has included:
oinstructing three sets of lawyers and appearing self-represented;
orepeatedly failing to comply with orders even whilst legally represented;
ogiving instructions to her lawyers to seek undertakings from the applicant in the face of orders made by Senior Registrar Campbell for the applicant to spend time with the child;
oforcing the applicant to seek a Writ of Possession and only vacating the property shortly before the Writ was executed; and
ofailing to appear at a mention of the matter on the 20 April 2016 to ascertain the parties’ readiness to proceed with the final hearing and being uncontactable during that mention.
· In summary it was submitted that the respondent has been given every possible opportunity to bring herself before the Court and/or arrange legal representation and if she knew she was not going to participate, she could have spared significant costs for the applicant and the ICL as well as the waste of the Court’s resources had she provided notice of that fact.
It was submitted that it was appropriate for an order to be made that the respondent pay the sum of $55 000 in respect to the costs unnecessarily incurred by the applicant as a result of the respondent’s failure to comply with orders and her non-attendance at various court events, particularly after the final hearing was adjourned in April 2016.
It was submitted that the respondent has been put on notice of the orders proposed by the applicant, including in respect to the quantification of the costs sought.
Section 117 of the Act sets out the basis upon which the Court is empowered to award costs. That section relevantly provides:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the Court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the Court considers relevant.
(3) To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the Court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the Court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the Court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the Court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
(4A) If:
(a) under section 91B, an officer intervenes in proceedings; and
(b) the officer acts in good faith in relation to the proceedings;
the Court must not, because of the intervention, make an order under subsection (2) of this section against the officer, or against an entity (including the Commonwealth or a State or Territory) by or on behalf of whom the officer was engaged or employed.
(5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the Court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney‑General.
In Wrensted & Eades (2016) FLC 93-697,[8] the Full Court confirmed that there is no distinction in the legislative factors the Court is required to have regard to in respect to an application for costs in parenting proceedings, as opposed to property proceedings.
[8] at 81,153.
The general rule in family law proceedings is that each party bears his or her own costs. However, that general rule yields whenever the Court finds that there are circumstances justifying the making of an order for costs.[9]
[9] Penfold v Penfold (1980) 144 CLR 311 at 315.
A litigant in the Family Court must establish that the justice of the case requires an order for costs by reference to the non-exhaustive list of statutory considerations set out in s 117 before such an order is made.[10] Although the applicant for costs must establish circumstances which would justify an order for costs, it is not the case that a costs order can only be made in what has been described as “a clear case”.[11]
[10] Prantage & Prantage (2013) FLC 93-544 at 87,216 per Murphy J.
[11] Penfold v Penfold (1980) 144 CLR 311 at 315.
The considerations set out in s 117(2A) must be taken into account in deciding whether or not to order a party to pay the costs of another.[12] However, there is “nothing to prevent any factor being the sole foundation for an order for costs” being made.[13]
[12] See In the marriage of I and I (No. 2) (1995) FLC 92-625.
[13] Fitzgerald(aschild representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 33 Fam LR 123 at 130.
In this matter I have had regard to ss 117(2A)(c) and 117(2A)(d).
In terms of s 117(2A)(d), I note that the applicant was forced to unnecessarily incur costs as a result of the respondent failing to comply with orders in the following instances:
a. The proceedings heard by Senior Registrar Campbell on 21 August 2015 arising from the [respondent]’s breach of the Orders made on 24 June 2015 for [the child] to spend time with [the applicant]. [The applicant] estimate the costs of an incidental to of that Application amounted to $12,082.68.
b. Application in a Case filed by [the applicant] on 20 October 2014 for enforcement of the Orders made on 24 June 2015 for the sale of the [Suburb E property], such Application being determined by his Honour Justice Le Poer Trench on 18 November 2015. [The applicant] estimate the costs of and incidental to this Application, including Counsel’s fees, amounted to $11,018.70.
c. The further listing of my Application for the issue of a Writ of Possession determined by this Honourable Court on 21 December 2015. [The applicant] estimate the costs of and incidental to the hearing of this Application, including Counsel’s fees, amounted to $6,795.42.
d. Application in a Case filed by [the applicant] on 19 January 2016 for execution of the Writ of Possession arising from the [respondent]’s failure to vacate the home by 18 January 2016. [The applicant] estimate the costs of this Application amounted to $2,384.25. [14]
[14] Applicant’s affidavit filed 30 March 2016 at paragraph 191.
Costs incurred by the applicant in respect to each of those proceedings directly related to the respondent’s failure to comply with orders of the Court. In the circumstances, it is appropriate that the respondent is required to pay the costs of the applicant in respect to those proceedings.
In terms of s 117(2A)(c), I note that the respondent failed to attend the following court events:
· On 27 November 2015 the respondent did not attend a telephone procedural hearing conducted by Registrar Bastiani.
· On 20 April 2016 and 22 August 2016 the respondent failed to attend mentions before me to ascertain the readiness of the parties to proceed to final hearing.
Further, the respondent failed to comply with orders in respect to the filing of material she wished to rely upon at final hearing and her failure to attend the directions hearing on 20 April 2016 resulted in the initial final hearing, which had been listed to commence on 26 April 2016, being vacated.

No explanation was provided by the respondent for her non-attendance on those occasions. In the circumstances it is appropriate that the respondent meet the costs of the applicant in respect to the court events on 27 November 2015, 20 April 2016 and 22 August 2016. It is also appropriate that the respondent pay the applicant’s costs thrown away as a result of the final hearing listed to commence on 26 April 2016 being vacated.
Those costs should be paid on a party/party basis.
It is further noted that the applicant seeks an order for the respondent to pay a specific amount in respect to his costs related to those events. This is possible pursuant to r 19.18 of the Family Law Rules 2004 (Cth). That rule provides for the methods of calculating costs. These include, in r 19.18(1)(a), the Court setting a specific amount for costs or, in r 19.18(1)(b), an order for costs to be assessed on a particular basis.
In Stoian & Fiening (Costs) [2014] FamCA 944, Kent J endorsed the applicable principles, albeit for an equivalent rule to r 19.18, as adumbrated by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23. Those principles in part are:
i. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation…
ii. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable.
iii. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available.
iv. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place.
v. the gross sum “can only be fixed broadly having regard to the information before the Court”.
(References omitted)
In this matter it is significant that the applicant has sought to apportion the costs that he is seeking in respect to those costs that only relate to court events that have resulted from the respondent’s failure to comply with orders or have resulted from the respondent’s non-attendance.
Nevertheless the applicant has not provided an itemisation or breakdown as to how those costs have been calculated. In those circumstances I am unable to have sufficient confidence that the amounts claimed by the applicant are fair and reasonable.
Moreover, it is clear that the party being required to pay costs for an amount fixed by the Court should be given the opportunity to make submissions in respect to the quantum. In that respect Einstein J in Idoport Pty Ltd v National Australia Bank Ltd (supra) said:
vi. …the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No. 2) [1995] FCA 1250; (1995) 57 FCR 119 at 120.
In this matter I am sympathetic to concerns of the applicant that he may well not be able to recover costs once funds are distributed to the respondent.
In those circumstances, I will order that the amount that otherwise would have been distributed to the respondent pursuant to these Orders be reduced by an amount of $55 000. That sum of $55 000 is to be held in escrow pending an agreement between the parties as to the quantum of costs associated with those court events to which I have referred or, in the absence of agreement, those costs being assessed.

Orders

For the reasons set out above, I make the orders as set out at the commencement of this judgment.

I certify that the preceding two hundred and sixteen (216) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 4 November 2016.

Associate:

Date: 4 November 2016