Gane & Hogue
[2021] FedCFamC1F 139
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gane & Hogue [2021] FedCFamC1F 139
File number(s): BRC 10600 of 2019 Judgment of: HOWARD J Date of judgment: 18 October 2021 Catchwords: FAMILY LAW – PARENTING – where the mother has been the primary carer of a 9 year old boy – where the child has spent sporadic time with the father during the last 18 months – where the child has become opposed to spending time with the father – capacity of the mother to facilitate a relationship between the child and the father – risk to the child remaining in the care of the mother – where the mother lacks the capacity to facilitate a relationship with the father – where the father has the capacity and means to care for the child and promote a relationship with the mother – change of primary residence – child to live with the father – moratorium of mother’s time.
FAMILY LAW – PROPERTY – 14 year relationship – where the husband sought a separate pool in respect of his superannuation entitlement – where a one pool approach was preferred – contributions – where the husband’s earning capacity is significantly greater than the wife’s – future needs – justice and equity.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA, 65L, 70NBA Cases cited: Anson v Meek (2017) 57 Fam LR 23
Baghti & Baghti & Ors [2015] FamCAFC 71
Beckham v Desprez (2015) 55 Fam LR 310
Cox v Pedrana (2013) 48 Fam LR 651
Eagle & Scarlett(No.2) [2020] FamCAFC 29
Gorman & Huffman and Anor (2016) FamCAFC 174
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Moose & Moose (2008) FLC 93-375
Norbis v Norbis (1986) 161 CLR 513
Oberlin & Infeld [2021] FamCAFC 66
Rice v Asplund (1979) FLC 90-725
Stanford v Stanford (2012) 247 CLR 108
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Zaruba & Zaruba [2017] FamCAFC 91
Division: Division 1 First Instance Number of paragraphs: 152 Date of last submission/s: 1 October 2021 Date of hearing: 28, 29, 30 September 2021 and 1 October 2021. Place: Brisbane Counsel for the Applicant: Mr George Solicitor for the Applicant: Robyn McKenzie Solicitor Counsel for the Respondent: Ms Chekirova Solicitor for the Respondent: Sterling Law (Qld) Counsel for the Independent Children's Lawyer: Ms Lyons Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 10600 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GANE
Applicant
AND: MS HOGUE
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
18 OCTOBER 2021
THE COURT ORDERS UNTIL FURTHER ORDER in relation to parenting:
1.That the child X born … 2012 (“the child”) live with the father.
2.That the father have sole parental responsibility in respect of the child.
3.That the mother shall forthwith engage with a counsellor to address the issues raised (in respect of the mother) in the Reasons for Judgment delivered 18 October 2021 and for that purpose a copy of this Order and the Reasons for Judgment shall be made available to the counsellor.
4.That the child spend no time and have no communication with the mother for a period of one (1) month from the date of this Order.
5.That after the one month moratorium period referred to in the preceding Order and for the next four (4) months thereafter, the mother shall spend time with the child supervised at a contact centre on a weekly or fortnightly basis – according to availability.
6.That pursuant to s.65L of the Family Law Act 1975, the child forthwith attend upon an appointment with a Court Child Expert at the Federal Circuit and Family Court of Australia, Brisbane at Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane, for the purpose of explaining these Orders.
7.That the parties shall participate in the appointment only as directed by the Court Child Expert.
8.That upon the delivery of the Reasons for Judgment on 18 October 2021, the mother must forthwith vacate the Court building and the Brisbane CBD area.
9.That within one (1) month of the date of this Order, the Independent Children’s Lawyer shall provide to the Court and to the parties a draft final parenting order to reflect the Reasons for Judgment.
10.That the Independent Children’s Lawyer shall consult with each party’s legal representative in regards to the draft final order to reflect the Reasons for Judgment and the parties are required to attempt to reach a consent position in relation the wording of the final orders reflecting the reasons one (1) month after receipt of the Independent Children’s Lawyer’s draft in accordance with the preceding Order.
11.That in the event the parties are not able to agree on the precise wording of the final orders to reflect the reasons – the Independent Children’s Lawyer shall notify the Court and shall provide to the Court a draft order reflecting the reasons and in the event that either parent wishes to provide an alternate order (reflecting the reasons) – they have leave to do so provided that all aspects of this order are complied with within two (2) months of the date of this Order. If more than one (1) draft order is forwarded to the Court, then the Court shall make the final order in Chambers.
THE COURT ORDERS UNTIL FURTHER ORDER in relation to property:-
12.That within one (1) month of the date of this Order, the Applicant shall provide a copy of a proposed final property order (reflecting the Reasons for Judgment delivered 18 October 2021) to the Respondent and a copy of the same to the Court.
13.That within a further one (1) month after receipt of Applicant’s draft order, the Respondent shall provide any reply to the proposed final property order to the Applicant and a copy of the same to the Court.
14.That the parties shall attempt to reach an agreed position in relation to the wording of the final property order (reflecting the Reasons for Judgment delivered 18 October 2021) and shall send a copy of same to the Court no later than two (2) weeks after receipt of the Respondent’s reply in accordance with the preceding Order.
15.That in the event the parties are unable to reach an agreed position in relation to the wording of the final property order (and send a copy of same to the Court) within the time frame stated in paragraph 14 above herein – then both parties shall forward to the Court their proposed final order (reflecting the reasons) and the Court shall make the appropriate order (best reflecting the reasons) in Chambers.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Gane & Hogue has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J:
Background
The Applicant in this case is Mr Gane born in 1974. He is currently employed as a public servant.
The Respondent in this case is Ms Hogue born in 1980. She was born in Europe. She migrated to Australia at the age of 19.
The parties commenced cohabitation in October 2004. The parties married in 2010 and separated on 7 December 2018.
There is one child of the relationship who is the subject child in these proceedings – X born in 2012. X is currently 9 years old.
The child currently attends school at the C School.
After separation, the parties entered into a Parenting Plan on 7 February 2019. That Parenting Plan provided that the child live with the mother and spend time with the father for 3 nights in week 1 and 2 nights in week 2.
On 5 September 2019, the father filed an Initiating Application in the Federal Circuit Court of Australia (as it was then known) seeking a recovery order on an ex-parte basis, and sought interim orders that would see the Parenting Plan arrangements continue (in broad terms).
On 29 October 2019, the matter was listed for a first return date before her Honour Judge Tonkin and Orders were made by consent. Those orders provided that the child would live with the mother and spend five nights per fortnight with the father.
Her Honour made further orders on 10 December 2019 by consent for the location for non-school changeovers to be varied and further ordered the appointment of an Independent Children’s Lawyer and directed that the Independent Children’s Lawyer prepare a Family Report and convene Family Dispute Resolution Conference between the parties.
The matter came back before her Honour on 27 March 2020. On that day the time the child spends with the father was varied but still provided for five nights a fortnight with the father and holiday time et cetera.
After the Orders were made on 27 March 2020, difficulties had well and truly arisen in the child spending time with the father. As will become apparent, the parties have, through the course of the litigation, largely placed the blame on the other parent. Regardless, the child’s relationship with the father has become strained and the significant and substantial time ordered did not occur.
Because of the problems with the child spending time with the father – the father filed an Application in a Case (on 15 May 2020) seeking that the Orders dated 17 March 2020 be varied and that the child spend time with the father for one hour each Tuesday, Thursday and Saturday each week, with the time eventually leading up to each alternate weekend.
On 11 June 2020, her Honour Judge Tonkin made the following Order:-
“THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1. The orders made on 27 March 2020 shall continue until further order save for the following variations.
2. Order 5 of the Orders made on 27 March 2020 be varied to read as follows:
a. The child, X born … 2012 shall spend time with the father as agreed between the parties in writing and failing agreement as follows:
i.Commencing from 12 June 2020 until 25 June 2020 each Tuesday and Thursday from after school until 4.30pm and each Saturday from 3.00pm until 4.30pm;
ii.Commencing from 26 June 2020 until 6 July 2020 for up to four (4) hours each Friday, Saturday and Sunday from 3.00pm;
iii.Commencing from 7 July 2020 until 23 July 2020 each Friday from 3.30pm until Sunday 3.30pm;
iv.Commencing from 24 July 2020:
1.In Week 1, each alternate weekend from after school Friday (or 3.00pm on non-school days) until before school Monday (or 9.00am n non-school days)
2.In Week 2, each alternate week from after school Monday (or 3.00pm on non-school days) until before school Wednesday (or 9.00am on non-school days).
3. Order 7 of the Orders made on 27 March 2020 be varied as follows:
b.On Tuesdays and Thursdays, the father shall collect the child from school at the commencement of time and deliver the child to the mother’s residence at the conclusion of time;
c.On Saturdays, the father shall collect the child from D Street, Suburb E at Location G at the commencement of time and shall deliver the child to the mother’s residence at the conclusion of time.
4. The mother is hereby restrained from remaining at the changeover location or the school following changeover.
5. The Independent Children’s Lawyer shall arrange for the parties and the child, X born … 2012, to attend upon Mr F on 2 July 2020 for the purpose of the preparation of a family report addressing the issues identified in section 60CC of the Family Law Act 1975.
6. The proceedings are adjourned to 20 August 2020 at 9.30am for Mention only in the Federal Circuit Court of Australia at Brisbane.
7. The parties are to notify the Registry if they have any safety concerns in relation to any Court attendance.”
The matter returned before her Honour Judge Tonkin on 20 August 2020. On this day, her Honour transferred the matter to this Court (previously known as the Family Court of Australia) and her Honour made the following order:-
“THE COURT ORDERS THAT:
1. The mother shall strictly comply with all previous orders and in particular Order 4 of the Orders made on 11 June 2020 prohibiting her from remaining at the changeover location or the school following changeover.
2. The matter be transferred to the Family Court of Australia at Brisbane on a date and time to be advised to the parties.
IT IS NOTED THAT:
A. It is requested that this matter be given priority due to the mother’s continued noncompliance with orders and there being no capacity in the Federal Circuit Court of Australia to hear the matter until 2021.”
On 11 June 2020, an order had been made restraining the mother from remaining at the changeover location. The father alleges that prior to 11 June 2020, it had been the mother’s presence and actions at the changeovers which had precipitated the child’s reluctance to go into the father’s care. Her Honour’s orders of 20 August 2020 again re-affirmed the need for the mother’s compliance with the earlier order that stipulated that the mother not remain at the changeover.
The father filed an Amended Initiating Application on 1 June 2020 seeking that the child live with him, that he have sole parental responsibility and that there be a six month moratorium of time between the mother and the child.
What transpired in the litigation over the next 6 to 8 months was a series of Orders which attempted to try and re-kindle the relationship between the father and the child. On 22 October 2020, Senior Registrar Spink made certain orders leading up to (once again) an arrangement of five nights per fortnight with the father – along with holiday time.
The first changeover took place at the Court’s Child Dispute Services as contemplated by the orders of the Senior Registrar dated 22 October 2020. However, the situation deteriorated when the parties were tasked with changeover between themselves. The child again ceased spending time with the father. On 10 November 2020, the Senior Registrar made further parenting orders after hearing from the parties, including:-
“1. That these proceedings be expedited to trial.
2. That the child X born … 2012 (“the child”), spend time with the father from 6.00pm Friday 13 November 2020 until before school Monday 16 November 2020 with the changeover on 13 November 2020 to occur at the H Contact Centre.
3. That for the purposes of Order 2 the father collect the child from the H Contact Centre at 6.00pm on 13 November 2020 and the mother is ordered to ensure that the child is available for collection at 6.00pm on 13 November 2020 by the father at the H Contact Centre.
…”
The child spent time with the father over the weekend of 13 November 2020 but did not recommence regular time in accordance with the previous orders of 22 October 2020. The Senior Registrar was then again seized of the matter on 14 December 2020. Upon hearing from the parties once more, the Senior Registrar made the following comprehensive suite of Orders:-
“THE COURT ORDERS UNTIL FURTHER ORDER:
1. That commencing 14 December 2020 the child, X born … 2012 (“the child”), spend time with the father as follows:
a. From 3.00pm on 2 January 2021 until before school on 27 January 2021;
b. From after school on 1 April 2021 until 5.00pm on 8 April 2021;
c. From after school on 25 June 2021 until before school on … 2021; and
d. And during the school term Each alternate weekend from after school Friday until before school on the following Tuesday, with such school term time to commence on 5 February 2021.
2. That all changeovers from the father to the mother, unless the child is at school, are to occur at the carpark of Hungry Jacks Suburb K located at J Street Suburb K or such other place as agreed between the parties in writing.
3. That the changeover on 2 January 2021 from the mother to the father is to occur at L Contact Centre located at M Street, N Town or such other place as agreed in writing by the parties and:
a. The parties are ordered to forthwith undertake the intake process at L Contact Centre to be completed by 17 December 2020; and
b. At the changeover the mother and/or her agents are to hand the child over and leave immediately.
4. That in the event that the child does not go into the care of the father on 2 January 2021, the mother is to present the child to Child Dispute Services (“CDS”) at the Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane at 9.00am on 13 January 2021 and leave the Court precincts immediately once the child is to presented to CDS.
5. That for the purposes of the implementation of Order 4,:
a. The father is to advise the Independent Children’s Lawyer by no later than 4.00pm on 6 January 2021 that the child did not come into the care of the father on 2 January 2021;
b. The Independent Children’s Lawyer is to advise the Director of CDS, Brisbane (by email to …@familylawcourts.gov.au) that the father will collect the child from CDS at 9.00am on 13 January 2021 by no later than 4.00pm on 11 January 2021; and
c. The father will arrive at CDS by no later than 8.30am on 13 January 2021;
d. The father’s time with the child will cease on 27 January 2021 when the father takes the child to school; and
e. The Family Consultant who facilitates the changeover on 13 January 2021 is requested to provide a short report in relation to the changeover.
6. That during the school term, commencing 5 February 2021, changeovers from the mother to the father are to occur with the father to pick the child up from school on school days or on non-school days at the carpark of Hungry Jacks Suburb K or such other place as agreed in writing between the parties with the mother ordered to hand the child over and leave immediately.
7. That the mother and/or her agents are not to attend within 100 meters of the school or the after school care on days that the child is going into the father’s care or days the child is to remain in the father’s care.
8. That the mother is to ensure the child attends school on days when he is to go into the father’s care except in the event that the child is unwell with the mother to produce a medical certificate to the father setting out the precise nature of the medical condition.
9. That the mother is prohibited from attending the father’s home without the written consent of the father.
10. That the parties are restrained from discussing with the child or providing the child with a copy of the email from Ms B to the Independent Children’s Lawyer dated 9 December 2020.
11. That the mother is to provide the financial disclosure required by Order 4 of the Orders made 10 November 2020 by no later than 4.00pm on 8 January 2021.
12. That by no later than 5.00pm today, the mother is to provide to the father by text message nominating two dates each with a three (3) hour time window between 8.00am and 5.00pm for the father to engage a removalist to attend P Street, Suburb E to collect:
a. All camping equipment, tools, deer antlers, tool benches, standalone storage shelves and sporting equipment including the husband’s mountain bike, bike helmet, bike shoes; and
b. The husband’s kickboxing trophies, personal photos, books, DVDs and CDs.
13. That these proceedings be listed before a Registrar for any further directions that are required in relation to the financial matters at 11.00am on 12 February 2021 in the Family Court of Australia at Brisbane.
14. That the appearance of the Independent Children’s Lawyer on 12 February 2021 be excused.”
Importantly, the Senior Registrar’s orders contained a failsafe order for the father’s time with the child – wherein the child was to be assisted by a Family Consultant (now known as Court Child Experts) of the Child Dispute Services of the Court should the child refuse to attend the first block of time ordered to occur on 2 January 2021. The child did not attend time with the father on 2 January 2021. As such, the child attended upon the Family Consultant on 13 January 2021. Despite the child’s reluctance, he was again able to transition to the father’s care with the assistance of the Family Consultant and spent time with the father until 27 January 2021. A Memorandum was prepared by the Family Consultant (Ms CC) on 13 January 2021. I note what Ms CC said in her Memorandum under the heading “Future Directions”:-
“The exchange of X between his parents remains an emotionally charged event for X and for his parents. Ms Hogue reports she is encouraging X to attend time with his father, however X believes that he is in control of the decision making. X presents as a child who requires strong boundaries to assist him in managing his behaviour. X is currently very aligned with his mother he is likely to respond in an agitated manner to any ambivalence that she has towards him spending time with his father.
Whilst X reports he wants to be the decision maker, as an eight year old boy he does not have the emotional resources or the maturity to take on this burden.
The exchanges between the parents will continue to be stressful for X whilst he is of the belief that he is responsible for making a positive decision to spend time with his father. The stress is likely to be magnified if he is moving directly between his parents rather than from a neutral setting such as the school.”
The movement of the child between the parents in accordance with the Court’s orders without the assistance of the professionals in the Child Dispute Services of the Court itself continued to be an issue. It still remains one of the central issues in this matter. Ms CC highlighted that the child seemed to be under the impression that it was he who dictated the time he spends with his father. Ms CC noted that X (an eight-year old boy) was not equipped to take on the burden of deciding whether he should be seeing his father or not. The situation has been altogether unsatisfactory for this child.
The father did not spend time with the child after returning him to school on 27 January 2021 in accordance with the Senior Registrar’s orders until 3 September 2021 (but for attendance at some counselling). The matter came before me for a Trial Management Hearing on 30 April 2021 and 1 June 2021. Directions were made for this matter to be listed for a final hearing. The matter was initially due to commence for a final hearing on 20 September 2021, however due to listing changes within the Court – the matter commenced for a five day final hearing on 28 September 2021.
The matter was recently before me on 3 September 2021 upon on the Application of the Independent Children’s Lawyer filed 1 September 2021. The most recent Family Report in this matter (prepared by Ms Q) was released to the Independent Children’s Lawyer on 30 August 2021 and made recommendations (in broad terms) that the child live with the father, that the father hold sole parental responsibility and that the child spend time with the mother supervised at a contact centre. The Independent Children’s Lawyer held concerns as to the potential impact and risk to the child should the Family Report be released to the parties.
The matter came before me on 3 September 2021 for a Case Management Hearing and I heard from the parties’ legal representatives and made a direction that the mother attend upon a Court Child Expert (formerly known as Family Consultants) so the family report and its contents could be explained to the mother. The mother attended upon the Expert and the report was explained to her that day. The matter returned again before me in the afternoon of 3 September 2021 and I heard from the parties further as to the Independent Children’s Lawyer application that the child live with the father pending a final determination. After hearing from the parties, the Court made the following order:-
“THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the father shall collect the child X born … 2012 (“the child”) from Child Dispute Services located at level 3 of the Commonwealth Law Courts, 119 North Quay, Brisbane today, 3 September 2021.
2.That the mother is to promptly leave the Court building after Court concludes on 3 September 2021.
3.That the child shall spend time with the father from 3:00p.m. today, 3 September 2021 until before school on Tuesday, 7 September 2021 pursuant to the Order made by Senior Registrar Spink on 14 December 2020.
4.That the mother shall deliver a school uniform for the child at the child’s school on Tuesday, 6 September 2021 prior to 8:30a.m.
5.That the Independent Children’s Lawyer shall be at liberty to provide Family Report of Ms Q to Ms B, Psychologist.
6.That the Family Consultant is permitted to provide a copy of the family report prepared by Ms Q to the mother.
7.That the child X born … 2012 (“the child”) be and is/are hereby restrained from leaving the Commonwealth of Australia.
8.That it is requested that the Australian Federal Police give effect to the preceding Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of two (2) years.
9.That upon expiration of the period referred to in Order 8 and subject to any further Order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the Watch List.
10.That this matter remain adjourned for Final Hearing to 10:00a.m. on 28 September 2021 in the Federal Circuit and Family Court of Australia in Brisbane.
IT IS NOTED:
A.The Court indicated to the father that it is in the best interests of the child for the child to remain home from school on Monday, 6 September 2021.”
Again, with the assistance of the Court Child Experts, the child went into the father’s care and spent time with the father in accordance with Order of 3 September 2021. That order in fact did no more than re-state Senior Registrar Spink’s order of 14 December 2020.
In her trial affidavit filed 16 September 2021, the mother gave evidence that the child has now expressed that he will go to spend time with the father. The mother proposed that X spend additional time with the father to re-establish their relationship before final orders are made. As such, the mother (through her counsel) on 28 September 2021 sought an adjournment of the matter at the commencement of the final hearing. The adjournment was opposed by the Independent Children’s Lawyer and the father. The Court heard from the parties on 28 September 2021 and the application for an adjournment was dismissed. Reasons were delivered on the day.
The matter proceeded before the Court over 4 days from 28 September 2021 to 1 October 2021. The parenting application under Part VII of the Family Law Act 1975 (Cth) (“the Act”) occupied much of the Court’s time. The parties also sought property settlement under s.79 of the Act. That property application was commenced by way of the mother’s Response to the Initiating Application filed 24 October 2019.
The parties read and relied upon the material listed in their respective case outline documents.
The Independent Children's Lawyer tendered a bundle of documents. This was marked Exhibit 1. The bundle comprises 228 pages. I made it clear to all three counsel appearing (Mr George for the father; Ms Chekirova for the mother and Ms Lyons for the Independent Children’s Lawyer) that the Court would accept the bundle as an exhibit – but I also made it clear that I would take no account of any of the pages included in the bundle unless those pages were specifically referred to in the oral testimony or in the course of the submissions. All three Counsel indicated to the Court that they accepted this approach.
PARENTING
It is important to note that the father’s position has changed on several occasions since the commencement of the proceedings. I am talking here about the father’s view in relation to the time that the child should spend with each parent on a final basis. In the Initiating Application filed by the father on 5 September 2019, the father sought an equal time order. In the Amended Initiating Application filed on 1 July 2020, the father sought that the child live primarily with him and spend alternate weekends with the mother from after-school on Friday until commencement of school on Monday. In relation to that particular proposal, the father had sought a build-up of the mother’s time to ultimately (during the school term) reach the position stated. In the father’s Further Amended Initiating Application filed 17 August 2020, the father again sought a build-up of child’s time with the mother to alternate weekends from after-school Friday until commencement of school on Monday. That was the document read by the father at the commencement of the proceedings on 28 September 2021. On 13 September 2021, the father filed a case outline document. In his case outline document, the father sought orders (in broad terms) that the child live with him and, initially, there be a six-month moratorium in respect of the child’s time with the mother. Following the six-month moratorium, the father proposed supervised time at a contact centre. After six months of supervised time at a contact centre, the father proposed day time unsupervised visits for the child with the mother. The father then proposed that the child’s time with the mother would progress to alternate weekends from after school on Friday until the commencement of school on Monday and half of all school holidays.
The father gave evidence on the first day of the hearing, being 28 September 2021. When being cross-examined by counsel on behalf of the Independent Children’s Lawyer, the father indicated to the Court that he was seeking that the child would live with him and there would be a six month moratorium of the child’s time with the mother. Thereafter, the father said that he sought orders that the child’s time with the mother would be supervised at a contact centre but that it would graduate to unsupervised daytime visits. Next, the father proposed unsupervised overnight time which would progress up to an equal time arrangement (note the Transcript of 28 September 2021, page 45, lines 1 to 7).
On the morning of Wednesday, 29 September 2021 (day 2 of the trial) Mr George, counsel on behalf all the father, handed to the Court what he called, “an amended copy of the final orders being sought my client” (page 77 of the Transcript of 29 September 2021, lines 15 and 16). Page 78 of the Transcript reveals (from line 1) that the Court sought clarification from counsel for the father. I note the following exchange: –
“HIS HONOUR: Just bear with me. I just want to check something with the court officer. So these amended final orders being sought by the father, they’re in line with what he said in the witness box, are they?
MR GEORGE: Yes, your Honour.
HIS HONOUR: Thank you. They will be exhibit 3.”
Exhibit 3 was marked as, “Amended Final Orders being sought by the father”. I had specifically asked counsel whether the “Amended Final Orders being sought by the father” were in line with what the father had stated in the witness box. As can be seen, counsel confirmed that was correct. That was not correct at all. The crucial aspect relating to the final orders sought, of course, related to what time the father was seeking that the child would spend with the mother. Paragraph 10 of the orders contained in the father's case outline document filed 13 September 2021 is identical to paragraph 10 of Exhibit 3. Paragraph 10 of both those documents stated:-
“10. At the conclusion of time spent pursuant to paragraph 8(c), the Mother spend time with the child as follows :
a. each alternate weekend from after school on Friday until the commencement of school on Monday; and
b. half of all school holidays.”
It was not until oral submissions on Friday, 1 October 2021 that the position was clarified on behalf the father. At that time, my attention was drawn to the fact that Exhibit 3 did not in fact include a “50-50” arrangement notwithstanding that the Court had been told that Exhibit 3 reflected the father’s evidence in the witness box. On several occasions, I made a reference to the fact that the father was seeking orders that would lead up to a 50-50 arrangement (see for example the Transcript of Proceedings at page 190, line 44; page 249, line 10; and page 276, line 27). At no time did counsel for the father correct me. Furthermore, neither counsel for the Independent Children’s Lawyer nor counsel for the mother brought this matter to the Court's attention. That is not surprising. Both of those counsel heard the father’s evidence about a 50-50 arrangement and both counsel would also have heard Mr George’s comment that Exhibit 3 reflected the father’s evidence in the witness box. The cross examination by counsel for the Independent Children’s Lawyer of the parents, in my view, reveals that counsel of the Independent Children’s Lawyer was also working on the basis that the father was seeking orders that would lead to a 50-50 arrangement (see for example Transcript of Proceedings at page 45, lines 1-15; page 191, lines 4-15).
In the circumstances of this case there was no lasting harm done by the failure (no doubt inadvertent) by counsel for the father to draw to the Court's attention that, in fact, Exhibit 3 did not reflect the father’s evidence from the witness box. The evidence in the case speaks for itself. The counsel for the father clarified the position during submissions. Indeed, by the time of the submissions, the father’s position had changed again. By the time of the submissions, the father was seeking an order that the child’s time with the mother remain supervised and that there be no further order progressing the child’s time with the mother beyond that. This is also the order sought by the Independent Children’s Lawyer.
The final submission made by the father was that all of the mother’s time had to remain supervised. It was said, on behalf of the father, that this changed position came about because of the expert evidence and the mother’s evidence of the witness box. In my view, the father did not, at any stage, adequately explain why it is that his position had changed so dramatically from his case outline (and Exhibit 3) to his insistence that the mother’s time remains supervised. At the time the trial commenced – the father already knew what the experts had stated in the written reports. Ms Q did not deviate from her written opinion. Furthermore, the father already knew that the mother had, over a long period of time, failed to comply with Court orders. The father knew that the mother was obstinate and the father knew that the mother was not willing to co-parent in a co-operative manner. It is true that the mother did not present well in the witness box. But the father was well aware, before the commencement of the trial, that the mother’s personality made co-operation very difficult and the father already knew that the mother’s approach to the post separation parenting was extremely problematic. It is for these reasons that I do not accept that the father has adequately explained the change in this position. Is it because the Independent Children’s Lawyer seeks a final order that the mother’s time with the child be supervised? If the answer to that question in the affirmative – that is not an adequate explanation for the Court of the change in the father’s position. In any event, the father’s proposal at the conclusion of the trial was to the effect that the child live with him and that the child’s time with the mother should remain supervised.
By the time of the trial, the mother (in broad terms) sought parenting orders that would see X living with her and spending four nights per fortnight with the father – from after-school Friday until before school Tuesday. The mother also sought orders with respect to holiday time and other special days. The mother further seeks an order for equal shared parental responsibility. There was (apparently) a misstatement in the mother’s orders sought. The mother’s counsel, Ms Chekirova, clarified for the Court that the mother’s primary position was that the child should remain living primarily with her and spend five nights per fortnight with the father from after-school Friday until before school Wednesday. This was not clarified until part-way through the trial. As will be noted, the mother did provide a secondary proposal in the event that the Court came to the conclusion that the child should live primarily with the father.
The Independent Children’s lawyer (as noted) seeks an order that X live primarily with the father and that X’s time with the mother remains supervised. Both the Independent Children’s Lawyer and the father seek an order that the father have sole parental responsibility.
Section 60CA
Section 60CA of the Act states:-
“60CA Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC
Section 60CC of the Act states that how it is that a Court is to determine what is in the best interests of a child.
The primary considerations are included in section 60CC(2). That section states:-
“(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
Before delving further into the evidence, it is as well to note the following principles:-
(a)The Court is not required to refer to every piece of evidence and the Court is not required to make findings in relation to all of the facts that have been put in issue by the parties. The Court is only required to determine “those facts that are necessary for the determination of the issues between the parties”: Baghti & Baghti & Ors [2015] FamCAFC 71 at paragraph 63; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at paragraph 62;
(b)The Court is not required to decide every matter that is raised by a party during argument and the Court is not required to traverse every argument advanced by the losing party: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 per Mahoney JA at page 385-386; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at paragraph 62; and Eagle & Scarlett(No.2) [2020] FamCAFC 291 at paragraph 103; and
(c)There is no requirement that the sections of Part VII of the Act be considered in any particular order: Cox v Pedrana (2013) 48 Fam LR 651 from paragraphs 29 to 31; Beckham v Desprez (2015) 55 Fam LR 310 at paragraph 31.
The first stated primary consideration (Section 60CC(2)(a)) relates to the benefit of the child having a meaningful relationship with both of the child's parents. The child’s time with the father has been limited since the time of separation. The parties agreed on a parenting plan following separation. By that plan, the child was to live primarily with the mother and spend 5 nights per fortnight with the father. The plan was followed from 7 February 2019 until approximately 20 August 2019. This is the father's evidence. I accept his evidence. During this period, the child also lived for six weeks with the father during April and May 2019. The mother stopped the child’s time with the father on 24 August 2019. The father then filed proceedings. An Order was made by the Federal Circuit Court of Australia (as it was then known) on 29 October 2019. It is important to have close regard to the evidence of the parties in relation to what occurred in August 2019. In his trial affidavit (filed 30 August 2021) the father states as follows:-
“60. I was concerned for the welfare of Ms Hogue and X and I rang back and sent text messages that I would call 000. I called 000 and requested an ambulance be sent to Ms Hogue 's residence . I drove there. Ms Hogue swore at me for calling the ambulance and said she had passed out due to anxiety .
61 . On 11 August 2019 at about 7.30pm Ms Hogue came to my home without asking and disrupted X's bedtime routine by knocking on the door and demanding X be allowed to sit in her car. As X had seen her at the door I let him sit with Ms Hogue and asked her to make it for five minutes. Ms Hogue kept him in her car for over twenty minutes.
62. On numerous other occasions since separation Ms Hogue has demanded to come and see X at my home. I repeatedly asked her to let him have his time with me uninterrupted.
63 . On 18 August 2019 Ms Hogue sent me the following text message: “As of Monday 19/8 im no longer interested in following the parenting plan that we have in place. Propose a different plan that is covering and addressing our current issues.”
64. On 24 August 2019 Ms Hogue refused to allow X to spend overnight time with me when he was to stay with me under the parenting plan. X told me “mum said I can't stay with you because you won’t answer her questions.” From 24 August to 5 October Ms Hogue allowed X to spend limited time with me on weekends during the day only if I met her conditions. No overnight time was allowed.
65. On 27 August I received a further text: “X will be based in this house until court decides otherwise”.
66 . I did not wish to expose X to conflict and decided not to try and take him from school or after school care.
67. On 5 September 2019 I filed an Initiating Application in the Federal Circuit Court seeking parenting orders.”
I accept this evidence from the father. The interim orders made on 29 October 2019 were in fact made by the Court – with the consent of the parties. The consent orders (at least in relation to the living arrangements) reflected the parenting plan to the extent that the child was to live primarily with the mother and spend five nights per fortnight with the father.
The child spent time with the father in accordance with those orders until Christmas Day 2019. During the periods of time that the child was with the father, the mother telephoned X every night. Not surprisingly, this disrupted the routine of the father's household. The mother’s view was “X should be able to choose”. That evidence is contained in paragraph 76 of the father’s trial affidavit. At that point in time, X was 7 years old.
It is apparent from the father's trial affidavit (including, but not limited to, paragraphs 64, 70, 72, 74, 76, 77 and 78) that the mother was involving the child in the dispute between the parents. The mother was discussing adult issues with the child. I accept the father's evidence in this regard.
Around this time (in December 2019) the father inadvertently provided the child with a dose of “Zyrtec” (in respect of a rash). Apparently the mother had already provided the dosage for the day. The mother accused the father of “double dosing the child”. I accept the father’s evidence in this regard. The father did not intend to cause the child any harm. Indeed, there is no evidence that the child did suffer any harm. Unfortunately, the mother latched onto this incident and repeatedly sought to maintain that the father had intended to harm the child. That is the effect of the mother’s position. I reject the mother’s assertions in this regard. This is an example of the mother’s intransigence. The mother has acted unreasonably in relation to this issue and this is one of the reasons why the Court has concluded that the mother will need to attend counselling over an extended period of time. I will have more to say about this aspect later in these reasons.
I note the following evidence from the father in his trial affidavit:-
“83. On 23 December 2019 Ms Hogue refused to bring X to the changeover location, which forced me to go to her back fence which I accessed through the car park at the school. Ms Hogue opened the gate and X willingly walked about eighty metres by himself across the park from the back fence to me.
84 . On Christmas Day 2019 Ms Hogue refused to come to the changeover location to collect X and threatened to call the police for asking her to comply with the court order. She texted me "I'm calling the police and it will be sorted."
85. X told me that Ms Hogue had told him the changeover location was now the park behind Ms Hogue's house. When Ms Hogue did not come to collect X I took him home with me.
86. When Ms Hogue agreed to collect X two hours later I took him to the changeover location and changeover occurred without incident , although X was sad and I believe he was confused as to why it was late .
87. After X returned to Ms Hogue she texted me to say that X did not want to stay with me now. Parts of the text read as follows:
"This was the LAST TIME I LET YOU put X and myself through this conflict today.”
"I have suffered another panic attack because of you.”
"My son is scared and upset now. You will not use him ever again to bully me into what you want. X is scared and crying now and said that he won’t be staying with you again. You are a piece of shit and I hate you for what you have done to my child".
88. On 26 December 2019 Ms Hogue sent me a text which in part states "no I won’t be following orders ".
89 . Since 27 December 2019 X has refused to come with me.”
I accept this evidence from the father.
On 27 December 2019, the mother sent a text to the father with a photograph of a letter that the child had written to the father. This text message containing the photo of the letter appears on page 1 of Exhibit 4. The letter (as best can be ascertained) states that:-
“Hey dad I dow not wantto stay with you because your mean and lie on me lid to me forst me. So yar.”
The reference to “lie on me” is interpreted by the parties and by the Court to mean “lie to me".
This is another clear example of the mother involving the child in the parenting dispute and adult issues generally. This is an example of the mother’s lack of insight. The evidence surrounding this incident leads me to conclude that the child (more likely than not) was told by the mother that this letter would be sent to his father. During December 2019 and January 2020 the mother repeatedly failed to facilitate the child’s time with the father. I note paragraph 99 of the father’s trial affidavit:-
“99. On 22 January 2020 Ms Hogue accused me of changing the password for my Netflix account to which I had allowed her continued access. On the following day I spoke to X and Ms Hogue’s fence and he said to me “you changed the Netflix password dad mum says so; you’re a liar; why do you want to sell the house dad?” X told me he asked me this “because mum said you want to sell the house”. X was very angry and said “shut up liar” and “don’t come back to see me”.
Again, this is an instance of the mother involving the child in the adult dispute.
In February 2020, the child accused the father of having a girlfriend and accused the father of lying (note paragraph 107 of the father's trial affidavit).
Throughout 2020, the child’s time with the father was very limited – despite the fact that there were in place various sets of Court orders which provided that the child would live with the mother and spend five nights per fortnight with the father. In relation to the calendar year 2021 – the position remained much the same. Notwithstanding the existence of Court orders – the mother did not facilitate the child’s time with the father. In relation to this aspect of the evidence – I accept the father’s version of events. To the extent that there is any discrepancy between the father’s evidence and the mother’s evidence – I accept the father’s evidence. He was a much more impressive witness. The mother was extremely vague in providing her testimony. On a large number of occasions, the mother simply could not remember what had or had not occurred.
Senior Registrar Spink had made a comprehensive set of orders on 14 December 2020. As part of those orders, child was to spend time with the father from 2 January 2021 until 27 January 2021. The Senior Registrar, correctly foreshadowed difficulties and even put in place a mechanism to facilitate a changeover at the Court on 13 January 2021 – in the event that the child had not gone into the care of the father on 2 January 2021. The mother appears to have shown up at the Court on 13 January 2021 and the boy did into the care of the father. This is because the mother had not complied with the first part of the orders and made the child available for time with father from 2 January 2021. When questioned about this in the witness box, the mother provided no adequate explanation for her conduct. Indeed, the mother seems to be at a loss when trying to recall the events. She did not seem to indicate that she even knew that she had been required to effect a changeover on 2 January 2021. This was a very clear example of the vagueness of the mother’s memory. An example of her unreliable conduct in relation to the co-parenting relationship with the father.
I have, of course, had close regard to the mother’s evidence in relation to all of these issues and in relation to the periods of time mentioned including – up including throughout the calendar year of 2021. Nothing much changed during 2021 and the child’s time with the father continued to be very limited. The child remained strongly opposed to the idea of spending time with the father. All of this changed on 3 September 2021.
3 September 2021
Despite his previous aversion to spending time with the father, the parties both gave evidence as to the child’s recent change of attitude towards his time with the father. X was returned to the father’s care with the assistance of the Court Children’s Services on 3 September 2021 after the Court made orders that essentially enforced the order for time that was to occur in accordance with the previous orders of Senior Registrar Spink on 14 December 2020. The father gave evidence from the witness box on 28 September 2021 that the child returned to his care with relatively little trouble. The mother on that day was directed to leave the Court precinct. The father gave evidence that the mother left the building but remained across the road at a nearby café.
The most recent family report was written by Ms Q. It was filed by leave on 3 September 2021. The family report writer recommends a change of primary residence from the mother to the father. The Independent Children’s Lawyer was concerned as to the mother’s reaction and requested that the Court list the matter on 3 September 2021. That is how the parties came to be at Court on 3 September 2021. On that date, I ordered that a Court Child Expert (formerly known as Family Consultants) explain the family report to the parents. I also ordered that a Court Child Expert explain to X that he was required to leave that day with his father to spend the weekend with him in accordance with the orders that had been made in December 2020. It was from that time that the child’s attitude changed completely. Ms Q was questioned about this when she gave her oral testimony on 30 September 2021. From page 228 of the Transcript, I note the following evidence:-
“MR GEORGE: The evidence before the court is that the mother has given evidence that there has been nothing she has done, either by word or deed, in my words, that has, in her mind, occasioned the change in X and that it has all been X. The further evidence is that she doesn’t see that there’s any need for her to do anything in the future to change. Does that accord with your observations?
MS Q: Definitely not. X tends to be very close to his mother. And understandably so. He’s been in her care for a lengthy period of time and she’s been his primary caregiver when he was younger while Mr Gane was working. But Ms Hogue tends to rely, I believe, a lot on X and what he chooses to do or not do. I think, in some ways, Ms Hogue’s inactions have actually hindered some of the progress of X repairing that relationship. And, you know, by suggesting that her remaining out of that is going to continue this good progress, I think, would be quite pre-emptive of – yeah, history repeating itself because she has been so removed from it for quite some period of time from what I could see, given the information that I perused. I would be very cautious to say that that would be the case.
HIS HONOUR: Can I just clarify that answer there?
MR GEORGE: Sure.
HIS HONOUR: So, Ms Q?
MS Q: Yes.
HIS HONOUR: Mr George – his question was really two-fold. The first thing was the mother says there’s nothing she’s done to bring about this current change in X. And then Mr George went on to say – and basically, the mother doesn’t think she needs to do anything in the future. And you did – you’ve addressed the second part. In terms of the mother’s evidence that there’s nothing that she’s done to bring about the change in X, can you proffer any comment in relation to that?
MS Q: Well, all I have in my knowledge is that the court had made interim orders that X spend time with his father. It’s possible that maybe she had had a word with X, but I’m speculating so
HIS HONOUR: I appreciate that. Earlier, you said:
It could be that a weight has been lifted from his shoulders. He no longer has to make tough decisions that would upset his – that might upset his mother.
Do you remember when you gave that evidence?
MS Q: Yes.
HIS HONOUR: What could possibly be the way in which a weight has been lifted from his shoulders?
MS Q: So I guess, from what I could observe, a lot of what X had spoken to me about was admitting his feelings with his Mum being hurt by Mr Gane’s actions, which spoke to me about, you know, X feeling that his mother’s emotional health – he needs to protect that, which is often seen in children who are emotionally parentified, as I explained in my report. There is a co-dependent kind of relationship where the child doesn’t often make decisions – well, if left to make those decisions, doesn’t make decisions that will upset that parent because they can identify the emotional vulnerability, I guess, in the parent. So if I go back to that, there’s an element for X, I believe, that having seen the hurt and upset that his mother has experienced at the breakdown of the relationship and everything that has happened between herself and Mr Gane, I think that – and the conflict as well. You know, X was very upfront with me in saying that he had been there, that his mother would say – state things like, “I hate Mr Gane”, or call him an idiot in his presence, or directly to him. And these were things that X offered willingly. I only asked him about what his mother asked him about his time with Dad. And I think, for X, if he is then getting negative feedback such as that, a way for him to protect himself from then having to upset his mum if he sees that she’s going to be upset further if he chooses to go with his father, then the easiest way to say is “Well, I don’t want anything to do with Dad” and then not do it. So for him, having somebody else then make that decision so then he doesn’t have to go, well you know, “I’ve made this choice, I want to have a relationship with my father”, he can then say, “Well, this wasn’t my choice” in his own mind, and not have that emotional impact of possibly offending or hurting his mum, or upsetting her, if he chooses to do that.
HIS HONOUR: So really, what you’re saying is the decision made by the court on 3 September, including the direction to a family consultant to explain the orders to the child – in that way, you think it’s certainly possibly that the weight was lifted from his shoulders because it didn’t have to be his decision?
MS Q: Yes.”
The change in the child from 3 September 2021 onwards has been remarkable. He has spent time with the father – not only on the weekend commencing Friday, 3 September 2021, but each alternate weekend thereafter. The mother has not really demonstrated that she has the capacity to understand that she ought to provide a positive framework for X in respect of his relationship with his father. The mother must encourage the child and speak positively about the father to the child. This is where the extensive counselling that the Court will be ordering will be of great benefit to the child – and, consequently, to the mother and, consequently, to the child.
The opinion of Ms Q provides the most likely and, indeed, the most plausible explanation as to X’s “change of heart”. The weight was lifted from his shoulders (as described by Ms Q) by the Court insisting, on 3 September 2021, that the child spend the weekend with the father. The Court’s insistence in this regard was explained by the Court Child Expert – a professional person whose expertise in these situations provides an invaluable service to the families in this jurisdiction
But Ms Q did note that the good progress that has been made will only be maintained if (I infer from the evidence of the expert) the mother receives counselling, gains some much needed insight and skills and proceeds to positively encourage the child’s relationship with the father.
The opinion of the family report writer remains the same in terms of the primary living arrangements for the child. In her written report (annexed to her affidavit filed by leave on 3 September 2021) the family report writer stated that, in her opinion, the child needed to change residence from the mother to the father. Furthermore, the opinion is that the father assume full decision-making responsibility for the child. The full written recommendations of the family report writer are contained on pages 41 and 42 of her report. They are as follows:-
“1. Based on this assessment, it is respectfully recommended that:
a. Mr Gane assume full parenting and decision-making responsibility for X;
b. Ms Hogue receive communication and report cards, but not permitted to attend the school.
c. Mr Gane and X to attend joint and individual therapy sessions, with a psychologist who specialises in working with children and family law matters, a psychologist X has rapport with being preferred.
d. Ms Hogue have supervised time with X at a contact centre, on a schedule as guided by his treating therapist.
e. Ms Hogue refrain from speaking about Mr Gane negatively, any name calling or comments about Mr Gane's parenting when having time with X.
f. Ms Hogue seek psychological support in relation to her own mental health, with the practitioner to be provided a copy of this report and a full psychological assessment completed.”
It is apparent from the written family report (and it is obviously the case) that X’s change of heart was not known when the family report was written.
The Court can have much greater confidence that a change of primary care for X will go much more smoothly – having seen the evidence of the change in X since 3 September 2021.
I note that in paragraph 221 of her family report, Ms Q wrote:-
“221. In conclusion, there are several issues in this dispute, however of most significance is X’s fractured relationship with Mr Gane because of Ms Hogue’s continued interference. It is unclear whether a change of residence for X would be successful in repairing the relationship with Mr Gane at this time, or whether it will further worsen X’s rejection of Mr Gane. However, what is very clear, if X remains with Ms Hogue, her continued involvement in controlling X’s relationship and influencing his opinions and experiences will continue to have a significant detrimental impact on X's emotional, social and psychological wellbeing and prohibit his ability to develop this relationship in any capacity. Not only does X currently have very fractured relationships with Mr Gane, but he has an unhealthy relationship with his mother, fractured relationships with family, and poor relationships with peers and other adults who will be able to provide any support to him in the future.”
The evidence is quite overwhelming. The mother has not acted reasonably and has displayed a stunning lack of insight. The vitriolic nature of the text messages contained in exhibit 4 – are evidence enough of the unhealthy and extremely negative attitude of the mother towards the father. The mother had no reasonable explanation for the appalling content of her text messages to the father.
Despite Court orders – the mother has failed to engage with a mental health professional to assist her. She seems to have seen one or two psychologists on perhaps a few occasions – it seems no more than four occasions in total. Clearly, the mother requires much more intensive counselling. This much is clear from the evidence of Ms Q and also from the evidence of Ms B.
I accept the evidence of the Ms Q that, essentially, if the child remained living in the primary care of the mother that he would be at significant risk of emotional and psychological harm. I note from page 230 of the Transcript on 30 September 2021 the following evidence:-
MR GEORGE: Ma’am, in the combination of those two paragraphs, am I correct, if I were to make a submission to the court, that you are of the very strong opinion that X is at significant risk of emotional and psychological harm if he remains in his mother’s care?
MS Q: Yes. I do believe that, particularly if he’s prevented from having relationship – or a healthy relationship with other adults that he could seek help with, or that will be there to support him in the future. And that will trickle down to his peers and other areas of life.”
Ms Q also supported the idea of a moratorium of time. Ms Q thought it better to err on a lengthier period of time, perhaps one or two months (page 230 of the Transcript lines 40 – 45). The expert (Ms Q) also gave support to a proposal that was put to her verbally by Mr George on pages 231-232 of the Transcript. So far as the child is concerned, the crucial aspect of Ms Q’s evidence on page 232 of the Transcript is where she stated from line 11:-
“MS Q: I would definitely suggest it’s the in the best interest of X, rather than bringing it back to court and putting him back through this process again.”
Ms Q had been talking about the proposal suggested by Mr George where, essentially, the mother’s time was going to be supervised, but with the obtaining of various reports, the father may have had the capacity to agree to an increase in time et cetera. Ms Q made the point that the father’s ultimate goal was to have a 50-50 shared care arrangement with the mother in the future (page 232 of the Transcript, lines 21-22).
It is this opinion of Ms Q to which I will return – namely the best interests of the child will be served by avoiding a situation where the parties continue to litigate.
At page 223 of Exhibit 1, there is an email from Ms B addressed to the parents. The Independent Children's Lawyer (Ms Mala Chong Wah) has also been copied in on the email). In that email, Ms B provided some optimistic news following her most recent session with X. That email provides feedback in relation to the session that occurred between the child and Ms B on 10 September 2021. Ms B has stated in that email:-
“…
By way of brief feedback, X appeared to be in a good and relaxed mood today. We discussed the events of the last week. We worked on how to manage big emotions and I was really pleased to hear he had successfully used some of our previously discussed strategies during this past week (while he has been with mum) to help himself calm down. We worked on anger and how it’s not healthy to hurt people when they hurt us. We also worked on forgiveness when someone wrongs us using examples of times when he has needed to forgive someone and when others have needed to forgive him.
In short he’s decided that both parents have ‘wronged him’ the same number of times now and therefore his is prepared to perhaps start again with a clean slate for both parents and give both parents another chance. He said such things as ‘they are both as bad as each other’ and ‘I can’t trust anyone’ and ‘the Judge has the power to tell us what to do and the Judge won’t listed to parents so they won’t listed to a kid, so I may as well just go to dads’. He did not seem as angry about these constructs as he has previously so I wonder if this is his way of ‘saving face’ as he changes his attitude.
He is still learning to trust that dad won’t hurt him again but he can see dad is really trying. He said the weekend was ‘okay’ and even ‘good’ and he was not uncomfortable over the weekend in any way. He did not want to talk to mum over the weekend because he was really mad at her. He is still angry at mum for ‘lying’ (breaking her promises to return him on Friday no matter what) but he said matter of factly that he is prepared to forgive her in the next two weeks. We spoke about how sometimes people don’t intentionally lie but rather they make promises they cannot keep or they keep information from you to protect you. When he spoke fondly of his weekend with dad, he volunteered that he is going home with dad when dad comes to get him from school next Friday 17th. He indicated he has no hesitation, fear, worry or resistance about going home with dad next Friday.
…”
The most important aspect of this evidence of Ms B is the reporting from young X. The child “spoke fondly of his weekend with dad”. The child also “volunteered that he is going home with dad when dad comes to getting from school next Friday 17th”. Further, the child “indicated he has no hesitation, fear, worry or resistance about going home with dad next Friday.”
This evidence from Ms B, which I accept, supports the view that I have formed that the child will be able to transition to the primary care of the father. The orders will have to be explained to the child on the day they are pronounced. Recent events have given the Court confidence that not only is a change of primary care in the child’s best interests – but it is likely to be occasioned without undue upset on the part of the child. To put it another way – child is very likely to accept the situation as decided by the Court.
I accept the mother’s evidence that she, herself, is relieved that X has had a change of heart. The mother had wanted to adjourn the trial in order to reinforce X’s positive progress. For reasons that were delivered ex-tempore on 28 September 2021 – the adjournment application was dismissed. But the point is – I accept that the mother is relieved that the child’s vehement reluctance to spend time with the father has disappeared. This will undoubtedly reduce a stress in the mother’s life. But the mother’s oppositional approach and her inability to comply with orders previously has left the Court in no doubt that there does need to be a moratorium of the child’s time with the mother. The Independent Children’s Lawyer and the father have both proposed a one-month moratorium and I agree with that approach. It is within the parameters of the opinion stated by Ms Q. The overwhelming weight of the evidence pointed towards a change of the child's primary care. During oral submissions, counsel for the mother (Ms Chekirova) – clearly acting on instructions (and understandably so) continued to make submissions to the effect that child should remain with the primary care of the mother and spent five nights per fortnight with the father. I did ask Ms Chekirova to obtain instructions as to an alternative set of orders – in the event that the Court came to the conclusion that the child’s primary residence should change. There was a short adjournment and instructions were obtained by counsel for the mother. When the Court resumed, Ms Chekirova submitted that the mother’s primary submission remained the same – a 9-to-5 arrangement with the child living primarily with mother) but that by way of a secondary position – if the Court came to the conclusion that the child should live primarily with the father – the mother proposed the following orders (by way of broad outline):-
(a)That the mother engage with a psychologist, Ms R (or such other psychologist if Ms R is not available);
(b)That there be a moratorium of 4 weeks;
(c)That the mother then engage in ongoing therapy with the mother and the child with Ms B for a period of two months on each fortnight;
(d)That the mother engage in further therapy with Ms B which includes both parents and the child over a further two months each fortnight;
(e)That thereafter the abovementioned therapy sessions, the child spend supervised time with the mother at L Contact Centre (or such other contact centre as may be available) for 2 hours each week for a period of two months;
(f)That the child then spend unsupervised time with the mother each Sunday from 9:00am until 5:00pm for a period of two months;
(g)That thereafter, the child spend time with the mother every second weekend from after school Friday until before school Monday;
(h)Half school of all school holiday periods;
(i)Orders for special days etc.
As will be seen, this broad outline of orders sought by the mother (as a secondary position) are much closer to the Court’s conclusion in relation to the best interest of X.
The primary issue in relation to this case relates to the risk to the child remaining in the primary care or, indeed, in the unsupervised care of the mother. The family report writer’s written report went no further than supervised time for the mother – but the oral testimony of the family report writer indicated that she (Ms Q) was at least hopeful of a return to unsupervised time for the mother. There is no doubt that if unsupervised time could be achieved – with a sufficient amelioration of risk to the child – this would be in the best interests of X.
Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
It is convenient at this stage to refer to some other aspects of the evidence. The family report writer (Ms Q) recently interviewed Ms B. Ms B is a psychologist who has been working with X since November 2020. The child has displayed anger and hostility to Ms B stating “Dad cheated on mum and lied to mum” (paragraph 120 of Ms Q report) Ms B noted that the mother was “hostile and defensive in sessions, particularly where Mr Gane was present and demonstrated a lot of eye rolling and scoffing or she perceived she was being blamed” (paragraph 122 of Ms Q report).
It is apparent from Ms B’s interview with Ms Q that the mother has not accepted that she has a role to play in repairing the relationship between the child and the father. I note that at paragraph 125 of the family report, Ms Q reported:-
“125 Ms B stated Ms Hogue has articulated that Mr Gane is the only one who can fix-the situation and it is his fault. Ms B stated she has tried educating Ms Hogue about the messages X receives about his relationship that will support the relationship to repair, however she says she is supportive of this but does not action tasks or strategies provided”
This lack of insight from the mother was apparent also during her whole testimony during the course of the trial.
So far as the Court is concerned some hope emerged when the mother agreed that she was relieved after 3 September 2021 when X’s opposition to spending time with his father disappeared. The fact that the mother (via her counsel) has proposed an alternate set of orders which include a moratorium of her time, along with a change of residence for the child and significant counselling for the mother – leads the Court to conclude that the mother may, at last, be gaining some insight. It may be observed that this change in the mother’s approach has come at the 11th hour – and not until that point in time when both the Independent Children’s Lawyer and the father had made it clear they were seeking orders that the mother’s time with the child not progress beyond supervised time. After many years of hearing cases in this jurisdiction, I can only say – better late than never.
It is undoubtedly correct that the mother needs to access therapy and needs to come to terms with the important role that that her conduct will play in the long-term happiness for X. Much of X’s conduct occurred for the benefit of his mother. I note paragraph 127 of the recent family report when the family report writer noted:-
“Ms B stated it is difficult to gauge what is genuine from X in relation to his feelings for his dad and what is for Ms Hogue's benefit and there has been noted behaviour changes and incidents that have occurred when he has been aware of Ms Hogue presence.”
Prior to the dramatic change in approach emanating from the child from 3 September 2021 onwards – there were some glimmers of hope noted by Ms B and reported by her to Ms Q. I note paragraph 126 of the family report where it is stated:-
“126. Ms B stated X has moments where he "forgets himself'' and will engage openly with Mr Gane, but these are short lived. Ms B stated X's tone with Mr Gane changed earlier in the year when they had time together and was much better.”
Both of the experts who have been recently involved with this family, namely Ms Q that Ms B, provided glowing reports in respect of the father and his attitude and his ability to deal with a difficult situation. There are views of the father accord with the impression gained by the Court. This father has the necessary skills to parent the child on a full-time basis. The father also has the skills to ensure that the child has a relationship with the mother.
Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The child was interviewed by Ms Q on 5 July 2021. At that point in time, the child was maintaining his very negative views concerning the father. It was clear enough at that point in time that the child’s stated views were that he wanted to live with the mother and have very little – or nothing to do with the father. Things have changed. I have already made reference to the email from Ms B dated 10 September 2021. To reiterate the child’s current view is that he has “no hesitation, fear, worry or resistance about going home with dad next Friday”. I acknowledge that the Court does not have up-to-date evident from the child in relation to his preferred primary living arrangements. But the evidence in this case is so overwhelming that not a great deal of weight could be placed upon any particular stated wish of the child in that regard. The child’s best interests are so obviously going to be served by a change of primary residence.
X’s change in attitude gives the Court confidence that when the Court makes the order that X is to commence living primarily with his father – once it is explained by the Court Child Expert – the child will accept the situation.
Section 60CC(3)(b) – the nature of the relationship of the child with:-
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child).
The child’s relationship with the father has been significantly strained – as referred to earlier in these reasons. Fortunately, there has been a change in the child’s attitude. There is certainly cause for optimism – noting the recent email from Ms B.
The child’s relationship with the mother was described by the family report writer from paragraph 185 of the recent report. From paragraph 185, the report writer has stated:-
“185. X has a close relationship to his mother, which is expected given he has spent more time with Ms Hogue whilst Mr Gane has been at work and residing separately. Despite this, Mr Gane and the paternal family state X had a very good relationship with Mr Gane prior to relocating from the home. X has spent progressively less time with Mr Gane and the relationship has deteriorated with X refusing to have time with Mr Gane, expressing that he "hates" him and doesn't want anything to do with him. Additionally, X is expressing anger and hurt towards Mr Gane, however the reasons for his statements appear to be extraneous at times, reverting to rely on "he hurt mum and me" or being able to only provide simple examples that did not appear to necessarily correlate to the statements he has made, such as Mr Gane engaging in child abuse for one incidence of smacking, or his parenting being inappropriate by encouraging X to try new foods.
186. Whilst it is expected for children to have some disruption and change to relationships when parents separate, most children can maintain existing positive relationships with parents. However, for children where the primary parent is emotionally vulnerable, children may feel compelled to provide emotional support for the parent and play the role of confidante and consequently placed in the position of becoming involved in adult issues. This can create worry and stress, and possibly result in rejection of a parent, particularly if a child feels conflicted, confused, or pressured to take sides.
187. Emotional parentification is where children assume the role of confidante and emotional support for parents, usually when parents have little to no support of their own to draw on. ·Parentification disrupts the natural process of maturation, negatively affecting the child’s mental health in the longer term, gives a child an inappropriate sense of authority;·development of mistrust of others and difficulty in identifying and pressing their own wants, needs and separation from the parent. Furthermore, continued stress over time, can create changes in the brain structure, such as the hippocampus that regulates memory, emotion, and stress management and has a long-term impact on the child's ability to function independently.
188. Ms Hogue denies involving X in the issues of the separation and conflict between herself and Mr Gane, however, X has significant knowledge beyond what is appropriate for a child of his age about Mr Gane's infidelity, new partner, Mr Gane telling Ms Hogue he would call police if she didn't leave his premises and Ms Hogue's emotions. X sated his mother tells him "all her secrets" and holds an opinion that it is his right to know about his parent's issues as his mother tells him "everything" and that his father is a "liar" as he does not divulge all information. X has further been noted in filed and subpoenaed material to make several statements to the effect of "mum said", "mum hates Mr Gane", suggesting Ms Hogue has not only used X as an emotional crutch, but to convey messages to Mr Gane.
189. Furthermore, Mr Gane provided numerous examples of Ms Hogue holding X for emotional comfort when dysregulated and speaking of the conflict in X's presence. X also made statements during interviews and in subpoenaed materials stating Ms Hogue has told him not to let go of his hand and being present when conflict has occurred and witness to his mother's emotional difficulties in relation to his time with Mr Gane. Furthermore, X stated Ms Hogue says she "hates Mr Gane", calls him an "idiot" and even attacked him with a rake, suggesting Ms Hogue demonstrates open hostility towards Mr Gane despite X being present. Ms Hogue demonstrates mistrust of Mr Gane by continuous check ins and control over X even when in Mr Gane's care, and reinforces X' s current position that Mr Gane is inconsequential and not necessary in his life.
190. X's choice of words during interviews also appear to be enmeshed with Ms Hogue's to support his stance and rely on these reasons for refusing to have time with his father. X would refer to himself and his mother as a shared entity, such as "he hurt mum and me", "mum and I hate Mr Gane" and X's statements did not appear to necessarily reflect his own independent lived experiences. X also appeared to have a somewhat conflicted view of Mr Gane's role, flipping between the use of "Mr Gane" and "dad" when speaking of Mr Gane and following up with "I mean Mr Gane" several times after realising he had referred to Mr Gane as "dad", appearing that he needed to remind himself.
191. In addition, X holds a very rigid opinion of Mr Gane and held a perspective that Mr Gane's parenting actions were unreasonable and detrimental to him if he did not agree. X's opinions appeared to have little substance when asked how he formed these views, such as "he yells at me" and when asked about this X stated one occasion Mr Gane told him to "come back" when he wandered off. X would also revert to simple statements of "I hate Mr Gane", "he is a liar" and "hurt mum and me", as an avoidance tactic to answering questions further questions.
192. X is noted in subpoenaed documents to refer to Mr Gane as a "forcer" and that Mr Gane has forcibly picked X up and placed him in the car when he has had time scheduled, which X did not like. Whilst in high conflict scenarios this could be construed as detrimental and forcing a child to have time with a parent, from interviews and information provided, Mr Gane's actions appear to be focused on removing X from conflict or Ms Hogue's emotional dysregulations and preventing X from being exposed to inappropriate conversation.
193. Ms Hogue and X's statements and language were mirrored throughout interviews, at times using exact phrases or words in relation to Mr Gane, such as "he is mean". In context together with X's inability to provide further context to his conclusions or opinions are suggestive that this is likely a coached dialogue. Furthemmore, examples X was able to give were vague, limited or did not appear appropriate or rational, and when pressed for further information, X would then revert to his repeated behaviours of avoidance, suggesting that X' s opinions may not necessarily reflective his of his own genuine experiences, but likely adopted from things he has been privy to or told.”
It is not appropriate for the Court to put in place any form of orders that would only permit a progression in the child’s time with the mother (for instance) upon the filing of an affidavit by a psychiatrist (or some other counsellor/therapist) and nor is it appropriate for an order to be put in place that would only allow progression in time, upon the father’s say-so. Either of those scenarios would amount to an abrogation of the Court’s responsibility.
During oral submissions the first proposal from the Independent Children’s Lawyer (and the father) included a notation to the effect that the father would not raise the rule in Rice v Asplund (1979) FLC 90-725 in any future proceedings. This was within the context of the draft order which went no further than supervised time for the mother. I drew the parties’ attention to the decision in Oberlin. At paragraph 44 in Oberlin the Full Court stated that:-
“44. One final comment should be made. Notation B made by the primary judge is meaningless. Notations are not orders. The judgment of the primary judge is embodied only in the orders (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64), which are explained in the reasons for judgment. Apparently, the notation is intended to record an admission that the parties will not raise Rice and Asplund as an impediment to the mother’s institution of fresh proceedings after the elapse of about two years. In the first place, it is not at all clear from the transcript that the father ever even made such an admission. In fact, the reasons for judgment firmly imply that he did not (at [380]). But even if he did, admissions can be recanted. They do not endure indefinitely. If it be imagined that, in two years’ time, the mother commences fresh proceedings but the expert evidence which is then available tends to show her psychological condition has not improved and the circumstances have therefore not materially changed, why would it not be proper for a party to contend for the invocation of the Rice and Asplund guideline and seek dismissal of the mother’s fresh application, regardless of what is recorded in Notation B? Clearly, the terms of the notation cannot preclude a party’s legitimate recourse to applicable legal principles.”
Such a notation is meaningless. The Independent Children’s Lawyer and the father then deleted the notation. This left the Independent Children’s Lawyer and the father in a position where the orders they seek from the Court would see the mother's time supervised on an indefinite basis. Such an approach has been considered on many occasions by the Full Court. The Court must be very cautious before making an indefinite supervised time order. This much, was acknowledged by the Full Court in a decision entitled Moose & Moose (2008) FLC 93-375.
The Full Court also turned its mind to this issue in Gorman & Huffman and Anor (2016) FamCAFC 174. Murphy J at paragraph 300 provided a helpful summary as follows:-
“300. In summary, what emerges from the authorities by way of guideline when orders for supervised time are in contemplation is that:
a. Consideration of a time or condition by which supervised time should cease is a relevant consideration in the exercise of the best interests discretion in making such an order;
b. As a consequence, the failure by a trial judge to take account of that relevant consideration may constitute discretionary error attracting the intervention of this Court;
c. Alternatively, if, having considered and rejected such a limitation, an order for indefinite supervision is made, the failure to consider or make an additional order whereby the indefinite order can be revisited in the future, may be indicative of discretionary error; and
d. Given that, by operation of the Act, “final” parenting orders can be revisited in any event (usually conditioned upon satisfaction of the “rule in Rice v Asplund”), the failure of a trial judge to provide reasons why any future change to the order is left to a party pursuing that right, as distinct from the orders providing a mechanism for the orders to be revisited, may constitute a failure to provide adequate reasons.”
In the exercise of the best interests discretion – the conclusion I have reached is that an order for indefinite supervised time in the current case is not appropriate. It is not in the best interests of X. It will (as noted earlier) absolutely guarantee that there will be further litigation concerning the parenting arrangements for this child. This is not in the child’s best interests. Ms Q is very clear on this point. I do take the view that it is possible to put in place orders that are in X's best interests that include a significant period of supervised time, but also then progress to unsupervised time. There continues to be safeguards built into the system. For instance, if the mother fails to comply with the orders – by, for instance, failing to engage with the therapist – an application could be brought (by the father) for contravention. The Court always then has the power (if the Court deems it appropriate) to vary the earlier final parenting order (note section 70NBA). The mother (in her alternate set of orders) acknowledges that she requires counselling. The mother must comply with the orders in relation to counselling. Her failure to do so may result in a finding that she has contravened the orders. A finding that the mother has contravened the orders may result in the Court varying these final parenting orders and putting in place some different final order. If at all possible future litigation should be avoided. The best way to achieve that is to avoid an order for indefinite supervised time and avoid any orders that purport to repose judicial power in some other person or specialist.
Having regard to the totality of the evidence of Ms Q (her written report along with her oral testimony) I did not discern that it could be construed that she had provided any strong support for an order for indefinite supervision of the child’s time with the mother. It must be remembered that Ms Q’s written report was completed prior to the change of circumstances after 3 September 2021. Ms Q was clearly of the view that it would be in X's best interests for both parents to be engaged fully in the life of the child. This cannot be done in the supervised context. I acknowledge that Ms Q was concerned that the mother needed to lift her game. There can be no doubt about that. There will be orders in place which the mother must comply with relating to counselling. This will be within the context of a moratorium of time and change in the primary care arrangements. In broad terms, all of these matters were contemplated by the mother in her alternate set of orders.
Section 61DA
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The presumption of equal shared panel responsibility has been rebutted. The mother's conduct is such that it leads the Court to conclude that it would not be in the best interests of the child for the parents to have equal shared panel responsibility. The father must have sole parental responsibility. This would be patently obvious from these Reasons for Judgment.
65DAA(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Whilst it is not expressly necessary to do so – I would note that the communication between these parties has been so poor that an order for equal time or substantial and significant time cannot really be contemplated. It is not in the child's best interests for there to be such orders. Again, this much will be apparent from these Reasons for Judgment.
The child’s schooling
I agree that the child will have to change schools. This will be necessary to fit in the father’s home life and work schedule. The father will be the primary carer.
In addition to those reasons, there is also the aspect that the mother has continually shown up at the child’s current school (C School) at changeover time and when she had been ordered not to be there.
As to when the child should be enrolled at the new school (at Suburb U) will be a matter entirely for the father. He will need to weigh that up.
A final order will be made in the near future. There will be an interim order operative immediately upon the delivery of these Reasons for Judgment. The child will have to move immediately to the primary care of the father. This can be explained to the child by a Court Child Expert on the delivery of these Reasons for Judgment. There will also need to be an explanation of the child in relation to a moratorium of time with the mother. The Independent Children’s Lawyer should circulate a draft of the proposed orders (reflecting these reasons) and ask the parties’ lawyers for comments. The parties will be required to attempt to reach a consent position in relation to the wording of the final orders – reflecting the reasons. In the event that the parties are not able to agree on the precise wording of the final orders, then the matter will be relisted on that aspect alone.
PROPERTY
It is convenient at the outset to turn to what the High Court said in Stanford v Stanford (2012) 247 CLR 108:
“37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property”. The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.”
The parties in this case began living together in October 2004. They were married in September 2010 and they separated in December 2018 – although they remained living under one roof until February 2019. The parties no longer live together. Both parties ask the Court to make a property adjustment under s.79. It is just and equitable that the Court make an order for property settlement.
Property pool
I find the property pool to be as follows:-
ITEM OF PROPERTY
OWNERSHIP
VALUE
NON-SUPERANNUATION ASSETS Real property P Street , Suburb E, QLD Husband $660,000 V Street, City W, NSW Husband $159,500 Household contents Wife’s house contents Joint $2,000 Husband’s items, camping, fishing, tools bike Husband $1,500 Husband’s Deer Antlers Husband $500 Husband’s house contents Husband $2,000 Motor vehicles Motor Vehicle 1 Joint $8,000 Motor Vehicle 2 Husband $6,910 Bank accounts NAB#...47 Wife NK Y Bank…90 Husband $1,353 Y Bank…26 Husband $86 Y Bank…95 Husband $98 Y Bank…63 Husband $1,502 Y Bank…07 Husband $151 Z Bank…24 Husband $1,301 Z Bank…52 Husband $935 Z Bank…53 Husband $554 O Bank …83 Husband Nil Gross non-superannuation assets $846,390 SUPERANNUATION ASSETS Super Fund 1 Husband $631,356 Super Fund 2 Wife $1,814 Total superannuation assets $633,170 LIABILITIES Suburb E mortgage – O Bank #...84 Joint ($137,938) City W mortgage – O Bank #...31 Joint ($153,429) Total liabilities ($291,367) NET ASSETS (INCLUDING SUPERANNUATION) $1,188,193
The schedule of assets and liabilities appeared as an annexure to the husband's case outline. This was an unusual way in which to put such a schedule before the Court. The wife provided a table at paragraph 121 of her trial affidavit but it was incomplete.
During the course of submissions, both counsel adopted the schedule of assets and liabilities contained in the husband's case outline. Ms Chekirova made the point that there was a difference between the table of assets contained in her client’s trial affidavit and the value of the Suburb E home included in the schedule. That is irrelevant as both parties agree the property at Suburb E is to be sold. At page 298 of the Transcript between lines 40 and 45, both barristers agreed that the net asset pool including superannuation totalled $1,189,002. Upon review of the agreed schedule of assets and liabilities, it appears there was a slight error in the arithmetic. It has been adjusted accordingly and the net assets now total $1,188,193.
Counsel on behalf of the husband sought a two pool approach. For reasons which will follow, I am not persuaded by those arguments. The net pool of property (including super and non-superannuation) will be as stated above in these reasons. The view that I have formed is that having regard to the relatively modest property pool that there should only be in fact be one pool. That is – the pool should contain non-superannuation assets and superannuation assets by way of a global assessment.
In Norbis v Norbis (1986) 161 CLR 513, the High Court of Australia held that a Court is not obliged to take a global approach over an asset-by-asset approach or vice versa. Either approach is within the discretionary bounds conferred upon the Court by s.79. At pages 523 to 524, Mason and Deane JJ stated:-
“The assessment of the parties' entitlements before the making of an order is another question, quite distinct from the assessment of their contributions. As a matter of construction of s. 79 Nygh J. is right in saying that the section imposes no obligation on the Family Court to pursue in relation to this issue either the global approach or the asset-by-asset approach to the exclusion of the other. We do not understand the Full Court in the present case to suggest otherwise. What the Full Court asserts is that the global approach is the only "realistic", i.e., convenient, means of arriving at the entitlements of the parties. Again, it seems to us that it will depend on the circumstances of the particular case, though in the majority of cases the global approach will be the more convenient and for this reason the Full Court is entitled to prescribe its adoption as a guideline in the majority of cases. The Family Court has rightly criticized the practice of giving over-zealous attention to the ascertainment of the parties' contributions, and we take this opportunity of expressing our unqualified agreement with that criticism, noting at the same time that the ascertainment of the parties' financial contributions necessarily entails reference to particular assets in the manner already indicated.
It has not been suggested that there is any fundamental difference between the two competing approaches which we have considered, in the sense that one will yield more just and equitable entitlements than the other. The general preference which has been expressed for the global approach is not by reason of any notion that it is the only approach authorized by the Act, but by reason of considerations of convenience. Accordingly, quite apart from the fact that its status as a prescribed approach is that of a guideline and not that of a principle of law, the application of the asset-by-asset approach does not of itself amount to an error of law.”
(Emphasis added)
As the High Court emphasised, it will be the circumstances of a particular case which may lead a Court to prefer one approach over the other.
The Full Court of the Family Court of Australia has discussed the notion of “two pools” recently in Anson v Meek (2017) 57 Fam LR 23. Murphy J (with whom Aldridge and Cleary JJ agreed) said from paragraph 20:-
“20 The reference to “pools” recognises that the interests in property of the parties or either of them can be grouped by reference to the components of each being of a particular nature or having characteristics different from the components of another “pool”. The distinction between, on the one hand, interests in property and, on the other, superannuation interests (which are to be “treated as property”) is a very common, but by no means exclusive, example.
21 That distinction can be important in assessing differing contributions to different types of property. But it can also be very important in answering the essential question posed by s 79(2) which is, of course separate from the question posed by s 79(4) and its constituent elements including contributions.”
The Full Court in Holland & Holland (2017) FLC 93-798 also discussed the asset-by-asset approach (in the context of the trial judge excluding an item of property from a s.79 adjustment) and the considerations that may need to be undertaken when deciding whether such an approach is appropriate. After discussing an earlier decision of Zaruba & Zaruba [2017] FamCAFC 91 and also citing Norbis with approval post Stanford, the Full Court concluded at paragraph 31:-
“31. Thus, the nature of a particular interest or interests in property and when and how it was acquired, utilised, improved or preserved may be very relevant to each or all of three central questions: should a s 79 order be made at all; whether contributions should be assessed “globally” or “asset by asset” or by reference to two or more “pools”; and, what is the nature and extent of each party’s contributions. However, there is no basis for excluding from consideration any property in which the parties have an existing legal or equitable interest.”
Mr George’s submission (made on 1 October 2021 and contained at page 319 of the Transcript) concerning a two pool approach related to the significant amount of superannuation in the name of the husband. Mr George stated from line 19 on page 319:-
“MR GEORGE: Your Honour would be concerned to consider what contributions were actually made to that asset at the time of cohabitation, during the course of cohabitation after separation and since separation, particularly when you balance the other contributions – direct contributions – that my client has made to the welfare of the family, the continuation of the property in which the mother has lived, etcetera, since separation and yet his superannuation has gone up by $170,000. It can hardly be said that any assessment of contribution by the mother during the course of the relationship of a direct or indirect nature should, therefore, automatically flow to the assessment of her contribution in the superannuation pool.”
In this case, at the time of the commencement of cohabitation, the husband had approximately $42,000 and superannuation. The husband also had the Suburb E property, but there was only about $18,000 equity in the property at that time. Therefore the husband's contribution (superannuation and non-superannuation) at the commencement of the relationship (or at about the time of the commencement of the relationship) was approximately $60,000.
The wife contributed $35,000 to the purchase of the Motor Vehicle 3 very early in the relationship – in about 2005. That motor vehicle has since been sold. There is no precise evidence as to what happened with the proceeds of sale of the Motor Vehicle 3. The inference that is open and the inference that I draw is that the amount of $35,000 so early in the relationship was a significant contribution by the wife. It no doubt meant that the parties were able to utilise a very worthwhile motor vehicle without having to borrow or utilise resources from other sources.
I note Mr George’s submissions in relation to the two pools. As I have said, I am not persuaded that a two pool approach is correct. As will become clear, the wife has made (at least indirect) contributions towards the superannuation in the non-superannuation assets and this should be reflected in a one pool (or global) approach. In the particular circumstances of this case, the superannuation of the husband should not be included in a separate pool and the contributions to that item of property will not be assessed separately to that of the remainder of the existing property interests of the parties.
From the time of cohabitation, the parties were together for approximately 14 years. During the first six years, the wife worked in the beauty sector. The wife worked 9 and half hour shifts on a Monday, Tuesday, Thursday and Friday. On a Wednesday, the wife would do the grocery shopping and attend to household chores. During the relationship, the wife cooked five – six dinners per week. The wife contributed, “almost all of the cleaning and washing and most of the lawn mowing and care of the garden” (note paragraph 109 of the wife’s trial affidavit).
I accept this evidence from the wife. I also accept her evidence that, following the birth of X, she ceased employment in the beauty sector and became the full-time carer for X. The wife was also responsible for all the home duties.
Since the birth of X (9 years and three months ago) the wife has been the primary carer for the child. I appreciate the fact that the father has wanted to be more involved in the life of the child and I have had much to say about this earlier in these Reasons for Judgment. But the reality is that the wife has been the primary carer for the child and indeed, for much of the time since separation the wife has been the sole carer for the child. The fact that the husband has wanted to be more involved in the life of the child does not diminish the fact that an adult did have to care for the child and that adult was the wife.
Therefore for nine years and three months the mother has been the primary carer for the child and this has, without doubt, enabled the husband to devote more of his time to his career. The husband works as a senior manager in the public service. The husband's salary is approximately $142,000 gross per annum (Transcript of Proceedings, 28 September 2021, page 39, lines 23 to 24). Being able to devote time to his career has meant the husband has been able to contribute more money to superannuation. In my view, the wife has made indirect contributions to the superannuation and the non-superannuation assets of these parties. I acknowledge that the husband has paid for the outgoings on the real estate since separation. Indeed, he no doubt paid for most of it during the time the parties were together.
Mr George had made a submission that on the non-superannuation pool there ought to be a 50% – 50% assessment of contributions and on the superannuation pool an assessment of 55% – 45% (in favour of the husband).
The view that I have formed is, having regard to the contributions made by both parties, is that the contributions based entitlements of the parties as at the date of the final hearing should be assessed at 50% – 50% (in the one pool). Where there is any discrepancy between the parties concerning homemaking contributions and other contributions around the house – I prefer the evidence of the wife. To be fair to the husband – he did make sensible concessions in relation to the amount of homemaking contributions made by the wife – especially after the time of the birth of X.
I have specifically noted the redundancy payment received by the husband in about 2015 from his previous employer (Company BB). This amount was $49,838 and I note that he paid this into the mortgage of the Suburb E property. I also note that during this time the wife was the primary carer for the infant X.
Future needs
The wife has sought a 15% uplift in relation to future needs based primarily on the discrepancy in income.
It seems to me that there are a number of factors to take into account. Now that parenting proceedings have been finalised – there will be a final order that the child live primarily with the father. This will mean that the father will be providing most of the care for X. This is a factor to be taken into account as required by section 75(2)(c).
The other relevant aspect of section 75(2) is the fact that the husband has a significantly higher earning capacity. I also note the stability of the husband's employment within the public service. There was some uncertainty in the evidence concerning how long the husband intended taking off work if X went into his full-time care. Paragraph 221 of the husband's trial affidavit mentioned a six-month period – but it was clarified in his evidence (and subsequently from the bar table in submissions) that the father intended taking a period of six weeks off to care for X during the transition to his full time care. In any event, the husband has no intention of giving up his role in the public service. His future income potential seems to be in the region of $142,000 (Transcript of Proceedings, 28 September 2021, page 39, lines 23 to 24). I do note that for the financial year ended 30 June 2021, the husband earned a total income of $116,490. The wife returned to work in the service industry on 12 February 2018. This is the sort of work she continues to perform. Her income is limited. She says that her trade qualifications are out of date. I accept that evidence. The wife earns between $360 to $400 per week before tax. She has no other savings and has minimal superannuation. She is self-employed in the service industry. She says that she is in fairly good health. There is nothing to suggest that the husband is in anything other than good health. Even though the husband will be the primary carer for X – noting the very great discrepancy in earning capacity between the husband and the wife – the view that I have formed is that there should be an adjustment in favour of the wife – that is to say an uplift under section 75(2). Even though the discrepancy in income is large – the fact that the father will have the primary care of X limits, in my view, the amount of any uplift under section 75(2). In my view, the uplift factor under section 75(2) in favour of the wife shall be 5%.
Justice and equity
Having regard to the contributions made by the parties (as noted) as well as the conclusion that X will now move into the primary care of the husband – the conclusion I have reached is that an overall property adjustment (of both non-superannuation and superannuation assets) in the amount of 55% in favour of the wife and 45% in favour of the husband is, in the circumstances, just and equitable.
In my view, both parties should share in the superannuation and the non-superannuation assets in the percentages described – namely, 55% to the wife and 45% to husband. I will allow the parties some time to agree on the wording of final property orders to reflect these Reasons for Judgment.
I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 18 October 2021
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