Faraday and Faraday
[2020] FCCA 1895
•22 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FARADAY & FARADAY | [2020] FCCA 1895 |
| Catchwords: FAMILY LAW – Parenting application – significant and continuous conflict – equal or sole parental responsibility – residence – supervision – spend time – schooling – changeover – where marked age difference between the parties – applicant works in adult entertainment industry – where the respondent worked in that industry as a security guard – where respondent suffered extensive injuries in motor vehicle accidents – where one young child – where applicant separated from respondent on two occasions, and, without notice, the child, furniture and effects – where respondent undertakes surveillance initially to locate the child and later to ascertain whether applicant conducted escort work from home – whether applicant has undiagnosed mental disorder – history of distress at changeovers – where both parties have undergone psychological assessment – where the applicant has received no financial support since final separation – where the respondent has a cohesive and supportive extended family – where the applicant has resided at various residences since the separation – where the applicant has been involved with other partners – whether respondent was unnecessarily disturbed by child’s contact with any adult friends and/or partners of the applicant – where applicant makes unilateral decisions in relation to the care of the child – where dispute between the parties as to the child’s healthcare – where parties dispute enrolment at kindergarten and school – where allegations of drug use – where allegation of sexual misconduct upon child by one of applicant’s friends or partners – where allegation investigated but not pursued by Police post-VARE interview of the child – where DHHS did not find the child to be at risk in parents’ care – where long-term IVO imposed and upheld on appeal against defendant – where leave was given to tender reasons for judgment given in the County Court dismissing the appeal of an IVO against the alleged perpetrator of sexual assault – value in the child’s continued relationship with his extended families – where the applicant raises claim for sole parenting order late in proceedings – where the ICL does not recommend sole parenting – where respondent seeks order for effectively perpetual supervision – child should live with the applicant – increased spend time with the respondent – ancillary orders.. |
| FAMILY LAW – Property application – whether it is just and equitable for an adjustment of property interests to be made pursuant to sub-s 79(2) of the Act – applicant seeking adjustment of property interests – respondent seeking no adjustment – where the parties kept their finances entirely separate during the relationship – where respondent owned real property prior to relationship commencing – where respondent made majority of mortgage repayments – where it was not found that any additions to the property had improved the value of the property – where respondent had no employment income due to suffering severe injuries from accidents – where respondent received TAC payments and applied lump sum payment towards discharge of mortgages – where applicant self-employment and income paid in cash – where actual income unknown – where the applicant held cash in a safe at real property – where applicant removed contents of safe at separation – where amount stored in safe disputed – where applicant involved in property development project and received net proceeds of sale of development – where failure to account for proceeds of development – where failure to make full and frank financial disclosure – where parties had various third party debts – held excluded from the asset pool – held no notional add-backs to the asset pool – found asset pool of $905,850 excluding unknown values for several items for which there was no evidence – applicable principles – whether it is just and equitable to make order for adjustment of property interests – whether applicant has discharged onus of satisfying court that it is just and equitable to make order for adjustment of property interests – application for adjustment of property interests refused. |
| Legislation: Child Support (Assessment)Act1989 (Cth), s.116 Evidence Act 1995 (Cth), ss.91, 140, 144 Family Law Act 1975 (Cth), ss.4, 4AB, 11F, 60B, 60CA, 60CC, 60CI, 61C, 61DA, 61DAB, 64B, 65AA, 65D, 65DAA, 67Z, 68L, 68LA, 69ZM, 69ZN, 69ZQ, 69ZT, 69ZX(3), 75(2), 78, 79, 81, 90SF, 90SM, 106A, 117 |
| Cases cited: Albert & Plowman [2020] FamCAFC 23 Aleksovski & Aleksovski (1996) FLC 92-705 Amero & Croft [2010] FamCAFC 118 Bateman & Bowe [2013] FamCA 253 Beklar & Beklar [2013] FamCA 327 Bell & Nahos [2016] FamCAFC 244 Blatch v Archer (1774) 98 ER 969 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Browne& Green (1999) FLC ¶92-873 Bulleen & Bulleen [2010] FamCA 187 CDJ v VAJ (1998) 197 CLR 172 C & C [1998] FamCA 143 Ceccattini v ICM 2000 Pty Ltd [1999] NSWSC 453 C & C [1998] FamCA 143 Chancellor & McCoy (2016) FLC 93-752 Chapman & Chapman (2014) FLC 93-592 NHC & RCH (2004) FLC ¶93-204 Chung & Su (2002) FLC 93-117 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 2 NSWLR 389 Croton v The Queen (1967) 117 CLR 326 De Angelis & De Angelis (2003) FLC ¶93-133 Dickens & Dickens [2012] FamCAFC 154 DJM & JLM [1998] FamCA 97 Dundas & Blake [2013] FamCAFC 133 Ferraro & Ferraro[1992] FamCA 64 G & C [2006] FamCA 994 Gould & Gould [2007] FamCAFC 609 Graham & Callan (No 2) [2013] FamCAFC 615 GWR & VAR [2006] FamCAFC 894 Hepworth v Hepworth (1963) 110 CLR 309 HML v R (2008) 235 CLR 334 Hollington v Hewthorn [1943] KB 27 Hua & Liu [2019] FamCA 120 Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242 Hurst & Webber [2009] FamCAFC 137 In the Marriage of Rolfe[1979] FamCA 65; (1979) FLC 90-629 Jabour & Jabour [2019] FamCAFC 78 Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62 Johnson v Page (2007) FLC 93-344 Kowaliw & Kowaliw (1981) FLC ¶91-092 Kuglioski v Metrobus (2004) 220 CLR 363 Mallet v Mallet (1984) 156 CLR 605 Mallory & Mallory [2019] FamCAFC 221 Masoud & Masoud [2016] FamCAFC 24 Massey & Wilenski [2019] FamCA 657 Medapati & Revanka [2019] FamCA 274 Mellick & Mellick [2014] FamCAFC 236 MZARG v Minister for Immigration and Border Protection (2018) FCA 624 Norbis & Norbis (1986) 161 CLR 513 AJO & GRO (2005) 191 FLR 317 Oswald & Karrington [2016] FamCAFC 152 Pates & Pates [2018] FamCAFC 171 Payne v Parker (1976) 1 NSWLR 191 Purkess v Crittenden (1965) 114 CLR 164 Reid & Lynch (2010) FLC 93-448 Scott & Danton [2014] FamCAFC 203 SCVG & KLD (2014) FLC 93-582 Smith v New South Wales Bar Association (1992) 176 CLR 256 T & S (2001) FLC 93-086 TA v Thompson (2013) 46 VR 10 Talbot & Talbot (2015) FLC ¶93-660 U & U (2002) 211 CLR 238 Vass & Vass [2015] FamCAFC 51 Warnett & Amerson [2019] FamCA 499 Weir & Weir (1993) FLC 93-338 Whent & Marband [2018] FamCAFC 95 Wirth v Wirth (1956) 98 CLR 228 WZAVW the Minister for Immigration and Border Protection (2016) FCA 760 Other: |
| Applicant: | MS FARADAY |
| Respondent: | MR FARADAY |
| File Number: | MLC 6986 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing dates: | 26-28 June 2019, 23-26 September 2019, 20 February, 17 July 2020 |
| Date of Last Submission: | 17 July 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 22 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms B. Tulloch |
| Solicitors for the Applicant: | Wightons Lawyers |
| Counsel for the Respondent: | Mr T.A. Hutchings |
Solicitors for the Respondent: | Perisic Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms M. Stavrakakis |
| Solicitors for the Independent Children's Lawyer: | Trapski Family Law |
THE COURT ORDERS THAT:
General
The applicant’s name in the title of the proceeding be amended to “Ms Faraday”.
Subject to paragraph (3) of this Order, all previous parenting orders (including the order for the appointment of the Independent Children’s Lawyer) be discharged.
Within fourteen (14) days hereof, the Independent Children’s Lawyer (ICL) serve on the Department of Health and Human Services, a sealed copy of this Order together with a copy of these Reasons for Judgment.
Parenting
The parties have equal shared parental responsibility for their child
Xborn in 2015 (child).
The child live with the applicant mother.
Subject to the succeeding provisions of this Order, the child spend time and communicate with the respondent father as follows:
(a)commencing Thursday, 6 August 2020, from the later of the conclusion of kindergarten (or 4:15pm on a non-school day) on Thursdays until Tuesdays at 9.00am or the commencement of kindergarten or school;
(b)commencing Friday, 6 August 2021, on a week about basis with changeover to occur from the later of the conclusion of school (or 4:15pm on a non-school day);
(c)for half of all school term holidays commencing Term 1 in 2021, and in default of agreement in writing, with the child to spend time with the applicant mother in the first half of such holidays;
(d)on a week about basis for the Christmas 2020 holidays and thereafter for half of all such Christmas holidays, and in default of agreement in writing, with the child to spend time with the respondent father in the first half of such Christmas holidays;
(e)during Easter holidays in each odd numbered year, commencing Easter 2021, with the respondent father;
(f)Easter holidays in each even numbered year, commencing Easter 2022, with the applicant mother; and
(g)in each year, from 6.00pm on the day prior to ANZAC Day until 6.00pm on ANZAC Day;
(h)at such further and other times as may be agreed in writing between the parents.
If changeover for the child’s time with either parent does not occur on a kindergarten or school day at a school time, then changeover shall occur in the foyer of the Town B Service Station (or such other location as agreed between the parties in writing).
The child spend time on special occasions with his parents as follows:
(a)with the applicant mother for Mother’s Day commencing 6.00pm on the Saturday preceding Mother’s Day until 9.00am on the Monday;
(b)with the respondent father for Father’s Day commencing 6.00pm on the Saturday preceding Father’s Day until 9.00am on the Monday;
(c)with each of the parents for their respective birthdays from conclusion of school or kindergarten (or 9.00am if a non-school day) until 9.00am the following morning;
(d)for the child’s birthday in 2020 and each alternate year thereafter, with the respondent father from 6.00pm on the day preceding the child’s birthday until the commencement of school or kindergarten (or 2.00pm if a non-school day) on the child’s birthday, and with the applicant mother, from the conclusion from school or kindergarten (or 2.00pm if a non-school day) on the child’s birthday until 9.00am the following morning;
(e)for the child’s birthday in 2021 and each alternate year thereafter, with the applicant mother from 6.00pm on the day preceding the child’s birthday until the commencement of school or kindergarten (or 2.00pm if a non-school day) on the child’s birthday and, with the respondent father from the conclusion from school or kindergarten (or 2.00pm if a non-school day) on the child’s birthday until 9.00am the following morning;
(f)with the applicant mother from 4.00pm Christmas Eve until 4.00pm Christmas Day in 2020 and with the respondent father from 4.00pm Christmas Day until 4.00pm Boxing Day in 2020 and each alternate year thereafter;
(g)with the respondent father from 4.00pm Christmas Eve until 4.00pm Christmas Day in 2021 and with the applicant mother from 4.00pm on Christmas Day until 4.00pm Boxing Day in 2021 and each alternate year thereafter; and
(h)such further and other times as agreed between the parties in writing.
Each year, the applicant mother’s time with the child be suspended from 6.00pm on the day prior to ANZAC Day until 6.00pm ANZAC Day, with the applicant mother to be provided make up time the following week.
The child shall communicate with the non-caring parent whilst not in that parent’s care on one occasion each week by video conferencing (Skype or FaceTime) to occur between 5.00 pm and 5.30 pm (or such other time as agreed in writing), with the caring parent to initiate the conference call to the non-caring parent.
Schooling
In 2020, the child attend the Town C Kindergarten at which he is presently enrolled.
Subject to paragraphs (13)-(16) of this Order, commencing in 2021, the child attend D School, to undertake his pre-school, primary and secondary school education respectively.
The respondent father pay all fees for the child’s education at the School.
The respondent father provide a copy of this Order to the School Registrar.
Should the child fail to secure enrolment at the School (pre-school or primary school), the child attend Town B Primary School and the respondent father pay all fees for the child’s pre-school and/or primary education at that school.
Should the child not be accepted for enrolment, or continued enrolment, at the School or Town B Primary School respectively, or should the respondent father become unable to afford the costs of the child’s education at either of such institutions, the following provisions shall apply respecting the child’s education:
(a)the parties be restrained, whether by themselves, their servants, their agents or howsoever otherwise from enrolling the child in any school (whether for primary or secondary school education), other than in accordance with this Order;
(b)not later than four (4) months’ prior to the commencement of school term, each of the parties be at liberty to nominate an alternate educational institution at which they might seek to enrol the child at school (being a primary or secondary school as the case requires) within 20 kilometres of Town B;
(c)the parties shall consult and make a genuine effort to agree upon the school to which application shall be made for the child’s enrolment for the continuation of his education;
(d)failing agreement, the parties shall participate in mediation with a view to reaching agreement upon the school to which application shall be made for the child’s enrolment for the continuation of his education;
(e)should the parties agree upon the school to which such application be made and the child be accepted at that school, he thereafter remain enrolled in such school unless otherwise agreed in writing;
(f)the parties be restrained, whether by themselves, their servants, their agents or howsoever otherwise from making any application under the Family Law Act 1975 (Cth) in relation to the enrolment of the child in any school unless and until they have complied with paragraphs 16(b)-16(d) of this Order.
Each party shall authorise any kindergarten or school where the child attends to provide to each parent, at their own expense, copies of all school reports, photograph order forms and newsletters and each parent shall be at liberty to attend all events, occasions and activities at the child’s kindergarten or school normally attended to by parents including, without limitation, assemblies, sporting events, extra curriculum activities, concerts, fetes/carnivals and parent teacher conferences and where such events require a restricted number of tickets, each parent shall receive one ticket for themselves prior to the allocation or designation of tickets to any other third party by agreement.
If either parent seeks to enrol the child in any extracurricular or sporting activity which will occur during the other parent’s time with the child, such enrolment shall not take place without the written consent of the other parent (and such consent shall not be unreasonably withheld) and both parents:
(a)shall facilitate the child’s attendance at such agreed activities;
(b)may attend notwithstanding the parent may not, on any given occasion, have the child in his or her care; and
(c)shall be subject to any restrictions on attendance or other requirements of any venue at which the child is in attendance.
Communication
The parties shall communicate by way of email or text message in relation to matters arising under this Order including in relation to the care, welfare and development of the child.
Each parent shall communicate in a child focused and civil manner including without limitation, at changeover.
The parents be restrained, whether by themselves, their servants, their agents or howsoever otherwise from:
(a)exposing the child to any family violence or parental conflict;
(b)using any device to record or photograph the child for the purpose of evidence gathering for court or other proceedings; and
(c)denigrating the other parent or parent’s family in the presence or hearing of the child.
The parties shall each inform the other immediately (or as soon as is reasonably practicable) of any serious illness or injury sustained by the child whilst in her or his care or other emergency (including disclosures or serious risk claims by the child) and further provide particulars of any treatment that is being recommended, required or received by the child together with the name and address of the treatment provider and/or location at which that child is hospitalised or in care.
Each party shall promptly provide the other party with information about the health and wellbeing of the child so as to afford them the opportunity to be involved in any discussions (and attend any appointments) which may arise with the child’s medical advisors.
Each party shall make available to the other party any medication prescribed for the child for the other party to administer as prescribed or required.
Each party inform the other of their current residential address, email address and contact telephone number and notify the other within 24 hours of any change to any of the same.
Other matters
Save in the event of an emergency, the applicant mother be restrained whether by herself, her servants, her agents or howsoever otherwise from engaging the child with any medical or allied health professionals without first obtaining the written consent of the respondent father.
The applicant mother comply with all reasonable directions of her treating mental health practitioners.
The applicant mother be restrained from conducting her employment as an escort from her residence at any time during which the child is staying with her.
The parties attend, engage and successfully complete an accredited Parenting Orders Program.
The parties attend family therapy with E Family Services and provide to E Family Services a copy of the s 11F memorandum, Dr F’s Family Report, a copy of this Order and (should they be requested by the service), a copy of these Reasons for Judgment.
Child support – departure order
The application pursuant to s 116 of the Child Support (Departure) Act 1989 (Cth) be dismissed.
Property
Declare, pursuant to sub-ss 79(1) and 79(2) of the Family Law Act 1975 (Cth), that the Court is not satisfied it is just and equitable for an alteration of property interests to be made in this proceeding.
Within thirty (30) days hereof the applicant do all such acts and things and sign all such documents as may be required to withdraw, at her expense, caveat no. ... (caveat) as registered upon title to the real property situate at G Street, Town B, in the State of Victoria, being the whole of the land more particularly described in Certificate of Title, Volume ... Folio ....
In default of the applicant’s compliance with paragraph (33) herein and pursuant to sub-s 106A(1) of the Family Law Act 1975 (Cth) as amended, a Registrar of the Federal Circuit Court of Australia be appointed to execute any documents necessary to withdraw the caveat.
Other
All extant applications be otherwise dismissed.
Within fourteen (14) days, the parties file and serve any submissions as to costs (not exceeding three pages, font 12, 1.5 spacing).
Any question of costs be decided on the papers.
AND THE COURT NOTES THAT:
A.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order are set out in the attached Fact Sheet and those particulars are included in this Order.
IT IS NOTED that publication of this judgment under the pseudonym Faraday & Faraday is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6986 of 2017
| MS FARADAY |
Applicant
And
| MR FARADAY |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain orders made respecting claims for parenting orders in relation to X born in 2015 (child), and an adjustment of property interests between parties to a marriage under the Family Law Act 1975 (Cth) (Act).
In summary, I have determined that as concerns parenting orders, the child should live with the applicant mother and spend time with the respondent father, progressing from a period of five days to six days in each fortnight and with the applicant for the remainder of the fortnight. A large number of ancillary orders have been proposed and considered. Contextually, I observe that the parties have each undertaken counselling and attended psychologists in an endeavour to provide them support in relation to the failure of their relationship and with this proceeding. Each of them has been the subject of a psychiatric examination. In an endeavour to assist the parties, orders were made providing for a s11F family consultant to consider the matter, together with a family report, and orders for therapeutic family counselling. Despite those endeavours, it presently appears that, while both parties clearly love and are loved by their child, he has now become (in the view of the family therapist):
. . . the pawn in the middle as both parents focus on each other’s vulnerabilities or parenting deficits and do not focus on the impact of their own behaviours [on the child].
In addition, the parties have been put squarely on notice by the family report writer of the extent of the damage which may be inflicted upon the child if they do not recalibrate their dealings with one another.
As concerned an adjustment of the parties’ assets, the applicant’s proposal was for a 40/60 adjustment of non-superannuation assets together with equalisation of superannuation in her favour of the respondent (together with orders pursuant to s 116 of the Child Support (Assessment)Act1989 (Cth) (CSAA)), whereas the respondent’s proposal was for no adjustment at whatsoever. I have concluded that the applicant has not satisfied the requirement that it is just and equitable for there to be any adjustment of property interests in this case.
Background
The parties, whose relationship began in 2010 and ended on 22 June 2017, were married in 2013. The child is the only child of their relationship. He will soon be aged five years.
The applicant, who is aged 29 years, is a qualified health care worker who works in the adult entertainment industry. The respondent, who is aged 47 years, had been employed as a security guard, but is presently unemployed as a consequence of injuries he sustained in two motor vehicle collisions, the first of which occurred in 2014. He has not worked since the first of those collisions. The respondent, who is of Country H heritage, had at one stage also been employed in the public service. He has also worked in his family’s business. He deposed that he was now unable to work.
Before the commencement of their relationship, in 2009 the respondent purchased a property in G Street, Town B (G Street, Town B property), using his own funds, assistance from his parents and mortgage finance which he obtained from National Australia Bank (mortgage).
The parties met when they were both working at, Employer J, in City K. The applicant has also worked in Melbourne – Employer L and the Employer M. As this required the applicant to work late at night and in the early hours of the morning, during their relationship the applicant often stayed in Melbourne on Friday and Saturday nights. The respondent contended that during the relationship the applicant worked Thursday to Saturday nights.
Upon commencing cohabitation in 2010, the parties took up residence in the G Street, Town B property. While the respondent’s affidavit deposed that cohabitation commenced in 2011, each of his Outlines of Case stated that it began in 2010.
The respondent contends that from the child’s birth in 2015 until final separation in early 2017, he has been the primary caregiver (by reason of the demands and hours of the applicant’s work and that he has not worked as a result of his injuries). He describes the applicant as working as a stripper and that she often stayed in Melbourne on weekends to sleep or spend time with her friends. He recounts that the applicant coped very badly with the needs of the child; in particular, that the child slept poorly and that the applicant became easily upset and/or abusive when engaged in comparatively simple tasks such as changing or feeding the child. As observed in the course of the hearing, the respondent did not appear to object to the applicant’s career choice during their relationship.
The applicant contended she had been the child’s primary care giver.
The parties initially separated on 3 May 2016. At the time that the applicant vacated the G Street, Town B property, the respondent was in Country N. He was clearly astonished at her leaving, particularly in circumstances where, as I accept, he had received messages from her “saying that she loved and missed me.” The respondent stated that upon disembarking in Melbourne, he was notified that, in his absence, the applicant had applied ex parte for a Family Violence Intervention Order (IVO) against him. The respondent’s confusion respecting the applicant’s position was compounded upon his return inasmuch that the parties continued in communication for the next two days with the applicant spending time with him on the third day.
Following their initial separation, the parties entered into a parenting plan whereby they agreed that the child should spend time with his father from 3:00pm Friday to 7:30pm on Mondays. The respondent stated that, despite these terms, he generally cared for the child for additional time including on Wednesdays and Thursdays. Pursuant to this written plan, the parties were agreed that they should have equal shared parental responsibility for the child.
It was common ground that on 13 May 2016, the applicant obtained the IVO against the respondent, doing so on the basis of alleged verbal threats that he had made when the applicant advised him of her intention to leave the relationship. The applicant grounded her claim for the IVO in part on the basis that the respondent was highly resistant to the child being removed from the home and had threatened her on several occasions. While the applicant alleged the respondent had stated he had killed people during the course of his employment (a matter referred to in the IVO application), he denied those allegations.
In answer to the IVO application, on 16 May 2016 the respondent brought his own IVO application against the applicant, naming the child as an affected person. Allegations were made that the applicant was a sex worker who had come from a broken home, engaged in substance abuse, suffered depression and suicidal ideation and had been abusive towards the respondent. He also alleged that the applicant had engaged periodically in outbursts of rage in the presence of the child stating “I can’t handle it” in respect of the care of the child, and that in 2016, he had returned home from a trip to Country N to discover that:
. . . she had left with [our] son, removed 90% of house contents and got an intervention order on me. Night before sent messages showing ‘We love you. Love Hearts.’ Multiple phone calls like all was normal.
The respondent maintained that he first became aware of the IVO when he disembarked in Melbourne from his flight from Country H.
On 25 May 2016, the parties agreed in mutual undertakings, operable for six months, not to commit family violence.
While the involvement of the Department of Health and Human Services (DHHS) is considered separately below, I note that neither party filed a Notice of Risk. DHHS only provided a report in response to a request made by the ICL shortly before the commencement of the final hearing.
On the respondent’s case, the parties were reconciled in July 2016; not November 2016. Whatever the precise position, the applicant and the child returned to the former matrimonial home, however the parties continued to argue. The parties engaged in marriage counselling, attending some six sessions. While the applicant also made arrangements for the parties to attend mediation, she maintained that at this stage the respondent declined to attend this mediation. On one view, the respondent had not been informed of the mediation.
The applicant consulted a general practitioner in Town B who referred her in January 2017, to Dr O, psychologist (Dr O), whom she attended upon for treatment. By June 2017, Dr O had seen the applicant on seven occasions. At that time, Dr O considered that the applicant did not meet the diagnostic criteria “for a Mental Disorder as per DSM-5”, however exhibited depressive symptoms and anxiety pertaining to marital difficulties. The respondent’s affidavit described in some detail the applicant’s symptoms of anxiety and depression, and the statement she made concerning her inability to cope with the care of the child, including by exhibiting to his affidavit several messages to that effect. In December 2018, the applicant ceased to consult Dr O.
In 2017, the respondent received a payment of $550,500 from the Transport Accident Commission (TAC). This sum was applied in part to discharge two mortgages over the G Street, Town B property with the balance ($271,000) being retained by the respondent but depleted in its entirety during the conduct of this proceeding.
One aspect of the proceeding concerns the respondent’s interest in breeding pets. The applicant contends that the respondent engages in breeding of pets for commercial gain. The respondent’s practice is to travel to Country N for some veterinary procedures. The respondent was so absent from 2017, at which time the applicant and the child left the G Street, Town B property. It was common ground that the parties finally separated on 22 June 2017. The respondent maintained he was unaware of the applicant’s intention to end the relationship, saying that she had encouraged him to travel to Country N and had sent him text messages expressing her affection.
Another feature of the proceeding is the parties’ use of Facebook and text messages. To this end, on 21 June 2017 the applicant advised the respondent that their relationship was at an end and proposed that they should revert to their previous parenting plan. It was the applicant’s case that the parties agreed the child would spend time with his father from 22-25 June 2017. However, after the applicant had delivered the child to the respondent, he refused to return the child and instead sought to meet with the applicant in an endeavour to retrieve the relationship. It seems clear that the respondent did not want the relationship to end.
Although the applicant again made arrangements for mediation, the respondent maintained that he had both contacted the proposed mediation service and agreed to mediation, but that the applicant refused to participate unless and until the child had been returned to her.
Since the parties’ final separation in 2017, the applicant has received no financial support from the respondent whether for herself or for the child. She has received no such support despite requests for relatively small contributions in relation to matters such as kindergarten fees. The respondent explains this on account of his lack of income.
Positions at trial
The parties’ submissions may be usefully contrasted by reference to their Further Amended Initiating Application (Amended Application) and Response, Outlines of Case, minutes of proposed final orders and submissions respectively.
Parenting:
The orders as sought by the applicant at trial initially aligned, in general terms, with the recommendations of a family report writer, Dr F. This is significant in part because the applicant filed Outlines of Case both for the initial trial (which was adjourned) and for the trial that was conducted over a period of nine days. Specifically, in each of her Outlines of Case, it was submitted that an order for equal shared parental responsibility was appropriate. Her case was run on that basis.
However, the applicant’s proposed final orders departed at the point where Dr F had recommended the child spend time with each parent, in effect, on a week about basis from the time the child was enrolled at school in Grade 2 or 3. The applicant submitted that the level of conflict between the parents was not such as to support a shared care arrangement.
By her Amended Application filed 9 April 2019, the applicant sought orders for equal shared parental responsibility and that the child live with her, spending time with the respondent on a progressive basis beginning with four nights in a 14 night cycle, and building to five nights in such cycle from 2021. Provision was made for the child to spend time during school and Christmas holidays, birthdays and on special occasions. The Amended Application also made provision for communication, changeover and ancillary matters. These proposals were mirrored by the applicant’s Outline of Case and her opening.
Those matters notwithstanding, the applicant’s final minute of proposed parenting orders filed on 18 October 2019 sought that the applicant be granted sole parental responsibility for the child. The changed proposal from one of equal to sole parental responsibility stood in marked contrast to the consistent position of equal shared parental responsibility that had been adopted in the matter since 2016.
By his Amended Response, Outlines of Case, opening submissions and minute of proposed final orders, the respondent consistently sought orders for equal shared parental responsibility. Again, in each of the respondent’s Outlines of Case, it was submitted that an order for equal shared parental responsibility was appropriate. However, the respondent sought orders that the child live with him and spend time with the applicant on a supervised basis, with provision for school and Christmas holidays and special occasions. At trial, the respondent’s proposed final orders bore little resemblance to the joint expert’s recommendations. He sought that the child live with him and spend limited time with the applicant on a supervised basis.
By way of overview, Ms Tulloch of counsel for the applicant opened the case on the basis, and maintained, that the respondent, being nearly 20 years the applicant’s senior, was a particularly difficult man with very strong opinions in relation to her choices of occupation and conduct, and one who adopted controlling measures toward her and her role as a mother. Mr Hutchings of counsel for the respondent maintained that the applicant’s mental health was such as to require that the child should live with his client and spend time with the applicant on a supervised basis. In this regard, the respondent placed heavy reliance on the evidence of a joint expert, Dr P; a psychiatrist who had consulted with each of the parties (on one occasion) pursuant to an order of the court. It was submitted that the applicant had engaged in several turbulent relationships and also moved residence on multiple occasions.
Consistently with the history of the matter above, in each of the Outlines of Case filed by the Independent Children’s Lawyer (ICL), it was submitted that an order for equal shared parental responsibility was appropriate. The ICL’s final Outline of Case proposed orders should be made which largely adopted the recommendations of Dr F. The ICL’s draft final orders reflected substantially the same position. Ms Stavrakakis, counsel for the ICL, opened the case on the basis that, although the parties were to adduce extensive evidence in contesting a range of issues, the parenting issues were not complicated inasmuch as it was clear that the child loved and was loved by each of his parents. It was also recognised that, despite the respondent’s allegations that the applicant suffered mental health issues, the parties had agreed on an equal shared parenting arrangement as far back as mid-2016.
As to more recent allegations of sexual assault of the child, counsel for the ICL observed that these matters had been investigated by both the Sexual Offences and Child Abuse Investigations Team (SOCIT) division of Victoria Police and DHHS, each of which statutory authorities decided not to pursue the matter. Although the applicant had been somewhat sceptical of the respondent’s allegations, the ICL submitted that the applicant had nonetheless taken them seriously and implemented the recommendations as made to her for the child’s care. Importance was also attached to the child being protected by alternative means, including an IVO to restrain the perpetrator of the alleged sexual assault from having any contact with the child. It was said that an IVO of that kind would, to some extent, operate to restrain that person from contact with the applicant. Counsel for the ICL also observed that the applicant had, of her own initiative, considered and proposed that the child might be seen by a child psychologist; however, the respondent had not agreed to this, instead adhering to SOCIT’s recommendations.
As between themselves, the applicant and respondent were able to agree on a range of matters concerning spend time on various occasions including birthdays, special days and holidays. In other respects they were not agreed. The central issues raised in the proceeding involved: parental responsibility; residence; spend time, and; changeover.
Adjustment of property interests
By her Amended Application, the applicant sought orders for the sale of the G Street, Town B property together with the payment of an unspecified sum to her and the balance to the respondent. This position was reiterated in the applicant’s Outline of Case.
In opening submissions, counsel for the applicant submitted that orders adjusting property interests should be made so as to transfer a sum equal to 40% of the net equity in the former matrimonial home and an equalisation of the parties’ modest superannuation interests. By her minutes of final orders, the applicant sought payment of $250,000.
By his Amended Response, the respondent sought an order to retain, to the exclusion of the applicant, all of his right title and interest in the G Street, Town B property, together with ancillary orders. In substance, the respondent’s case was that by reason of his significant injuries, he is, and will remain, unable to work and that his future needs are significant. Contrastingly, the respondent foreshadowed that the applicant had not been candid nor made proper financial disclosure of the true earnings from her escort activities. The respondent adhered to this position in his Outline of Case, submissions and minute of proposed final orders.
Child support
By her Amended Application, the applicant sought orders pursuant to s 116 of the CSAA so as to vary the annual rate of child support payable by the respondent for the period 1 July 2017 to 31 January 2020 from $0 to $7,800, to apply annually thereafter. This claim was repeated in the applicant’s Outline of Case. In opening, the applicant submitted that despite requests for relatively small contributions, the respondent had paid nothing by way of child support. However, no provision for such orders was made in the applicant’s minute of proposed final orders.
By his Amended Response, the respondent said nothing in relation to the claim for child support. Likewise, nothing was said in relation to the topic in the respondent’s case. In opening, it was submitted that account should be taken of the respondent’s unemployment and inability to work together with the contributions which the respondent made for the care and maintenance of the child when he was in the respondent’s care.
In closing submissions, the applicant abandoned this application.
Procedural history
On 29 June 2017, the applicant filed an Initiating Application in the City K Magistrates’ Court seeking parenting orders including by way of interim relief for a recovery order and an Airport Watch List order. By her Initiating Application, the applicant sought that the parties should have equal shared parental responsibility and that the child should live with her. No application was made respecting property interests.
By his initial affidavit, the respondent deposed to being unaware of the institution of the proceeding, stating that it was solely as a result of the coincidental attendance of his lawyer in the Magistrates’ Court at this time that he became aware of and promptly engaged in the proceeding. The respondent also denied having received any earlier communications from the applicant or her lawyer respecting the proceeding, and deposed to a belief that the applicant was attempting to proceed without notice to him. By this affidavit, he also deposed that the applicant earned between $2,000 to $4,000 per week from her work as an adult entertainer and that, after purchasing groceries, she kept her own money. He described that while the applicant had a poor relationship with her family, contrastingly, he shared a close relationship with his family and that the child had regular contact with his grandparents, uncles, aunts and cousins, including by an extended family dinner each Monday night.
On 30 June 2017, the respondent filed a Response by which he sought equal shared parental responsibility, but that the child should live with him and spend time and communicate with the applicant mid-week.
On 30 June 2017, a series of orders were made including for the parties to have equal shared parental responsibility and for the child to live with his mother. Orders were made that the child spend time with his father each weekend from Friday morning until Sunday and to have dinner with his father on Monday nights. The parties were also agreed that they participate in mediation and for the proceeding to be transferred to this court. Although the parties were legally represented at this hearing, the respondent disputed that the orders had been made by consent.
On 13 July 2017, the proceeding was transferred to this court. Thereafter, the parties issued a large number of subpoenas.
In mid-2016 and again in the period from 21 July 2017 to 25 August 2017, the respondent undertook surveillance of the applicant, doing so by means of a private investigator whom he had met socially. It is noted that each of the parties resorted to a practice of making recordings.
On 2 August 2017, the applicant filed a further IVO application against the respondent.
On 28 August 2017, an order was made for the appointment of an ICL and for a family consultant to prepare a report pursuant to s 11F of the Act. On 20 November 2017, the family consultant met with the parties. The s 11F report is addressed in further detail below. The parties did not agree to implement the recommendations contained in that report.
On 22 November 2017, orders were made, by consent, for each of the parties to attend upon Dr P, psychiatrist, for an assessment. The matter was adjourned for interim hearing on 2 March 2018 so as to address parenting arrangements including spend time and changeover; however, the parties were otherwise agreed that the existing parenting orders remain in full force and effect.
Dr P undertook psychiatric assessments of the parties in January 2018. It is convenient to observe (indeed, it is a feature of the respondent’s case), that Dr P considered the applicant was “likely to suffer from significant borderline personality traits or even a personality disorder”, which he considered rendered her “more likely than not to suffer from her ongoing reported erratic behavioural tendencies into the foreseeable future”.[1] Dr P’s opinion evidence was in contest.
[1] Dr P’s report respecting the applicant at p. 12.
On 6 February 2018, the applicant filed an Application in a Case seeking to discharge the consent order whereby the child would spend each week with the respondent, and proposed an alternative spend time arrangement together with a variation of the existing orders for changeover. The matters raised in this application were addressed by the respondent in some detail. Each of the parties filed further affidavits and written and oral submissions respecting the interim disposition of the matter.
In particular, by her case outline and affidavit, the applicant revealed that in 2018, she had commenced work as a registered escort and continued to work as an adult entertainer. The respondent contended that the applicant was working as an escort before the parties’ final separation and grounded this upon an assertion that she was tested regularly for sexually-transmitted diseases (STDs). That he has pressed her for details as to whether she has registered as an escort and of her work diaries serves to illuminate his interest in her working activities which he does in the context of this proceeding and the issues that are raised. Responding to a call, the applicant produced documentation confirming her registration as a sex worker with effect from 2018.
On 2 March 2018, the matter was set down for final hearing on an estimate of two days. Although the Application in a Case was dismissed, the parties were agreed in consent orders for the child’s spend time arrangements in relation to the parties and child’s respective birthdays, Mother’s Day, Father’s Day, Easter and Christmas time. The parties also consented in orders that they undertake supervised drug screens and for the applicant to engage in psychiatric treatment as selected or approved by the ICL. Orders for a family report were also agreed.
In April 2018, the applicant made a proposal to extend the time the child would spend with his father, doing so on the stated basis that this would reduce the number of changeovers that were required. Later, in August 2018, the applicant informed the respondent that she wished to revert to earlier spend time arrangements; however, the applicant then agreed to adhere to the existing spend time arrangements pending receipt of the family report. The family report was released late September 2018.
In May 2018, the applicant moved her place of residence from City K to Town Q, and from this time, consulted a psychiatrist, Dr R (Dr R).
In the interim, in 2018, the applicant ceased work as an escort and adult entertainer and commenced cohabitation with her fiancé, Mr S (Mr S). This relationship was short lived. It appears that the couple separated for a week in November 2018, after which they reconciled and the applicant resumed cohabitation with Mr S.
Following receipt of the family report on 24 September 2018, the child’s spend time operated in accordance with existing orders.
As at 2018, the applicant deposed to her intention to resume work as an adult entertainer; however, she said this did not eventuate.
In the period November – December 2018, the respondent set up a GoFundMe website, referring to the applicant as an absentee mother, and seeking public funding for his legal fees for this proceeding. In light of other aspects of the website, the ICL supported the applicant’s demand that the website should be removed and the respondent finally did so. He now accepts that it was inappropriate to have set up the website.
On 3 December 2018, the parties implemented minor changes to their shared care arrangements whereby the child was cared for by the respondent on alternative Fridays for a period of four hours and overnight Monday to Tuesday, and on alternate weekends from Friday morning to Monday morning.
Shortly before the appointed trial date, the parties filed an Amended Initiating Application and Amended Response respectively by which extensive parenting orders were proposed. A trial which was listed to commence on 3 December 2018 was adjourned by reason of the unavailability of an expert witness. Interim orders were made to enable the child to spend time with his father on alternate weekends from Friday morning until Monday evening. A further order was made restraining the parties from undertaking any formal or video or other form of recording or surveillance of the other.
The applicant and Mr S separated on a final basis in January 2019, with the applicant moving to new rental accommodation in Town C and resuming her work as an escort (doing so in part to meet her legal fees). At the same time, the applicant and Mr S issued mutual IVO applications against each other. The lawyers for the respondent and Mr S began communicating in relation to the applicant with the result that: (a) the respondent enlisted Mr S to file an affidavit in the proceeding; (b) a subpoena for Mr S’s attendance was issued late; (c) Mr S, who was not served, did not attend to give evidence.
In February 2019, the child commenced kindergarten at Town C. Despite the applicant’s request, the respondent declined to provide financial support for the child’s uniform or educational expenses. He also refused a request by the applicant that the child receive a flu vaccination.
At no stage has the respondent provided any child or other financial support to the applicant or the child, not doing so on the basis that he incurs other expenses on those occasions when the child is in his care.
As at trial, the orders made in December 2018 provided for the child to live with the applicant and spend time with the respondent on alternative Fridays from 10:00am until 2:00pm with an overnight stay on alternative Mondays and on alternate weekends from Friday 9:00am until Monday 7:30pm. Despite those orders, the parties varied the spend time arrangements by agreement to facilitate the child attending swimming classes. However, as will appear, there have been endemic problems in relation to changeover.
In the period April to June 2019, the respondent raised allegations that the child had been sexually assaulted by a “sugar daddy friend” of the applicant; a Mr T (Mr T). In substance, the respondent alleged that the child’s penis had been inappropriately touched by Mr T. By way of overview, I note that: (a) during bath time, the respondent recorded a discussion with the child in relation to the incident; (b) the respondent took the child to Victoria Police; (c) Victoria Police’s SOCIT division interviewed the child, undertaking a Video Audio Recording of Evidence (VARE); (d) Police and DHHS investigated the matter; (e) the respondent obtained an IVO against Mr T; (f) the applicant was informed of these matters and variously engaged with SOCIT and the Centre Against Sexual Assault (CASA) and informed the ICL of the matter; (g) SOCIT determined that no charge would be laid against Mr T; (h) the respondent pursued the matter against Mr T by means of an IVO application and an IVO was made operative until 2030; (i) Mr T appealed that order; (j) in early 2020, the appeal was dismissed in the County Court; (k) in June-July 2020, the parties took the opportunity to file further evidence and submissions respecting the County Court appeal.
As between the parties, there is no current or pending IVO. However, in light of allegations of sexual assault made against a third party (Mr T), there is an IVO in place relating to the child.
The introduction of allegations of sexual assault shortly before the trial date expanded the nature of the issues considerably including by reason of the further evidence adduced on subpoena from the Victoria Police and DHHS. As is apparent, the parties’ dispute has grown in intensity.
On 31 May 2019, the ICL was granted leave to inspect DHHS’s file. Inspection of that file was sought in circumstances where, as the respondent alleged, the child may have been sexually abused by a person with whom the applicant was residing. In consequence of those allegations, a series of further subpoenas was issued including to the Victoria Police SOCIT Unit, and the Sexual Assault and Family Violence Centre. Further, orders were made in the course of the trial:
a)permitting disclosure to the family report writer, Dr F, of the VARE transcript of an interview with the child;
b)permitting disclosure to the medical specialists, Dr P and Dr R, of the family report and of their respective notes; and
c)preventing persons other than the parties, the ICL and their legal representatives from being present in court at certain times.
Further, although the matter had been set down for hearing for two days, it was ultimately of nine days duration. The hearing was fragmented as a result of the need to adhere to existing court commitments for other litigants. This was most unsatisfactory. Further, in the course of the hearing, and as a result of the evidence given by Dr F, an order was made on 26 September 2019 by consent that the parties attend upon a psychologist (to be nominated by the ICL upon consultation with
Dr F) for therapeutic counselling and that a report from that nominee furnished prior to final submissions.
An affidavit was then filed by the nominated therapeutic counsellor, Ms AA, annexing her report; as to this, see [2] above.
Although it had been envisaged that, when the trial resumed on 20 February 2020, evidence would be heard from the respondent’s final witnesses followed by closing submissions, the matter took a markedly different course. With the support of the ICL, counsel for the respondent applied to adjourn the further hearing, doing so on the basis that his client wished to tender in evidence the Reasons for Judgment to be given in the appeal by Mr T against the making of an IVO together with the transcript of that hearing. The adoption of this course was opposed by the applicant (whose attendance at the Mr T proceedings, both the original hearing and on a de novo appeal, had been secured by the service of a subpoena). Although I accepted the submissions permitting the respondent an opportunity to file such further evidence, I did not do so in unqualified terms. In particular, I determined with the substantive agreement of the parties that the opportunity to file further evidence would be conditioned upon several considerations.
First, I required that all remaining witnesses attend to give evidence and be cross-examined. Secondly, the parties were agreed that they would each make closing submissions, subject to the receipt of further evidence comprised of any Reasons for Judgment, transcript and audio recording that was available from the appeal by Mr T referred to above. Thirdly, I placed a time limit upon the respondent’s entitlement to file any further evidence of this kind. Fourthly, I directed that if no further evidence was filed within that time limit, the matter would proceed to final determination upon the evidence adduced and submissions made by the close of hearing on Friday, 21 February 2020. Fifthly, I have afforded each party an opportunity to file any further submissions, confined to the question of parenting orders, in writing, within a fixed time after the filing of any Reasons for Judgment, transcript or recording from the Mr T appeal. As to this issue, I also stated I would provide reasons for my decision to afford the respondent an opportunity to file further evidence of the kind described above. Finally, in consequence of the Covid-19 pandemic and in light of various difficulties encountered in obtaining a transcript of the County Court proceedings, I acceded to the parties’ request for a further extension of time in which to file further evidence and submissions. Each party filed further submissions.
Another development which occurred when the hearing resumed in February 2020 related to an affidavit that was filed by the respondent to address further matters which had occurred in the intervening period. While I address the matters raised in that affidavit below, I note that counsel for the ICL submitted that the matters raised by this affidavit had been the subject of detailed consideration with the ICL and that the ICL had “ached” over the issue of parental responsibility and the submissions which would be made in the best interests of the child. In my view, the manner in which the ICL and counsel responded to the matters raised by this affidavit were entirely appropriate. Indeed, they reflected the quite independent stance taken by the ICL and counsel throughout the conduct of the hearing before me. I record my gratitude for their assistance. I do so, in particular, having regard to the strident submissions which were made on behalf of the respondent respecting the ICL’s conduct.
A final development which occurred before the parties’ closing oral submissions was that the applicant, without earlier warning, adopted the position that an order for sole parental responsibility should be made.
By the time this proposal was first raised, nearly all of the evidence had been called. As raised with counsel for the applicant, at no stage had an application been made to amend the Amended Application so as to alter the course which had been consistently advanced by the applicant. While a faint attempt was made to identify a passage of cross-examination from which, it was suggested, some notice had been given for an intention to change course, I am not persuaded that the respondent, ICL nor the court were given proper notice of this proposed change. However, as all counsel accepted, the authorities make clear that the court may ultimately determine it is appropriate to make orders in the best interests of a child which differ from those which they propose. Indeed, and as counsel for the applicant accepted, having regard to the matters raised by the respondent’s final affidavit (upon which he was not cross-examined), a conclusion that it was not in the child’s best interests for both parents to have shared parental responsibility might have resulted in the making of an order for sole parental responsibility in favour of the respondent rather than the applicant.
The evidence
Notwithstanding that the matter had been listed for two days, by their respective Outlines of Case, the following evidence was identified:
a)applicant: three trial affidavits and a financial statement together with affidavits of Drs R, O and F;
b)respondent: trial affidavit and a financial statement together with affidavits of Messrs R, CC, FF, U, HH and S and the affidavits of Drs P and F;
c)ICL: the affidavits of Drs P and F, the s 11F report together with various documents produced on subpoena.
The parties relied upon a vast amount of evidence. I have taken the opportunity to consider it in some detail.
Evidence was called from each of the parties and the following witnesses: Ms CC, Ms FF, Ms DD, Mr U, Dr R, Dr O, Dr P and Dr F. Documentary evidence where relevant, is described in these reasons for judgment.
Despite service of their affidavits and reference to them in the respondent’s case outline, evidence was not called from Ms HH or Mr S. In particular, although his Outline of Case and opening indicated that reliance would be placed upon the evidence of the applicant’s former fiancé Mr S, and Ms HH, neither of those witnesses were called.[2] There was some substance in the complaints by the applicant’s counsel that the failure to call the evidence of those witnesses was not adequately explained. While the applicant prepared a further affidavit made on 19 June 2019 in relation to a number of the additional witnesses served with the respondent’s trial affidavit, it has not been necessary to refer to that evidence in those areas where those other witnesses were not called and could not be cross-examined.
[2] Quite late in the course of the hearing, a number of attempts were made to serve Mr S with a subpoena. The closest the process server apparently came to effecting service was to communicate, it was said, with Mr S’s twin brother who appeared not to be wholly co-operative.
While the medical reports contain some useful insights in relation to the nature of each party, for the most part I considered they each attempted to give their evidence in a forthright way. The parties were naturally invested in the acceptance of their respective cases.
The applicant seemed to give her evidence in a measured form. At times she was insistent in her evidence in a way that resonated with me, while at others, I thought some answers seemed inherently implausible. As the matter progressed, I became more troubled by her evidence. I am satisfied that on occasion the applicant deliberately withheld evidence and that she was prepared to change her evidence when it suited her. I agree in the submission that, with essentially two exceptions, the applicant presented herself in the witness box in a monotone and deadpan manner. The exceptions arose when she vigorously denied having been sexually assaulted by her father and when she rose to the defence of her mother in terms of her mental state. A psychiatrist who assessed the parties, Dr P, observed the applicant to present in a similar manner. Her evidence was given in a particularly controlled way. On one view, this was to her credit as indicating a desire to give a considered answer. However that may be, some of her evidence showed that she had withheld important matters from the court and only addressed them when pressed to explain why she had not done so earlier.
The respondent attempted to give his evidence in a truthful and direct manner. He was essentially candid and honest and prepared to make admissions against interest. It was a feature of the respondent’s trial affidavit that he separately answered each 332 paragraphs of the applicant’s second trial affidavit: see at [58](a)-[58](ddddddddddddd).
It is convenient to record that each of the lay witnesses were generally impressive in the manner in which they gave evidence.
Likewise, the experts, who were not challenged as to their expertise, gave their evidence in an independent manner as I would have expected. Where I take occasion to make observations in relation to particular aspects of their evidence, it is addressed below.
The following findings are based upon an analysis of the parties’ affidavits, viva voce and documentary evidence and the inferences which I consider are properly made. The matters set out below include both matters that were common ground, including from their outlines, and my findings of fact upon particular issues. Matters addressed above in my summary of the background and history are incorporated in my findings. Given the parties’ tendency to debate the minutiae of their history, and having regard to their definition of the issues in dispute, in many cases it has not been necessary to decide, as a matter of probability, which of the parties’ allegations or counter-allegations are to be preferred.
Where the parties had agreed upon a fact or circumstance in their affidavits or case outlines, I have taken account of that matter. Where issues of dispute arose, I have addressed them separately. In deciding disputed issues of fact, I have applied the civil standard of proof to the resolution of that issue.[3] The more serious the allegation, the more necessary it was that I took into account the gravity of the allegation in deciding whether it was made out.[4] Where the evidence does not permit the court to make an affirmative finding either way on a particular issue, the court is not bound to do so, and may find that the party which bears an evidentiary onus of proof has failed to discharge it.[5] The court may well accept some parts of a witness’s evidence and reject other parts of it.[6] The court, in reaching a decision, is not required to refer to every piece of evidence or submission presented during a trial.[7] I have applied these principles in making findings upon the evidence adduced at trial.
[3] Evidence Act 1995 (Cth), s 140.
[4] cf Evidence Act, sub-s 140(2); Johnson v Page (2007) FLC 93-344, [72]; Briginshaw v Briginshaw (1938) 60 CLR 336.
[5] Kuglioski v Metrobus (2004) 220 CLR 363.
[6] Jabour & Jabour [2019] FamCAFC 78, [110] and cases cited.
[7] Bell & Nahos [2016] FamCAFC 244.
Section 11F report
Following orders made in August 2017, the parties were due to attend an interview on 20 October 2017 for a s 11F report. The consultation was delayed as the respondent was travelling overseas.
On 20 November 2017, a family consultant conferred with each of the parties. A difficulty which occurred in this regard was that the family consultant who had been assigned to undertake the consultation had been involved in a car accident, with the result that another consultant stepped into the breach. A consequence of this outcome was that the new family consultant had been unable to consider the material in any detail before the consultations occurred. The respondent was aggrieved by this turn of events and critical of the family consultant for not being fully prepared for the meeting.
At this conference, the parties were agreed each parent should play a role in the life of the child. The family consultant noted the issues which were then in dispute between the parties including as to: which of them was the primary carer (it being considered plausible that each of them had played this role); whether the applicant suffered a mental illness; whether the respondent was deliberately demeaning of the applicant (or acting protectively of the child); and, the level of entrenched conflict that existed between the parties.
The family consultant obtained a history from each of the parties as to allegations of family violence characterised as the respondent exerting emotional and psychological control within the relationship and as constantly describing the applicant as being “crazy”. The family consultant stated the respondent had agreed that he had taken the applicant through a definition of bipolar disorder and claimed that he had done so in an effort to assist her understand her mental health issues. The respondent’s trial affidavit contested that this was so. As he saw it, the family consultant had simply put the applicant’s version of events to him and allowed him an opportunity to respond. However, the respondent agreed that he raised questions about the applicant’s mental health and accepted that he may have been defensive in relation to the allegations being put to him.
As will appear, the applicant would later describe finding herself in a similar environment when undergoing a psychiatric evaluation by Dr P. She encountered a situation where, she said, the respondent’s allegations were being put to her and she had been defensive in that situation. Dr P made adverse findings respecting the applicant.
At all events, parallel allegations of controlling behaviour were made by the respondent against the applicant including that, as he claimed, she did as she pleased without any regard for him. Each of the parties recounted episodes of anger on the part of the other.
Concerning the question of drug and alcohol abuse, the family consultant noted the respondent’s observation as to the applicant’s work environment but that he had not raised any other specific concerns. In her trial affidavit, the applicant acknowledged having occasionally used illicit substances in her early 20’s, and stated that the consumption of alcohol was limited and that she did not drink daily. The respondent contested her version, stating that he had collected her after she had been at a party with friends, finding her to be drug affected. He described the evidence as being inconsistent and examined the various occasions on which the subject had been discussed with her by other expert witnesses, in effect using his affidavit as a forum within which to make submissions. In fairness, he was not alone in the adoption of that stance.
For her part, the applicant expressed concern at the respondent’s use of Endone for pain relief from the injuries he had sustained in two motor vehicle collisions. As to this, the respondent stated that he rarely used this medication other than to control the pain arising from those injuries.
In relation to the question of mental health, the family consultant observed that the respondent held an unshakeable and deeply felt belief that the applicant had a diagnosable mental health issue, believing it to be either a bipolar disorder or a personality disorder. The applicant accepted that she had, on occasions, been treated for depression and anxiety, but stated she was not receiving treatment for such conditions at that time. She also recounted the advice of her psychologist that she did not meet the criteria for the types of disorder being suggested by the respondent.
As concerns child protection issues, the applicant had recounted being concerned upon receiving a text from the respondent in which he enquired whether the applicant wanted him to send her a photo of the child’s first erection. She also described other photos which the respondent had sent her relating to the child’s lack of toilet control. While this was inappropriate, the evidence confirms that the applicant was quite willing to employ any communication from the respondent in the pursuit of her allegations against him. As the family therapist observed, the parties were often more interested in focusing on each other’s vulnerabilities and deficits than the child’s best interests.
The family consultant observed that the parties’ communication was poor and for this reason they had employed text messaging. It was recognised, correctly, that having regard to the child’s age, the lack of a more effective means of communication will likely prove problematic if it is not improved in the future.
While the respondent acknowledged the applicant’s love for the child, he maintained his belief that the child did not wish to be with her and that the child’s behaviour at changeover (which involved the child crying at the point of handover to the applicant), indicated to the respondent the child was not “as bonded” to the applicant as he was to the respondent. In this context, the respondent also alluded to the strong bond which the child apparently held with his extended paternal family. The family consultant observed that the significant age difference between the parties might in part explain some of the problematic issues which existed. By contrast, the family consultant observed the applicant to hold a more beneficial view of the respondent and that she accepted the child needed a father in his life and that she wanted him to have a good relationship with the respondent. However, the applicant expressed concern at the respondent’s decision to deliberately withhold the child on the occasion which was the catalyst for the institution of the proceeding. The applicant also indicated a willingness to give up weekend work in order to spend time with the child (which was not available under current arrangements).
The family consultant observed the child to be delightfully energetic and engaging and as having a good grasp of language. She observed the child as having a very close relationship with both of his parents and considered that equally, both parents appeared to have very good and strong relationships with their son; a matter considered as being most likely due to the constancy that each of them have provided since birth. She observed the child to settle quickly in the care of the applicant.
The family consultant also recognised the child’s need for security and stability and time with each of his parents, considering that his best interests would be served by having a primary home with one parent and regular time with the other. It was recommended the child live with his mother. Given the child was then of a young age, this recommendation was perhaps unsurprising. A further recommendation was made that the child spend substantial and significant time with his father; four nights per fortnight weekend time to be shared equally between the parents.
A recommendation was made for a comparative psychiatric assessment of both parents. This was accepted and implemented by court orders. In addition, evidence was adduced from a series of medical practitioners who addressed the applicant’s mental health.
The parties’ evidence
I incorporate the findings set out above in my overview of the proceeding.
The parties each described the birth of the child as being planned and much wanted and stated that he was a healthy baby and remained in good health. Other independent evidence confirmed their view.
The respondent maintained that following the child’s birth in 2015, he was his primary carer. While he fixated upon the fact of the applicant’s weekend work in Melbourne (and her absence from the G Street, Town B property), equally, it is clear that he underwent surgery about a month before the child’s birth which rendered him incapacitated, leaving the applicant responsible for the care of the child during infancy until her return to work. The applicant undertook the respondent’s care during his post-operative recuperation. During that time, it also fell to the applicant to feed and care for the respondent’s pets, snakes and other animals. Following the applicant’s return to work, the respondent undertook the care of the child from Friday nights and on the weekends while the applicant was working in Melbourne.
Standing back from the matter, it is clear that the respondent has not worked since 2014. Since that date, the respondent has undergone a series of surgeries with prolonged periods of rehabilitation and recuperation. He has been incapacitated to the point where he was in receipt of fortnightly compensation payments from TAC until receipt of a large lump sum payment in 2017. Further, it can be seen that from the child’s birth in 2015 until final separation in mid-June 2017, the parties’ relationship was also interrupted from May 2016 until September 2016 by their initial separation. It is also clear that when the applicant was not working during this period from Sundays to Thursdays, she and the respondent both undertook the care of the child.
When the parties first separated in May 2016, the child was then aged nine months. The respondent contended that the parties were reconciled in 2016. At all events, they travelled overseas to celebrate the child’s first birthday, including travel to Country H for a month. The respondent deposed that the parties resumed cohabitation at the G Street, Town B property after returning from this overseas holiday. The applicant agreed the parties had taken the holiday to Country H adding that they had also travelled to Country VV shortly before final separation. I accept that this is a likely chronology of events.
The child was aged 22 months at final separation in June 2017. The applicant explained her conduct in vacating the G Street, Town B property at a time when the respondent was overseas as she feared his reaction. By contrast, the respondent identified the applicant as having lived in the following locations since separation: City K, Suburb QQ, Town Y, Town W, Suburb FFF and Town C. That the applicant has moved on such occasions may be explained in part by the circumstance that the applicant has had no financial support and has been essentially financially self-reliant for the housing and care of herself and the child. Since separation, the respondent has continued to live at the G Street, Town B property which is unencumbered.
Viewed objectively, the parties’ competing claims to having been the primary carer of the child are to be seen in the context that any such care occurred in the relatively limited period from mid-2015 to mid-2017. Although the parties are now highly conflictual, the child seems to have formed a good attachment to both of his parents.
Another feature of the case related to the number of other relationships which the applicant had held since separation. The respondent accepted that the applicant was free to conduct her personal life as she saw fit but expressed his concern for the child’s welfare, including that the applicant demonstrated a lack of vigilance in exposing him to people before she had taken the opportunity properly to know them and determine whether they would be trusted figures in the life of the child. Relatedly, the respondent pointed to certain IVO applications involving the applicant and others. He contends that the environment that he can offer is more stable and consistent than that offered by the applicant.
Parenting and changeover issues
Following separation, the applicant continued in her employment and having regard to her hours of work, the child lived with the respondent from Friday morning until Sunday afternoon. The applicant contests the respondent’s claim that he has been the child’s primary caregiver at all time. The respondent’s claim is to be seen in the context of the combined circumstances that: the applicant had been almost continuously employed throughout the parties’ relationship; the parties were partially reliant upon her income following the respondent’s accident in 2014; the applicant’s hours of work were largely of an evening or early morning; and, save for weekends, the parties were living together at the G Street, Town B property.
Although the parties were able to agree a parenting plan in May 2016, its terms had been agreed in circumstances where the parties had been separated for 22 days and the applicant was working as an adult entertainer on Friday and Saturday nights (which she had done during the parties’ marriage). Insofar as changeover was concerned, the parenting plan recorded the parties’ agreement that the applicant would deliver the child to a petrol station in G Street, Town B and collect him from the residence of the respondent’s parents.
Following the parties final separation in June 2017, the applicant sent the respondent a text message proposing that they should revert to the terms of their 2016 parenting plan. In a text message sent by the applicant to the respondent, she recorded that it was the only way she felt safe but that there was “absolutely no way that I would ever keep him from you!” In a series of text and Facebook messages sent by the respondent to a friend and his mother respectively at that time, he variously stated that; he “had [the child] now”; he “would not be returning him back”; that things would now “be on his terms”; and that the child “loved him the most”. The paternal grandmother advised him that they really couldn’t do anything if the applicant did not wish to live with him and that he should “concentrate on getting [the child]”. In this series of messages (which seemed to be a form of chat-line), a friend advised him that the Police could not do anything about the situation.
I consider that Trang v Kingsley is distinguishable on several bases. First, the essential premise for the decision in Trang v Kingsley was that, upon the uncontested findings referred to above, identification and valuation of the wife’s property interests was unattainable and, consistently with authority, it could not be concluded that an order would be just and equitable unless it was measured against the whole of the parties’ available assets.[234] Secondly, the analysis of the trial judge, Cronin J, made plain that the underlying justification for the conclusion that it would not be just and equitable for any adjustment of the husband’s property interests was that, when account was taken of a sum of more than $250,000 (which she was found to have already taken), no further adjustment was appropriate.[235] Thirdly, the case did not decide that sub-s 79(2) was not satisfied; to the contrary, his Honour was clear that it would be just and equitable for an adjustment to be made in circumstances where, at one point, the parties’ main asset was represented by the net proceeds of sale, all of which were under the control of the husband. In my view it is clear that the decision was made under sub-s 79(4) of the Act. Fourthly, the critical issues, which were largely dispositive of the claim and adversely to the wife, were that she had already taken $250,000 from the asset pool, not accounted for her assets and abjectly failed to make full and frank financial disclosure. The Full Court did not disturb the decision below for the substantive reason that no error was identified in the conclusion that no further adjustment was appropriate, including on an uncontested finding that the wife had probable received more than $250,000.
[234] [2017] FamCAFC 120, [46], citing [2016] FamCA 790, [64].
[235] [2016] FamCA 790, [93]-[94] (Cronin J).
The present case presents an entirely different kind of problem. In particular, the question of whether it is just and equitable that an adjustment of the respondent’s property interests should take place arises in the context that the parties are in heated dispute as to, amongst other things, the applicant’s true income, and the extent of the cash which was removed from the safe in 2017.
In particular, it is clear that an unchallenged finding in Trang v Kingsley was that in the period immediately prior to, and following, separation, the wife had the use of funds being in an amount “probably in excess of $250,000”, which had not been adequately explained, and that this was compounded by financial non-disclosure (a further finding that was not unchallenged on appeal).[236]
[236] [2017] FamCAFC 120, [3]-[4], [20], [32]-[39].
By contrast, in the present case the applicant’s income was not common ground. Nor was it conceded or, in my opinion, established that the applicant had probably removed an amount of cash of $170,000 or $190,000 from the safe. Accordingly, while I consider Trang is distinguishable, these issues raised by s 79(2) require consideration.
In my view, the present case may also be distinguished from Stanford. There, the reasoning accepted that in light of the husband’s financial circumstances, including the arrangements which he had made to care for his dementia-affected wife, no sufficient regard had been paid to the effect which a sale of the property (which he had owned before the relationship) would have upon him, in circumstances where the wife’s further needs could have been met by an order for maintenance. The High Court affirmed that it was not just and equitable, in a claim pursued at the suit of the wife’s children, for any adjustment to occur.
Viewed from this perspective, Stanford does not entirely illuminate how the question posed by sub-s 79(2) of the Act is to be answered in a case where, in reality, the sale of one party’s property may be the only source of funds by which a payment to the claimant party can be achieved. With those considerations in mind, the respondent’s case might have been framed as a submission that the claim ought to be decided on an asset by asset basis, such that the applicant should not share in any part of the G Street, Town B property or his superannuation interests. On an asset by asset basis, the remainder of the asset pool was approximately $111,000. Had that approach been taken and it been concluded that there should be no adjustment respecting the G Street, Town B property or superannuation, the applicant’s claim may have been evaluated against that sum.
Having identified those matters, I turn to address particular factors which compete for consideration for the purposes of sub-s 79(2) of the Act.
First, I regard as significant the extent to which these parties kept separate their financial affairs. I have examined that issue above and to avoid repetition, incorporate those findings for present purposes. I also attach weight to the circumstance that the maintenance of separate financial affairs was a matter which, objectively, the applicant desired to adhere to. I accept, for example, the respondent’s evidence that on the occasions he needed financial assistance to meet his mortgage liabilities and which was provided by the applicant, such assistance was treated as a loan. While the terms of the advances were not proved, I also accept that the respondent obtained financial assistance from family or friends to meet mortgage liabilities. Relatedly, I also accept that the applicant maintained the view that the respondent’s many animals were his personal responsibility, including the costs of their feed and care.
In this respect, I adopt the reasoning identified in Chancellor & McCoy, that it is irrelevant whether the parties’ separation of their financial affairs was the product of a conscious and deliberate decision, or simply arose as a result of assumptions, or upon a preference of one or both of the parties. I also agree that what is of relevance for immediate purposes is that the parties adhered to a position of financial independence respecting their property interests throughout the period of their six to seven year relationship. There was no suggestion in this case that the maintenance of separate financial affairs was the result of any coercion on the part of the respondent. Nor is there any basis for a suggestion that the present was a case in which, in effect, the respondent had arrogated to himself control of the parties’ financial affairs. To the contrary, it is clear that these parties were financially autonomous. Had this issue been squarely raised I would infer that the applicant rather than the respondent had been insistent on maintaining financial autonomy.
Viewed collectively, the manner in which the parties maintained their financial affairs on the basis that they were separated undermines a finding that the common use of the G Street, Town B property was based upon any express or understated assumption as to their existing or future property arrangements. It also undermines any assumption as to how the parties thought they might ultimately share in the property of the other by way of redistribution of their respective legal and equitable interests in such property, if their relationship was to founder.
Secondly, consistently with Trang & Kingsley (and no doubt a great many other cases), it is not unimportant to recognise that it is the applicant who is seeking an adjustment of property in this case, and that for all practical purposes, the focus of the application is the G Street, Town B property and superannuation interests. In reality, there is no other significant property comprised in the asset pool, and the applicant’s claim is to be seen as one made upon property and interests which were owned by the respondent, to which she has made no financial contribution, and where the parties’ non-financial contributions were otherwise equal. It is open to find, as I do, that the applicant’s financial contributions were relatively modest, and that they may be properly seen as being referrable either to loans or to her occupation of the home for the period that she enjoyed the common use of that property.
I have otherwise considered the parties’ non-financial contributions, including as to the welfare of the child, and the other factors referred to above. I have considered this aspect of the matter on the basis that I should attribute an equal weighting to non-financial contributions and to contributions to the child’s welfare. For the sake of completeness, and as should be apparent, I confirm that I have not decided the issue under sub-s 79(2) of the Act solely by reference to sub-s 79(4) factors.[237]
[237] Chancellor & McCoy (2016) FLC 93-752 [42].
Thirdly, I accept that the respondent owns the legal and beneficial interest in the G Street, Town B property which he had acquired before the commencement of the relationship, and that the mortgage liability was, in practical effect, borne by him, and has been discharged from monies owned by him alone; namely, from the lump-sum TAC payment which he received. The G Street, Town B property was acquired by the respondent applying: (1) his contributions; (2) the support received from his parents, and; (3) bank finance. I am not prepared to accept that, to the extent that the applicant made any contributions toward the mortgage, this represented any true financial intermingling of the parties’ affairs.
Fourthly, the parties’ affairs were conducted throughout the relationship in a way that ensured neither acquired an interest in the property of the other; there was no intermingling of their finances; they did not have a joint bank account; they were responsible for their own debts; the applicant retained the cash from her endeavours; the respondent retained his disability payments; there was no evidence of the parties’ acquiring property jointly; nor was there evidence of joint decision making or sharing of information on financial issues. As described above, I accept the respondent’s evidence that such advances were made by way of loan, which were treated as being repayable at all times.
Fifthly, as noted above, while there was dispute about the extent of the financial contributions made by the applicant in relation to the G Street, Town B property, no independent expert or other evidence was adduced upon which a finding could be made that any such contributions had improved its value. In my opinion, the court would be quite unjustified in making any assumption of improvement in the value of the property (including in relation to the spa), particularly in the circumstance that it seemed to be largely common ground that the applicant had also removed a great deal of the furniture and effects which had been acquired by her during the period of the relationship.
Sixthly, there is no evidence of the parties having made an informal agreement in relation to whether they would share or adjust their interests in property, either during the subsistence, or following the failure, of their relationship. Nor is there any evidence of either party having made provision for the other in the event of death, whether by the terms of any will, insurance policy or under a deed governing their superannuation interests. The absence of such evidence also serves to undermine any assumption that the parties intended one another to share in their respective property interests upon their death. In addition, the evidence confirms that there has been no common use of the property since separation. Collectively, in my view, those matters deny the availability of a finding that the parties had either agreed or assumed there would be any redistribution of their respective property upon the termination of their relationship.[238]
[238] Chancellor & McCoy (2016) FLC 93-752 [36].
Seventhly, I find that the applicant had failed in her duty of financial disclosure.
The united force of the facts and circumstances referred to above supports an inference[239] that the applicant has significant earnings. Further, I am entitled to take a more robust view in making findings of the applicant’s income, in light of her financial non-disclosure, and I do so. Viewed collectively, I am persuaded that the applicant’s earnings were far in excess of $40,000 per annum. I am, however, not able to make an affirmative finding that the applicant had earnings from her work in the order of $200,000 per annum. The circumstance that the applicant would send text messages, in effect, celebrating her earnings of $1,400 to $3,000, may indicate that these were particularly successful evenings. However, they lend support to the evidence that, on occasions, the applicant may have earned $5,000 to $8,000 per week.
[239] Transport Industries Ltd v Longmuir (1997) 1 VR 125, 141 (Winneke CJ, Tadgell J); Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62, [445], (Bromwich, O’Callaghan and Wheelahan JJ).
On the whole of the evidence respecting the applicant’s income, I am unable to find that the contents of the safe at the G Street, Town B property at the date of final separation included cash of $170,000 or $190,000. Whatever doubts I may entertain concerning the applicant’s evidence that she took $5,000 from the safe at that time, it would be mere speculation to find that the applicant had taken a sum of the magnitude being suggested by the respondent, whose evidence on this issue I considered likely to be extravagant. It is trite that the disbelief in the case presented by one party does not necessarily permit the court to conclude that the positive case of the opposing party is correct, and that disbelief in the evidence of one witness does not establish the contrary. Instead, in some cases the court may not be able to reach an affirmative finding either way.[240] Particularly is that so where the allegations made against a party are grave.[241] I find myself in precisely that position.
[240]Kuglioski v Metrobus (2004) 230 CLR 363, [60] (The Court).
[241]Evidence Act, para 140(2)(c).
In answer to a question from the court, the applicant said that she had removed all of the cash that had been in the safe, and maintained that this had been $5,000. I found her answers in relation to this topic to be quite unconvincing. I am quite conscious that, in general, the court should abstain from finding that a person had deliberately given dishonest evidence, unless it is necessary to do so.[242] It is not necessary to find that the applicant was deliberately dishonest. While I abstain from making that finding, it is sufficient to find that I did not believe her evidence that she had taken only $5,000 from the safe. In this context, I am reminded of the submission of counsel for the respondent that, with two notable exceptions, the applicant maintained a wholly fixed stare when giving her evidence. The evidence of Dr P was to the same effect. In giving her evidence as to the movement of cash from the safe, she held that pose. As observed in the course of submissions, the present case was one in which the court could observe the parties over a reasonably prolonged period of nine days. There was force in the submission that the applicant maintained that entirely expressionless pose for the vast majority of her evidence. I abstain from basing my finding on any observations made of the applicant while in court.
[242]Smith v New South Wales Bar Association (1992) 176 CLR 256, 268, 271.
For the avoidance of doubt, my disbelief of the applicant’s evidence that she had only taken $5,000 from the safe upon final separation cannot be converted to an affirmative finding of what amount of cash had in fact been taken. While I can make no affirmative finding as to whether a sum of $170,000 was removed by the applicant, I found her evidence as to the sum which had in fact been removed to be quite unconvincing.
I have concluded the respondent has not discharged the evidentiary onus of establishing as a matter of probability that the safe contained a sum of $170,000 to $190,000 which the applicant had removed at the time of final separation. I decline to make that finding, particularly having regard to the gravity of that allegation. That being so, I cannot have regard to this alleged sum in the consideration whether or not it would be just and equitable for an adjustment of property interests to be made.
My preparedness to be not unduly cautious in making findings against a background of non-disclosure does not, however, entitle me to make affirmative findings of fact as to the sum held in the safe at the date of separation. Nor does it entitle the court to reduce the contributions of the party found to have failed in their duty of financial disclosure. What it may entitle the court to do, is to increase the asset pool on account of the non-disclosure, or alternatively, to make an adjustment in favour of the party on that account: Gould & Gould.[243]
[243] [2007] FamCAFC 609, [26]-[27] (Bryant CJ, Finn and Boland JJ); see also Kingsley & Trang [2016] FamCa 790, [66]; Hua & Liu [2019] FamCA 732, [359]-[363], (Williams J).
In the context of sub-s 79(2) of the Act, I regard it of greater significance for the purposes of confirming the applicant’s view that the parties’ finances were strictly their own and that she had removed the entirety of the cash contained in that safe and ‘cleaned out’ the G Street, Town B property when she left (on two occasions). The same may also be said in relation to the taking of the whole of the net proceeds of sale of the units from the property development, and also of the monies standing to the credit of the child’s bank account. Relatedly, the applicant has also retained the various assets identified above, the value of which is unknown in the circumstance that the applicant has been so resistant to making financial disclosure in a way that permitted them to be valued.
My finding as to non-disclosure is also of significance to an evaluation of whether it is just and equitable to make an order adjusting, what is in reality,[244] the respondent’s property and superannuation interests. In the face of financial non-disclosure, the determination whether it is just and equitable to adjust property interests requires that the court give consideration to both the known and potentially notional assets, irrespective of whether they can be identified and valued.[245] Where, by reason of financial non-disclosure, a party has put it beyond the reach of another party to a property application (and thus the court) to identify and value all of their property, an assessment of the justice and equity of the case requires the court to do the best it can. It is then a classic example of the rule in Blatch v Archer[246] that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.” The rule is no less available as against a person who bears the onus of proof: cf Anderson & Senior.[247]
[244] Trang & Kingsley [2017] FamCAFC 120, [34].
[245] Ibid, [46], citing Chung & Su (2002) FLC 93-117, [89,195]; see also Toohey & Toohey [2017] FamCA 601, [151]-[152]; Medapati & Revanka [2019] FamCA 274, [51] (Forrest J).
[246] (1774) 98 ER 969.
[247] [2013] FamCAFC 61, [48] (Thackray, Murphy and MacMillan JJ).
Eighthly, I do not to disregard that the applicant seeks an order for the sale of the G Street, Town B property out of court. An order for the payment of money in the adjustment of property interests would inevitably require an order to be made for the sale of the G Street, Town B property. The making of an order for sale would occur in the context that the respondent is unemployed and will more probably remain so. This is a factor of some importance in the present case. To say as much is not to ignore that there may be a great many cases in which a sale of a property may be an inevitable consequence of the failure of the relationship, and that it will have been just and equitable to make some order that adjusts the parties’ property interests.
Ninthly, and relatedly, I am satisfied that the applicant’s earning capacity is vastly superior to that of the respondent, and that she is also far younger than the respondent.
Tenthly, I consider that the applicant’s submissions were largely framed in a self-fulfilling way, it being said, in effect, that the result of making no adjustment would leave the respondent with the G Street, Town B property. The substantive difficulty in the adoption of that approach was that it rested upon the precise assumptions which were rejected in Stanford. The analysis of whether it is just and equitable to make an order adjusting property interests does not proceed from assumptions that: (1) the parties’ rights to or interests in property are or should be different from those that then exist; (2) either party has the right to have the property of the parties divided; or, (3) either party “has the right to an interest in marital property which is to be fixed by reference to the various matters set out in s 79(4)”. The anterior question is whether a principled basis has been shown for concluding that it is just and equitable, in the particular circumstances of this case, for an order to be made adjusting the parties’ existing property interests. The bare fact of the parties’ separation after a six or seven year relationship does not permit the court to disregard the parties’ rights and interests in property, or to make whatever order may seem to be fair or just. A principled basis must be shown why it is just and equitable to make an order that would alter the parties’ property existing interests.
Having considered each of these matters and reflected upon the whole of the evidence, I am not satisfied that it would be just and equitable for an order to be made adjusting the parties’ existing interests in property. Further, I am not satisfied that the applicant has discharged the burden of proof of demonstrating that, in all the circumstances, it is just and equitable to do so.
As the requirements of sub-s 79(2) of the Act are not satisfied, I need not address the further question of what order, if any, is appropriate to be made adjusting the parties’ property interest.[248] For that reason also, it is not necessary to consider the third of the three alternative bases on which the respondent submitted that no order should be made adjusting property interests.
[248]Chancellor & McCoy (2016) FLC 93-752, [68] (FC).
Conclusion – property
As I have concluded that it would not be just an equitable for there to be an adjustment of property interests, the further amended application should be refused. Given the refusal of the application, it follows that an order should be made for the removal of the caveat lodged by the applicant respecting this claim. In all the circumstances of the case, and in the interests of finality of litigation, I will also make an order pursuant to s 106A of the Act to accommodate its removal.
Orders for costs were sought in the proceeding. Directions will be made affording the parties an opportunity to file submissions, and any application of that kind will be determined on the papers.
The matter has had a protracted and difficult history. Despite the many complications which this case presented, I record my gratitude for the patience and assistance shown by all counsel in seeking to assist the court in the presentation of the evidence and their clients’ submissions.
I certify that the preceding one thousand and eighty (1080) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 22 July 2020
AMS v AIF (1999) 199 CLR 160, [95] (Gaudron J), [196] (Kirby J), [218] (Hayne J), [284]
(Callinan J).
Chapman & Chapman (2014) FLC 93-592, [5], [85]; Scott & Danton [2014] FamCAFC 203,
[23]-[24].
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