Engleby & Engleby
[2023] FedCFamC2F 540
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Engleby & Engleby [2023] FedCFamC2F 540
File number(s): PAC 3703 of 2020 Judgment of: JUDGE STREET Date of judgment: 23 June 2023 Catchwords: FAMILY LAW – PARENTING – PROPERTY – time for child with father in accordance with wishes – child lives with mother – mother sole parental responsibility Legislation: Evidence Act 1995 (Cth): s 140
Federal Circuit and Family Court of Australia Act 2021 (Cth): s 190
Family Law Act 1975 (Cth): Part VII, s 4, s 4AB, s 41(1)(b), s 43, s 60B, s60B(1), s 60CA, s 60CC, s 60CG, s 61DA, s, 65D, s 65DAA, s 69ZM, s75, s 79(2) s 102NA
Cases cited: A v A (1998) FLC 92-800
Cotton & Cotton (1983) FLC 91-330
Champness & Hanson [2009] FamCAFC 96
Deiter & Deiter [2011] FamCAFC 82
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Fitzwater & Fitzwater (2019) 60 Fam LR 212
G & C [2006] FamCA 994
Goode v Goode [2006] FamCA1346
Isles & Nelissen (2022) FedCFamC1A 97 FLC 94-092
Johnson & Page (2007) FLC 93-344
Jurchenko & Foster (2014) FLC 93-598
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69
Marburon & Waldlow [2013] FamCAFC 191
Masson v Parsons (2019) 266 CLR 554
McCall & Clark (2009) FLC 93-405
Moose & Moose [2008] FamCAFC 108
N v S (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303
Nikolakis & Nikolakis [2010] FamCAFC 52
Slater & Light [2011] FamCAFC 1
Stott & Holgar [2017] FamCAFC 152
Division: Division 2 Family Law Number of paragraphs: 170 Date of hearing: 24 March 2023 Place: Sydney Applicant In person Counsel for the Respondent: Ms D. Hawkins Solicitor for the Respondent: Diaz & Diaz Counsel for the Independent Children’s Lawyer: Dr C. McConaghy Independent Children’s Lawyer Christina Lam & Associates ORDERS
PAC 3702 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ENGLEBY
Applicant
AND: MS ENGLEBY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE STREET
DATE OF ORDER:
24 March 2023
THE COURT ORDERS THAT:
1.The applicant’s request for further adjournment is refused.
2.Written reasons for the refusal are reserved.
PARENTING
3.All extant parenting orders be discharged.
4.The mother have sole parental responsibility for X born 2011 ("the child").
5.The child live with the mother.
6.The child shall spend time with and communicate with the father in accordance with her wishes.
7.The father be at liberty to send cards, letters and presents to the child provided that they are age and child appropriate and that the mother will ensure that the child is provided with all letters and cards and/or presents sent to the child from time to time by the father.
8.The mother be at liberty to vet all cards, letters and/or presents sent by the father to the child to ensure that they are child and age appropriate.
9.The father be restrained from denigrating the mother or any other person in the cards and/or letters sent by him to the child.
10.The father is restrained, pursuant to s 68B of the Family Law Act 1975 (Cth), from physically approaching or attending any residential address where the child may reside and any school that the child attend.
11.Each parent is restrained from:
(a)Denigrating the other or members of the other party’s family in the presence or hearing of the child and each party shall do all acts and things reasonably necessary to prevent any other person doing so;
(b)Discussing the family law dispute and showing any of the child any court documents, correspondence between their solicitors, and other documents relating to or associated with these proceedings;
(c)Conveying messages through the child and or using the child as a go-between to convey messages to each other;
(d)Exposing the child to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the children, the mother, the father or any other member of either party’s household.
(e)Corporally or physically punishing the child or permitting anyone else to do so.
12.The mother is to provide the father with a copy of all school reports and a copy of any medical report or medical assessment received by the mother within 14 days thereof.
13.That the child X born 2011 be removed from the Airport Watch list, also known as the PACE alert system.
14.That the mother has sole parental responsibility for giving consent to and making arrangements for the application and issue of an Australian passport for the child.
15.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), the mother is permitted to apply for and obtain the issue and renewal of Australian passports for the children under the provision of the Australian Passports Act 2005 (Cth) without the father’s knowledge or consent.
16.That, pursuant to s 65Y of the Family Law Act 1975 (Cth), the parties are permitted to travel overseas with the child subject to order 6 above, conditional upon the travelling party providing the non-travelling party with one months’ written notice of the intended itinerary including the first date of travel and the date of return.
17.That within sixty (60) days of the making of these Orders, the parties shall each pay the Independent Children’s Lawyer’s costs in the sum of $4,774.00.
18.That within seven (7) days the Independent Children’s Lawyer shall meet with the child to explain these orders to her and upon doing so the Independent Children’s Lawyer shall be discharged.
19.The court reserves its written reasons in respect to these parenting orders.
THE COURT NOTES THAT:
A.The Court hopes that these orders will assist the child re-establish, when she wishes, a meaningful relationship with her father.
B.The Court hopes that the father can adhere to his assertions of a new leaf in relation to tolerance and ensuring a restraint of inflammatory or derogatory remarks.
C.The father and mother, if necessary, will move to communicating through a family app like Family Wizard if it becomes necessary to do so, which the court is hopeful will not occur.
THE COURT ORDERS THAT:
PROPERTY
20.That within twenty-eight (28) days, the applicant vacate B Street, Suburb D NSW (the ‘B Street property’).
21.Thereafter, the respondent shall have sole occupancy of the B Street property.
22.The applicant withdraw the Caveat numbered … from the B Street property.
23.The applicant is restrained from lodging any further caveat on that property.
24.A Registrar, pursuant to s 106A of the Family Law Act 1975 (Cth) is authorised to effect order 22 should the applicant not comply.
25.Within sixty (60) days, the respondent shall pay the applicant the amount of $123,200.00.
26.If the respondent is unable to comply with Order 25, the property shall be sold by auction or private treaty with steps for sale being that;
(a)The B Street property is listed with an agent and/or marketing agent immediately after the expiry of the sixty (60) days under Order 25; and
(b)The sale is to be effected on ordinary terms at arm’s length by auction or private treaty to be conducted soon as reasonably practicable as and no later than six weeks in respect to any auction after the expiry of the sixty (60) days under Order 25; and
(c)The proceeds of sale will firstly dispense in priority order; discharge of the home loan, outstanding council and water rates, payment of the appointed real estate agents in relation to the sale, legal costs in relation to the sale, and expenses arising from the sale, the amount of $123,200.00 to the applicant (less the amount payable under Order 27, if applicable) and the balance to the respondent.
27.The applicant pay the amount of $4,998.00 outstanding child support unless it has already been paid by the applicant in accordance with any adjustment to the figure in Order 25.
28.The applicant is restrained from removing any furniture and household items that are not his personal items and that he is not to otherwise damage the property, or leave dumped on the property any rubbish or other unusable chattels or garbage.
29.The Court declares that the respondent shall retain the right, title and interest to the exclusion of the applicant and, upon compliance with Order 25 above and subject to the following splitting order;
(a)Furniture that is not the personal property of the applicant; and
(b)Any vehicles registered in her sole name; and
(c)Any interest in any savings accounts, investments or superannuation funds standing in her sole name.
30.The Court declares that the applicant shall retain the right, title and interest to the exclusion of the respondent and subject to the following splitting order;
(a)Furniture that is not the personal property of the respondent; and
(b)Any vehicles registered in his sole name; and
(c)Any interest in any savings accounts, investments or superannuation funds standing in his sole name.
31.Pursuant to s 90MT(4) of the Family Law Act 1975 (Cth), the base amount of $34,513.00 out of respondent’s interest in the W Corporation be allocated to the applicant.
32.In accordance s 90MT(1)(a) of the Family Law Act 1975 (Cth), the applicant is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) on the base amount and makes a corresponding reduction in the entitlement to the respondent, or such other person to whom a splittable payment may be made but for these orders.
(a)When that splittable payment is made, in accordance with the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth), the Trustee shall do all acts and things and sign all such documents as may be necessary to pay the entitlement created by these orders, 31 and 32 to the applicant.
(b)These orders 31 and 32 are to take effect from four (4) business days after the service of these orders by the respondent on the Trustee to be effected within seven (7) days of the date of these orders.
33.Other than as provided in these orders, each of the parties are solely liable and hereby indemnifies the other in relation to any debt, liability or claim in their respective names.
34.All parties should do all things necessary to give effect of these orders including, but not limited to, signing all documents to give effect to these orders and if any such party defaults then pursuant to s 106A of the Family Law Act 1975 (Cth) the Registrar shall be entitled to sign such document or documents on behalf of the defaulting party of parties.
35.The applicant is responsible, and must pay, for any gas, electivity or water in respect of any bill in his name for the B Street property up until the time he vacates in accordance with Order 20.
36.The Court reserves its written reasons for these property orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Engleby & Engleby has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
These proceedings were commenced on 23 July 2020 and involve parenting orders in relation to a child, X, born 2011, now being 12 years old, as well as hearing for property orders. On 10 November 2022 the matter was fixed for a 3 day final hearing commencing 22 March 2023.
At the commencement of the 3 day hearing on 22 March 2023 the applicant was represented, as a result of an order made on 22 June 2022 under s 102NA of the Family Law Act 1975 (Cth) (‘the Act’) and which order noted advising the parties as to the consequences of that order in relation to cross-examination. The Court, on oral application by the representatives of the applicant, granted leave for the applicant’s lawyers to withdraw in circumstances where it was apparent that there was an instruction issue. The Court declined to grant an adjournment of the parenting and property hearing and made orders reserving reasons in relation to the adjournment application and stood the matter down until 10:00am on 23 March 2023.
The applicant made further adjournment applications at the commencement of and during the second day on the substantially same grounds that the applicant wanted to get new representation and so as to overcome the consequences, which was refused. The applicant made a further application for adjournment on substantially the same grounds that was refused after completion of the evidence.
The Court proceeded to hear the matter as a final hearing on 23 and 24 March 2023 and had the benefit of evidence from the applicant that was the subject of cross-examination by both counsel for the respondent and the Independent Children’s Lawyer (‘ICL’). The respondent was not cross-examined by the applicant because of the terms of s 102NA order. There was, however, some cross-examination of the respondent by the ICL. The family report writer, Mr C, was cross-examined by the applicant and also by the ICL.
FIRST ADJOURNMENT APPLICATION
The proceedings had been marked “not reached” on 10 November 2022 by Judge Turnbull and was listed for hearing with priority. At the commencement of the proceedings on 22 March 2023, the Court invited the parties to seek to have discussions to see whether or not the matter could be the subject, first, of addressing the issues in respect of parenting in a consensual way.
When the matter came back before the Court that day, the Court was informed that counsel and the solicitor for the applicant sought leave to withdraw from the proceedings and identified an issue of conflict in relation to instructions. Observations were made by Mr Engleby that made it apparent that there was a real impasse with the ability of the legal representatives to continue to act for him which reflected an impasse within his control. In those circumstances, the Court granted leave for the practitioners to withdraw. The Court identified for Mr Engleby the matter is one which, subject to hearing from him in respect of an adjournment, it was likely that the Court would proceed with the hearing and that he would not be allowed to cross-examine because of s 102NA of the Act.
Mr Engleby sought an hour to contact lawyers to see whether or not he could obtain representation. When the matter came back before the Court at 3.30pm, Mr Engleby indicated that he wanted more time as he was still trying to obtain lawyers to represent him. The applicant also raised, in the first adjournment application, that he had health issues and was taking medication. The Court was however satisfied that it was patent from what was said by the applicant that he was capable, as a matter of procedural fairness, of meaningfully participating in the hearing even though he was unrepresented. The actual conduct of the hearing by the applicant also supported that view. These are proceedings in respect of which it is apparent from what has been said by the ICL that there is a real interest in relation to the 12 year old child in having these proceedings and the conflict between the parties brought to an end.
An adjournment application in respect of a parenting matter is one to which the relevant principles under s 43, s 60B and s 69ZL of the Act and s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) apply. Ultimately, the Court must consider whether an adjournment is in the best interests of the child and the interests of the administration of justice. At this stage, the Court is not satisfied that an adjournment is in the best interests of the child and proposed to continue the hearing of the matter at 10:00am the following day, unless substantial grounds are raised as to why there should be some further adjournment that persuaded the Court that it is in the best interests for the child to do so or, required in the interests of the administration of justice. These are the settled ex tempore reasons for the refusal of the adjournment and standing the matter over to 10:00am the next day.
FURTHER REFUSAL OF ADJOURNMENTS
These are the reserved reasons for refusal of adjournment on 23 March 2023 and a further adjournment application by the applicant during the hearing. The Court took into account that this was a matter that had earlier been not reached in November 2022 and had been listed for hearing with priority, commencing on 22 March 2023 for a 3 day parenting and property hearing. Because the proceedings are ones in which parenting orders have also been sought, the Court must take into account the principles in s 69ZN, as well as s 43, s 60B and s 190 referred to above. Application of those principles in this case is of considerable importance as the ICL submitted that a further adjournment would adversely impact on the child, now aged 12, who is aware of the hearing. An adjournment would inevitably have resulted in further emotional stress and trauma on the child as well as on the parties. The Court has also taken into account, in relation to the refusal of each adjournment application, that the child is at an age where the child appears capable of expressing her views in relation to with whom she wishes to live and with whom she wishes to spend time.
The child’s view identified in the family report and in the ICL’s submissions was to the effect that she did not wish to be required to spend time with her father. The evidence of the respondent mother identified a firmer view expressed to her which included a suicidal threat if required to see the father. The Court took into account that the applicant asserted that he was taking steps to try and obtain fresh representation in relation to Legal Aid. Those further steps were not, however, ones in which the Court was required to adjourn the matter because it was clear that the withdrawal of the representation of the applicant was due to his interaction and his own conduct with his Legal Aid representatives obtained as a result of a s 102NA order.
The Court took into account that refusing the adjournment would best protect the rights of the child in the present case and would be most likely to promote the child’s welfare by reason of bringing to an end the ongoing dispute between her parents and subjecting the child to further emotional uncertainty and stress from an adjourned hearing. The Court is also of the view that the refusal of the adjournment and bringing an end to the dispute between the parties was more likely to ensure protection from family violence.
The Court was also of the view that the applicant’s concern about the absence of legal representation was not one that meant requiring the hearing to proceed, even though the applicant would not then be entitled to cross-examine the respondent and even though the applicant did not then have legal representation was not one where there was a procedural unfairness that necessitated an adjournment. From the time of the making of the s 102NA orders the applicant was on notice as to the consequences of that order. The circumstances in which the applicant found himself in terms of the want of representation and inability to cross-examine were due to his own conduct.
Further, the Court was satisfied that, despite the applicant’s contentions to the contrary, the applicant did have an adequate level of understanding as to the nature of the issues in the proceedings to be able to fairly represent his interests. The Court also took into account that the Court could take steps during the hearing to ensure that the applicant understood the issues and his procedural rights. The applicant alleged the evidence that his daughter raised a risk of suicide was new evidence that knocked him for six. The Court did not accept that this evidence justified an adjournment. The Court was not satisfied that an adjournment application was in the best interests of the child and was not satisfied that an adjournment was warranted in the interests of the administration of justice.
The applicant made further adjournment applications during his cross-examination which the Court declined to entertain as the Court was satisfied there was no new proper ground to entertain the same. The applicant again sought an adjournment at the commencement of the last day of the hearing on 24 March 2023 which the Court refused to entertain. Nothing new had occurred to identify any material change of circumstances since the Court rejected the earlier adjournment applications. The applicant again sought an adjournment at the end of the evidence before addresses commenced and the Court indicated the hearing would continue. Further, nothing said by the applicant father identified any new compelling ground that, in all the circumstances, necessitated an adjournment. The Court was satisfied that it was in the best interests of the child to refuse the further adjournment application and that an adjournment was not necessitated in the interest of the administration of justice.
The applicant did raise in the course of the last day’s hearing on more than one occasion a further attempt to seek an adjournment, which the Court declined to entertain given the earlier adverse rulings and as there had been no substantial change of circumstances that justified the Court re-entertaining the further adjournment applications.
CHRONOLOGY
The Court finds the relevant date and events are in the following chronology.
Date Event 1967 Respondent mother born. 1969 Applicant father born. Early 1985 Respondent mother migrated to Australia from Country E. Late 1988 Respondent mother becomes an Australian citizen. 1988 -1991 Respondent mother studies at F University. Early 2008 The parties meet. Early 2008 Respondent mother marries Mr G (first husband). 2009 Respondent mother divorces Mr G. February 2010 The parties meet on an online dating service. 2010 The parties commence cohabitation. 2010 The respondent mother becomes pregnant with X and the applicant father moved into B Street, Suburb D (the respondent mother’s house). The respondent mother purchases a car for the applicant father. 2011 The child X is born. X is currently 12 years of age. 2011 The respondent mother takes 6 months of maternity leave to care for X 2011 The applicant father becomes X’s primary caregiver 2011 Applicant father alleges X has bruises on her arms from unattended falls;
Applicant father says he allegedly found rotten and mouldy toys at the maternal grandparent’s home and stopped their child care privileges.2011 Respondent mother alleges she observes a drastic change in the applicant father’s behaviour after X’s birth and suggested the applicant father seek medical help as he was always angry and aggressive. Early 2011 The applicant father alleges that the mother’s brother threatened to sexually assault X to fix constipation. Mid-2011 The parties marry. Late 2011 The applicant father alleges that the respondent mother threatened to stab the applicant father and mash household items in front of X. The applicant father alleges that the respondent mother swore and abused him. 2012 The applicant father alleges the respondent mother was regularly domestically violent and smashed household items in temper tantrums. 2013 The applicant father alleges the respondent mother refused to clean X’s teeth and said they will fall out anyway. 2013 The applicant father is diagnosed with ADHD. 2014 The respondent mother alleges she pleads with the applicant father’s father to find a psychiatrist. 2014 Subpoenaed records indicate applicant father diagnosed with a mental illness by Dr J at H Organisation. 2015 The applicant father receives treatment for several conditions. The applicant father asserts he attends parenting number of classes to cope with personal and multicultural family depressive triggers. 2015 The applicant father is diagnosed with depression. 2016 The parties separate but remain residing under the same roof. 2016 The applicant father asserts that he is appointed as X’s main carer by Centrelink. He claims he raises X 90% of the time. 2016 The respondent mother asserts that the applicant father’s abuse continued despite the separation. 2016 The applicant father reports the respondent mother to the Police regarding claims of child sexual assault.
He alleges that the respondent mother exposed X to sexually explicit and violent adult television.
He also alleges that he overheard the respondent mother say to X ‘I can’t wait to get home so I can tickle your vagina’.Late 2016 Subpoenaed materials indicate applicant father banned from K Centre following alleged abuse and threats towards staff and allegedly ‘violently pushed [X] […] 5 or 6 times’. X observed to be ‘clearly distraught’. 2017 The applicant father alleges the respondent mother hit X on the head. Late 2017 Member of public report the applicant father’s allegedly abusive conduct at M Sporting Group.
Applicant father appears heavily intoxicated and yelled profanities at other girls competing.
Child and applicant father appear to be living in applicant father’s motor vehicle; concern about X.2018 The applicant father asserts that an informal verbal parenting plan is made between the parties. November 2018 The respondent mother alleges X said to her: ‘dad shouted in my ear… He pulled my hair and dragged me into his room. He pulled my panties down and smacked me at the bottom many times.’ 2019 The applicant father seeks mediation but alleges the respondent mother refuses. 2019 The applicant father alleges that X was developing serious unsafe behaviour disorders imitating her respondent Mother’s violent and disrespectful behaviour. Late 2019 The applicant father asserts that the respondent mother’s dog bit him and she smashed household items in front of X and cut the applicant father’s foot. Late 2019 The respondent mother alleges that X disclosed to her that the applicant father had physically hit X multiple times. Late 2019 The applicant father alleges that the respondent mother abducts X. Late 2019 The respondent mother leaves the home with X and resides with her family. Late 2019 The applicant father obtains an Apprehended Domestic Violence Order against the respondent mother for threats of harm to the applicant father. Late 2019 The applicant father visits X for the second time. Late 2019 The applicant father claims he drops off X's Christmas present and alleges she does not receive them. Early 2020 The applicant father claims he drops off presents to X but alleges that X does not receive them. Early 2020 The applicant father approached the school principal to request counselling for X. Mid-2020 Applicant father makes allegations to Police about respondent mother’s sexual abuse of X in 2016; including 151 allegations about his marital difficulties and complaints between 2010 and 2020. Mid-2020 The respondent mother is investigated for sexual abuse; police records indicate that there is “Nil evidence” of sexual abuse and that the applicant father is attempting to use Police to facilitate his own interests in the custody matter with his ex-partner; case suspended. 23 July 2020 The applicant father initiates proceedings. Late 2020 The respondent mother alleges that the applicant father continues to stalk and verbally abuses her. Late 2020 The applicant father reports to DCJ that the respondent mother was still sleeping with X. Late 2020 The respondent mother and X move in with their parents. 2021 Applicant father harassed respondent mother in presence of her Counsel in Court foyer – ADVO immediately sought by respondent mother or applicant father. Early 2021 DCJ records a report about excessive discipline and physical abuse of X by the applicant father include X saying the applicant father pulled her off a chair by her hair and smacked her bottom hard. 7 May 2021 Child Inclusive Memorandum prepared. 7 May 2021 The applicant father completes a hair follicle test. 24 June 2021 Interim orders made that the respondent mother have sole parental responsibility for X (the child).
That the child live with the respondent mother.
That the child spend no time with the applicant father.
That the applicant father be entitled to send cards, letters and presents to the child provided that they are age and child appropriate and that the respondent mother will ensure that the child is provided with all the letters and cards and/ or presents send to the child from time to time by the applicant father.
That the respondent mother be at liberty to vet all cards, letters and/or presents sent by the applicant father to the child to ensure that they are child and age appropriate.8 July 2021 The applicant father undertake CDT test. Mid-2021 Applicant father sends and email to Court threatening “that if actions is not taken immediately I will take the matter into my own hands”. Late 2021 Court security refers applicant father to Police in relation to his email to Court dated 9 August 2021 and his conduct throughout the proceedings which has “caused concern”. Late 2021 Applicant father commences attending a psychologist at T Psychology. 26 April 2022 Family Report Released. 5 May 2022 Dr L, GP, states applicant father is being treated for multiple conditions noting he sees Dr U, Psychiatrist. “There has been improvement with his anxiety and depressive symptoms with this current treatment”. 10 May 2022 Applicant father emails respondent mother stating: “If I was you, I would be in fear of how [X] will turn out under your families’ evil LGBTI racist antichrist karma and fake truth.” 20 June 2022 The matter is listed for final hearing 10 November 2022. 14 October 2022 Subpoenaed materials from H Organisation include report by Dr N, Psychiatrist, who saw the applicant father on 7 October 2022.
Applicant father has had minimal psychological input (longest a few sessions) and he seeks to reduce his medications. He presents similarly to when Dr J saw him in 2014. Differential diagnosis includes a mental illness and complex PTSD. “[Mr Engleby] tends to change his medications according to perceived need”. Strongly encouraged to continue with psychological therapy.10 November 2022 The matter is not reached at final hearing. The matter marked for priority hearing 22 March 2023. EXHIBIT LIST
The following affidavits were read by the applicant with annexures:
(1)Exhibit A: Affidavit of the Applicant dated 27 September 2022.
The following affidavits were read by the respondent:
(1)Affidavit of Respondent dated 16 June 2022 and the annexures were treated as being in evidence notionally dispensing with r8.15 pursuant to r1.31.
(2)Affidavit of Respondent sworn 19 February 2021 and the annexures were treated as being in evidence notionally dispensing with r8.15 pursuant to r1.31.
The following further evidence was tendered:
(1)Exhibit B: Applicant’s Notice of Risk dated 23 July 2020;
(2)Exhibit C: Family Report dated 22 April 2022;
(3)Exhibit D: Applicant’s Financial Statement dated 23 July 2020;
(4)Exhibit E: Balance Sheet of the parties dated 9 November 2022;
(5)Exhibit E: Report of Dr O dated 18 May 2020;
(6)Exhibit F: Respondent’s Amended Financial Statement dated 16 June 2022;
(7)Exhibit G: Child Inclusive Statement dated 7 May 2021;
(8)Exhibit H: Child Inclusive Statement;
(9)Exhibit I: Tender Bundle of the Independent Children’s Lawyer.
The Court received Case Outlines of the following:
(1)Case Outline of Applicant dated 22 March 2023 and email dated 23 March 2023
(2)Case Outline of Respondent dated 9 November 2022 and proposed minute 24 March 2023;
(3)Case Outline of Independent Children’s Lawyer dated 20 March 2023 and proposed minute 24 March 2023;
APPLICANT’S EVIDENCE
The applicant was born in the United Kingdom and came to Australia as a young child. The applicant identified B Street, Suburb D (‘Suburb D property’) as the former matrimonial home and that it has no occupants. The affidavit referred to a new partner and that the applicant is a tradesperson.
The applicant identifies commencement of dating the respondent in early 2010 and commenced cohabitation in mid-2010. The applicant identified acquisition of the Suburb D property in the name of the respondent in mid-2010 and that the parties were married in mid-2011.
The parties’ child X was born in 2011. The respondent disputed being difficult at the hospital. The applicant identified a diagnosis of ADHD in 2013 and depression in 2015. The applicant disputed the respondent’s characterisation of his issues and the parties separated under the same roof in 2016. The applicant had not spent time with the child since July 2020. The applicant said he was involved with the childcare prior to July 2020 and after the respondent returned to work. The child went to day care from about the age of 2 and alleged involvement in the care of the child and household cleaning.
The applicant said he paid for the child’s expenses, food and activities and referred to involvement in reading, nutritious food and family values. The applicant asserted the respondent was largely sedentary during the early childhood, referred to her onset of a medical condition and asserted he was the primary carer. The applicant referred to his depression in 2015 and alleged the respondent was abusive. The applicant referred to the minor incidents of family violence being reported to the police. The applicant alleged gaslighting by the respondent, that the respondent slapped the child in 2016 and referred to a tickling statement by the child in 2016 which he alleged was sexual abuse. The applicant referred to regular arguments under one roof in 2018 and referred to the schooling routines.
The applicant alleged disciplining the child in late 2019 and grabbing the child’s arm and taking her for a smack in her room where he pulled down her pants and smacked her on the bottom. An ADVO was taken out in mid-2019 and the applicant spent time in a school room on two occasions between late 2019 and mid-2020.
The applicant said that he ceased spending time with the child after an incident in mid-2020. The applicant blamed the respondent for triggering his anxiety and causing ongoing mental health issues. The applicant addressed family violence issues, disputed an assault incident, identified counter personal attacks of name calling and alleged the respondent was morbidly obese. The applicant complained about being woken up and identified an alleged threat to harm the respondent in a text message and taking out an ADVO in late 2019. The applicant referred to a Tuning in to Teens course in which he attended 3 out of 5 sessions.
The applicant referred to payment of child support, and accepted that the respondent paid the deposit and stamp duty for the Suburb D property. The applicant referred to lodging a caveat on the property and that he paid for groceries, food, activities, holidays, electricity, heating bills and contributed to rates. The applicant accepted that the respondent paid all mortgage payments. The applicant identified his personal property. The applicant referred to ongoing mental health issues being managed by a psychiatrist. The applicant’s annexures included a Y Service report of the applicant having a background of ADHD and mental illness, as well as a letter of support as to his post-traumatic stress disorder from his youth.
The applicant denied being controlling and alleged the respondent is a narcissistic person trying to control him. It was put to the applicant that he would become abusive and then apologise which he said was a lie. The applicant denied assaulting the respondent. The applicant moved into another dwelling around 2014. The incident with the child in late 2019 was explained by the applicant to involve him grabbing her hair. The applicant was asked to move out of the home by the respondent in 2016 but didn’t see that as coercive behaviour. The applicant alleged he maintained the home. The applicant alleged the evidence of the child had been coached. The applicant confirmed he never paid rent. Two incidents with the child were put to the applicant the second of which involved the applicant pushing the child. The applicant accepted that he gets triggered. The applicant referred to his occasional use of the property and doing his washing there. The applicant acknowledged outstanding child support of about $5,000. The applicant made reference to the mother being the child’s lover.
The applicant said he moved into the other dwelling to sleep to get away from the noise. The applicant agreed he went into the respondent’s bedroom after moving into the other dwelling but said it was to clean the room.
The applicant maintained that the child’s views were coached. In response to the ICL’s counsel the applicant indicated he was seeking supervised time. The applicant was taken through the proposed orders by the ICL. In that context the applicant conceded that the respondent should have sole parental responsibility and should live with the mother. The applicant accepted that the child should spend time with him in accordance with her wishes and that he understood the proposed restraints. The applicant gave evidence about his capacity to accept and forgive. The applicant identified his medications and that he was a bit absent minded.
The cross-examination on behalf of the ICL, explored the applicant’s belligerent behaviour and the content of Mr C’s report including the incident with the child. The applicant was taken to the material that suggested the applicant was attempting to use the police to facilitate his own interests in the custody matter and the absence of evidence to support his assertion of sexual abuse of the child by the mother. The applicant identified ending his new relationship because of her daughter. The applicant asserted tolerant views that conflicted with his answer as to how he would explain matters to his child.
It was put to the applicant that he feels tolerant but can’t regulate what he says. The applicant accepted that an email showed a marked level of intolerance by him. The applicant disagreed about a failure by him to engage in family therapy.
RESPONDENT’S EVIDENCE
The respondent was born in Country E and migrated to Australia in 1985 and is a health professional. The respondent identified the applicant as a very controlling person. The respondent identified becoming depressed living with the applicant and losing a second child as well as unsupportive remarks by the applicant as to that loss. The respondent said the difficulty continued throughout their relationship.
The respondent referred to an incident on the return of the applicant from City P. The respondent explained that the applicant would become abusive and then apologise. The respondent referred to the failure of the applicant to contribute to the household expenses and that she was paying the educational fees.
The respondent described her life with the applicant as one of suffering physical and verbal abuse and intolerance causing anxiety and mental breakdown. The respondent moved to her parent’s house in late 2019 upon learning of the incident to the child by the applicant in late 2019 and having two other mortgaged properties. The respondent identified that the applicant made no financial contributions to the acquisition or maintenance of the properties.
The respondent did not receive regular child support from the applicant. The respondent identified no contributions to rates since separation. The respondent identified the property pool and addressed the family report and denied coaching the child.
The respondent identified having bought the Suburb D property before living with the applicant.
The respondent was taken by the ICL through the proposed orders by the ICL. The respondent expressed concern about the child being in the care of the applicant because of his part behaviour and his abuse of the child.
The respondent said she is currently residing with her parents and brother in the one home and that she contributes $212.50 for food and internet per fortnight but does not pay rent. The respondent confirmed that the child has her own bedroom.
FAMILY REPORT
The Family Report dated 22 April 2022 involved the in-person interviewing of the mother, father and the child.
The family report writer commented that during each party’s respective interview, inconsistencies were present in each of their accounts regarding their former relationship and the reasons for its breakdown, each making florid allegations against the other.
The parties shared dissimilar views in their proposals of spending time with X during their respective interviews. The father proposed that X eventually spend overnight weekend time with him. The father demonstrated a willingness to gradually build up to this overnight weekend time by way of supervised time at a contact centre. The father further proposed equal shared parental responsibility of X with the father. Contrastingly, the mother proposed that no changes were to occur to the interim orders in place at the time, and further sought to maintain sole parental responsibility of X. The mother claimed that X does not wish to see her father however, demonstrated a willingness to facilitate a relationship between X and her father should X showcase a desire to.
The matter showcases concerns surrounding family violence, mental health and drug and alcohol abuse. The family report writer commented that the parties have not reported any recent episode of family violence in recent times, nor are there any continuing concerns about drugs and alcohol, or mental health.
During the mother’s interview, she presented that the father was affected by his alleged mental health problems, particularly being prone to mood swings and bursts of uncontrollable behaviour. The mother claims that the father holds extremist views and frequently made derogatory comments regarding the mother’s physical appearance and weight. The mother stated that she stopped contact between X and the father due to alleged physical abuse of X and her desire to not see the father again. The mother claimed that the father has not been prominent in X’s life and she does not share a close bond with the father. The mother expressed concern regarding the father’s competence to carry out the requirements of being a parent, making reference to the father’s mental health issues and extremist views. The mother commented that the father had never provided her or X with much money, placing the responsibility on the mother to provide financially for all of X’s requirements. The mother did not demonstrate a desire to engage in family therapy, holding the view that any future time that X is to spend with her father, should be left up to X.
The family report writer states that during the father’s interview, the mother was portrayed in a negative light, similar to the way in which he was portrayed during the mother’s interview. The father maintained that the mother has a volatile temper and would frequently smash things in the home during bursts of anger. The father held the mother responsible for the breakdown of the relationship referring to her family having a history of depression and harbouring homosexuality, solidifying extremist views. The father also commented on the mother’s appearance, describing her as “morbidly obese” during the interview and indicated that this was a significant issue for him during their relationship. The family report writer stated that the father denied the allegations against him, however conceded to occasionally drinking to excess in the past. However, the father claims that he has not touched alcohol for 6 years. The father admitted to disciplining X, however maintained the view that the child has become disrespectful towards him. He commented on an incident involving himself and X, deeming X’s behaviour as a “smackable offence”. The father conceded to smacking the child on the bottom however, denies that excessive force was used at the time or that harm occurred to the child. The father was reflective and claimed that he would not employ corporal punishment again. The father claimed that he played a prominent parenting role in X’s life prior to separation and claimed that currently he does not receive information about X from the mother and knows very little about her circumstances. The father expressed the view that children should have relationships with both parents following separation and expressed a desire to have contact with X. The father was reflective, acknowledging that he may need to broaden his outlook if he wanted a relationship with X to be re-established. In respect to family therapy, the father did not know a lot about the process and admitted to not taking steps to initiate it, however the father expressed willingness to rebuild his relationship with X in a safe, supervised setting. The family report writer states that the father’s comments about this seemed sincere.
The child was interviewed via telephone separately. X spoke to the report writer about her school and interests, presenting herself as happy and secure. The child described the mother’s household positively, indicating a good relationship between her and the mother. The family report writer comments that there appears to be no concerns regarding X’s supervision and parenting. The child’s comments surrounding her father were minimal, referencing a time where the child and the father had gone on a trip when she was 6 years old. The child commented that she remembered more bad than good about her father, making reference to disciplinary behaviours such as pulling her hair, smacking her bottom and calling her mother derogatory terms. X stated that she had received emails from her father but did not report any gifts. The child conceded that the mother had told her to reply if she wanted to, however X admitted that she did not wish to reply to his emails. When the family report writer asked the child what her father would be required to do in order for her to forgive him, she stated “take his […] meds”. The family report writer commented on the unusualness of this statement coming from a child of X’s age and remained silent when asked if she was told to say that. X claimed that she did not miss her father and confirmed that she did not wish to see him, however also stated that she would spend future time with him if she “had to”, as long as the time was supervised. The family report writer repeated the child’s answers back to her and she agreed for them to be passed onto the Judge.
The family report writer evaluated that the parties gave contrasting accounts of their marriage and the events that led to the breakdown of the relationship, holding the other responsible. It is evident that the father’s strong views have played a part in the family conflict. During the party’s interviews, the parties made mutual allegations regarding family violence however, individually they denied the allegations. The family report writer concluded that it is likely that both parties contributed to the hostile emotional atmosphere within the home. In respect of X’s parenting, both parties expressed little faith in each other’s competence. The family report writer states that both parties suffer from mental health issues, which they blame on each other, however the writer comments that it is possible that these mental health issues could have been present prior to the relationship. The report writer confirms that the father has in the past has been belligerent with police, due to excessive alcohol consumption bringing into question his parenting capacity. In relation to X’s views about spending time with her father, the family report writer questions the “adult” like responses from X, particularly in respect of the father’s mental health and indicates possible influence of these opinions by others. The family report writer acknowledged the father’s progress in attending multiple parenting programs and showcasing a genuine desire to reinstate a relationship with X. It is suggested that family therapy may be of some assistance in the future but is not recommended until after the commencement of supervised time. The report writer concludes stating that due to the ongoing hostility, equal shared parental responsibility is considered unfeasible.
The family report writer recommended that X is to live with the mother who will retain sole parental responsibility. Should the Court consider that X is not likely to be exposed to future risk of harm, the report writer recommended that supervised time be initiated at a registered contact centre of two hours every three weeks for a period of 6 months. A re-evaluation should occur and any increase in frequency is dependent on a development X’s positive relationship with her father and the father demonstrating appropriate parenting skills. If these occur, then unsupervised day visits may occur with the contact centre remaining the changeover venue. The report writer stated that any increases to time will be left up to X. The report writer suggested that the email communication between the father and X continue and that the mother encourage X to respond to her father’s emails. It was further recommended that the parties do not denigrate the other to the child.
In oral evidence Mr C referred to the different accounts of the relationship. The expert identified the mother’s concern as to the applicant’s extreme racist, bigoted and homophobic views. The expert referred to the applicant’s mental health issues as being longstanding and possible adverse impact of him not taking prescribed medication and not continuing psychological therapy on his mental health. The expert referred to the child’s recollection of bad times being more recent than good times with the applicant. The expert referred to the negative impact on the child if ordered to spend supervised time with the applicant particularly given the suicide ideation at the thought of seeing her father.
APPLICANT’S SUBMISSIONS
In respect of the parenting dispute, it was submitted that the mother seeks to obtain and continue to have sole parental responsibility of X. The case outline for the applicant made reference to the s 60CC considerations that the Court must take into account under the Act. In respect of the primary considerations of the Court, the applicant submitted that there would indeed be a benefit to the child having a meaningful relationship with her father, however, the mother asserted that the father has been the perpetrator of family violence in the forms of verbal, physical, emotional and financial. The father asserted however that there are serious concerns of harm to the child in the form of physical, sexual, emotional and psychological harm to the child whilst she remains’ in the mother’s care. The case outline made reference to the additional s 60CC considerations of the Court. It was noted that the child is now 12 years old, therefore is of an age where her desires and views can be given weight and considered by the Court.
The father submitted that the father was the primary caregiver of the child from the ages of 6 months old to Kindergarten. Whilst the child has a very strong and loving relationship with the mother, X has not seen her father since July 2020. Further additional considerations were referenced in the father’s submissions, specifically surrounding his involvement with X’s life. It was submitted that the father has had previous involvement regarding decisions about X’s health, education and extracurricular activities. Further, the father asserted that he has taken up all opportunities to spend face to face time with X as well as taken up all opportunities to communicate with X. There is no dispute that the father is required to pay child support.
It was submitted that the parties live in reasonable proximity to each other, hence it is reasonably practicable to make time arrangements regarding X. It was submitted that there is still concern regarding past incidents of sexual abuse by the mother to X, and that the father has acted protectively and responsibly by reporting these concerns to the police.
In respect of the property proceedings, it was submitted that the father had in fact financially contributed to the household in multiple ways. Particularly, the father had contributed to the Suburb D property through the payment of the day-to-day living expenses, inclusive of groceries, food, activities, holidays and the utility bills. It was further submitted that in the initial stages of the parties’ relationship, the father had also contributed to the council and water rates. The father also asserted that he had contributed towards X’s school fees.
In regards to non-financial contributions, it was submitted that the father was heavily involved in caring for the child and that he was X’s primary carer until she commenced Kindergarten at Q School.
RESPONDENT’S SUBMISSIONS
In respect of the parenting aspects, the respondent submitted that the Court has previously ordered for the child to live with the mother and have no physical contact with the father and sought to maintain this as a final order noting that the father remained an unacceptable risk to the child. Counsel submitted that the father continued to behave in an erratic manner and could not regulate his behaviour. Further, it was submitted that the father presents a risk of neglect to the child as he has failed to provide X with a safe environment and has not financially contributed to her life (except childcare) and his employment payslips or bank accounts have not been disclosed.
Counsel submitted that the father’s mental health issues are still relevant, with him only having attended a therapy session with a professional 7 times in the last 2 years. It was submitted that the father has a natural tendency to avoid taking, or go off, his medication prescribed for his mental health diagnoses, alongside only deciding to obtain psychological help during the proceedings. Therefore, there is not much comfort that the father’s mental health issues have been properly addressed.
It was submitted that the parties have a history of family violence and that the father has little awareness of his destructive behaviour. It was particularly referenced that the child has expressed her own fear of the father and that he has assaulted her. The child has expressed that she wishes to remain living with the mother.
In respect of the property proceedings, it was submitted that the mother had obtained property prior to her relationship with the father, particularly the Suburb D property, R Town property, and the Suburb S property. Counsel submitted that due to the raising costs of supporting a child and the lack of contribution from the father, the mother had no choice but to sell two of her properties, where the father did not reside, and the mother sold these properties at a loss. It was further submitted that many of the complaints made about the mother by the father surrounded the father’s refusal to vacate the Suburb D property and his knowledge that he has not made financial contributions to the property.
The respondent asked for sale of the Suburb D property split 30:70 in favour of the respondent, removal of the caveat, payment of outstanding child support, and a splitting of 20%.
ICL’S SUBMISSIONS
Counsel for the ICL submitted that the parties presented very different orders sought in their case outlines, with the father seeking that he have shared parental responsibility for the child and the mother seeking sole parental responsibility. The ICL submitted that sole parental responsibility is preferable to the best interests of the child and referred to the recommendations provided by the family report writer stating it was recommended that X live with the mother. The ICL noted to the Court that it was an open view of the Courts that shared parental responsibility of X was not in the best interests of the child and that the presumption of equal shared parental responsibility would be rebutted by mutual allegations of family violence.
The ICL continued their submissions by working through the primary and additional considerations under s 60CC that the Court is to take into account. The ICL pointed out that in respect of the primary considerations of the child, X has a known meaningful relationship with the mother and has not spent time with the father since July 2020, nor has aided in the development of a relationship with the father. The ICL made reference to the child’s lack of replies to her father’s emails to demonstrate to the Court that the child does not currently have a meaningful relationship with the father. It was further showcased that the parties are unwilling and incapable to maintaining a positive relationship with each other or facilitate relationships with X through their inability to engage effectively in family therapy, as required in the Orders dated 24 June 2021. In respect of the s 60CC(2)(b) factor, the ICL put great emphasis on preventing harm to X, making reference to the father’s poor mental health and previous aggressive behaviour. The ICL made reference to various incident’s involving the father that present an unacceptable risk to X, particularly the subpoenaed material from the Department of Communities and Justice, the H Organisation and T Psychology. It was submitted that the father had not been able to provide updated evidence of his current mental health status or any regular attendance of psychologist, but rather manages his own medication. The ICL submitted that the father has a history of conduct and that it was likely that X was witness to and/or exposed to said conduct. The ICL suggested to the Court that the father’s mental health is an unacceptable risk factor and cannot be mitigated by supervised time.
In respect of additional considerations that the Court is to take into account under s 60CC(3), the ICL submitted that X is currently 12 years old and therefore some weight should be given to her views. It was mentioned that X does remember some of the negative behaviour perpetrated by the father, particularly the pulling of the child’s hair, smacking of the bottom and calling the mother derogatory names. The ICL makes reference to the family report in respect of X’s wishes. It was submitted that X expressed to the family report writer that she did not want to see her father again, however she would spend time with him if she “had to” and if another adult was present. The ICL submitted that should the Court be of the view that X is unlikely to be exposed to future risk of harm with the father, there should be a period of supervised time at a contact centre. The ICL further submitted that the father has not been able to take accountability for his poor relationship with X and for the conflict with the mother. The Court could not be satisfied that the father has the ability to demonstrate sufficient capacity to parent X in a positive way that meets all her needs. The father whilst showcasing a desire to reinstate a relationship with X, has completed some modules of parenting programs, however, there is no evidence before the Court that he has successfully completed these programs nor significantly altered his former attitude or behaviour.
The Court finds that the property resources of the parties are as identified in the balance sheet and that the father continues to be employed and that the mother continues to be employed. The Court accepts that both parents have a physical and mental capacity for continued gainful employment.
The Court has taken into account that the mother is likely to have the care and control of X until she reaches the age of 18, for the next almost six years, and that, at the moment, on the evidence, she is likely to have to undertake that parenting role without the benefit of a meaningful relationship and input by the father.
The Court has taken into account that the mother has been living with her maternal family and that the mother has a mortgage commitment in relation to the property and will have an additional mortgage commitment if she decides to pay out the amount proposed to be ordered by the Court to the father and to retain the property. The Court is also alive to the possibility that the mother may decide to return to live in the property or to rent the same out. The father has nearby family and has apparently been working on restoring two vehicles and is able to support himself and has an obligation to pay child maintenance, which is currently in arrears to almost $5.000.
The Court has taken into account the responsibility of the mother to look after X under s 75(2)(e), in light of the parenting orders that have been made, and that the father is not supporting, at this stage, any other person.
In relation to s 75(2)(f), it is not apparent that either party are in receipt of a pension, allowance or benefit.
In relation to s 75(2)(g), the Court has found that the parties separated under the same roof in 2016 and the mother left the premises due to the father refusing to do so in 2020. The Court has taken into account that the father has been living in her family home since 2020 and that the child has a separate bedroom in that home. The Court has taken into account that the father will have to move out and find accommodation. The father asked for a period of one month and, although the court initially raised, consistent with the respondent’s application, a period of seven days and then 14 days, the Court has provided the period requested by the father to leave the premises in light of his also raising an injury, slightly impeding the speed with which he could move out.
The Court is satisfied that the father will be able to maintain a standard of living that is, in all the circumstances, reasonable as a result of the orders proposed to be made, and makes the same finding in relation to the mother.
Under s 75(2)(h), as identified, there is a maintenance obligation on the father and that he is currently in arrears, which the court has taken into account, in respect of that child maintenance in the sum of about $5,000, and that the father will have an ongoing obligation to contribute to make child maintenance payments.
In relation to s 75(2)(ha), the Court has taken into account that the matrimonial home is the subject of a mortgage which the mother may still be able to continue to meet even after paying out the father on the orders proposed.
In relation to s 75(2)(j), the Court has taken into account, as identified above, that the father has contributed to the property through his non-financial contributions and, over the six-year period, has contributed to the respondent mother’s ability for six years to accumulate a further $115,000 superannuation.
The Court has taken into account the duration of the marriage, which was six years, and that over that period the earning capacity of the father was diminished whilst being a primary carer. The Court has taken into account under s 75(2)(l) the need for the mother to continue her role as the primary carer for X without engagement and participation by the father, except to the extent of X’s wishes that are of the moment not reflective of the father engaging in any parenting role beyond the limited scope provided in these orders, wanting to be kept abreast of her schooling and medical reports or assessment.
In relation to s 75(2)(m), the Court finds that the mother, in residing with her family, makes a weekly contribution in the sum of about $200. The Court finds that the mother has no lease, as such, and that the child and the mother are otherwise permitted to remain in the family home with the child being in a separate bedroom. The Court finds the father has been occupying the matrimonial home and will have to move out and find other accommodation, possibly with his family.
In relation to s 75(2)(n), the Court has taken into account the proposed orders to be made under s 79 in relation to the property of the parties, as identified in the above balance sheet. In a percentage outcome before adjustment, the father should receive 35 per cent of the net existing property as just and equitable. Allowing for the Kennon principle that impaired and made more difficult the respondent’s contribution, the Court finds that the appropriate percentage is 30 per cent of the net property pool and that such an adjustment is just and equitable. As to super splitting orders of the $115,044 made during the six years of the acquired by the mother as superannuation during the six years of the matrimonial relationship the court has applied an adjustment of 30 per cent. The Court has taken into account in that adjustment the ongoing care of X for at least the next six years by the mother. This has resulted in the father obtaining an order reflecting 30 per cent of the net existing property pool and 30 per cent of the superannuation earned by the mother over the six-year period in a splitting order which the Court is satisfied is appropriate and just and equitable.
The Court has taken into account child support that the father is required to pay and the outstanding child support at the moment. The Court has also taken into account under s 75(2)(o) the father’s continued occupation of the matrimonial home owned by the mother from 2016, after being requested to leave, being controlling and coercive conduct, and that he remained in the premises after the respondent vacated with X in 2020 until this hearing and will have the benefit of the same until moving out within 28 days from the date of the orders.
The Court declined to make orders in relation to the outstanding water rates and council rates and declined to make orders in relation to notional rent, in circumstances where the Court is of the review that the respondent mother could have taken other steps to have the father removed from the premises, but must take into account the benefit the father has received for occupying those premises since 2016, in circumstances where he should have moved out and was not paying rent, rates or contributing to the mortgage.
The Court has also taken into account that the extent of the contribution by the father to the matrimonial relationship with the mother was materially impaired by his child abuse and family violence. There is no financial agreement binding on the parties under s 75(2)(p), and there is no agreement applicable under Part VIIIAB under 75(2)(q).
There is no other order relevant under s 75(4)(f). The Court has taken into account the orders made by the Court in relation to parenting under section 75(2)(f), and the Court has taken into account the ongoing obligation of the father to make child support payments under s 79(4)(g).
The Court is of the view that the father’s contribution in all the circumstances is, as identified, one reflective of being entitled to 35 per cent of the net property, subject to adjustment for the future, with mother’s obligations to look after the child and the other factors to which the Court has referred, warranting a further adjustment in favour of the mother, to the effect that the court is satisfied that it is just and equitable to make an order that the father receive the equivalent of 30 per cent of the existing property, being the amount of at least $123,200, and that the father receive 30 per cent of the superannuation earnt by the mother in the six years of the matrimonial relationship, amounting to $34,513.
It is for these reasons that the Court made the parenting and property orders pronounced on 24 March 2023. The Court notes that the Court was satisfied this was an appropriate case in which to pronounce the orders and to reserve the written reasons and was satisfied that it was in the best interests of the child to so order in the circumstances of this case. The Court identified, in relation to the parenting, in particular, hopes for a new leaf by the father and the child engaging with the father, and that the father observed at the conclusion of the hearing that the orders were, in his view, fair. The Court is firmly of the view that the pronouncing of the orders in this case promptly without further delay would be most likely to prevent any ongoing distress, psychological harm or emotional harm to X and also to the parties and was most likely to prevent further proceedings.
I certify that the preceding one hundred and seventy (170) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 23 June 2023
0
11
0