Fitzgerald & Fitzgerald
[2022] FedCFamC2F 1423
Federal Circuit and Family Court of Australia
(DIVISION 2)
Fitzgerald & Fitzgerald [2022] FedCFamC2F 1423
File number(s): SYC 2707 of 2014 Judgment of: JUDGE MORLEY Date of judgment: 21 October 2022 Catchwords: FAMILY LAW – parenting – application for final orders –where the Father was incarcerated at the time of final hearing – where the Father has not spent time with the children since 2019 – where the Court finds it is in the best interests of the children to spend time with the Father on a graduated and initially supervised basis – where the Court finds it is in the best interests of the children for the Mother to have sole parental responsibility for the children.
FAMILY LAW – property – application for final orders – assessment of property pool and addbacks – where Court finds it is not just and equitable to make an order under section 79.
FAMILY LAW – costs of ICL sought – where Father was waived from contributing to the ICL’s costs in 2015 – where the Mother opposes the application on the basis of financial hardship and Father’s actions delaying the proceedings – Court declines to make orders sought.
Legislation: Evidence Act 1995 (Cth) ss 50, 69, 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB, 65DAE, 65Y, 79, 117)
Cases cited: A & A & The Child Representative [1998] FamCA 25
AJO v GRO (2005) 191 FLR 317
Bevan & Bevan (2013) 279 FLR 1
Dickons & Dickons [2012] FamCAFC 154
Fields & Smith [2015] FamCAFC 57
Fontana & Fontana [2018] FamCAFC 63
Grella & Jamieson [2017] FamCAFC 21
Grier & Malphas (2017) 55 Fam LR 107
Harridge and Anor & Harridge and Anor [2010] FamCA 445
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395
In the marriage of Kowaliw, J.I. and Kowaliw, A.G. (1981) FLC 91 - 092
Isles & Nelissen [2022] FedCFamC1A 97
Johnson & Page [2007] FamCA 1235
M & M (1988) 166 CLR 69
M v M (1988) 166 CLR 69
Masoud & Masoud [2016] FamCAFC 24
Napier & Hepburn [2006] FamCA 1316
Shan & Prasad [2018] FamCAFC 12
Stanford & Stanford (2012) 247 CLR 108
Talbot & Talbot [2015] FamCAFC 132
Trevi & Trevi [2018] FamCAFC 173
Vass & Vass [2015] FamCAFC 51
W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892
Division: Division 2 Family Law Number of paragraphs: 329 Date of last submission/s: 5 July 2021 Date of hearing: 9 -11 December 2019, 27 March 2020 and 9 February 2021 Place: Sydney Counsel for the Applicant: Mr Stagg Solicitor for the Applicant: Litigant in Person Solicitor for the Respondent: Litigant in Person Counsel for the Independent Children's Lawyer: Mr Schroeder Solicitor for the Independent Children's Lawyer: Ms Shedden ORDERS
SYC 2707 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FITZGERALD
Applicant
AND: MR FITZGERALD
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MORLEY
DATE OF ORDER:
21 October 2022
THE COURT ORDERS THAT:
1.That the applicant mother (“the mother”) has sole parental responsibility for X born in 2007 (“X”) and Y born in 2011 (“Y”) (“the children”).
2.That the children live with their mother.
(a)That the children spend time with their father as agreed from time to time between their parents and failing agreement as follows:
(b)For two (2) months from the date of the first occasion of the father spending time with the children under this order, for two (2) hours each alternate weekend on Saturday or Sunday, as selected by the mother in accordance with these orders, supervised by a commercial supervision agency agreed upon by the parents and failing agreement by 31 October 2022 by the cheaper of B Contact Centre or C Contact Centre (“the agency”), at a venue selected by the father including his place of residence, the first such occasion to occur on the weekend of 5 and 6 November 2022 or such weekend thereafter that the agency is able to commence the supervised occasions;
(c)Then, for a further three (3) months, for three (3) hours each alternate weekend on Saturday or Sunday, as selected by the mother in accordance with these orders, supervised by the agency, at a venue selected by the father including his place of residence;
(d)Then, for a further three (3) months, each alternate weekend on Saturday or Sunday from 10.00 am until 3.00 pm, as selected by the mother in accordance with these orders;
(e)Then, for a further four (4) months, each alternate weekend on Saturday or Sunday from 10.00 am until 5.00 pm, as selected by the mother in accordance with these orders;
(f)Then, for a further three (3) months, with Y each alternate weekend from 10.00 am on Saturday until 5.00 pm on Sunday;
(g)Then, during school term time, with Y each alternate weekend from 6.00 pm on Friday until 5.00 pm on Sunday;
3.That the father spend time with X during Y’s time with his father pursuant to order 3(e) and (f) only in accordance with her wishes.
4.That the father spend time with Y during school holidays as agreed from time to time between his parents and failing agreement as follows:
(a)During the school holidays at the end of Term 1 in 2024 from 9.00 am on the first Sunday of the school holiday until 6.00 pm on the following Wednesday;
(b)During the school holidays at the end of Term 2 in 2024 from 9.00 am on the first Sunday of the school holiday until 6.00 pm on the following Thursday;
(c)During the school holidays at the end of Term 3 in 2024 from 9.00 am on the first Saturday of the school holiday until 6.00 pm on the following Friday;
(d)During the school holidays at the end of Term 4 in 2024 from 9.00 am on 2 January 2025 until 6.00 pm on 9 January 2025 and from 9.00 am on 16 January 2025 until 6.00 pm on 23 January 2025;
(e)During school holidays from the end of Term 1 in 2026 and thereafter, in accordance with Y’s wishes.
5.That X spend time with her father during school holidays only in accordance with her wishes.
6.That by no later than 7.00 pm on 31 October 2022, the mother shall notify the father in writing of her election of either Saturday or Sunday for the purposes of order 3(a) to (d) and thereafter that will be the applicable day of the weekend unless agreed otherwise by the parents from time to time.
7.That upon the agency being identified in accordance with order 3(a) each of the parents shall do all things necessary to engage the agency for the purpose of supervising the children’s time with their father under order 3(a) and (b) and shall both request that a supervision report be provided in relation to each occasion of supervision.
8.That the costs of the commercial supervision agency shall be paid by the father, including any fee payable for reports.
9.That for the period of months covered by order 3(d) and (e) the mother may nominate two (2) non-consecutive occasions when the children’s time with their father will not occur so as to enable the children or either of them to accompany the mother on a holiday, such nomination to be made by the mother to the father in writing no later than six (6) weeks prior to the nominated occasion.
10.That the children’s school term time occasions of time with their father under order 3(f) will recommence on the first weekend after the end of each school holidays.
11.That all changeovers shall occur by the father collecting the children from and delivering the children to the kerbside outside the mother’s place of residence.
12.That the children’s Australian Passports are to be returned to their mother and that thereafter she shall be entitled to possession of those passports until each of the children attains 18 years of age.
13.That in the event that either child requires a passport to travel internationally in accordance with these orders, then the children are permitted to travel internationally, and without the need for the consent of the father to be provided with respect to the issuing of a passport to the children or in relation to the children or either of them travelling outside the Commonwealth of Australia with their mother, but the provisions of section 65Y of the Family Law Act 1975 (Cth) shall continue to apply in relation to the children or either of them travelling outside the Commonwealth of Australia with their father.
14.That the mother shall be the only person with parental responsibility for the children for the purposes of applying for, and being issued with, an Australian passport for the children.
15.That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence of or within the hearing of either of the children.
16.That the parents are each restrained from allowing either of the children to remain in the presence of or within either of the children’s hearing of any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.
17.That the father is restrained from questioning the children about the mother or about Mr D or about the mother’s household.
18.That the father is restrained from criticising the mother’s parenting of the children or Mr D’s step-parenting of the children in the presence or hearing of either of the children.
19.That the father is restrained from communicating with either of the children in any manner in an attempt to influence directly either of the children’s wishes in relation to spending time with him.
20.That the father is restrained from talking to either of the children about these proceedings other than to refer to the provisions of these orders as necessary for spending time with the children.
21.That within 21 days the mother shall give such authorisations and consents as are necessary to the school or schools attended by the children to enable such school or schools to provide the father with copies of the children's school reports and his own password details for any school information internet site.
22.That it is not just and equitable to make any order under section 79 of the Family Law Act 1975 (Cth) altering the interests of the parties or either of them in property.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Fitzgerald & Fitzgerald has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MORLEY J:
INTRODUCTION
In 2013, his wedding anniversary, life changed completely for Mr Fitzgerald ("the father"), from husband to Ms Fitzgerald ("the mother") and father to X and Y, and responsible public servant employee of Employer E as a public servant, to prisoner on remand charged with serious firearms offences, the end of his marriage relationship and minimal involvement in his children's lives.
These proceedings are to resolve the outstanding issues arising from that tragic day, a tragedy at the sole fault of the father, by determining what relationship, if any, the father will have with X and Y and what property settlement, if any, should occur so as to do justice and equity between the parties.
It is extremely unfortunate that the final hearing of these proceedings commenced on 9 December 2019 but that final resolution does not come to the parties and the children and the legal representatives until the making of final orders and publication of these Reasons two years and nine months later. I apologise to the parties, the children, and the legal representatives for the delay in orders and reasons since the last submissions were made in the matter on 5 July 2021.
The gulf between the parties' competing proposals on both parenting and property is as wide as it can be. The father seeks that he spend time with the children on alternative weekends and for half of the school holidays. The mother seeks that any time the father spends with children be entirely at her discretion and, if occurring at all, be supervised. The father proposes that there be a property settlement between the parties whereby a matrimonial property pool is divided 60% to the mother and 40% to him. The mother proposes that the Court should find that it is not just and equitable to proceed with making any order altering the interests of the parties in property under section 79 of the Family Law Act 1975 (Cth) (‘the Act’).
In keeping with considerations essential in determining the issues raised in property settlement proceedings, I will decide the parenting issue between the parties first.
The final hearing took place over five days – 9 to 11 December 2019, 27 March 2020 and 9 February 2021. The matter had a further mention on 21 May 2021 when the evidence was reopened by consent to admit an agreed fact and then again closed, and final written submissions were received on 5 July 2021.
The mother was represented by Mr Stagg of Counsel (except for 21 May 2021 when she appeared on her own behalf). The father was initially represented on 9 December 2019 by Mr Daniel of Counsel, but leave was granted by the Court to Mr Daniel and his instructing solicitor, Mr Williams, to withdraw on that day and thereafter the father was self-represented throughout.
The Independent Children's Lawyer (ICL), Ms Shedden, was represented by Mr Schroeder of Counsel (except on 9 February 2021 when Ms Shedden appeared on her own behalf, with Council being unavailable for an entirely appropriate reason).
The proceedings
Throughout most of the proceedings the father was in prison. He was arrested in 2013 and remained incarcerated until release on parole in 2017. He was rearrested in 2019 and remained in prison until he was acquitted at trial in 2021 and again released on his original parole in 2021. The father's original parole expired at the end of his head sentence in 2022.
The proceedings were commenced by the mother filing her Initiating Application seeking parenting orders on 3 November 2014 - nearly eight years ago. The father filed his Response on 1 May 2015 seeking property settlement and parenting orders, and the mother filed an Amended Initiating Application on 20 May 2015 addressing the property settlement issues.
On the first return date an order was made for the children to spend time with their father at the prison at times as agreed by the mother no more than once each month, to be supervised by the person who took the children to the prison. Further orders were made for the father to have telephone communication with the children each Monday between 7:30AM and 8:15 AM and each Saturday at about 8:30AM. At the next court occasion, an Independent Children's Lawyer was appointed, the telephone communication order was discharged and an order was made by consent enabling the mother to get passports for the children, to be lodged with the Court.
On 29 May 2015 orders were made by consent for:
(a)The father to spend time with the children every third Saturday for two hours at the Suburb F Remand Centre with the children to be taken to the prison and supervised by their paternal aunt, Ms G or by H Support Group, if available;
(b)The father to have telephone communication with the children each Saturday between 8:30AM and 9:00AM; and
(c)For the mother to send the father all school reports, doctor’s reports and other medical information concerning the children.
On 22 October 2015 a notation was made by the Court:
Since separation the wife has re-partnered and purchased a property jointly with her new partner. The wife's contribution included joint matrimonial funds the subject of these proceedings and a redundancy that derives in part from the period of cohabitation and marriage.
In 2016, the father pleaded guilty to the firearms charges that followed his arrest in 2013 and he was sentenced to a head sentence of nine years commencing 2013 and expiring in 2022, with a non-parole period of four years and six months expiring in 2017.
The matter was mentioned following the father's release on parole and referred to mediation, but no settlement was achieved.
On 11 May 2018 an order for the preparation of a Family Report under section 62G was made. By consent the following orders were also made:
(a)That the children live with their mother;
(b)That the parties engage with "J Contact Centre" to arrange for the father to spend time with the children for two hours each alternate weekend on a Saturday or Sunday for two months, then for three hours each alternate weekend on Saturday or Sunday for two months then for times nominated by the supervision service; and
(c)That the father have telephone communication with the children each Tuesday and Sunday between 7:00PM and 7:30PM for about 15 minutes.
On 19 November 2018 Mr K of Company L was appointed Court expert to value M Street, Suburb N, the house that the mother had purchased following separation with her new partner. On 3 May 2019 the matter was called over and listed for hearing from 9 to 11 December 2019 and, by consent, an order was made enabling the mother to take the children for a holiday to Country O for up to 14 days during the Christmas holidays at the end of the year.
The Family Report was prepared by Family Consultant Ms P, dated 30 July 2019 and released by order on 5 August 2019.
In 2019 the father was arrested and charged with breaches of his parole prohibition in relation to dealing with or being in possession of firearms, his parole was revoked and he was again incarcerated awaiting trial.
On 8 November 2019 the father, through his solicitors, caused to be filed an Application in a Case seeking to vacate the hearing set for 9 to 11 December 2019 on the basis that his incarceration made it too difficult to prepare his case. That application was heard on the first day of the hearing with the father represented by Mr Daniel of Counsel, instructed by his solicitor Mr Williams. Through the day I heard extensive submissions on behalf of the father, the mother and the ICL. The application to adjourn was opposed by the mother, who had filed a Response to Application in a Case, and by the ICL. I dismissed the father's application to adjourn and ordered that the hearing would proceed on a defended basis and I gave Reasons. Mr Daniel and Mr Williams sought leave to withdraw and that leave was granted. The matter was then adjourned at 1:50PM to proceed the next day at 10:00AM.
The matter did not commence on 10 December 2019 until 12:20PM due to delay in the father being delivered to the Court from the prison, and the hearing then proceeded through that day and 11 December, 27 March 2020 and 9 February 2021. The lengthy hiatus between 27 March 2020 and 9 February 2021 was due to the COVID-19 pandemic that began at the end of March 2020.
On 7 May 2020 the matter was mentioned and directions were made for the filing and serving of written submissions in relation to the property settlement issues in the matter only. Written submissions were filed and served for the mother and then a lengthy document, partly hand written, and headed as an affidavit, though not either sworn or affirmed, was filed for the father on 5 August 2020, well after the date set for filing of written submissions by him. On 14 August 2020 the matter was mentioned before the court and listed for the further hearing on 9 and 10 February 2020 and an order was made directing that the written submissions filed by the father in the form of an affidavit were to be treated by the Court as written submissions and not as sworn evidence, and, as those written submissions attached quite a number of documents that had not yet been introduced into evidence in the hearing, directions were made that by 4:00PM on 4 September 2020 the mother was to file any further written submissions only in relation to any objections to admissibility of the documents attached to the father's written submissions, and in the event that any such objections were made by the mother, the father was to file any written submissions in response to the objections by 23 October 2020. No such written submissions were made by the mother.
On 9 February 2021 judgment was reserved, but the matter came back before the Court on 21 May 2021 and, by consent, the evidence was reopened and the Court received, as an agreed fact, that on 8 April 2021, the father had been acquitted upon his trial in relation to a charge relating to a breach of his parole and was again at liberty on parole since 20 April 2021. The Court then directed that the evidence upon final hearing was again closed. Directions were made for filing of any further written submissions by the parties consequent upon the father's acquittal and release again on parole.
The materials relied upon at hearing.
The mother relied on the following material:
(d)Case Outline document filed 3 December 2019;
(e)Amended Initiating Application filed 20 May 2015;
(f)Affidavit of the mother sworn or affirmed 8 November 2019 and filed 21 November 2019;
(g)Updated Financial Statement of the mother sworn or affirmed and filed 8 October 2016;
(h)Affidavit of Mr Q, registered firearms dealer, as an expert valuation witness, affirmed 29 November 2019 and filed 1 December 2019;
(i)Written submissions in relation to the property settlement issues prepared by Mr Stagg and filed 27 May 2020; and
(j)Written submissions dated and filed 5 July 2021 prepared by the mother.
The mother also relied upon the following exhibits:
(a)Exhibit A1 – being her Balance Sheet;
(b)Exhibit A2 – being a one page account statement from Bank AH in relation to "… Legal Fund" for the period 2013 to 20 October 2015, and one page account statement from Bank AH Ltd in relation to "… Dormant ACC_Savings Offset" for the period 2013 to 3 November 2015;
(c)Exhibit A3 – being a Supervised Contact Report by AJ Contact Service for 2 February 2019; and
(d)Exhibit A4 – being a Supervised Contact Report for 16 September 2018.
The father relied upon the following material:
(a)His Response filed 1 April 2015;
(b)Written submissions filed 5 August 2020;
(c)Written submissions filed 21 June 2021; and
(d)Written submissions in response to the ICL's written submissions of 21 June 2021, filed 5 July 2021.
The father also relied upon Exhibit R4 being 27 Supervised Contact Reports from AJ Contact Service, the first being 9 June 2018, the last being 17 August 2019, and two Supported Contact Agreements both dated 27 July 2018. I note this is the only exhibit relied upon by the father and it was marked as Exhibit R4.
A Supervised Contact Report for 11 May 2019 was tendered by the father with the documents that composed Exhibit R4, but that document relates to children other than X and Y, wholly unrelated to these proceedings and that document has been put aside.
The ICL relied upon the following documents:
(a)Case Outline document prepared by Ms Shedden and filed 5 December 2019;
(b)Proposed Minutes of Orders sought by the ICL;
(c)Written submissions dated 9 February 2021 prepared by Mr Schroder; and
(d)Further written submissions filed 21 June 2021 prepared by Mr Schroder.
The ICL also relied upon the following exhibits:
(a)Exhibit ICL1 – being documents produced on subpoena by Dr AB, being medical reports relating to the father dated 18 September 2013, 21 August 2015 and 25 June 2016;
(b)Exhibit ICL2 – being medical report by Dr AB relating to the father dated 23 June 2013 contained in documents produced on subpoena by the Mental Health Review Tribunal;
(c)Exhibit ICL 3 – being a psychiatric report by Prof AE dated 9 February 2014 relating to the father contained in documents produced on subpoena by the Mental Health Review Tribunal;
(d)Exhibit ICL4 – being all documents produced on subpoena by NSW Department of Family and Community Services;
(e)Exhibit ICL5 – being the Family Report dated 30 July 2019 prepared by Family Consultant Ms P;
(f)Exhibit ICL6 – being the school report for Y from Suburb N School for 2020 - Semester 2;
(g)Exhibit ICL7 – being the school report for X from W School for 2020 - Semester 2 - Year 7; and
(h)Exhibit ICL8 – being the Costs Notice for the ICL in relation to the final hearing.
At the commencement of the final hearing on 10 December 2019, I asked the father to indicate the materials on which he relied and the orders that he sought. The father referred to his Response filed 1 April 2015 and the Family Report and indicated that he would advise the Court which affidavits he sought to rely upon and have the Court read. In the course of the hearing, no affidavits were nominated for that purpose by the father.
The mother gave some brief oral evidence in chief and was then cross examined by the father and then by Mr Schroder for the ICL and re-examined by Mr Stagg. The father gave some very brief evidence in chief and was then cross examined by Mr Stagg for the mother and by Mr Schroder for the ICL. The Family Report writer, Ms P was cross examined by Mr Schroder for the ICL, by Mr Stagg for the mother and by the father.
At the end of the evidence on 9 Fairbury 2021, the ICL provided written submissions and oral submissions were made by the father, by Mr Stagg for the mother, with brief submissions in reply for the ICL and lengthy submissions in reply by the father.
The competing proposals of the parties and the ICL.
The mother sought the following orders as set out in a minute of orders in her Case Outline document:
[1]That the mother have sole parental responsibility for the children and all daily decisions regarding the care and development of the children. Such issues include but are not limited to the children’s education; religious and cultural upbringing; health management; living arrangements and holidays.
[2]That the children live with their mother.
[3]That any contact time between the children and the father shall be at the discretion of the mother and that any and all such contacts shall occur in accordance with the following:
i.That contact shall be supervised by an agreed third party who shall be responsible for the care and well-being of the children during the visit; and
ii.That contact time and duration be agreed in writing prior to the visit commencing.
[4]That the children’s passports be returned to the mother and will be held by the mother.
[5]That each party shall be solely entitled to the exclusion of the other party to all property and chattels of whatsoever nature and kind in their possession at the date of the making of these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the Banks record thereof, insurance policies become the sole property of the person in whose name the policy stands as owner.
[6]That superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
[7]Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
[8]Except as provided for in these Orders, each party be and is solely liable for any debt or debts standing in their name to the exclusion of the other party, as at the date of the making of these Orders.
The mother had sought an order in her minute of orders providing for the father to have telephone communication with the children, but withdrew that proposed order in her written submissions filed on 5 July 2021.
At the request of the Court the father stated the orders he sought at the commencement of the hearing on 10 December 2019, but the parenting order he sought in relation to the children spending time with him and communicating with him was sought in circumstances where he was then incarcerated. Accordingly, I set out the father's proposed orders as the property order and parental responsibility order he announced on 10 December 2019, and the parenting orders as to the children spending time with and communicating with him as contained in his Response filed 1 April 2015:
[1]That the matrimonial property pool be divided as to 60% to the mother and 40% to the father.
[2]That the mother have sole parental responsibility for the children but that she advise the father of any decision needing to be made, consult the father and take his views into account.
[3] That the children spend time with and communicate with their father:
i.every second weekend from 5 PM on Friday to 4 PM on Sunday;
ii.during the week, where the children are not spending time with the father on the weekend, from 4 PM to 8:30 PM on Wednesday evening;
iii.for the first half of school holidays from 5 PM on the day of the end of the school term to 5 PM on the day at the end of the first half of the school holidays;
iv.from 9 AM on Saturday to 5 PM on Sunday on Father’s Day weekend;
v.if the children are not otherwise spending time with the father, on the children’s birthdays and the father’s birthday from 9 AM to 12 PM where the birthday occurs on a weekend and from 5 PM to 8:30 PM where the birthday occurs on a week day;
vi.by telephone between 8 AM and 8:30 AM every Monday and Friday and between 9 AM and 10 AM on Saturday of the weekend the children are not spending time with their father.
[4]That the father’s alternate weekend time with the children under 3(i) is suspended with a weekend falls on Mother’s Day.
[5]That the father’s school holiday time with the children is suspended from 12 noon on Good Friday to 5 PM on Easter Saturday, from 12 noon on Christmas Day to 12 noon on 27 December and from 12 noon to 5 PM on the children’s and the mothers birthdays should they fall during the first half of the school holidays.
[6]That each of the parents:
i.keep each other informed all times of their mobile telephone number;
ii.keep each other informed at all times of the name and address of any treating General Practitioner that comes into contact with the children;
iii.inform the other parent as soon as reasonably practicable of any injury or illness affecting the children which requires medical or hospital attention;
iv.provide each other with copies of all letters, reports, brochures, notices and other documents received from the school and/or care facilities attended by either or both of the children within 48 hours of receipt of same; and
v.confer about the treatment or care decisions required with respect to [X]’s condition.
[7]That neither the mother nor the father will enrol the children in extra-curricular activities, sports, or arrange or agree to any other event for the children, including periods of travel which may occur during residence and/or time spent as enjoyed by the other parent, other than with the written consent of the other parent.
[8]That the mother and the father are entitled to attend the school events to which parents are invited to attend such as Parent/Teacher interviews, school concerts, assemblies, prize-giving and the like.
[9]That the mother and the father do all acts and sign all documents to bring the children up in the Christian faith.
[10]That where the mother or the father wishes to travel with the children, then the parent provide the other parent:
i.a minimum of 72 hours notice of the parents’ intention to take the children out of the Greater Sydney area but within the State of New South Wales;
ii.a minimum of 7 days written notice of the parents’ intention to take the children out of the State of New South Wales; and
iii.a detailed itinerary of where the parent and the children are travelling, including telephone contact numbers for the places they will be staying.
The father sought an order restraining the parents from removing either of the children from the Commonwealth of Australia and placing the names of the children on the Airport Watchlist enforceable at all points of arrival and departure in the Commonwealth of Australia in his Response, but the father advised the Court during his oral submissions that he no longer sought to prohibit or inhibit the mother’s overseas travel with the children for holiday purposes.
The ICL sought the orders set out in the minute of orders provided to the Court, as follows:
[1]That the mother have sole parental responsibility for the children.
[2]That the children live with their mother.
[3]That the children not spend time with the father save and except that the father shall be entitled to see the children on one occasion every two months, as organised with the mother, supervised by an outside agency nominated by the mother, such as [AK Contact Centre] for a duration not to exceed three hours on a day nominated by the mother, paid for by the father, the first such occasion to be two months from the date of these Orders.
[4]That the father be at liberty to send the children’s residential address cards, and gifts on special occasions to the children including but not necessarily limited to Christmas and each child on their respective birthdays.
[5]That the mother is to provide any letters gifts or cards sent by the father to such of the children and/or child in a timely manner following receipt of such item(s).
[6]That in the event that either child requires a passport to travel internationally in accordance with these orders then the children are permitted to travel internationally, and without the need for the consent of the father to be provided with respect to the issuing of a passport to the children.
[7]That the mother shall be the only person with parental responsibility of [sic] the children for the purposes of applying for, and being issued with, an Australian passport for the children.
[8]That the parents, on a without admissions basis, are restrained from:
i.denigrating the other party or any member of the other party’s household in the presence of the children; and
ii.discussing the court proceedings with the children.
The evidence
The mother was born in 1980 was 40 years of age at the time of the hearing, and the father was born in 1975 and was 46 years of age at the time of the hearing.
The mother asserted in her evidence in chief that the parties commenced cohabitation in 2003, whereas the father asserted in his oral evidence that the parties commenced cohabitation in 1998. It emerged during cross examination of the mother by the father that the parties had had a short period of cohabitation prior to 2003 when they resided together in a share house, but that the period of cohabitation was short and they separated for some period of time, only commencing their continuous cohabitation running through to their separation when they began residing together in 2003. For the purposes of consideration of matters relevant to the property issues between the parties, I find that their cohabitation commenced in 2003.
The parties married in 2007 and their first child, X, was born in 2007. Their second child, Y, was born in 2011.
The parties separated in 2013 when the father was arrested by police and charged with a series of serious firearms offences. The mother fled the matrimonial home on that day on being warned by an officer of the police that she and the children may be in danger from third parties. The evidence does not bear out the officer's warning, though there is no doubt it was honestly and properly given at the time. It would seem on the evidence that the father himself had induced that belief in police.
At separation X was 5 years of age and Y 18 months of age and they have both remained in their mother's sole care as between the parents from that time until the hearing.
In 2011, when X was 4 years of age, she was diagnosed with Autism - Level 1, and has been diagnosed thereafter with Sensory Processing Disorder, Attention Deficit Hyperactivity Disorder, Bladder Intrusion Instability, General Anxiety Disorder, and with having an anaphylactic allergy to certain nuts.
In 2017 Y was diagnosed as having Attention Deficit Hyperactivity Disorder of a moderate degree.
Both children have had speech pathology and X has required constant support, particularly at school, due to her Autism.
The parties were divorced with the order becoming final on 25 July 2014.
The mother commenced a relationship with Mr D in 2014 and they commenced cohabiting in 2014 and married in 2019. Mr D was born in 1961.
The father was arrested in 2013 and was incarcerated until released on parole in 2017. He was then again arrested in 2019 and charged with breach of parole prohibitions, and was acquitted in 2021 and released again on parole in 2021.
The mother, the children and Mr D reside in a property co-owned by the mother and Mr D at R Street, Suburb S. The father resides at Town AL.
At the commencement of cohabitation the mother was employed full-time in the public service as a public servant and the father was employed full-time in the public service as a public servant for Employer E. Each party’s annual income from employment was approximately equal. The mother took paid maternity leave in relation to the birth of both children, but otherwise was in either part-time or full-time employment throughout cohabitation. The father was also in part-time or full-time employment throughout cohabitation, originally being engaged full-time as a public servant and from about 2009 he worked three or four days a week.
At the commencement of cohabitation, the mother was sole owner as between the parties of real property at AM Street, Suburb AN ("the AM Street, Suburb AN property"), purchased by her for $143,000 and valued at cohabitation at approximately $164,000 and subject to a mortgage securing a loan account in the mother’s name with Bank AH owing $125,967, giving her an equity in that property of $38,033. The mother was also owner of a Motor Vehicle 1 valued at $5,000, household contents valued at $3,000, savings of $3,800 and superannuation entitlements valued at $5,000, the total value of her initial contribution being $54,833.
The mother sold the AM Street, Suburb AN property in 2009 for $230,000. From cohabitation until its sale, the AM Street, Suburb AN property was tenanted and the rent received was applied to payment of the loan account secured by mortgage, council and water rates. Any excess costs associated with the property were paid by the mother from her employment income. Upon sale of the AM Street, Suburb AN property the mother paid out the loan account secured by mortgage on the property and a $68,000 credit facility that related to the purchase of the matrimonial home at AX Street, Suburb V for a total of $178,000 and after costs and expenses of sale a sum of $44,000 was deposited by the mother into her personal savings account and applied to the family’s living expenses.
At the commencement of cohabitation, the father owned firearms to a value of $1,000, a motorcycle valued at $2,000 and had a personal loan debt of $10,000. There is no evidence in relation to any superannuation entitlements being held by the father at the commencement of cohabitation, with the mother asserting in paragraph 104 of her trial affidavit that he held no superannuation entitlements, but given that the father had been employed in the Employer AO for some time prior to cohabitation there should have been some superannuation entitlement accrued at least from employer compulsory obligations.
In 2005 the parties purchased real property at AX Street, Suburb V ("the AX Street, Suburb V property") for $375,000 and financed the purchase by obtaining a credit facility in a sum of $68,000 secured against the AM Street, Suburb AN property (discharged on sale of the AM Street, Suburb AN property as described above), a loan account secured by mortgage on the AX Street, Suburb V property of $300,000 and $7,000 from the first homeowner’s grant allocated to the father. The mother had received a first homeowner’s grant in a sum of $7,000 when she purchased the AM Street, Suburb AN property and had applied that sum to that purchase. The AX Street, Suburb V property was originally purchased in the father's name as sole registered proprietor and in 2006 title was transferred to the parties as joint tenants once the father's first homeowner’s requirements had been met.
The credit facility was paid as interest only and discharged on sale of the AM Street, Suburb AN property. The loan account secured by mortgage on the AX Street, Suburb V property was paid by the parties contributing equal amounts from their employment earnings to the required repayments.
It is the mother's evidence in paragraph 109 of her trial affidavit that the parties conducted all of their financial affairs on an equal contribution basis throughout their cohabitation, reviewing expenditure at the end of each month to be characterised as joint or personal and ensuring equal contributions by each to joint expenses such as repayments on the loan account secured on AX Street, Suburb V, the interest payments on the credit facility, council and water rates, insurances and household expenditure such as groceries.
At the time of the father's arrest in 2013 he had legally held firearms of which he was the owner in addition to the illegally possessed firearms that formed the basis of the charges of which he was ultimately convicted on his plea of guilty. All of the firearms, both legally held and illegally held, together with firearm parts and ammunition, were confiscated on his arrest and destroyed pursuant to the District Court’s orders of 8 December 2016 or otherwise forfeited and retained by police. I am satisfied that in terms of the offences of which the father was convicted and relevant legislation the father has not and will not recover such firearms, parts and ammunition and I must consider the effect of this, if any, on the financial aspects of the proceedings later in these Reasons.
The father had been approached by police on about 2013 in relation to a search warrant on the family home at AX Street, Suburb V. Instead of attending at the home on that day as arranged with police, the father hid himself, apparently in bush, until 2013 when after a telephone conversation with the mother and by arrangement with police he surrendered himself to arrest at the AX Street, Suburb V property. The mother was aware between that time in 2013 that there was a state-wide search by police for the father but it is not in evidence as to whether the father was aware of that circumstance while he hid. The father was made aware of the situation in his telephone conversation with the mother in 2013.
In 2013, following the father's arrest, the mother and children left the AX Street, Suburb V home and lived with the maternal grandparents at their home also located in AX Street, Suburb V. By agreement between the parties the AX Street, Suburb V property was sold, the father providing to the mother his power of attorney for that purpose. The AX Street, Suburb V property was sold in 2013 for $418,000 and after payment of legal and other costs of sale, payment out of the loan account so as to obtain discharge of the mortgage, sales agents and conveyancing costs, the net proceeds of sale was $162,624.77.
The mother had incurred costs of approximately $5,000 to prepare the Suburb V property for sale and had paid approximately $5,370 repayments on the loan account secured by mortgage on the AX Street, Suburb V property between separation and sale, all such monies having been paid from the mother's employment earnings.
Sums totalling $43,180 were expended from the net proceeds of sale of the AX Street, Suburb V property on legal fees for the father in relation to his criminal matters.
Between separation in 2013 and the divorce order on 25 July 2014 the then matrimonial property pool was divided between the parties as follows:
(a)The father received $43,180 from the proceeds of sale of the AX Street, Suburb V property by payment of legal fees for his criminal matters, retained a bank account with a credit balance of $2,134, motorcycles, carbon fibre bicycles and a trailer with a collective value of $5,520, household goods and tools as described in paragraph 128 the mother’s trial affidavit valued at $5,000 and his then superannuation entitlements valued at $76,414, being a total of $132,248. The mother contends that consideration in this regard should also be given to the firearms parts and ammunition legally held by the father at the time of his arrest that were lost to the matrimonial property pool by confiscation in consequence of the father's offences. The mother relies upon the affidavit of Mr Q, a registered firearms dealer and valuer of firearms, who was appointed as a Single Court Expert by the parties jointly by a letter of 8 February 2019 to value firearms, componentry and accessories as described on a list provided with the joint letter of instructions. Mr Q provided a valuation of $40,750 as at 21 March 2019. Mr Q did not view the items in specie, but worked from the list provided and photographs of some of the items;
(b)The mother received $119,000 from the proceeds of sale of the AX Street, Suburb V property, retained bank accounts with credit balances totalling $20,750, household goods valued at $5,000 and superannuation entitlements at that time valued at $74,470. The mother remained liable for a credit card debt in her name of $1,500 and the balance of a novated car lease with a debit balance of $19,650, giving her a net value received of $198,070.
It is the case put forward by the mother that the value of the firearms, which she misstates in paragraph 130 of her trial affidavit as $40,700, not $40,750 as per the valuation by Mr Q, should be added to the value of property from the matrimonial property pool received by the father between separation and final divorce order, so as to give him a total value received of $172,948, which when taken together with the value received by the mother of $198,070 gives a total asset pool for that period of $371,018, and that distribution between the parties was in the proportions 54% to the mother and 46% to the father, and that such circumstances form the main basis of her contention that the court should find that it is not just and equitable to proceed with the making of any order under section 79 of the Act altering the interests of the parties in property.
The mother puts in evidence as Annexure "M" to her trial affidavit a copy of an application for grant of Legal Aid dated 18 September 2014 whereby the father sought Legal Aid assistance for the costs of legal representation in his criminal matters, having exhausted his funds received from the sale of the AX Street, Suburb V property, and relies upon the father's assertion in that document that at the time of application he had no interest or further entitlement to any property or monies. In that document the father asserts that the only asset held by him was cash in a sum of $300.
In 2014 the father received a lump sum payment of $9,615 from his former employer, in the nature of termination payment, and the mother says that these funds were removed from the father's bank account by his sister, Ms G, and retained by her.
On 9 April 2015 at the father's request the mother paid from her funds $3,535.02 of the father's legal costs relating to his criminal matters.
In October 2015 the mother and Mr D jointly purchased real property at M Street, Suburb N ("the M Street, Suburb N property") in their joint names for $590,000. The mother contributed $139,000 from her accumulated savings toward the purchase. It is not explicit anywhere in her evidence that the $119,000 received by her from the proceeds of sale of the AX Street, Suburb V home formed any part of the $139,000 that she contributed to the purchase of the M Street, Suburb N property, there being two years and two months between sale and purchase, but it is very likely. Mr D contributed $281,000 from his savings to the purchase and the mother and Mr D borrowed $170,000 with that loan secured against the M Street, Suburb N property.
In 2016 the mother was made redundant and received $90,410.26 severance pay associated with approximately 18 years of employment, and in addition, received further monies calculated on salary in lieu of notice, early leaving incentive and balance of leave entitlements, the amount of which has not been disclosed in the evidence. The mother paid $80,000 from the sum received towards the reduction of the loan account secured by mortgage on the M Street, Suburb N property and applied the balance of the total redundancy payment to payment of living expenses, particularly during a period of two months when she remained unemployed following redundancy and later occasions of unpaid leave.
Accordingly, if it is assumed (it is not made explicit in the evidence) that the mother and Mr D contributed equally toward repayment of the balance of the loan account secured by mortgage on the M Street, Suburb N property, the mother contributed $219,000 directly to the purchase, Mr D $281,000 and the parties jointly $90,000. On that basis the mother contributed slightly under 45% of purchase price, including her share of the balance of the loan account.
In 2015 the paternal grandmother passed away leaving the father and his three siblings surviving her, and left her entire estate to the father's sister, Ms G. The father's eldest sibling made a successful family provision claim on the paternal grandmother's estate, though the amount of the consequent share of the estate so received is not in evidence. The father's other sibling, his brother, passed away some weeks after the paternal grandmother died. The father made no claim under the family provision legislation on his mother's estate, though he is an eligible person under section 57 of the Succession Act 2006 (NSW), and he has been out of time to bring such a claim since April 2016 unless he is granted leave by a Court of relevant jurisdiction.
The mother gives evidence, some of which will be elaborated hereunder when detailing the evidence going to the parenting issues, that she was primarily responsible as between herself and the father for the day-to-day care of the children during cohabitation, and it is beyond dispute that she has been solely responsible as between the parents for their care since separation.
The mother gives evidence that she "did the cleaning, washing, shopping, cooking, and generally attended to household duties inside the home" and "also maintained a vegetable garden" during cohabitation and that the father "maintained the external areas of the home".[1] There is no evidence from the father contradicting the mother's evidence in this regard and the mother was not cross examined on that evidence.
[1] Mother’s trial affidavit at paragraphs 153 to 155.
The mother has been the sole financial provider for the children since the parties’ separation, subject to some payment of child support by the father. The financial support of the children by the mother has included extra expense over and above normal expenses incurred due to the children's special needs.
During the period of the father's incarceration from 2013 until 2017 he did not pay child support, nor is there any evidence that he was in a position to do so. On his release in 2017 the father commenced paying child support of $35 per month. In January 2019 the mother applied to the Child Support Agency for an adjustment to the assessment of child support in consequence of the father having taken up employment since his release and on 27 June 2019 the Child Support Agency issued a Notice of Decision setting the rate of child support to be paid by the father at $645.50 per month for the period 11 June 2019 to 29 February 2020. At the time of completion of the mother’s trial affidavit on 8 November 2019, the father was in arrears in relation to payment of child support in sum of approximately $3,059, but by conclusion of the hearing he had paid the arrears.
The mother took maternity leave for the birth of X in 2007 and returned to work on a part-time basis in 2008. The maternal grandmother cared for X two or three days a week, and in 2008 X commenced day care one day each week. In 2011, the mother commenced maternity leave when she was pregnant with Y and then returned to work in 2012 on a part-time basis three days a week. X attended pre-school two days a week and Y commenced day care one day a week. The maternal grandmother cared for X one day a week and cared for Y two days a week.
The father was involved in a workplace incident in about 2009 when there was an explosion causing injuries to some of his workmates. The incident caused some significant trauma to the father. Thereafter he commenced taking periods of leave from work and attended a psychologist for treatment. In about 2009 the father agreed to care for X one day per week, but on the mother's evidence he struggled with that care and repeatedly contacted her with requests that she return home from work early. It is in relation to these occasions that the mother details assertions of family violence perpetrated by the father as follows;
(a)On one occasion the mother returned home to find the bathroom door "off its hinges" and the father said to her words to the effect of "X shit her pants, I grabbed her by her ankles and kicked the bathroom door open, put her in the shower and hosed her off." I cannot find that this is an incident of family violence as damage to the door may have been caused by reactions of the father to his circumstances rather than anger, malice or intent to damage property.
(b)On an occasion when the mother advised the father she would not be coming home from work early she "heard a noise" and on her return from work "saw a large hole in a wall and the father said words to the effect of, "you wouldn't come home. I threw the phone at the wall." As described by the mother, this incident constitutes family violence within the meaning of that term in section 4AB of the Act.
(c)On an occasion when the mother advised the father that she would not be home from work early, she received:
A further telephone call from the father who said to me words to the effect: "You must come home now. I smashed the window and I need you to come home and look after [X] while I fix it up.
I cannot find that this constitutes an act of family violence by the father as there is no evidence from the mother or otherwise as to how the window came to be broken, it could have been accidental.
The mother refers to some other occasions when the father either required her to come home early from work to care for X as he was not capable of doing so, or requested that the mother arrange for the maternal grandmother to attend the home to care for X.
The mother's evidence is that the father cared for X, subject to the above matters, for two years from 2009 until 2011 when he ceased spending one day a week caring for her.
Following the father's arrest and the parties’ separation in 2013 the father did not spend any time with the children until May 2014. On 31 May 2014, X was taken to see the father at prison supervised by her paternal aunt, Ms G, and from June 2014 until December 2014 the children were taken to visit their father in prison by Ms G on four occasions. In September 2014 the mother took the children to visit the father for Father's Day, but the father focused his attention on the mother and her recently commenced relationship with Mr D. The mother exhorted the father to focus his attention on the children for the visit, but his anger continued and the mother did not feel capable of herself supervising the children during prison visits with the father following that occasion.
From about January 2015 until May 2016 the children visited their father in prison about once per month for a two-hour visit, taken to and from the prison and supervised during the visit by Ms G. The mother gives evidence that following such visits the children made comments to her that conveyed explicitly that the father had been making comments to the children derogatory or critical of the mother.
Until January 2015 the children had been led to believe by the father that the prison was his new workplace and his issued clothing was his work clothing.
After discussions with X's psychologist, the mother explained to her the reality of the father’s situation in child appropriate terms. However, following a further visit to her father in prison, X made a comment to the mother detailed in paragraph 60 of the mother’s trial affidavit conveying that the father had denied to her that he was in prison, or that he had done anything wrong, that he still loved the mother but that the mother had stopped loving him and forgotten about him, and that the mother and Mr D are liars. I accept the mother's evidence in relation to what was relayed to her by X, and it shows a serious lack of appropriate child focus or concern for X's welfare on the part of the father. The father allowed his resentments to risk psychological harm to X.
The mother gives other examples of statements made to her by the children, particularly X, following occasions of spending time with the father, that are in similar vein. In consequence of evidence of that nature conveyed to the Court by the mother, the interim order made 18 December 2014 for the children to spend time with the father supervised by whoever takes them to the prison was affected by a notation made by Her Honour Judge Sexton,[2] that pending an interim hearing to occur on 29 May 2015, "the Children will not spend time with the Father during the adjournment unless supervised by the Mother". On 29 May 2015 orders were made by consent between the parties providing for the father to spend time with both children every third Saturday for two hours at Suburb F Remand Centre with the children to be delivered to and collected from Ms G by the mother for that purpose. Ms G was to be present during the visit with the father at all times and be responsible for the children during the visit. The consent orders also made provision for supervision of the father's time with the children in prison by H Support Group (“H Support Group”), to be arranged if possible, by the father, but in any event no supervision by H Support Group occurred.
[2] Her Honour is now retired and is a judge of very widely acknowledged great wisdom, experience and expertise in parenting matters.
In paragraph 63 of her trial affidavit the mother gives examples of comments made to her by the children, and in particular X, following visits with the father that conveyed clearly to the mother that the father and Ms G were making comments derogatory or critical of the mother, and manipulative of the children such as:
Daddy said mummy has had us for 3 three years so when daddy gets out of prison it will be his turn and we will live with him…Daddy said when he gets out, it will be his turn to have us and we will go with him to live on a big farm with lots of animals.
In paragraph 64 of her trial affidavit the mother says "in May 2016 visits were suspended until November 2016". Such suspension does not appear to have been pursuant to Court order as the matter was not before the Court between a mention on 12 February 2016 and a further mention on 31 October 2016 when it was noted by Sexton J that "the Children will spend time with the Father on 1 or 2 occasions before Christmas by arrangement between the parties' legal representatives and the Independent Children's Lawyer".
In 2017 the father was transferred to Town AP Prison and on two occasions the mother drove the children the 270 km, a four hour trip each way, to visit the father in prison and the children were taken into the prison and supervised at the visit by the father's friend, Mr AQ and his wife.
The father was released on parole in 2017, and between then and June 2018 the father had twice-weekly telephone communication with the children, but did not spend any time with them. The parties attended a mediation on 22 February 2018 and reached an interim agreement that was embodied in interim orders on 11 May 2018 providing for the father to spend time with the children under professional supervision at AJ Contact Service for two hours every second weekend on either Saturday or Sunday for two months, and then three hours each alternate weekend on either Saturday or Sunday with the supervision fees being shared between the parents. One of the consent orders provided that "the father must not attend the changeover vicinity before the time with the children are to start and must promptly leave the changeover vicinity when the time with the children is to end." The orders also provided for the father to have telephone communication with the children each Tuesday and Sunday between 7:00PM and 7:30PM for approximately 15 minutes, the Tuesday call being either a Facetime or Skype call.
Contrary to the interim order in relation to the father not attending the changeover vicinity before his time with the children was to start, on the first occasion of supervised time with the children at AJ Contact Service on 9 June 2018 the father arrived earlier than the appointed time and entered the premises while the mother was still present dropping the children off. The supervisor met the father as he entered the premises and asked him to leave and return at the appointed time. The father did leave, but as he was driving off he noticed Mr D sitting in his car parked on the roadway outside the centre. The father stopped his vehicle in the middle of the road and, the mother asserts, abused and threatened Mr D. As a result of correspondence about this incident between the parties’ respective solicitors, the gaps between drop-off by the mother and attendance by the father, departure by the father and collection of the children by the mother were extended.
In 2018, the father attended for his time with the children at the AJ Contact Service and gave X a two week-old unweaned male pet as a birthday present. The supervision report for that occasion is Exhibit A4 and is part of Exhibit R4, and though it purports to be in relation to a "Date of Contact" of 2018, the report itself is signed by the attending supervisor and is dated 2018. The report details the father giving the two week-old pet to X as a gift and producing a bottle of milk to feed the pet. The report notes:
[X] and [Y] appeared to be excited and puzzled by the unusual gift…Although [Y] did not seem concerned about taking the [pet] home, [X] stated continually, "I can't keep him." [Mr Fitzgerald] reassured her she could keep the [pet]…[X] asked [Mr Fitzgerald] how she was supposed to get the [pet] home. [Mr Fitzgerald] replied, "it's okay, he'll sit in the car."…[X] sat with the [pet] and [Mr Fitzgerald] told her, "he thinks you're his mum." [X] replied, "I don't want to be his mum."…[X] stated, "Mum is not going to be happy." [Mr Fitzgerald] assured [X] that [Ms Fitzgerald] will be angry with him not [X]. [Mr Fitzgerald] stated, "if she is not happy she can always ring me."… [X] stated, "mummy is going to freak out when she sees the [pet]." [Mr Fitzgerald] again reassured [X] by saying, "she might freak out to start with, but she'll be alright." [X] did not appear to be reassured by this comment…[X] appeared to become more concerned about what's going to happen to the [pet]. [X] checked with [Mr Fitzgerald] saying, "are you going to leave the [pet] with us?" [Mr Fitzgerald] replied, "yes", then stated, "I can predict what's going to happen and you will hear daddy laughing all the way to his place."…[X] asked [Mr Fitzgerald] if he had a towel in the car, [Mr Fitzgerald] asked why, and [X] stated, "because he is going to piss all over the car." [Mr Fitzgerald] responded by saying, "Well guess what, it's not my car" and then laughed."
X was distressed following the supervised visit as to what was to happen to the pet and on the following day, her birthday, she refused to speak to her father on the phone. The pet was taken to a local vet, which also caused distress for X.
On 19 January 2019 the father and children were spending time together supervised at AJ Contact Service. The report of that occasion is part of Exhibit R4. Amongst comments made to the children by the father and reported in the supervision report are, “… I just like a visit with my kids without your mother messing it up", "Daddy is working hard to see you's, if it was up to Mum she wouldn’t let me see you. Everything I tried do Mum and Mr D stop me in every way", and during a discussion between the father and the children about the issue of passports for the children "but what happens if…Mum has told me many times that she is going to take you's to live overseas".
The report notes that at 1:15 PM that:
[Mr Fitzgerald] told [X] that [Mr D] and mum had cost him a lot of money and he had spent about one hundred thousand dollars so he could see his kids. [X] then told [Mr Fitzgerald] she would only like to see him once a month. [Mr Fitzgerald] replied, "really, once a month. Do you want me to go now, we can get Mum back here now if you like". [Mr Fitzgerald] then continued and said, "I won't call any more, I will do whatever you want". "Daddy is sick of bashing his head against a brick wall".
The report writer carefully noted that the father's voice did not indicate that he was angry or accusative of the children. The report then continued:
[Mr Fitzgerald] said that everything he wanted to do with [X] and [Y] is stopped by [Ms Fitzgerald]. [Y] replied, "mummy thinks it's a bad idea.” [Mr Fitzgerald] then said, "this is not fun, we don't get to have any fun. I'm not able to take you's anywhere and teach you's things, because your mum won't let me. I'm sick of playing silly buggers. It's time you started knowing what's going on, you're old enough now". [X] replied, "well let's have fun while we can with the time that's left"."
The father then said:
How do you think dad feels having to have supervised visits? It's rubbish. We can't have fun, we can't have conversation. I want to take care of you and [Y], I'm your dad. If something happens I want to tell you about it. I can only call you once a week and then I get fifteen minutes. There is no reason why you kids can't come and spend time with me, but your mother won't let you.
The father then broke down crying and the children consoled him. At one point X said to her father, "I don't want to be in the middle of the stupid arguments". The mother asserted in paragraph 74 of her trial affidavit that on this occasion "the supervisor cautioned the father about his behaviour and recommending [sic] that he seek professional guidance on age specific topics of conversation", but there is no notation to that effect in the contact report. In fact the report has no notation of any caution or corrective comment being made to the father by the supervisor in relation to any of his inappropriate statements to the children.
The Supervised Contact Report from AJ Contact Service for the occasion on 2 February 2019 describes defiant behaviour by Y during his time with his father and hurtful comments made to the father by Y. It then reports:
[Mr Fitzgerald] decided to vent at [X] about [Y]'s behaviour and how [Ms Fitzgerald] should be talking to me about [Y]'s behaviour. The supervisor reminded [Mr Fitzgerald] to please change the topic and he did so.
The report gave no detail of what the supervisor considered amounted to the father venting at X.
The Family Report writer notes in paragraph 47 that the father said:
That the time he currently spends with the children is "excellent". He said that there has never been any problems during his time with the children. He denies that he has ever been frustrated with the children or said anything inappropriate to them, or that he probes them for information.
Those assertions by the father to the Family Report writer are demonstrably incorrect in view of the evidence contained in the Supervised Contact Reports that are exhibits A3, A4, and R4.
The last occasion of supervised time between the father and the children for three hours at AJ Contact Service occurred on 17 August 2019, with the father's rearrest occurring in 2019.
The father has not spent any time with, or communicated with, the children since his arrest in 2019.
In paragraph 35 of the mother’s trial affidavit she makes an assertion in relation to criminal matters affecting the father's brother and nephew, but she provides no evidence to found that assertion and so I give it no weight. The father's brother’s death at the father's brother's property in circumstances totally unassociated with the father. Similarly, the inferences sought to be raised in paragraph 36 of the mother’s trial affidavit are given no weight.
On 25 September 2018 the father attended a school concert at the City T Centre in City T with his girlfriend, Ms Z. Either X or Y or both of the children were involved in an event at that centre on that day through their school and though the father did not have benefit of any orders to spend time with the children or to attend school events at that time, by arrangement with the school the father obtained tickets to attend and attended. The father was leaving the centre when he saw Y in company with Mr D. The father approached Y to greet him. At this point the versions of events by the father and by Mr D diverge. The father's version, found only in paragraph 17 of the Family Report, is that he was verbally abused and struck in the face by Mr D while he was greeting Y. Mr D's version is only known through that paragraph in the Family Report, presumably from Mr D during his interview with Ms P:
[Mr D] claims that [Mr Fitzgerald] was the one who began to verbally abuse him and that [Mr Fitzgerald] picked [Y] up and purposefully elbowed [Mr D] in the face while doing so, and [Mr D] hit [Mr Fitzgerald] in response.
The father was not cross examined to any extent about the incident with Mr D on 25 September 2018.
Paragraph 38 of the mother’s trial affidavit refers to the incident, but there was no evidence on hearing presented from Mr D himself. The mother asserts that the father struck Mr D in the face, however, the mother was not present at the scene of the incident and can give no first-hand evidence. The mother's evidence in chief is not phrased in terms of what she was told by Mr D or any other person but is phrased as statements of fact and accordingly, I can give it no weight. A further consideration leading to the mother's evidence of the incident being given no weight is a reference to "an uncontested apprehended violence order was taken out against the father by Mr D and myself", but her failing to mention what is referred to in paragraph 18 of the Family Report, that an Apprehended Violence Order (“AVO”) was put in place protecting the father from Mr D as well as the AVO put in place protecting Mr D and the mother from the father. Ms P recites in the Family Report that, "the interim AVO's protecting Mr Fitzgerald and Mr D were subsequently both made final for one year (they will expire in September 2019)."
No AVOs were tendered into evidence at the final hearing.
Mr D was charged with assault. He plead not guilty and the matter went to hearing on 12 March 2019 and he was found not guilty. The mother makes assertions in paragraph 38 of her affidavit as to what was revealed at his hearing on CCTV footage from the centre, but once again from the manner in which it is given as purported evidence I can give it no weight. The CCTV footage was not entered into evidence at the hearing of these proceedings.
The father's written submissions of 5 August 2020 attached a number of documents that to that time had not been tendered into evidence. The evidence at that time was still open as the matter was part-heard and was to continue on 9 February 2021. On 14 August 2020 I ordered that the written submissions filed by the father "in the form of an affidavit sworn or affirmed by him are treated by Court as written submissions, and not as sworn evidence" and further directions were made that day requiring the mother by no later than 4:00PM on 4 September 2020 to "file and serve any further written submissions only in relation to any objections to admissibility of the documents attached to the Respondent Husband's written submissions", being a reference to the written submissions of 5 August 2020, and "in the event that any documents attached to the written submissions of the Respondent Husband are objected to by the Applicant Wife, then by no later than 4:00PM on 23 October 2020 the Respondent Husband is to file any written submissions in response to those objections."
No written submissions objecting to the admissibility of documents attached to the father's written submissions of 5 August 2020 were provided by the mother and accordingly, I consider that the documents attached to those written submissions are in evidence. Those written submissions were filed, albeit late, in relation to an order for written submissions on the property issues in the proceedings only made on 7 May 2020 when the matter was mentioned. Accordingly, it is proper that no documents are attached to those written submissions relating to the incident on 25 September 2018 between the father and Mr D.
The father filed further written submissions on 21 June 2021 in compliance with the directions made on 21 May 2021. On 21 May 2021 the evidence in the final hearing was by consent reopened and the Court received as an agreed fact that the father had been acquitted upon his trial in relation to a charge of breach of parole and was again at liberty and then by specific order, "the Court, in having granted leave to receive further evidence, and having received that further evidence by way of an agreed fact, directs that the evidence upon final hearing in this matter is again closed." I detail all of that because the further written submissions of the father filed 21 June 2021 also attached 27 pages of documents including documents between pages 18 and 33 thereof relating to the incident on 25 September 2018 between the father and Mr D. Those documents do not form part of the evidence, no leave having been sought or granted for reopening the evidence on final hearing to allow them in.
Mr D commenced a private prosecution against the father for an assault by the father on Mr D at the event on 25 September 2018. The matter was ultimately referred by the presiding Magistrate at the City T Local Court to the Director of Public Prosecutions pursuant to relevant legislation and was discontinued by the DPP.
On the basis of all of the evidence relating to this incident, I cannot make any finding critical of the father other than that he made arrangements to attend the function and when there approached Y knowing that there were orders in force that the children live with their mother and defining the time the father could spend with the children and communicate with children that did not include that occasion. On the state of the evidence I cannot make any finding that the father struck or attempted to strike Mr D.
Paragraphs 43 and 52 of the Family Report refer to an issue that arose in about October 2014 in relation to comments made by X to the father and, apparently, to Ms G, that on an occasion or occasions when she was in the spa at home Mr D got into the spa naked and she saw that he had an erection. Exhibit ICL4 is the material produced on subpoena by the NSW Department of Family & Community Services and much of the material relates to notifications to the Department by, obviously despite the redactions, the father and Ms G about X's assertion. The mother explains an incident where Mr D was alone in the spa naked and both children joined him after hearing the spa jets being turned on, the mother joined them, Mr D quickly exited the spa and put on a towel, and that he did not have an erection. The mother was not cross examined about any such matter by the father, and during cross examination for the ICL the mother was referred to the details of the disclosures contained in the Family & Community Services materials and asked if anything like that had ever happened, to which she replied "no". The father referred to the issue during his oral submissions and said, "I am satisfied that it is a non-issue."
In paragraph 41 of her trial affidavit the mother says that the "father's arrest has been associated with dealing with firearms and known drug dealers", the arrest being referred to by the mother being the father's arrest in 2019. The mother attaches as Annexure "F" an internet print out extract from a newspaper report of 2013 about the father's arrest that day and an internet print out extract from a newspaper dated 2019, both of which refer to the father and both of which contain reportage that grounds the evidence of the mother in paragraph 41 - but only in relation to the content of those extracts. A further internet print out extract from a media source dated 2019 is included in Annexure "F", but despite a reference to "Town AR in the Region AS" there is nothing in that article to connect the father with the events referred to therein, and the date of the article being 2019 is nearly two months prior to the date of the father's arrest in 2019.
The comment by the police officer to the mother in 2019 about "threats to the family from unidentified criminal persons" at paragraph 31 of the mothers trial affidavit, and the mother's evidence in paragraphs 35, 36 and 41 of her trial affidavit that I have already referred to are relied upon in the mother's case to ground an assertion that there may be a risk to the children in the care of the father from unknown criminal elements who may be seeking to harm the father. The whole of the allegation that there are unknown criminal elements involved with the father originates from the statements made by the father to police and to the District Court in relation to his first arrest and ultimate conviction for the firearms matters.
The possibility of the father's criminal actions being at the instigation of rogue police or organised, or other, criminal elements, any of whom could present a threat to the father, was thoroughly examined by Judge AD in relation to sentencing in 2016 after his Honour had had the benefit of observing the father during the father's extensive evidence over three days in relation to the sentencing. His Honour found that such assertions by the father were untruths told by him in an attempt originally to defend and then following his plea of guilty to mitigate his criminal actions. The whole of the reasons on sentencing delivered by his Honour are Annexure "E" to the mother’s trial affidavit. On page 20 thereof his Honour refers to the father persisting "with representations about his conduct, which for the most part I do not accept." The Crown presented the case against the father on the basis that his assertions that he was acting under compulsion of others was dishonest. The father's assertion that others were involved in his offences related only to public servants.
His Honour found at page 54 of the sentencing remarks that:
The Crown concedes, and I accept that the offences were not for any purpose extending to other crime including the provision of those items to others in the community. He had these items, I find, because he wanted to possess them, reflecting his personality, including his obsession and compulsion and perfectionist personality, and his evolving deterioration in his mental health.
His Honour referred to the father having "a full sense of importance, if not grandiose delusion that he entertained about his position and the role that he was there to perform", referring to his employment as a public servant.
I have detailed this material from the District Court sentencing remarks as it forms part of the mother's case that there is a risk to the children in the care of the father, particularly if unsupervised, by reason of his susceptibility to grandiose delusions, as referred to by His Honour and his persistence in seeking to excuse his offences by references to others, or by reason of the father's assertions being factual and there being third parties associated with his criminal activities to present a threat to the father and therefore to the children if they are in the father's care.
I find on all of the evidence that I agree with the findings of the learned District Court Judge that any references by the father to third parties associated with his criminal activities with firearms were deliberately dishonest in an attempt at first to defend, and later to mitigate, the matters with which he was charged and that there is no evidence upon which a finding could properly be made that there is any risk presented to the children in the care of the father from third parties involved in firearm crime, drug crime, or any other criminal activity.
The first step in the Court's consideration of whether it is just and equitable to make a property settlement order is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. I take "the property" to refer to the composition of what I call the matrimonial property pool by considering what assets and liabilities, including any addback issues, compose the pool. I also consider that the Court's preliminary consideration should also be to identify any relevant financial resources of the parties so as to inform an overview consideration of the matters in section 79(4) of the Act that forms part of the process of determining if it is just and equitable to make an order altering the parties’ interests in the property identified as forming the matrimonial property pool.
In some ways the first step is both easy and difficult in this matter as Exhibit A1 is a Balance Sheet (a miss-description, but a term of art in family law), and in essence the figures are not disputed by the father except in relation to the value of the first asset, the M Street, Suburb N property. However, this is a nonissue as the M Street, Suburb N property was sold by the mother and Mr D at some time during the course of the final hearing in about late 2020 and the mother and Mr D purchased the real property at R Street, Suburb S ("the R Street, Suburb S property") as the family home for themselves and the children.
The first step's difficulty lies in there being no evidence before the Court in relation to the details of the sale of the M Street, Suburb N property and purchase of the M Street, Suburb N property except the statement in brackets on the Exhibit A1 Balance Sheet that the mother's interest in the M Street, Suburb N property was 38%. Not having any evidence in relation to the sale price of the M Street, Suburb N property or the net received to the mother and Mr D I can have no idea of the value of the asserted 38% interest of the mother.
Similarly, without any evidence relating to the details of purchase of the M Street, Suburb N property I cannot know the extent of the mother's interest in that property. It has been open to the father to seek to reopen the evidence so as to present evidence of the details relating to the M Street, Suburb N property so that the extent and value of the mother's interest in that property can be identified.
Accordingly, I find that the father and the mother's interest in the property composing the matrimonial property pool according to ordinary common law and equitable principles is as follows, in simple summary form:
(a)The mother has her interest in the M Street, Suburb N property as a co-owner with Mr D, whether as joint tenant or tenant-in-common it is not known, and if as a tenant-in-common the extent of her interest and value thereof is not known;
(b)The mother is the owner at law or in equity as between herself and the father of a Motor Vehicle 2, subject to a lease and with an equity that the mother states as nil in consequence of the lease payout figure being $16,000 and the amount owing being $24,562, and which the father states as $22,000, but acknowledging the debt of $24,562;
(c)The mother has savings of $2,352;
(d)The father has a Motor Vehicle 3 with an agreed value of $3,200 and a Motorcycle asserted by the mother to be worth $5,350 and by the father to be worth $3,500;
(e)The mother may be liable, herself or together with Mr D, the latter being the most likely, in relation to a loan account for the purchase of the M Street, Suburb N property and secured on that property, but there is no evidence to determine such matter;
(f)The mother has a credit card debt with Bank AT in the sum of $1,215, a credit card debt with Bank AU in a sum of $3,145, and a car lease debt with an unknown financial institution in a sum of $24,562;
(g)The mother has superannuation entitlements in an accumulation fund with Super Fund AV that she values at $235,648 (the father gives a much lower valuation at $160,000 but I will accept the mother’s valuation); and
(h)The father has superannuation entitlements in an accumulation fund with Super Fund AW and he asserts it has a value of $90,000 and the mother asserts it has a value of $110,000. No documentary evidence was presented at the hearing to resolve that issue and no financial statement was relied on by the father at the hearing.
The Balance Sheet asserts an add back of $46,715 as the monies received by the father from the proceeds of sale of the AX Street, Suburb V property and applied by him entirely towards the legal costs associated with his criminal proceedings.
The Balance Sheet also refers to an add back, specifically sought by the mother of $40,750 as the value of registered firearms and componentry owned by the father at the time of his arrest and confiscated and disposed of without compensation to the father in consequence of his conviction.
The Balance Sheet also refers to a proposed add back for "Child support - owed by husband to the wife" in the sum of $3,700 and "Reimbursement of costs as consented in orders of 11 May 2018" in a sum of $2,145. I do not consider that the arrears of child support is an appropriate add back and I have no evidence as to whether it remained owing at the conclusion of the hearing.
The "Reimbursement of costs as consented in orders of 11 May 2018" refers to order 12 in the Minute of Order forming part of the orders made by the Court that day that reads "that the father shall reimburse the mother from his share of any final property adjustment of monies paid by the mother to the supervision service pursuant to Order 7 herein", order 7 relating to payment of fees associated with supervision of the father's time with children at The AJ Contact Service. Outside of a calculation at item 11 on the Balance Sheet that reads "[15 x $125 / 2 x $135]", there is no evidence whatsoever as to how the amount of $2,145 is calculated. I can infer that the calculation indicates fifteen occasions on which the mother paid $125 "to the supervision service pursuant to Order 7", and two occasions on which the mother paid $135 "to the supervision service pursuant to Order 7". If this is an assertion by the mother that monies are owed to her by the father pursuant order 12 of the consent orders made on 11 May 2018, then it is by no means what is commonly referred to as an add back. I carefully note that the order provides that any such monies are to be reimbursed to the mother by the father "from his share of any final property adjustment of monies".
The mother made an initial contribution of her equity in the AM Street, Suburb AN property and when that property was sold in 2009 the mother applied $68,000 from the net proceeds of sale to the discharge of a credit facility obtained by the parties to assist with purchase of the AX Street, Suburb V property, and applied the balance remaining of $44,000 towards the living expenses of the family unit after those monies were placed in her own savings account. The father made a negative initial contribution, subject to any superannuation entitlements he may have had at that time, and I have made comments on that issue earlier in these Reasons. The mother had superannuation entitlements to a value of $5,000 of the commencement of their cohabitation.
The parties made an equal financial contribution during their cohabitation and the mother was mainly responsible as between the parties for the homemaker role (paragraph 153 of the mothers trial affidavit, in relation to which the mother was not cross examined and there is no contradicting evidence in the father's case) and was the primary carer for the children (paragraph 156 of the mothers trial affidavit). During the father's cross examination the following exchange occurred:
MR STAGG:You say in an affidavit and to the family report writer that you were the children's primary carer?
FATHER:I was when I had the children.
MR STAGG:When the mother had the children, she was the primary carer?
FATHER:Yes.
In finding that the mother was the primary carer of the children during cohabitation, I do not discount the father's contribution which was also substantial but not to the level of primary carer.
The mother has been sole carer for the children since 2013 when the parties separated on the father's arrest and incarceration, and except for father's contribution by way of child support, which has been intermittent due to his incarcerations, the mother has been sole financial support for the children since separation.
The AX Street, Suburb V property was sold in 2013, four months after separation, and from that sale the father received $43,180 or 26.5% of the net proceeds of $162,624, and the wife received $119,000, or 73% of the net proceeds - 0.5% is not accounted for in the mother's evidence.
I accept the evidence in paragraph 130 of the mother’s trial affidavit that at about the time the parties were divorced in July 2014 the monies received by each from the net proceeds of sale of the AX Street, Suburb V property together with property received or retained by them at that time, and not including in calculations the mother's credit card debt of $1,500 or the balance of a novated car lease owed by the mother (the vehicle is not given a value as an asset) or the "Firearms/components - $40,700", the pool divided up to that time had a value of $351,468 of which the father received or retained $132,248 and the mother received or retained $219,220, being at that time a division between them of 37.6% to the father and 62.4% to the mother.
I excluded the value of the "Firearms/components" that had been legally owned by the father up to his arrest in 2013. The mother contends in her case that pursuant to the orders made by Judge AD at the end of the father's sentencing proceedings the father could have made application within 28 days of sentencing for return of the firearms and componentry that were lawfully owned by him at the time of his arrest. In that regard the mother points to his Honour's order that, "The exhibits can remain on file for 28 days or such longer period as the parties may require." However, there is a more specific reference to property lawfully owned by the father, as well as to the property lawfully owned by others, in the exchanges between the Bench and Counsel found on pages 58 to 60 of Annexure "E" to the mother’s trial affidavit. I note particularly that on page 58 there are references made to a computer or computers seized at the time of the police raid in 2013 and the comment by Mr Newton of Counsel, prosecuting, that "there is no difficulty with property that falls into that category being returned to him". On my reading of the transcript and my understanding of the consequences that flow from the offences of which the father was convicted, his lawfully owned firearm materials were forfeited.
In circumstances where property that was owned in law and in equity by the father up to 2013 is forfeited and is therefore a loss from the then existent matrimonial property pool, due wholly and solely to the criminal activities of the father, I regard it as a waste of the type referred to in the well-known case of In the marriage of Kowaliw, J.I. and Kowaliw, A.G. (1981) FLC 91 - 092. The value of the waste is $40,750. In the past, waste of the Kowaliw type has often been added back as property as if the property lost still existed in the hands of one of the parties. I consider that the more correct approach is to consider such waste as a relevant matter when considering any adjustment between the parties pursuant to section 79(4)(d), (e), (f) or (g), and in particular as a fact or circumstance which the justice of the case requires to be taken into account under section 75(2)(o).
I accept the mother's evidence in paragraph 130 of her trial affidavit that the value of the father's superannuation entitlements in July 2014 was $76,414 and the value of her superannuation entitlements at that time was $74,470. At the time of hearing I find that the mother's superannuation entitlements were valued at $235,648 and the father's superannuation entitlements at $110,000. The father had made no contribution whatsoever to the increase in the mother’s superannuation entitlements, whilst there is a component of contribution by the mother for the increase in the father's superannuation entitlements in that her sole carer of the children as between the parties between 2017 and 2019 enabled the father to engage in gainful employment and accrue further superannuation contributions under the employee compulsory superannuation scheme without having to consider arrangements for care of the children whilst he engaged in employment. This is a minor element of contribution but a valid contribution nevertheless.
The father was fully aware that the AX Street, Suburb V property was being sold in 2013 as he provided a Power of Attorney to the mother from 2013 to 8 August 2014 and it was used for the purpose of the sale by the mother. Further, I accept the mother's evidence in paragraph 122 of her trial affidavit that the father was informed of the progress of the sale of the AX Street, Suburb V property by his legal representative in his criminal proceedings, who also undertook the conveyancing for the sale of the AX Street, Suburb V property and had regular contact with the father. The father did not commence any proceedings at that time seeking property orders or to safeguard in any manner the net proceeds of sale, but was content to apply a portion thereof received by him towards his legal fees incurred in relation to his criminal matters.
The mother applied monies in a sum of, initially, $139,000 in October 2015 to purchase of the M Street, Suburb N property, and later a further $80,000 from her redundancy and termination payment received in 2016. Whilst the redundancy payment related to a period of time that the mother was in employment and the parties were cohabiting and each making contributions of various types, financial, non-financial and to the welfare of the family unit, there is also a period of time from 1998 to 2003 and from 2013 to 2016 when the parties were not cohabiting and the mother was in that employment. The savings accumulated by the mother to form part of the $139,000 contributed by her at the time of purchase of the M Street, Suburb N property reflects savings accumulated by the mother whilst the father was incarcerated together with, it can be presumed, some or all of the $119,000 received by her from the sale of the AX Street, Suburb V property.
Details in relation to the sale of the M Street, Suburb N property and purchase by the mother and Mr D of the M Street, Suburb N property are not in evidence, but the clear implication is that the mother's beneficial interest in the net proceeds of sale of the M Street, Suburb N property flowed into the M Street, Suburb N property.
In considering all of the above I find that I am not satisfied that, in all the circumstances, it is just and equitable to make an order under section 79 of the Act altering the interests of the parties in the property, where by "the property" I mean all property in which either party has an interest in law or in equity at the time of the hearing.
The father sought an order in relation to financial matters, as voiced by him to the Court at the start of the final hearing, altering the interests of the parties in the property by dividing the property 40% to him and 60% to the mother. It is not just and equitable to make any order altering the interests of the parties in the property.
The mother sought in orders 8 to 11 of the Minute of Order contained in her Case Outline document filed 3 December 2019 orders in relation to property that specified what the parties would keep, but did not have the effect of altering the interests of the parties in property. Having found that it is not just and equitable, in all the circumstances, to make any order altering the interests of the parties in the property I find that it is not appropriate to make orders of the nature sought by the mother which, though they have the same effect, are in reality orders dealing with the interests of the parties in the property under section 79 by having the potential to transfer legal or beneficial ownerships from one party to the other based upon possession.
As there will be no "final property adjustment" between the parties there is nothing to be reimbursed by the father to the mother pursuant to order 12 of the orders made by consent on 11 May 2018.
The ICL’s costs application
At the end of the final hearing on 9 February 2021 (the evidence was reopened and closed at mention on 21 May 2021 and last submissions received 5 July 2021), an application was made by the ICL that the mother pay part of the costs of the ICL in a sum of $9,985.15. The document entitled "Costs Notice for The Provision of the Independent Children's Lawyer" was tendered into evidence by the ICL and marked as Exhibit ICL8. The document asserts that the professional costs of the ICL covering the whole of the proceedings are $18,694.50, including Council's fees, and that disbursements for the whole of the proceedings are $1,275.80, being a total of $19,907.30. The ICL indicated through her Counsel that no contribution was sought from the father as contribution by the father to the ICL's costs was waived by a letter of 15 June 2015, and that half of the ICL's costs were sought from the mother, being $9,985.15.
Mr Stagg made submissions for the mother in relation to the ICL's application for costs. Mr Stagg noted that the father's share had been waived, and that the mother was "not financially in a great position" and submitted that proceedings had been lengthened through no fault of the mothers, referring to 9 December 2019 when the whole day was taken up with the father's application to adjourn the final hearing and the father's non-attendance due to delays with Corrective Services delivery until 12:30PM on 10 December 2019.
As stated earlier in these Reasons under the material relied upon by the mother, no Financial Statement by the mother was referred to as a document upon which she relied in her Case Outline document and the most recent "updated" Financial Statement of the mother was completed by her on 18 October 2016.
Costs matters under the Act are dealt with in section 117 of the Act. The general rule is that each party shall bear his or her own costs, and the general rule makes no reference to an ICL as an ICL is not a party. Subsection 117(2) provides that if the Court is of opinion that there are circumstances that justify it doing so, the Court may make such order as to costs as the Court considers just. It is made abundantly clear in subsection 117(3) that an order relating to costs under subsection 117(2) may be made "to the effect that each party to the proceedings bears, in such proportion as the Court considers just, the costs of the Independent Children's Lawyer in respect of the proceedings." Under subsection 117(4) no such order for contributions by party or parties to the ICL's costs may be made in relation to a party to the proceedings who has legal aid in respect of the proceedings or where the Court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the Independent Children's Lawyer.
Under subsection 117(5) when the Court is considering what order, if any, should be made under subsection 117(2) in proceedings in which an Independent Children's Lawyer has been appointed, the Court must disregard the fact that the Independent Children's Lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
In considering whether or not an order for costs should be made under subsection 117(2) the Court shall have regard to the matters set out in subsection 117(2A), which, due to the effect of (g) in that subsection are inclusive and not exclusive.
There is appellate court authority that an ICL should be regarded as unfunded and that all things being equal, parties should generally contribute to the costs of the ICL. In this matter the father avoids application that he contribute to that cost because when the ICL was appointed he was incarcerated and either in receipt of a grant of legal aid to the proceedings or impecunious enough to have requirement contribution waived. I consider that in this matter the mother would suffer financial hardship if she had to be a proportion of the costs of the Independent Children's Lawyer and therefore, I must not make an order that she so contribute. If I am wrong in that regard then I have considered the matters referred to in subsection 117(2A) and the authorities, and I find that there are not circumstances that justify the Court in making an order that the mother contribute to the costs of the ICL.
I make the parenting orders, order dismissing alteration of property proceedings and order dismissing the ICL's costs application that are set out at the start of these Reasons.
I certify that the preceding three hundred and twenty-nine (329) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 21 October 2022
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party …
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party …;
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage … including any contribution made in the capacity of homemaker or parent; …
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