DUBICKI & RIMMER
[2019] FCCA 1168
•8 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUBICKI & RIMMER | [2019] FCCA 1168 |
| Catchwords: FAMILY LAW – Property – jurisdiction to make orders in de facto relationship – modest estate – where respondent’s future needs informed by mental health – parties agreed an adjustment of property interests is just and equitable – whether superannuation splitting order should be made. FAMILY LAW – Maintenance – where respondent living in near itinerant circumstances – where minimal familial or other support – where applicant retrenched from employment and depleting retrenchment payment while completing course of tertiary course of study – need and capacity to pay – periodic spousal maintenance ordered for 12 months to be extinguished upon depletion of net proceeds of sale held on trust – superannuation splitting order made. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.4, 4AA, 4AB, 34D, 60, 60B, 60CA, 60CC, 60CD, 60I, 61A, 61C, 61DA, 61DAB, 61F, 62G, 64A, 64B, 65A, 65AA, 65D, 65DAA, 65ZD, 67ZC, 68L, 68R, 69ZN, 69ZT, 70Q, 75, 79, 80, 90MA, 90MC, 90MT, 90MR, 90MZF, 90MZH, 90SB, 90SD, 90SF, 90SM, 90RA, 90SK, 90SS, 90ST, 90WA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Texts referred to: B. Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569 |
| Applicant: | MR DUBICKI |
| Respondent: | MS RIMMER |
| File Number: | MLC 8214 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing dates: | 28 February, 1 & 7 March 2019 |
| Date of Last Submission: | 7 March 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 8 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Tesoriero |
| Solicitors for the Applicant: | Emera Smith |
| The Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Mr Foo |
| Solicitors for the Independent Children’s Lawyer: | Lampe Family Lawyers |
ORDERS
The proceeding is adjourned for further hearing at 10.00am on 2 July 2019 for the making of final orders in accordance with these reasons for judgment.
Pending the making of final orders in accordance with paragraph (1) of this Order, or further order, the applicant be and is hereby restrained whether by himself, his servants, his agents or howsoever otherwise from executing, and/or giving to the trustee of the Employer Super Plan (Fund) a binding death benefit nomination in favour of any person, or doing any other act or thing, which would render any part of, or payment from, his superannuation interest in that Fund a non-splittable payment within the meaning of regs 12-13 of the Family Law (Superannuation) Regulations 2001 (Cth).
Direct that that the applicant forthwith cause to be served on the trustee of the Fund, a copy of the proposed order attached hereto and marked CONFIDENTIAL Annexure A in order that procedural fairness may be accorded to that trustee concerning orders respecting the interests of the applicant (member number …) in that Fund.
Direct that by 4.00pm on 25 June 2019, the applicant file and serve an affidavit providing evidence of any response by the trustee whether it consents (or does not object) to orders being made in terms of the proposed order attached hereto and marked CONFIDENTIAL Annexure A.
Order that the content of CONFIDENTIAL Annexure A be kept confidential and not be disclosed by any person other than to the Registrar, the parties, their lawyers and the trustee of the Employer Super Plan.
CONFIDENTIAL Annexure A
[Annexure A omitted]
IT IS NOTED that publication of this judgment under the pseudonym Dubicki & Rimmer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8214 of 2016
| MR DUBICKI |
Applicant
And
| MS RIMMER |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceeding entails parenting, property and maintenance issues in circumstances involving a high degree of parental conflict in which the court has changed the residence of the child of the parties’ relationship, [X] born on … 2012 (child), from that of the respondent mother such that he lives with the applicant father and presently spends time with the respondent only on a supervised basis.
Conscious of the caution that is required where an order for continued supervision is warranted, I have determined that orders should be made which require ongoing supervision for a period of one year. I have also concluded that the child should only spend unsupervised time with the respondent on condition that the respondent has furnished a report from a treating clinical psychologist that she has undergone extended therapy and is progressing satisfactorily in that therapy.
I have determined the respondent’s application for maintenance in circumstances where the respondent was self-represented and no submissions respecting the claim for maintenance were made by the applicant. The respondent’s submissions may be understood as pressing for financial support so as to facilitate a restoration of the child’s relationship with her. Orders are made which will secure a sum standing to the credit of a trust account is applied for the payment of the child’s supervised time with the respondent and for her treatment.
The parties’ property pool is extremely modest. The applicant has been undertaking and will soon complete a course of tertiary study. He has prospects of employment as a public servant. The respondent’s employment prospects are far more limited and her future needs are greater than those of the applicant. The respondent described her circumstances in some detail. She has become alienated from her parents and such familial support as she, seems confined to a sister with whom she is close but who has relocated to regional NSW. The respondent is largely dependent upon her friends for support but her friendship group also seems limited in part because the respondent’s mental health is quite unstable. She described her present living circumstances as ‘couch surfing’. Contrastingly, the applicant, who has been made redundant from his employment, has expended his redundancy payment on the day to day living expenses of himself and the child. Over the same period, the respondent has survived on a Commonwealth benefit and the interim payments made from the net proceeds of the sale of their property.
I have concluded that the Asset Pool should be adjusted as to 60% to the applicant and 40% to the respondent.
Background
The parties’ relationship began in 2006.
In March 2014, the parties separated for the first time. They moved in and out of a property in Property A (Property) which they then owned. It has now been sold and what remains of the net proceeds of sale is held in a trust account of solicitors who formerly acted for the respondent.
The applicant commenced this proceeding by an Initiating Application filed on 30 August 2016. The applicant sought parenting and property orders. On 12 October 2016, orders were made requiring the respondent to file her response, financial statement and any affidavit on which she sought to rely. Each party was represented by counsel at that hearing.
On 24 October 2016, further procedural orders were made to regulate the further case management of the proceeding, including by the provision of a conciliation conference and that each party set out the precise superannuation splitting orders which were sought. Consent orders were made respecting parenting including for the preparation of a family report. The parties agreed that they should have equal shared parental responsibility for the child and that they should undertake a post separation parenting program. By this consent order the child was to live with the respondent and spend time with the applicant on alternative weekends and on other special days or as agreed in writing by the parties. The parties further agreed that each parent should be permitted to contact the child by telephone or video call at reasonable times and for reasonable durations when the child was in the care of the other party. Ancillary orders were made respecting changeover, the exchange of information and communication by means of a communications book, email or SMS text messaging. Each of the parties agreed in mutual injunctions restraining them from denigrating the other parent or members of the other parent's family to the child or in the presence of the child. An order was made that the sum of $20,000 be paid to the respondent from a trust account held by the solicitors then acting for the respondent (aside from that payment, a further sum of $10,000 has been paid to each of the applicant and respondent respectively). Further orders were made respecting the preparation of the proceeding for the determination of the property application.
On 21 December 2016, the child was placed in the care of the applicant by the Department of Health & Human Services (DHHS) following a serious assault by the respondent on the child.
On 7 April 2017, an order was made for the appointment of an Independent Children's Lawyer (ICL). Pursuant to s 69ZW of the Family Law Act 1975 (Cth) (Act) a request was made of DHHS for it to provide documents and information respecting the child, including any notifications made to DHHS of suspected abuse, any assessments by the DHHS of investigations, notifications concerning the child, any reports commissioned by DHHS and any recommendations for the future arrangements of the child. An order was made, by consent, suspending the operation of the order that the child should, until further order, live with the respondent. In place of that order, the parties further agreed that the child should remain with the applicant until further order. Those orders were made in circumstances where the respondent had been charged by the police with a series of indictable offences arising from her assault of the child. This is addressed in some detail below.
On 20 April 2017, orders were made listing the proceeding for trial on 3 October 2018. Further orders were made, by consent, including that the child continue to live with the applicant and spend time with the respondent, weekly, on a supervised basis at a children's contact service. The parties further agreed that the costs of the children's contact service be paid from funds held in trust by Messrs Robinson Gill (the respondents now former lawyers), and for such payments to be characterised at a later date. I note that these trust funds represented the net proceeds of sale of the parties’ property. An order was made for the respondent to attend upon a suitably qualified expert for the purpose of psychiatric assessment. Again, the costs of that psychiatric report were to be met from those trust funds and for such payment to be characterised at a later date. In addition, orders were made that the respondent continue counselling (as had been recommended by DHHS); that the respondent abstain from drinking alcohol during the time spent with the child (and for 24 hours prior thereto); that the respondent enrol in and attend a post separation parenting course and that she provide a certificate of completion of that course. The contact service supervisors were requested to provide written reports of the observations of the child in spend time with the respondent. Those reports were in evidence.
On 12 October 2017, the matter was adjourned for Mention on 14 February 2018. The matter was adjourned by reason that the respondent had failed to attend an appointment by Dr B for the purposes of her undertaking a psychiatric evaluation. This evaluation has now been undertaken and the report from Dr B has been obtained and tendered in evidence.
On 14 February 2018, the parties agreed in orders that the ICL be at liberty to request a report from a psychologist as to the respondent's progress in dealing with the child and for the obtaining of an opinion respecting the respondent’s progress to unsupervised spend time with the child. The respondent was afforded the opportunity to nominate the names of three psychologists for this purpose. Trial directions were made respecting both parenting and property matters, including the times for service of their trial affidavits, outlines of argument and the precise orders which were sought in the proceeding. The respondent has largely failed to comply with such orders.
The parties attended mediation on Friday, 14 September 2018 but were unable to reach agreement respecting parenting or property matters. It seems that the mediation was aborted at the initiation of the respondent’s counsel although she was unsure why this had occurred.
On 26 September 2018, the respondent's second firm of lawyers withdrew. Although the applicant filed his Trial Affidavit, Financial Statement and Outline of Case, the respondent did not do so.
On 3 October 2018, the trial of the proceeding was adjourned by reason that the respondent was not ready to proceed. Orders reserving the costs of the applicant and the ICL were made. The proceeding was adjourned, with priority, to 28 February 2019.
Again the respondent failed to file any Outline of a Case or current Financial Statement. However, on the day immediately prior to the hearing, the respondent filed an extensive affidavit to which she exhibited a vast number of documents. It emerged that the court and the parties respectively had been provided with different versions of that affidavit and exhibits. As a consequence it was necessary to adjourn the hearing in order that copies of the affidavit (as filed) could be provided to each of the parties at the commencement of the proceeding.
As surprisingly, it also emerged that the affidavit had been prepared months earlier and in advance of the 2018 hearing. Why it had not been served earlier was not explained, but having regard to its content, I infer that the respondent had been the author of that document and that it had received little, if any, input from her former lawyers. Much of the affidavit took the form of a submission and I employed its content as much for this purpose as I did for the evidence which it contained.
Counsel for the applicant confirmed that the relief sought by the applicant was as set out in the Outline of Case. In substance, the applicant sought orders as to:
a)Parenting: the applicant sought sole parental responsibility for the child and for the child to live with him and to spend supervised time with the respondent once weekly;
b)Property: for an adjustment of property interests of 65% in his favour and 35% to the respondent.
The applicant's counsel also identified each of the court documents and affidavits upon which the applicant relied and which I have considered.
When the respondent was asked to explain the stance that she took in relation to the application it was initially stated as follows:
a)Parenting: the respondent put forward two options: (1) that the child live with each party from Friday to Friday in alternate weeks; (2) alternatively, that she have unsupervised spend time with the child on each weekend. Further orders were sought respecting the child, including that he should participate in psychological counselling with Ms C, and; that the parents should undertake parenting programs;
b)Property: the respondent sought that she be allocated 100% of the net proceeds from the sale of their property. She also sought an order for the return of unspecified property by the applicant which, she alleged, was in his possession, together with disclosure of money standing to the credit of any joint bank accounts and orders respecting superannuation and insurance policies.
As the respondent had failed to file or serve an Outline of Case or otherwise indicate the orders which she sought, a direction was made requiring her to provide a list of the items of personal property which she sought be transferred to her and that the respondent to identify the precise orders which were being sought in the proceeding.
So too, counsel for the ICL confirmed the stance which was taken in relation to the parenting application and identified each of the documents upon which reliance was placed. The ICL’s position changed following the evidence and is addressed in further detail below.
Evidence
The issues raised in this proceeding are to be determined on the balance of probabilities: s 140, Evidence Act 1995 (Cth). In the determination whether an issue has been established to the requisite standard, the court may take into account the nature of the claim and response, the subject matter of the proceeding and the gravity of the matters alleged: sub-s 140(2), Evidence Act.
Where there were inconsistencies in the evidence, the parties were still required to prove their claims to the requisite standard of proof: sub-s 140(1) Evidence Act1995 (Cth). Equally, the more serious the allegations, the more inclined I was to take into account the gravity of that issue in deciding whether it was made out: cf sub-s 140(2) Evidence Act; Johnson v Page(2007) FLC 93,344, [72]; Briginshaw v Briginshaw(1938) 60 CLR 336. Where the evidence did not permit the court to make an affirmative finding either way on a particular issue, the court was not bound to do so and could find that the party which bore the onus of proof had failed to discharge it: Kuglioski v Metrobus(2004) 220 CLR 363, [60].
To varying extents the parties’ affidavits addressed matters which lay at the periphery of the core issues which now fall for determination. In Williams v Smith (1960) 103 CLR 539, 545, the High Court held unanimously that where divergent views are put in issue “a tribunal of fact may properly refuse to accept either party’s case and work out for itself a view of the case which did not exactly represent what either party said”: see also Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [19] (Gleeson CJ, McHugh and Gummow JJ).
In Whisprun, Gleeson CJ, McHugh and Gummow JJ accepted at [62] that the court was not required to mention every fact or argument relied on by the parties as relevant to an issue. These principles are well settled: Lam v Lam [2017] VSCA 173, [112]-[113] (Whelan, Santamaria and Kaye JJA); Hutchinson Constructions Services Pty Ltd v Les Quatre Musketeers Pty Ltd [2016] NSWCA 135, [61] (Beazley P, Meagher and Leeming JJA); Walsh v Legal Practitioners Board (2016) 125 SASR 111, [49] (Stanley, Parker and Doyle JJ); Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 234 ALR 241, [45] (Heerey, Weinberg and Allsop JJ); Hunter v Transport Accident Commission [2005] VSCA 1, [21] (Batt, Vincent and Nettle JJA).
Moreover, in the context of a proceeding which calls for the exercise of a discretionary judgment, it is not necessary to refer to or make an explicit finding upon each disputed item of evidence. Rather it is sufficient that the court’s findings are appropriately clear: Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 385-386 (Mahoney JA): see also Molloy & Reid [2018] FamCAFC 89, [42] (Thackeray, Murphy and Aldridge JJ); Cubbin & Cutler and Anor [2018] FamCAFC 84, [13] (Thackray, Ainslie-Wallace and Murphy JJ); Holzmann & Holzmann [2018] FamCAFC 2, [34] (Thackeray, Strickland and Carew JJ); Bell & Nahos [2016] FamCAFC 244, [28]-[29] (Strickland J).
These principles apply to the determination of this proceeding.
Evidence was given by the applicant, respondent, a family report writer and contract supervisor. Reports were tendered by the parties as had been prepared by: (a) Ms C, a social worker, who had been consulted by the respondent following the laying of charges in connection with the assault of the child; (b) Dr D, clinical psychologist; (c) Dr B. None of those witnesses was required for cross-examination. I address that evidence below.
The applicant father presented as an impressive witness who tried to give his evidence in a forthright and candid manner. He made admissions against interest. Further, where he was unsure of the answer to a question which was put to him, he frankly admitted as much. I am satisfied that he has made full financial disclosure in the case. The applicant was taken to specific aspects of the respondent’s affidavit and afforded an opportunity to meet the matters which it addressed. Although he ought to have been afforded a significantly better opportunity to do so, I considered the applicant gave a frank account of himself and met the allegations directly. To the extent that the applicant’s version of events differed from that of the respondent, I generally prefer and adopt that evidence which he had given.
By contrast, I found the respondent’s demeanour to be argumentative and often unimpressive. The respondent gave answers in cross-examination which took on the appearance of speeches. I did, however, find the respondent to be polite and that she made a deal of effort to present her evidence and submissions in a candid way.
I was left with the impression that the respondent felt unable to accept responsibility for many of the events about which she was questioned and sought to attribute the outcome of such incidents to other parties, including the child, the applicant, his family and neighbours.
However, my assessment of the respondent also requires recognition that she has had and continues to have mental health issues, which are not being treated in an effective way because, in large part, she cannot afford that treatment. From the court’s perspective, this is of particular importance in evaluating what orders should be made in the best interests of the child and further, in evaluating the parties’ future needs.
Subpoenas were addressed to DHHS and Victoria Police who produced many documents, some of which were tendered in evidence. I have incorporated my findings in relation to the documents where they provide context to the history of this matter.
The parties also tendered a number of documents, each of which I have considered. Counsel for the applicant observed that a good many of the documents attached to the respondent's affidavit may have been the subject of proper objection on the grounds of relevance or otherwise. However, counsel, quite properly and sensibly recognised that as parenting orders were being sought, Part VII Div 12A of the Act prescribe the principles to be applied in the conduct of child related proceedings, including that the court should actively direct, control and manage the conduct of proceedings and should do so in a way that would safeguard a child from being subjected to, or exposed to, abuse neglect or family violence and further that the proceeding should, as far as possible be conducted in a way that would promote cooperative and child focused parenting and to that end, the proceeding be conducted without undue delay and with as little formality and legal technicality and form as possible: s 69ZN moreover. Conscious of the proscription that certain provisions of the Evidence Act 1995 (Cth) do not apply to child related proceedings, I have attached such weight as I consider appropriate to the documents tendered in evidence notwithstanding that some of them may have been of peripheral relevance: s 69ZT.
For example, the respondent tendered some references which were highly sympathetic to her position in evidence. Somewhat curiously, the references spoke of the toxicity of the parties’ relationship and of the child being ‘taken away’ from the respondent. One reference spoke of the respondent's desire to seek an amicable solution with the applicant. It also expressed the opinion that the child's development would be severely affected by the “severance of his ties to his mother". Another expressed the opinion that it was obvious the child was suffering from the traumatic experience of being separated from his mother.
My principal findings in relation to the matter are set out below. Further findings which relate to the application for an adjustment of property interests are dealt with separately in a later section of this judgment.
Parties and their relationship
The applicant is presently aged 41 years and is undertaking study to qualify as a public servant. He expects to complete this course in 2019.
The respondent is aged 40 years and is presently unemployed.
[X], the only child of the parties’ relationship, was born on … 2012 and is now aged six years. The parties were agreed that following the birth of the child they had attended family counselling.
The parties commenced living together in about … 2006 and separated on the first occasion in March 2014. At the time of the parties’ initial separation, they were living at the Property A Property.
In mid-April 2014 the respondent, with the child, moved out of the Property A property, but later returned. The relationship fluctuated from that time until final separation in August 2015.
On 28 June 2015, the parties participated in relationship counselling.
In light of the procedural history described above, the child currently lives with the applicant and spends supervised time with the respondent on Saturdays (he no longer spends supervised time mid-week as he is now attending primary school).
In about September 2015, the applicant moved out of the Property A Property, doing so at the insistence of the respondent. In November 2015 the respondent again moved out of the Property whereupon the applicant resumed occupation until it was sold in July 2016.
The respondent says the parties’ relationship became acrimonious following separation. The applicant found it was increasingly difficult for him to maintain a meaningful relationship with the child. He found that the respondent would deny him the opportunity to spend time with the child. In his experience, changeovers became a forum at which the respondent would raise complaints, make criticisms of a historical nature and express her dissatisfaction with parenting arrangements.
From about November 2015, the applicant and child spent time together every few days with the child, usually spending overnight time on Wednesday, Friday and Saturday nights in one week and a Saturday night on the alternate week.
On 10 February 2016, the parties attended mediation and a certificate pursuant to s 60I of the Act was issued.
By March 2016, the respondent mother had expressed the view that the child's overnight time with the applicant father on Wednesday nights were proving disruptive. Instead the parties agreed that the child would spend time with the applicant each Friday and Saturday night. However, from late June 2016 the applicant did not spend time with the child because, as he said, the respondent refused to facilitate it.
Attempted suicide
The respondent stated that she had suffered depression since her teens.
On the weekend of 25-26 July 2015, following a period of alcohol consumption with her then partner, the respondent had tried to stab herself in the chest and to slash her wrists (using a pen and knife respectively). This incident occurred whilst the respondent was in a car parked in Property A. The applicant exhibited Facebook entries which had been posted by the respondent on these dates and in which the respondent spoke of herself as an alcoholic and recounted her attempt at the suicide which was then being undertaken. The respondent told the applicant that police had attended this incident at a Property A car park.
As a result of these events, the applicant took leave from work for the week commencing Monday, 27 July 2015 so as to care for the child during the respondent’s period of recovery and convalescence.
Withholding spend time – 2015
The applicant recounted an incident on the weekend of 19-20 September 2015 whilst the child was in his care. At this stage, the respondent was in sole occupation of the Property. The parties had agreed that the applicant would return the child to the respondent at 5pm on Sunday. However, less than 10 minutes before the time for changeover, the respondent sent the applicant a text message advising that she would be home later and asking that the child remain in the applicant's care until she returned. The respondent did not indicate how long she would be in returning to the Property A Property. The applicant had existing commitments and, after ascertaining that the respondent was not at home, he made a number of unsuccessful attempts to contact her by telephone and text message, but received no response.
In the circumstances, the applicant took the child with him and returned to Suburb E where he met with friends who were known to the respondent. Some hours after the due time for handover the applicant sent a text message asking as to the whereabouts of the respondent and child. The applicant found the respondent to be so abusive that he terminated the call. The telephone call was followed by a series of abusive text messages from the respondent. The applicant considered whether the respondent was alcohol affected.
At some stage after 7:30pm the respondent arrived at the home of the applicant's friends to collect the child. She was non-responsive to the applicant's question as to whether she had been drinking and instead the following occurred:
Ms Rimmer erupted. She put [X] back down started hitting me and yelling at me, and slapped me across the face. [F] tried to shelter the child from witnessing the violence and Ms Rimmer then pushed her away and grabbed [X]. Ms Rimmer was hysterical and [F], [G] and I were all begging her to calm down. [F] was trying to calm her; letting her know that everything was okay but that she should not be driving with the child in her state. Both of the children were screaming and crying. Ms Rimmer then went outside and called the police. I was hugging and soothing [X] when the police contacted my mobile phone to see if I wanted them to dispatch a unit to the address. I was unsure, so they did send two police officers to our location. When they arrived Ms Rimmer was outside the house screaming. After the police officer spoke with her they assured me that Ms Rimmer was not drunk and so I released [X] to her. The police asked me if I wanted to press charges against Ms Rimmer, however I declined.
Pressed in relation to this incident, the applicant maintained that he had observed the respondent affected by alcohol or drugs on many occasions.
The applicant also recounted other occasions on which he had been berated by the respondent for having spent time with his friends and their children whilst the child was in his care. He received Facebook messages from the respondent stating that she would reduce the child's spend time with the applicant and that she would obtain a court order to prevent the child from seeing the applicant's family. In furtherance of these messages, on 23 September 2015, the respondent applied for an Intervention Order (IVO) against the applicant. The matter was adjourned for a contested hearing, however, about a week earlier the respondent determined to withdraw the application. The respondent tendered an interim IVO that was made on 23 September 2015 in which she and the child were named as the affected family members. However, on 22 December 2015, this Interim IVO was struck out.
The applicant also recounted that the respondent withheld the child on Sunday, 26 September 2015, being Father's Day, at a time when he had been preparing to attend a family gathering at the home of his aunt and uncle. An argument followed, including that the respondent said the applicant could only spend the day with the child on condition that they did not see his paternal grandmother.
The respondent then refused to let the child attend the event, following which she insisted that the applicant vacate the Property A Property. The applicant proceeded to pack his clothes and other belongings. Whilst this was occurring, the respondent continued to yell abuse at the applicant. In the course of doing so she threw a vase of flowers at the applicant which smashed against the front door.
The applicant left the house alone and proceeded to pack his belongings into his car. He then returned to collect the child together with one of his guitars. At this point the respondent followed the applicant as he approached his vehicle. All the while the respondent continued to abuse the applicant. The respondent took the guitar from the applicant and smashed it against a rock retaining wall. She wrenched the guitar from the applicant despite his requests that she stop doing so. In the aftermath of this outburst, the child was hit by part of the remnants of the guitar. As to this incident the respondent stated that she had an established ritual for changeover with the child which the applicant had not facilitated and that “I grabbed the guitar because [the respondent] values his guitars more than anything else. This guitar cost $20.” It was not clear whether the respondent’s justification for having destroyed this property was that she regarded it to be of negligible value or whether she did so as she knew that the applicant valued his musical instruments above all else.
On 24 November 2015, the parties participated in family dispute resolution which resulted in their agreeing on a parenting plan. Although the applicant signed and returned a copy of that plan he was unsure whether the respondent had done so. The respondent refused to facilitate the child's spend time with his father on some occasions.
The respondent has an entrenched dislike of the applicant's parents. For example, on Christmas day in 2015 the parties had made arrangements for the respondent to collect the child on Christmas morning. Changeover occurred in circumstances where the respondent arrived at the Property A Property just as the applicant was in the process of removing the child from his car. The respondent then learned that the applicant and child had spent Christmas Eve with his parents at their Town H property and “became enraged, abusive towards me and threatened to make sure that [X] would never see my parents again.”
On Boxing Day 2015, the respondent presented the applicant with a handwritten note which she insisted that he sign, refusing to return the child to him unless and until he had done so. The applicant said that the note recorded, in terms, a supposed agreement that the child would not see the applicant's parents at any time between Boxing Day and 3 January 2016. The applicant deposed that the respondent was abusive of him in the presence of the child while she demanded that he sign that document. I cannot infer whether he declined or agreed to do so.
On 26 March 2016, at about 8:45pm, the respondent arrived at the Property A Property where the applicant was then living. She arrived with the child and said that she wanted to address the issue of the child spending time with the applicant's mother. The respondent said that she did not want the applicant's mother looking after the child. The applicant described the respondent as being very angry, shouting and denigrating his mother. The applicant sought to end this conversation by closing the front door. The respondent then smashed garden pots outside the front door and cracked a window. The respondent then placed the child in her car, but not before smashing garden pots in the driveway and glass in the basement. As is self-evident, these events occurred in the presence of the child. The applicant reported the incident to police who suggested that he apply for an IVO. Although he considered the adoption of that course he did not do so at that stage.
On 12 April 2016, the applicant received a text message from the respondent who was threatening to commit suicide and leave the child with DHHS. The applicant exhibited the series of text messages relating to this incident. From those messages it appears that the respondent had arrived at the applicant's home and became annoyed that he was not home and then stated her intention to kill herself. The applicant responded that he was on his way home and the respondent should call him if she needed to do so. The respondent replied that she needed time out, and could not sustain caring for the child completely alone. After abusing the applicant she proposed that he look after the child for the weekend so that she could try and sort out her life. The applicant agreed that if the respondent needed time he would be happy to collect the child when the respondent was ready for him to do so. The respondent then appears to have calmed down but stated she was presently overwhelmed, emotional and struggling with medication.
On 7 May 2016, the applicant received a call from the respondent to require that he return the child to her immediately instead of the morning of Mother's Day as had been agreed. When the applicant arrived with the child at the Property A Property, he observed that several windows had been smashed together with glass bottles and a painting which the child had made for the applicant for Father's Day. When the applicant contacted the respondent she initially denied any knowledge of the damage but later called back and confessed to having caused that damage. The applicant decided that to avoid the risk of confrontation with the respondent he should leave the Property with the child and did so. Then followed a series of threatening text messages in the course of which the respondent stated: “if you don't return my son to me, I will trash your precious house and kill myself there and leave a forensic mess for you to clean up". The applicant responded by calling 000. As a consequence, the police attended the Property, took a statement from the applicant and applied for an interim IVO on his behalf. On 10 May 2016, a Final IVO was made.
On 15 July 2016, the respondent received a Diversion Order and a 12 month good behaviour bond in respect of the damage she had caused to the Property and for having breached the IVO.
The applicant stated that from this time, the respondent became less willing to facilitate the spend time which the child had with the applicant. The applicant provided a series of instances which detailed the nature of the difficulties which were encountered in relation to spend time. Without recounting each of the examples given, I note that:
a)in June 2016, the respondent insisted that the applicant provide her, in writing, with his monthly schedule for a 6 month period. When the applicant did so the respondent required “official proof of [your] schedule”. The applicant sought legal assistance to try and resolve the question of spend time with the child but found that the respondent did not reply to his lawyers requests;
b)on 7 July 2016, the respondent declined to allow the applicant to spend time with the child the following weekend stating, “I will make no agreements or arrangements [with you] until a court order is in place";
c)the applicant was unable to spend face-to-face time with the child in the period 26 June 2016 to 4 September 2016, because the respondent refused to make the child available.
Initial spend time arrangements
Consequently, and as noted above, on 30 August 2016 the applicant commenced this proceeding seeking parenting orders. Although the matter was first returnable on 12 October 2016 it was adjourned to allow the respondent additional time to file responding material.
When Orders were made on 24 October 2016, the child recommenced spending time with his father.
In the period 24 October 2016 – 7 April 2017, the child lived with the respondent and spent time with the applicant, initially on alternate weekends and then on each weekend. However, the child lived with the applicant from 1 December 2016 to 23 December 2016 pursuant to a Family Violence Safety Notice and an IVO which were issued on 1 – 2 December 2016 respectively. Thereafter, the child spent time with the applicant each weekend and on series of occasions when the parties agreed that the child should stay with his father.
An Incident Note dated 16 March 2017, provided a summary of an incident in which the child, then aged four years, had been injured in the playground at Suburb J Shopping Centre. A referral form at … Fracture Clinic contained a description of the injury as being a transverse distal radius and ulnar injury. The applicant was not informed of this incident for some eight hours after its occurrence and said that there had been other incidents which had caused him concern.
Family violence – September 2016
As noted, the child did not spend face-to-face time with his father in the period 26 June 2016 – 4 September 2016. In that period, the applicant was the subject of further abuse by the respondent.
On 25 September 2016, the applicant returned the child to the respondent's care at her home. After being invited inside, the respondent's home an argument ensued in the course of which the applicant decided to leave. He was unable to do so as the respondent was blocking the front door. To avoid further confrontation the applicant left the Property via the back door. The respondent followed the applicant to his car. The applicant considered the incident to be of sufficient significance that he made a voice recording of it as he walked toward his car. The respondent then tried to take the applicant's phone from him and, in the presence of the child, began strangling the applicant.
When the applicant said he would report the incident, the respondent had what appeared to be a panic attack. The applicant called 000 for an ambulance. Both police and paramedics arrived. The applicant took time off work to recover from the incident for some time.
A summary report dated 26 September 2016 by Region K Health recorded a referral following an alleged altercation with the applicant at changeover. The history presented on that occasion included:
. . . reports long-standing mood instability, intense emotions and difficulty managing the same, impulsivity, unstable and intense relationships, binge drinking and THC use that have arisen on the background of a traumatic childhood and abusive parents and emotionally abusive and controlling relationship with ex-partner who is also the father of her child . . . She reports smoking two to three joints per day and binge drinking alcohol to manage her anxiety particularly around custody issues with her son and dealings with her ex-partner. Also reports episodes of blackouts only while she has been drinking that these occur even when she consumes only small amounts . . .
. . . Reports diagnosis of borderline personality disorder by treating psychologist which [the respondent] feels is accurate and consistent with her experiences . . .
. . . Reports she has virtually no current supports other than her sister who lives in NSW . . .
The record also stated that the respondent was willing to consider further options in relation to psychiatric treatment and that she wanted to re-engage with her previous psychologist. It stated that the respondent believed she had symptoms consistent with a borderline personality disorder and wanted to access treatment for this condition. The respondent acknowledged that she also had concerns regarding her “mood, anxiety and alcohol abuse (binge drinking).”
The ICL tendered in evidence the Victoria Police LEAP pending charges report relating to five charges which had been laid against the respondent in the period 30 May – 1 December 2016 and which comprised:
a)contravened family violence safety notice;
b)criminal damage (intentional);
c)contravened family violence final IVO;
d)unlawful assault and the recklessly causing injury.
1 December 2016 – assault on child
The applicant received a call from Victoria Police on the evening of 1 December 2016 to collect the child. He was informed by police that the child had been assaulted by the respondent. When he arrived at the Police Station, the applicant observed bruising to the child's face. He later observed bruising on another part of the child's body.
On 2 December 2016, Victoria police applied for a Family Violence IVO for the protection of the child. An order was made on that date by the Magistrates Court at Suburb L, as was an order pursuant to s 68R of the Act suspending existing interim parenting orders until 23 December 2016.
The statement of reasons provided by the Police in applying for the IVO stated in part as follows:
This incident began as a verbal argument, during which respondent became frustrated with the [child's behaviour]. The respondent then slapped the [child] several times, resulting in a welt the size of her palm appearing on the [child] face. This incident caused the [child] to cry. Police have sighted the [child's] injury, and believe the issuing of this notice is required to ensure the ongoing safety of the [child]. Full admissions have been made by the respondent on this occasion.
The respondent was cross-examined as to the circumstances of the incident and described the child as having consumed the contents of a container of ice-cream, made an extraordinary mess of the kitchen and of screaming uncontrollably. The respondent agreed that she had confronted the child and was screaming at him. She then approached him, knelt in front of him, told him that he had broken all the rules and was given three chances to apologise before she slapped him. Yet she described the incident as enduring “for well over an hour.”
The respondent also gave her account of this incident to a number of independent witnesses whose reports were adduced in evidence as follows: to DHHS; Ms C, social worker; Ms M, family report writer; Dr D, clinical psychologist, and; Dr B, psychiatrist.
When DHHS’s account of this incident were put to the respondent she agreed that she had said that she had connected her hand to the child’s face harder than she had intended. The respondent’s initial description of the incident as involving a ‘slight pat on the bottom’ was remarkable. The ICL persuasively argued that the degree of impact to the child’s face and bottom left injuries consistent with blunt force trauma.
On 18 March 2017, Ms C, social worker, prepared a report for the Suburb L Magistrates Court which addressed the circumstances in which the respondent had failed to attend a scheduled court hearing. Ms C recorded the respondent's previous diagnoses as including bipolar disorder, PTSD and possibly borderline personality disorder. Ms C's recommendation included that:
. . . even though [the respondent] has committed a indictable offence within the context of serious mental health issues which had been compounded by the family violence she has been exposed to, that she can be congratulated on her positive engagement to date in psychological support and trauma treatment and in taking responsibility for the impact of her mental health on her son . . .
The history obtained by Ms C included that the applicant had perpetrated violence upon the respondent.
The history of the 1 December 2016 incident which the respondent provided to Dr D, included that she had knelt in front of the child, “tried to tap his cheek with an open hand but accidentally used too much force, resulting in a hard slap. She reported that the couple who lived downstairs, had come up in the afternoon, and threatened to call child protection before leaving. She reported that later that night, child protection and uniformed police officers arrived to arrest her for “assault and reckless injury”. Dr D noted that the criminal charges laid against the respondent had only reached court in June 2018, by which time the respondent had completed certain community service and a diversion plan with the result that the criminal charges were recorded but no conviction was made.
When Dr B’s account of this incident were put to the respondent she stated that he had left the word ‘accidentally’ out of the account which she had given him as to when she had slapped the child.
Ms M provided a detailed account of the incident on 1 December 2016 including that:
a)the respondent admitted having slapped the child on the face so hard that her hand was imprinted on his cheek and swelled immediately to the point of needing an ice pack;
b)the respondent had not referred to more than one bruise notwithstanding that the social worker had observed several bruises including a bruise to the face;
c)the respondent's explanation for her actions had been that she had stayed up all night making preparations for Christmas;
d)the respondent claimed that the child had eaten all of the ice cream which had been stocked up for Christmas (“boxes of ice cream”) and had drawn with Texta on the walls, curtains, ceiling, pulling apart furniture and generally trashing the kitchen;
e)Ms M noted that while the respondent initially spoke of only one smack, it had slowly emerged that there had been multiple episodes of smacking the child “once for each thing that [he] did wrong". Ms M observed:
. . . from her account she smacked him on the face with such force causing bruising and welts because [X] would not look at her while she screamed at him about how bad he was.
Ms M observed the respondent to speak very fast and in highly dramatic terms about the incident. Ms M expressed no doubt that if the child had wet himself as a result of this incident it was because of fear and distress and that he had still been wet some five hours after the incident raising “cause for greater concern about the mother's care of him”. Ms M considered that there were many disturbing elements to the respondent's account of the incident. Ms M appeared to question the veracity of the respondent's account of having been up all night preparing for Christmas “when it was still a month away”. Ms M identified a raft of concerns in relation to the respondent's account of this incident but stated:
. . . most disturbing is the child’s fear and wetting himself as a result. This is compounded by the father's account of [the child] flinching and fearing that he will be punished and is self-harming when he thinks he has done wrong. In recounting the incident, [the respondent] demonstrated little or no capacity for any self-reflection. She continued to solely externalise blame even to [the then four year old child], focused on her misfortunes… Her degree of empathy was low and none was expressed toward the child and how he must have felt, and there was no evidence of any insight into her own behaviour.
The differing versions of the 1 December 2016 incident are self-evident. The respondent stated that she had been incredibly stressed at the time of the incident and had not been taking her medication. She agreed that the applicant had not been present when the assault had occurred. Her evidence that the child had been the trigger for the respondent’s distress and her description that he had vandalised the ceiling was concerning if only because it formed part of her evidence which had the character of an attempt to blame the child for the harm which he had suffered.
DHHS investigation and subsequent care arrangements
The police notified DHHS of the incident. The DHHS commenced an investigation in relation to it. The ICL tendered a DHHS first visit case note dated 5 December 2016 respecting interviews with the applicant and the respondent in relation to the assault on the child on 1 December 2016. On two occasions, the case note records that:
. . . overall mother appeared to be blaming of the child and external circumstances as to why she struck (the child).
In recording the interview, the respondent stated that her relationship with the applicant was “very negative”. The caseworker’s observations of the child's interaction with the applicant was that he presented well with his father, “both showing affection towards each other, the child, stated that, it was fun being at his dad’s.” The caseworker noted a fading lump on the child's left cheek. Upon consultation with the supervising officer, a recommendation was made that the child remain in the applicant’s care, and that a case plan be developed with the respondent to outline support she may need to engage with.
On 15 December 2016, the applicant was contacted by DHHS. He attended with the child on 17 December 2016 and undertook counselling with Ms C (the counsellor to whom the respondent had been referred by DHHS following the incident on 1 December 2016). Again, on 20 December 2016, the applicant participated in counselling with the child and the respondent. I note that Ms C indicated she would recommend the child be returned to the care of the respondent.
The child remained in the applicant's care until 23 December 2016. On that date, the applicant acceded to the recommendation of Ms C that the child be returned to the care of the respondent.
On 23 December 2016, when the child was returned to the respondent, the applicant was the subject of immediate criticism by the respondent for having placed the child in Childcare in the period that he had been living with the applicant. The respondent's criticism of the applicant during changeover escalated to the point that the applicant reported the incident to police. The respondent was charged by police with having breached the IVO. The respondent’s conduct on 23 December 2016 seemed almost indicative of a view that the events of 1 December 2016 had not occurred.
DHHS prepared a case plan which, erroneously, transposed the parties’ involvement such that the applicant was named as the respondent and documented him as having been the perpetrator of violence upon his son.
On 6 January 2017, DHHS prepared a case plan for the purpose of addressing protective concerns in relation to the child and noted that the child would continue to live with the applicant and undertake counselling sessions to be facilitated by Ms C.
On 23 February 2017, an order was made by VCAT dismissing an application for the respondent's eviction from premises in Suburb N. It appears the application for the respondent's eviction was dismissed for want of compliance with legislative requirements respecting the service of a Notice to Vacate.
On 22 March 2017, DHHS wrote a letter in support of the grant of a special childcare benefit being granted for the child and the respondent.
Family report – Ms M
By order made on 24 October 2016, the parties and the child attended upon Ms M, psychologist, for the purpose of the preparation of a Family Report. The parties participated in such interviews on 22 March 2017, following which Ms M prepared a report dated 5 April 2017. The content of Ms M's report is addressed in further detail below. Suffice to say that Ms M made recommendations that: (a) the child should live with the applicant and spend time with the respondent; (b) the period of time which the child should spend with his mother in the longer term would be dependent on the extent to which the respondent had made changes in the quality of the child's relationship with her; and (c) an order be made for the urgent appointment of an ICL.
At a Mention hearing on 7 April 2017, Ms M’s Family Report was tendered and an order was made for the appointment of an ICL. Further orders were made, by consent, suspending prior parenting orders and providing that the child should live with the applicant until further order. As a consequence of those orders the applicant took leave from his employment and did not return to work until 26 April 2017. During that period, the applicant attended to the child's needs and did so for the purpose that he be settled into his new living arrangements.
A referral by the respondent's general practitioner dated 11 April 2017 to Mr O, consultant psychiatrist at the Mental Health Clinic identified the respondent's daily medications and recorded the immediate past medical history in the period July 2015 – February 2016 as including: alcohol withdrawal; URTI, anxiety and depression.
When, in April 2017 (and following the interview with Ms M), the respondent was intercepted by police and breath tested, she recorded a blood alcohol level in excess of 0.05 and lost her licence for 18 months. A condition of the renewal of her licence was that an Interlock device be fitted to her vehicle so as to disable it from being driven where alcohol was detected in her system. In evidence, the respondent assigned her breath test result to the medication that she had been prescribed.
Child's progress (in father's care)
From the time when the child was first in the applicant's care in April 2017, the applicant observed him to be frequently upset on those occasions where the child did not “get his own way or thought he had done something wrong". On such occasions the applicant observed the child to strike himself in the head or face with his fist.
The power to make a maintenance order is also to be considered in the context that the court must, as far as practicable, make such orders as will finally determine the parties’ financial relationship and avoid further proceedings between them: s 90ST. In an application for spousal maintenance, the court will give consideration to the desirability of providing for a ‘clean-break’ so as to sever the parties relations.
As concerns the power to make an order for maintenance respecting parties to a marriage, the analogue provision to s 90SE is found in s 74. In Clauson & Clauson (1995) FLC 92-595 at 81,907 Barblett DCJ, Fogarty and Mushin JJ explained that the reason a spousal maintenance application must be considered following the determination of a property settlement proceeding is because the orders made in the latter application necessarily establish the background against which s 74 must operate; namely, the financial circumstances of the parties:
The result of the s 79 order may be such that the applicant for maintenance can no longer be described as being ‘unable to support himself or herself adequately’ because he or she may have sufficient assets which, with or without income arising from the investment or use of those assets, will provide an adequate level of support. It also defines the other party's capacity to meet any order. (emphasis added)
However, in Tyson v Tyson (1996) 70 ALJR 285, the High Court considered that there were worrying aspects of the Full Court’s reasoning in Clauson insofar as it related to the approach to be taken in an application for lump sum maintenance.
As concerns spousal maintenance, Clauson identifies two important considerations which arise from the making of orders in a proceeding for the adjustment of property interests: (1) the applicant for spousal maintenance may not be able to establish an inability adequately to support him or herself; (2) the capacity of the respondent to the application may be such that they may not reasonably be able to provide or afford spousal maintenance. Consideration of the possible impact of the orders made in the adjustment of property interests is thus required in the determination of an application for maintenance: In the marriage of Bevan and Bevan (1995) FLC 92-600 (Nicholson CJ, Lindenmayer and McGovern JJ). More recently, in JS & GP, [2006] FamCA 150 at [133], Kay, Warnick and Boland JJ recognised the requirement that regard be had to the terms of a property order in considering an application for spousal maintenance but held that the cases turn:
. . . very much on their unique factual circumstances, and demonstrate the flexibility, which the legislation affords, to a structured exercise of discretion to tailor an appropriate result for an individual case.
The Full Court accepted that different approaches could be found in the authorities concerning the requirement for a spouse to apply his or her capital to meet expenses.
The adequacy of a person’s ability to support him or herself is the primary condition upon which an entitlement to maintenance depends: Brown, (2007) FLC 93-316, [92]ff. The requirement of para 90SF(2)(b) that the applicant for spousal maintenance demonstrate an inability to support him or herself adequately is to be considered having regard to any relevant matter in sub-s 90SF(3): cfN & N (1997) FLC 92-782, 84,643. The test whether an applicant for spousal maintenance is able to support him or herself adequately should not be equated with a question of whether they are in need. The proposition that an inability to support one-self adequately is synonymous with subsistence has been firmly rejected. Nor is it necessary that a party must deplete all of their capital in order to demonstrate an inability to support oneself.
Rather, the focus is upon whether the applicant for spousal maintenance is in a position to finance him or herself adequately from their own resources. The test is whether “by reason of earning capacity, by reason of capital or other sources of income which have accrued independently to the applicant, the applicant is in a position to look after herself”: see Moller [2017] FamCA 841, [23] citing Eliades & Eliades (1981) FLC 91-022, 76,232, Clauson, supra.
The second condition upon which a liability for maintenance depends is a person is only liable to maintain a spouse who is unable adequately to do so only if that person is reasonably able to do so. The determination whether a person is reasonably able to maintain a spouse requires consideration of their financial circumstances.
By sub-s 90SF(2), the exercise of the power to award spousal maintenance under s 90SE is constrained by sub-s 90SF(3). The “Court shall take into account only the matters referred to in sub-section (3).” By this means, sub-s 90SF(2) defines the scope of matters that may be considered in the exercise of power to order spousal maintenance.
Once the conditions upon which a liability to maintain a spouse are satisfied, the court is conferred a very wide discretion as to whether to make a maintenance order and if so what order should be made. The discretion so conferred on the court is constrained by the requirement that the maintenance order should be ‘proper’, a term which is not defined by the Act and which should be construed as meaning appropriate to the circumstances. The court may conclude that there is a proper purpose for the making of an order for maintenance and more importantly that the order is made in a form which is proper and adequate so as to achieve that purpose: Brown (2007) FLC 93-316, [61]-[63], [91]-[92].
Many types of spousal maintenance orders may be made and relevantly, may: (a) take the form of periodic payments which continue indefinitely, run for a fixed term or terminate automatically upon the occurrence of one or more events; (b) be periodic payments; (c) be secured by charge over assets; (d) be backdated; (e) include the appointment of a trustee; (f) be subject to terms and conditions; (g) include such orders as are considered necessary: see ss 80(1), 90SS(1). The following decisions which address maintenance are illustrative:
a)in Maroney & Maroney [2009] FamCAFC 45, Coleman J said at [45], that “just because capital may be utilised to meet it, a periodic entitlement does not thereby cease to be a periodic entitlement”;
b)in Kaiser & Kaiser [2015] FCCA 1903, an order was made for the payment of rent and utility costs to be paid directly to the estate agent of a spouse, notwithstanding her objection to the adoption of that course;
c)in Carman & Carman [2017] FamCA 99, an order was made for payment of one half of the mortgage payments for a period of 18 months in circumstances where the parties’ child had a serious medical condition such that the spouse was unable to work more than three days per week;
d)in Chernischoff & Chernischoff (1980) FLC 90-848, an order was made for the payer’s interest in certain property to be transferred and held on trust to achieve the aim of meeting a maintenance liability. Asche J saw no reason for reading down or restricting the power to make orders for security;
e)In JS & GP [2006] FamCA 150 at [136], Kay, Warnick and Boland JJ found that a spouse’s major depressive disorder provided a rational basis for a conclusion that she was prevented, at that time, from obtaining suitable employment. The Full Court observed that the parties’ net assets were modest and held that evidence supported an order for spousal maintenance for a period of no less than 12 months from the date of trial. In doing so, it accepted that power was conferred to retrospectively order spousal maintenance: see at [130], [140], [156];
f)in Hall v Hall (2016) 257 CLR 490 at [36], the plurality held that the court was plainly authorised by s 75(2)(o) and 90SF(3)(r) respectively to consider any fact or circumstance which, in its opinion, the justice of the case required to be taken into account.
To this may be added that the discretion to make an order for spousal maintenance falls to be exercised having regard to the scope and purposes of the Act: cf Klein v Domus Pty Ltd (1963) 109 CLR 467, 473; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [19]. As concerns the present application, the power to award spousal maintenance conferred on the court is not to be hedged about by limitations which do not appear from the express terms of the statute: Owners of the Ship Kobe Maru v Empire Shipping Company Inc (1994) 181 CLR 404.
Consideration
As the respondent’s inability to support herself adequately I have paid regard to each of the relevant matters in sub-s 90SF(3) and adopt without repetition, my earlier consideration of those matters.
I find that the respondent is not able adequately to support herself and that the applicant is to some extent reasonably able to do so. In making those findings I am acutely conscious that the parties’ financial situation is meagre. However, the respondent is not able to adequately support herself from her own resources.
The relevant and overarching consideration which I see as being of determinative significance to this application is that the justice of the case requires recognition that the respondent will be unable to spend time with the child unless she is supervised and that her ability to do so on an unsupervised basis depends upon her obtaining adequate medical care to address her mental health issues. That said, I also recognise that the applicant has no ability to meet all such expenses for any extended period. Both parties clearly want a result in which the child will be able to maintain a relationship with the respondent.
So far as concerns the effect which the orders made under s 90SM have had both upon the respondent’s financial resources and upon the applicant’s capacity to pay maintenance, I have examined the implications of the orders made in the adjustment of property interests. In sum, there is an Asset Pool of $223,000 which has been allocated as to 60% in favour of the applicant and 40% in favour of the respondent. In practical terms that has meant that the parties have had allocated to them both their interim distributions of property and, in the applicant’s case, the redundancy payment, all of which have been wholly or very largely expended. As I have concluded that the justice of the case requires that the Net Proceeds be excluded from the Asset Pool, the only substantive assets remaining for consideration are the parties’ respective superannuation interests. It must also be recognised that the Net Proceeds are not owned by the applicant alone and that each of the parties claimed an interest in them. Thus the order for periodic spousal maintenance does not encroach on the applicant alone.
While I conclude that it would be proper to order that the applicant pay the respondent spousal maintenance, I confine that finding to the making of payments which are proper to pay for the costs of supervision and the respondent’s medical care. Orders will be made in a form which are considered proper and adequate to achieve those purposes. In that context, I consider that the question of the respondent’s future maintenance in terms of her need for supervision and medical care are not insignificant issues in this case: cf Lee Steer & Lee Steer (1985) FLC 91-626, 80,080 (Fogarty, Maxwell and Nygh JJ).
Based upon the authorities to which I have had regard respecting the wide discretionary power that is available to be exercised, I conclude that the type of spousal maintenance order which is appropriate to be made in this case should contain the following features; namely, that it should: (a) take the form of periodic payments; (b) it should be confined to a liability to make such payments from the Net Proceeds; (c) be a liability which will terminate automatically upon the event that the parties agree that supervision and medical treatment is no longer necessary or that the Net Proceeds have been expended for those purposes; (d) be secured by a charge over the Net Proceeds; (e) be ordered as operative from the date of trial; (f) be subject to terms and conditions whereby the Net Proceeds are transferred to a controlled monies account held by the applicant’s solicitor; (g) be held by the applicant as trustee for those purposes; (h) authorise the applicant, as trustee of the Net Proceeds, to pay the costs of supervision and medical treatment directly to the supervisor or medical professional. The circumstance that the Net Proceeds are being employed as the source of the liability for spousal maintenance does not deny those Net Proceeds the character of monies being applied for a periodic entitlement to maintenance and so explain why it is appropriate for the Net Proceeds to be excluded from the Asset Pool.
For the avoidance of doubt, when the question of spousal maintenance was raised in the course of closing addresses, and the prospect of making an order moulded to preserve the Net Proceeds, the only submission that was made was that the court had power to do so but the issue was more appropriately dealt with in the adjustment of property interests. For the reasons I have given, I conclude that the justice of the case requires that orders be moulded in a way which will best promote the child spending supervised time with the respondent and that she should have the opportunity to gain the medical care which she so clearly needs. For the avoidance of doubt, I reiterate that the applicant should not be subject to a liability for maintenance which extends beyond the Net Proceeds. To the contrary, the respondent has, and should pursue the opportunity (by consulting her medical practitioner to obtain) a further mental health plan. She should likewise explore with the trustee of her own superannuation fund, whether, and the means by which, she can obtain access to her superannuation interests on hardship grounds so as to obtain the medical care which she needs.
Conclusion
I have described above the final parenting Orders that will be made. I have concluded that a global property adjustment of the net asset pool should be made in this case. I have reflected, holistically, on what order is just and equitable in all of the circumstances. I have also described the orders to be made by way of spousal maintenance. For the avoidance of doubt, I recognise that the orders which will be made involve a significant degree of overlap. The parenting orders are made in the child’s best interests and the spousal maintenance and property orders must accommodate and recognise that the child’s best interests are paramount. Should the respondent fail to take up the opportunity extended by the orders, there is the concomitant risk that supervised spend time with the child may remain the only basis on which the child can safely have contact with his mother at this stage.
A minute of the proposed final orders is provided with these reasons for judgment. The parties will be afforded an opportunity to consider that minute. The proceeding will be adjourned for mention in order that they may make submissions concerning the precise terms of those final orders. Should the parties be able to afford procedural fairness to the trustee of the Employer Super Plan before the matter is listed for mention, it should be possible to pronounce final orders on that day.
I certify that the preceding five hundred and eleven (511) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 8 May 2019
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