Franco & Daley

Case [2023] FedCFamC1F 960

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Franco & Daley [2023] FedCFamC1F 960

File number(s): MLC 9994 of 2020
Judgment of: MCNAB J
Date of judgment: 8 December 2023
Catchwords: FAMILY LAW – PARENTING – Where children are living with a grandparent – Where parents have been seconded overseas– Where the parents have moved for postings leaving children with the grandparent – Where the children have spent a substantial amount of their lives living with the maternal grandmother - Where the mother’s visits with the children have been supervised for an extended period of time – Whether continued supervised time is in the best interests of the children – where application is made to discharge and remove the evidence of a single expert from the Court record where that expert has had their licence to practice as a psychologist suspended following the preparation of family reports and giving evidence.
Legislation:

Australian Passports Act 2005 (Cth) ss 7 and 11

Child Support (Registration and Collection Act)1988 (Cth) s 111C

Family Law Act 1975 (Cth) Pt VII ss 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65Y, 68B, 68C, 72, 79, 81, 114, 114AB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

AJO & GRO (2005) FLC 93-218

Babett & Falconer (2015) FLC 98-067

Champness & Hansen (2009) FLC 93-407

Child Support Registrar & Vladimir and Anor (2017) FLC 98-073

Dickons & Dickons [2012] FamCAFC 154

DJM v JLM (1998) FLC 92-816

Dovgan & Dovgan [2021] FamCA 306

Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143

Jabour & Jabour [2019] FamCAFC 78

Kowaliw & Kowaliw (1981) FLC 91-092

Marriage of Bieganski (1993) 16 Fam LR 353

Moose v Moose (2008) FLC 93-375

Mortimer & Mortimer [2023] FCWA 117

Perrin & Perrin (No 2) [2018] FamCAFC 122

Re C & J (1996) 20 Fam LR 930

Townsend & Townsend (1995) FLC 92-569

Slater & Light (2013) 48 Fam LR 573

Stanford v Stanford (2012) 247 CLR 108

U v U (2002) 29 Fam LR 74

W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

Re W (Sex abuse: standard of proof) (2004) FLC 93-192
Division: Division 1 First Instance
Number of paragraphs: 230
Date of last submission/s: 4 December 2023
Date of hearing: 31 July 2023, 1 – 2, 10 – 11 August 2023
Counsel for the Applicant: Ms McCreadie
Solicitor for the Applicant: Ms Vella
Counsel for the First Respondent Mr Testart                  31 July – 2 August 2023
Litigant in Person      10 – 11 August 2023
Solicitor for the First Respondent: Ms Elsner
Counsel for the Second Respondent: Ms Clark
Solicitor for the Second Respondent Ms Finch
Counsel for the Independent Children’s Lawyer Mr Dunstan

ORDERS

MLC 9994 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS FRANCO

Applicant
AND:

MS DALEY

First Respondent

MR DALEY

Second Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

8 DECEMBER 2023

THE COURT ORDERS THAT:

Parenting

1.The maternal…

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AGLC
Franco & Daley [2023] FedCFamC1F 960
Case
[2023] FedCFamC1F 960
Decision Date

CaseChat Overview and Summary

This matter involves a parenting dispute between Ms Franco (the mother) and Mr and Ms Daley (the father and grandmother) concerning the care of two children, X born in 2009 and Y born in 2011. The parents married in 2008 and separated in November 2020. The children have primarily lived with the maternal grandmother since about late 2012 and November 2019, respectively. The parents have had their relationship impacted by the father’s overseas postings, leading to the children spending significant time with the grandmother. The grandmother and father have a cooperative relationship, while the mother has a contentious relationship with both the grandmother and father.

The court was required to determine several key legal issues. Firstly, whether the children should reside with the maternal grandmother or the mother. Secondly, whether the mother should have unsupervised time with the children or whether her visits should continue to be supervised. Thirdly, the court needed to decide on the division of the parties' property and superannuation. The court also had to determine whether evidence from a psychologist, whose license had been suspended, should be removed from the court record.

The court determined that it was in the best interests of the children to reside with the maternal grandmother, given her long-term care of the children and the father’s overseas postings. The court found that the mother's history of emotional instability and inability to control her anger posed a risk of psychological harm to the children. Therefore, the court ordered that the children continue to have supervised visits with the mother. The court reasoned that supervised visits would allow the children to maintain a relationship with their mother while protecting them from potential harm. The court also ordered an equal shared parental responsibility between the grandmother and father, excluding the mother. Regarding property division, the court ordered a 62.5%/37.5% distribution in favor of the father, considering his higher earning capacity and contributions. For superannuation, the court ordered an equalisation of entitlements accrued during the marriage. The court dismissed the mother's application to remove the psychologist's evidence from the record, finding it relevant to the case.

The final orders included that the children would live with the maternal grandmother, with the father and grandmother having equal shared parental responsibility. The children would have supervised visits with the mother and telephone or video calls on Wednesdays. The father would have agreed times to spend with the children. The mother would pay all costs related to the supervision of her visits. The father was ordered to make a cash payment to the mother and retain certain properties and bank accounts. The court also made an equalisation order for the father's superannuation account. The mother was to indemnify the father against certain liabilities, and the father was to indemnify the mother against others. The orders aimed to finalize the financial relationship between the parties and avoid further proceedings.

Orders

Orders of the court

MLC 9994 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FRANCO

Applicant

AND:

MS DALEY

First Respondent

MR DALEY

Second Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

8 DECEMBER 2023

THE COURT ORDERS THAT:

Parenting

1. The maternal grandmother and father have equal shared parental responsibility for X born 2009 and Y born 2011 (“the children”) to the exclusion of the mother, including but not limited to, decisions regarding:

(a) where the children live;

(b) the children's education and where they attend school;

(c) the children's health including any medical/surgical/dental procedures that are not urgent;

(d) the children's religion; and

(e) all other long-term issues about the care, welfare and development of the children.

2. The children live with the maternal grandmother.

3. The children spend time and communicate with the mother as follows:

(a) by telephone or video call between 5:00 pm and 5:30 pm each Wednesday with the mother to initiate the call and the maternal grandmother to facilitate the call;

(b) for three hours per fortnight under professional supervision, save as otherwise agreed in writing between the mother, father and maternal grandmother in accordance with paragraph 3(c) below;

(c) subject to the children's wishes (including with regard to the removal of the requirement for supervision) such further or other time as agreed between the mother, father and maternal grandmother in writing, with such time only to occur during the children's time with the maternal grandmother;

(d) notwithstanding paragraph 3(c) above, the maternal grandmother, mother and father will use their best endeavours to organise for the children to spend time with the mother in accordance with paragraph 3(b) or 3(c) as relevant, on Mother's Day, the children's birthdays and at Christmas;

(e) the time in paragraph 3(b) and 3(c) be supervised by either B Family services, C Family Services or another professional supervision service as nominated by the maternal grandmother and subject to the availability of the supervisor, with the requirement for such supervision to remain until 8 December 2026 unless otherwise agreed in writing;

(f) when the children spend time with the mother changeover occur as agreed and failing agreement as follows:

(i) The mother and supervisor are to collect the children from the Town D store; and

(ii) The maternal grandmother is to collect children from Town E McDonald's carpark.

(g) the children's time with the mother be suspended on one fortnight in the long summer holidays to facilitate travel and/or holidays with the father (meaning they will be in the father’s uninterrupted care for up to three weeks) upon the father providing the mother with not less than 45 days’ written notice of such time, and with such time not to occur on 24 to 26 December;

(h) upon providing not less than seven days’ notice in writing, the children's weekend time with the mother may be missed as long as make up time is organised as soon as practicable within the following six weekends, to facilitate the children's engagement in social and/or sporting activities;

(i) the mother shall solely meet all costs of and related to the supervision of the children's time with her;

(j) the mother shall not be affected by alcohol levels exceeding 0.05 in the eight hours prior to spending time with the children and shall not consume alcohol during her time with the children;

4. With respect to the telephone/face time calls referred to in paragraph 3(a) the maternal grandmother is permitted to remain in the vicinity and shall terminate the communication in the event:

(a) inappropriate adult issues are raised by the mother;

(b) the mother becomes distressed, angry and/or abusive during the communication in a manner that is likely to cause the children distress;

(c) the children or either child becomes distressed and cannot be soothed by the mother.

5. The father spend time with the children at times agreed between him and the maternal grandmother subject to these times being in conflict with times spent with the mother pursuant to these orders. The father’s work schedule and location are not static or known. The maternal grandmother and father co-operate, and the children wish to spend time with the father. The maternal grandmother and father can facilitate that time.

6. The maternal grandmother and father do all such things and sign all such documents to request and authorise the school at which the children attend from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitation to parent teacher interviews and other information relating to the children's or either child's education to the mother and this order shall act as authority for this purpose;

7. The parties shall immediately inform each other of any serious illness and/or injury suffered by the children or either of them whilst in their care and provide all available information related to treatment received.

8. The father and the maternal grandmother have liberty to provide a copy of these orders to any school and/or medical practitioner the children may attend.

9. The parties keep each other informed of any change of address or telephone number within seven days.

10. The parties communicate any changes to the parenting arrangements in writing via text message or email.

11. The maternal grandmother, father and mother, their servants and agents, be and are hereby restrained by injunction from:

(a) denigrating any of the other parties and/or a member/s of their family and/or household in the presence or hearing of the children or either of them;

(b) using any form of inappropriate discipline on the children, including physical discipline;

(c) discussing these proceedings in the presence or hearing of the children; and/or leaving any documents and/or information relating to these proceedings in a manner that children may access;

(d) exposing the children, whether directly or indirectly, to family violence.

12. The parties be permitted to provide to any court hearing any matter involving the father/mother/maternal grandmother, such as the Magistrates' Court of Victoria, copies of the Family Report of Dr F dated 23 March 2021, updated Family Report of Dr F dated 1 November 2022, the psychiatric report of Dr G dated 25 June 2021, any affidavits filed in these proceedings, a copy of Final Orders made in these proceedings and if a final judgement by the Honourable Justice McNab is made, a copy of the reasons for judgement.

13. That pursuant to section 68B of the Family Law Act 1975 (Cth) the mother either personally or by her servants or agents be restrained by injunction from the following:

(a) Attending or going within 200 metres of AJ School or any other school or after school care the children attend;

without the written consent of the maternal grandmother and save as expressly provided for by these orders.

THE COURT DECLARES THAT:

14. Pursuant to ss 7 and 11 of the Australian Passports Act 2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the respondent mother to enable the children of the relationship X born 2009 and Y born 2011 to obtain an Australian Passport to travel internationally, the Court makes the following orders:

THE COURT ORDERS THAT:

15. The maternal grandmother and father of the children of the relationship X born 2009 and Y born 2011 be permitted to apply for an Australian Passport to enable the children to travel internationally notwithstanding that the mother of the children has not signed the passport application form and furthermore the said children be permitted to travel internationally without the permission of the respondent mother.

16. The respondent mother’s Application in a Proceeding filed 6 September 2023 be dismissed.

17. The ICL explain the orders to the children and upon satisfaction of the order the ICL be discharged.

PROPERTY

1. Sixty days after this Honourable Court has made a determination on any costs application in these proceedings further to Order 11, the father make a cash payment (the Payment) to the mother of $497,315.19 which is 37.5% of the net assets of the parties excluding superannuation, less $20,778.56 being the mother’s 50% share of payments made or that will be made by the father on the mother’s behalf as listed in paragraph 3, with such payment amount to be adjusted in accordance with any determination of costs;

2. The father retain the following sums, and there be a corresponding reduction in the entitlement the mother would have had in accordance with this order:

(a) the sum of $550 being the mother’s 50% share of the costs of the Super Fund 5 valuation made by Court Orders dated 8 September 2021 at paragraph 10;

(b) the sum of $472.50 being the mother’s 50% share of the costs of the Form 6 Applications for the Super Fund 1 and Super Fund 4 obtained in relation to the valuation of Super Fund 1 and Super Fund 4 by Super Fund 5 in accordance with Court Orders dated 8 September 2021 at paragraph 10;

(c) The sum of $935 being the mother’s 50% share of the costs of the H Group valuation made by Court Orders dated 8 September 2021 at paragraph 12;

(d) The sum of $495 being the mother’s 50% share of the costs of the H Group valuation made by Court Orders dated 14 December 2020 at paragraph 24;

(e) The sum of $6,082 including GST being the mother’s 50% share of the costs of the updated Family Report by Dr F, plus the provision of interest on the costs of this report from 28 March 2022 being at the rate pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), payable at the time this payment is payable, in accordance with the Court Orders dated 28 March 2022, and Rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth);

(f) The sum of $12,244.06 to J Pty Ltd being the sum owed by the mother to her former solicitor K Lawyers for her outstanding legal fees.

3. That contemporaneously with the Payment:

(a) The father withdraw the caveat he lodged over the property situate at L Street, Suburb M, Region AK being the whole of the land more particularly described in the Certificate of Title Volume … Folio … (the City N Apartment) with the father to pay the requisite PEXA fees, registration fees and any other legal fees with respect to the withdrawal;

(b) The mother do all such acts and things and sign all such documents to facilitate the withdrawal of caveat by J Pty Ltd to be registered, with the mother to pay the requisite PEXA fees, registration fees and any other legal fees with respect to the withdrawal;

(c) In the event that either party fails to sign and do all things necessary to engage and enable the withdrawal of caveat to be registered in paragraphs 4 (a) (b) to occur within 30 days of the date of these orders, pursuant to section 106A of the Family Law Act 1975 (Cth), the non-defaulting party may sign and do all things necessary in the place of the defaulting party.

(d) The mother do all such acts and sign all such documents as may be required to transfer to the father at the expense of the father all of her right, title and interest in the City N Apartment (the Transfer);

(e) In the event that either party fails to sign and do all things necessary to engage and enable the transfer of land in paragraph 4 (d) to occur within 40 days of the date of these orders, pursuant to section 106A of the Family Law Act 1975 (Cth), the non-defaulting party may sign and do all things necessary in the place of the defaulting party.

(f) The parties do all such things and sign all such documents so as to transfer or assign the lease in respect to the real property situate at and known as L Street, Suburb M, Region AK being the whole of the land more particularly described in the Certificate of Title Volume … Folio … (the City N Apartment) currently between Ms Daley, Landlord and the tenants of the City N Apartment into the name of Mr Daley as Landlord and the current tenants of the City N Apartment;

(g) In the event that either party fails to sign and do all things necessary to engage and enable the transfer or assignment of lease in paragraph 4 (d) to occur within 40 days of the date of these orders, pursuant to section 106A of the Family Law Act 1975 (Cth), the non-defaulting party may sign and do all things necessary in the place of the defaulting party.

(h) That after the completion of the Transfer, the father indemnify the mother against all payments and liability pursuant to all apportionable rates, taxes and outgoings of or with respect to the City N Apartment of whatsoever nature or kind.

4. That from the date of these Orders and pending the Payment and Transfer of the City N Apartment:

(a) The mother have the sole use and occupation of the City N Apartment and during such right of occupation the mother pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the City N Apartment as they fall due;

(b) The mother ensure that the current utilities such as gas, water and electricity are maintained during such right of occupation and she wholly indemnify and keep the father indemnified in relation to any outstanding rates, gas, water and electricity, or mortgage and tax payments during her time of occupation;

(c) The parties hold their respective interests in the City N Apartment upon trust pursuant to these orders;

(d) The mother must ensure adequate home and contents insurance is maintained for the City N Apartment;

5. The father retain his right, title and interest in the following property to the exclusion of the mother (including choses in action):

(a) In the real property situate at and known as O Street, Suburb P (the Suburb P Property) being the whole of the land more particularly described in Certificate of Title Volume … Folio …;

(b) The Commonwealth Bank Account ending …59;

(c) The Commonwealth Bank Account ending …67;

(d) The Commonwealth Bank Account ending …36;

(e) The Commonwealth Bank Account ending …99;

(f) All shareholdings in the father's sole name;

(g) All superannuation accounts in the father's name including in his Super Fund 1 fund, save for as provided for in Order 10 below regarding the Super Fund 2.

6. The mother retain her right, title and interest in the following property to the exclusion of the father (including choses in action):

(a) Her National Australia Bank Account ending …88;

(b) Her Q Bank Account ending …85;

(c) Her Commonwealth Bank Account ending …91; and

(d) ZZ Shares held in the name of Ms Daley on trust for Y and X.

7. The father wholly indemnify the mother and keep the mother wholly indemnified against all payments and liability pursuant to the Commonwealth Bank Mastercard Credit Card ending …53 and the mortgage to the Commonwealth Bank, Loan Account ending ...99 secured against the Suburb P Property.

8. The mother wholly indemnify the father and keep the father wholly indemnified in relation to all actions, claims, suits and demands as may be made against him in relation to the Commonwealth Bank Mastercard Credit Card ending …27.

9. There be an equalisation of superannuation entitlements accrued by the parties during their marriage, over the period 30 November 2008 to 20 November 2020 as follows:

(a) Orders 10 (b) to (f) inclusive are binding on the trustee of Super Fund 2.

(b) A superannuation splitting order be made in relation to the interest of the father in the Super Fund 2.

(c) The base amount of $105,000 be allocated to the mother out of the interest of the father in the Super Fund 2 (Base Amount).

(d) Whenever a splitable payment in respect of the superannuation interest of the father is payable in the Super Fund 2:

(i) under section 90XT(1)(a) of the Family Law Act 1975 (Cth), the mother be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the Base Amount; and

(ii) there be a corresponding reduction in the entitlement of the person to whom the splitable payment would have been made but for this order;

(e) Order 10 (d) have effect from the Operative Time;

(f) For the purpose of order 10 (e), the Operative Time is four business days after the date of service of these orders on the Trustee of the Super Fund 2.

(g) The father make a cash payment to the mother, in the sum of $147,815 in lieu of superannuation.

10. Unless otherwise specified:

(a) each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date of these orders;

(b) monies standing to the credit of either party in any bank accounts registered in their respective names either solely or held together with another individual will remain the sole property of the party named on the account;

(c) benefits under any frequent flyer or other rewards points system will remain the sole property of the party named on the account;

(d) each party foregoes any claim they may have to any employment benefits belonging to or earned by the other;

(e) all insurance policies remain the sole property of the owner named thereunder;

(f) either party forgoes any claim they may have to the other's inheritance;

(g) each party be solely liable for and indemnify the other against any liability encumbering any asset(s) to which that party is entitled pursuant to the orders; and

(h) any joint tenancy in any real or personal property is otherwise expressly severed.

11. The grandmother and father file submissions regarding costs both in terms of liability and quantum within 21 days of these orders and;

12. The mother file any submissions in response by 19 January 2024.

NOTATIONS

A. In accordance with section 65DAE of the Family Law Act 1975 (Cth), the maternal grandmother may make all day-to-day decisions for the children while they are in her care including, but not limited to, the children’s attendance at school or school related activities and extra-curricular activities or social events and general medical appointment and treatment.

B. In accordance with section 65DAE of the Family Law Act 1975 (Cth), the father may make all day-to-day decisions for the children while they are in his care including, but not limited to, the children’s attendance at school or school related activities and extra‑curricular activities or social events and general medical appointment and treatment.

C. Pursuant to Section 81 of the Family Law Act 1975 (Cth) the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

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.

Background

Background to the litigation

The parents married in 2008 and separated on 20 November 2020. Whilst it is disputed by the mother, it is the maternal grandmother's (“the grandmother”) evidence that Y has lived with her from about late 2012 until about January 2018 and then from November 2019 and continuing. It is the grandmother’s evidence that X spent significant time with her before he commenced living with her in 2016. There have been times, for instance, in about January 2018, that the children lived with the parents in City N from about January 2018 to November 2019. During this period, the children spent time with the grandmother during school holidays. Since November 2019 both children have resided with the grandmother. For reasons outlined below, where there is a dispute between the evidence of the mother and any other party, I prefer the evidence of the other party. The grandmother and father have a cooperative relationship. There is no cooperative relationship between the mother and the grandmother or father. BACKGROUND The parents married and commenced cohabitation in late 2008 in Suburb R. The father has been employed in a government department since mid-2003 and in that employment has been regularly posted overseas. He has spent substantial time in postings in places that are quite dangerous and are considered hardship posts. At the commencement of the relationship the mother was working for the Australian Defence Force. The mother gave evidence she was employed as a professional around 2010 and in her affidavit evidence, filed on 11 December 2020, she noted she was a professional working part-time in a government department. After the parents married, the father was posted to City S from 2009 - 2012. Initially the mother remained in Australia as she was pregnant with X. The father returned to Australia for the birth of X for six weeks and subsequently after about eight weeks the mother joined the father in City S with X. The grandmother joined the parents in City S for about three months to assist. Whilst the parents lived in City S they had the assistance of a full-time nanny, maid and driver. The mother commenced full-time employment in City S about six months after the birth of X. The mother returned to Melbourne for the birth of Y as did the father who remained in Australia until about late 2011. The mother and both children returned to Country T in about early 2012 and remained there until the conclusion of the posting in about mid-2012. The mother recommenced full-time employment and the parties had the assistance of a nanny, maid and driver however both parents were involved in the care of the children. In mid-2012 the father was posted to Brisbane. The grandmother gives evidence that Y commenced living with her full-time from August 2012 and says that the mother chose for the child to live with the grandmother as she could not cope with both children. The grandmother deposes that X started living with her in about 2016, with the grandmother reporting that he was unsettled and disruptive at school in Brisbane. X attended a school near the grandmother’s residence from mid-2016. In about December 2018 the parents purchased a property in Suburb U, City N and the children relocated to City N to live with the parents from that time, with the children attending schools in City N. The children spent school term and long summer holidays with the grandmother.

Evidence

Evidence Before The Court

At the commencement of the trial on Monday 31 July 2023, counsel for the mother sought an adjournment of the hearing on the basis that he had returned from an overseas holiday on the Tuesday prior to the commencement of the hearing and requested more time to prepare for the hearing. That application was refused. The matter ran from 31 July – 2 August 2023 and was adjourned to resume on 10 August 2023. On 10 August 2023 counsel and solicitors for the mother sought leave to withdraw on the basis that the relationship between the mother and her legal representatives had irreconcilably broken down and that the mother was refusing to follow advice. Leave to withdraw was granted further to orders of 10 August 2023. The mother proceeded unrepresented from 10 August 2023 and made an application for an adjournment which was refused.EVIDENCE The grandmother relied upon:(1)Further, Further, Further Amended Application filed 14 July 2023;(2)Trial affidavit of Ms Franco filed 14 July 2023;(3)Affidavit in reply filed 31 January 2022;(4)Trial affidavit filed 20 January 2022;(5)Affidavit of Ms CC filed 19 January 2022;(6)Affidavit of Dr EE filed 23 December 2021;(7)Affidavit of Dr FF filed 22 July 2021;(8)Affidavits of Dr F filed 4 November 2022 and 20 August 2021;(9)Affidavit of Dr G filed 7 July 2021. The mother relied upon:(1)Further, Further Amended Response to Initiating Application and Outline of Case filed 26 July 2023 by the mother;(2)Trial affidavit of the mother filed 26 July 2023;(3)Affidavit of Ms GG filed 25 July 2023;(4)Affidavits of Mr JJ filed 11 May 2023, 7 October 2022, 19 January 2022, 7 September 2021 and 27 August 2021;(5)Affidavits of the mother filed 26 October 2022, 3 February 2022, 10 September 2022, 23 August 2022, 27 July 2022, 27 August 2021, 9 June 2021 and 14 December 2020;(6)Affidavit of Ms HH filed 10 October 2022;(7)Affidavit of Mr KK, Victoria Police, filed 15 July 2022;(8)Affidavit of Dr LL filed 8 April 2022, 8 November 2021 and 8 September 2021; (9)Affidavit of Ms Franco filed 23 November 2020 by the applicant grandmother. The father relied upon: (1)Third Further Amended Response to Initiating Application for Final Orders filed 14 July 2023;(2)Trial affidavit filed 14 July 2023;(3)Financial statements filed 14 July 2023 and 19 January 2022;(4)Affidavits of Ms HH dated 14 July 2023, 20 March 2023 and 22 July 2022;(5)Further Amended Application for Final Orders filed by the applicant grandmother on 31 January 2022;(6)Affidavits of applicant grandmother filed 31 January 2022 and 19 January 2022;(7)Affidavits of the father filed 26 January 2022 and 20 January 2022;(8)Amended Application for Final Orders filed by the applicant grandmother on 19 January 2022;(9)Amended Response to Final Orders filed by the second respondent father on 19 January 2022;(10)Affidavit of Mr MM, H Group filed 14 January 2022;(11)Affidavit of Mr NN, AH Pty Ltd filed 12 January 2022;(12)Affidavit of Ms OO filed 12 January 2022;(13)Affidavit of Dr EE filed 23 December 2021;(14)Affidavit of Dr F filed 4 November 2022 and 20 August 2021; (15)DFFH S67Z Response to Notice of Risk filed 7 July 2021;(16)Affidavit of Dr G filed 7 July 2021;(17)Notice of Risk filed 2 December 2020 by the second respondent father;(18)DFFH S67Z Response to Notice of Risk dated 24 September 2020;(19)Notice of Risk filed by the applicant grandmother on 15 September 2020;(20)DFFH Report filed 17 June 2020.

Decision

Reasons for decision

Both parties agree that orders should be made for an adjustment of the property of the parties pursuant to s 79 of the Act. The father seeks an adjustment of 70%/30% in his favour and the mother seeks an adjustment of 70%/30% in her favour. CONCLUSION AS TO NON-SUPERANUATION ASSETS The father contributed the majority of the initial property pool and has made substantial contributions to the care of the children. He has a higher earning capacity – he has access to more substantial superannuation and work benefits such as Long Service Leave and the value of Points. It is likely that he will continue to bear the vast majority of the costs of maintaining the children. The mother has worked throughout the relationship and contributed her income albeit at a lower level than the father. The features of these parties’ employment, particularly the employment benefits when stationed overseas and the arrangements that they have made in relation to having the children cared for by the maternal grandmother, means that both parties’ non‑financial contributions are reduced. The mother has sought to construct a scenario that she has been required to cease her long-standing employment because of health issues but has not provided evidence at the trial to properly support that proposition. Whilst the mother has, throughout these proceedings, demonstrated that she has issues with her personality through the frequency and tone of her communications with the court and with the parties, she has nonetheless been able to maintain employment. The mother will have ongoing costs of supervision. Having regard to the findings regarding contribution and s 75(2) factors, the Court considers that a distribution of non-superannuation property is 62.5%/37.5% in favour of the father is just and equitable. Total non-superannuation assets are $1,985,754, with $1,241,096.25 as 62.5% to the father and 37.5% as $744,657.75 to the mother. The mother has already received $190,000, will retain her motor vehicle valued at $26,000 and the children’s shares valued at $5,682 and $4,882. The father proposes to make the remainder as a payment to the mother and that amount is $518,093.75 minus payments paid by the father on behalf of the mother in the amount of $20,778.56 as set out at [227] – [229] below is $497,315.19. The father proposed a further deduction for costs owed by the mother to the father in the amounts of $1,964 and $3,500, but these are to be dealt with by a separate application for costs, so that costs can be dealt with collectively. SUPERANNUATIONThe Father’s Interests The father has a Super Fund 1 defined benefit fund valued at $802,145. At the commencement of the relationship that fund was valued at $70,751. As at the date of separation, the fund was valued at $784,789 which means that $714,038 was accrued through the course of the relationship. In addition, the father has a superannuation fund: Super Fund 2 accumulation fund valued at $105,896 and valued at the commencement of the relationship at $100,844 therefore $5051 has been accrued in that fund through the course of the relationship.

Ratio Decidendi

Legal Principle Established

He further notes:Without the additional level of safety and security of having a professional supervisor, I hold fears that [the mother] will continue to fail to regulate her own emotions and control her anger. There is an unacceptable risk that our children will continue to be victims of her verbal abuse and her attempts to denigrate [the grandmother] and undermine their relationship with her. The fact that [the mother’s] behaviour in front of a professional supervisor has led to a supervised visit being terminated as recently as [mid] 2023 due to [the mother's] behaviour and then the service withdrawing [a month later] because of [the mother’s] hostility towards [the grandmother’s] and attempts to embroil the service in the conflict, raise very serious concerns about the behaviour the children would be exposed to without a supervisor there.[12]BEST INTERESTS – PRIMARY CONSIDERATIONSSection 60CC(2)(a) [12]Father’s trial affidavit filed 14 July 2023 at [29].The Benefit of the Child having a Meaningful Relationship with Both Parents The observations made by Dr F of the children’s interactions with their mother, in her report dated 23 March 2021, noted that the mother was warm and loving towards her children and that her approach in that observation session was “reasoned and calm.” At page 34 of that report Dr F states that the children’s behaviour with their grandmother, father and mother were “trusting and confident” and that:The affection that that the children showed for their grandmother, father and mother was manifested in all their interactions with them. [The children] also appeared confident that each caregiver would respond to them with, kindness and love. Plainly, the children love each of their parents and the grandmother and wish to have a relationship with all of them. The observations of Dr F on that day occurred in a controlled setting and do not reflect day-to-day life. I am satisfied that it is not in the best interests of the children for the mother to care for the children on a day-to-day basis because of her personality type and her lack of capacity to check herself and focus on the children. However as discussed below, the children have expressed the view that they wish to remain living with the grandmother and to spend supervised time with the mother. I do not accept that the children have been unduly influenced by the grandmother or any other person to express those views. The children are old enough to recall the experience of living with the mother and I do not accept that their views have been unduly influenced by the grandmother, the father or any other person. The mother’s behaviour over a long period, combined, with the father’s particular circumstances as a result of his employment, have meant that for a long period the children have been in the primary care of the grandmother. The father has effectively handed over parental responsibility to the grandmother where he has not been able to co-parent with the mother. This is a case where it is in the best interest of the children for the children to have a limited relationship with the mother. In the lives of these children, it is some time since the mother was their primary carer. The orders proposed by the grandmother and father enable the children to maintain a meaningful relationship with the mother albeit a limited one. It is more likely that she will have some relationship with the children if orders are made for supervised time as opposed to the likelihood of having no relationship if some other spend time arrangements were ordered. When cross-examined, the grandmother acknowledged the bond between the children and the mother and was willing to encourage that. The mother is unlikely to encourage a relationship between the grandmother and the children because of the enmity that she feels towards the grandmother and a breakdown of that relationship would not be in the best interests of these children. Section 60CC(2)(b) The Need to Protect the Child from Physical or Psychological Harm from being Subjected to, or Exposed to, Abuse, Neglect or Family Violence.