Gadsen & Madray
[2021] FCCA 2181
•31 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Gadsen & Madray [2021] FCCA 2181
File number: MLC 4211 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 31 August 2021 Catchwords: FAMILY LAW – interim parenting and property – live with and spend time arrangements with the child – equal time – property injunction sought and refused – orders made. Legislation: Family Law Act 1975 (Cth), ss 60CC, 65DAA
Evidence Act 1995 (Cth), s 144
Cases cited: Goode & Goode (2006) FLC 93-286
Lindon v Commonwealth (No. 2) (1996) 70 ALJR 541
Number of paragraphs: 55 Date of hearing: 31 August 2021 Counsel for the Applicant: Mr J Mellas Solicitor for the Applicant: Leanne Cain & Associates Counsel for the Respondent: Mr D Carne Solicitor for the Respondent: Davison Family Lawyers ORDERS
MLC 4211 of 2021 BETWEEN: MR GADSEN
Applicant
AND: MS MADRAY
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
31 AUGUST 2021
THE COURT ORDERS THAT:
BY CONSENT:
Parenting Orders
1.The parties have equal shared parental responsibility for the child X born in 2015 ("the child").
BY THE COURT:
Living arrangements
2.The child live with each parent on a week-about basis.
3.During school terms, on Tuesday nights the child spend the night with the parent with whom the child is not living with that week and at such other times as agreed by the parties in writing.
4.The parent with whom the child lives each week facilitate daily telephone contact with the other parent between 7.00pm and 7.30pm each night via Google Duo app.
5.The changeovers take place as follows:
(a)Each Friday at the conclusion of school at school on school days or at 6.00pm if a non-school day at the home of the parent whose time with the child is ending;
(b)Each Tuesday at the conclusion of school at school on school days or at 6.00pm on a non-school day at the home of the parent with whom the child is living with that week;
(c)Each Wednesday by taking the child to school on school days or at 9.00am on a non-school day at the home of the parent with whom the child is living with that week.
BY CONSENT:
6.Where changeover occurs at the parents' respective residences, upon delivery of the child at changeover, each parent is to ensure that the child has with him all personal belongings, sporting equipment, uniforms and homework required by the child for the proceeding time arrangements with the other parent.
7.Where changeover occurs at the child's school, the delivering parent is to ensure that the child's personal belongings, sporting equipment, uniforms and homework required by the child for the proceeding time arrangements are delivered to the other parent's residence on the day of changeover.
8.The arrangement in paragraph 3 be suspended during 30 days commencing 7.00pm on 24 December each year until 3.00pm on 23 January each year.
9.If either parent is unable to care for the child overnight the other parent have first right of refusal to care for the child.
BY THE COURT:
Long summer school holidays
10.During the 2021/2022 long summer school holidays the child spend time with each parent as follows:
(a)With the Respondent from 3.00pm on Boxing Day 2021 until 3.00pm on 9 January 2022;
(b)With the Applicant from 3.00pm on 9 January 2022 until 3.00pm on 23 January 2022;
Special occasions
11.The child spend time with each parent on special occasions as follows:
(a)For Christmas 2021:
(i)with the Applicant from 7.00pm on Christmas Eve until 3.00pm on Christmas Day; and
(ii)with the Respondent from 3.00pm on Christmas Day until 3.00pm on Boxing Day;
(b)For Easter 2022:
(i)with the Respondent from 5.00pm Easter Thursday until 5.00pm on Easter Saturday; and
(ii)with the Applicant from 5.00pm on Easter Saturday until 5.00pm Easter Sunday;
and otherwise in accordance with order 2 herein.
BY CONSENT:
(c)On the child's birthday, with the parent the child is not scheduled to live with that week for 4 hours at a time as agreed by the parents and failing agreement from the conclusion of school if school day until 7.00pm on the same day and if the birthday falls on a non-school day from 3.00pm until 7.00pm the same day;
(d)On the child's half-sister Y’s birthday, with the Respondent from the conclusion of school if school day until 7.00pm on the same day and if Y's birthday falls on a non-school day from 9.00am until 7.00pm the same day;
(e)On each parent's birthday, if the birthday is on a day the child is not scheduled to live with that parent from the conclusion of school if school day until 7.00pm the same day or if non-school day from 10.00am until 7.00pm the same day;
(f)On Mother's Day, with the Respondent from 5.00pm on the Saturday preceding Mother's Day until 5.00pm on Mother's Day if the child is not scheduled to live with the Respondent than week;
(g)On Father's Day, with the Applicant from 5.00pm on the Saturday preceding Father's Day until 5.00pm on Father's Day if the child is not scheduled to live with the Applicant that week.
Education
12.The child continue to be enrolled at school at B School, Town C or such other school as the parents may agree in writing.
Travel
13.Each parent be permitted to travel outside the State of Victoria with the child while the child is in that parent's care.
14.The parent intending to take the child outside the State of Victoria during his/her time with the child:
(a)must provide the other parent with a minimum of 72 hours' written notice or any lesser period agreed to between the parents; and
(b)must, prior to leaving home, provide the other parent with details of where the child will be staying and when he will be returning home.
Miscellaneous
15.The parents each notify the other and provide particulars of any changes to their telephone numbers, email addresses or residential addresses within 24 hours of said change.
BY CONSENT AND UNTIL FURTHER ORDER:
Financial Orders
16.That the Applicant:
(a)Make all such payments as may be required to D Finance with respect to the E Motor vehicle registration number … ('the E Motor Vehicle') until such finance has been paid out and discharged in full and thereafter do all such acts and things and sign all such documents as may be required to transfer to the Respondent at the expense of the Respondent the said motor vehicle; and
(b)Until further order make all other payments in respect of the E Motor Vehicle including registration, insurance and roadside assistance.
17.That the Applicant pay to the Respondent the sum of $550 per week, in lieu of any assessed child support, by way of payment directly into a bank account as nominated by the Respondent.
18.That pending settlement of the sale of F Street, Town C the Applicant pay:
(a)$250 per week to mortgage loan account number …70; and
(b)the GO Mastercard instalments.
19.That upon discharge of the mortgage referred to in paragraph 18(a) of these Orders the Applicant forthwith pay to the Respondent periodic spousal maintenance in the sum of $250 per week by way of payment directly into a bank account as nominated by the Respondent.
20.That the Applicant continue to pay:
(a)Private health insurance at the current level and family rate for the Respondent, the child X ('X') and Y ('Y') and for that purpose the Applicant shall provide the Respondent with up to date statements for that health insurance policy as may be requested from time to time by the Respondent;
(b)X's tuition fees for the B School in Town C plus uniform expenses; and
(c)Y's tuition fees for the G School in City H.
BY THE COURT:
21.That notwithstanding paragraph 10 of the Orders of 29 July 2021 the Respondent be permitted to borrow up to $60,000.00 secured against the property at J Street, Town C, for the purposes of funding her legal fees associated with this litigation.
Trial Directions:
22.The proceedings be adjourned to 2 November 2022 at 10.00am for Final Hearing (with an estimated hearing time of 3 days), subject to the court, if able, listing the matter for an earlier final hearing in the circumstances of the amalgamation of the Federal Circuit Court and Family Court.
23.The matter may be listed for a compliance mention by telephone approximately 1 week prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.
24.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
25.No later than 21 days prior to the trial date, the Applicant file and serve:
(a)any Amended Initiating Application setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit;
(c)other witness affidavits upon which they intend to rely; and
(d)in property proceedings, an updated Financial Statement.
26.No later than 14 days prior to the trial date, the Respondent file and serve:
(a)any Amended Response setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit;
(c)other witness affidavits upon which they intend to rely; and
(d)in property proceedings, an updated Financial Statement.
27.No later than 7 days prior to the trial date:
(a)the Applicant file and serve any affidavit(s) in reply addressing only the evidence presented in the Respondent(s)' affidavits; and
28.No later than 2 days prior to the trial date, all parties are to file and serve a case outline document in the approved form which shall not, without leave, exceed 5 pages in respect of parenting issues and 5 pages in respect of financial issues and shall include:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events that are relevant to the issues to be determined by the Court;
(c)in a parenting case, a summary of contentions as to section 60CC factors relied upon to satisfy the Court that it is the best interests of the child(ren) to make the orders sought;
(d)in a property case, a table listing all of the assets, liabilities and financial resources claimed to be relevant to the dispute, with the values contended for by each party and the main contentions on disputes as to:
·the assets and liabilities available for division;
·the value of items where the value is in dispute;
·contributions claimed or contended for and the percentage-based adjustment on contributions contended for;
·relevant s 75(2) / 90SF(3) factors and the percentage-based adjustment contended for; and
·any further factors relevant to determining a 'just and equitable' division of property.
29.Lists of authorities which Counsel intend to cite to the Court during the presentation of any argument, together with copies of any unreported decisions to which it is intended that reference shall be made, should be filed and served not later than two days prior to the hearing.
30.Each party will be permitted to rely on one consolidated trial affidavit and one affidavit in reply (if applicable) only. Reliance on earlier or additional affidavits will not be permitted.
31.All documents required to be filed and all other documents sought to be relied upon (including any court books) must be filed or provided (as applicable) in electronic format to the Court and to each other party.
AND THE COURT NOTES THAT:
A.It is agreed by the parties that the financial support in these orders include periodic and non-periodic child support and that neither party will seek a formal child support assessment
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Gadsen & Madray is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
PARENTING
These are the settled ex tempore reasons delivered on 31 August 2021. In this matter, the parties wished me to decide the living arrangements until further order (that is on an interim basis) for the child, X (“the child”) who is aged five and will turn six this year. The father, Mr Gadsen, (“the Father”) is aged 54 and the mother, Ms Madray, (“the Mother”) is aged 47.
The date the parties commenced to live together is disputed and could be about January 2014; or September 2014; or February 2015 and the precise date of the commencement of their cohabitation does not matter for the purposes of these reasons and the decision I have made. I have indicated to the parties in broad terms the general form of the orders that I will make, which is that the existing arrangement of alternate weeks, with the Tuesday night being with the other parent, will continue until further order. I can also indicate that it is agreed that the telephone time should be between 7.00pm and 7.30pm.
The Mother relied upon a number of affidavits and the settled reasons will set out those documents from the Mother's list of documents relied upon:
1.Affidavit of [the Mother] filed on 25 May 2021 (Parenting matters);
2.Affidavit of [the Mother] filed on 25 May 2021 (Financial matters);
3.Financial Statement of [the Mother] filed on 25 May 2021;
4.Affidavit of [the Mother] filed on 8 July 2021;
5.Affidavit of Mr K filed on 18 August 2021; and
6.Affidavit of [the Mother] filed on 30 August 2021.
The Father relied upon a number of documents and the settled reasons will set out the Father's list of documents relied upon:
1.Initiating Application filed 16 April 2021;
2.Affidavit of [the Father] sworn and filed 16 April ;
3.Notice of Child Abuse, Family Violence or Risk filed 16 April 2021;
4.Orders made 17 June;
5.Amended Initiating Application filed 7 July 2021;
6.Financial Statement of [the Father] sworn and filed 7 July 2021;
7.Affidavit of [the Father] sworn and filed 8 July 2021;
8.Orders made 9 July 2021;
9.Orders made 29 July 2021;
10.Further Initiating Application filed 3 August 2021;
11.Affidavit of Mr K sworn 17 August 2021;
12.Affidavit of [the Father] sworn and filed 26 August 2021.
In addition, the Father relied upon, for purposes of the current controversy, documents in what I will call a tender bundle from pages 2 to 28, which included an email from the Mother to the Father; an email from a mediator to the parties and invoices from a nanny retained by the Father for the period from 5 February 2021 to 28 August 2021.
The Father sought the continuation of an arrangement that has been in place since August last year (2020), with the parents having alternate weeks but on a Tuesday night the child returning to the care of the other parent. The parties disagreed about Christmas and school holidays arrangements; notwithstanding that they broadly agreed that school holidays would be shared.
Each party sought, in this coming year, to have from Christmas Eve until Christmas morning, and to have the period from Boxing Day until round about 9 January; in other words, the first part of the school holidays.
I will just deal briefly with the Christmas arrangement. It is unfortunate that a Judge needs to decide where the child is on Christmas morning in a dispute between two highly intelligent, highly educated and high achieving parents, but that is my job to do that as best I can on the information I have.
The child is very fortunate to have such highly educated and high achieving parents as an example and role model to him in his life, and he has the further advantage that they live very close, or relatively close by, in the city of Town C: a significant and thriving city and some regard it as a cultural lynchpin to central Victoria. It has been described as a small country town; but that, of course, depends where you come from. If you grew up in Melbourne or Sydney, you may to think that Town C is a small county town. In fact, it is a city with all the advantages of a regional city and the child is very lucky to have those advantages.
The child has another advantage, he has an older sister, Y (“the sister”), who is 10 years old, who lives with the Mother and spends alternate weekends with her Father. The child is able to attend school nearby to where the parties live and his sister attends a private school in a not too distant different regional city, where she travels to and from school by school bus.
The Mother's application sought a significant change from the arrangements that have been in place for some time, and she sought to change the week-about minus the Tuesday arrangement to an arrangement of the child spending alternate weekends, from the conclusion of school on Friday until 5:00pm the following Sunday, and each Tuesday from the conclusion of school to 6:00pm, save that if the Father could demonstrate that he was not required to work on the following Wednesday morning, then that Tuesday could be until the commencement of school on Wednesday. In other words, depending on the Father's work, two nights per fortnight or three nights per fortnight. In addition, the Mother sought the Christmas time be from 22 December until a day 15 days later and the child be with her for the whole of that Christmas period.
The recent history of Christmas is that, for the Christmas of 2019, the child was with the Father for the whole of the Christmas when he travelled to Adelaide by himself with the child. The following Christmas in 2020, shortly before the parties separated, the parties shared that Christmas Day and the issue is how should Christmas Day continue.
Balancing all those things as best I can and acknowledging how important Christmas Day is, particularly to the parents, (I note I have yet to meet a child that objects to two birthday parties on two different days or two Christmas celebrations on different days), but acknowledging how important that is for the parents and that the parents live reasonably close together, it appears to me practical that they share Christmas Day on an alternating basis.
I now consider the extra special time during the school holidays, when most people are on holidays in normal non-COVID-19 times. From Christmas Eve until early in the New Year, in the circumstances where the Father had that time last when it was not shared, the Mother should have that this time, albeit the Father only had part of the Christmas time in 2019. Such is the manner by which I have to determine Christmas Day.
I am endeavouring to follow the law in Goode & Goode (2006) FLC 93-286 (“Goode & Goode”) and the settled reasons will refer to paragraphs 73 and 81 and 82 of Goode & Goode and recite those paragraphs:
[73]That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
[81]In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
[82]In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In this case, I determine the living arrangements for the child based on what I regard as his best interests as being the paramount consideration. When determining what is in the child’s best interests, the primary considerations are the benefit to the child of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect, or family violence. In applying those two considerations, I must give greater weight to the protective concern of the second primary consideration. I must also take into account the matters under section 60CC and I will come to those in a moment.
I need to identify next, the agreed or uncontested relevant facts. I had the advantage in this hearing of having been provided with a detailed chronology in a document described as an Outline of Case. Each of the parties' counsel humoured me as they were taken laboriously through that document to identify which were disputed and which were controversial. In dealing with the undisputed facts, it appears to me that the undisputed facts are that the child has a good relationship with his Mother and his Father and his sister.
At around September 2016 when the child was 10 months old, he started to attend day care and was attending two to three days per week at that time. By February 2017, he was regularly attending child care three days per week. By 2018, the child was attending child care five days per week and by March 2019, the child moved from attending day care on five days per week to four days per week.
It is agreed that the parties agreed to separate on a final basis in April 2020 and that, in April 2020, they agreed that the child would live equal time with them. Notwithstanding that agreement, it is common ground that on 19 May 2020, the Mother emailed to the Father an email that I will set out in a moment. But the context to that email is that the Mother (consistent with her high achieving background and personality) was very busy in May 2020: she was working on a development of real estate, attempting to study and attempting to establish a practice, in addition to caring for the sister and the child. She stated in that email the following:
As you know, I'm keen to get back to work ASAP. I’m unable to implement any plan for this unless you agree to take on a more even share of X's care. Even though you’ve said you’re willing to take 50%, I’m still shouldering at least 80% of the load. This includes both non-kinder days and most drop-offs and pick-ups. Your share cannot simply be done on weekends. You need to take more responsibility during weekdays as well…
The agreed circumstance is that the Father's work was the practice of a legal professional and the Mother's intended work was the practice of a legal professional, as well as a builder and property developer, as well as intending to complete health professional studies.
It is common ground that, following that email, the parties put in place a 5/5/2/2 arrangement and that this arrangement was in place until August 2020. In August 2020, the parties agreed to change the 5/5/2/2 arrangement to a week-about arrangement, with the Tuesday being with the other parent 7/7 minus Tuesdays. Notwithstanding that commenced in August 2020, it is common ground that, by late October 2020, the Mother had raised with the Father the issue of whether the 7/7 minus the Tuesdays was working for the child or not.
A theme in the Father's material is that he regards these communications as threats to reduce his time, and the Mother's theme is that she regards these as realistic expressions of unhappiness with how the current arrangement was working. I am unable to determine at an interim hearing which parental opinion is correct. But it is a fact that from at least October 2020 the current arrangement was complained of by the Mother.
It is then common ground that the parties attended mediation on 17 December 2020 in a mediation with a solicitor, mediator and experienced family law practitioner. What the parties agreed that day is agreed, and it's set out in an email from the mediator to the parties and the settled reasons will recite that email:
Dear [Mother] and [Father]
Thank you for participating in family dispute resolution today.
To follow is a summary of your agreement:
1.[the child] to live with [the Mother] in each alternate week and [the Father] in each alternate week.
2.The forthcoming summer school holidays to be shared equally as agreed.
3.School holidays thereafter to be shared equally at dates and times to be agreed.
4.Special occasions be shared equally at dates and times to be agreed.
5.[the Mother] and [the Father] forthwith sign all documents necessary to enrol [the child] in B Primary School in Town C, commencing prep in 2021.
6.That commencing term 1, 2021 an agreed babysitter care for X from the conclusion of school to approximately 5:30pm (and [the sister] from 4:30 to 5:30pm in each alternate week when [the child] and [the sister] live with [the Mother]), the cost to be met by solely [the Father] (not to be credited against any other child support and /or spousal maintenance currently paid to [the Mother] by [the Father]) to be reviewed at the end of term 4, 2022.
7.In the event of dispute and upon the written request of [the Mother] and/or [the Father], [the Mother] and [the Father] attend Family Dispute Resolution with Ms L.
8.The parenting arrangement to be confirmed by way of a Parenting Plan at [the Father’s] expense.
9.The babysitter payment arrangement be confirmed by way of a Binding Child Support Agreement at [the Father’s] expense.
…
What is in dispute around that email is the context that surrounded it. The Mother's position is that the primary focus of that mediation was resolving the stalemate the parties had relating to which school the child would attend and that the week-about arrangement received less attention. Although she agreed to the continuation of the existing arrangement, it was on the basis that that would be reviewed further or later. The Father sees that as a concluded agreement.
There was a second mediation with the same mediator in February 2021, and the Father commenced proceedings in April 2021. The parties attended Mr K, an experienced psychologist and psychologist who has worked for some 30-odd years in family law.
The other matter that needs to be added to the chronology of agreed facts is, in the December 2020 agreement, it was agreed that the Father would pay for the nanny that he was using of an evening and that nanny to be available for the Mother to utilise at the Father’s expense. It is common ground that that commenced in February 2021 and that the Mother continued to use the services of that nanny until June or July of 2021. By reference to the practice records of the nanny which were tendered by the Father, it is clear that the last time that that nanny worked for or at the direction of the Mother was on 24 June 2021, and that on that occasion the nanny was involved in caring for the child and his sister until 6.30 pm. There is a controversy between the parties as to the Mother's motivation in not continuing that arrangement, and it appears that the Mother advised the Father that she would not be continuing with that arrangement after the interviews with Mr K.
For the purpose of the hearing with me, nothing turns on when it was the Mother told the Father that that would not be continuing, but the clear fact is that the last occasion was on 24 June 2021. It is not the law that I apply some sort of a measure of a status quo. I am required to follow the requirements of Part VII of the Family Law Act 1975 (Cth) (‘the Act’), sections of which I have referred to above. However, I do note paragraph 73 of Goode & Goode.
I set out the broad arguments and positions of each of the parties. As I checked with their respective counsel, each party was content to, by and large, live with the description of their positions as set out in the very detailed family report prepared by the psychologist. The Mother agrees that the position set out at paragraphs 2, 3, 15, 17, part of 19 and 20, and paragraphs 43 and 47 (and I infer also part of 48(ii) referring to the child’s sister), set out with reasonable accuracy a broad description of her position, and the settled reasons will include those paragraphs:
[2]From [the Mother’s] perspective, the current arrangement does not make sense. She explained that at present, for 7 days in a 14 night cycle, [the child] is cared for by morning and afternoon nannies when he could otherwise reside with her, and his sister; the children are separated on a weekly basis, notwithstanding that she and [the Father] live within very close physical proximity, that sees, from her perspective, the absurd situation that [the Father] is at work and her son is in the care of a child support worker.
[3][The Mother] is seeking a change to the arrangement such that [the child] spends time with his father each alternate weekend and midweek, including overnight on the condition that the following day, [the Father] is available to care for him in Town C. In the alternative, [the Mother] believes that it is in [the child’s] best interest that he resides with her, that he not be subjected to the changing care arrangements, and that the parenting time arrangement reflect the reality of [the Father’s] employment.
…
[15][The Mother] noted that [the Father] has always worked long hours, and that the commute to and from Melbourne means that he is absent from home for long periods when [the child] could otherwise be in her care. [The Mother] told me that it obviously makes more sense or him to be with her and his sister, and to not perpetuate an arrangement that sees the children being separated. She impressed upon me that it was not her intention to deprive [the child] a relationship with his father, but that the current plan means that [the child] is cared for by third parties, as compared to by his direct family. [The Mother] explained that when she initially entertained an equal care arrangement that she has no idea that [the Father] would rely so heavily on nannies and that he would be away from [the child] for such long periods. She told me that she had been optimistic about the arrangement because [the Father] had been more available due to the lockdown restrictions, but now that things have returned to their previous level, that he leaves early in the morning and comes home late at night; it makes no sense to her that [the child’s] care should be compromised. [The Mother’s] plan is to be fully available to the children from 4:30pm; she told me that she has family close by to provide support and extra assistance if needed, that she can be there before and after school, and that way, provide direct ongoing support to the children.
…
[17]From [the Mother’s] perspective, the status quo arrangement that needs to be maintained is the status quo that she has been [the child’s] primary carer, that [the child] has lived the majority of his life with his mother and sister, and that because of his employment in Melbourne, that [the Father] has been, historically, a comparatively absent figure, although she acknowledged that [the Father] makes an effort, does prioritise [the child] when he is available, and that he is devoted to his son, although the reality is that his time is restricted, that he is limited in what he can do, and that the burden for the inconvenience caused falls upon [the child]. [The Mother] told me that is cannot possibly be good for [the child] to be regularly separated from his sister, and she questioned the benefit to them having a childhood so fragmented is a consequence of [the Father’s] work constraints. [The Mother] is concerned that [the Father] cannot place [the child’s] needs ahead of his own, that he cannot see the obvious benefits to [the child] of being more settled, in one place, in the care of a parent, and in the company of his sister. She told me that she was concerned that [the Father] continues to share with others in the community his concerns regarding her mental health, and seems not to recognise the harm that he causes to her by so doing. [The Mother] told me she finds it both hurtful and upsetting that she is constantly having to deal with the social fallout of his ongoing campaign of denigration and criticism of her and her family, and that he shows a lack of empathy and understanding for the impact of his actions upon both her and their co-parenting relationship. She feels that [the Father] through his actions conveys to her a lack of respect as a co-parent, does not recognise the importance to [the child] of them achieving a more constructive co-parenting relationship, or the extent to which his continued negative criticism and attack upon her is an impediment to them achieving a better outcome.
…
[19]... According to [the Mother], [the Father] worked long hours, he was away every day, he would leave for work early, come back late, and upon his return he was negative and critical. She explained how, at any point she expressed dissatisfaction with the relationship, that he would immediately attribute this to her having mental health problems, that her unhappiness and not his behaviour was the problem, and so he could never accept responsibility or a contribution to the relationship difficulties. She told me that they had no ability to discuss and negotiate, that [the Father] was unable to acknowledge her unhappiness, and that at no point could [the Father] consider her position. From [the Mother's] perspective, [the Father] was only focused on his own needs, could give no consideration to the impact of those needs upon others, and that the same is true now in relation to [the child] and the parenting time proposals that he is seeking to have consolidated. It is [the Mother's] concern that [the Father] is unable to acknowledge that the current arrangement is burdensome for [the child], or that it makes obvious sense for [the child] to be with her if not in the care of his father, and that his proposal is not sustainable in the long term.
[20][The Mother] told me that living with [the Father] became intolerable, that she felt constantly put down and constantly criticised; she described how for her, being in the relationship felt terrible, awful and suffocating. She told me she had been trying to separate for the 12 months before and that her mental health certainly did suffer in direct response to the stress of living with [the Father], but that as a consequence of the separation, and of her having become independent and having re-established herself personally and professionally, that her mental health had improved significantly.
…
[43][The Mother's] concerns also have considerable merit. She believes the current arrangement is excessive, places the burden for its continuation upon [the child], that it makes no sense from a developmental perspective, for [the child] to be cared for by someone other than one of his parents when one of his parents is available to care for him. [The Mother] places significantly and substantial importance not only upon her role as [the child’s] primary carer, but on the importance of [the child] and his sister having an uninterrupted and regular stable relationship over the course of their childhood. It causes to [the Mother] sadness and distress to think about her children being separated from each other, on a regular basis, over the course of their development, and in this regard, she believes it is essential that they spend as much time together as possible, and especially so during this age and stage of their development, and especially so prior to [the sister’s] adolescence when her focus will become more outside of the family. In this regard she can see an obvious benefit to [the child] spending more time with her, in the family unit, benefitting not only from continuity of parental care but his relationship with his sister and extended family, all of whom live close and fulfil an important role in [the child’s] life.
…
[47]It might well be argued that continuation of the current arrangement, that is, continuation of the status quo, is the least uncertain option and best reflects the observable reality that [the child] is doing well, that he has a good relationship with both his parents and that there is a well-established status quo. However, it is also inescapable that continuation of the status quo relies on people other than [the child’s] parents to provide care, and whilst it is true that a great many children utilise the services of bother before and after school care, and that there are realities of parental employment, commitments and other demands that impact on child care decisions, what is significantly different in this dispute is that [the Mother] is available to care for [the child] before and after school, that she has immediate family support and lives in dose physical proximity to his school and other activities. In support of her proposal, it could be argued that children should be cared for as a priority by their parents, when their parents are available to do so, and that whilst good enough care and good enough arrangements can be sustained, that there should be no confusion between what is good enough and what is optimal; and according to [the Mother], the optimal arrangement has [the child] cared for by his parents, with his time in the care of both parents maximised when his parents are actually available to care for him and especially so if this means that [the child] also maximises the time with his sister. According to [the Mother], the sibling relationship is important, as is reliance upon the trilogy of stability, consistency and predictability of care.
…
[48]…
ii.The second option is in favour of the proposal by [the Mother], that [the child] should be in the care of his father when his father is actually physically available to care for him, and whilst handing over key responsibility to third parties might be good enough it is not optimal, it is not necessary, and from her perspective, compromises the overall quality of care available to [the child]. It is not difficult to be sympathetic to [the Mother’s] concerns, and it is not difficult to argue that [the child] should preferentially be in the care of his parents in favour of care by third parties, and especially when his mother is available. Whilst both parents place considerable value on the importance of their role as [the child’s] primary carer and about the involvement they have fulfilled in the life of their son, my observation is that [the child] treats his parents as interchangeable; there can be no ignoring the importance of his relationship with his sister, and that the current arrangement will see them separated on a regular basis.
…
The Father agrees that the description of the position at paragraphs 4, 5, 6 and 35 of the psychologist's affidavit describes his position:
[4][The Father] maintains that he has been actively and equally involved in [the child’s] life, and that since August 2020, the current equal care arrangement has worked and worked well. Whilst he acknowledged that he leaves work early in the morning, he places an extremely high emphasis upon the quality of the time spent with [the child] and especially upon his return from work, describing [the child] as his unequivocal focus and priority during these times, and that the strength of his relationship with [the child] and the progress in [the child’s] overall health and welfare is testimony to the benefits of the current arrangement. At present, [the Father] engages a morning nanny, Ms M from 6:30am until commencement of school, and then an afternoon nanny, Ms N who collects [the child] from school and cares for him until his return from work at about 6:00pm. I note the afternoon Nanny is shared with [the Mother] during the time that [the child] is in his mother’s care.
[5]From [the Father’s] perspective, continuation of the current arrangement not only best approximates the history of his involvement in the care of his son, but ensures that he continues to fulfil a significant and substantial role in [the child’s] life. He described a well-established routine, in the midst of which [the child] has thrived. He told me that notwithstanding that he leaves for work at just after 7:00a.m., he and [the child] have a fixed pattern, and that in particular, in the afternoons, [the child] benefits from the individual attention provided to him by Ms N and a range of organised and specific activities. [The Father] emphasised that their routine upon his return from work at about 6:00p.m is of linchpin importance to [the child], including the reading of books, the telling of stories, and the laying together during quiet time until sleep time at about 8:15p.m.
[6][The Father] simply wants to maintain a well-established routine that respects the importance of the time and relationship he has with [the child]. From his perspective, he had thought that he and [the Mother] had reached agreement in mediation that would seek to maintain a well-established status quo, that recognised that [the child] was doing well, and that allowed for both him and [the Mother] to be actively, significantly and meaningfully involved in their son's life. Even though [the Father] understands that according to [the Mother], that [the child] appears unsettled upon his return to her care and that she believes that the fragmented nature of the parenting arrangement adversely impacts upon his relationship with [the sister], his observation is that [the child] is flourishing within the current arrangement, that he is in a good routine, and that overall if the current arrangement is working well, that there can be no benefit in changing it.
[35][The Father] is seeking maintenance of the status quo. Put simply, he feels that if it is not broken, then there is no need to fix it. His observation is that [the child] is moving easily and comfortably between the two homes, that he enjoys an established status quo, that he is comfortable and confident, that he has made the transition into primary school well, is enjoying the time with him, and [the Father] was confident that he could continue to organise himself and his professional life in order to support the equal care arrangement. [The Father] told me that he has established a new home and a new home office, such that his expectation is to work from home each Friday, and more as necessary, although it is his expectation that he will continue to commute to his city office on a regular basis.
I also note that the psychologist described the world view from X' position and his relationship with his parents at paragraphs 23, 24, 25 and 39, 40 and 42:
[23]When seen individually and then in the company of his parents, [the child] obviously related warmly, confidently and well. Even though when seen with his father he was tired and irritable, and ultimately the session was curtailed, there was no doubting that his father was a source of comfort, and that at this time of distress that [the child] actively sought his father's physical and emotional support and that this provided to him considerable reassurance, In the company of his mother he related warmly, easily, was overtly spontaneously affectionate, and I have no doubt that X has an excellent relationship with both his parents. When interviewed individually, [the child] spoke about the importance of his parents both being actively and equally involved in his life. He described living in two houses as part of what was normal to him, that he was happy with the arrangement, that he enjoyed the time spent with both parents, and was accepting of the current parenting arrangement and the support and assistance provided by the nannies in the morning in the afternoon as being his part of his normal routine; X described the nannies as kind and caring people, who look after him well, and that they were involved because his father had to work.
[24]Despite the extra care and support by the caregivers, [the child] clearly has his dependency needs met by his parents; he described his parents as emotionally and physically interchangeable, that they provide to him equal physical comfort, emotional support, an equal sense of safety and security, and in this regard, he identified both parents as his special people. Significantly, he described his parents as interchangeable, and that if he was stressed or distressed, or if he needed help or support, that he would go to them interchangeably, with the expectation that both would be immediately emotionally available to him. He for example told me that his parents best understand how he feels, that both provide to him warmth and affection, that he felt safe and confident in the care of both, and that he would turn to either if he needed comfort and reassurance. [The child] described both parents as kind, caring and loving, and it was his expectation that they would continue to be actively and equally involved in his life. He described a good relationship with his sister, and that he missed her when he wasn't with her.
[25]It was very clearly my impression that [the child’s] expectation was that something approximating the current arrangement would continue. He has adapted to the current arrangement, and it was his expectation that it would continue; he told me that he wanted to see both of his parents equally, and told me that living in two houses was enjoyable. [The child] told me that his mother was the parent who had looked after him for the majority and over the course of his life, but it was his expectation that both his parents would continue to be actively, equally and significantly involved.
[39]It is in my view significant that amidst his parents' conflict, [the child] is doing well. Even though both parents use the language of primary care and parental responsibility, the notion of primary carer is conflated in the sense that for [the child], his parents are interchangeable, both clearly present to him an equal source of having his dependency needs met, and he has an excellent relationship with them both. To [the child], neither parent is more or less important, both are perceived by him to be an equal source of trust, safety, security, confidence and affection, and he transitions between the homes comfortably and confidently. From [the child’s] perspective, he has accepted the new normal, he has accommodated to it, he feels confident with the routine, feels certainty with the care arrangements, described both the morning and afternoon carers as people whom he likes and upon whom he could rely; even though he would prefer for his parents to be together, he has accepted and accommodated to the new family circumstances. What does seem clear is that [the child] is settled with the new arrangement, that it is predictable for him, that he understands the movement between the homes, and it is his expectation that the shared parenting arrangement will in some capacity continue.
[40]From a child welfare perspective, the current arrangement is working well enough. [The child] understands the arrangement, moves comfortably between his parents, has made the transition into primary school well, and appears to be experiencing no difficulties. He has a good relationship with both parents, and he trusts and relies upon them both. It is apparent that he has an excellent relationship with his parents separately, and that notwithstanding what their concerns might be about each other, that they parent well enough, at a high enough level; from [the child’s] perspective, the notion of primary carer, or parental hierarchy is conflated by his parents and from his perspective, his parents are interchangeable, complimentary and of equal importance.
[42]Even though [the Father] has had concerns regarding [the Mother] and her mental health, the objective reality is that she seems to be doing well, that she is doing better since the separation, that the psychiatric and psychological data available suggests that her overall functioning is not currently compromised, and certainly not insofar as her parenting. My observations of her with [the child] were unequivocally positive, as was [the child’s] portrayal of her; notwithstanding that there is no effective communication between [the Father] and [the Mother], both are parenting well, at least as perceived through the eyes of [the child], and the lack of any substantial concern about [the child] is testimony to this, and from [the Father’s] perspective provides good reason for why the current arrangement should continue. It is [the Father’s] intention to work more regularly from home, establish for himself a home office and that way be even more available to care for [the child].
In regard to the controversial issue of the impact of the Mother's previous psychological and psychiatric treatment, I recite what Mr K has summarised as the position of Dr O, the psychiatrist, and Mr P, that is, paragraph 27 and 28 in regard to the psychiatrist:
[27]In relation to the ultimate question of diagnosis, Dr O concluded that [the Mother] has a recurrent depressive illness, with possible mood elevation suggestive of a Bipolar II diagnosis. She further comments that the prognosis is uncertain because the diagnosis is uncertain, although she also stated that [the Mother] was presenting well, that her short-term prognosis appeared positive, and that there were no obvious or immediate concerns in relation to her capacity to parent. Importantly, Dr O described [the Mother] as having made significant gains and so this obviously reduces the question of risk.
[28]At her most recent review in May 2021, Dr O described [the Mother] as calm and happy, that there was no suggestion of a psychiatric illness, and that there were no concern about her ability to function in her various social and personal roles, including in her capacity to care for the children.
The psychiatrist's prognosis (at page 40 of 43 attached to the Father's affidavit) is as follows:
Prognosis
The prognosis is unclear because the diagnosis is uncertain. As can be seen below, she has recovered and seems well. The prognosis for the short term is good but the long term prognosis is guarded.
Mr P's (the psychologist's) observations as summarised by Mr K at paragraphs 30 and 31 are relevant and as follows:
[30]Mr P identified a number of characterological vulnerabilities, including an inclination towards more negative self-evaluation and appraisal, but also highlighted the contribution of environmental stresses as having been a significant contribution to [the Mother’s] mood related difficulties. He described the relationship with [the Father] as having been a significant stressor identified by [the Mother], and especially in the period leading up to the brief hospitalisation in December 2019.
[31]Importantly, Mr P also described [the Mother] as having made significant gains and identified a number of protective factors. He did however, highlight that she is a perfectionist, and that she is consequently vulnerable to outside stressors, and especially those that are similar to the bullying and harassment that she experienced earlier in her life. I note the description by [the Mother] as often feeling criticised and demeaned by [the Father]. Mr P a1so noted that [the Mother] was particularly distressed by [the Father] portraying her as psychologically unstable and by having shared unfavourable information about her and her family in their local community, oblivious to the harm of having done so to her. Mr P concluded that [the Mother’s] mood had stabilised over the last 12 months, that she was managing the various stresses in life well, and that he was optimistic in relation to prognosis and had no concerns regarding her ability to parent.
I will make some comment now in regard to the issue of the nannies. It is central to the Mother's case that the arrangements for the child whereby the Father uses a nanny in the morning and in the evening when he works in Melbourne do not best advance the child's welfare. It was put by her counsel that this was described by Mr K as being "not optimal". It is clear that at times when the parties were together and at times when it suited both of them there was significant involvement of childcare and nannies in the child’s care. The observations of Mr K at paragraphs 45 and 46 are relevant and as follows:
[45]The two scenarios, that is, continuation of the status quo as proposed by [the Father], and a change in the arrangement such that [the child] spends more time in the care of this mother, have considerable merit and both make sense. It may be that a decision about how to proceed should be made on the basis of what offers the most in the way of long term sustainability. One of the more obvious difficulties with the continuation of the current arrangement is that it relies upon care being provided by people other than [the child’s] parents, and so comparatively, this arrangement means there must be less certainty and less permanence, compared to an arrangement that relies upon his parents and immediate family to provide the care for [the child]. The inescapable reality is that the proposal by both parents will rely on some extra care, although in the case of [the Mother], from between the completion of school and 4:30pm when [the sister] returns home. I also draw attention to how for other nannies, before and after school care arrangements are a necessity, and that from a child welfare perspective, that there is no adverse impact.
[46]In the Family Law vernacular, shared parenting is commonly used to reflect a minimum of 35% of time with one parent, which equates to 5 nights in a 14 night cycle. In this regard, equal care is just one type of shared care. All the indications are that [the child] is doing well in a shared care arrangement and that his parents, separately, provide for him at a high level. The polarities of his parent’s proposals reflects the dichotomous nature of what each considers to be important; both are correct.
I acknowledge that on the Mother's proposal, the child will spend more time with his sister than on the Father's proposal.
Turning to the relevant matters as to section 60CC, in the circumstances of the child’s age, I do not place any weight upon his wishes and views of the world. In regard to the nature of his relationship with each of his parents, I find that the child has a very significant and appropriate relationship with each of his parents and his sister, and I refer to the observations about Mr K's opinion that from the child’s point of view, his care in each of his parents is interchangeable.
I find that each of the child’s parents have taken every opportunity to participate in decisions concerning his welfare and to spend time with the child, and neither parent has failed to take any opportunity to participate in his life or spend time with him. I find that each of the parents have fulfilled and fulfil to a high degree their obligations to maintain the child. The key event is the likely effect of any changes in the child's circumstances, which is a matter that I must consider. The Mother's proposal is a very significant change from the current arrangement where in the opinion of the expert the child is able to do well and doing well to a high enough level. I note that there is a significant dispute between the parents as to the extent to which either of them were, prior to separation, what would be regarded as the primary carer; i.e. who did most of the work. For my purposes on an interim hearing, whilst interesting, it's an arid dispute that I simply cannot determine. In the circumstances of the very appropriate relationship that the child has with each of his parents it's not clear to me how determining that dispute would assist me in any event.
However, to my mind on this interim hearing there is a significant uncertainty as to how that change would impact upon the child. It's the Mother's case that the impact would be much for the better and the Father's case that this would be unsettling in the circumstances of an established regime. I am unable to find on this interim hearing that the Mother's position is correct and notwithstanding that from the expert's point of view there was substance in her position.
In terms of the next requirement under section 60CC, there is little practical difficulty or expense in the child spending time and communicating with each parent in either scenario. The Mother points to the circumstance that the Father's need to have a nanny before he travels to work in Melbourne and of an evening is a very significant matter that means his proposal is simply impractical in the full sense of that word when she is more available to care for the child.
The Father told Mr K that when he travels to Melbourne he would usually leave at about 6.30pm and he would usually get in at about 6:00pm. The records of the nanny show the variation of that during the 2021 year. It must also be noted that the father has announced to Mr K and to the Court and to the Mother his intention, now that he has a settled home office, to work from home more often and work in Melbourne less than previously. The Mother remains sceptical of that proposition in the circumstances of the demands upon the Father's time to maintain a busy and successful practice as a legal professional.
However, it's clear that in February on a number of occasions the nanny was involved in the Mother's household until about 5.30pm. It's clear that the nanny was involved in the Father's household for longer than that and, on occasions, it can be inferred by the three hours time from the school pickup of 3.15pm to 6.15pm. On other occasions the nanny has been involved in the Mother's household until 6.15pm and in the Father's household until 6.30pm. The nanny was frequently involved in the Mother's household until 5.30pm. On occasions, the nanny was involved in the Father's household until 7:00pm or 7.15pm but on other occasions as early as 5:00pm and also as early as 5:00pm in the Mother's household.
However, it's clear that the child will be cared for in the Father's household by the nanny for a longer period than the time that the mother utilised the nanny. In addition to that, there is the time before school. I take all that into account but I do not determine that the arrangements are impractical in the sense as contemplated by 60CC(3)(e). I find that both parents have an appropriate and excellent capacity to care for the child and to provide for the emotional and intellectual needs of the child.
The other significant matter is the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents. Both parents have demonstrated for the purposes of this interim hearing an appropriate attitude to the responsibilities of parenthood. I also note that the close and appropriate relationship that the child has with both parents reflects on their capacity and attitude to parenthood to the extent that each has, to this point in time, in practice (whatever the criticisms that each makes of the other) promoted a significant and meaningful relationship with the other parent. This is probably one of the most important aspects of parenthood.
In this case, despite criticisms of each parent's personality and behaviour at times, family violence is not a significant aspect and there is no family violence order. Both parties seek that I make an interim order. I am then to determine any other fact or circumstance that the Court thinks is relevant. It's part of the Father's case that the Mother's psychiatric and psychological condition is such that the Court should be concerned that she would not be able to cope if there was more than the week about regime. That is highly disputed by the Mother and for the purposes of this hearing I am unable to find that that is a relevant risk.
In the long run there may remain in issue each parent's psychological stability. I note that both parents have undertaken psychological treatment in the past, which demonstrates their maturity in seeking help and assistance rather than an aspect of risk to the care of the child.
I must now turn to the labyrinthine provisions of Part VII and, following the pathway, consider the consequences of equal shared parental responsibility. In this case the parties agree that there should be an order for equal shared parental responsibility and I do not need to determine whether or not “the presumption” should apply. In this case it may well be that the presumption would have applied. In the circumstance of equal shared parental responsibility I must consider, and consider positively as the legislation commands me to, section 65DAA. I must consider whether the child spending equal time with each of the child's parents would be in the best interests of the child, and I must consider whether that is reasonably practicable. In considering whether it's practicable, I must consider the matters set out in section 65DAA(5), which are:
(a)how far apart the parents live, and in this case they live, sensibly, close by; and
(b)the parents current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the child's parents.
In this case the parties have demonstrated since May of 2020 that, despite their criticisms of each other, they actually have the capacity to implement an arrangement of equal time. The issue in dispute between them is whether that is in the child's best interests. I must consider (c), which is the parents current and future capacity to communicate with each other and resolve difficulties that might arise in implementing such an arrangement. Notwithstanding the parents' criticism of each other, their shared high achieving backgrounds and level of education demands a level of common sense in their communications with each other about the child's arrangements.
There has been significant difficulty in the past sorting these things out, including which school the child will attend. However, sensibly, by the assistance of mediation, the parents have been able to sort those matters out. I must also consider the impact that such an arrangement would have on the child, and in that regard, I refer to those passages referred to above of Mr K the psychologist's opinion about the impact of the existing arrangement on the child. That is, he is doing well. I need to make it clear that I accept, for the purposes of this interim hearing, the observations and opinions of the psychologist. In those circumstances of being required by section 65DAA to positively consider equal time, I find that it is in the child’s best interest to spend equal time with his parents on this interim hearing until further order.
It is unnecessary for me to consider whether I would have made the same order absent section 65DAA(1).
THE PROPERTY INJUNCTION
The remaining issue is the issue of an injunction that the Father seeks: that of the three parcels of real estate that the mother has in Town C that I order her to sell one part. The Mother lives in a home that she purchased with the proceeds of her former property settlement and she is the owner of two other parcels of land. One of those parcels of land has a home on it which has been sold, and settlement will occur fairly soon, and it's expected to be in October. The Mother proposes to keep the third parcel of land which was once part of the property that is now being sold.
She wishes to keep that block of land. The Father points to the circumstance that, on the Mother's current income and his entitlement, or not so much entitlement but his likely outcome of a property settlement of some dimension, that the Mother will be unable to retain that property and that the Court should grasp the nettle and order her to sell it at this point in time. As I raised with counsel, I am concerned that I am, by way of a summary hearing, determining that the Mother cannot keep that property. At the moment it looks to be quite difficult as to how she would be able to do that.
However, both parties would be familiar with the concepts of summary judgment and the concept of Lindon v Commonwealth (No. 2) (1996) 70 ALJR 541, that is how on a summary hearing, something that looks to be uncertain may turn out to be better on a final hearing. Further, the Mother's circumstances, as she intends, may well improve. It is clear, or clear enough, that whether the Father agrees with it or not the Mother is working very hard to establish a legal practice from which she expects to support herself. Depending whether your cup is half full or half empty, she has been quite successful or unsuccessful. She has established a practice, established premises, and established a client base and made connections, including for referrals, and she has done that during COVID-19 times, which has simply had an enormous impact on any aspect of establishing a practice, including a legal practice. I do not require evidence as to the likely impact of the COVID-19 lockdowns and restrictions. I propose to regard that as a matter that I do not need evidence of pursuant to section 144 of the Evidence Act 1995 (Cth), that is, it is so common knowledge that it is not reasonably open to question. I do not require expert evidence of that.
On that view, the Mother has been quite successful in her practice so far. On the other hand, after more than a year in that practice, in addition to working developing real estate, she has not yet made any money. So on that view, if that was the test, she has not been successful so far. I dare say that if most of the self-employed legal profession applied that rule to themselves, that is if they were not making money after 12 or 18 months in it and then must seek alternate employment, that the number of self-employed legal professionals would be far less than what it is. Many people take some time to establish a practice.
That is a significant matter that by the time this matter comes to final hearing, the Mother's financial circumstances may well be significantly different, and she may be able to retain that property. For all of those reasons, I do not propose to order her to sell that now and close that option. The Mother proposed that she be permitted to borrow against her property to fund her legal expenses and service that debt herself, and I propose to make that order as I do not see any good reason to prevent that happening. On either party's view, the Mother will end up with far more than that borrowing.
The Mother also proposed to borrow the same amount effectively for the Father and have him service that himself, but he declined that opportunity for what are good reasons to him, and I will not challenge his assessment of that. Hence, I will dismiss the application to sell the property and I will permit the Mother to borrow as she sees fit.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 22 October 2021
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