ERNEST & NEWER

FAMILY COURT OF AUSTRALIA

ERNEST & NEWER

[2011] FamCA 116

FAMILY LAW - PARENTING - property settlement under Part VIIIAB of the Act - departure from administrative assessment of child support

Child Support (Assessment) Act 1989 (Cth)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Gyselman and Gyselman (1992) FLC 92-279
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Omacini and Omacini (2005) FLC 93-218
Townsend and Townsend (1995) FLC 92-569

APPLICANT:

Ms Ernest

RESPONDENT:

Mr Newer

FILE NUMBER:

MLC

1004

2010

DATE DELIVERED:

1 March 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

7 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Crofts

SOLICITOR FOR THE APPLICANT:

Aitken Partners

THE RESPONDENT:

In person

Orders

That the mother and the father have equal shared parental responsibility for the child S born … April 2000.
That for the purposes of s 65DAC of the Family Law Act 1975 (Cth) (“the Act”), the requirement that the parties consult with one another about major long-term decisions concerning S be in writing and, after a genuine effort has been made to resolve such major long-term decisions, if there is no agreement between the parties, the mother have the responsibility for making the necessary decision.
That S live with the mother.
That S spend time with the father for up to two hours per fortnight or such other time as can be arranged by a contact centre at the expense of the father and this order last for a period of 12 months from the commencement of the first supervised contact period.
That forthwith, the father and the mother sign all such documents and do all things necessary to arrange for the time between the father and S referred to in these orders to be commenced as soon as the contact centre can arrange it.
That at any time during the 12 month period referred to, if the father:
(a) fails to satisfy the contact centre that he has a reasonable excuse for failing to attend on a fixed visit; or
(b) fails to pay the requisite attendance fees of the contact centre,
the time pursuant to these orders is suspended until further order.
That the father have liberty to apply by application supported by affidavit to reinstate any time so suspended by virtue of the matters set out in these orders.
That there be no specific contact time fixed after the completion of the period of supervision and failing agreement between the parties as to ongoing time, a fresh application supported by affidavit may be filed without the necessity of the father filing a certificate pursuant to s 60I of the Act.
That the mother have liberty during the 12 month period of the supervised contact referred to in these orders to seek to discharge, vary or suspend the father’s time in the event that she has affidavit material provided by the psychologist treating S confirming that S is not coping with the supervised time.
That to the extent that it is practicable to do so, any further application be listed before the Honourable Justice Cronin.
That a copy of this order and the reasons delivered this day be served by the mother upon Dr G.
That by 1 May 2011, the mother pay to the father $14,000.
That upon the payment being made by the mother as required by paragraph 12, the father transfer to the mother at the expense of the mother, all of his interest in the real property at G.
That contemporaneously with the transfer referred to in paragraph 13, the mother indemnify the father in respect of and pay, all liabilities arising out of the mortgage to the National Australia Bank encumbering the property at G.
That in the event that the mother fails to make the payment referred to in paragraph 12 by the date referred to, the mother and the father do all things required to forthwith sell the property at G upon terms and conditions to be agreed and upon the sale, the proceeds be applied as follows:
(a)to pay any costs, commissions and expenses of the sale;
(b)to discharge the mortgage to the National Australia Bank encumbering the property at G;
(c)to pay the father the amount required pursuant to paragraph 12 together with interest calculated from the date the payment is due in paragraph 12 until the payment thereof; and
(d)to pay the balance to the mother.
That the father sign all necessary documents to transfer to the mother any shareholding he may have in S Pty Ltd.
That the mother indemnify the father in respect of and pay, any liability arising out of the activities of S Pty Ltd.
To the extent that any loan accounts exist in favour of the husband in S Pty Ltd, he forgive and forego such entitlement but to the extent that the father by way of loan account owes S Pty Ltd any money, the mother forthwith sign any necessary document required to indemnify the father in respect of such liability and pay to S Pty Ltd on behalf of the father such debt.
That the father retain and the mother forego, any interest in any other property including superannuation in the possession of the father.
That the mother retain and the father forego any interest in any other property including superannuation in her possession.
By way of departure from the child support assessments for the periods:
(a)18 May 2010 – 17 December 2010;
(b)18 May 2010 - 17 December 2010 (the second assessment);
(c)18 December 2010 – 31 December 2010;
(d)1 January 2011 – 30 June 2011;
(e)1 July 2011 – 28 July 2011; and
(f)29 July 2011 – 31 March 2012,
and for the purposes of s 118(1)(g) of the Child Support (Assessment) Act 1989(Cth), the adjusted taxable income of the father, Mr Ernest is fixed at $41,600 for the period 1 October 2010 to 31 March 2012.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Save as to issues of costs between the parties, all other outstanding applications for final orders are dismissed.
That should any party desire to make any application for costs arising out of these orders, such application shall be by way of written submission filed and served appropriately endorsed that service has in fact incurred on all other parties by 4.00pm on 11 March 2011 and any reply thereto shall be filed and served and appropriately endorsed as to service by no later than 4.00pm on 22 March 2011 and any such determination shall be made by me in chambers.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1004 of 2010

Ms Ernest

Applicant

And

Mr Newer

Respondent

REASONS FOR JUDGMENT

This is a dispute between Mr Newer (“the father”) and Ms Ernest (“the mother”) concerning their daughter S who was born in April 2000. The dispute involves the division of modest property, parenting orders and a disagreement about child support for S.
The father is 53 years of age earning $41,600 per annum gross. His financial statement showed that he was also receiving Centrelink benefits but I have presumed that that is a temporary arrangement.
The mother is 45 years of age. She earns approximately $80,000 per annum.
The parties began living together in about December 1998 and apart from a few months in 2006, lived together until their final separation in December 2009.
The separation in December 2009 gave rise to the jurisdiction under Part VIII AB of the Family Law Act 1975 (Cth) (“the Act”) to determine property issues arising out of the de facto relationship. It was not disputed that the parties were in a de facto relationship and that it occurred in Victoria. It was also not disputed by the parties that the jurisdiction was established on the basis that there is one child of the parties’ relationship.
S is the only child. She was born in April 2000 and is therefore 10 years of age.
There were two other children of the parties’ household. They are children of the mother from a previous relationship. They are now 15 and 18 years respectively. The father led no evidence about his relationship with those children nor, for the purposes of Part VIII AB, any evidence about his contributions towards them. On that issue, the mother did lead some evidence.
The father was unrepresented in the hearing. He presented no evidence addressing any of the relevant issues that had to be determined. The case was before me in November 2010 as a first day of hearing. At that time, all of the issues in dispute were canvassed and directions were made for the filing of material. The father did not address those seriously. On 19 January 2011, he filed documents which he asked the Court to accept as the material upon which he relied.
It was the father who issued the proceedings on 4 February 2010. Those documents were prepared for him at a time when he had legal representation. The orders sought related to S. On 5 March 2010, the mother filed a response. She too was represented by a lawyer and only sought orders concerning the issue about S.
On 4 June 2010, the mother filed an amended application to include orders relating to the division of property. The father did not file an amending application.
At the hearing in November 2010, because the father indicated he was not going to be represented by a lawyer, I ordered that the mother become the applicant. I further ordered that she file an amended application which she did on 7 January 2011 seeking parenting, property and child support departure orders. It was to those documents that the father filed his amended response on 19 January 2011.
In his handwritten amended response filed 19 January 2010, the father sought that the family home be sold and divided “the fairest way”. He then sought “regular access” to S and furniture “of interest” to himself. This Court often sees material filed by litigants without legal representation which is disjointed and imprecise. Despite the inconvenience to other parties to those proceedings, other litigants whose cases are delayed and the straining of resources of the Court as a result of trying to work out what the litigant is pursuing, the Court does the best it can. However, it is not the function of the Court to give legal advice nor to assist parties in the preparation of their case. It is important that the Court ensure that there is a level playing field and a fair trial but litigants must understand that they cannot simply dump material on the Court and expect the Court to turn the proceedings into a wide-ranging inquiry to get to the bottom of the problem. There are services available within the legal community for people to obtain assistance about the processes of the Court. The father in this case seemed to ignore that.
The father’s evidence was similarly brief. He acknowledged the existence of the affidavit material of the mother and her witnesses and described it as “not entirley (sic)”. Presumably by way of commentary on that evidence, he said that having regard to the fact that he was grieving by not being allowed to spend time with his daughter, it was not surprising that he was not happy. In respect of two of the mother’s witnesses he said that they had previously given him a “glowing report” but had now chosen to “rubbish” him. Having read those two affidavits and heard the witnesses cross-examined at the request of the father, I can well understand why they did not stand by their previous references.
The affidavit material then went on to say that all he wanted to do was to spend quality time with S whom he knew loved him. He then turned his attention to financial issues and said that he had obtained details of recent sales of property and copies of car valuations. In respect of the property valuation, what the father was endeavouring to do was challenge Mr M the real property valuer engaged by the mother. As the father had filed his affidavit with its accompanying internet-drawn sales documents on 19 January 2010, the information was provided by the mother to her valuer. In a second affidavit, Mr M acknowledged having considered those sales but stood by his earlier valuation. The father required Mr M for cross-examination and put to him what he perceived as inconsistencies and errors in Mr M’s evidence. Mr M satisfied me that he had the requisite expertise and had undertaken the necessary tasks to form the views that he had.
The father’s evidence therefore was lacking in both parenting and financial issues.
The mother sought orders that S live with her and any contact be determined by her only after consultation with S and any health care professional as well as giving effect (as far as possible) to S’s wishes.
The material upon which the mother relied was a series of affidavits by herself, her mother, her father and her aunt along with some professional witnesses to whose evidence I shall turn.
In the parenting issues, the mother’s evidence was largely unchallenged by the father.
The mother said very little about the nature of the relationship between the father and S. She maintained there were arguments and that many times during the relationship the father threatened her if she left him making her feel pity for him. Things did not change although they were fine for a while. She said that as the children meaning S and her own two children grew older, the father tormented them with his overbearing rules, his punishment for disobedience of his rules and his criticisms that the children were never good enough. She gave examples of that.
In a limited way, the father challenged the mother’s evidence putting to her and each of her successive witnesses, that he was a loving father, not a violent man and in any event, she had undermined his authority many times. This question enabled the mother to be more expansive than the material in her affidavit. She denied the assertions of the father saying that he had been violent to her by punching her, pushing her and on one occasion, pulling a towel tightly around her neck. What she then added which was not further challenged by the father, was that the police had been called on more than one occasion. The mother referred to “unacceptable punishments” such as threatening one of her other children with a stick.
The maternal grandfather provided an affidavit and the father required him for cross-examination. He said that he had had a high opinion of the father’s parenting skills once but that had “deteriorated”. He made clear that he did not want to have any further involvement with the father particularly as a result of his involvement in a supervisory role with S.
On 15 April 2010, the parties consented to orders that S’s time with the father occur under limited circumstances but particularly at various football matches. The father endeavoured to say in cross-examining witnesses that he had had a very close relationship with S and together, they had attended football matches on a regular basis. He referred to taking S and the mother’s other children surfing, walking and playing. The grandparents did not dispute any of that but said it had become historical. Having regard to the fact that I accept the mother’s evidence as set out above concerning the father’s deteriorating behaviour towards the children, the previous parenting history about S became largely irrelevant.
On 15 April 2010, the parties consented to orders that included the father’s time occurring in the presence of members of the mother’s family who were to be in substantial attendance. The carefully crafted wording of the order avoids the expression “supervised contact”. However, there can be no other inference drawn than that the father’s time was to be under scrutiny by adults with whom S was familiar. The father consented to that arrangement and there must have been a reason for that to occur.
The evidence of the maternal grandparents on that issue was illuminating. They said S was apprehensive staying close to her grandmother and she spent little time communicating with her father but even, mostly about the football. An unseemly scene occurred where the father who was abusive towards the footballers, was swearing and arguing. This was not simply bravado or football larrikinism. The only inference I can draw was that the father’s behaviour was consistent with that which the mother described within their relationship.
The time at the football was to have been one of closeness between father and S but it was not. Towards the end of the last visit which occurred in August 2010, the father made clear to the grandparents his disagreement with the necessity for their presence notwithstanding his earlier consent to the orders. That dissent descended into unpleasantness when the father abused the grandmother pointing his finger at her accusing her of taking sides with her daughter. The grandfather described the father’s behaviour as “ranting” and the father did not challenge that evidence. Regardless of precisely what happened, all of it was witnessed by S whom the grandmother described as quite affected and fearful. It is therefore not surprising that S has an uncertain relationship with her father.
The mother said that she had encouraged S to have a relationship with the father. Whilst being cross-examined, the mother was asked whether S disliked the father. Her response was that S loved him but just did not like him. Contradictory though that may seem, I find that S is apprehensive about the father’s behaviour which gives her little confidence in spending time with him.
The mother said that she thought that by going to a contact centre, some form of relationship could be continued and developed and she would be able to get S to go there. To her credit, the mother had made inquiries of the contact centre at Gordoncare even to the extent of how the costs could be reduced by moving from one centre to another within the various geographical areas. One might ask why there would still be a need for some form of supervision or security for S having regard to her age. The unchallenged evidence of the mother makes that position clear.
Accepting as I do, the mother’s general assertion about the deteriorating nature of the relationship when the parties were together, it is of note that there was an altercation in December 2009 at which the police attended. An intervention order was then granted by the a Magistrates Court. Despite that, further instances occurred at the home and the police were called again. On 17 March 2010, the intervention order application was listed for final hearing on a contested basis but the father consented to it. It is of significant importance that the persons to be protected by the intervention order included S.
To compound the problem, the police charged the father with an assault on the mother’s son and for breaching the intervention order. The evidence which was not disputed by the father was that he pleaded guilty to the assault and the breach of the interim intervention order and was placed on a bond and ordered to undertake community service.
In April 2010 when the parties attended upon psychologist Mr L, a report was prepared. Although there was no affidavit before me by Mr L, I was encouraged by all parties to read the report and include it in my deliberations. No suggestion was made that Mr L needed to be called despite the fact that the report was the best part of a year old. Mr L has extensive experience as a psychologist.

The factual basis for the report by Mr L was not disputed. He described the father as a candid and direct man who acknowledged having gone wrong with the mother’s children but that he wanted to “re-establish” his relationship with S. He had blamed the mother for preventing that. It is of some note that I take that statement by Mr L as an acknowledgement by the father that the relationship with S was damaged around April 2010 and that it needed to be re-established.
Mr L described the father’s view of the events involving the mother’s other children as minimising them. Mr L criticised the father as being the adult who should have taken responsibility in what escalated into unacceptably violent conflict. Mr L suggested that the father needed professional help about how he could work with adolescents particularly as S grew older. Whilst that was a general statement at the time, it now has significance. The evidence of the grandparents indicates that at the football, the father’s capacity to communicate with S was limited. S was responsive to questions but there was little interaction about her activities.
Mr L reported that the mother was a frank and purposive woman whose intention was on the best interests of S. He accepted her belief that S should have a good relationship with the father but it needed to be in circumstances where the child was safe.
Mr L interviewed S and concluded that the child’s wishes were clear, voluntary and considered. He said that given her age and relative maturity, he saw little value and even the prospect of some harm, if those views did not shape the arrangements for S’s care at that particular time. Almost a year later, I find little has changed.
Mr L recommended that there be visits of a limited nature and in the presence of an adult but that subject to the views of a therapist, the monitoring by the adult should lapse over time.
Mr L recommended that S have therapy with a psychologist whose name was known to the parties at that time. Therapy did continue for a while but the psychologist retired. S was then referred to Dr G. Dr G gave evidence by telephone. He said that he had seen S over a period of four months and he found her to be a delightful girl who had a pleasant demeanour, keen sense of humour and normal mood. Significantly, he said that S expressed considerable anxiety and various fears in relation to the possibility of contact with her father. That is not really surprising having regard to the fact that this therapy occurred after the last incident at the football match which would have undoubtedly frightened S considerably. According to Dr G, S felt pressured by others to have contact with her father against her will and had a mixed view about the occasional supervised contact.
Dr G reported S indicating recurrent nightmares about her father appearing unexpectedly and/or being threatening and causing her distress.
Dr G was cross-examined by the father about whether S had been influenced by the mother. He categorically rejected that.
Dr G said that he was worried about putting the onus on S to create, promote and continue a relationship with her father. That was an issue reflected in the grandmother’s evidence. She and Dr G both though that S was fearful of her father. I was very impressed with the grandmother. She was watchful and protective of S. I do not consider she took any step to hinder S’s relationship with the father. Despite some reservations about Dr G’s view and also that of the grandmother, I accept the mother’s evidence that there are benefits for S in having a controlled environment to endeavour to have a relationship between father and daughter commence and be fostered. At the moment however, I have very little information as to how that will work and to that extent, in the event that the relationship is unsuccessful and the contact centre supervisors are uncomfortable about it, a further application should be made to discharge or vary the orders.
Section 60B of the Act sets out the objects and principles which guide the determination of what is the best interests of a child. The objects are:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
For S, some of those objects are not currently being met.
The principles underlying the objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Based on the evidence of the two professionals and in particular, the grandparents, which evidence I accept, there is little prospect of S being:
(a)cared for by the father in any meaningful way; or
(b)spending time with the father without some security being put in place as a result of S’s fears about her father.
There is little prospect that the parents could jointly share not only the physical care of S but also the decisions about her future. There is no obvious avenue of discussion between them.
Each parent has parental responsibility for S (s 61C(1)) but that is subject to change if a court alters it (s 61C(3) and s 61D(1)).
The mother in her application for orders but not in her outline of case, sought final orders for equal shared parental responsibility. The father did not seek orders in relation to that issue, leaving it to the Court to determine.
Section 61DA provides that when making a parenting order, the court must apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. That presumption:
(a)is rebutted if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence; or
(b)may be rebutted if the court is satisfied on the evidence that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
Abuse is defined to mean an assault which is an offence under a law or where a person involves the child in sexual activity with that person or another person (s 4(1)).
I found that the father was involved in family violence but there is also a family violence order involving S to which the father consented.
Family violence is defined in the Act (s 4) and it means conduct that causes a person to reasonably fear for or be reasonably apprehensive about, their wellbeing or safety. I am satisfied both the mother and S have an apprehension about at least, their wellbeing.
I find on the evidence that the presumption in s 61DA is rebutted. That does not mean however that there should not be an order for equal shared parental responsibility. Indeed, the mother initially sought it. I am satisfied the father wants to be involved in S’s life.
Section 65DAC provides:
This section applies if, under a parenting order:
(1)(a) 2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
With an intervention order in place between the parties, joint decision-making which requires consultation and the making of a genuine effort to come to a joint decision about S could only be done in this case in writing or in the presence of someone in authority. I am satisfied that it should be done but only in writing. To the extent that a joint decision cannot be made thereafter, the mother should make the decision because she will have the greater daily care and responsibility for S.
I turn then to what parenting orders should be made.
Section 60CA provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) provides:
Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
The reference to subsections (2) and (3) is a mandatory checklist of considerations that guide the decision maker but so too do the objects and principles I mentioned above. There are certainly overlaps.
The primary considerations are set out in s 60CC(2). They are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
On the findings I have made, S is in need of protection from psychological harm by being subjected to and exposed to, the aggressive and frightening behaviour of her father.
It is also important that S has the benefit however of having a meaningful relationship with both parents. No satisfactory relationship currently exists with her father. I am uncertain of what type of relationship can be developed by the father under supervision in a contact centre but I see no alternate.
Long term supervision is unlikely to be helpful or successful unless the father understands that he needs to develop a role in S’s life which is attractive to her. It must be also worthwhile and advantageous to S. As I said in Tait and Densmore (2007) FamCA 1383 at 170:
Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be part of a family albeit in two households where they can have a feeling of being wanted and appreciated.
According to the mother, S loves her father but dislikes him. He needs to learn about self-discipline and the fulfilment of his responsibilities to teach S about things that will guide her relationships with other people and make her feel wanted. That is clearly not happening at the moment.
I accept that a contact centre is inhibiting and restrictive but the priority must be S’s security and welfare. I propose that the contact centre order be for 12 months. If at the end of that time, the relationship has not become sound and S is not confident with the father, I doubt continuing the contact centre arrangement would be in her best interests. I am also conscious of the shortage of contact centre resources. I will therefore only make an order for 12 months and fix no time thereafter. If no agreement is reached, the father will have to seek judicial intervention and if practicable, the matter can return to me.
Despite my pessimism, spending time with S under limiting conditions will still enable her to enjoy a relationship with her father. How meaningful that will be is a matter for the father.
Insofar as there is an ideological clash between s 60CC(2)(a) and (b), I have no hesitation in saying that (b) must prevail.
Section 60CC(3) sets out additional but still mandatory considerations. In the paragraphs that follow, I shall set out my considerations.
S’s views have been set out by Mr L and Dr G. Each of those professionals indicates that I should give her views serious weight. I propose to do that.
Despite the assertion by the father of a significant involvement in S’s life, I accept the evidence of the mother that his role in the past was limited. His role subsequent to separation and more particularly in the latter part of 2010 was virtually non-existent. Whilst the father may blame others and even the court system for the fading of that relationship, his own behaviour is what has given rise to S’s concerns.
Section 60CC(3)(c) requires the Court to look at the willingness and ability of the parents to enable and effect the relationship between S and the other parent. There is no evidence upon which I could rely to find that the father has done anything to promote S’s relationship with her mother. The conversation between S and her father at the football as reported by the maternal grandmother, indicates that the father treats the mother’s role with scepticism. He certainly indicated to Dr L that he blamed the mother for the demise of his relationship. I reject any suggestion that the blame lies anywhere but on his own shoulders.
Section 60CC(3)(d) looks at the change for the future in changing the current circumstances of S. She has had little time with her father and going to a contact centre may give rise to the nightmares and apprehension referred to in the evidence. However, Dr G indicated that he could work with the orders of the Court to encourage S to attend and I am satisfied the mother is a positive influence in that regard. The difficulty will arise if the father does not have an approach of a positive nature enabling discussions to take place which will be attractive to S. Dr G indicated that he could assist in that regard as far as S was concerned and accordingly, I propose that he have a copy of my reasons.
Apart from the obvious difficulties of starting up the relationship in a contact centre and the consequent delays in its commencement, there are few practical difficulties in beginning to implement a process to create a relationship between father and daughter.
Section 60CC(3)(f) requires the Court to examine the capacity of the parents to meet the needs of their children. The findings I have set out above indicate that the father needs to develop an understanding of the needs of his daughter. I have no concerns about the relationship between mother and child.
In a similar vein, s 60CC(3)(i) considers the attitude of the parents towards parental responsibility. The objects and principles give very clear indications of what the community seeks for its children. Those matters shed light on whether a parent is acting responsibly. My findings above indicate the concerns I have.
I have already dealt with family violence and family violence orders in my remarks. There is little point in repeating those matters.
In the circumstances, final orders must be made.
Sections 60CC(4) and (4A) require the Court to look at how the parents have involved themselves and the other parent in the activities of their child. I am satisfied that the father’s evidence of attending late, engaging in aggressive behaviour towards other adults present, being abusive to people at the football in the presence of S, refusing to be positive about the Fathers Day present that S took with her to the football and being critical of the fact that his time with S was being inhibited, are all indications that his focus was more on his needs than on those of his daughter.
For those reasons, I propose to make orders for contact centre supervision for 12 months which requires the parties to fill out all necessary forms and do all steps required to ensure that the contact occurs. I have already mentioned that the father has been less than positive about the supervised time that he has had and I expressed concern in the hearing about whether S should be taken on each appointed day to a contact centre if her father does not attend. Accordingly, I have little confidence that the father will attend, sign all necessary documents and pay all requisite fees as and when they fall due. Accordingly, I propose to put an order in place that if he fails to attend without satisfactory explanation, the time at the contact centre will be suspended. The father will no doubt be told that the breach of any contract with the contact centre may involve them terminating the relationship but I propose to put the mother in the position where she does not have to take S without it being clear that the father will be present. The father will then have to make an application for the orders to be reinstated.
There was also discussion in the hearing about who should pay for the contact centre expenses. Having regard to the fact that the mother has the obligations to care for S on an ongoing basis and will have to drive to and from the contact centre, I see no reason why the father should not make a contribution to that specific cause.
In addition to the parenting matters, the mother sought orders under Part VIII AB of the Act that:
(a)the father transfer to her his interest in the property at G subject to the existing mortgage;
(b)that the father transfer to the mother his interest in S Pty Ltd;
(c)the father transfer to the mother any loan account he may have in S Pty Ltd; and
(d)each party keep the assets or interests in their respective possessions.
The father did not set out what precisely he wanted by way of division other than the “furniture of interest” to him be provided. He did not specify what that meant. No evidence was led in relation to specific chattels. He also sought orders in relation to the sale of the home and a fair division of it.
Section 90SM of the Act, after requiring the satisfaction of the matters set out in s 90SB, gives power to the Court to make such order as it considers appropriate altering the interests of the parties to the relationship.
Section 90SM(3) provides that the Court must not make an order under the section unless it is satisfied that in all of the circumstances, it is just and equitable to do so.
In considering what order (if any) should be made, the Court under s 90SM(4) must take into account the various contributions made by the parties. Those contributions relate to the acquisition, conservation or improvement of any of the property of the parties, the contribution made by a party to the welfare of the family including any contribution made in the capacity of homemaker and parent, the effect of any proposed order upon the earning capacity of either party, any child support under any assessment and also, the matters set out in s 90SF(3) so far as they are relevant.
The evidence of the mother was unchallenged but the father requested that she attend for cross-examination. He did not ask her any questions in relation to the evidence that she had given. Each of the determinations I am about to make is a finding of fact. The determinations are made on the standard of proof set out in s 140 of the Evidence Act 1995 (Cth). That is, on the balance of probabilities.

At the time the parties commenced their relationship, both were in employment with the mother earning more than the father. The father had a modest amount of equity in a property at B, a motor vehicle and some superannuation. The mother had received a modest amount of money from the settlement of her former marriage which in time went towards the purchase of a motor vehicle now in the possession of the father. Mathematically, there is a clear distinction between the amounts brought into the relationship by each party but in the overall financial circumstances of the relationship, it makes little difference because of the subsequent events.
The parties commenced living in the property at B. The mother paid for all food and household expenses and undertook the majority of the housework. By the same token, she had the two children from her former marriage living in that same property.
The mother continued to work up until shortly prior to the birth of S in April 2000 and then returned to work not long after.
The father negotiated an early retirement package from his employer and received approximately $15,000 upon which tax had to be then paid. Any contribution that might have been claimed by the father arising out of the money received from the retirement benefit has to be offset by the fact that he did not work for some time thereafter and the financial provider within the household was the mother. Against that, I take into account that she had her two children living there as well. Contributions in those circumstances also take into account non-financial roles and it was the mother’s unchallenged evidence which I accept, that she still undertook the majority of the domestic responsibilities notwithstanding that the father was not working.
In her evidence, the mother said that the father gambled. No quantification of any economic loss was set out in her material and I do not intend to undertake any mathematical calculation to try and assess what money might have otherwise been within the household. More importantly however, it was the mother’s evidence that there were a number of times where she had to undertake extra parenting roles whilst being in employment because the father had gone gambling at the TAB. The father used considerable sums of money later in buying Tattslotto tickets and as late as 2006, the mother found cash hidden by the father which he had taken from business takings. In a rather bizarre incident, she banked those funds and he reported her to the police for having stolen his money. None of this evidence was challenged by the father. In respect of his nefarious activities associated with gambling and taking money, I think it is fair to conclude that the mother’s contribution towards the finances of the household resulted in her greater contribution in part because of the father’s activities.
The mother’s role as a homemaker and parent far outweighed that of the father. He undertook some chores but she could not rely on him. I accept the evidence of the mother about that.
In addition to managing the household, the mother was responsible for the payment of accounts.
In 2001, the parties purchased a business with borrowed funds secured against the property at B. This business required hands-on involvement of both parties but there were periods of time where the father “disappeared” leaving the mother to cope with not only the business but the household with the children.
The business was ultimately sold successfully which in turn led to the purchase of another business which was conducted under a franchise. The father was the “face of the business” and in February 2008, he was accused and charged by the police with offences associated with assaulting a young female employee at one of the premises to which he delivered franchised goods. That in turn led to the franchisor suspending the franchise. That placed the mother in a position where she was required to be the primary financial supporter of the household. She rather than he, undertook legal action against the franchisor and also the defence of the father in respect of the police action. She was successful about the franchise. The franchise was conducted under the company name of S Pty Ltd. The father resigned as a director and the mother was responsible for the various activities of that corporate entity as well.
After a protracted battle, the mother received $128,426 which was banked in the corporate account. Her unchallenged evidence was approximately $49,000 was used to pay bills and she detailed them in her affidavit. The father withdrew $75,035 from the account and according to the mother, in an earlier affidavit which he filed, justified that action by asserting that she had improperly used $60,000 of other business funds. Having regard to the detailed disclosure of the mother, it is hard to see how there could be any foundation for the father’s assertion particularly as he did not cross-examine her. Further, despite having been given the perfect opportunity to explain what he did with the funds he took, no such explanation was forthcoming. His acknowledgement in the affidavit he filed of having taken the funds is something that I cannot ignore. In his financial statement filed 19 January 2011 (incorrectly shown as 2010) he referred to bank accounts with the NAB and ANZ but showed no balances.
I propose to treat those missing funds as a premature distribution to the father. I am satisfied that there is no similar premature distribution in the hands of the mother. Having said that, to her credit, the mother indicated that there was a significant payment made to her lawyers which she conceded had to be added back to the pool in the sum of $49,000.
Subsequent to separation, the care of S has fallen almost entirely to the mother both physically and financially. Whilst there may have been a financial disparity between the parties as to earning capacity, I take into account that the mother had two other children for whom she had financial responsibility. As late as November 2010, the father was evasive in court as to details of his employer and his earnings and I have relied on his financial statement to conclude that he has had employment for at least three months during which time, he was also receiving Centrelink benefits and his contribution towards the support of S was nominal.
The mother’s evidence also clearly showed that the property at B had been rented out and the rental funds collected by the father. That property being in his name alone, he could have adequately explained where the rental monies were spent but he failed to do so. Having regard to the size of those sums and the probability that he was not working, I propose to take into account the fact that he did have an income and was using much of it to live on. That being so, he should have been paying more than nominal support for S.
In Townsend and Townsend (1995) FLC 92-569 the Full Court observed that where a party distributed to themselves an asset in which the other had a legitimate interest, it would be unjust in the extreme to simply treat that conduct as a matter to be taken into account. The Full Court said that the correct way to deal with those monies was to bring them back into the pool on a notional basis and make the distribution accordingly. That is particularly so in a case where the recipient of the funds has had an opportunity to explain what happened to those monies and has failed to do so.
That concept has to be contrasted with the views set out by the Full Court in Omacini and Omacini (2005) FLC 93-218 where the Full Court described three categories where it was appropriate to notionally add back money to the pool in circumstances where assets no longer existed. In this case, I have no idea whether the money still existed because the father did not provide any necessary evidence. In any event, the three categories are:
(a)where parties have expended monies on legal fees;
(b)where there has been a premature distribution of assets; and
(c)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the value of the assets.
The mother in this case has conceded her legal fees should be added back. The father’s position of simply ignoring any explanation must mean that I am entitled to conclude that he still has access to those funds. I again refer to his statement of financial circumstances in which he left the figures blank.
Accordingly, it is appropriate and fair to the mother in this case to add back the funds.
The appropriate approach to determine this matter is the process set out by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 at 78,386 where the Full Court said:
Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
The first controversial step in this case is to determine what is in the pool for division between the parties. I have already dealt with the two add-backs and shall include them.
The next issue relates to the value of the property at G. The father’s evidence, discerned from his financial statement, was that the property was worth between $700,000 and $740,000. Clearly he was working within a range and that is not of much assistance to me in terms of determining what to add into the pool. He disputed the experts’ view that the property was valued at $670,000.
I am satisfied on the evidence of Mr M which was challenged under cross-examination by the father, that he had considered all of the relevant issues and as such, there is no reason why I should not accept his value of $670,000. That property is encumbered by a mortgage of $415,000.
The mother asserted that the car in the possession of the father was worth $10,000 and he claimed it was worth $8000. I propose to take the figure of $8000 on the basis that it is an admission against interest.
The mother also had a car which was not valued and although the father disputed the figure, there was no evidence upon which I could rely to know exactly what that vehicle was worth. I am however satisfied on the evidence of the mother, there is no equity in the vehicle.
The sale of the property at B which was necessitated by court orders in 2010 has activated a liability for capital gains tax. The father was generally non-committal about whether that debt existed but I was provided with affidavit material by the valuer and accountant for the purposes of that calculation and I see no reason to dispute that there is an existing liability of approximately $9000.
Leaving aside superannuation, I find there is an equity which can be seen from the following pool of assets:
Property at G  $670,000
Less mortgage  415,000  $255,000
Father’s car  8,000
Sub-total  $263,000
Mother’s legal fees  49,000
Father’s money taken  75,000
Sub-total  387,000
Less:
Accounting expenses  1,600
Capital gains tax  9,200
Debt to solicitor  4,000
Sub-total  $14,800
Equity  $372,200
I have included the accounting and solicitors’ debts as liabilities of the parties on the basis that they arise out of the efforts of the wife concerning the franchise loss.
It should also be noted that I have rounded the figures up or down for my convenience sake.
In addition to the assets above, each party has superannuation. Despite the urgings of the mother, I propose to put them in a separate pool although counsel for the mother indicated that she was not seeking that there be any division between the parties of those entitlements and that they should be left where they currently lie. There is superannuation in the mother’s hands of $54,500 and in the father’s hands of $57,900.
In respect of the superannuation funds, I find that the father did have some superannuation more than the mother when the relationship commenced but I am otherwise unable to say how those funds were derived. In terms of the respective contributions of the parties, I am unable to find anything other than that the parties otherwise contributed equally.
Before making any adjustments for the matters set out in s 90SF(3), I turn to the assessment of contributions being the second step referred to in Hickey albeit that it was a decision relating to a marriage. There is little distinction between the provisions of s 90SM and s 79.
Having regard to all of the matters to which I have referred, there is a clear justification in this case for making a finding that the mother’s contributions outweigh those of the fathers to the extent of two-thirds in her favour and one-third in his favour.
Section 90SF(3) requires the Court to take into account a series of factors as they affect each party. I am satisfied that each of the parties has the physical and emotional capacity for gainful employment. The mother is in a position to earn more than the father because of her qualifications but she then has commitments to her children other than S. They are children to whom she has a duty of maintenance.
The mother will also have a greater role in the care of S than will the father. I take into account that she will have more property as a result of the orders that I make but I am not entirely clear, as a result of the father’s lack of evidence, as to what his financial position is. I have taken into account all of the other matters in s 90SF to the extent that the evidence permits me to do so. In this case, the most significant factor which favours the mother relates to child support. Section 90SF requires the Court to consider any assessment and I take into account that I am also requested to make an order departing from the existing assessment having regard to the father’s current income position. Accordingly, he will be paying some child support.
It is not the percentage division which must be just and equitable but the underlying value of it. In modest pools of assets, variations in percentages have a significant impact and as such, it is important to look at the underlying value of the various percentages. Having regard to the capital disparity between the parties by virtue of the assessment for contribution, whilst it may appear that the mother is getting double of what the father is getting, the disparity in dollar terms having regard to her contribution and the responsibilities that she now has, is not all that significant. She will have the responsibility for the liabilities which have been factored into the equation. In my view, there is justification for a modest adjustment in favour of the mother particularly having regard to the lack of evidence by the father as to his future economic circumstances. I propose to make that 7.4 per cent which makes the total entitlement of the mother 74 per cent.
Seventy four per cent of the pool of $372,200 or thereabouts is $275,400. That would mean that the father is receiving what he has retained of the money taken, his motor vehicle but the mother must give him a further sum of $14,000.
I take into account also that there is a disparity between the parties in terms of their superannuation entitlements. I have assessed the contributions as predominantly equal in respect of those interests and I see no reason to make any further adjustment between the parties having regard to the fact that they are almost equal. This is not a mathematical exercise in strict form.
I propose to make no further adjustment for the factors set out in s 90SF(3).
I am satisfied in the circumstances that those calculations lead to orders which are just and equitable.
I canvassed with counsel for the mother her capacity to borrow funds or access them and it was indicated that she could obtain some funds by way of assistance. I propose to give her a reasonable period of time to obtain those funds failing which, the house will have to be sold.
The third and final part of the proceedings related to child support. The mother sought orders that there be a departure from the administrative assessment of child support and specifically that there be the payment of a lump sum of $20,000. I am satisfied that the Registrar in Child Support was given notice of the application.
The assessments that are relevant are from 18 May 2010 to 17 December 2010, from 18 December 2010 to 31 December 2010, 1 January 2011 to 30 June 2011, 1 July 2011 to 28 July 2011, 29 July 2011 to 31 March 2012.
I propose to deal with those discrete periods as one period but for the assessment to commence from 1 October 2010 where on the father’s own evidence, he was in employment.
Child support in Australia is governed by the Child Support (Assessment) Act 1989 (Cth) and the regulations made thereunder. That legislation sets out clear objects. The Act provides that it is the duty of parents to maintain their children and that duty has priority over all commitments of the parent other than those necessary to support themselves (s 3).
The principle object of the legislation is to ensure the children receive a proper level of financial support from their parents and that that objective is to be met by a determination based upon the parental capacity to provide financial support (s 4(2)(a)).
For the purposes of this hearing, it is important to note that the level of financial support to be provided by both parents is to be determined according to the costs of the child (s 4(2)(b)).
It is also the intention of the legislation that children share in changes in the standard of living of both of their parents. In other words, as parents become more affluent, their children should share in that lifestyle but there will clearly be occasions where it has the opposite effect.
The administrative assessment is determined by a formula which is affected by the ages of the children, the costs of their maintenance and the income of the parents. When a court is considering departing from the administrative assessment, it is obliged to ensure that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents but also that the parents share equitably in the support of their children (s 114). That determination moves away from the assessment based purely on income but it also requires a fairness test to be applied. The equitable determination must be guided by the financial position of both parents in the various forms set out in s 114.
To depart from the assessment however, there have to be special circumstances (s 117(1)(a)).
The special circumstance in this case is that the father’s income reflected in the respective assessments is not just and equitable as regards the child S nor the mother.
I am satisfied therefore that there is a ground for departure.
In Gyselman and Gyselman (1992) FLC 92-279, the Full Court examined the departure provisions and pointed to the fact that it was a three step process. I am satisfied that there is a ground for departure namely the inadequacy of the assessment having regard to the father’s income. On the evidence, an adjustment is fair and equitable to all parties and in the circumstances it is proper because there is no revenue impact.

The assessments reflect the mother’s income accurately. The assessments show the father as having $10,000 for the first period, $19,618 for the second period, $11,471 for the third period, $11,471 for the fourth period, $46,547 for the fifth period and $46,547 for the sixth period. The latter two periods are provisional according to the Agency. Having regard to the evidence, there should not be any provisional nature about the assessment assuming that the father continues his employment at the rate that he deposes in his financial statement. To avoid further litigation between the parties, and to protect the integrity of the formula, I propose to fix the income for the purposes of the formula for the father for the period from 1 October 2010 to 31 March 2012 at $41,600. I propose to direct the Registrar accordingly.
It is important to say that the mother sought a lump sum payment of $20,000 from the father. The evidence does not justify a payment of a lump sum in this case. It is important for S to share in the income, financial resources, property and earning capacity of both of her parents. In my view, the adjusted taxable income of the father fixed at $41,600 for the discrete period from 1 October 2010 until the last current assessment is exhausted in March 2012 achieves that aim.

I certify that the preceding One Hundred and Thirty Seven (137) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 March 2011.

Associate:

Date: 1 March 2011

[2011] FamCA 116

1 March 2011

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