Fahri & Kocak
[2021] FamCA 563
•5 August 2021
FAMILY COURT OF AUSTRALIA
Fahri & Kocak [2021] FamCA 563
File number(s): MLC 5924 of 2018 Judgment of: MCGUIRE J Date of judgment: 5 August 2021 Catchwords: FAMILY LAW – PROPERTY – Application by husband to set aside certain final property Orders pursuant to s 79A of the Family Law Act 1975 (Cth) – Leave granted to proceed on an undefended basis - Application granted
FAMILY LAW – PARENTING – Application by husband to proceed with parenting proceedings on an undefended basis in the absence of the wife – Application granted - Wife given liberty to apply
Legislation: Family Law Act 1975 (Cth) ss 79A; 60B and 60CC Cases cited: McCall v Clark (2009) FLC 93-405
Molier & Van Wyk (1980) FLC 90-911
Number of paragraphs: 89 Date of hearing: 22 July 2021 Place: Hobart Counsel for the Applicant: Mr Sweeney Solicitor for the Applicant: Mills, Oakley Lawyers Counsel for the Respondent: The Respondent did not appear Counsel for the Independent Children's Lawyer: Ms Sdraulig Solicitor for the Independent Children's Lawyer: Victorian Legal Aid Commission ORDERS
MLC 5924 of 2018 BETWEEN: MR FAHRI
Applicant
AND:
AND:
MS KOCAK
Respondent
LEGAL AID COMMISSION OF VICTORIA
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
5 AUGUST 2021
THE COURT ORDERS THAT:
1.That the matter proceed to hearing undefended in the absence of the Respondent.
CHILDREN
2.All previous parenting orders be discharged including Orders 1 to 4 inclusive of the Orders of 31 July 2019 restraining the child X born … 2012 (“X”) from leaving the Commonwealth of Australia.
3.The Applicant have sole parental responsibility for the child X.
4.The child X shall live with the Applicant father Mr Fahri (‘the Applicant’).
5.The child X shall spend time with the Respondent mother Ms Kocak (‘the Respondent’) as agreed between the parties in writing, and failing agreement, as follows:
(a)Each Sunday from 11:00 am until 3:00 pm; and
(b)From 5:00 pm to 7:00 pm on either a Tuesday or a Wednesday, subject to the availability of a supervisor.
(c)Time be supervised by a professional supervising service agreed between the parties in writing at the sole expense of the Respondent (including any reports prepared by the service)
6.The Respondent shall be at liberty to communicate with the child X by telephone, FaceTime or similar mode, twice per week (on days when the Respondent is not spending supervised time with X) between 5:30 pm to 6:30 pm, and the Father shall facilitate such call.
7.Each parent shall advise the other parent within 48 hours of any change to their respective telephone numbers (including landline and mobile), residential and email addresses.
8.The Applicant shall keep the Respondent advised by email to the Respondent’s nominated email address of decisions taken by the Applicant in relation to the long-term welfare of the child X including, but not limited to, education and medical or psychological treatment.
9.In the event that the child X suffers any serious illness or injury or requires urgent medical treatment, the Applicant shall provide to the Respondent at her nominated email address, information as to the treatment, and the Applicant shall authorise such provider to communicate with the Respondent about the health and welfare of the child X.
10.In the event the child X is enrolled in a school other than DD School, the Applicant shall to notify the Respondent of the details of the school including contact details as soon as practicable.
11.The Applicant shall authorise the child X’s school to provide to the Respondent all notices, reports, and letters and like documents relating to the child X’s schooling ordinarily disseminated to parents to be provided at the Respondent’s expense (if applicable).
Restraining Orders
12.The Respondent by herself and/or her servants and/or agents be and is hereby restrained from:
(a)Discussing any sexual abuse with the child X or discussing any sexual abuse in the presence of, or within the hearing of, the child X;
(b)Alleging, suggesting, identifying or implying that the Applicant is a perpetrator of sexual abuse and/or family violence to all and any third parties including the child X;
(c)Denigrating the Applicant or the Applicant’s family members and friends or permitting another to do so in the presence of, or within the hearing of the child X;
(d)Discussing these proceedings or the contents of any documents filed in this Court or any other Court, with, or in the presence of, or within the hearing of, the child X, and from permitting any other person to do so.
(e)Making any further notifications to the Department of Health and Human Services (Child Protection), the Department of Education and Training or bringing any intervention order proceedings that includes the child X as an affected family member without first seeking leave of the presiding Magistrate in the relevant Magistrates’ Court.
(f)For the purposes of paragraph 12(e) herein a copy of these orders be sent by the Melbourne Registry of the Family Court of Australia to the Senior Family Violence Registrar of the Magistrates’ Court of Victoria with a request that these orders be placed upon their files and brought to the attention of the Presiding Magistrate.
(g)Taking the child to EE Centre and/or any other mental health practitioner without the prior written consent of the Applicant.
Passport
13.The Applicant be authorised to execute all documents necessary to obtain and maintain a passport for the child X born … 2012 notwithstanding the consent of the Respondent is not provided AND IT IS REQUESTED that the Department of Foreign Affairs and Trade issue a passport for the child X.
14.The child X’s passport is to be held by the Applicant.
Travel
15.The Applicant is permitted to travel with the child X outside the Commonwealth of Australia provided that the Applicant advises the Respondent in writing of the following information no later than 30 days prior to such travel occurring:
(a)the date of departure and return of the child X; and
(b)details of accommodation and the address/es at which the child X will reside and contact details of the Applicant during the period of the proposed travel.
16.The Respondent be granted liberty to apply to vary these Orders within 14 days of the date of these orders upon her:-
(a) filing an Application in a Case; and
(b)an affidavit in support explaining:-
(i)her failure to comply with the Orders of Hartnett J made on 23 March 2021;
(ii)her failure to respond to the Applicant’s Application returnable on 22 July 2021; and
(iii) her failure to attend Court on 22 July 2021.
17.That the trial listed on 13 October 2021 be vacated.
18.That all extant parenting applications be dismissed.
19.That pursuant to s 62B of the Family Law Act1975 (Cth) information about counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
20.That pursuant to section 65DA(2) of the Family Law Act1975 (Cth) the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the 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.
PROPERTY MACHINERY ORDERS
21.That in order to give effect to the Final Property Orders of this Court made on 27 February 2020 (‘the Final Orders’) and to discharge all obligations of the parties under Orders 1,1A, 2, 2A, 3 and 4 of the Final Orders including the obligation of the Applicant to make payment to the Respondent under Order 1A (iii) (a) and (b) of the Final Orders:
(a)within 21 days of this Order the Applicant pay, or cause to be paid, to the Respondent, the sum of $385,000 (“the Payment”) and to deliver up the property in good and tenantable repair.
(b)within 21 days of this Order the Applicant pay, or cause to be paid, to the Respondent the sum of $1,799 being the amount due for the service of the Motor Vehicle 1 retained by the Respondent.
(c)the Respondent shall, contemporaneously with the receipt of the Payment by the Applicant:
(i)permanently vacate the real property at FF Street, Suburb GG (“the Suburb GG property”) and is to deliver to the Applicant or his nominee all keys (and any copies of keys) and any remote controls of the Suburb GG property;
(ii)the Respondent is to cause the withdrawal, at her expense, of all and any caveats lodged by her or her legal representatives (past or present) on any titles to real property owned by the Applicant’s entities and trusts including the Suburb GG property; and
(iii)the Respondent shall transfer and/or vest all her right, title and interest in the Suburb GG property to the Applicant absolutely.
22.That the Applicant cause a sealed copy of these Orders to be served on the Respondent as soon as practicable and then file documents evidencing service with this Court.
23.A copy of these Reasons for these Orders be taken out and placed on the Court file.
24.Pursuant to rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fahri & Kocak has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J
The husband Mr Fahri is the applicant in an Application in a Case filed 30 June 2021. It was supported by an affidavit sworn 30 June 2021.
The substantive applications in respect of the parties’ one child, X, born in 2012 are currently listed for trial commencing 31 October 2021. However, the Applicant now asks that his application proceed undefended on the basis of non-compliance by the Respondent wife Ms Kocak (‘the Respondent’) with procedural, interim and interlocutory orders.
The Applicant also asks for machinery orders in respect of final property settlement orders made by consent on 25 February 2020. Those orders provided inter alia for the sale of the former matrimonial home at Suburb GG in Victoria. He now asks to retain the property where he says the Respondent is not prejudiced by reason of the extant orders providing a set payment to the Respondent regardless of the sale price of the property. His unchallenged affidavit deposes to the parties having reached an informal agreement accordingly.
The Respondent has most recently been self-represented. I am satisfied, however, that she has been served with the application now before me and the supporting affidavit.[1]
[1] Rule 7.02 Family Law Rules 2004 (Cth).
I accept that the Respondent has been served by email. I accept that a solicitor who previously acted for the Respondent has, since service of these documents, corresponded with Victoria Police on behalf of the Respondent and included the Applicant’s affidavit filed in support of this Application in that correspondence.
I have been provided with a copy of that correspondence by the Independent Children’s Lawyer.
Consequently, and whilst the formalities of service may not have been adhered to strictly, I am comfortably satisfied that the Respondent has received and been appraised of the material in the documents.
The Respondent has filed no Response. She has not appeared at the hearing of this Application in a Case. In those circumstances I am prepared to proceed to hear the matter undefend in respect of both parenting and property matters.
Parenting
The Applicant seeks the following orders in respect of their one child X born in 2012:
(1)All previous parenting orders be discharged including orders 1 to 4 inclusive of the Orders of 31 July 2019 restraining the child X born in 2012 (‘X) from leaving the Commonwealth of Australia.
(2)The Father have sole parental responsibility for the child X.
(3)The child live with the Father.
(4)The child spend time with the Mother as agreed between the parties in writing, and failing agreement, as follows:
(a)Each Sunday from 11:00 am until 3:00 pm; and
(b) From 5:00 pm to 7:00 pm on either a Tuesday or a Wednesday, subject to the availability of a supervisor.
(c)Time be supervised by a professional supervising service agreed between the parties in writing at the sole expense of the Mother (including any reports prepared by the service)
(d)Time to occur at a public venue, or in a public place, as nominated by the supervisor.
(5)The Mother be at liberty to communicate with the child by telephone, Facetime or similar mode, twice per week (on days when the Mother is not spending supervised time with the child) between 5:30 pm to 6:30 pm, and the Father shall facilitate such call.
(6)Each party shall advise the within 48 hours of any change to their respective telephone numbers (including landline and mobile), residential and email addresses.
(7)The Father shall keep the Mother advised by email to the Mother’s nominated email address of decisions taken by the Father in relation to the long-term welfare of the child including but not limited to education and medical or psychological treatment.
(8)In the event that the child suffers any serious illness or injury or requires urgent medical treatment, the father shall provide to the mother at her nominated email address, information as to the treatment, and treatment and the Father shall authorise such provider to communicate with the mother the health and welfare of the child.
(9)In the event the child is enrolled in a school other than DD School, the Father shall to notify the Mother of the details of the school including contact details as soon as practicable.
(10)The Father shall authorise the child’s school to provide to the Mother all notices, reports, and letters and like documents relating to the child’s schooling ordinarily disseminated to parents to be provided at the Mother’s expense (if applicable).
Restraining Orders
(11)The Mother by herself and/or her servants and/or agents be and is hereby restrained from:
(a)Discussing any sexual abuse with the child or discussing any sexual abuse in the presence of, or within the hearing of, the child;
(b)Alleging, suggesting, identifying or implying that the Father is a perpetrator of sexual abuse and/or family violence to all and any third parties including the child;
(c)Denigrating the Father or the Father’s family members and friends or permitting another to do so in the presence of, or within the hearing of the child;
(d)Discussing these proceedings or the contents of any documents filed in this Court or any other Court, with, or in the presence of, or within the hearing of, the child, and from permitting any other person to do so.
(e)Making any further notifications to the Department of Health and Human Services (Child Protection), the Department of Education and Training or bringing any intervention order proceedings that includes the child as an affected family member without first seeking leave of the presiding Magistrate in the relevant Magistrates’ Court.
(f)For the purposes of paragraph 12(e) herein a copy of these orders be sent by the Melbourne Registry of the Family Court of Australia to the Senior Family Violence Registrar of the Magistrates’ Court of Victoria with a request that these orders be placed upon their files and brought to the attention of the Presiding Magistrate.
(g)Taking the child to the EE Centre and/or any other mental health practitioner without the prior written consent of the Father and the Independent Children’s Lawyer.
Passport
(12)The Father be authorised to execute all documents necessary to obtain and maintain a passport for the child X born in 2012 notwithstanding the consent of the Mother is not provided AND IT IS REQUESTED that the Department of Foreign Affairs and Trade issue a passport for the child.
(13)The child’s passport is to be held by the Father.
Travel
(14)The Father is permitted to travel with the child outside the Commonwealth of Australia provided that the Father advises the Mother in writing of the following information no later than 30 days prior to such travel occurring:
(a)The date of departure and return of the child; and
(b)Details of accommodation and the address/es at which the child will reside and contact details of the Father during the period of the proposed travel.
(15)That the trial listed on 13 October 2021 be vacated.
(16)The Mother be granted liberty to apply to vary these orders within 14 days of the date of these orders upon her;
(a)filing an Application in a Case; and
(b)an Affidavit in support explaining
(i)her failure to comply with the orders of Hartnett J. made on 23 March 2021 and
(ii)her failure to respond to the Husband’s Application returnable this day and
(iii)her failure to attend this day.
(17)That all extant parenting applications be dismissed.
(18)Pursuant to section 62B of the Family Law Act1975 (Cth) information about counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
(19)Pursuant to section 65DA(2) of the Family Law Act1975 (Cth) the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the 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.
The background
The Applicant is 55 years old. He is self-employed. The Respondent is 44 years of age. Her current employment status is not known.
The parties cohabited from 2006, married in 2009, and separated under the one roof on 17 December 2015 with the Applicant moving out of the property in December 2016. A divorce order was made in the Federal Circuit Court of Australia on 1 October 2020.
X is the only child of the marriage. He currently attends DD School and is in grade 3.
The Applicant has an older child, from a previous relationship, being a daughter, Ms HH, who is now 21 years old.
Interim orders made 27 February 2020 provide that X live with the Applicant and that X spend professionally supervised time with the Respondent twice per week.
The Applicant deposes that X has not spent time with the Respondent since August 2020.
The Applicant deposes, and the Court file confirms, that the Respondent has a diagnosis of Personality Disorder with Narcissistic tendencies. On 2 March 2020 and again on 5 May 2020 the Independent Children’s Lawyer nominated the Respondent to attend upon a psychologist pursuant to court orders.
The evidence is that the Respondent has not complied.
I am asked to read an affidavit of Ms K, Psychologist, affirmed 12 January 2020 annexing a psychological assessment/evaluation of the Respondent dated 26 December 2019. That affidavit and assessment are read into evidence.
Proceedings between these parties have been on foot for some three years. The Applicant asserts that the Respondent made false and unsubstantiated allegations against him including of rape, family violence and sexual abuse of X.
The Respondent previously unilaterally terminated X’s time with the Applicant causing there to be supervised time between X and the Applicant. The allegations were not substantiated.
A Family Report was prepared by Ms G.
Interim orders were made on 31 July 2019 providing for X to live with the Applicant and the Respondent to undertake further psychological assessment as nominated by the Independent Children’s Lawyer.
In her psychological assessment of 26 December 2019 Ms K, psychologist, confirmed that the Respondent continued to suffer from a Personality Disorder with Narcissistic Features and opined that she presented as a risk of harm to X.
The Respondent alleged unprofessional conduct on the part of Ms K resulting in an order for a further psychological assessment by another practitioner, an order with which the Respondent has not complied.
Previous affidavit material filed by the Respondent suggests that she does not acknowledge that she suffers the personality disorder diagnosed by Ms K.
The Respondent filed a further Application in a Case filed 6 May 2020 in the COVID-19 List seeking orders that X live with her and spend limited supervised time with the Applicant due to allegations of family violence. She also sought an order that the Independent Children’s Lawyer be discharged due to bias and incompetence.
On 10 August 2020 her Honour Justice McMillan dismissed the Respondent’s Application and acceded to the Applicant’s Application that the Respondent’s then legal representative be permanently restrained from acting for her.
The background facts to that Application do not need to be detailed in these Reasons, suffice to say that the legal representative has continued some involvement at times claiming amicus curiae status.
In August 2020 the professional supervisors of the Respondent’s time with X ceased their services due to unpaid fees by the Respondent.
X has not seen his mother, the Respondent, since August 2020, although telephone time between them continues on Tuesday and Thursdays.
Trial directions were made on 23 March 2021 with a trial date of 13 October 2021. The Respondent was ordered to comply with orders of 27 February 2020 including that she undergo psychological assessment nominated by the Independent Children’s Lawyer. This has not occurred. The Respondent has not filed any trial material and has filed no material in these proceedings since May 2020 and hence the Application to proceed undefended.
The Respondent has not filed a Notice of Address for Service and no legal practitioners have put themselves on the record as acting for her. I will therefore order formal service of my orders herein on the Respondent.
X suffers a diagnosis of a rare immune disorder. He has undergone bone marrow transplant and continues to receive specialist attention. The material before me suggests some improvement in X’s condition.
Relevant Law
The orders that I am asked to make are parenting orders and, as such, I am to have X’s best interests as my paramount consideration. In determining those bests interests I am to reference the probative evidence before me, which of course is only the evidence given and adduced by the Applicant, together with the parties’ proposals where again I only have the proposals of the Applicant, to the mandatory considerations set out in s 60CC(2) and (3) of the Act against the background of the objects and principles of the legislation set out in s 60B which provides as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these 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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 61DA of the Act offers a presumption that parents have equal shared parental responsibility for their children. Such is commonly defined as the rights and obligations that parents normally exercise in matters for their children usually manifested as long term and importance decisions such as issues of education, medical procedures, religion and the like.
The presumption at s 61DA does not apply if the Court is satisfied there has been abuse of a child or family violence. Alternatively, the presumption may be rebutted by evidence satisfying the Court that it would not be in the child’s bests interests for the parents to exercise equal shared parental responsibility.
The section 60CC Factors
Section 60CC(2)(a) the benefit to the child X of having a meaningful relationship with both of his parents;
The Respondent has not had any direct relationship with X since August 2020 other than by telephone contact. At just eight years of age, it is reasonable to suspect that the attachments and bonds previously established for X with his mother are now challenged. To the contrary, the evidence persuades me that X’s source of support and dependency and hence his attachment is now very much with his father.
Whilst it is the objective of this Court prima facie to make orders which cause children’s meaningful relationships with both their parents to be maintained and flourished, this is not a determinative consideration.[2]
[2] Champness v Hanson (2009) FLC 93-407.
The task for the Court here is to consider more than simply the allocation of time for a child between parents, but to make orders which are ultimately of benefit to the child in a qualitative sense moving forward.[3]
[3] McCall v Clark [2009] FamCAFC 92; Mazorski & Albright (2007) 37 Fam LR 518 per Brown J, and G & C [2006] FamCA 994 per Bennett J.
The Respondent, for her own reasons, and unfortunately perhaps due to her diagnosed mental health conditions, does not currently actively pursue a direct relationship with X through these Court proceedings.
Section 60CC(2)(b) the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Historically the Respondent has made serious allegations against the Applicant including sexual abuse of X and family violence. These allegations have been unsubstantiated to the extent that orders have been made placing X into the care of the Applicant.
The authorities and common sense suggest that the making of such allegations without grounds is itself abusive. Again, the Court is concerned that the Respondent’s diagnosis of various mental health conditions therefore be addressed.
Section 60CC(3)(a) any views expressed by X and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to X’s views;
X is just eight years of age and likely to have been confused, if not traumatised, by his movement between his parents since their separation. On the evidence before me he is perhaps not of an age where he can properly and fully rationalise his own preferences and views in respect of his best interests. All of the evidence before me, however, satisfies me that X is comfortable in the care of the Applicant.
Section 60CC(3)(b) the nature of the relationship of X with:
(i)each of his parents; and
(ii)other persons (including any grandparent or other relative of X);
As mentioned above, the nature of X’s relationship with the Applicant is that his father is virtually his sole parent. There has been no direct relationship for X with the Respondent, his mother, for near one year which is a considerable time in the life of an eight year old.
The relationship between the Respondent and X is limited to two telephone calls per week. The Applicant has therefore assumed the role of primary carer and it is reasonable to assume that X looks to his father for support and that a relationship of dependency has developed.
Section 60CC(3)(c) the extent to which each of X's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to X; and
(ii)to spend time with X; and
(iii)to communicate with X; and
Section 60CC(3)(a) the extent to which each of X’s parents has fulfilled, or failed to fulfil the parents obligation to maintain X;
The material on the Court file suggests that the Respondent has, for reasons best known to her, chosen not to participate in these proceedings and hence effectively severed her relationship with X.
To the contrary, the Applicant has taken on the full responsibility for the care and support of X.
The Applicant deposes that X has a close relationship with his 21 year old daughter from a previous relationship, Ms HH.
Section 60CC(3)(d) the likely effect of any changes in X's circumstances, including the likely effect on X of any separation from:
(i) either of his parents; or
(ii) any other child, or other person (including any grandparent or other relative of X’s), with whom he has been living;
X has now lived with the Applicant for some considerable time. His relationship with his mother, the Respondent, has been severed since August 2020 in a direct sense so far other than some telephone communications.
The evidence satisfies me that X is now assimilated into the Applicant’s household and comfortably so.
Section 60CC(3)(e) the practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis;
This consideration is not relevant where the Respondent has not participated in these proceedings for some time. The orders sought by the Applicant are, however, altruistic in attempting to maintain a relationship for X with the Respondent.
Section 60CC(3)(f) the capacity of:
(i) each of X's parents; and
(ii) any other person (including any grandparent or other relative of X);
to provide for the needs of X, including emotional and intellectual needs;
The material before me satisfies me that the Applicant is skilled, competent and committed to the care of X. Importantly, his capacity is not impeached by reason of the Respondent no longer participating in these proceedings.
To the contrary, I have real concerns as to the capacity of the Respondent to attend to X’s needs and her insight into those needs. She seems to have voluntarily severed her direct relationship with X.
Ms K, the psychologist, observed the Respondent as presenting with ‘elevated post-traumatic stress and heightened anxiety’ and meeting the criteria for a diagnosis of Personality Disorder with Narcissistic Features.
The evidence suggests that the Respondent has not acknowledged or addressed the diagnosis.
As such, given the Respondent’s previous propensity for making serious, but unsubstantiated allegations against the Applicant, the Court maintains real concerns as to the Respondent’s capacity as a care giver for this eight year old boy.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of X's parents, and any other characteristics of X that the court thinks are relevant;
Save and except that X is just eight years of age, this factor is not otherwise relevant.
Section 60CC(3)(h) if X is an Aboriginal child or a Torres Strait Islander child:
(i) X’s right to enjoy his Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to X, and to the responsibilities of parenthood, demonstrated by each of X's parents;
Given the Respondent’s lack of participation in these proceedings, I maintain concerns as to the Respondent’s attitude generally in respect of the responsibilities of parenting of X. She has voluntarily discontinued direct contact. To the contrary, the Applicant has accepted full responsibility for the care and support of X.
Section 60CC(3)(j) any family violence involving X or a member of X’s family;
These issues have been dealt with elsewhere in the Reasons.
Section 60CC(3)(k) any family violence order that applies to X or a member of X's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
These issues have been dealt with elsewhere in the Reasons.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation X;
The orders that I am asked to make are, of course, prefaced on the fact that the Respondent has not addressed her diagnosis of various mental health conditions. If she were to do so and present appropriate independent and expert evidence to the Court, then this would constitute an important change of circumstance to allow further consideration of X’s parenting arrangements.
Findings and conclusions
The Respondent has not actively participated in these proceeding since 2020. As such, and where she has not complied with procedural orders and important interlocutory orders in respect of psychological assessments, I am prepared to hear this matter undefended in the absence of the Respondent.
The evidence satisfies me that X has an established, comfortable and flourishing relationship with his father, the Applicant, who has now assumed the role of sole carer for some considerable time.
I maintain concerns as to the Respondent’s unaddressed mental health issues and hence her capacity and insight into this eight year old child’s needs.
The evidence satisfies me that the Applicant has taken full responsibility for the care and support of X and has done so with considerable skill and dedication.
In circumstances where the Respondent chooses not to participate in these proceeding which are, of course, of important impact for X, and given her unaddressed mental health issues together with a propensity to make serious, but unsubstantiated allegations against the Applicant, I am of the view that the presumption of equal shared parental responsibility is rebutted and that the Applicant should have sole parental responsibility in respect of X.
The orders that the Applicant asks me to make maintain the status quo in respect of telephone communications between X and the Respondent. Importantly, however, he also proposes an order, subject to agreement, that X spend weekly time with the mother on Sundays and Tuesday/Wednesday, with such time to be supervised. This convinces me that the Applicant prosecutes this application without mala fides. It is objective and altruistic in respect of X’s potential relationship with his mother whilst maintaining a proper protective perspective.
The Applicant also seeks a suite of restraint orders together with an order in respect of obtaining a passport for X and an order giving him permission to travel overseas with X and without the consent of the Respondent.
Firstly, given the reasons set out above, I am of the view that the restraint orders sought are entirely appropriate. I am satisfied that the mother has made spurious, but serious allegations against the Applicant including sexual abuse. The Applicant’s orders contemplate the Respondent spending some face-to-face time with X and it would be entirely contrary to the X’s best interests for the Respondent to discuss any aspect of these proceedings with him. Consequently, I will make the restraint orders sought by the Applicant.
Secondly, where I intend to make an order that the Applicant have sole parental responsibility for X and where the Respondent has been obstructive and, on the evidence, dishonest in respect of her allegations, it is appropriate and in X’s best interests that the Applicant be able to obtain a passport for the child. He proposes giving adequate notice to Respondent of any intention to travel overseas which would serve then to protect the Respondent’s rights should she be so inclined to come back to this Court prior to the travel occurring. Consequently, I will make the orders sought by the Applicant in respect of travel.
Property
I am satisfied as to service on the Respondent in the sense that she has received the material, is aware of the listing date, and the nature of the orders sought.
The Application in itself purports to seek orders under s 79A(1)(b) of the Act in respect of final property orders made pursuant to s 79 and made by consent on 27 February 2020.
However, when the matter came before me for hearing, counsel for the Applicant, properly in my view, proposed to argue for orders pursuant to the power of the Court to make ‘consequential’ or ‘machinery’ orders and where the power of the Court to proceed here under s 79A is dubious. Again, however, the Respondent is not prejudiced in this respect given the uncontroversial background facts and the machinery orders sought.
The parties cohabited from 2006 and married on 19 December 2009. They separated under the one roof on 17 December 2015 with the Applicant moving from the former matrimonial home at FF Street, Suburb GG Victoria in December 2016. A divorce order was made in the Federal Circuit Court of Australia on 1 October 2020.
On 27 February 2020 final property orders were made by consent providing inter alia that the former matrimonial home at FF Street, Suburb GG (‘the Suburb GG property’) was to be sold and that the Respondent was to receive a set amount of $385,000 from the proceeds of sale, calculated as $325,000 as an adjustment of property and $60,000 ascribed as capitalised spousal maintenance. Without intrusive investigations by me I can be satisfied that such orders, being made by consent, satisfied the “just and equitable” requirements.
The terms of the consent orders have not been put into effect as the Suburb GG property has not been sold and hence the Respondent has not received her benefit from the proceeds of sale.
On 1 July 2020 the Respondent filed an Enforcement Application, but subsequently filed a Notice of Discontinuance in respect of that Application on 8 December 2020.
The Applicant relies on this Application and his affidavit sworn 30 June 2021. At [60] he deposes:
In February 2021, [the Respondent] and I agreed to vary the Final Property Orders primarily in relation to the Suburb GG property which I now intend to retain and live in with X. The proposed variation did not change the payment to [‘the Respondent’] of $385,000.
Whilst I am satisfied as to service of this Application on the Respondent, she has not filed a Response. She did not appear at the hearing. As such, I accept the evidence of the Applicant as unchallenged.
The practical effect of the orders sought by the Respondent does not in any way impact or compromise the entitlement of the Respondent under the s 79 consent orders of 27 February 2020. Those orders contemplated the sale of the Suburb GG property and hence the vacating of the property by the Respondent. Those same orders gave the Respondent a set amount of monetary entitlement. The Applicant now seeks to retain the property for himself and the child, but without any loss or negative impact for the Respondent. In all other respects, the consent orders of 27 February 2020 remain in full force and effect. The entitlements of the Respondent remain in the same precise monetary quantum.
The Applicant deposes that he can make the requisite payment to the Respondent effective forthwith upon the making of these orders and her vacating of the property.
The consent property orders required the Applicant to pay to the Respondent a maximum of $2,000 on the next service of the Motor Vehicle retained by the Respondent.
The Applicant deposes, again unchallenged, to a subsequent agreement between the parties that the tax invoice from that motor vehicle service in the quantum of $1,799 be paid to the Respondent at the same time as the cash adjustment of $385,000. I will order accordingly.
Whist I maintain some doubt as to the applicability of s 79A to this matter, I take the view that the Court has the power to enforce or modify the machinery provisions of orders[4] so as to effectively provide the execution or enforcement of rights and entitlements under the orders for an alteration of property interests pursuant to s 79.
[4] Molier & Van Wyk (1980) FLC 90-911 at p 75,768 and Ravasini & Ravasini [1983] FLC 91-312 at p 78,128.
Importantly, I emphasise the following in this matter:
(1)That the Respondent has not actively opposed the making of the orders sought;
(2)The Applicant does not seek to decrease, change or impact on the entitlements of the Respondent pursuant to the s 79 orders.
There will be orders in the terms of the Application.
I will make the property orders sought by the Applicant as follows:
(1)That in order to give effect to the Final Property Orders of this Court made on 27 February 2020 ("the final orders") and to discharge all obligations of the parties under the orders 1,1A, 2, 2A, 3 and 4 of the final orders including the obligation of the Husband to make payment to the Wife under order 1A (iii) (a) and (b) of the final orders
(a)Within 21 days the Husband pay, or cause to be paid, to the Wife, the sum of $386,799 ("the Payment") and to deliver up the property in good and tenantable repair;
(b)Contemporaneously with the receipt of the Payment by the Wife
(i)The Wife is to permanently vacate the real property at FF Street, Suburb GG (“the Suburb GG property”) Suburb GG property and is to deliver to the Husband or his nominee all keys (and copies of keys) and any remote controls of the Suburb GG property; and
(ii)The Wife is to cause the withdrawal, at her expense, of all and any caveats lodged by her or her legal representatives (past or present) on any titles to real property owned by the Husband’s entities and trusts including the Suburb GG property
(iii)The wife relinquish in favour of the Husband any and all interest in the Suburb GG property.
I will order that the Applicant serve these orders on the Respondent given her lack of representation and there being no Notice of Address for Service.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 5 August 2021
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