DUBICKI & RIMMER

In the Family Court of Australia, Judge A Kelly considered parenting, property, and spousal maintenance disputes between the applicant and respondent mother. The parenting proceedings concerned a young child who had been subjected to assault and subsequently removed from the respondent's care by the Department of Health and Human Services due to the respondent's mental health illness. The applicant sought sole parental responsibility, while the court also had to determine appropriate spend time arrangements. In relation to property, the parties were in a de facto relationship with a modest estate, and the respondent's future needs were influenced by her mental health. The parties had agreed that an adjustment of property interests was just and equitable, and the court was asked to consider a superannuation splitting order. Finally, the spousal maintenance claim arose in circumstances where the respondent was living in near itinerant conditions with minimal support, and the applicant had been retrenched and was depleting his retrenchment payment while undertaking tertiary studies.

The court was required to determine whether the applicant should have sole parental responsibility for the child, and what final parenting orders, including spend time arrangements, were appropriate, particularly in light of expert evidence recommending caution regarding any alteration from supervised to unsupervised time. The court also had to consider whether it had jurisdiction to make orders in relation to the property of the de facto relationship and, if so, what adjustment was just and equitable, including the possibility of a superannuation splitting order. Furthermore, the court needed to assess the need and capacity of each party to pay spousal maintenance, considering the respondent's circumstances and the applicant's employment situation and studies.

In its reasoning, the court noted that expert evidence indicated caution was required if altering spend time arrangements from supervised to unsupervised time, and there was no evidence that the respondent had taken steps to address her mental illness. The court considered that long-term supervision was under consideration and that a regime whereby the applicant might exercise discretion to relax supervision was supported by the family report writer, the Independent Children's Lawyer, the applicant, and the respondent. The court also considered whether it had the power to require the respondent to undergo psychological and psychiatric treatment as recommended by experts and supported by various parties, and whether the costs of such treatment should be paid from the net proceeds of the sale of property, concluding that such treatment was in the best interests of the child. Regarding property and maintenance, the court acknowledged the parties' agreement on an adjustment of property interests and the respondent's future needs being informed by her mental health, and it considered the applicant's retrenchment and studies in assessing spousal maintenance.

The proceeding was adjourned for further hearing for the making of final orders. Pending this, the applicant was restrained from executing or giving a binding death benefit nomination that would render any part of his superannuation a non-splittable payment. The applicant was also directed to serve a copy of the proposed order on the trustee of his superannuation fund to accord procedural fairness and to file an affidavit providing evidence of the trustee's response. The content of the proposed order was to be kept confidential.