Forester & Forester (No 2)

Case [2024] FedCFamC1F 378


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Forester & Forester (No 2) [2024] FedCFamC1F 378

File number MLC 106 of 2022
Judgment of WILSON J
Date of judgment 7 June 2024
Catchwords FAMILY LAW –PARENTING & PROPERTY – trial proceeded on an undefended basis – mother an unacceptable risk – no time ordered – property pool divided 70/30 in favour of husband after loan from his parents ordered to be paid first.
Legislation

Corporations Act 2001 s 1323

Family Law Act 1975 ss 60CC, 64B, 74, 106A

Cases cited

Ashton v Pratt (2015) 88 NSWLR 281

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Holloway v McFeeters (1956) 94 CLR 470

Honeysett v R (2014) 253 CLR 122

Isles v Nelissen (2022) 65 Fam LR 288

Jabour v Jabour (2019) 59 FamLR 475

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Paviello & Paviello [2022] FedCFamC1F 592

Stanford v Stanford (2012) 247 CLR 108

Trevi & Trevi [2018] FamCAFC 173

Division Division 1 First Instance
Number of paragraphs 115
Date of hearing 24 May 2024
Place Melbourne
Counsel for the applicant The applicant did not appear
Counsel for the respondent Mr J Rattray
Solicitors for the respondent TFA Legal
Counsel for the independent children's lawyer Mr M Leeton
Solicitors for the independent children's lawyer Taft Lawyers

ORDERS

MLC 106 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MS FORESTER

Applicant

AND

Mr FORESTER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDERS MADE BY

WILSON J

DATE OF ORDERS

7 JUNE 2024

THE COURT ORDERS THAT –

Parenting

1.All previous parenting orders be discharged.

2.The father have sole parental responsibility for the child X (born 2017) (“the child”).

3.The child live with the father.

4.The child spend no time with the mother.

5.The father provide electronic copies of the child’s photographs to the mother every six months.

6.The father notify the mother as soon as practicable if the child suffers an illness or injury that requires admission to hospital.

7.The mother is permitted to send a letter or email and up to two gifts for the child for her birthday and Christmas, with such communications to be addressed to the father at a post office box or postal address nominated by the father in writing within 14 days of the date of these orders.

8.The father has liberty to provide a copy of these orders to any of the child’s school, medical doctor and other allied health professional.

9.The father is permitted to unilaterally apply for a passport to be issued or renewed or replaced for the child without having to obtain the mother’s consent or signature and a Registrar is permitted to sign any required documentation on the mother’s behalf.

10.The father is permitted to travel overseas or interstate with the child without having to obtain the mother’s consent but he must inform the mother of the departure date from Australia and the…

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AGLC
Forester & Forester (No 2) [2024] FedCFamC1F 378
Case
[2024] FedCFamC1F 378
Decision Date

CaseChat Overview and Summary

In the case of Forester & Forester (No 2), the court was called upon to determine parenting and property arrangements following the separation of the parties. The dispute centred around the allocation of parental responsibilities and the division of the couple's assets. The proceedings were conducted on an undefended basis, with the father presenting evidence of the mother's history of drug abuse, violent behaviour, and instances where she had put the child at risk. The mother, on the other hand, did not contest the father's claims.

The primary legal issues before the court were the allocation of parental responsibility, the determination of the child's living arrangements, and the division of the couple's property. Given the evidence presented by the father, the court had to consider whether the mother posed an unacceptable risk to the child and whether supervised visits were a viable option. Additionally, the court had to determine how to divide the property in a manner that was fair and equitable, taking into account the contributions of each party and the needs of the child.

The court found that the mother posed an unacceptable risk to the child, primarily due to her history of drug abuse and violent behaviour. The court noted that supervised visits had previously been ineffective as the mother had attended these visits while under the influence of drugs. The court also highlighted that the father did not have issues related to drug abuse or violent behaviour. Consequently, the court ruled that the mother should have no time with the child, a decision that was justified by the need to protect the child from family violence, which outweighed the requirement for a meaningful relationship with both parents. Regarding property, the court ordered a division in favour of the husband, taking into account a loan from his parents which was to be repaid before any other distribution.

In conclusion, the court ordered that the father have sole parental responsibility, that the child live with the father and have no contact with the mother, and that the property be divided in a manner that prioritised the repayment of a loan to the husband's parents. The court also imposed restrictions on the mother's ability to make future applications concerning the child without first obtaining leave from the court. This decision underscores the paramount importance of the child's safety and well-being in parenting and property disputes.

Orders

Orders of the court

MLC 106 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MS FORESTER

Applicant

AND

Mr FORESTER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDERS MADE BY

WILSON J

DATE OF ORDERS

7 JUNE 2024

THE COURT ORDERS THAT –

Parenting

1. All previous parenting orders be discharged.

2. The father have sole parental responsibility for the child X (born 2017) (“the child”).

3. The child live with the father.

4. The child spend no time with the mother.

5. The father provide electronic copies of the child’s photographs to the mother every six months.

6. The father notify the mother as soon as practicable if the child suffers an illness or injury that requires admission to hospital.

7. The mother is permitted to send a letter or email and up to two gifts for the child for her birthday and Christmas, with such communications to be addressed to the father at a post office box or postal address nominated by the father in writing within 14 days of the date of these orders.

8. The father has liberty to provide a copy of these orders to any of the child’s school, medical doctor and other allied health professional.

9. The father is permitted to unilaterally apply for a passport to be issued or renewed or replaced for the child without having to obtain the mother’s consent or signature and a Registrar is permitted to sign any required documentation on the mother’s behalf.

10. The father is permitted to travel overseas or interstate with the child without having to obtain the mother’s consent but he must inform the mother of the departure date from Australia and the return date to Australia.

11. Pursuant to s 64(B)(2)(g) of the Family Law Act 1975 (Cth), the mother is restrained from making any application under Part VII of the Act in relation to the child without first making an ex parte application seeking and obtaining leave of a Justice of Division 1 of the Federal Circuit and Family Court of Australia and for that purpose –

(a) the mother must file an application setting out the specific orders sought; and

(b) an affidavit setting out the evidence and reasons for seeking those orders.

Property

12. On or before 4pm on 14 June 2024, the applicant and respondent must do all acts and things including executing all necessary documents to procure the disbursement jointly in favour of Mr B Forester and Ms C Forester of the whole of the amount held in trust by Y Lawyers in respect of the land known and described as J Street Suburb K in the State of Victoria.

13. Within 48 hours of settlement of the sale of the land known and described as G Street, Suburb H in the State of Victoria, the applicant and respondent must do all acts and things including executing all necessary documents to procure the disbursement jointly in favour of Mr B Forester and Ms C Forester of such sum that, when added to the sum disbursed in accordance with paragraph 12 of these orders, aggregates a total amount of $450,000.

14. Within 14 days of the date of these orders, the wife must –

(a) transfer her shares in Z Pty Ltd to the husband; and

(b) renounces all claims against Z Pty Ltd and against the Z Trust;

(c) resign or consent to her removal (at the husband’s election) as a principal/appointor of the Z Trust;

(d) either surrender to the trust or assign to the husband (at his election) any present entitlements she has in the Z Trust;

(e) at the written direction of the husband, forgive or assign to the husband any credit/debt loan accounts that she may have in the Z Trust; and

(f) consent to her removal as a beneficiary of the Z Trust at the written request of the husband.

15. Within 14 days of the date of these orders, the wife must –

(a) renounce all claims against Forester Investments Pty Ltd and against the Forester Discretionary Trust;

(b) resign or consent to her removal (at the husband’s election) as a principal or alternate appointor of the Forester Discretionary Trust;

(c) either surrender to the trust or assign to the husband (at his election) any present entitlements she has in the Forester Discretionary Trust;

(d) at the written direction of the husband, forgive or assign to the husband any credit or debit loan accounts that she may have in the Forester Discretionary Trust; and

(e) consent to her removal as a beneficiary of the Forester Discretionary Trust at the written request of the husband.

16. Within 14 days of the date of these orders, the parties must do all acts and sign all documents necessary to enable their respective debts owed to the Z Trust to be offset against the trust’s deeds owed to each of them respectively.

17. The husband shall retain to the exclusion of the wife all right, title, and interest in the following entities and the husband remains solely liable for and indemnifies the wife against all liabilities with respect to –

(a) Z Pty Ltd in its own capacity or as trustee for the Z Trust (formerly known as W Pty Ltd);

(b) Z Trust (formerly known as W Trust);

(c) Forester Investments Pty Ltd in its own capacity or as trustee for the Forester Investment Trust; and

(d) Forester Investment Trust.

18. The husband shall retain, to the exclusion of the wife, the following assets –

(a) his savings; and

(b) his personal belongings and effects.

19. The wife shall retain, to the exclusion of the husband, the following assets –

(a) her savings;

(b) Motor Vehicle 1 motor vehicle; and

(c) her personal belongings and effects.

20. Each party is solely responsible for and indemnifies the other against all liabilities in that party’s name.

21. From the date of these orders and unless otherwise specified in these orders except for the purposes of enforcing payment of any money due under these or any subsequent orders –

(a) each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles;

(b) each party is solely liable for and indemnies the other against any liability encumbering any item of property to which that party is entitled pursuant to this order; and

(c) any joint tenancy of the parties in any real or personal property are hereby expressly severed.

22. If either party refuses or neglects to execute or return a deed or instrument in compliance with these orders, a Registrar of the Federal Circuit and Family Court of Australia (Division 1) at Melbourne is hereby appointed pursuant to section 106A of the Family Law Act 1975 to sign or execute any such instruments in the name of the defaulting party and do all acts and things to give viability and operation to the deeds and/or instrument.

23. Costs, if sought by either party, must be the subject of a separate application in a proceeding supported by affidavit material and written submissions.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The father is presently in a strong and committed relationship with his current partner. The father’s current partner has a child with whom the six year old the subject of this proceeding presently lives.THE EVIDENCE The father relied on two affidavits he made, the first affirmed on 25 March 2024 and the second affirmed on 21 May 2024. He was cross-examined on the contents of his affidavits by counsel for the ICL. The more important matters that arose from his affidavits were the following – (a)the mother has a history of violent behaviour including assault on police;(b)the mother’s drinking of alcohol was significant from the commencement of the relationship;(c)the mother at times concealed alcohol in the child’s bottle which the child once consumed;(d)the mother left glasses of alcohol around the home;(e)following separation, the mother took drugs;(f)in early 2021 the mother was hospitalised at the D Hospital following an episode of drug-induced psychosis and she was hospitalised on two other occasions for drug‑induced psychosis;(g)in 2021 the mother was involved in a car accident when the child was in the car and the mother drove away from the accident scene;(h)twice between 20 December 2021 and 14 February 2022 the mother failed to undertake drug and urine testing; (i)the mother was arrested in 2022 then released on bail; (j)on 4 August 2023 the mother failed to present herself for a supervised visit with the child in respect of which the child reported that it was the child’s fault for the mother’s non-appearance; (k)on 29 August 2023 the supervisor cancelled the mother’s supervised visit because the mother appeared to the supervisor to have been adversely affected by drugs;(l)in mid-2023 the mother and child connected by video link during which the child said she did not wish to participate and behaved inattentively; (m)the mother disclosed to the child that the mother revived an unconscious friend, using CPR, thereby saving the friend’s life;(n)following the making of orders on 11 October 2023, the mother made telephone calls to the child at inappropriate times during which the subject of the calls was also inappropriate;(o)on 18 October 2023 during a telephone conversation between the mother and the child, the mother told the child that the child’s living with the father and his partner made the child feel sad; (p)on 25 October 2023 the mother shouted at the father’s partner during a telephone call with the child;(q)on 28 October 2023 an employee of the supervising service needed to physically assist the child on play equipment because the mother stood at such a distance away from the child that the child’s safety was compromised, which episode precipitated the supervising service cancelling its involvement leading to there being no supervised visits between the mother and the child in the period between 28 October 2023 and 17 December 2023; (r)on 15 and 16 November 2023 the mother failed to join telephone calls with the child causing stress and confusion to the child;(s)on 30 November 2023 the mother accused the father of being nasty for failing to provide his address to enable the mother to deliver to the child an advent calendar; (t)on 1 December 2023 the mother failed to undertake a hair follicle test; (u)on 20 December 2023 the mother told the child that the events then underway were the father’s fault; (v)the Christmas supervised visit was cancelled because the mother failed to confirm the visit;(w)on 27 December 2023 the mother accused the father of abuse in the presence of the child;(x)in early 2024 the mother contacted police and falsely asserted that the father had abused the child;(y)on 18 February 2024, the mother arrived 20 minutes late for a supervised visit in E Shopping Centre when she was observed by the supervisor to be adversely affected by drugs so the visit was cancelled precipitating the mother in physically carrying the child while accusing the supervisor of attempting to harm the child, leading to the child experiencing nightmares and also leading to the child reporting fear of the E Shopping Centre; and (z)frequently, after supervised visits with the mother the child returns to the father’s care in an anxious and angry manner.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In my judgment, the mother poses an unacceptable risk to the child. Supervised time has been ineffective previously because the mother has attended when adversely affected by drugs. She has unilaterally cancelled a visitation and she has argued with a supervisor. Dr F expressed substantial reservations about the mother’s ability to prioritise the child ahead of her own issues. Conversely, the father does not have those issues nor does he have problems associated with drug abuse. STATUTORY CONSIDERATIONS Any parenting order in this case must be one that is in the best interests of the child. In determining the best interests of the child, I am required to consider the elements of s 60CC(2) and s 60CC(3) of the Family Law Act. The primary considerations in s 60CC(2)(a) and (b) being the need to make orders that provide for a meaningful relationship between the child and her parents and the need to protect the child from family violence are arranged in importance such that the need to protect the child from family violence assumes greater priority. Section 60CC(3) enumerates a collection of additional considerations which I am required to consider. The father has applied for an order that the mother is to have no time with the child. Self-evidently, such an order conflicts with the legislative imperative for orders to be made that promote the child having a meaningful relationship with both parents. An order for a parent to have no time with the child may be validly made when it is premised on safety concerns for the child. In this case I take the view that an unacceptable risk exists that the child will be exposed to family violence in the mother’s care. The psychological evidence of Dr F was damaging to the mother in that regard. PARENTING PROPOSALS In the mother’s amended initiating application filed 15 March 2023 she proposed a collection of parenting orders. They were as follows – (a)the mother and father have equal shared parental responsibility for the child; (b)the child live with the mother;(c)the child spend time with the father each alternate weekend, every Wednesday from 4pm to 7pm and half of the school holidays; and(d)that changeover be at the mother’s home. In his amended response to the mother’s amended initiating application, the father sought a collection of parenting orders yet he did not press others. Those he pressed were as follows –1. That all previous parenting orders be discharged.2. That the Father have sole parental responsibility for the Child X (born 2017) (“the Child).3. That the Child live with the Father.4. That the Child spend no time with the Mother.5. That the Father provide electronic copies of the child’s photographs to the mother every six months.6.That the Father notify the Mother as soon as practicable if the child were to suffer an illness or injury that requires an admission to hospital.7. That the Mother is permitted to send a letter/email and up to two gifts for the Child for her birthday and Christmas, with such communications to be addressed to the Father at a PO Box or postal address nominated by the Father in writing within 14 days of the date of these Orders.8. That the Father have liberty to provide a copy of these Orders to any of the Child’s school, medical doctor, and other allied health professionals.