FAMILY LAW – CHILDREN – Best interestsPROPERTY SETTLEMENT – Just and equitable

[2020] FamCA 1009

FAMILY COURT OF AUSTRALIA

TORBECK & STABLES (NO. 2) [2020] FamCA 1009

FAMILY LAW – CHILDREN – Best interests
PROPERTY SETTLEMENT – Just and equitable

Family Law Act 1975 (Cth)

Cox & Pedrana [2013] FLC 93-537
In the Marriage of Clauson [1995] FLC 92-595
In the Marriage of Ferraro [1993] FLC 92-335
Re Hickey [2003] FLC 93-143
In the Marriage of Lee Steere [1985] FLC 91-626
In the Marriage of Pastrikos [1980] FLC 90-897
In the Marriage of Waters & Jurek [1995] FLC 92-635
Morden & Coad [2019] FamCAFC 233
Stanford v Stanford (2012) 247 CLR 108
Vigano & Desmond [2012] FLC 93-509

APPLICANT: Mr Torbeck

RESPONDENT: Ms Stables

INDEPENDENT CHILDREN’S LAWYER: Everett's Family Law

FILE NUMBER: BRC 13584 of 2017

DATE DELIVERED: 30 November 2020 amended pursuant to Rule 17.02A of the Family Law Rules 2004 and provided to the parties 2 December 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 17 and 18 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McMillan of Queen’s Counsel

SOLICITOR FOR THE APPLICANT: Wallace & Wallace Lawyers

COUNSEL FOR THE RESPONDENT: Ms Murphy

SOLICITOR FOR THE RESPONDENT: Madden Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Everett's Family Law

Amended on 2 December 2020 pursuant to Rule 17.02 of the Family Law Rules 2004

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All parenting plans and previous parenting orders are discharged.

2. The father and mother have equal shared parental responsibility for the long-term issues in relation to the child, X, born … 2017.

3. Each parent shall be responsible for the daily care, welfare and development of the child when she is living with, or spending time with, that parent.

4. The child live and communicate with the father and the mother as follows:

   (a)     from the date of the Order to 28 February 2021:

   (i)the child shall live with the father each alternate week from 5.00 pm Wednesday to 5.00 pm Monday and shall live with the mother at all other times;  and

   (ii)the child shall communicate with the mother by telephone/FaceTime call with the mother between 6.00 pm and 6.30 pm on the Friday she is not in her care, with the mother to instigate the call;  and

   (iii)the child shall communicate with the parent she is not then living with: by telephone call on the following days:

   A.        a parent’s birthday;  and

   B.        Christmas day,

   (iv)the child shall spend time with the parent with whom she is not otherwise living pursuant to the terms of this Order: from 1.00 pm to 5.00 pm on her birthday.

   (b)    from 1 March 2021 to 30 July 2021:

   (i)the child shall live with the father each alternate week from 5.00 pm Tuesday to 5.00 pm Monday and shall live with the mother at all other times;  and

   (ii)the child shall communicate with the mother by telephone/FaceTime call with the mother between 6.00 pm and 6.30 pm on the Friday she is not in her care, with the mother to instigate the call;  and

   (iii)the child shall communicate with the parent she is not then living with: by telephone call on the following days:

   A.        a parent’s birthday;  and

   B.        Christmas day,

   (iv)irrespective of any other clause in this Order, the child shall spend time with the mother from 9.00 am to 5.00 pm on Monday’s Day.

   (c)     from 1 August 2021 and thereafter:

   (i)the child shall live with each parent as follows in a two (2) week cycle: the child shall live with the father from 5.00 pm Friday to 5.00 pm the following Friday in the first week and with the mother from 5.00 pm Friday to 5.00 pm Friday in the second week;  and

   (ii)the child shall communicate with the parent with whom she is not living: by telephone/FaceTime each Wednesday between 6.00 pm and 6.30 pm, with that parent to initiate the call;  and

   (iii)irrespective of any other Order, the child shall spend from 9.00 am to 5.00 pm on Father’s Day with the father and from 9.00 am to 5.00 pm on Mother’s Day with the mother;  and

   (iv)the child shall communicate with the parent she is not then living with: by telephone call on the following days:

   A.        a parent’s birthday;

   B.        Christmas day.

   (v)the child shall spend time on her birthday with the parent with whom she is not then living as follows:

   A.        on a school day: from after school to 6.00 pm;  and

   B.        on a non-school day: from 1.00 pm to 5.00 pm,

   (vi)commencing with the December 2024/January 2025 school holiday period and for this school holiday period in each year thereafter:

   A.the child shall spend time with the father for the first half of the December/January school holiday period in each even numbered year and the second half in each odd numbered year; and

   B.the child shall spend time with the mother for the second half of the December/January in each even numbered year and the first half in each odd numbered year.

5. If changeovers do not occur at day-care or school, then the changeovers will occur outside Woolworths in C Town.

6. Each parent shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the child.

7. Neither parent shall relocate the child to live at a place more than 80 kilometres from C Town, unless the other parent has given written permission for such a move or such a move is authorised by a Court Order.

8. Each parent will complete a parenting program within six (6) months of this Order and shall provide the other parent with proof of completion of such program.

9. Neither parent shall enrol the child in any activity which occurs during time that the child is living or spending time with the other parent without first obtaining the written consent of that parent.

10. Save for any emergency situation, both parents shall ensure that the child receives any required general medical treatment from practitioners at the same medical practice.

11. Each parent shall:

    (a)keep the other informed at all times of their residential address, contact telephone numbers (landline and mobile) and email address and advise the other of any change to the same within forty-eight (48) hours of such change;  and

    (b)keep the other informed of the names, addresses and contact details of any specialist medical professional whom treats the child;  and

    (c)inform the other as soon as is reasonably practicable of any accident, emergency, hospitalisation, serious medical condition or significant health issue suffered by the child whilst in that parent’s care and also provide details of the treatment the child has received in relation to the same;  and

    (d)keep the other informed of the details of any school, educational facility or extra-curricular activity provider attended by the child.

12. Each parent shall ensure that X is not exposed to any adult sexual material whilst in their care.

13. Unless otherwise agreed between the parents in writing, X will attend J Childcare Centre for any day-care or kindergarten in 2021 and the C Town State School for Prep in 2022 and thereafter.

14. Save in the case of an emergency and unless otherwise agreed by the parents in writing, the parents shall use the Talking Parent App, with a template with the following headings – Health, Day Care/School, Sleep, Activities, Other (max of 5 lines) – to communicate about the child.

15. By this Order, the parents hereby authorise any school, educational facility or extra-curricular activity provider attended by the child to provide to each of them, at that person’s request and cost, all information about the child’s educational progress and school related activities.

16. Subject to the conditions imposed by the child’s school or extra-curricular providers, these Orders authorise both parents to attend school functions and extra-curricular activities to which parents are ordinarily invited, including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

17. By this Order, the parents hereby authorise any medical professional and allied health professional from whom the child receives treatment to provide to each of them, at that person’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment.

18. Neither parent denigrate the other, any partner or their family to, or in front of, or within the hearing of, the child and each shall direct third parties to refrain from denigrating either the other person, any partner or their family to, or in front of, or within the hearing of, the child and, failing their compliance with such a direction, shall remove the child from that environment immediately.

19. Save as may occur in any counselling or therapy consultation in which the child engages or in response to a direct question asked of them by the child, neither parent shall discuss these proceedings with the child and each of them shall ensure that the child is not shown any document filed in the Court in the proceedings and shall use their best endeavours to ensure no other person engages in such behaviour and, failing compliance with a direction to cease the behaviour, shall remove the child from the environment immediately.

20. The child is permitted to travel outside the Commonwealth of Australia for holiday purposes after 31 December 2024, unless an earlier date is agreed between the parents in writing.

21. In the event that either parent wishes to remove the child from Australia for the purpose of holiday travel after 31 December 2024, the following shall occur:

    (a)the travelling parent shall provide the other parent with not less than eight (8) weeks’ notice in writing of any proposed travel;  and

    (b)the parent wishing to travel will provide the other parent with an itemised itinerary of the proposed travel plans;  and

    (c)the travelling parent shall, fifteen (15) days before the proposed date of departure from the Commonwealth of Australia, provide the other parent with an itemised itinerary, contact details whilst overseas, copy of insurance policies, all accommodation and flight details and a copy of the child’s return tickets; and

    (d)if the non-travelling parent has possession of the child’s passport, that parent shall provide the same to the travelling parent within 48 hours of a written request for the same.

22. Unless agreed by the parents in writing, the child shall not be taken to a country other than Country Z which is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

23. Both parents shall co-operate with each other regarding the child’s passports and both shall sign any documents necessary to ensure that the child obtains and retains valid passports.

24. In the event that any document necessary to obtain an Australian passport or other Australian travel document for the child is not signed by either parent or is returned to the parent requesting the signature and return of the same in a state that is incomplete or such that it does not comply with the requirements for a passport or other Australian travel document to issue, the requesting parent is at liberty to complete replacement travel documents and, if necessary, a Registrar of the Family Court of Australia is appointed, pursuant to s 106A of the Family Law Act1975 (Cth), to sign any such document in lieu of the non-executing parent.

25. Save for travel outside of Australia for holiday purposes, the parents, their respective servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia.

26. Each parent has leave to provide a copy of the Order made 30 November 2020 to any school, day-care provider, extra-curricular activity provider, therapist or medical practitioner upon whom the child attends.

27. Each parent has leave to provide a copy of the Family Reports prepared in these proceedings and the Reasons for Judgment published 30 November 2020 to any counsellor/psychologist upon whom they may attend.

Property

1. Within 60 days of the date of this Order, Ms Stables shall do all acts and things and execute all documents necessary to transfer to Mr Torbeck at the expense of Mr Torbeck the whole of her right, title and interest in the property at K Street, Suburb L, City H (the City H property) and, simultaneously, Mr Torbeck shall:

   (a)do all acts and things and execute all documents necessary to refinance the mortgage secured against the property, held by ANZ Bank, into his sole name; and

   (b)pay to Ms Stables the sum of $19,630.00.

2. Should Mr Torbeck be unable to refinance the mortgage as provided for in Clause (28) above, then the City H property will be placed on the market for sale.

3. Mr Torbeck and Ms Stables will:

   (a)sign all documents necessary to have the City H property listed for sale;  and

   (b)agree on a listing price and, if unable to agree on the same, then the price shall be as recommended by the listing agent;  and

   (c)     share equally the costs associated with the sale;  and

   (d)until the settlement of the sale of the property: continue to equally share the cost of the mortgage, rates and insurance.

4. If the City H property does not sell within three (3) months, then either party can require the property to be listed for an auction and Mr Torbeck and Ms Stables will:

   (a)     sign all documents necessary for an auction to occur;  and

   (b)agree on a reserve price and, if unable to agree about the same, the reserve price shall be that nominated by the auctioneer engaged to sell the property;  and

   (c)     be equally responsible for all auction fees; and

   (d)until the settlement of the sale of the property: continue to equally share the cost of the mortgage, rates and insurance.

5. The sale proceeds obtained from the sale of the City H property shall be applied as follows and in the following priority:

   (a)first, to discharge the loan secured by mortgage registered over the property; and then

   (b)to pay Mr Torbeck 70 per cent and Ms Stables 30 per cent of the funds then remaining.

6. Save as is provided for above, Mr Torbeck shall retain absolutely as his property and shall be entitled to be the sole legal and beneficial owner of the following:

   (a)     all sums standing to account in all bank accounts in his name; and

   (b)    all superannuation entitlements in his name; and

   (c)     all furniture in his possession; and

   (d)    all other chattels and property in his possession or to which he is entitled.

7. Save as is provided for above and in Order (35), Ms Stables shall retain absolutely as her property and shall be entitled to be the sole legal and beneficial owner of the following:

   (a)     the real property situated at M Street, N Town, New Zealand; and

   (b)    all sums standing to account in all bank accounts in her name;  and

   (c)     all superannuation entitlements in her name; and

   (d)all motor vehicles (including motor bikes) in her possession or control;  and

   (e)     all furniture in her possession; and

   (f)   all other chattels and property in her possession or to which she is entitled.

8. Provided that Ms Stables has possession of them she shall, within fourteen (14) days of the date of this Order, provide the fish surfboard, the humidor, the baby books purchased by the paternal grandparents and the hand and foot prints purchased by the paternal grandparents to Mr Torbeck.

9. Each party shall, within seven (7) days of being requested to sign such document, sign all documents necessary to give effect to these Orders.

10. In the event that either party refuses or neglects to do any act or sign any document required to be done or executed in compliance with the provisions of these Orders, then, pursuant to s106A of the Family Law Act 1975 (Cth), a Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to the said Order and the affidavit of the solicitor for the non-defaulting party shall be sufficient evidence of such non-compliance.

AND IT IS FURTHER ORDERED THAT

1. Save as is otherwise ordered herein, no party is permitted to use any documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.

(38.A)The Independent Children’s Lawyer has leave to provide a copy of the Family Reports prepared in these proceedings, the report of Dr O, a copy of the Orders made on 30 November 2020 and the Reasons for Judgment published 30 November 2020 to the Department of Children, Youth Justice & Multicultural Affairs.

1. The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.

2. All outstanding Applications are dismissed.

3. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

NOTATION

A.This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 by adding paragraph 38.A to correct an accidental omission of the same.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Torbeck & Stables has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 13584 of 2017

Mr Torbeck

Applicant

And

Ms Stables

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The parenting aspect of these proceedings require the determination of those parenting orders which are in the best interests of X, who was born in 2017 and who is currently three years and nine months of age.

2. X’s mother previously sought to be able to relocate her to live with her in B Town. However, at trial, her position was that X ought to remain living in C Town.

Background

1. X’s mother was born in 1981. Her father was born in 1989. Her parents began a dating relationship in about August 2013, at which time they were living in New Zealand. It seems accepted that they first started to live together in about May 2014; by no later than October that year (on the mother’s account in either August/September), the mother moved to live in Sydney, leaving the father living in New Zealand. They spent time together when the father travelled to Australia. In about either April/May 2015, the mother returned to live in New Zealand: initially, she lived in City H whilst the father lived in P Town and they spent time together when not working. They resumed their cohabitation in about September 2015 before, on the mother’s account separating between about December 2015 and January 2016, when they reconciled. They lived together until about March 2016 when the father moved out; they again reconciled their relationship in either June 2016 (according to the father) or August 2016 (according to the mother) and lived together in New Zealand until 24 October 2017, when – as a consequence of the mother obtaining employment in C Town – they and X moved to Brisbane to live with the maternal grandparents. As the mother was working in C Town between Monday and Friday each week, she lived there during the week and returned to Brisbane for the weekends; this situation only persisted for about six weeks because, having returned to Brisbane, the mother told the father on 18 December 2017 that their relationship had ended. He left the maternal grandparents’ home that day. On 10 December 2017, the mother, X and the maternal grandparents moved to live in C Town; the father was told about this development on 12 December 2017; after making his own arrangements, he moved to live in C Town on 11 January 2018.

1. Whether the total duration of the parents’ cohabitation is about 34 months (as contended by the father) or about 29 months (as is contended by the mother) does not seem to me in the particular facts of this case to matter much; similarly, whether their relationship was attended by one or two separations before the accepted final separation does not matter much. This is because, on either account, it is clear that X’s parents’ relationship was of relatively short compass and attended by instability.

2. X was about 8 months of age when her parents separated finally.

3. It is unchallenged that, as a consequence of the mother‘s position, X did not spend time with her father between the date of the parental separation and when an order was made in late April 2018 that she spend supervised time with him at a nominated contact centre each Sunday and, depending on the father’s availability and that of the centre, every third Friday. The April 2018 order also provided that X communicate with her father by FaceTime or video call each Tuesday, Thursday and Saturday evening between 7.00 pm and 7.15 pm, on the basis that he initiate the call to the mother’s mobile and the mother facilitate the communication.

4. Supervision was imposed over X’s time with her father because, at that time, the mother alleged that he had sexually abused her, including via vaginal penetration resulting in a damaged hymen. Whilst subsequent medical investigation of this assertion does not establish it, it is accepted that, on two occasions in April 2017, the mother had discovered the father masturbating in the lounge room of their residence whilst X was in her bassinet in the same room. I accept that, whilst the mother thought his behaviour inappropriate, the father did not see anything remiss in his actions on either occasion. I consider it much more likely than not that the father’s behaviour on these occasions created a prism through which his other and subsequent behaviours toward X – for example, when bathing or changing her – were assessed by the mother and her parents.

5. It seems that the April 2018 Order was also made in anticipation of X’s parents being psychiatrically assessed. This assessment was undertaken on 9 December 2018 by Dr O, a psychiatrist. He concluded that neither parent suffers from a psychiatric condition that would adversely impact on their ability or capacity to care for X and that neither has a personality disorder.

6. After Dr O’s report was released, X started to spend unsupervised time with her father.

7. In July 2019, X’s time with her father returned to occurring on a supervised basis. It did so after the mother advised that this would be the case because X was upset at changeovers.

8. The August 2019 order provided that, starting from 22 November 2019, X would spend time with her father from 6.00 pm Friday to 6.30 am Monday (in week 1) and from 6.00 pm Tuesday to 6.30 am Thursday (in week 2) – that is, for five nights each fortnight – and otherwise live at Q Street, C Town, the house occupied by the mother and her maternal grandparents. This arrangement was made to deal with the fact that, having obtained employment in B Town in March 2019, the mother sought to relocate X to live there with her and the maternal grandparents. It is the mother’s April 2020 redundancy from this employment which resulted in her decision not to pursue her application to relocate X to live there with her but, instead, continue to live in C Town with her.

9. Consequently, from April 2020, X has lived with her mother and maternal grandparents at all times other than when she is spending time with her father in accordance with the terms of the April 2019 order.

10. X has also had the opportunity to spend two ‘blocks’ of time with her father: the first happened between 9.00 am on 26 December 2019 until 9.00 am on 2 January 2020 and the second occurred earlier this year. On each of these occasions, X’s paternal grandparents were visiting Australia from Country R, where they live.

Competing proposals

The father

1. X’s father is a citizen of both Country R (where he was born and where his extended family continues to live and New Zealand. He has permanent residency in Australia. When interviewed by Ms F in June 2019, he said that, ultimately in the long term, he wanted X to live with him full-time and to spend significant time with her mother and maternal grandparents.

2. By the Amended Initiating Application,[1] the father sought that he be accorded sole parental responsibility for the major long-term issues relating to X and that he consult with the mother in respect of any decisions to be made in the exercise of such parental responsibility. He also sought that X live with him and, given that the mother intended to remain living in C Town, spend time with her mother from 3.00 pm on Friday until 7.00 am on Tuesday in each alternate week (that is, for four nights each fortnight).

   [1]Filed 24 July 2020.

3. The father also proposed that, in 2020 only, X spend time with her mother from 20 December 2020 to 30 December 2020 and that, thereafter, X spend time with her mother for the first half of Christmas school holidays in odd numbered years and for the second half of the same in even numbered years. He proposed that X spend time with him from 20 December 2021 to 5 January 2022 and in each alternate year thereafter, and that she spend time with her mother from 20 December 2022 to 5 January 2023 and in each alternate year thereafter. He also proposed that, from 2022 onwards, X spend the first half of the autumn, winter and spring school holidays with the mother in even numbered years and the second half of the same with her mother in odd numbered years.

4. Other aspects of the orders sought by the father are apparent from the Initiating Application. It is relevant to note that he did not ultimately press for an order that X be baptised in the Catholic faith, as this would fall within the auspices of the exercise of parental responsibility; the father also confirmed that, if accorded sole parental responsibly for the major long-term issues relating to X, he would not baptise her in the Catholic faith without her mother’s consent. In addition, the father did not press the relief sought in Clauses 19 and 20 of the Amended Initiating Application.

   The mother

5. X’s mother is a citizen of both New Zealand and Australia. When interviewed by Ms F in June 2019, her position was that X should live primarily with her and spend “structured time” with her father.  At that stage, she proposed that X spend time with her father from 10.00 am Friday until 3.00 pm Sunday on every second weekend; she said that, whilst her preference was that this time be supervised, she felt her hand had been “forced” after Dr O’s report was released. 

6. By an Amended Response,[2] the mother sought an order for equal shared parental responsibility for the major long-term issues relating to X. She also  proposed that, from the date of the Order until 28 February 2021, X live with her and spend time with her father each alternate week from 5.00 pm Wednesday to 5.00 pm Monday (that is, for a period of five consecutive nights each fortnight, rather than the current three consecutive nights and two consecutive nights); that, from 1 March 2021 until 31 July 2021, X live with her and spend time with her father each alternate week from 5.00 pm Tuesday to 5.00 pm Monday (that is, for a period of six consecutive nights each fortnight); and, from 1 August 2021, X live with each parent in a week-about parenting regime, with changeovers to occur at 5.00 pm on Fridays. It was advanced that such graduated increases in X’s time with her father would accord her the time to get used to being away from her mother’s care for such extended periods of time, enable the father to adjust to the same also and ensure that X was settled into an equal-time parenting regime about six months before she started Prep in January 2022.

   [2]Filed 31 July 2020.

7. The mother also proposed that X communicate with the parent with whom she was not then living by FaceTime or telephone on a number of occasions each week and on that parent’s birthday and on Christmas Day and spend specified time with each parent on special or celebratory days. She proposed that, from 2024, X spend half of the Christmas school holidays with each parent.[3] The mother proposed that, other than Country Z, neither parent take X to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Her proposal also contained a number of other orders, apparent from reference to it. She also sought a Notation in terms that, in the event X showed “self-harming” behaviours, her parents would engage a play therapist, or another jointly agreed therapist, and share equally in the costs of X’s attendance on the same.

   [3]With X to spend the first half of these holidays with the father in even numbered years and to spend the first half with her in odd numbered years.

8. During her oral submissions, Counsel for the mother indicated that, if it was thought necessary, the mother’s position for an equal-time parenting regime for X could be made conditional upon her providing the father with evidence in writing[4] to confirm that she had obtained accommodation independent from her parents. Such submission sought to address the significant antipathy by the maternal grandparents toward the father, as recorded in the two Family Reports prepared to assist the Court: the first dated 7 August 2019, prepared after interviews on 28 June 2019 and the second dated 10 July 2020, prepared after interviews on 9 June 2020.

   [4]For example, a rental lease.

   The Independent Children’s Lawyer

9. In a Case Summary filed 13 August 2020, the Independent Children’s Lawyer proposed, in broad summary, that the parents be accorded equal shared parental responsibility for the major long-term issues relating to X. It was also proposed that, from the date of the Order until 12 February 2021, X live with her mother and spend time with her father each alternate week from 5.30 pm Friday until the start of day-care on Wednesday (that is, for a period of five consecutive nights each fortnight); that, from 12 February 2021 until 2 July 2021, X live with her mother and spend time with her father each alternate week from 5.30 pm Friday until the start of day-care on Thursday (that is, for a period of six consecutive nights each fortnight); and, from 2 July 2021, X live with each parent in a week-about parenting regime, with changeovers to occur at 5.00 pm on Fridays.

10. In the Case Summary, the Independent Children’s Lawyer also proposed that specific orders be made for the end of Term 4 school holidays in each year such that: in 2024, X spend the first two weeks and the fifth week of the same with her father and the third, fourth and sixth weeks of the same with her mother; and that, in 2025, she spend the first two weeks and the fifth week of the same with her mother and the third, fourth and sixth weeks of the same with her father; and that, starting with the end of Term 4 school holidays in 2027, she spend the first half of the holiday period with the father and the second half of the holiday period with the mother in odd numbered years and the reverse in even-numbered years. Various orders, including for telephone and FaceTime communications and time between X and each parent on special or celebratory days were also proposed.

11. However, during oral submissions, Counsel for the Independent Children’s Lawyer submitted that, as the Independent Children’s Lawyer had concluded that these parents were not yet at a point where an equal-time parenting regime was appropriate, the orders that were in X’s best interests were orders which would see her live with her father and spend time with her mother from 5.00 pm Thursday to 5.00 pm Tuesday each fortnight (that is, for five nights each fortnight).[5]

    [5]  It was also submitted that, irrespective of any other orders made, X should spend time with her mother from 9.00am until 5.00 pm on Mother’s Day each year.

12. Counsel submitted that it was in X’s best interests for her parents to have equal shared parental responsibility for her and for there to be an order that she communicate with her mother by telephone/FaceTime each Tuesday and Thursday between 6.00 pm and 6.30 pm (with the mother to initiate the call).

13. The Independent Children’s Lawyer proposed that, once X starts Prep in 2022, she spend half of the Term 1, 2 and 3 school holidays with her mother (being the first half in even numbered years and the second half in odd numbered years). Further, it was also proposed that, starting in 2022, X spend half of the Term 4 school holidays with each parent as follows: on a week about basis in 2022, 2023 and 2024; for weeks 1, 2 and 5 with her father and for weeks 3, 4 and 6 with her mother in 2025; for weeks 1, 2 and 5 with her mother and for weeks 3, 4 and 6 with her father in 2026 and, starting in 2027, with her father for the first half of the holidays in odd numbered years and with her mother for the first half in even numbered years.

14. Counsel for the Independent Children’s Lawyer also submitted that the mother be ordered to do all acts and things to arrange for X to obtain Australian citizenship and that the father be ordered to do all acts and things to arrange for X to obtain a Country R passport. The Independent Children’s Lawyer sought an order to facilitate the provision of reports of Dr O, Ms F and Ms S to the parents’ general practitioners and allied health professionals and to X’s general practitioner, mental health practitioner and any counsellor upon whom she may attend. She also proposed that it was appropriate that the parents be required to undergo one-on-one counselling to address issues arising from their separation and to assist with conflict management.

PRINCIPLES  

1. In these proceedings, being proceedings for a parenting order[6] in relation to X, I may, subject to s 61DA[7] and s 65DAB[8] and Division 6 of Part VII of the Family Law Act 1975 (Cth) (”the Act”), make such parenting order as I think proper.[9] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[10] In deciding whether to make a parenting order, I must regard X’s best interests as the paramount consideration.[11]

   [6]  Family Law Act 1975 (Cth) s 64B.

   [7]  Presumption of equal shared parental responsibility.

   [8]  Parenting plans.

   [9]  Family Law Act 1975 (Cth) s 65D.

   [10]  Family Law Act 1975 (Cth) s 60B.

   [11]  Family Law Act 1975 (Cth) s 60CA and s 65AA.

2. The matters to which regard must be had in determining those parenting orders which are in X’s best interests are found in s 60CC of the Act. The requirement to “consider” each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[12] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in X’s best interests. Rather, I have considered all of the relevant considerations in arriving at my conclusion about those orders which are in her best interests.

X: the benefit to her of having a meaningful relationship with both of her parents; the need to protect her from harm from being exposed or subjected to abuse, neglect or family violence; her views; her relationship with each parent and others; her maturity, sex, lifestyle and background[13]

[12]  See Banks & Banks (2015) 93-637 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).

[13]  Whilst grouped together for utility, it is clear that the first two of these considerations are primary considerations (and that the second of these is to be given greater weight) whilst the others are additional considerations: Family Law Act 1975 (Cth) s 60CC(2), s 60CC(2A) and ss 60CC(3)(a), (b), (g).

1. The Act does not define the term meaningful relationship, nor does it prescribe criteria on which the Court should rely to assess how a child’s parents have, or should have, a meaningful involvement in that child’s life.

2. In McCall & Clark,[14] the Full Court concluded that the preferred interpretation of “benefit to a child of a meaningful relationship” is the prospective approach. That is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, orders can be framed to ensure that he or she has a meaningful relationship with both parents. Thus, the Court must consider and determine whether there is a benefit to the child in having a meaningful relationship with each of her parents: an affirmative finding is not dependent simply on a lack of danger of physical or psychological harm arising from time and/or communication with each parent. If I determine that such benefit exists, then I must consider whether the benefit needs to give way to the requirement to protect the child from physical or psychological harm.[15]

   [14] (2009) FLC 93-405.

   [15]Vigano & Desmond (2012) FLC 93-509, 86,517 [128]-[129] per Bryant CJ, Strickland & Murphy JJ.

3. I accept Ms F’s observations in June 2019 that X was a very happy, cheeky and relaxed child when with her mother and maternal grandparents.  I also accept her assessment that X had strong attachments with them and that she had no concerns about their interactions and there was no discernible anxiety in the same. I accept Ms F’s assessment that X (then 2 years and 4 months of age) was on-track developmentally, including with her speech, motor skills and comprehension. I also accept her assessment that, at that time, the mother and maternal grandparents had been X’s primary carers since the December 2017 parental separation and that X was likely primarily attached to her mother.

4. I think it much more likely than not that X’s described behaviours when her father returned to where Ms F was conducting her interviews and observations and attempts were made to transition her into his care (including that she was clinging to her mother, unsettled and crying) to be the result of a combination of the tension between the adults, the impact of length of the day for a child of X’s age and that she was being asked to transition between her parents in an environment that was strange to her. I am not remotely persuaded that X’s reluctance to move into her father’s care on this occasion and her reported behaviours whilst in his care were caused by any of his behaviours toward her.

5. The level of mistrust between the mother and her parents and the father can be seen by their reaction to him returning X to Ms F’s office in June 2019 in different clothes to those she was wearing when she went with him: as Ms F reports, the mother and maternal grandparents commented on this and “observed it through a disturbing lens”.  

6. I accept the father’s explanation that he changed X’s clothes to ensure that they were not ruined. However, given the allegations made against him by the mother and her parents, I struggle to accept he would not have realised that returning X to her mother’s care in clothes different to those in which she went into his care during the Family Report observation would likely produce the reactions reported by Ms F in her August 2019 Family Report.

7. I accept that, when the father attended on X in hospital on about 3 July 2019, he and the maternal grandfather were involved in an unedifying interaction. Whilst I consider that the behaviour by each of them on that occasion does neither of them any credit, I am not persuaded that X’s reported upset was caused by the father’s presence per se: rather, I think it much more likely than not that it was a result of her exposure to the adult tensions and interactions.

8. I accept Ms S’s assessment, expressed in the July 2020 Family Report, that X demonstrated secure attachments to each of her parents, as well as a secure attachment to her maternal grandparents. I accept that, during her observations, X was not distressed in the care of either of her parents.

1. I accept that each parent loves X very much and that she loves each of her parents. I accept that it is more likely than not that she is primarily attached to her mother, but has a strong and secure attachment to her father. I accept that she has a loving relationship with her maternal grandparents and is attached to them also. I have no doubt that her attachment to her maternal grandparents has arisen given the fact that she has lived with them since October 2017: first in their home in Brisbane when the mother, father and X moved to live there and, secondly, in premises in C Town when the mother and the maternal grandparents moved with X to live there in mid-December 2017.

2. I accept that it is more likely than not that there are significant benefits to X if she is afforded the opportunity to maintain meaningful relationships with each of her parents and also with her maternal grandparents.

3. The mother’s earlier affidavit material is replete with assertions that the father has previously acted inappropriately toward X while changing her, bathing her and in his general interactions with her. However, her proposal that there should be a graduated increase in X’s time with him until she lives in an equal-time parenting regime by mid-2021  establishes that she no longer suggests that X will be at risk of harm from being the subject of, or exposed to, inappropriate behaviours by her father.  In addition, I note Ms F’s assessment that all of the father’s behaviours recounted by the mother and maternal grandparents have, in isolation, explanations that are alternative to abuse: for example, changing X’s clothes to protect them from damage and shutting the bathroom door for privacy when bathing X.  I also note that Ms F assessed the father as not posing a significant risk to X.

4. It is appropriate, I think, that I record my acceptance that, in June 2018, Dr T and Dr U reported that, on examination, X’s hymen appeared healthy and intact; save for the presence of a small perianal fissure consistent with the passage of a hard stool motion, X’s genitals were otherwise normal on examination and they did not find any physical evidence to suggest inappropriate sexual contact or a need for further medical investigation.

5. I accept the mother’s evidence, when cross-examined, about the manner in which she considered the proceedings to have got away from her such that she lost objectivity when considering the father’s actions; I accept her explanation for the process by which she drew conclusions adverse to the father from his behaviours and the manner by which his attempts for privacy whilst caring for X in her maternal grandparents home prior to the parental separation were assessed. In doing so, as I have already noted, I do not discount the likely impact on the mother and the maternal grandparents of her twice seeing the father masturbating in X’s presence when the child was only about two months of age.

6. Whilst the mother told Ms S during her June 2020 interview that she considered that there would be a risk to X in her father’s care if no one was there to moderate the father, she subsequently specifically withdrew, in her July 2020 affidavit, the allegations previously made against him.

7. On the evidence before me, I am not persuaded that X will be at an unacceptable risk of suffering harm from being exposed to abuse if her time with her father continues on an unsupervised basis. The mother’s proposal for X’s time with her father makes it clear that she does not consider that to be the case either.

8. The father asserted that X would be at an unacceptable risk of suffering emotional harm if she continues to live primarily with her mother by virtue of the mother’s failure to support and/or foster X having a meaningful relationship with him. Whilst I accept that, particularly initially, there was a valid basis for the father’s concern about the mother’s attitude to him and her absence of support for his relationship with their daughter, I am not persuaded, on balance, that the mother will fail to support X to continue to have, develop and maintain a meaningful relationship with her father in the future. The mother’s actions in previously providing X to spend more time with her father that was required under the operative parenting orders – even if limited on occasion – coupled with her current proposal for X’s time with each parent persuades me to accept the mother’s evidence that she has, in essence, been able to start to move to a position whereby she recognises the importance for X of having an ongoing, meaningful relationship with her father. Further the risk adverted to on behalf of the father – namely, of emotional harm – is predicated on X remaining in her mother’s primary care: something that will not continue if the mother’s proposal that she live in an equal-time parenting regime from mid-2012 is put into effect.

9. The mother and the maternal grandparents have previously told the authors of the Family Reports about various behaviours X has exhibited on returning to their care after time with her father: such behaviours include aggression, biting things and others, hitting herself, pulling her hair and waking at night. The father has said that X does not act as they describe when she is in his care. I accept Ms S’s evidence about a possible explanation for this difference and, in essence, accept that the distressed and aggressive behaviours seen by her mother and maternal grandparents may be the way in which a child of X’s age manifests stress and/or anxiety resultant from the tension which exists between her parents’ households. I am not persuaded that this stress and tension will be alleviated by a change in X’s primary parenting regime as proposed by the father: that is, I am not persuaded that X will be likely to manifest less stress and/or anxiety in moving between her parents’ homes if she lives with him and spends five nights per fortnight in her mother’s care as opposed to living with her mother and spending five nights per fortnight in his care, increasing to an equal time parenting regime.

The father: his involvement in X’s life; his capacity to meet X’s emotional, intellectual and other needs; his attitude to X and to the responsibilities of parenthood[16]

[16] ss 60CC(3)(b), (c), (ca), (f), (i) and (m) of the Family Law Act 1975 (Cth).

1. I accept that, in his December 2018 report, Dr O expressed his conclusions that the father: did not have a history of diagnosed psychiatric illness; had no history of the symptoms that could equate to the presence of a psychiatric diagnosed or mental illness; had a normal mental state examination which did not support the presence of a psychiatric diagnoses or mental illness. I accept Dr O considered that the father did not suffer from any psychiatric conditions or personality disorders that would, I infer adversely, impact his capacity to parent X effectively. 

2. I accept that the father has sought to have and maintain a relationship with X; I accept he has sought to be involved in making decisions about matters relevant to her and that he wishes to be involved in future decision-making processes. I accept he has supported X when she is in his care and has paid child support as assessed.

3. Whilst I generally accept that he would be more likely than not to support X to have and maintain a meaningful relationship with her mother and maternal grandparents if she lived primarily with him, I cannot help but remark that his  recounting to Ms S contained criticisms of the mother’s attitude about being one of X’s parents: for example, he told Ms S that he truly believed the mother “wants to be a parent” but “doesn’t want the responsibility of being a parent” and said that she leaned on others for support and, in essence, did not care for X by herself.

4. Given his persistent expressions of hurt about the allegations and comments made by the mother and her parents about him, I found his assertion about the mother’s approach to parenting X to be ironic. Given that his criticisms of the mother go to the fundamentals of being one of X’s parents, I cannot dismiss the lingering thought that, if X lived primarily with him and he was accorded sole parental responsibility for the major long-term issues relating to her that he may not be similarly dismissive of any view about such issues expressed by the mother.

The mother: her involvement in X’s life; her capacity to meet X’s emotional, intellectual and other needs; her attitude to X and to the responsibilities of parenthood[17]

[17] Ss 60CC(3)(b), (c), (ca), (f), (i) and (m) of the Family Law Act 1975 (Cth).

1. I accept that, in his December 2018 report, Dr O expressed his conclusions that the mother: had no history of symptoms that could equate to the presence of a psychiatric diagnoses or mental illness; had a normal mental state examination that did not support the presence of a psychiatric diagnosis or mental illness.  I accept that, in discussing the mother’s expressed anxiety and mistrust about the father’s capacity to act appropriately, sensibly and in a caring manner for X, Dr O noted that these were not symptoms of a mental illness but, rather, a reactive state to the sort of experiences she said she had witnessed during the relationship. 

2. I accept that Dr O’s review of the mother’s life history did not reveal a history of developmental adversity that could increase her vulnerability to develop a psychiatric illness. I also accept that Dr O considered that his analysis of the information provided to him did not reveal the mother having a psychiatric condition or personality disorder that would impact adversely on her capacity to parent X effectively. 

3. However, I also accept Dr O’s assessment that, at the time of his involvement in the matter, there were very serious unresolved conflicts from the relationship between the parents and incompatibilities between them that could impact adversely on how the mother interacted with the father. I accept his particular emphasis in this respect on the mother’s personality style, intellect and general coping mechanisms and that he noted that, despite her reported perception that her relationship with the father was “so different” – and, in effect, “abnormal” – she continued in it (albeit with some separations and reconciliations) over a five year period. I accept that Dr O strongly recommended that the mother engage in counselling to consider her relationship with her parents and the issue of “boundaries” between them.

4. I accept that the mother has sought to have and maintain a relationship with X; I accept she has been involved in making decisions about matters relevant to her and that she wishes to be involved in future decision-making processes. I accept she has supported X when she is in her care.

5. It is obvious that, since the mother’s redundancy in April 2020, she has been more available to X.

The likely effect on X if the orders sought are made[18]

[18]  Family Law Act 1975 (Cth) ss 60CC(3)(d).

1. In the August 2019 Family Report, Ms F noted that the father then sought that X moved to live with him in the future and that he did not then want to rip her away from her maternal grandparents as he thought this would be too traumatic for her. She also reported that, if X lived with her father on a full-time basis, she would attend day-care five days per week.

2. Given the mother’s redundancy in April 2020 and her consequent return to living full-time in C Town with X and the maternal grandparents and the assessment that X is likely primarily attached to her mother, I consider that moving her to live primarily with her father and send five nights per fortnight is a change that would likely have some adverse impacts on her, particularly in the short-term.  I think this even more likely given that such a move would also be associated with her attending day-care more frequently than the one day per week which she currently attends whilst in her father’s care.

Family violence[19]

[19]  Family Law Act 1975 (Cth) ss 60CC(3)(j), 60CC(3)(k) and 60CG.

1. I accept that, on 28 December 2017, the mother wrote to her solicitors to indicate that she held concerns for her safety and X’s safety pending the father’s imminent move to C Town in January 2018.  I accept she was seeking assistance about making arrangements to ensure the father could not contact her and X; I accept that she advised that the father knew her address in C Town and had previously threatened her and X. I accept the mother was advised to seek police help to file an application for a protection order.

2. A cross Protection Order was made between X’s parents in the V Town Magistrates Court on 18 April 2018. I accept that the order in which the father is the respondent was made on a “without admissions” basis whilst the order to which the mother is the respondent was made after a contested hearing.

3. I accept that, when the mother told Ms F about her perceptions of the father’s behaviours toward her, she was telling the truth. In fact, the father did not dispute acting on many occasions as the mother described: he simply said that, in acting as he did or speaking as she said he had, he was either “joking” or playing a game in which the mother was, by inference at least, a willing participant.  For example, his response to the mother’s assertion that he had attempted to force her to have sex with him – including when she was bending forward over X’s cot – was met by the response that he had hugged her from behind and had given her “a few little humps” before accepting her rejection of his advances. By way of further example, in responding to the mother’s assertion that he had told her that he had put arsenic into her coffee, he said that, when she poured a coffee he had made her down the sink, he said “it’s not like I put arsenic in it” and, later that night, made a sarcastic comment about putting arsenic into her coffee, which he described as following on from the earlier “joke” about the coffee.

4. Further, whilst the mother said that he had threatened, when driving with her and X in New Zealand, to drive into a logging truck and had told that he did not do so because he did not know how to do this without killing himself, his response was to say that whilst he had told the mother that he had felt like driving into the logging truck, he said this after they had parked and denied telling her that he had not done that because he didn’t know how to do it without killing himself. Additionally, in responding to the mother’s contention that he had filmed her as they were both driving between C Town and City W, he admitted doing so but said that this was because she had overtaken him and was speeding in a construction zone – and, I infer, he wanted to gather evidence of her non-compliant behaviours.

5. I accept the father’s admission that, on two occasions, he told the mother that he could push her down the stairs; I accept entirely that such comments were completely unacceptable and that it is more likely than not that the mother would have perceived them – as she said she did – as threatening. I accept the father’s explanation that it was an accident on each of the two occasions on which he bumped or hit X’s head against the lining on the inside of the car whilst putting her into the car.

6. I accept that, on occasions during their relationship, the mother made derogatory comments toward the father: for example, I accept that she called him “grottyacquisitnd “filthy”.

The maternal grandparents’ attitude to the father

1. Ms F interviewed X’s maternal grandparents in June 2019.  I accept her description of them as respectful people who were very child focused and emotional when speaking about their concerns for X.  I also accept, though, that they demonstrated significant antipathy toward the father. I accept that the maternal grandfather manifested what Ms F described as “an apparent disdain” for the father, was significantly frustrated at times and even left the room as he became so angry and upset.

2. I accept that, as recounted by Ms F, the maternal grandparents made significant complaints to her about the father’s observed behaviours during the six week period he and X lived with them whilst the mother worked in C Town between Mondays and Fridays.  I accept that they also told Ms F that the father had continually lied to them, was immature and told tales which were untrue and extremely hurtful.

3. I have no reason not to accept Ms F’s assessment that she believed the maternal grandparents to be genuinely concerned about X’s well-being and sincere in their distress.  As mentioned elsewhere in these Reasons, I think it is a positive thing that the maternal grandfather has started to attend counselling: I am hopeful that, with this assistance and his recognition that it is not good for X to be exposed to tensions and unpleasantness between the adults in her life, he will be able to learn to better contain any expression of whatever views he continues to hold about the father.

4. Whilst the father took issue with a number of the beliefs he asserted were held by the maternal grandfather, he did not seek to prevent X from spending time with him.

Parental Relationship

1. I accept that, in his December 2018 report, Dr O expressed serious concerns about the parents’ capacity to change the pattern of what he described as “a very hostile and conflictual long term relationship”.  I accept he opined, in essence, that a change for the positive would require them to be motivated to acquire new patterns of behaviour.  I consider that the mother’s enrolment in counselling and her evidence when cross-examined demonstrate her desire to develop new patterns of behaviour toward the father. I also accept that Dr O considered that, whilst neither parent required psychiatric treatment, both would be assisted by 10 sessions of specific psychological counselling to aid them to cope with post-separation parenting issues, conflict management and social skills training.

2. I accept that, when interviewed by Ms F in June 2019, the mother described her communication with the father as “terrible”; she said she thought he appeared to be building a court case via the website “Talking Parents”; she felt he was harassing her at times.  I also note, though, that the mother reported that, during their relationship, she and the father had major consensus about major decisions relating to X but this had changed after their separation. That the mother reported that she regarded them as having had major consensus about decisions relating to X during their relationship suggests to me that they have the capacity – even after their separation and the events which have followed  – to reach consensus about the same in the future.

3. In the July 2020 Family Report, Ms S noted that the mother continued to distrust the father’s capacity to care for X.  However, she also noted that whilst there was a high level of distrust between adults, everyone said that they would like to be more at ease with the situation.  She assessed, in essence, that none of the adults appeared willing or able to move forward to attempt to improve their interactions.  The evidence given by both mother and maternal grandfather includes that each had recently started to attend counselling in an effort to assist them to improve the situation for X’s sake.  Whilst I accept that their engagement in such counselling was, at the time of trial, embryonic, I also consider that their actions in this regard at least demonstrate a willingness to try to learn how to move forward so that X can obtain the benefits of having a meaningful and the fulfilling relationships with each of her parents and her maternal grandparents.

4. I consider that, on occasions, each parent has demonstrated the capacity to keep the other informed about matters relating to X and the capacity to communicate appropriately. I also accept that, on occasions, the mother has acted to keep the father informed about matters relevant to X’s health and investigations into the same.

1. Ms Stables said that, having unsuccessfully applied for work in C Town, she has started to undertake further studies to advance her employment prospects in a new field.[49] Whilst she initially intends to live with her parents in a home they have recently purchased, she also said – and I accept – that she wants eventually to move into her own independent accommodation.

   [49]Affidavit of Ms Stables filed 31 July 2020 at [48].

2. Ms Stables intends to vacate her current rental on 3 August 2020 and move into the property purchased by her parents,[50] but also notes her intention to eventually move into independent accommodation with X.[51]

   [50]Affidavit of Ms Stables filed 31 July 2020 at [4].

   [51]Affidavit of Ms Stables filed 31 July 2020 at [7].

3. I accept that My Stables evidence includes that she has the following expenses  associated with her ownership of the untenanted N Town property: [52]

   a)mortgage repayments of AUD $1,123.50 per month; and

   b)rates of AUD$2,996.00AUD per annum; and

   c)insurance premiums of AUD$2,140.00 per annum;  and

   d)garden maintenance of AUD$2,140.00 per annum.

   [52]Affidavit of Ms Stables filed 27 July 2020 at [51].

4. I also accept that she has a personal loan with ANZ Bank in the amount of about $46,000.00.

What orders are just and equitable in the circumstances?

1. It is important to remember that the exercise of the discretion conferred in property settlement proceedings must not proceed on an assumption that the parties’ interests in property are, or should be, different from those determined by common law and equity. 

2. Having regard to the findings set out above, I consider that those orders which are appropriate and which are just and equitable in all of the circumstances are orders which will see Ms Stables retain the N Town property (and its encumbrances) and receive a payment for her interest in the Suburb L property from Mr Torbeck (in the event that he can refinance the borrowings secured by mortgage over the property and obtain the release of the N Town property as security for the same) in the amount of $19,630.00. If he cannot refinance then the property will have to be sold and Ms Stables will be paid 30% of the nett sale proceeds.

3. In determining not to change the amount which Mr Torbeck will be required to pay (if he can refinance the Suburb L property)  by virtue of Ms  Stables greater contribution as a parent and the fact that, at present she is unemployed, I have also taken into account the terms of the parenting orders to be made and that Ms Stables earning capacity – if utilised in the future as it has been in the past – is likely to result in her receiving income far greater than that received by Mr Torbeck to date. I have also taken into account that each party is indebted to third parties.

4. I am not persuaded, given the short duration of the relationship, the various periods of separation, the manner in which the parties determined to manage their finances during it and the fact that Ms Stables is at present unemployed, that it is just and equitable that there is any splitting order made in relation to Ms Stables superannuation entitlements and, therefore, each party shall retain their respective superannuation entitlements in their entirety.

5. Save for the specific chattels sought by Mr Torbeck, it is also appropriate and just and equitable that each party retain the property currently in their respective possession. Mr Torbeck sought that Ms Stables provide him with the fish surfboard, the humidor, baby books purchased by the paternal grandparents and hand and foot prints purchased by the paternal grandparents. I consider that if Ms Stables retains possession of these items it is appropriate that they are provided to Mr Torbeck.

spousal maintenance

1. Ms Stables sought that Mr Torbeck pay her the sum of $850.00/week by way of spousal maintenance for the sooner of five years or her obtaining paid employment.

2. Mr Torbeck is liable to maintain Ms Stables to the extent that he is reasonably able to do so if and only if she is unable to support herself adequately by reason of having the care of a child under 18 years, of age, or physical or mental incapacity for appropriate gainful employment or for any other adequate reason.[53] Only the matters referred to in s 90SF(3) of the Act may be taken into account in applying this principle. If satisfied that Ms Stables is unable to support herself adequately by reason of age, or physical or mental incapacity for appropriate gainful employment or for any other adequate reason, and that Mr Torbeck has the reasonable capacity to meet such an order, the Court may make such order as it considers proper for the provision of maintenance to her.[54]

   [53]Family Law Act 1975 (Cth) ss 90SF(1).

   [54]Family Law Act 1975 (Cth) ss 90SE(1).

3. In this case, given her ownership of the N Town property and the value of the equity in the same, I am not persuaded that Ms Stables is unable to support herself adequately. Whilst such conclusion renders it unnecessary that I consider the likelihood of Ms Stables being able to obtain some employment in the future, I consider that her past work experience is such that it is more likely than not that she will be able to obtain some employment of some kind in the future, even if it is not employment which renumerates her in the same way her previous employment has.

Costs sought by Mr Torbeck

1. Whilst it was submitted that the Court would be satisfied that the circumstances justify the making of an order that Ms Stables pay Mr Torbeck’s costs as sought,  I am not persuaded that this is the case. In arriving at this conclusion I accept the submissions made by Counsel for Ms Stables in preference to those made by Queens Counsel for Mr Torbeck. I also take into account the respective current financial positions of each of Mr Torbeck and Ms Stables; and note that, in February 2020, the trial then listed for hearing was adjourned following information to the effect that Legal Aid Queensland was not in a position to approve applications received after 1 February 2020 as funding was then exhausted; and that neither party was successful in their respective interim applications heard in March 2020.  

I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 November 2020.

Associate:     

Date:              30 November 2020