GABANON & FYFE

[2019] FCCA 2437

FEDERAL CIRCUIT COURT OF AUSTRALIA

GABANON & FYFE [2019] FCCA 2437

Catchwords:
FAMILY LAW – CHILDREN & DE FACTO PROPERTY – Final proceeding regarding children aged 8 & 5 – significant issues of family violence – significant allegations of methamphetamine abuse by father – father recently released from prison following violent altercation with police – assessment of risk – issues surrounding father’s mental health – father has spent supervised time with children in the past – father has not interacted with children for approximately twenty months due to his incarceration – father seeks to spend time with children – parental decision making – best interests – de facto property proceedings – valuation issues – add backs – assessment of contributions – justice and equity.

Legislation:

Evidence Act1995 (Cth), s.140

Family Law Act 1975 (Cth), ss.4, 4AA, 4AB(2), 4AB(3), 39, 60B, 60CA,

60CC, 61DA, 64B, 65C, 65D, 65DAC, 65DAE, 68B, 68LA(2), 90RD, 90SF(3),

90SM

Cases cited:

B v B: Family Law Reform Act 1995 (1997) FLC 92-755

Bartel & Schmucker (No 3) [2012] FamCA 1094

Bevan & Bevan [2013] FamCAFC 116

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015)  FLC 93-654

Fox v Percy (2003) 214 CLR 118

Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143

In the Marriage of Browne & Green (1999) 25 Fam LR 482

In the Marriage of DJM & JLM (1998) 23 Fam LR 396

In the Marriage of Kowaliw (1981) FLC 91-092

In the Marriage of Townsend (1994) 18 Fam LR 505

Kennon & Kennon (1997) FLC 92-757

Mazorski v Albright (2007) 37 FamLR 518

Moose & Moose (2008) FLC 93-375

Russell & Russell & Anor [2009] FamCA 28

Slater & Light [2013] FamCAFC 4

Trevi & Trevi [2018] FamCAFC 173

Waters & Jurek (1995) FLC 92-635

Watson & Ling [2013] FamCA 57

Applicant: MR GABANON

Respondent: MS FYFE

File Number: ADC 3568 of 2016

Judgment of: Judge Brown

Hearing dates: 23, 24, 25 & 26 July 2019

Date of Last Submission: 26 July 2019

Delivered at: Adelaide

Delivered on: 30 August 2019

REPRESENTATION

Counsel for the Applicant: Ms Read

Solicitors for the Applicant: C G Family Law

Counsel for the Respondent: Ms Tinning

Solicitors for the Respondent: Norman Waterhouse

Counsel for the Independent Children's Lawyer: Mr Dillon

Solicitors for the Independent Children's Lawyer: Legal Services Commission of South Australia

ORDERS

Parenting Orders

1. All existing orders are discharged.

2. The children of the relationship X born … 2010 and Y born … 2013 (hereinafter referred to as “the children” live with mother Ms Fyfe.

3. The mother have sole parental responsibility for making all decisions relating to major long-term issues concerning the children, including matters pertaining to their health and education, subject to order (4) hereof.

4. The mother advise the father Mr Gabanon in writing of any significant issues regarding the children's health or education as soon as she is able to reasonably do so, including in the event that either child is admitted to hospital as a result of suffering a serious accident or illness.

5. The father be restrained and an injunction issues restraining him from:

   (a)attempting to have contact with or communicate with either of the children or permitting, causing or authorising an agent to do so on his behalf save as provided for in order (6) hereof;

   (b)endeavouring to ascertain the mother's residential address or permitting, causing or authorising an agent to do so on his behalf;

   (c)attending at the children's school or permitting, causing or authorising an agent to do so on his behalf.

6. The father to be at liberty to send cards and gifts to the children on their birthdays and at Christmas.

7. That to give effect to orders (4) and (6) hereof each party is direct to advise the other, in writing, via their respective solicitors of a current postal address, which in the case of the mother may not be her residential address, within seven days of the date of these orders and inform the other of any change of such address within seven days of such change occurring by pre-paid post to the address provided by the other.

8. The father be restrained and an injunction granted restraining him from issuing further proceedings in the Family Court or Federal Circuit Court or any other Court exercising jurisdiction under the Family Law Act 1975 seeking orders in relation to parenting issues regarding the children until 1 January 2021.

9. After 1 January 2021, the father be at liberty to institute proceedings in relation to parenting issues regarding the children SUBJECT TO each of the following conditions being satisfied:

   (a)The father obtain and provide to the mother the written results of not less than one Hair Follicle Drug Screen test indicating that the father has not consumed any illicit drugs (including methamphetamine) in the most recent consecutive 6 month period;

   (b)The father obtain and provide to the mother a written report from Drug & Alcohol Services South Australia (DASSA) or similar authorised counselling service providing drug and alcohol counselling which  indicates the father has satisfied each of the following conditions:

   (i)the father has attended regularly for a continuous period of 12 months for drug and alcohol counselling;

   (ii)the father has produced clean drug screen tests for a consecutive period of 6 months prior to the report being prepared;

   (iii)the father has meaningfully engaged in counselling and that he acknowledged that he has a problem misusing alcohol;

   (iv)the father has consistently and effectively implemented changes in his behaviour to the effect that he has stopped consuming illicit substances for not less than a 6 month period and reduced his alcohol intake to a moderate level;

   (v)the father has demonstrated an understanding into the effect of his illicit drug use and alcohol misuse on his own behaviour and the impact of same on the mother and children; and

   (vi)a positive long term prognosis that the father will maintain abstinence as to illicit drugs and will maintain moderate consumption of alcohol;

   (c)The father obtain and provide to the mother a psychiatric report from a registered psychiatrist regarding his mental health.

   (d)The father obtain and provide to the mother a written report from a clinical psychologist and/or psychiatrist indicating:

   (i)that the father has engaged with said psychologist/psychiatrist for a continuous period of not less than 12 months; and

   (ii)containing the said psychologist/psychiatrist’s opinion as to whether the  father has meaningfully engaged in such therapy and has been compliant with any recommended treatment;

   (iii)a long term prognosis, including the opinion of the said psychologist/psychiatrist whether the father can safely interact with the children and, if so, what conditions should attach to the time the father spends with them.

10. Pursuant to this order, the father be authorised to provide to any clinical psychologist retained by him the following documents:

    (a)a copy of these reasons for judgment;

    (b)the family report of Ms C;

    (c)any report from his drug and alcohol counsellor; and

    (d)the report of Dr D tendered in these proceedings.

11. The appointment of the Independent Children’s Lawyer be discharged.

Financial orders

1. Pursuant to section 90RD of the Family Law Act, the Court declares that a de facto relationship existed between the Applicant and the Respondent between 9 January 2009 and 7 July 2016.

That in full and final settlement of all claims either party may have against the other for settlement of property or variation of property interest either in the past, present or future and to give effect to the mutual intention of the parties to release the other from any claim either one may have against the other pursuant to Part VIIIAB of the Family Law Act 1975

It is ordered as follows:

1. Within 60 days of the date of this order the Applicant Mr Gabanon do all things necessary and execute all necessary documents to place on the market for sale the property known as and situate at E Street, Suburb F in the state of South Australia being the land contained in Certificate of Title Volume … Folio … (hereinafter referred to as “the property”) on the market for sale.

2. The offering price of the property and the identity of the selling agent be as agreed between the parties in writing.

3. In the event the parties are unable to agree on the identity of the selling agent by 1October 2019 the selling agent be determined by the President of the Real Estate Institute of South Australia or his/her nominee.

4. The selling agent whether or not appointed by agreement between the parties or as appointed by order (15) hereof is authorised by this order to set the offering price of the property and any conditions relating to its sale.

5. The selling agent is authorised pursuant to this order to advise the respondent Ms Fyfe of all offers to purchase the property and provide his opinion as to whether any such offer should be accepted.

6. In the event the applicant refuses an offer to purchase the property which the selling agent considers reasonable a registrar of the Federal Circuit Court of Australia at its Adelaide Registry is authorised pursuant to section 106A of the Family Law Act on written application by the respondent to execute all documents necessary to effect such sale, including any acceptance of offer, the resulting contract of sale and any property transfer or related document in respect of the sale of the property deemed necessary by the selling agent appointed pursuant to order (15) hereof or any conveyancer appointed by the selling agent to effect the sale.

7. The applicant is directed to pay any sums secured by way of charge on the property in favour of the Legal Services Commission of South Australia arising from legal fees incurred on his behalf together with any sum required to secure the withdrawal of caveat number … lodged on the relevant certificate of title referrable to the property from the proceed of sale to be distributed to him pursuant to order (20) hereof.

8. The proceeds of sale be directed as follows on the settlement of the sale of the property:

   (a)firstly to pay the selling cost incurred in respect of the sale of the property;

   (b)secondly as to the balance:

   (i)75% to the respondent;

   (ii)25% to the applicant;

   (c)thirdly to reimburse to the respondent from the sum due to the applicant pursuant to order 20(b)(ii) any monies required to be paid to satisfy the provisions of order (19) hereof.

9. The applicant take all necessary steps to prepare the property for sale and in order to give effect to this order he is directed to remove all his chattels and any other personal possessions from the property, and clean up and remove all rubbish as directed by the selling agent, at his sole expense, no later than 15 October 2019.

10. Any expenses arising in respect of the preparation of the property for sale in respect of order (21) hereof, including the cost of rubbish removal, are to be borne by the applicant and if not paid prior to settlement of the sale of the property are to be deducted from the sum due to the applicant pursuant to order 20(b)(ii) hereof.

11. Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth) there be a splitting order, in the sum of fifty seven thousand dollars ($57,000.00), made in the respondent’s favour, out of the funds currently standing in the applicant’s name in the Super Fund S.

12. The trustee of the superannuation fund nominated by the respondent in which the split directed by order (23) is to be paid and the trustee of the Super Fund S are directed to do all things necessary to give effect to order (23) hereof and within twenty eight days (28) of the making of this order rollover the sum to be split in the respondent’s favour to the superannuation fund as so nominated by the respondent.

13. The respondent is directed to serve a copy of these orders on the trustee of the Super Fund S within twenty eight days (28) of the date of these orders and thereafter the aforesaid trustee has liberty to relist the matter in the event that the trustee is unable to comply with order (23) hereof.

14. The trustee of Super Fund S and the respondent in accordance with the Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all necessary documents as are required to calculate the payment entitlements of the wife in accordance with order (23) hereof.

15. Henceforth the property in the following shall vest in the applicant absolutely free of all claim or demand or right or entitlement of the respondent:

    (a)furniture, furnishings and effects in the applicant's possession, including his bottle collection;

    (b)the applicant's jewellery, including that previously owned by his former wife;

    (c)the stock in trade and operating equipment of G Pty Ltd;

    (d)all life insurance, life assurance or superannuation policies or entitlements due to the applicant or in the applicant's name other than the superannuation referred to in order (23) hereof;

    (e)any motor vehicle in the applicant's possession;

    (f)any other personal property including any chose in action in the applicant's possession, not otherwise specified herein.

16. Henceforth the property in the following shall vest in the respondent absolutely free of all further claims or demand or right or entitlement of the applicant:

    (a)furniture, furnishings and effects in the respondent's possession;

    (b)the respondent's shares, savings and investments;

    (c)the respondent's jewellery, particularly her engagement ring and earrings;

    (d)all life insurance, life assurance, superannuation policies or entitlements due to the Respondent or in the respondent's name;

    (e)any other personal property including any chose in action in the respondent's possession, not otherwise specified herein.

17. Each party do hereby release and discharge the other from any claim that either one may have against the other in respect of any property, whether real or personal, either now or hereafter owned by either of them.

18. Hereafter the applicant shall be responsible for all debts incurred by him since separation, including but not limited to any debt owed by the applicant to H Pty Ltd, whether such debt be incurred in his name or otherwise, and shall indemnify the respondent in respect of same.

19. Hereafter the respondent shall be responsible for all debts incurred by her since separation, whether such debt be incurred in her name or otherwise and shall indemnify the applicant in respect thereof.

20. Each party shall do all such acts and things and sign all such documents as may be necessary to give effect to these orders.

21. If the respondent or the applicant shall refuse or neglect to execute any document necessary to give effect to the terms hereof within 7 days after same have been tendered to him or her for that purpose, then in such case a registrar of the Family Court of Australia or Federal Circuit Court upon proof by affidavit of such refusal and neglect is hereby appointed to execute on behalf of either party hereto and if in her opinion it shall be necessary to do so to settle the same to deal with such other acts, matters and things and execute all such other documents it should be necessary to give full force and effect hereto and shall execute and do the same accordingly.

22. The applicant pay the respondent’s cost thrown away by reason of the adjournment of the proceedings fixed for trial on 13 May 2019 in the sum of $3,595.00.

23. All other applications are dismissed.  

IT IS NOTED that publication of this judgment under the pseudonym Gabanon & Fyfe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3568 of 2016

MR GABANON

Applicant

And

MS FYFE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a case concerned with risk and its assessment in the context of a parent spending time with two young children. The children are X born … 2010 and Y born … 2013. 

2. The parties to the proceedings are Mr Gabanon “the father” and Ms Fyfe “the mother”, who are X and Y’s parents.  Ms Fyfe also seeks orders in respect of the settlement of de facto property.

3. It is Ms Fyfe’s position that issues to do with Mr Gabanon’s mental health; his dependence on methamphetamines and alcohol, particularly in times of emotional stress; and his anti-social behaviour generally; render Mr Gabanon an unsafe parent to interact with children of the ages of X and Y. 

4. In these circumstances, she proposes a moratorium on contact between the father and the two children for approximately two years, during which period, Mr Gabanon would have time to address his addiction and related problems, if he was motivated to do so. 

5. At the end of this period, Mr Gabanon would be able to reapply to the court, to resume some form of relationship with X and Y.  The rationale for Ms Fyfe’s position is that she concedes the children love their father and he loves them. 

6. However, currently, she believes Mr Gabanon lacks insight into the deleterious emotional consequence of his behaviour for X and Y and needs expert assistance and a concerted personal effort to change his previously volatile and destructive behaviour. 

7. From Ms Fyfe’s perspective, the case centres on the short term need for the court to focus on making orders centred on maintaining hers and the children’s safety, whilst keeping open potential benefits, in the longer term, which the children may derive, in future, from interacting with their father.

8. Essentially, Ms Fyfe asserts that Mr Gabanon is currently too angry and reactive to engage safely with the children because he is consumed with animosity towards her and is fixated on his perception that she, in concert with “the system”, is intent on destroying his relationship, with the children, for no proper reason. 

9. Mr Gabanon does not agree.  He concedes that he has had some significant psychiatric and substance abuse issues in the past, which have involved police and mental health services, but asserts these issues have been overstated by Ms Fyfe in order to enable her to gain a tactical advantage over him, in these proceedings, and eliminate him as a parental influence in the children’s lives and development. 

10. Essentially, he asserts that the mother has manipulated circumstances to depict him in an extremely negative fashion, which is not congruent with how he actually is – a loving and caring parent, who has never and would never harm his children, albeit that he has come into conflict, from time to time, with others in his orbit, including his neighbours and police, both of whom, in his perception, have pursued various vendettas against him.

11. It is his position that Ms Fyfe also suffers significant psychiatric deficits, which also render her emotionally reactive and violent.  In this context, he alleges that the mother frequently assaulted him, during the parties’ relationship, causing him to either have to protect himself or retaliate under extreme provocation.  The underpinning of his case being that he is not the violent person depicted in the mother’s case and is just as sinned against as sinning.

12. The evidence indicates that, following the parties’ separation, in July of 2016, when Ms Fyfe left the relationship, taking X and Y with her, the father has had extremely limited interactions with the children.  Since this time, various authorities, in the form of the police, the criminal justice system and mental health services have been involved to a significant degree in Mr Gabanon’s life.

13. It is Mr Gabanon’s perception that, since separation, Ms Fyfe unreasonably restricting his interactions with the children.  This, in turn, he believes, had the consequence of causing his mental health to deteriorate significantly.  Something for which he ultimately holds Ms Fyfe responsible.

1. During the lengthy proceedings, which have occupied approximately three years, I have had the opportunity to observe Mr Gabanon react to his circumstances, in court, on many occasions.  In his own words, he categorises Ms Fyfe as “a liar”, who has “kidnapped X and Y.”  Repeatedly, Mr Gabanon has told me that all he wants is “to see my kids”. 

2. At an earlier stage of proceedings, I ordered that Mr Gabanon spend time with the children in the professionally supervised setting of a Children’s Contact Centre.  There were two such tranches of six visits, each of two hours in duration. 

3. This followed an earlier process of lay supervision provided by Mr Gabanon’s step mother, Ms J.  Mr Gabanon was extremely resentful in respect of the need for professional supervision, after what he perceived was the successful involvement of Ms J.

4. The notes provided by the relevant professional supervisors, at the Suburb K Children’s Contact Centre, indicate that, on occasion, Mr Gabanon referred to Ms Fyfe in an extremely offensive and demeaning manner and also threatened her in a violent and unacceptable way namely by saying that “she [Ms Fyfe] wants a bullet in her fucking head”.  

5. Ms Fyfe also asserts that the notes indicate Mr Gabanon placed the children under emotional pressure and made other derogatory comments about her and the legal process to them.  In these circumstances, she fears that Mr Gabanon is quite simply incapable of restraining his impulses, including in the presence of the children.

6. On the other hand, it is Mr Gabanon’s view that he represents no risk to the emotional well-being of X and Y, whom he has never hit or otherwise physically hurt, because he loves them.  If he has behaved inappropriately, since July of 2016, it is because he has reacted to the stress and injustice created by a system, which has either not allowed him to see his children or unreasonably restricted his access to them.

7. Essentially, it is Mr Gabanon’s position that the children have never been the focus of his anger or her aggression, which has only involved other adults, many of whom have borne grudges toward him and have had an ability to provoke him unfairly, knowing he will react.

8. In these circumstances, Mr Gabanon seeks to have an equal role to that of Ms Fyfe in making decisions about major long-term issues to do with X and Y’s care, welfare and development and to spend as much time as possible with the children. 

9. He concedes that these arrangements may have to be introduced incrementally, particularly until his accommodation and other criminal justice issues have been sorted out.  However, in due course, he would aspire to spending periods of time equal in duration to that which the children spend with their mother.

10. Mr Gabanon argues that it is essential that he remain engaged, as fully as possible, in the children’s lives, because there is a very real risk that a future episode of psychiatric ill health will befall the mother and he will have to step in to provide for the care of the children. 

11. On the other hand, Ms Fyfe contends that she and Mr Gabanon cannot communicate effectively with one another, due to longstanding issues of family violence in their relationship and it would be both impracticable and contrary to the children’s best interests for parental decision making to be shared between them. 

12. It is her position that, as a consequence of Mr Gabanon’s misconduct, over very many years, both before and after separation, she must be regarded as the children’s primary carer and, as such, the only person qualified and entitled to provide a residence for the children and to make major long term decisions in respect of X and Y.

13. Essentially, it is her case that the evidence available in this case indicates unequivocally that X and Y have been exposed to serious episodes of family violence emanating from Mr Gabanon and there is a significant risk of this occurring again in future, notwithstanding her concession Mr Gabanon loves the children and has not ever actually physically harmed them.

14. These proceedings also concern issues to do with the settlement property.  The parties are not married.  They began a committed relationship in early 2009.  Accordingly, the relationship between them is one of around seven and a half years in duration. 

15. At the relationship’s outset, Mr Gabanon owned a property located at E Street, Suburb F.[1]  This property subsequently became the parties’ family home.  Mr Gabanon purchased it in 1997.  For understandable reasons, he has a strong attachment to the property and wishes to retain it. 

    [1]  Herein after referred to as “the E Street, Suburb F property”.

16. The E Street, Suburb F property is by far the most significant item of value referable to the parties’ relationship.  It is unencumbered.  Its value is likely to be somewhere between $230,000.00 and $330,000.00.  The property is currently rented to a tenant by Mr Gabanon.  Ms Fyfe and the children left the property, in controversial circumstances, at separation. 

17. Mr Gabanon believes that if he has the stability of familiar accommodation and is able to resume some form of employment it will assist in his rehabilitation.  In addition, the E Street, Suburb F property will provide a suitable venue for him to interact with X and Y. 

18. Ms Fyfe asserts that it is inevitable that the property be sold.  It is her position that she made significant contributions, during the parties’ relationship, not only as a parent and home maker, but also in a business, which Mr Gabanon operated from April 2010 onwards.

19. Equally importantly, she asserts that her prospective needs, as the undisputed primary carer of X and Y, must be regarded as a significant factor, particularly given her view that Mr Gabanon will be either unwilling or unable to make any worthwhile contributions towards the financial support of the children, which will largely fall on her shoulders. 

20. At present, Ms Fyfe is a part-time student who relies on social security for her and the children’s support.  She lives in rental accommodation and was recently involved in a serious car crash leaving her with an insurance liability of approximately $45,000.00, which she has no means to satisfy.  In all these circumstances, Ms Fyfe seeks an 80/20% division of property in her favour. 

21. The legal fees accumulated in this case are significant, when the potential pool of property is considered.  Such an outcome would leave Mr Gabanon with little if anything, at the end of the property division. 

22. For obvious reasons, this is a situation which is hardly calculated to reduce any feelings of resentment and animosity Mr Gabanon may feel for the mother and the various forces he groups under the heading “the system”. 

23. Mr Gabanon and Ms Fyfe are not the only parties to these proceedings.  As a consequence of the difficult issues raised in the case – chiefly, those relating to family violence – at an early stage of proceedings, on 4 November 2016 – it was ordered that X and Y be independently represented in the case.

24. The children’s representative is Ashley Kent, an experienced family lawyer employed by the Legal Services Commission of South Australia.  Mr Kent has briefed a barrister, Mr Dillon to appear on his behalf in the four day trial of the case, which commenced on 23 July 2019. 

25. Mr Kent is to be regarded as a party of equal significance, in the case, to the parents concerned. Pursuant to the provisions of section 68LA(2) of the Family Law Act 1975, both Mr Kent and Mr Dillon are required to consider all the evidence available in the case and thereafter advocate the outcome, which they consider which will best serve X and Y’s interests. 

26. In this case, Mr Kent’s position, as advocated by Mr Dillon, falls on all squares with that propounded by Ms Fyfe.  Essentially, at the present time, it is Mr Kent’s position that the evidence currently available indicates that Mr Gabanon represents an unacceptable risk to the well-being of X and Y, chiefly because of his currently unaddressed issues related to methamphetamine use; his psychiatric health; and his lack of insight into the consequences of his unguarded animosity for Ms Fyfe.

27. To some degree, the independent children’s lawyer’s position has been influenced by the reports and subsequent evidence of two experts, who became witnesses in the proceedings.  They are respectively Ms C, a social worker and family consultant, who wrote a family report in October of 2017; and Dr D, a forensic psychiatrist, who examined Mr Gabanon recently on 16 July 2019. 

28. As part of the assessment process, Ms C observed X and Y interacting with each of their parents.  In this context, she noted that the children “demonstrated affectionate relationships with both parents”.[2]  As a consequence, it is Ms C’s opinion that both Mr Gabanon and Ms Fyfe “clearly love” X and Y and the children have an important relationship with them. 

    [2]  See family report dated 17 October 2017 at [156]

29. However, notwithstanding this positive relationship between father and children, in the context of what she categorised as being the father’s stressed and emotionally fragile state and long-term issues to do with his methamphetamine abuse, Ms C recommended that the court take a cautious approach in respect of any time occurring between Mr Gabanon and the children. 

30. In particular, Ms C feared that Mr Gabanon may experience difficulties in regulating his emotions, particularly whilst under stress, and, as such, she opined that he was at risk of succumbing to inappropriate outbursts, which could conceivably include violent behaviour against himself or others, including the children. 

31. In this context, she recommended as follows:

    “That until a psychiatric assessment determines that the father can appropriately and safely manage unsupervised time with the children he continues to have supervised time with the children. That supervisors are made aware that supervision includes supervising what is said to children and that to do so they are required to remain nearby.”[3]

    [3]  Ibid at [165]

32. Regrettably, what Ms C feared has come to pass.  In the latter portion of 2017 and the early part of 2018 Mr Gabanon made a number of serious attempts on his life.  On his own oral evidence, these attempts coincided with an escalating usage of methamphetamines. 

33. Most recently, on 8 February 2018, the police attended at the E Street, Suburb F property in response to concerns about the father’s safety.  Thereafter, there was a stand-off between Mr Gabanon and police, which resulted in him being charged with a number of offences, the most serious of which was aggravated assault and driving dangerously to cause a police pursuit. 

34. Ultimately, after a period of remand, Mr Gabanon was sentenced to a term of imprisonment in the District Court of South Australia, of two years and twenty-four days, which was backdated to 9 February 2018.  A non-parole period of one year and two months was fixed.  Accordingly, he was released from prison in … 2019.

35. Accordingly, due to his own actions, Mr Gabanon has not interacted with X and Y for a significant period of time.  He is currently subject to parole, a condition of which is that he is subject to random drug screen testing.  He does not have a driver’s licence.  It is his position that his parole and the conditions which attach to it represent a significant protective factor for the children. 

36. It was in this context that Mr Gabanon’s solicitor arranged for him to consult with Dr D, who is a forensic psychiatrist.  Dr D examined Mr Gabanon on 16 July 2019.  On any view, Dr D’s involvement with him has been brief.  Dr D agreed with my suggestion that his role, in the case, was essentially one centred on an assessment of the potential for Mr Gabanon to relapse into violence.  In the jargon it was a Risk Assessment Report.

37. Dr D provided some guarded optimism in respect of his assessment of Mr Gabanon in this context.  He described him (Mr Gabanon) as being open to receiving psychological care in future.  He did not consider him to be suffering from psychosis or a bipolar disorder or any specific organic disorder.  He described Mr Gabanon’s presentation as polite and cooperative.  He did not doubt Mr Gabanon’s love of his children.

38. Significantly, Dr D noted that Mr Gabanon had recently been prescribed an anti-depressant medication that had significantly improved his mood.  This followed an earlier episode of prescription of a medication, which had caused Mr Gabanon unpleasant side effects and led him to discontinue its use.

39. In these circumstances, Dr D opined that, if Mr Gabanon remained compliant with his current medication and was able to engage with a suitable mental health practitioner – whether a psychiatrist or psychologist did not matter – with whom he could develop rapport, there was a good prospect of Mr Gabanon being able to modify his behaviour through the application of cognitive behavioural therapy or some analogous treatment.

40. However, Dr D also acknowledged Mr Gabanon was likely to remain suspicious of many mental health practitioners and be resentful of anyone he perceived was directing his activities or telling him what to do.  In these circumstances, the key to success was likely to lie in finding a person in whom Mr Gabanon could deposit some trust.  Essentially, without the development of a sufficient level of rapport between Mr Gabanon and any such therapist, a successful outcome from treatment would be difficult to achieve.  

41. In diagnostic terms, Dr D considered the best fit for Mr Gabanon was of an avoidant personality style with a comorbid social anxiety disorder… with periods of consequential depression.  As will be detailed in more detail shortly, Mr Gabanon’s earlier life has been an extremely difficult one.  In these circumstances, Dr D opined that Mr Gabanon’s:

    “… exposure to abuse and dysfunction during his development has left him with an enduring sense of grievance but with a capacity to act out when under duress.”[4]

    [4]  See Psychiatric Report of Dr D dated 16 July 2019 at [7]

42. In general terms, Dr D considered that it would safe for Mr Gabanon to interact with X and Y on some form of supervised basis, for a period of at least six to twelve months.  He also considered that such visits should occur in conjunction with Mr Gabanon receiving continuing therapy; being drug and alcohol free; and remaining compliant with anti-depressant medication. 

43. In this context, it should also be noted that Dr D conceded that he had not had access to Mr Gabanon’s earlier psychiatric treatment notes, which were likely to be influential in how he (Dr D) would recommend the matter proceeded.  It being the case that Mr Gabanon has had a reasonably significant psychiatric history.

44. The likelihood of Mr Gabanon acting out in an unpredictable and possibly violent manner, which has the potential to be emotionally and physically detrimental to X and Y, is the central issue in this case.  It must be weighed against the developmental risks implicit in the children being deprived of the possible benefits of having a meaningful level of relationship with their father, whom I accepts loves each of them.

45. Accordingly, the case is one about risk.  What are the risks of Mr Gabanon resuming methamphetamine use; suffering a relapse of some form of mental breakdown; or coming into conflict with authority again in some chaotic or violent situation?  How can that risk be managed?  What are the emotional consequences for the children arising from the appropriate management of this risk?

46. The case is a difficult one, which provides no obvious or easy solution.  The difficulty is compounded by the fact that Mr Gabanon is recently released from prison and how he will adapt to his release and parole, in the longer term, remains far from clear, particularly in terms of what he personally will do to aid his rehabilitation.  However, the case has already been significantly delay and to delay it further would be profoundly unfair to Ms Fyfe, who herself is in an uncertain and unsatisfactory situation.

47. Overlaying all these difficulties is the need to settle the de facto property issues.  Necessarily, given the extent of the property pool and the parties’ respective significant needs, there can be no outcome in the case that will satisfy each of them.  To the contrary, the most obvious outcome is that the greater proportion of the property will be swallowed up in legal fees.

48. In these circumstances, there must be a very real risk that the outcome of the case will only entrench Mr Gabanon’s sense of bitterness and disempowerment and exacerbate his propensity to act out, when under duress, as noted by Dr D.  This cannot be helpful to either him or X and Y.

49. However, notwithstanding these obvious concerns, the court must still grapple with the difficult issues arising in the case.  In this context, its lodestone must be X and Y’s best interests and what is a just and equitable outcome, so far as the division of property is concerned.

The legal principles applicable

(a)    Proceedings relating to children

1. Part VII of the Family Law Act 1975[5] deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].

   [5]  Hereinafter referred to as “the Act”.

2. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC. 

3. Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations.  There are two primary considerations, which are set out in section 60CC(2)(a) & (b) namely:

   “(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)   the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

4. Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another.  They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned. 

5. However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”  Future protective issues for a child are the court’s priority. 

7. These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.

8. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:

   “(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

1. The principles, which underpin these objects, are set out in s.60B(2) and are as follows:

   “(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

2. The expression meaningful is not specifically defined in the Act.  It is an ordinary English word.  In Mazorski v Albright[6] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.

   [6]  See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]

3. The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives.  As a verb, involve means to participate or share experience. 

4. Accordingly, in my view, the rationale of Part VII of the Family Law Act is that children derive benefits from feeling that their parents are involved or participating in their lives.  A child’s life is, by necessary definition, every activity in which the child takes part.  Literally, it means the child’s existence, as an individual.

5. At present, Mr Gabanon is not involved in the children’s lives at all, certainly not in a meaningful way as envisaged by the legislation.  However, the evidence available to me indicates that both children, but particularly X, are aware they have a father and it would appear to be the case that each child is likely to have at least some positive recollections of engaging with him.  As time progresses, there is a risk that these recollections will fade.

6. The question of beneficial relationships is not to be considered in a retrospective sense.  Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.  I accept that to be meaningful parental relationships require both sufficient temporal quantity and quality of shared time to sustain them. 

7. As indicated above, the current case centres on the interplay of the two primary consideration in the court’s determination of what is likely to be best outcome for X and Y.  There is a significant emphasis in the legislation on the benefits likely to be derived for children of knowing and interacting with each of their parents.

8. However, protective concerns are to be given greater emphasis.  The difficulty arising in a case like the present one being that the two primary considerations may have different implications and different interactions, as time plays out. 

9. Essentially, it may be beneficial for the children, in the very short term, to maintain some slender thread of involvement with their father, in the hope that this thread can be strengthened over time.  The question thus arising is how can this be done safely?

10. On the other hand, to withhold time, at this stage, may ensure the safety of the children but may also result in the termination of a parental relationship, which may be very difficult to resurrect in future.  The question thus arising being what are the emotional ramifications of this for X and Y.

11. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3).  There are fourteen such criteria, which are categorised as being additional considerations. 

12. Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant.  This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

13. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[7] 

    [7]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

14. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[8]  As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[9] 

    [8]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [9]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

15. The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.

16. Family violence is defined by section 4AB(1) of the Family Law Act.  It means:

    “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”

17. The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:

    ·an assault;

    ·a sexual assault or other sexually abusive behaviour;

    ·stalking;

    ·repeated derogatory taunts;

    ·intentionally damaging or destroying property; and

    ·the withholding of financial support.

18. Accordingly, family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person.  Both parties have made allegations, against the other, which fall within the examples listed in sub-section (2).

19. Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.  Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:

    ·overhearing threats;

    ·seeing or hearing an assault;

    ·comforting or providing assistance to a member of the child’s family, following an assault;

    ·cleaning up after property has been damaged; and

    ·being present when police attend an incident involving an assault.

20. As I understand Ms Fyfe’s case, she alleges that both X and Y have been exposed to family violence, inflicted upon her by Mr Gabanon, in the sense envisaged by section 4AB(3). Her position is supported by the evidence of Ms C and what the children said to her, during the family report process.

21. More significantly, Ms Fyfe asserts that there is a very real risk that the father will denigrate or belittle her to the children or even, if he resumes methamphetamine use, he will involve them in some chaotic incident, which will necessitate further police involvement.  In this context, she points to what occurred at the Children’s Contact Centre and the serious series of events, which led to Mr Gabanon’s incarceration.

22. On the other hand, it is Mr Gabanon’s evidence that he was only ever reactive to provocative actions initiated by Ms Fyfe to which he reacted.  In addition, he alleges that, over very many years, he has been subjected to a concerted vendetta of intimidation by his neighbours at E Street, Suburb F, to which he again reacted rather than initiated.  He also asserts that, in the past, the police have also unfairly targeted him and invariably take the side of the aggressors against.

23. In assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms.  Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home. 

24. Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred.  However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[10]

    [10]  See Eaby & Speelman (2015) FLC 93-654 at 80,322 [21] per Ryan J

25. Family violence is not homogenous in its qualities and can arise in a variety of contexts.  It is also well recognised, including by the legislature through the provisions of the Family Law Act, that family violence is prevalent in all works of Australian society and represents a great threat to the wellbeing of children. 

26. Family violence can place children at actual physical risk of being hurt.  It also has the potential to do them emotional harm, if they are subjected to exposure to a well-loved family member being hurt or frightened.  For obvious reasons, individuals who use force to coerce or control another person are not appropriate role models for children. 

27. In this context, it is Ms Fyfe’s position that Mr Gabanon is not an appropriate role model for the children.  She categorises him as being chauvinistic in his attitudes toward women and a person who uses violence and intimidation to resolve disputes.

28. Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate arising from a clear power imbalance between the parties concerned.  Obviously, the latter type of behaviour is more damaging, so far as children are concerned.  But not all incidents of family violence will be damaging for a child. 

29. In the current case, given the parties’ very different views about the nature of their relationship with one another, it will regrettably be necessary for the court to determine who of the parties is likely to be the more credible in attributing to the main protagonist of family violence in their relationship. 

30. More significantly, it will be necessary for the court to attempt to quantify, in concrete terms, what are the risks arising for the children of being exposed to some form of antisocial behaviour emanating with one of their parents – it being Ms Fyfe’s case that these risks all fall with Mr Gabanon; whilst he asserts otherwise.

31. In Deiter & Deiter,[11] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.

    [11]  See Deiter & Deiter [2011] FamCAFC 82

32. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.  Risk arises in every aspect of human endeavour.  No individual’s life, including the life of a child, can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis. 

33. The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it.  These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and, as in the present case, the risk of a child being exposed to a parent’s sexual behaviour or more seriously the child being sexually assaulted or used as an object of sexual gratification.

34. The Full Court in Slater & Light expressed the task of assessing risk in the following terms:

    “The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [12]

    [12]  Slater & Light [2013] FamCAFC 4 at [37]

35. In this case, Ms Fyfe, through her counsel Ms Tinning, submits that it would constitute an unacceptable risk, for X and Y, if they spend any time whatsoever with their father, at the present time.  She proposes that the court impose a series of condition, which Mr Gabanon must satisfy, before any consideration is given to him spending any time whatsoever with the children.  It is her case that these conditions are proportionate to the risk constituted by the father.  These conditions are as follows:

    ·a negative hair follicle test, in respect of illicit drugs for a period of six months;

    ·written evidence the father has attended drug and alcohol counselling regularly and meaningfully for a period of twelve months;

    ·negative drug urine tests for a period of six months coinciding with such counselling;

    ·a satisfactory psychiatric assessment;

    ·the engagement of a mental health treatment plan;

    ·written evidence, arising from such a plan, that the father has engaged with a clinical psychologist to implement a process of behavioural change therapy; and

    ·the clinician concerned is prepared to certify the father has demonstrated insight into the destructive consequences of his behaviour and has developed skills to desist from violent behaviour;

    ·a further family  report;

    ·all these interventions take place at the father’s expense.

36. On the other hand, it is Mr Gabanon’s position, as advocated by his counsel Mrs Read, that the children should be re-introduced to him forthwith, albeit through some form of supervision.  Once again, he proposes the Suburb K Children’s Contact Centre or under the aegis of some other, as yet unspecified person.  He further proposes that the need for supervision be lifted in approximately twelve months’ time.

37. Underpinning his case, his view that the children need to re-connect with him as soon as possible, given the extended period during which he has been absent from them.  It is his position that the children will be safe, in objective terms, if there is an adequate level of supervision. 

38. In this context, he relies on Ms C’s report of his observed interaction with the children, which demonstrated X and Y were comfortable with him and he played appropriately with them.  It should be noted, of course, that the family report was prepared in September/October of 2017 and much has happened in the period since.

39. Ms Fyfe does not oppose the father being able to send cards and gifts to the children, at appropriate times, provided she herself is not required to engage with Mr Gabanon in any direct way.  She also seek that she have sole parental responsibility for X and Y, although she is prepared to inform Mr Gabanon, in writing, of any significant issue which may arise in respect of their health and education.

40. Mr Gabanon wishes to be able to share parental responsibility equally with Ms Fyfe, in respect of the children and to be able to attend school and extramural activities involving them.  Ms Fyfe wishes the court to make extensive orders which would prevent Mr Gabanon attempting to communicate or contact her and the children; or attending at the children’s school or home. 

41. In this context, she is concerned that, at an earlier stage of proceedings, Mr Gabanon instructed an inquiry agent to ascertain where she was living with the children.  At the time, she was subject to a family violence order.  Her concerns are heightened by her apprehension that Mr Gabanon has previously behaved in a manner which indicates he has little regard for authority.

42. Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].

43. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents. 

44. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

45. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

46. The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm. 

47. The court has authority conferred upon, through the provisions of Part VII of the Family Law Act, to alter the conferral of parental responsibility on any parent or parents, which arises by reason of their status as parents of any child concerned.  This is done through the mechanism of a parenting order.

48. A parenting order is an order which deals with such issues as the persons with whom a child should live; spend time and communicate with; and the persons, who should have responsibility for making decisions, both significant and otherwise, about a child and the degree of consultation necessary to implement such decisions [section 64B(2)].

49. Pursuant to section 65C of the Act, a child’s parents; the child him or herself; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order.  In addition, as a consequence of the provisions of section 65D, the court is empowered to make whatever parenting order it considers “proper”.  Pursuant to section 64B parental responsibility can be allocated to two or more persons. 

50. Clearly this provision, when considered in the light of the objects and principles underlying Part VII, contained in 60B, is supportive of the concept of parents sharing parental responsibility and meeting their responsibilities concerning their children’s care, welfare and development.

51. An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].

52. Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.

53. Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them.  This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.

54. In Bartel & Schmucker (No 3) Cronin J said as follows regarding the nature of parental responsibility:

    “Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision.  It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.” [13]

    [13]  See Bartel & Schmucker (No 3) [2012] FamCA 1094, at [18]

1. The Full Court has identified three areas in which it is appropriate for the court to consider the add back, into a pool of marital property, assets which do not exist or cannot be proved to be still existing.  These circumstances are as follows:

   ·where matrimonial assets have been utilised to pay the parties’ legal fees, thus diminishing the pool of assets available to be distributed between them and so creating a situation where the normal rule whereby each party should bear his or her own costs is defeated;[51]

   ·where there has been a premature distribution of matrimonial assets;[52] and

   ·where one of the parties has embarked on a course of conduct, either recklessly or with the direct intent to reduce or minimise the effective value of some item of matrimonial property.[53] 

   [51]  See In the Marriage of DJM & JLM (1998) 23 Fam LR 396 at 411 [11.6]

   [52]  See In the Marriage of Townsend (1994) 18 Fam LR 505 at 509–510

   [53]  See In the Marriage of Kowaliw (1981) FLC 91-092 at 76,644–76,645

2. In regards to the third of these categories, it has been pointed out by the Full Court that this principle represents a guideline for the court rather than a fixed code, bearing in mind the discretionary nature of the jurisdiction created by section 79 of the Family Law Act.[54] 

   [54]  See In the Marriage of Browne & Green (1999) 25 Fam LR 482 at 496 [44]

3. Recently, in Trevi & Trevi[55] the Full Court has reiterated that the court’s authority to add back is both discretionary and exceptional in nature.  The court said as follows:

   “Two fundamental premises emerge from Omacini and the authorities preceding it.  First, ‘adding back’ is a discretionary exercise.  When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it.  The second premise is its corollary: in cases that are not ‘exceptional’ justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor.  Indeed, it has been said that the latter is ‘a course which is, perhaps, technically more correct’ than adding back to the list of existing interests in property.”

   [55]  Trevi & Trevi [2018] FamCAFC 173 at [30]

4. Given Mr Gabanon no longer has in his possession the truck and the Motor Vehicle Q, I do not consider that it would be just and equitable to include these items at the value attributed by Ms Fyfe, in these proceedings. 

5. In my view, it is more likely than not that Mr Gabanon has utilised the proceeds of their sale in funding his living expenses.  Certainly, there is no evidence to indicate that the proceeds of sale of any of the bottles or motor vehicles can be traced to some other form of property.  I propose to approach this issue by means of the mechanism provided by section 90SF(3) and the approach outlined by the Full Court in Trevi.

6. I propose to take the same approach in respect of the bottle collection and the Motor Vehicle R.  In my view, it would be potentially unfair to nominate a value for these items, which is based on some form of guess.  However, it would also be unfair to Ms Fyfe, if Mr Gabanon was to benefit from his obstructive attitude in the proceedings.  In any event, at the end of the day, the major item of the parties’ capital is locked in the form of the E Street, Suburb F property.

7. At separation, Ms Fyfe took with her a Motor Vehicle N.  As previously indicated, this vehicle was involved in a motor vehicle accident on 5 November 2018, when Ms Fyfe was driving it.  She concedes that the accident was her fault and this has led to her incurring an insurance debt of just under $45,000.00.  She has subsequently sold the Motor Vehicle N vehicle for $400.00 as a wreck.  It would not be fair and equitable to include this vehicle in the parties’ pool of assets.

8. At separation, Ms Fyfe took with her only a few personal items.  Mr Gabanon has retained the vast majority of the contents of the E Street, Suburb F property.  This includes some new white goods, which had been purchased in anticipation of the kitchen at the property being renovated.  Once again, none of these items of property have been formally valued and it is the import of Mr Gabanon’s evidence that the house and its contents have been trashed whilst he was incarcerated.

9. Ms Fyfe is concerned that she may be potentially liable for debts incurred by Mr Gabanon, arising from his operation of the business, following the parties’ separation.  The main supplier of the business is H Pty Ltd.  I will make the indemnity order sought by the mother in this regard.

10. Accordingly, at the end of the first step, doing the best I can with imprecise evidence and shifting values, I have come to the conclusion that the only asset available for actual distribution is the E Street, Suburb F property.  I will take into account the other assets, the value of which I regard as largely inchoate and which Mr Gabanon has either retained or disposed of, by means of an allocation of percentage derived pursuant to section 90SF(3). 

11. Given the imprecise value of E Street, Suburb F, it will be necessary, to accord fairness, particularly to Ms Fyfe, for the property to be sold to crystallise its value.  I appreciate Mr Gabanon will consider this grossly unfair to him.  However, he is not able to provide any realistic mechanism by which he could purchase Ms Fyfe’s equitable interest in the property and, given the extent of his other liabilities, particularly in respect of legal fees and the charge currently encumbering the property, it seems improbable that he could service any mortgage at present.

12. Ms Fyfe has no superannuation.  It is agreed Mr Gabanon has superannuation to a value $114,744.00.  Ms Fyfe seeks the division of the superannuation, in percentage terms which favours her.  Mr Gabanon proposes that he retain it.

    Step Two – Assessment of Contributions

13. The relationship between the parties was one of approximately seven and half years in duration.  It produced two children.  Ms Fyfe is likely to have a modest sum of cash, at the start of the relationship, which she contributed to the management of the parties’ joint financial affairs.

14. Mr Gabanon came into the property with the most significant asset relevant to these proceedings – the E Street, Suburb F property.  He had owned the property for the preceding ten years prior to the commencement of the parties’ relationship.  It was subject to a mortgage.  The contribution of the equity contained in this property is a factor which favours Mr Gabanon.

15. Ms Fyfe has never been part of the formal workforce.  As a consequence of this she has not been able to acquire superannuation.  Mr Gabanon is older than she is by about a decade and has a more conventional working history.  It does not seem to be the case that he acquired a significant amount of superannuation, during the relationship, as for much of it, he was self-employed.

16. During the parties’ relationship, Mr Gabanon worked hard in the business, with a great deal of assistance from Ms Fyfe.  Due to her financial stewardship, the mortgage was discharged during this period.  She was also the family’s primary homemaker and did the majority of parenting required for X and Y.  From time to time, she discharged her responsibilities in arduous circumstances.

17. Given the significance of the initial contribution of the E Street, Suburb F property, which must be regarded as significant, given in practical terms, it is only asset available for distribution, I propose a modest allowance in favour of Mr Gabanon, at this stage of the process.  Otherwise, I regard the parties’ various contributions as being essentially equal in nature.  On this basis, I assess contributions 45/55% in favour of Mr Gabanon. 

18. In reaching this conclusion I have also had regard to Ms Fyfe’s post separation contributions.  She has had to parent X and Y in extremely difficult circumstances, without any significant assistance from Mr Gabanon.  She has had to re-house herself in what can only be regarded as emotionally fraught and challenging circumstances. 

    Step 3 – The prospective needs of the parties and section 90SF

19. Ms Fyfe enjoys good health.  She has made a remarkable recovery following the end of the parties’ relationship.  She is aged thirty five years.  Accordingly, it is probable that she has many years of active and productive life before her.

20. At present, she has no formal skills and little, if any, experience in the paid workforce.  Her principle source of financial support is social security.  She does not receive child support from Mr Gabanon.  Given his circumstances and antipathy for her, it may well be the case that Ms Fyfe does not regularly receive anything other than token amounts of child support for the years to come.

21. The parties’ children have recently commenced primary school.  As such, they will be financially dependent for many years to come.  Inevitably that burden will fall on Ms Fyfe.  This is the principal factor which favours her to a very large degree.

22. Mr Gabanon is aged forty three.  His physical health is reasonably good.  He is also a good worker with trades skills and relating to rural work generally.  That is not to say he will find it easy to find employment.  In my assessment, he will struggle to find a position, which will suit him, given his current emotional circumstances.

23. In addition, he is on parole and his general living situation is somewhat parlous.  He is not currently emotionally resolved.  These are not factors which are conducive to him getting work.  However, I accept he want a job and, in time, it is likely someone will take him on.  This will provide him with a modest level of income.

24. At present, it is difficult to see Mr Gabanon returning to self-employed work.  He is not likely to have secure and stable premises for some time and much of the plant and equipment, though not all, associated with the business have been disbursed.  He does have the "L" equipment.  He may also have a good reputation as a tradesman.  In the longer term, his trade is likely to provide him with the best opportunity for financial security.  Accordingly, he is not totally bereft of opportunities.

25. As I have previously indicated, it is to Ms Fyfe’s great credit that she has been able to take up tertiary studies, whilst also having to provide full time care for X and Y.  If she does successfully complete her course, this will provide her and the children with greatest possibility of long term financial security.

26. However, Ms Fyfe faces a long path in achieving this goal and whilst she attempts it, she will face arduous financial circumstances, as she will be living in rented accommodation, whilst having to support X and Y.  I accept that the next three to four years are likely to be extremely financially challenging for her.

27. In my assessment, the combination of these factors greatly favours Ms Fyfe.  Although I accept Mr Gabanon also faces an uncertain financial future, the fact that Ms Fyfe has responsibility for parenting X and Y must dictate that there be a substantial further apportionment of assets in her favour.

28. In any event, given the extent of each parties’ indebtedness for legal fees and the modest value captured in the E Street, Suburb F property, the reality is that, at best, the sale of the property will also result in each of them being either debt free or close to it.  In this regard, I also note Ms Fyfe’s insurance liability and the fact that she will be incurring HECS debts.

29. On this basis, I would make a further allowance of 25% in Ms Fyfe’s favour attributable to the factors contained in section 90SF(3) (a) (b) (c) & (q) of the Act.  I would also make a further allowance of 5% in Ms Fyfe’s favour as a consequence of Mr Gabanon retaining significant items of property and being generally uncooperative in respective of the court’s process generally and valuation issues in particular.

30. I have also reached the conclusion that it would be just and equitable for the available superannuation to be equalised between the parties, so that each of them is equally prepared for retirement.  I appreciate that the sums involved will provide neither of them with any degree of security in this regard.

    Step 4 – what is a just and equitable outcome?

31. This is a desperately sad case.  As I have already observed, there will be little if anything left, after the legal costs have been paid, to be divided between the parties, each of whom faces many financial challenges in the short to longer term.

32. I have determined that the parties’ property, essentially the E Street, Suburb F property, should be divided 75/25% in Ms Fyfe’s favour.  If the property achieves $270,000.00, this will mean she is likely to clear a sum somewhere in the vicinity of $185,000.00.  After the payment of her legal fees and insurance bill, she may have a small nest egg to support her and the children, whilst she continues her studies.

33. It will leave Mr Gabanon with some cars; possibly his bottles; the ‘L’ equipment; and the contents of the house.  He will have to discharge the charge lodged against the property which secures his legal costs.  At best, he may have $20 to $30,000.00 to rehouse himself.

34. This is a bleak outcome for each of them, but I am satisfied that it is a just and equitable one in the difficult circumstances which confronted the court.

35. The one remaining issue concerns Ms Fyfe’s application for costs in respect of the aborted trial previously fixed for 13 May 2019.  The trial was adjourned on Mr Gabanon’s application as he was not ready to proceed.  This was not attributable to any default referable to Ms Fyfe.

36. Ms Tinning seeks costs calculated by reference to the court’s scale together with her preparation costs amounting to $8,000.00.  In my view, the preparation costs were not wasted.  In these circumstances, I will direct Mr Gabanon pay Ms Fyfe’s costs fixed in the sum of $3,595.00.

37. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding four hundred and seventy eight (478) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     30 August 2019