GABERT & GABERT
[2020] FCCA 27
•7 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GABERT & GABERT | [2020] FCCA 27 |
| Catchwords: FAMILY LAW – Property – wife seeking lion’s share of property pool, equalisation of superannuation and ongoing spousal maintenance – husband not able to pay spousal maintenance – Court deciding 70/30 division just and equitable. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA, 75(2) |
| Cases cited: Best & Best (1993) FLC 92-418 |
| Applicant: | MR GABERT |
| Respondent: | MS GABERT |
| File Number: | MLC 1520 of 2019 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 25-26 November 2019 |
| Date of Last Submission: | 26 November 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 7 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bryan |
| Solicitors for the Applicant: | Taussig Cherie Fildes |
| Counsel for the Respondent: | Mr Stanley |
| Solicitors for the Respondent: | Fair Family Law |
| Counsel for the Independent Children’s Lawyer: | Mr Myles |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
PARENTING
All previous parenting orders be discharged.
The Mother and the Father have equal shared parental responsibility for the children X born in 2009 and Y born in 2012 (“the children”).
The children live with the Mother.
The children spend time and communicate with the Father as follows:
(a)During school terms:
(i)In week one, from the conclusion of school Thursday (or 3:00pm if not a school day) to the commencement of school Monday (or Tuesday if Monday is a public holiday); and
(ii)In week two, from the conclusion of school Thursday (or 3:00pm if not a school day) to the commencement of school Friday (or 5:00pm if Friday is a public holiday).
(b)For one half of all school term holidays and long summer school holidays as agreed between the parties, and in default of agreement for the first half of such school holiday period in even numbered years and the second half in odd numbered years;
(c)From 4:00pm on Easter Thursday until 2:00pm on Easter Sunday in even numbered years;
(d)From 2:00pm on Easter Saturday until 5:00pm on Easter Monday in odd numbered years;
(e)From 4.00pm on Christmas Eve until 2.00pm Christmas Day in even numbered years;
(f)From 2.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years;
(g)From 4.00pm on New Year’s Eve until 2.00pm New Year’s Day in even numbered years;
(h)From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in odd numbered years;
(i)On the weekend of Father’s Day, from 10.00am on Saturday until 5.00pm on Father’s Day;
(j)On the children’s birthday as agreed between the parties, and in default of agreement, from the conclusion of school until 7:30pm, or 10:00am to 2:00pm if not a school day; and
(k)As may otherwise be agreed between the parties.
Any period the child is to spend with the Father be suspended as follows:
(a)For one half of all school term holidays and long summer school holidays as agreed between the parties, and in default of agreement for the second half of such school holiday period in even numbered years and the first half in odd numbered years;
(b)From 4:00pm on Easter Thursday until 2:00pm on Easter Sunday in odd numbered years;
(c)From 2:00pm on Easter Saturday until 5:00pm on Easter Monday in even numbered years;
(d)From 4.00pm on Christmas Eve until 2.00pm Christmas Day in odd numbered years;
(e)From 2.00pm on Christmas Day until 4.00pm on Boxing Day in even numbered years;
(f)From 2.00pm on New Year’s Eve until 2.00pm New Year’s Day in odd numbered years;
(g)From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in even numbered years;
(h)On the weekend of Mother’s Day, from 10.00am on Saturday until 5.00pm on Mother’s Day; and
(i)As may otherwise be agreed between the parties.
Changeovers occur at the children’s school where possible, and otherwise the mother deliver the children to the father’s residence at the commencement of time and the father deliver the children to the mother’s residence at the conclusion of time, or such other location as may be agreed between the parties in writing from time to time.
Each of the Mother and Father be at liberty to communicate with the child at reasonable times and by reasonable means (including by FaceTime, etc.) when the children are in the other party’s care, including, but not limited to, between 7.00pm and 7.30pm each Monday and Wednesday night.
The parties each be, and is hereby, authorised to obtain, directly from any school attended by the children, details of the children’s progress at school; copies of all school reports; photographs; notices of parent-teacher interviews; and notices of other functions which parents normally attend.
Both parties be permitted to attend parent/teacher interviews and other school activities/functions normally attended by the parents.
Neither party enrol the children, in any extra-curricular or sporting activity which is to occur during the time the child spends with the other parent, save with the consent of such parent.
Each of the parties keep the other informed of any illness or injury occurring to the children, whilst in their care which requires medical attention, such notice to be provided as soon as practicable and not more than 24 hours following the child attending upon a medical practitioner.
Each of the parties shall authorise any treating medical practitioners who are caring for the children to speak to the other about the children’s treatment.
Each of the parties keep the other informed of any change in their residential address and contact mobile phone number within 48 hours of such change.
The parties attend Lifeworks at Suburb B for mediation or Ms C or another agreed therapist for assistance with the parental communication and support for the children.
Both parties complete a Post Separation Parenting Course through Lifeworks or another service provider, and provide evidence of completion to the other party within 7 days of completion.
Both parties be permitted to travel interstate and overseas with the children upon the provision of 60 days written notice to the other parent, together with an itinerary including accommodation and flight details to be provided 14 days prior to the proposed travel date.
The parties be restrained by injunction from changing the children’s school without the written consent of the other party, or order of the Court.
The parties, by themselves, their servants and/or agents be and are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party, their partner or their family; and
(b)Discussing these proceedings,
to or in the presence or hearing of the children and from permitting any other person to do so.
PROPERTY
The parties are to confer and forward agreed Minutes of Orders effecting these Reasons for Judgment within 14 days, or in the absence of agreement, each party’s proposed minutes.
The matter will then be determined on the papers unless otherwise ordered.
IT IS NOTED that publication of this judgment under the pseudonym Gabert & Gabert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
MLC 1520 of 2019
| MR GABERT |
Applicant
And
| MS GABERT |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting and property dispute. Insofar as it is concerned with parenting issues, we are concerned with the best interests of two children, X, born in 2009 and Y, born in 2013. X is autistic but unfortunately his father has difficulty in accepting this. The mother seeks an order for sole parental responsibility, that the children live with her, and spend two nights per fortnight with the husband during school terms, and half school holidays subject to the husband being in substantial attendance. The respondent husband seeks orders that the parents have equal shared parental responsibility, and that the children live with him on a 9/5 basis.
The Independent Children’s Lawyer’s position is that there should be equal shared parental responsibility, that the children live with the mother and spend time with the father in a 9/5 arrangement as recommended by Ms D's Family Report. For the reasons that follow, I propose to make the orders sought by the Independent Children’s Lawyer.
So far as the property dispute is concerned, the wife proposes a relatively detailed set of orders which would have the effect of giving her the lion’s share of the property pool with an equalisation of superannuation, together with spousal maintenance for some time to come. The husband says there should be a division of the pool 65 to 35 in favour of the wife. I think that a 70/30 division of all assets save the E Project is a just and equitable outcome.
Agreed or Uncontroversial Relevant Matters
The applicant husband was born in 1972, and the wife was born in 1975. Cohabitation appears to have started in 2007 followed by marriage in 2010. As earlier indicated X was born in 2009, and Y in 2013. The parties separated on 28 November 2018.
Both the children are enrolled at AA School, although X has had an aide from time to time.
The wife entered the F Clinic from 2018 until 2018 as a result of alcohol related dependency. The children were returned to her on 30 December 2018, and have lived in her primary care since.
In addition to the diagnosis of autism, X also suffers from an unusual anaphylaxis, the cause of which is not, as I understand it, known. He can have anaphylactic reactions for no discernible reason at any given moment. The wife is EpiPen trained and it appears the husband has more recently become so.
Both parties had properties at the commencement of the relationship, and it is unfortunate that their financial affairs have not, it would seem, progressed terribly well. I note that although he says it was in self-defence the father concedes slapping the mother in 2017.
The Parties’ Affidavits
As is unfortunately not infrequently the case, much of the parties’ affidavit material is repetitive. Much of it is, in fact, paraphrased in the agreed matters above. It should be noted that the father’s affidavit material has laid heavy emphasis upon the mother’s asserted problems with alcohol. The mother, by way of contrast, has asserted that her difficulties with alcohol arose out of medication she had been prescribed for anxiety which had a dramatic effect. I note that the parties appear to have invested about $100,000 in E Project in 2009 which will not mature for some years to come, and the outcome of which is uncertain although the wife puts it at $650,000.
I note a series of text messages, were tendered as exhibit A1, on 5 March 2019 passing between the parties. I note the generally accusatory, and somewhat heightened tone of the mother’s communications in response to what, in the main, appear to be reasonable requests on the part of the husband.
I note that the wife has deposed that she has ceased all alcohol consumption since her discharge from the F Clinic, and that she obtained employment as a volunteer at Employer BB in 2019.
I further note, in the husband’s affidavit material, that he has a good relationship with the most of the mother’s family, and lives near the children’s school. The wife was distributed $50,000 by Court Order on 9 April 2019, and the husband has deposed to loans from his father in respect of legal fees which he has to repay. It should be noted that the affidavit material of the mother’s family, who have regrettably become heavily engaged in this matter is, with the exception of one sister, Ms G, entirely condemnatory of the wife. I further note an affidavit from Ms H filed 21 November 2019 which suggests that the wife is likely to obtain long-term employment with Employer BB. I further note the wife’s criticisms of Ms D's Family Report in her most recent affidavit.
The Family Report of Ms D
Ms D's Family Report is dated 6 November 2019, and followed interviews in October. Ms D set out the current arrangements whereby the children spend from Friday to Monday in one week, and Thursday for three hours in the other week. She noted orders for an up to date report from X’s paediatrician, Dr J, and which had not occurred, and that the father complete EpiPen training. Additionally, there were orders for school holiday time during which the father was to be in substantial attendance, a restraint on the mother’s consumption of alcohol and non-denigration orders.
At paragraph 4, Ms D noted that the mother lives with her sister, Ms G, in a gated community in Suburb K but that the mother was estranged from her sister, Ms CC, who lives at the same gated community, and from her parents, and another sister, Ms DD.
The report noted that X and Y attend AA School and Deaf Facility, and that X meets the criteria for Autism Spectrum Disorder and is funded for a teacher’s aide. The report noted X’s diagnosis of idiopathic anaphylaxis at paragraphs 5 and 6. The report noted that the mother does not work, that the father lives close to and opposite the children’s school, and both parents are single. At paragraph 11, the report noted the good relationship between the father and the mother’s parents, and her sisters, Ms CC and Ms DD who provided support by taking the children to school on mornings when they leave for school from the father’s home because he leaves early for work.
The report noted the duration of the relationship, and the diagnosis of X by Dr J as autistic at about two and a-half years. It noted that X had been bullied at kinder school, and the resultant transfer to AA School.
The report noted the mother’s admission to the F Clinic during which time the children were cared for by the father with support from the mother’s family. The report noted the history of the dispute in the Court, and the proposals of the parties.
The report noted the mutual allegations made between the parents which basically centred on the father’s assertions as to the mother’s drinking and associated problems, and the mother’s allegations of family violence against the father.
At paragraph 37, the report noted the mother’s diagnosis post-traumatic stress disorder and anxiety. At paragraph 40, the report noted that the Department of Health and Human Services had no concerns as to the children’s safety with either parent. At paragraph 43 the report noted, correctly in my view:
The adversarial nature of these proceedings has not assisted the parties to resolve their parenting dispute. Both parties filed amended proposals close to the family report appointment which heightened tensions between them. The children are very aware of tensions between their parents, which is confusing for them.
I do not propose to paraphrase the interview with the mother because it is essentially consistent with her overarching position in her affidavit, and in evidence. I note her complaints about her own family aligning themselves with the father. At paragraphs 61 to 63 the report noted:
61. Ms Gabert proposed a reduction to Mr Gabert’s time with the children to conclude on Sunday evening on alternate weekends. She reasoned that he relies on her mother to take them to school on Monday mornings. She stated she is available to take them to school and she thinks the children need continuity of care.
62. In response to a question, she acknowledged that for a period she placed the children in before and after school care after she commenced voluntary work. She wished to see if the children could adapt to before and after school care in case she has to work before or after school in the future.
63. It was pointed out to her that it seems inconsistent that she wants to be able to utilise alternative care for the children but she is opposed to Mr Gabert utilising alternative care from the children’s maternal grandmother or maternal aunt with whom they have established relationships.
As with the mother I do not propose to paraphrase the father’s interview with Ms D in any detail. Once again, what he told Ms D is consistent with his affidavit and oral evidence. I note at paragraph 76:
He had a concern that Ms Gabert was portraying X as a child who continues to have high level needs. He said, “X is high-functioning”. He described X as a child who is very gifted at sports and displays excellent balance.
I note that at paragraph 83, the father acknowledged he was in a fight at the age of 21 and received a good behaviour bond, and admitted punching a hole in the wall at home out of frustration, and slapping the mother to calm her down on one occasion because she was out of control. The father denied being controlling or violent and said he was on the receiving end of the violence from the mother.
I note at paragraph 86, the report asserts:
“I think Mr Gabert and I have the potential to co-parent effectively in the future once the dust settles but it won’t happen until my family takes a step back.” She does not want her family being involved with her children because she is estranged from them. This is concerning given that Mr Gabert relies on her family for parenting support, and they have been involved with the children since they were little.
In interview X presented as a friendly and very likeable 10 year old boy. He did a family drawing that included his father, mother, Y, Aunt Ms G, himself and his cousins. At paragraph 91, he described his dad as funny and kind. At paragraphs 92 to 95, the report noted:
92. He appeared very protective of his Mum, and aligned with her. He is very aware of tensions between his parents and between his mum and other members of his extended family. He said, “my Nanna Ms M (paternal grandmother) and my Pa (paternal grandfather) are jerks to my mum” and “they are mean to her because my Dad tells them lies and tricked them into believing him”. He said, “my Dad took mum’s family away from her.”
93. It seemed apparent that X has been exposed to adult issues and this has been very confusing for him. At one point he said, “I don’t help Dad because he is mean, and he can do his own stuff with Mum, I try to do everything for her.” He appeared to be angry with Dad and said, “I feel sad that Dad cheated on Mum.” He wishes his Dad would be nicer to his Mum. He shared that he is closer to his Mum, and Y is closer to his dad.
94. X reported that before his parents separated, they were fighting and that his dad was always the one yelling at his Mum.
95. Later, he acknowledged that it is very confusing for him because he wants to love both parents and wishes everyone got along. His views were not sought as he appeared very confused.
Y impressed Ms D as an emotionally fragile boy. At paragraph 99, the report noted:
He stated that the thing that makes him angry is the fighting between his Mum and Dad. He recalled that before they separated, they were both yelling at each other. He would tell them to stop but they would not listen. He said, “I wish I could live with both parents.”
Ms D noted that the observation of the children with the parents showed that they interacted easily with both, and enjoyed their time with them. The observation was plainly entirely satisfactory with both parents.
At paragraph 103, the report noted that the principal of the school, Ms N, referred to X as a child with high-functioning autism. Ms N commented that the mother was at times highly anxious, and that she had spoken to the mother about the need to calm her anxiety.
At paragraphs 104-105, the report noted:
104. She commented that both parents are good parents, and clearly love the children. Her concern is about the impact on the children of the acrimony between their parents. She has direct dealings with both parents and commented that the mother expresses a lot of criticism of the father, which she is unable to substantiate. For example, the mother has complained about the lack of routines for the children while in their father’s care. The mother was also very upset when the father invited the maternal grandparents to a dinner to celebrate X’s birthday. The children pick up on their mother’s feelings towards their father and other members of their extended family and are either distressed by it or feel they have to protect her feelings. She is particularly concerned for Y, who sometimes is teary because he misses his father and is very sensitive to criticisms of his father, and the tensions between his parents.
105. When questioned about the children’s school absences, she established from her school staff that school absences was not really an issue. However, there had been about 19 late arrivals and 26 early departures. She was unable to verify which parent the children were with on the days of their late arrivals and early departures but the school records were subpoenaed and were with the Court.
Under the section Evaluation, at paragraph 110, Ms D noted inter alia that the children offered contrary information as to who was the aggressor prior to separation. Ms D noted at paragraphs 112-114:
112. It seemed clear from the writer’s interviews with X and Y that the children love both parents. It also seemed apparent that they are coping with the current arrangements differently. It appears that both children are being impacted by the tensions between their parents and other significant adults in their life. It is concerning that X appears to have direct knowledge about tensions between his mother and members of his extended family and has coped by aligning himself with his mother. Y on the other hand, appears distressed by the tensions. He loves his father and spoke directly about how much he misses him. It is important that the parents shield him from tensions between them and permit him to love each of them spontaneously without having to protect their feelings.
113. The mother may be assisted by obtaining individual therapy to deal with challenges and losses she is grappling with including the loss of family relationships and with alcohol relapse prevention.
114. Both parents clearly love their children and try to provide them with the best that each can offer. The writer believes that the children will benefit from having more time with their father. The children love him and enjoy time spent with him. There was no indication from the father’s information or from the children’s information that he is incapable of meeting their needs. This writer has been assisted by the information from the children’s school principal in coming to a view that the children will benefit from increasing the time they spend with their father during school terms. This writer sees no reason why the father should not be able to continue utilising the support of the maternal grandmother for back-up care when he is unavailable due to work. Similarly, the mother should be able to utilise before and after school care when she requires back-up assistance.
At paragraph 116, Ms D went on to note that the difficulties in communication between the parents, and the parties and children might benefit from engaging with a counsellor for assistance to address this. At paragraph 117, she also recommended orders be made to minimise the need for the parents to negotiate because of their communication difficulties, and that birthdays and parent’s birthdays should be celebrated as close as possible to these events by the parent who does not have the children on the day of the actual birthday. She went on to recommend a 9/5 arrangement as earlier indicated.
The Submissions and Evidence before the Court
What follows is taken from my notes. Self-evidently it is not a transcript but records matters I found significant.
The Opening of the Evidence of the Father
Counsel opened by outlining the relationship, the ages of the children and X’s autism. Counsel noted that the husband owned a property which was sold for $500,000 and the mother had a property at Town EE that sold for $100,000. The matrimonial home had been sold generating $211,788 of which the wife had received $50,000. The husband’s position is that $30,000 of this should be characterised as spousal maintenance. The wife’s legal fees should be excluded from the pool, and the husband had borrowed $50,000 for his legal expenses. They have invested in the E Project and the proceeds should be divided equally. The husband sought an equalisation of superannuation, and 65 per cent of the pool to be distributed to the wife. He disputed the wife’s personal loan and it was asserted that the wife had not discovered her credit card statements. Spousal maintenance was a live issue. $400 per week had been ordered earlier in 2019 but the husband was no longer able to continue these payments. He is a contractor, and his work with Employer FF has ceased. His income was now $97,000 per year. The wife does not work and volunteers two days a week. Counsel noted the present arrangement of time as 3/11, and that the husband seeks 5/9. The wife is still erratic, and her family support the father. The wife has obtained an Intervention Order in May 2019. The husband asserts the mother was a great mother until she started to drink. He admitted punching a hole in a wall but denied violence generally. The wife worked as an office worker at Employer GG until late last year. Counsel pointed to the recommendations in the Family Report.
Counsel said the father accepts that X has autism. The school, however, describes X as functional. There has only been one visit to Dr J since 2016. There was no report from Dr J because the mother did not agree.
The husband was called, and adopted his Trial Affidavit and Financial Statements as true and correct. He is employed as a tradesman. He works from 7:00am to 3:00pm ninety per cent of the time, and a couple of Saturdays. He is a contractor. There will be a shutdown between 20 December 2019 and early January 2020.
The father said he had borrowed just over $50,000 from his father which had been spent on legal expenses and rent. About $45,000 to $46,000 was spent on legal fees. He was aware of the mother’s personal loan but did not know why. She had said they got a personal loan. The Town O caravan is worth $14,000. It is a leased onsite van which costs about $4,220 per annum then $130 for the meter every three months.
Under cross-examination by counsel for the mother, the father clarified his Financial Statement, at item 43, which valued the caravan at $14,000. The management had told him they were not sure they would offer a lease. If he sells he will get $1,500.
The relationship started in 2017. He was working with Employer HH doing shiftwork earning about $140,000 per year. He had made $168,000 in the financial year up to April 2019. He was working 72 hours per week from 4:00am until 4:00pm. His base salary was $83,000.
The mother used to do school pick-ups and drop-offs but he did school lunches. He had told Ms D he works from 7:00am until 3:30 pm.
He said the wife had worked but gave up to look after X. She then worked for Employer GG for about 16 hours per week. He used to attend JJ School where X was sent but the mother had made the arrangements for the children’s schools. He used to play for Suburb A Sports Club but has never been a committee member. His father was vice-president.
The father said he would get to four games per year but was not there every weekend.
When it was put to him that his view was that X was autistic but highly functioning, the father responded affirmatively. X is not anxious if his routine is disrupted. X has come a long way. X saw Dr J when he was 13 months old. Then he went to JJ School. He was not sure if it was a 12 month wait but the mother would know. He started within four weeks. It was recommended they have 25 to 40 hours of intervention at home. The mother resigned from Employer KK and did therapy at home. They employed a private speech therapist and occupational therapist. They were tough times. He did most of the night routine. He worked from 7:00am until 4.30pm for the first years of X’s life. He was never a good sleeper. He took the pressure off the mother and did a lot of the night routines. This evidence was given with conviction and I accept it.
The father said he had been to Dr J. He went a lot more than once. He did not know whether X had been granted an aide at level 3 funding. This was mainly done by the mother. When it was put to him that X’s reports suggested he was severely below average and some were moderately below he accepted this. Back then, in 2016, X was not high functioning. Exhibit R1 was tendered as being X’s speech report. He conceded that level 3 was the worst level of autism but he did not know how X would be described now.
Exhibit R2 was tendered being documents relating to X’s funding. Things have changed with X immensely. He is now high functioning. He is at school with friends. He plays sports and makes friends and rides a bike. He had read the school reports in exhibit R3. X’s report for 2019 was tendered. X does very well socially for his condition. He has had no contact from the school about difficulties with X and no one has mentioned it to him. He did not know Ms LL, the wellbeing co-ordinator, and it has not been raised with him at the parent support group meetings. Exhibit R4 was tendered being the wellbeing reports from May 2019.
The father said X was his son. The best way is just to be there for him and help to guide him. Routine is good for every child. He has never seen X lose it. X does not need to know what is next when he is with him. He wants the children to live with him in a 9/5 arrangement. He has been the primary carer and looked after the children for six weeks on his own although I think he appeared to concede that the mother had been the primary carer for most of the children’s lives. He works from 7:00am until 3:30 pm five days per week. He can take the children to school if he has to do it. He has done EpiPen training and also first-aid. His mother and father have not had EpiPen training. Ms CC is not EpiPen trained. He bought two EpiPens. One is at the school.
The father conceded the mother was absolutely fantastic until she started to abuse alcohol. X makes facial expressions and he knows if something is not right with X. X had been taken to hospital from school by ambulance. There was a detailed plan and the mother was involved. Exhibit R5 was an email to the school. He had read that the mother had been clean of alcohol since 1 December 2018. He conceded that he was intensely critical of the mother for drinking. He could not comment if the mother described parenting X as difficult and isolating. He conceded that the mother was diagnosed with chronic fatigue syndrome and anxiety in 2017. X sleeps through and has done for the last three to four years. He agrees that the mother’s anxiety drugs did not agree with her. He also conceded that he does not always control his temper. He has damaged property by punching one hole in a wall. He knocked a tallboy over. He kicked the toilet in frustration while the mother was sitting on it. He slapped her on the face with an open palm. He was not out of control. He did it deliberately. He broke her phone by throwing it to the ground. He did not hip and shoulder her to the ground. There were verbal fights also. He denied calling the mother a “derogatory name relating to her employment” and said he had never used this phrase in his life. He had received a good behaviour bond when he was 21. When it was put that this was a suspended sentence he said he thought he was bound over for a year. It was a long time ago. The relevant LEAP records were tendered as exhibit R6.
Both he and the mother owned property at the start of the relationship but neither had kept their documentation. He changed work about two to three years ago but has never been out of work. He hopes to get work on the metro programmes in 2020. His income for the 2018 to 2019 year was $171,000. He had asked the Child Support Agency to give him credit for the conveyancing fees. Child Support rang him and asked what he had paid for her. He said he did not understand the questions being put to him. He has never done work for cash. When it was put to him that he paid a deposit of $500 in cash in August 2019 the father said his father and friends were giving him money because he cannot pay rent. He is 100 per cent not getting cash jobs. They still own the Town O property. Friends did a fundraiser and paid for the next 12 months. He conceded spending $190 at the Q Hotel and $274 at R Store. He had not paid the mortgage since November 2018. The mother was paying the mortgage and controlled that. He agreed that the mother was on Centrelink and Carer’s Allowance. When asked what his attitude to the mother doing two years full-time study would be he said the mother could do whatever she wanted to. When asked how he would support he replied that they were not together. His position was that it was not for him to support her.
Town O was bought with a personal loan. A tax cheque paid for the pool house. He did not do the financials. Friends have lent him money. His father has paid his rent and bond of $5000. He has been able to pay child support but his income has now halved. He takes cash out at the supermarket to buy a Tattslotto ticket every week. He needs some sort of life. He does not see his kids.
Under cross-examination by the Independent Children’s Lawyer, the father said he had spent time with the children in the term holidays. Normally it is just the second week. He said X does not get angry or upset. He has not seen this for a long time. There is always an adult with him. He worked two and a half days. Then he worked three days because he did not have the money to pay rent. His relatives helped out. They get up and have breakfast and then there are activities. X has been to play centres. He comes back with a friend. If X was upset he would sit down and talk with him. X and Y fight. He sits them down and talks to them. Obviously X is still delayed but not like back then. X was quite difficult when younger. There are lots of friends at Town O. Bedtime involves no dramas and X is not anxious or stressed in his care. He has had the maternal grandmother, Ms MM, help out with school drop off. His father is 74. He lives across the road from the school. He may get flexible hours of work. He has completed an anger management course. When asked if he would be prepared to take a course now the father said he did not think he had an anger issue at all. There is an Intervention Order so he cannot communicate with the mother. He said he could not have been nicer to her. He is happy to communicate with her. That is all he wants. He was prepared to engage in therapy. They are saying she is not drinking.
X seems to have friends at school. He has a crush on a girl called NN and has other friends too. Y has a lot of friends at school. He has looked at the school reports. He speaks to X’s teacher when he picks him up. He also has the parent support group. He complained that he does not see the boys for eight days. It is a long time. He said that they need him and he needs them. The boys seem good in the mother’s care. He is happy to go with the Family Report.
In re-examination the father confirmed that he attends parent support groups every three months. When asked what he did while the mother was drinking in 2017, the father said he did most of the cooking and 90 per cent of the readers. The mother was drinking all the time. X had only been taken to hospital once from school.
When asked why the mortgage was in default, the father said he was just sinking with the mortgage. The mother was in rehabilitation and she did the financials. He will have to pay a tax bill. He should have put in 20 to 30 per cent of his income aside for tax. He has no tax liability for 2018 to 2019. He has not put money aside this year.
The Evidence of Mr L, the Paternal Grandfather
Mr L confirmed his affidavit as true and correct. He has loaned just over $50,000 to his son. He paid $46,000 directly to solicitors and the balance to his son.
Under cross-examination by counsel for the mother, Mr L confirmed that he was involved in the sports club. He has been on the committee for 18 years and is a life member. He supports the team and spends every Saturday there. He is also there for two to three hours on Tuesday, Thursday and Friday. Mr Gabert is also a life member. He was a good average sportsman. The father does not spend nearly as much time at the club as he does. After he ceased playing, the father is only there occasionally, a couple of times a month. There is no loan document and his son knows what he owes. He trusts him and there is no time limit. He is not trained in the use of the EpiPen. He is aware of X’s autism. He only has X for short times. The boys amuse themselves and are very easy to look after. It could be one to three hours, whenever he can help out. The last time he had the boys on his own was four weeks ago for two hours.
The Opening and Evidence of the Mother
Counsel’s opening referred to the $50,000 paid to the wife. He also referred to the Bank of Melbourne loan which was in existence at separation.
The wife was called and adopted her affidavits as true and correct. She is a volunteer at Employer BB.
Under cross-examination by counsel for the husband, the mother said that routine was important for X. The father does not give him consistency and underplays his autism. She would not say X is not functional. She is concerned he has social difficulties at school. Both parents had attended the PSG meetings this year. She had been to all of them. When it was put to her that the meeting in September 2019 at the school suggested X was having good friendships the mother said that this was potentially so. They had separate meetings. It is possible he was told that X plays with children in the yard. It changes day to day. There have been great improvements but it depends where he starts from.
She had conversations with X’s teacher about his social problems in between. X has matured socially this year but is not age appropriate. One sentence does not sum up X’s social problems. There has been bullying throughout the year and some inappropriate behaviour by X. The school says X is grade one standard and this is not age appropriate. Exhibit A2 being notes of the meeting in March 2018 was tendered. She does not agree with comments in exhibit A2. She communicates through the teacher and the aide.
X and Y were late to school on some occasions in 2019. They were tired after spending time with the father. The children are fatigued and it is a balancing act. The time with the father is not in their routine. The children would return fatigued after weekends. The boys tell her what time they go to bed. They are only late to school when they are fatigued. When challenged with an arrival at 9:11am in February, the mother said sometimes the routine goes out. She was challenged with other late arrivals and was largely unable to explain. One early departure was because Y was selected to audition for a commercial. The audition was at Suburb OO and she had to take X too. On 28 August 2019, Y had a virus and the principal said the school play was so important. The school has never said that they were not attending properly. The school might have had a conversation about the children’s late arrivals. She has not seen Dr J since February. She disputed school records as to late arrivals. It was not correct that the children were late to school. She had never withheld the children early from school. The school had said there were no problems with attendance.
The mother’s evidence about the children’s tardiness at school was notably evasive and she was extremely non-responsive in her answers on this topic.
X has level 3 funding. He requires substantial support. X has been funded $28,000 per annum. He has no speech therapy or occupational therapy through the school. He has an aide the majority of the time. The aide assists other students. X got funding from grades 1 to 2. There was none at S School. That was a private school. X did have occupational therapy and speech therapy at S School. His funding goes through to grade six. X found having an aide difficult and was upset in class in August. Exhibit A3, the attendance record, and A4, the student chronicle, were tendered.
The mother denied involving X in adult matters and did not tell X that the father cheated. She denied all the relevant matters in the Family Report. X relies on her emotionally. He is not protective of her. He feels safe and secure with her. The father deprived her of her family. He tricked them and conned them. He pulled the wool over their eyes. She has responded to their affidavits. She and the father cannot communicate because of the Intervention Order. He had asked for email contact but she declined. She needs to keep the boys and herself protected. They would have to look at the My Family Wizard app or some other application. She had not done this to date.
She wanted sole parental responsibility as she had always been the children’s primary carer. The father’s relationship with her family is distressing. The boys do not suffer because they do not communicate. She has always done it on her own. She would keep the father informed. The mother said the boys were affected by the dispute and she seeks to reduce the time they spend with him. There has been only a handful of allergic responses at school. X was hospitalised in 2018 by ambulance. She was more than half an hour from the school and called her mother to go to the school. She could not recall whether her mother had been called when X had an allergic response on 14 November 2017. She said it was important that she works close to the school. She has to be within 30 minutes of the school. The ambulance will always be called if X has a severe attack. Her own mother had taken the child to school.
Employer BB is in Suburb PP but it is not one hour from the school. She leaves Employer BB at 2:30pm. Exhibit A5 being a Google map was tendered and the mother said it takes 20 minutes for her to get to the school. She cannot work outside 9:30am to 2:30pm. This was not a nonsense. She denied that when she was living with the father that the father did the readers and forgot to sign off.
The father had attended Dr J when X was first diagnosed but not with Y. She did not recall him attending. X has not seen Dr J since March 2019 and she last saw him before that in March 2015. When it was put to her that she was exaggerating X’s condition, the wife denied this.
She is not trying to avoid work. She has tried to extend work by before and after care but this did not work. The boys have started in after-hours care in September 2019. It is not most Mondays and Fridays. She attended in the mornings and trialled it. She could not recall the exact dates in October. X was bullied in S School care. On some Fridays she could be as late as 6:00pm. She has tried to do a full day and then her sister, Ms G, has an emergency, not the father. X is easily upset by changes in routine. Her family should not assist the father with pickup and drop off. She told the children about before and after school care. X needs predictability. Multiple carers do not give him this. Exhibit A6 was before and after school care records and exhibit A7 was a text message sent on 16 September 2019. Ms QQ is the after-care supervisor. The father has asked for changes to accommodate his work roster but she declined because routine was important.
When questioned about late arrivals at school on 18 and 19 June 2019, the mother said this was fatigue from seeing the father. There had been an attendance at RR Hospital on 19 June 2019 because of ongoing stress. There was significant stress but this had not led to an absence from school. She had not contacted the father about this. Exhibit A8 was tendered being chaplaincy notes. X has seen the chaplain in February and made a remark about the father’s money. Exhibit A9 were texts. The mother denied involving the boys in adult issues. She had told the father he would have to come to Court to see the boys. They were both packing up the house for sale. He had come to see her sister in January but had not come to see her and the children even though they live in the same place. He would see the children anyway.
Once again I note that the mother’s denial of the obvious import of exhibit A9 was totally unbelievable. She was at all times unrelentingly critical of the father.
The mother was cross-examined about her sister, Ms DD, calling the police in Town SS in 2017. She conceded that she was found in another pub but was not drunk. She denied being refused entry to an aeroplane and attempting suicide. She was aware that her mother had deposed to this. (The mother’s affidavit is plainly true). She had told the F Clinic that she was drinking one to two bottles of wine a day. She had not been encourage by friends to go to F Clinic. She took herself. The father looked after the children while she was in the clinic. She had seen the children twice. Once with the father and once with Ms TT. Her sister brought them once. She did not decline to see visitors. Family members were encouraged to attend. Some of the texts were written by a counsellor which were tendered as exhibit A10. She denied withholding the children to get back at the father (but the texts tell a contrary tale). She takes Valium on her GPs advice once per day.
She had taken out an Application for an Intervention Order in May 2019. When asked if this was because the father had sent a text outside the extant orders, she could not recall. She said this was family violence. X was getting disrupted every lunchtime. The father had come to the front door with the registration for the car and laughed at her. She did not agree that the school had no concerns about the father passing the school gate. Exhibit A11 was the student chronicle. The father is still a big drinker. She had told the F Clinic that he was a binge drinker. She had told F Clinic that the children were safe with the father and she did not refer to physical violence. She told the hospital about the domestic violence. When it was put to her that there was no mention of sexual abuse in her affidavits, the mother said she was too embarrassed. There was sexual abuse inside and outside the marriage. She was lying in bed with the children when he hit her. She has PTSD from the abusive relationship.
She had resigned from Employer GG. The father and her own mother did not want her to work. Her mother was always against her working. She has a Fair Work Application on foot which she had not disclosed. She is trying to rescind her resignation and is seeking reinstatement. She had sought to adjourn the Fair Work proceeding until after this trial. She answered in a prevaricating way that she might not proceed with this Application. She had commenced volunteering at Employer BB in 2019. Monday and Friday was just a trial for three weeks. She wants to study next year and wants support from the husband. She wants to do a Diploma part-time over four years, on an online basis. She has made inquiries through TAFE and elsewhere and proposes to start study next year. There is no private health cover for the boys. It was ceased in about March 2019. The mother said she had withdrawn $10,000 from superannuation this year and it was on her bank statement. Mr T is a friend and she had repaid $6,700. She had withdrawn $6,500 out of the home loan account while she was in F Clinic because she was homeless.
Under cross-examination by counsel for the Independent Children’s Lawyer, the mother said that X was autistic. He has an inability to process information and has sensory issues. There are difficulties with social interaction and he has used inappropriate dialogue with his peers at school. He needs a predictable environment. There has been a dramatic improvement since 2014. She can take him to school and does not see why multiple carers should do it. X has always had anxiety but she can usually manage it. She had read the Family Report. When it was put that things had been going well since March from the children spending more time with the father, the mother said this was so but she did not support the father’s 9/5 proposal. She supports a modest increase. Regular time with the father is a good idea. They could look at every Thursday instead of alternate Thursdays but not overnight. She wants sole parental responsibility for medical and educational issues. She does not want to vary the Intervention Order. When asked how she would get the father’s input, the mother said that the Intervention Order was to be heard next week. This would take them through to May of the next year. She did not, in fact, directly respond to the question. Y is not autistic and she is happy for equal shared parental responsibility in respect of him. When it was put to her that she was very critical of the father and her own mother, the mother said that they were not well versed in managing X's Autism Spectrum Disorder.
In re-examination, the mother said she had facilitated extra time every school holidays. She had changed to suit his convenience in terms one, two and three and agreed to the AFL Grand Final weekend.
It should be noted that following the mother’s evidence, counsel for the father indicated that he was prepared to accept a regime of 9/5 in the mother’s favour.
The Evidence of Dr J
In response to questions from the Independent Children’s Lawyer, Dr J said she had treated X. She saw him when he was two in 2011 and regularly through to 2016. She had seen him again in February 2019. He is 10 years old. Autism has four components. There are difficulties in communication because they take things literally. There are language problems with their peers. Second, there is social difficulty. Third, there is obsession and, fourth, there are sensory difficulties because they do not like loud noises. X is borderline IQ in the range of 70 to 75. He functions at about 75 per cent of his chronological age. X has a full-time aide so there is significant functional disability. Because of the insistence of sameness, a change of environment is a major issue for the child. If the environment is stable he will be calmer. This would be reflected in school reports. She did not exclude equal shared parental responsibility. It was not necessary for any one parent to make decisions. Insistence would help X to try and calm down and changing routine causes anxiety. A whiteboard would reduce anxiety and there could be whiteboards in both houses. Predictability was the key. School reports tend to be positive. X could cope with two extra nights with one each week. She had written a letter in February 2019 but has not spoken either to the father or X’s school. She did her standard assessment. X was less focused than in 2016 and three years older. Full-time aides are very hard to get if your IQ is over 70. The father certainly has not attended for a number of years.
Under cross-examination by counsel for the mother, Dr J said she saw X when he was 13 months old. He was sent to JJ School. It is an early intervention service with a team approach. This goes until the child starts school. She sees children until school but if supports were in place she tells people to come back at need. Children attach to their non-primary carer as well as to their primary carer even if they are autistic.
When asked about idiopathic anaphylaxis, Dr J said X got a very fat lip out of the blue. She sent him to an allergist. The immune system is turned on to excess and leads to difficulty breathing or other symptoms. An EpiPen and/or ambulance are necessary.
When asked about the father’s work hours and who could take the children to school, Dr J said most parents have a routine. For an autistic child minor variations can cause distress and tantrums which she has seen in X. He needs to know who is looking after him and he needs to be on time. If there are multiple people involved military precision would make it work. If he had a tantrum it would affect him the whole day.
The Evidence of Ms G
Ms G adopted her affidavit as true and correct. She works with Employer UU. Her sister resigned impulsively. There was family violence which was not followed correctly. She could seek to resume her work through the Fair Work Commission.
Under cross-examination by the Independent Children’s Lawyer, Ms G said she saw the father denigrate the children. He was critical of the children if they did not complete tasks. This was as recently as when the mother was in hospital. She sees the boys four to five times a week. X does not talk about his father.
Under cross-examination by counsel for the father, Ms G confirmed that her children are adult. She was the secondary contact at the school. The father had failed a drug test at his work. She had not fabricated remarks. The father had called the mother “dumb as dog shit” and a “derogatory remark relating to her employment”. Exhibits A12 and A13 were texts sent in 2019 and 2017 respectively.
It should be noted that Ms G was wholly partisan in her sister’s favour and on a number of occasions simply failed utterly to answer the questions put to her.
The Evidence of Ms D
Ms D’s report was tendered as exhibit D1.
Under questioning by the Independent Children’s Lawyer, Ms D said she spent about one hour in separate interviews and then observed the children with their parents. She had had a feeling she engaged with both children quite well. X was aligned with his mother and his comments were more protective of his mother than Y was. Y did not pick the mother or father, but his favourites were his cousins. He had tried to tell his parents to stop fighting. She does not re-interview on the day. Y talked about fighting but she had not got the impression either child saw physical violence. The father relies upon the maternal grandmother and aunt to get the children to school. The mother generally takes them but had trialled after-school care. There are problems with communication between the parents at the moment and she hoped that with therapy this might be able to move forward. Decision making would depend upon communications.
Under cross-examination by counsel for the father, Ms D said she did not know that the mother was deliberately telling X about adult issues. Both are good parents and want to do their best for the children. She would be concerned if the mother was anxious all the time. The mother was quite calm with her. A 9/5 arrangement would be good. The mother is available because she is not working and can work around the children’s needs. She would not support equal time. 9/5 is a good balance.
Under questioning by counsel for the mother, Ms D said it would only be one day of school involving the father each week. She would also factor what the school had said to her. There were no problems on days when they came from their father. She had spoken with the principal, not the teacher and aide. The principal had collated information from them. She had read the material sent to her. She had not rung Dr J but had read her letter. Lawyers think she has more time than she has. Autistic children need as much structure and support as they can get. The relationship between the parents is the most significant thing at the present. There is too much emphasis on X’s autism. Victims of family violence are anxious. She could not comment on the husband’s suspended sentence. She had considered the DHHS response. There was, however, no risk with either parent now. She does not have X’s school reports. X named NN and VV as friends and she thought he was joking about girlfriends. EpiPen training is imperative and it is the parent’s responsibility to ensure EpiPen availability.
Final Submissions – The Independent Children’s Lawyer
The Independent Children’s Lawyer adopted the Family Report recommendations. Both parents agreed that counselling would assist them and post-separation counselling was appropriate. Dr J’s evidence suggested that there was significant problems for X who is only functioning at 75 per cent of his biological age. But there was no reason not to have equal shared parental responsibility. Children are attached to the non-primary carers on both sides. Mirrored routines with two whiteboards would be good. Dr J was not clear about multiple carers. It would require military precision. The Independent Children’s Lawyer accepted this. There would be tantrums if not which would last all day. The school reports do not show any such tantrums since March and the mother had accepted the school reports. In February and June the family was stressed. Ms D maintained her recommendations. The school principal would have good knowledge and had prepared funding for years ahead. Ms D spent one hour with each child. In respect of Y, the mother accepted equal shared parental responsibility is appropriate. Extra time would be good. Y was not seeing his father enough.
Final Submissions – Counsel for the Mother
The mother seeks the orders in her Outline of Case. She concedes equal parental responsibility in respect of Y. There could be also additional time on Thursdays for another dinner. The Court had heard the father’s very negative case which included criticisms when the mother was 11 minutes late to school. There was no sympathy and no understanding of the mother’s condition. She was living with the father for 11 years until separation and the father was working shifts and nights and working around the clock. Mr L’s evidence showed that the father was at Suburb B Sports Club. The mother was isolated and in very difficult circumstances. X was identified as autistic when very young. The mother undertook intensive intervention therapy and her health suffered. She had anxiety, chronic fatigue and PTSD. Her medication for anxiety did not agree with her and she turned to wine. She sought treatment. The Court should look at the DHHS report. There were no concerns at the school concerning alcohol. The father continued to work 70 hours a week. The father expressed frustration and at times did this through violence. He has slapped the mother and kicked the toilet while the mother was sitting on it. He had punched a hole in the wall and tipped over the tallboy. The mother says the violence was more extensive than that. The mother has accommodated the father on Grand Final and school holidays. She also proposes extra time on Thursdays. Dr J was an impressive witness. X is in the borderline range of intellectual disability. He is 10 years old and is functioning as a seven and a half year old. The mother seeks to maintain X’s morning routine and wants to take him to school. It can affect X the whole day. Time in the holidays was encouraged. She proposed alternate weekends from Friday to Monday and each Thursday after school.
So far as property is concerned the Bank of Melbourne personal loan was a debt of the relationship. The E Project may help but there are uncertainties as it will be differential when it comes dependent upon the value. It is unlikely to generate more than $100,000. Legal fees apply to both parties and the loan from the grandfather was legal fees.
In respect of spousal maintenance the father has always worked. He has spent up to $400 in one week at the P Hotel. He will still have work. Counsel referred to Clauson & Clauson [1995] FamCA 10 and Best & Best (1993) FLC 92-418 which lay emphasis on the value of ongoing income. The mother is recovering from ill-health. She has obtained part-time volunteer work at Employer BB. She is half-way towards paid employment. Spousal maintenance should be paid until the E Project investment comes to fruition or she finishes her study in four years. She seeks $400 per week. Counsel referred to the case of Bucknell & Bucknell [2009] FamCAFC 177 (“Bucknell”) in this regard.
Final Submissions – Counsel for the Father
Counsel submitted that Y was just as important as X and wants more time with his father. There is no reason to assume that time with the father will not benefit the children and no reason not to adopt the Family Report. The children protect each other and this would only be two nights more. Both parents need to work together and the father is prepared to do so. He is prepared to undertake counselling. The mother seeks a reduction of the time with him. The children are doing well socially. They are not in a special school and X has only seen Dr J once since 2016. The departure from routine is all by the mother. The children were late on 10 days this year. Both parties need to be more forgiving and supportive. There can be consistency in both houses. X’s funding will last until grade six. The evidence of his difficulties is largely historical. X needs support but there is nothing to stop the 5/9 routine. The father has done most of the Monday drop offs since March. The problem is the $400 per week spousal maintenance. He had to keep working to pay it. The father concedes some family violence. The mother’s version is exaggerated or fictitious. Matters were in her October affidavit which were not in her March affidavit. The father said the tall boy was tipped over but this was unrelated to aggravation. The mother is not happy her family supports the father but the fact is that they do. Counsel referred to the case of Scott & Scott (1994) FLC 92-45 in respect of uncontested testimony. The mother refuses to communicate with the father and she should not be rewarded for her non-promotion of the relationship with the father by an order for sole parental responsibility. The father has not been able to put money away for tax and he needs $20,000 for tax by the end of the year. His Financial Statement discloses he needs to get $182 a week to pay for everything. He has only been able to pay $400 per week because of the help of his own father and friends. The wife has not applied for jobs and is not pursuing reinstatement. The wife had not disclosed her alleged hardship withdrawal of $10,000 from superannuation. She obtained $50,000. She paid back her friend $6,500 but has not paid back her credit card. She took $3,800 in the early months of 2019 for which there is no evidence.
The mother says she cannot live more than 30 minutes from the school but she is now working in Suburb PP. Ms H has observed the wife’s skills and the wife can start work straight away. The wife wants to study but this is not concrete. The wife has not made out a sufficient section 75(2) case.
So far as property was concerned the husband says it should be split 65/35 in favour of the wife. The Bank of Melbourne loan was during the relationship. The wife’s credit card should be excluded. There had been no discovery. She had repaid $6,500 which was similar to the amount on her credit card. In effect, the wife was seeking 100 per cent of the net equity. The father said Town O was worth $5,500 and there was a valuation annexed to his Financial Statement. The case of Bucknell involved different facts.
Some Brief Observations About the Witnesses
The Father was generally a straightforward and responsive witness. He struck me as somewhat unsophisticated, and this affects his response to the diagnosis of autism which he struggles to accept.
I note that a number of his answers about the spend time regime were very self-focused. I refer, in particular, to his remark, earlier recorded, that he complained about not seeing the boys for eight days which is a long time, and that they need him and he needs them.
Mr L was a quite outstanding witness. He was palpably truthful.
I have already commented, on several occasions, about some unsatisfactory aspects of the mother’s evidence. She was not prepared to make even the most obvious concessions and regrettably her answers were evasive, non-responsive and prevaricating at times. She was relentlessly critical of the father and was at times perhaps understandably labile, while giving evidence. She was defensive and upset when cross-examined about the extent to which the children had been placed in before and after school care, and the prospects of her own family assisting in getting the children to school.
Her denials of her more florid behaviour when she was significantly affected by alcohol, speak for themselves.
Having said this, however, it is important to remember the circumstances in which her evidence was given. There has been family violence, even on the father’s case, and the perceptions of family violence are likely to be wildly different as between the perpetrator and the victim. Her difficulties with her inter-relationship with the father are, in that sense, readily understandable.
Against this background, I turn to the statutory pathway set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Equal Shared Parental Responsibility
This is as good a time as any to address the question of family violence. On the father’s own case, he punched a hole in the wall, kicked the toilet when the wife was sitting on it and slapped her. The evidence of the children, sparse as it is, suggests there were significant and unpleasant verbal altercations between the parties. Plainly, the presumption of equal shared responsibility is rebutted.
That, of course, is not the end of the matter. It is a matter of what is in the children’s best interests. Ms D's Family Report recommends it, and I should say now, since her evidence was the subject of some challenge, that Ms D was also an excellent witness who answered all questions entirely fairly and appropriately and was clearly giving evidence within her professional expertise.
Perhaps even more importantly, Dr J, who was likewise an extremely impressive and authoritative witness, saw no reason why only one parent should make decisions about these children.
There is a further aspect of the matter which I have already commented on. The mother, perhaps to an extent understandably, detests the father and everything about him. It is quite clear from what she said and the way she said it, that she would like to excise the father from any sort of involvement in the decision-making process, about X, in particular. I sense that that is also probably her position, to a degree, in respect of Y also, albeit that that is not her formal position.
It is undisputed that these two children have parents both of whom love them and whom they both love. X’s challenges make it all the more appropriate that both parents have involvement in making major long term decisions about their wellbeing.
Taken as a whole, the evidence could not be clearer. An order for equal shared parental responsibility, while not without its difficulties given the communication pattern between the parents, is plainly in the children’s best interests.
The Spend Time With and Live Regime – the Primary Considerations
Both parents and, indeed, all parties, agree that it is in the children’s best interest to have a meaningful relationship with both their parents. The mother retains vivid concerns about the father’s behaviour with the children. The Department of Health and Human Services entertains no such difficulties, and the observations of Ms D with the children and the parents, suggest, in the strongest terms, that while the father’s behaviour in the past has been deplorable (and I will return to the extent of this in due course) there is not now any significant need to protect the children from physical or psychological harm, from being subjected to abuse, neglect or family violence.
The Additional Considerations
Section 60CC(3)(a)
The children’s views have been recorded by Ms D. X is very protective of his mother and aligned with her and is very aware of the tensions between his parents. I note that, in the end, he did say to Ms D at paragraph 95 that:
It is very confusing for him, because he wants to love both parents and that he wishes everyone got along.
At paragraph 96, Y, by contrast:
Stated to the writer that he feels very sad because he does not get to spend enough time with his Dad.
The expression of these views needs to be seen in context. The children are not old and X is autistic, which makes expression of emotions perhaps more difficult for him. I note that the observations by Ms D make it clear that the children love both their parents.
Section 60CC(3)(b)
The children are, obviously, very close to their mother who has been their primary carer all their lives. It is concerning that X’s relationship with his mother appears to be somewhat enmeshed. The exposure of X, by the mother, to adult issues, something I have no doubt whatsoever has taken place despite her denials, is not helpful. Nonetheless, it seems that the children have excellent relations with both their mother and their father. From the affidavit material, which was not the subject of challenge, which I approach with caution given its partisan nature, it seems that the children also have good relationships with the mother’s extended family, their paternal grandfather, and Ms G, with whom they live.
Section 60CC(3)(c)
Both parents have, in my view, taken the opportunity to participate in decisions about major long term issues in relation to the children and to spend time with them. The mother’s case was suffused with criticisms of alleged lack of involvement on the father’s part, but to the extent this obtained, it was because he was working extremely long and hard to support the family. He now attends parent support group meetings and is otherwise involved with the school, and he has prosecuted his case to judgment, which speaks for itself.
Section 60CC(3)(c)(a)
As just indicated, the father worked long hours to support the family and the mother also worked to the extent that her child rearing abilities enabled her to do so. It should be noted that her cessation of work to concentrate on X’s developmental difficulties is wholly to her credit.
Section 60CC(3)(d)
The mother seeks to limit the father’s routine in order to give the children what she describes as more certainty. The father seeks to expand it in line with Ms D’s recommendations. It should be noted that the mother’s desire to limit the father’s time, springs at least in part from her desire that the children not be taken to school by her own mother or her own extended family members from whom she is estranged (noting that she has a close relationship with Ms G). The reality of the matter is that whatever orders I make will disappoint at least one of these parents, but their disappointment cannot be made a self-fulfilling and self-serving criterion. The evidence of Ms D, in light of her observations and the material before her, was that the children should live with their parents in a 9/5 regime and this is a factor to which I give, obviously, significant weight.
Section 60CC(3)(e)
The main difficulty in the children spending time and communicating with the father, arises from his hours of work which start early in the morning. However, and I accept Ms D’s view in this regard, there is no good reason why the mother’s extended family should not participate in giving the father the assistance that he will need. There is no other practical difficulty or matter of expense to which the parties pointed to me in either side’s proposals.
Section 60CC(3)(f)
In my view, each of the children’s parents have the capacity to provide for the children’s needs. In the case of the mother, it is compromised to an extent by her, as I find it, overstated concerns for X. No reasonable person would criticise a mother from being worried about the future of a child with a disability like autism. It is an entirely natural response. Indeed, the mother’s commitment to X’s future is well illustrated by the care she has given him. Nonetheless, the objective evidence does not suggest that X’s predicament is as severe as the mother has sought to paint it. Not only did I discern in her evidence an obvious element of exaggeration and over emphasis, but the fact is that X’s most recent school report is, in the main, good. Exhibit R3 are his reports for the semester 1 in 2019 and shows an attractive smiling boy looking at the camera. While I accept Dr J’s observation that school reports tend to be positive, his assessment was well below level only in writing. True it is that other areas were also below level, but again, others were at level. For a child with borderline IQ in the 70 to 75, these are by no means terrible results.
Furthermore, Dr J did not exclude equal shared parental responsibility. She was of the view that with appropriate military precision, the arrangements for X could work. These observations are not in any way decisive, but they suggest to me that while X is autistic and is on borderline scales for academic intelligence, he is not in such degree of difficulty as the mother suggests.
By the same token, the father underestimates X’s difficulties. Just because the school principal describes him as high functioning does not mean that he is not autistic and faces very significant intellectual difficulties. The father’s breezy evidence which was generally to the fact that X was fine while he was with him, was given sincerely, but shows, in my view, a lack of understanding. Autism is a lifelong disability. He would do himself and more particularly the children and, indeed, the mother, a lot of help if he was prepared to accept this difficult and confronting but real circumstance.
Section 60CC(3)(g)
Both these parents have their weaknesses. On the part of the father, there is a certain lack of acuity combined with ongoing hostility towards the mother to whom he gives little if any credit for her significant endeavours to turn her life around. I should make it clear, however, that having seen and heard his evidence, I do not accept the mother’s criticisms of him as a parent, including her assertions that he still drinks regularly to excess and is a risk to the children as a result. He is obviously a devoted father and conducts himself appropriately.
The mother has had her difficulties in the past. Given the family violence to which she was subjected, her responses were perhaps understandable if very poorly chosen. She was immured for a month at F Clinic, relatively recently. I accept she has stayed off alcohol since, and this is greatly to her credit. What is less to her credit is her attitude towards the father, a matter to which I shall return below. Leaving these ultimately less significant matters aside, however, the reality is that both these are good parents who love their children. Neither is a risk to them in any significant way.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
Both these parents are loving parents. The mother’s attitude towards the children, however, is, in some sense, concerning. From exhibit A9, it is apparent that she has over involved the children in adult issues:
I told the boys the truth, you won’t give me money and that’s why I can’t afford food or taking them out.
She also texted in response to the father’s request for a sleepover:
Go 29 days without seeing them and then you might know what I went through.
She has also responded to his request to see the children by saying, “See you in court”. These messages are just isolated examples, but they are consistent with her attitude towards her role as a mother. It is a strongly possessory one from which to a not insignificant degree the father is excluded.
While the father would have it that he is more focused on improving communications between the parties, his attitude towards the mother remains extremely accusatory. His notion of parenthood appears, at least, in significant part, to be concerned with his own needs, as I have already recorded.
Section 60CC(3)(j)
There has clearly been family violence as I have already said. In my view, the father has sought to minimise his violence. The incidents he admits are more than enough for the wife to be as upset with him and scared of him as I find she is. Nonetheless, the children love both their parents and the mother has not pursued her case on the footing that his family violence that should be decisive in the resolution of the spend time issues. Rather, her case is posited on X’s autism and the sequelae associated with it.
Section 60CC(3)(k)
As I understand it, there is an extant Intervention Order which may still be the subject of ongoing proceedings. Although, of course, the history in relation to Intervention Orders in this matter is important, it adds nothing to the general question of family violence that I have just discussed.
Section 60CC(3)(l)
All parties agree it is appropriate to make Final Orders and I will plainly do so.
Section 60CC(3)(m)
The decisive consideration for me in competing spend time regimes are the reports of Ms D and the evidence of Dr J. Dr J saw no reason for there not to be equal shared parental responsibility, as I already noted, and children attach to the non-primary carer, as well as the primary carer even when they are autistic. The Independent Children's Lawyer accepted that Dr J’s evidence about the effects of multiple carers was not clear and that military precision would be necessary for the households to run effectively.
Conclusion on Parenting Issues
Taking all of the above matters together, it is plain that the recommendations of Ms D, which are, at least, in outline, supported by Dr J, are those that are in the children’s best interests. I will be making orders as sought by the Independent Children's Lawyer.
Property Issues – Stanford & Stanford [2012] HCA 52
Leaving aside for the moment, the question of spousal maintenance, this is a case like so many in which the parties have, since separation, radically adjusted their financial position. Both sides seek a property adjustment and it is plainly just and equitable that there be one.
The Pool
In formulating a view of the pool, I have omitted the parties’ bank accounts which have only very small amounts of money in them. The pool seems to me to consist of:
Assets
·Net proceeds of sale of family home - $211,788;
·Payment made pursuant to orders dated 9 April 2019 to the wife - $50,000;
·E Project – value not ascertained and not ascertainable for years;
·Father’s Motor Vehicle U - $28,000 (taken as a concession against interest);
·Mother’s Motor Vehicle V - $8,000; and
·Town O caravan - $5,500 (taken as a concession against interest).
Liabilities
·W Finance (father’s Motor Vehicle U) $31,000; and
·Bank of Melbourne visa - $17,300.
Superannuation interests
·The husband’s Super Fund WW - $152,000;
·Mother’s Y Super Fund - $71,000; and
·Mother’s Z Super Fund - $33,700.
I have not included the father’s Gem Go Mastercard debt nor the Bank of Melbourne personal loan or the mother’s credit card, even though these latter two amount to in excess of the best part of $70,000. I accept the criticisms provided by the father to the effect that the mother has simply not provided sufficient documentation to prove either that they are debts arising during the relationship and/or as to their quantum.
I have likewise excluded the loan from Mr L, asserted by the father. Mr Gabert’s evidence is that while he trusts his son and expects to be repaid, it is clear from his evidence that he does not propose to call upon the loan unless his son is well in a position to repay him. The other minor matters of gas accounts and the like I have likewise excluded, because they are so small.
Issues of Contribution
This was an 11 year relationship into which both parties brought property at the start. The overarching financial position suggests that they have not perhaps been as fortunate in their financial affairs as they might have wished. The husband worked very long hours at times and earned a substantial amount of money to try and support the family. The mother likewise worked for substantial periods of time and devoted herself entirely creditably to X’s particular needs. I have equally no doubt that while the father did assist the mother as is described by the childcare he provided at night, the overwhelming burden must have fallen on the mother. Taking all these matters into account and bearing in mind the 11 year nature of the relationship, it is quite clear, in my view, that the parties’ contributions should be assessed as equal.
Future Needs
I do not accept the rather carping criticism advanced by the husband of the wife’s capacity to work. I should make it clear that I have the most considerable doubts as to whether she is able to get from Suburb PP to the children’s school in 20 minutes. But the fact is that she has prospective employment there, which will obviously come to pass in the reasonably foreseeable future. However, it seems equally clear that it will not be enormously remunerative and that her hours will be significantly curtailed by her childcare responsibilities. It is clear that the children will be living predominantly with the wife on an ongoing basis and it is very possible that she may have to care for X even after he achieves adult age.
The father, by way of contrast, has never been out of work. His future employment is not entirely clear. It would appear that the relative bonanza of recent times may have come to an end, but he struck me as being a man of resource with an employment skill highly likely to be in demand. I find that he will certainly make far more by way of income than the wife ever does and notwithstanding that it appears he has to find quite a substantial amount of money to pay his tax, his long term financial future seems far better assured than that of the wife.
Both these parties are of roughly commensurate age and have years ahead of them in which to improve their financial position. Both are in unremarkably good health.
I initially came to the view that there should be a 15 per cent adjustment in the wife’s favour, as the husband seeks. This, however, brings us to the question of spousal maintenance.
Spousal Maintenance
The wife seeks that the husband continue to pay her $400 a week by way of spousal maintenance, for a number of years to come. This is to be determined either by the realisation of the E Project, a matter which is highly impossible to assess at this stage, or by her cessation of study and what I understand to be posited to be four years of part time study.
I would tend to accept that the wife would have, no doubt, a case for need within the meaning of the Family Law Act 1975 (Cth). Her circumstances are not extravagant, as is made clear by her Financial Statement. The real and telling issue here is whether or not the husband can, in fact, pay her that sum. The obvious and most telling evidence about his capacity to pay is the evidence that he gave himself and which I accept, as to how hard he has had to work to keep on paying it. He has had to work to the detriment of the children, because he has had to work during times they were supposed to be with him. His evidence that his friends and family were enabling him to effectively get by, is evidence given with sincerity and which I accept. In these circumstances, it is plainly inappropriate that there be any further order as to spousal maintenance.
The wife should simply retain the $50,000 she has received, as a part payment. I am not persuaded that it is appropriate or necessary to characterise it or any of it as spousal maintenance. It is simply a preliminary distribution from the funds received from the sale of the matrimonial home.
Conclusion as to Property
As earlier indicated, I was initially of the view that the 15 per cent adjustment in the wife’s favour was appropriate. On reconsidering the matter, however, bearing in mind both parties have legal fees of roughly commensurate amounts which would probably consume a large part of what they receive, I noted the wife’s considerable indebtedness in relation to her Bank of Melbourne personal loan. At paragraph 16 of her Affidavit filed 5 April 2019, she deposes to the personal loan being taken out for the benefit of both parties but in her name alone. She further deposes that the funds were received in the parties’ joint account when they were advanced and that they were applied to joint credit card debts and were also applied to the purchase of a caravan and to build a pool house at the former matrimonial home. Bearing these matters and my conclusion about spousal maintenance, I think a division of 70/30 in the wife’s favour, subject to what is set out below, is a just and equitable outcome. It should not, however, apply to the E Project.
The evidence as to where the $100,000 originally came from is entirely unclear. Nonetheless, it was plainly during the currency of the marriage, and in one sense it is probable that, directly or indirectly, both parties contributed. In my view, as and when the E Project is sold, sums thus received should be divided 55 per cent in favour of the wife and 45 per cent in favour of the husband. This is not an investment to which either of them have made any particularly incisive contribution in excess of the other and the loading I am giving to the wife reflects her ongoing and likely greater financial needs.
This global result is in my view a just and equitable outcome.
I certify that the preceding one-hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 31 January 2020
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
Legal Concepts
-
Injunction
-
Remedies
-
Jurisdiction
-
Costs
-
Procedural Fairness
-
Reliance
0
2
2