Ganem and Ganem & Anor - [2014] FamCA 1177

FAMILY COURT OF AUSTRALIA

GANEM & GANEM AND ANOR

[2014] FamCA 1177

FAMILY LAW – CHILDREN – With whom a child lives – Best Interests of the child – Where the mother seeks sole parental responsibility – Where there are allegations of sexual abuse against the child perpetrated by the mother’s new partner – Where such allegations are unsubstantiated – Where there are allegations of family violence perpetrated by the father– Where the court finds there was family violence – Where the father makes unsubstantiated claims of physical abuse of the child by the mother and her new partner – Where child’s primary attachment is the mother – Where child has close sibling bonds with older two siblings – Where the parents are unlikely to facilitate shared time with the child – Where there is a need to remove the child from the conflict between the parents –Where the presumption of shared parental responsibility is rebutted – Where mother has been the child’s primary carer – Where court satisfied it is in the best interest of the child to live with the mother.

FAMILY LAW – PROPERTY – Final alteration of property interests – Where it is just and equitable to make orders – Where there is evidence of non-disclosure on behalf of the husband – Where a claim relating to Kennon & Kennon is not made out – Where the wife made significant non-financial contributions during the course of the relationship.

Family Law Act 1975 (Cth) ss 4AB, 60CC, 61DA, 79(2), 79(4), 75(2)(o)

Jones & Dunkel (1959) 101 CLR 298

In the Marriage of Kennon (1997) 22 Fam LR 1
Black & Kellner (1992) FLC 92-287 15 FamLR 343
Weir & Weir [1993] FLC 92-338
Kannis & Kannis [2002] FamCA 1150

APPLICANT:

Ms Ganem

RESPONDENT:

Mr Ganem

INTERVENOR:

F Partners

INDEPENDENT CHILDREN’S LAWYER:

Watts McCray Lawyers

FILE NUMBER:

SYC

931

2012

DATE DELIVERED:

24 December 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

15-19 and 26 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cairns

SOLICITOR FOR THE APPLICANT:

Mia Mason Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Respondent Father in Person

SOLICITOR FOR THE INTERVENOR:

F Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ford

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Watts McCray Lawyers

Orders

Parenting Orders

That Ms Ganem (“the mother”) have sole parental responsibility for K Ganem (“the child”) born … 2006.
The child shall live with the mother.
That Mr Ganem (“the father”) shall spend no time with the child.
That the father advise the mother of his current home address, email address and contact telephone numbers (including both landline and mobile number if applicable) and shall advise her of any changes to these details within seven (7) days of such change occurring.
That the father is hereby restrained from applying for or obtaining any passport for or in respect of the child from the Commonwealth of Australia, without first obtaining the leave of this Court.
That the father is hereby restrained from removing the child from the Commonwealth of Australia, unless the parties agree in writing that he may do so.
That the Court requests that the Australia Federal Police remove the names of the child K Ganem (born … 2006) from Airport Watch Lists at all points of international arrivals and departures in Australia, and that the mother have liberty to apply in the event of any difficulties in obtaining a passport for the child and/or having the child’s names removed from the Airport Watch List.
That during any period referred to in these orders, in the event of the child being hospitalised or receiving medical attention for a serious illness or medical emergency, the mother shall notify the father as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital, and shall ensure that all treating medical and allied professionals are able to speak with each parent as to the care of the child.
A copy of these orders will be sufficient authority for either parent, at their own expense, to approach the child’s school to forward directly to them copies of the child’s school reports, merit cards, school photograph order forms, and any other notice(s) relating to the child’s academic and extra-curricular activities.
That the respondent father be restrained from coming into contact with the child.
That except for the purpose of effecting these orders, the father is hereby restrained from:
(a)       Approaching or going within 100 metres of the child or the mother;
(b)       Communicating with the child or the mother;
(c)Approaching or going within 100 metres of the residence, place of employment and/or study of the child or the mother;
(d)Approaching or going within 100 metres of the child or the mother at any locations;
(e)       Harassing, molesting, intimidating or stalking the child or the mother.
That neither parent shall discuss these proceedings in the presence or hearing range of the child and shall do all such things to ensure that no third person discusses these proceedings in the presence or hearing range of the child.
That neither parent shall denigrate the other parent (their partner or family) in the presence or hearing range of the child and shall do all such things to ensure that no third party denigrates the other parent (their partner or family) in the presence or hearing range of the child.
That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975(Cth) (“the Act”), the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties that adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.
Property Orders
That within twenty eight (28) days of the date of this Order, the father shall take all necessary steps and execute all necessary documents to transfer to the mother, at her expense, all his right, title and interest in the property situated at and known as O Road, Town L, NSW … being the whole of the land contained in the Certificate of Title Folio Identifier … (“the L property”) and that simultaneously upon this transfer the mother shall indemnify and keep indemnified, the father in respect of any and all liabilities attached to the L property including taxes, insurances, rates and outgoings, and provide to the mother exclusive occupation of the L property.
That the parties shall forthwith take all necessary steps to dissolve the “Ganem Partnership”.
That within twenty eight (28) days of the date of this Order, and simultaneously with Order 15 the father shall take necessary steps and execute all necessary documents to transfer to the mother, at her expense, all his right, title and interest in the property situated at and known as E Street, Suburb H NSW …, being the whole of the land contained in the Certificate of Title Folio Identifier 1/… to 3/… (“the H property”).
That within twenty-eight (28) days of the date of this Order, the mother shall do all such things and sign all necessary documents to refinance the current joint debt with the National Australia Bank and cause the mortgage to the National Australia Bank (Mortgage Registered No …26) secured against the H property, to be discharged.
That from the date of these Orders until the refinancing referred to in Order 17 hereof, the mother shall be responsible for 100 per cent of the mortgage repayments on the H property and the mother shall indemnify and keep indemnified, the father against all responsibility and liability from rates, taxes, charges, insurance, outgoings and expenses due and accruing with respect to the H property.
That the husband shall forthwith take all necessary steps to transfer to the ownership and possession of the wife all other assets of the Ganem Partnership and the wife shall indemnify the husband against all other liabilities of the partnership including any outstanding taxation obligations.
That the husband is to forthwith take all necessary steps to release the wife from any claim to any outstanding profits or distributions.
That the parties are to take all necessary steps to prepare, sign and lodge any outstanding tax returns for the Ganem Partnership.
That within twenty-eight (28) days of the date of this Order, and simultaneously with Order 15, the mother shall take all necessary steps and execute all necessary documents to transfer to the father, at his expense, all her right, title and interest in the property situated at and known as X Street, Suburb M, NSW … being the whole of the land contained in the Certificate of Title Folio Identifier … (“the M property”) and that simultaneously upon this transfer the father shall indemnify and keep indemnified, the mother in respect of any and all liabilities attached to the M property including any outstanding taxes, insurances, council rates and outgoings, and provide to the father exclusive occupation of the M property.
That within seven (7) days of the date of these Orders, the father shall do such things and sign all such documents necessary to transfer to the mother all his right, title and interest in the Toyota … Motor Vehicle (Registration Number: …) so that the mother becomes the sole owner of this vehicle and the mother shall thereafter indemnify the father against all liability and responsibility in respect to this motor vehicle.
That within seven (7) days of the date of these orders the father shall do such things and sign all such documents necessary to transfer to the parties’ son, J, all his right, title and interest in the Subaru … Motor Vehicle (Registration number: …) so that J becomes the sole owner of this vehicle and the mother shall thereafter indemnify the father against all liability and responsibility in respect to this motor vehicle.
That within seven (7) days of the date of these orders the parties shall do such things and sign all such documents necessary to transfer to the parties’ daughter, G, all their right, title and interest in the vehicle currently used by her so that G becomes the sole owner of this vehicle and the mother shall thereafter indemnify the father against all liability and responsibility in respect to this motor vehicle.
That the father shall be declared to be the sole owner of any other motor vehicle currently in his possession.
With regard to the company known as “Ganem Pty Ltd” (ACN …) (“the company”):-
(a)The mother will within fourteen (14) days of these Orders provide to the father all documentation necessary to transfer to the father all her shares in the company and any of the assets of the company held by her including any plant or machinery of this company and the father will take all necessary steps and do such things as maybe required to cause the company to discharge any liability the mother may have to the company, and the father shall indemnify and keep indemnified, the mother in respect of any and all liabilities of this company, including any credit card facility, to any third parties including the National Australia Bank.
(b)That any past or current tax debts (including BAS) arising from the company shall be the responsibility of the father and he shall indemnify the mother against all responsibility and liability in respect of such debts.
(c)The mother is to take all necessary steps to release the company from any obligation to pay to her any unpaid dividends that she might, but for these orders, be entitled.
Each party shall be solely liable for and indemnify the other against any liability encumbering any property they retain pursuant to these Orders.
That the father shall, as between the mother and father, be declared to be solely responsible for all monies owed to Y School in relation to J’s school fees for 2013 (as well as all legal costs and interest due and payable) and the father shall indemnify and hold indemnified the mother in respect of this debt.
That within twenty-eight (28) days of the date of these Orders, the father shall cause to be paid to Y School all outstanding monies in relation to the proceedings (No.2014/…) in the Local Court at Town L including outstanding school fees, legal costs and interest due and payable.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
That the parties shall retain all of his/her right, title and interest in the following to the exclusion of the other party:
(b)      all personal property in his/her respective possession or control;
(c)any monies currently held on deposit with any bank, credit union or other financial institution in his/her name;
(d)      any superannuation funds in his/her sole name; and
(e)      any debts or personal loans in his/her sole name.
The application for a child support departure order is dismissed.
The Court declares that Interveners’ fair and reasonable remuneration pursuant to Order 7 of the orders made by this honourable Court on 5 December 2012 to be $96 727.17.
The Court orders the father to pay the sum of $96 727.17 to the Interveners within 28 days of these Orders, and that thereafter, if unpaid that sum shall bear interest in accordance with the Family Law Rules.
The mother and father shall, within twenty-eight (28) days of these Orders, pay to the Independent Children’s Lawyer her costs in the sum of $10 255 each, unless exempted from payment by the Legal Aid Commission of NSW.
That all applications and cross applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ganem & Ganem has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 931 of 2012

Ms Ganem

Applicant

And

Mr Ganem

Respondent

And

F Partners
Interveners

And

Watts Mccray
Independent Children’s Lawyer

REASONS FOR JUDGMENT

These proceedings between Mr Ganem (“the father”) and Ms Ganem (“the mother”) concern both their property and the parenting arrangements of K Ganem (“the child”) born in 2006.
The father was born in 1960 and is 54 years old. The mother was born in 1964 and is 50 years old. They began to cohabit in February 1991 and married in April 1991.
Their daughter G was born in 1993 and is 23 years old. Their son J was born in 1994 and is 19 years old.
In June 1998 the parties established Ganem Pty Limited and each of them became a shareholder and director. It operated a business in Sydney. Until that time the parties had resided in Town L where they conducted their business. As a result of the establishment of Ganem Pty Ltd the father commenced to live in Sydney during the week returning to Town L for two nights a week. He was responsible for the day to day operations of the company and the mother undertook the bookkeeping duties.
This arrangement continued until the parties separated on 5 May 2010.
They were divorced on 12 August 2011.
Although the evidence of the father was to the effect that the parties separated in May 2010 he asserted during the hearing that, in fact, the parties separated at a later time and that that date had been chosen by the parties so as to enable them to get their divorce in August 2011. This, he said, explained why he was often present at the property in Town L after May 2010. The mother said that notwithstanding the separation the father continued to attend the premises where they were living in Town L.

Parenting

The parties presented a stark choice to the court as to the parenting of the child K. The mother sought orders that the child live with her, spend no time with her father and that the father be restrained from coming into contact with the child.
The father proposed that the child live with him and spend weekends with her mother.
The Independent Children’s Lawyer (“ICL”) proposed two sets of orders – the first was a set of orders pursuant to which the child would live with her mother and spend no time with the father and the second was a set of orders proposing the child live with the mother and there be a regime of time spent with the father commencing with supervised time at a contact centre gradually progressing to unsupervised overnight time.
The child is presently living with her mother in Town L. Pursuant to orders made by the court on 17 May 2013 the child spends supervised time with the father at S Contact Centre, Town T for two hours every second Saturday. This involves the child and her mother travelling to Town T from Town L and the father travelling from Western Sydney to Town T. Apart from contact not taking place on 6 July 2013 the child has subsequently spent time with the father in accordance with the orders without default by either party.
Following the separation the child spent time with her father on some four or five occasions up until January 2012, although she saw her father on other occasions when he attended the Town L premises when her mother was also present.
On 27 January 2012 the mother obtained a provisional Apprehended Violence Order (“AVO”) with the protected persons being herself and the three children. On 13 April 2012 the Local Court made a final AVO for 12 months and the protected persons being the same as pursuant to the provisional AVO.
On 13 March 2013 the mother applied for a fresh AVO and an interim AVO was made at Town L Court on 25 March 2013. The protected persons were the mother and the children. At the hearing of the application for final orders on 24 April 2013 the mother’s application was dismissed.
Later that same day the father unilaterally collected the child from the home at Town L, where she was being cared for by her brother J, and took her to Sydney without the consent of the mother. I will turn to the circumstances of that removal in due course. This was the first time that the child had seen the father for some 15 months.
On 24 April 2013 this court made a recovery order and interim parenting orders for the child to live with the mother.
The mother called a number of witnesses in her case including G and J, her adult children. G was cross-examined by the father who frequently put to her that she was a liar. J declined to attend for cross-examination and his mother did not seek to force the issue. There could be many reasons why J did not wish to give evidence. It is not appropriate to draw any adverse inference pursuant to Jones & Dunkel from his failure to give evidence however, the failure of him to attend for cross-examination means that little, if any, weight can be given to those portions of his affidavit that contain evidence adverse to his father.
There are two specific issues that require separate discussion – the allegation of family violence made against the father and the allegations made by the father of sexual abuse of the child by the mother’s new partner.

Family Violence

The family violence has two aspects – firstly, the family violence said to flow from the father’s religious beliefs and practices and secondly, direct physical assaults upon the mother, G and J.

It is important to recognise that these proceedings were commenced prior to 7 June 2012 so that the current definitions of family violence within the Family Law Act 1975 (Cth) (“the Act”) do not apply. The appropriate definition is that of the previous version of s 4AB which is as follows:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The father is a devout Muslim. He is interested in the scriptures which he studies closely. He preaches both in his local mosque and online. For the latter purposes he records sermons which are then loaded on to YouTube. As such he strictly adheres to Muslim practices such as praying five times a day and fasting between sunrise and sunset during Ramadan.
It was the evidence of G and her mother that, from about the age of five, the father forced G to wake at 5.00 am for the first prayers of the day and made her pray five times a day. It was also their evidence that from about that age G was made to fast during Ramadan notwithstanding that, as the father accepted, the teachings of his religion do not require children who have not yet reached the age of puberty to fast during Ramadan. For example, G deposed:
[6]His extreme beliefs required that I be awake at 5am for the Morning Prayer and if I did not come immediately after the prayer was called, I would suffer severe verbal abuse from him. Sometimes, his mood was so terrifying that I would be unable to sleep some nights in case I slept through the call which would bring his wrath down on me yet again. This was how daily life was living with him and when his mood changed he could be very frightening to be around.
(Affidavit of G sworn 14 May 2013)
She says that the father would preach at her daily and tell her about the “hell fire” and “snakes that would eat me after I died, if she did not follow Islam.”
It was the evidence of both G and her mother that the father’s religious beliefs intensified over time.
The mother was a Roman Catholic at the time she met the father. There was some disagreement between them as to whether she ever converted to Islam but she certainly does not presently practice that religion. Emails tendered by the father indicate that when the father was overseas in September 2009 the mother took the children to the mosque on 6 September and 20 September.
G has a most impressive record. She attended Y School which is a private Anglican school from Kindergarten to Year 12. She was the school captain of both the junior school and the senior school. She was a successful sports woman and excelled in drama and music, playing both the cello and piano. Sadly, pursuant to the events that I will describe shortly, she no longer regards her father as her father and has changed her surname to her mother’s maiden name.
It is to be recalled that from 1998 the father was only spending two nights a week at the Town L property where the mother and the children were living.
G said that she lived a double life in Town L. When the father was present they lived the life of very strict Muslims and when he was not present she lived a normal Australian lifestyle.
Parents of children are entitled to bring their children up in the religion that they follow. Some parents will adhere more strictly to the practices of their religion than others. It cannot be said that strictly practising as a Muslim is not an appropriate and normal Australian lifestyle. It is a religion practised by many Australians.
The father denied the assertions by G and the mother as to the severity and abusiveness of the application of his religious beliefs.
I accept the submission of the ICL that the truth probably lies somewhere between the two versions. This is because of the evidence of G and the mother that the father’s religious practices intensified over time so that the father was more lenient when she was younger and because the mother acquiesced in this conduct, even taking the children to the mosque in 2009. Although I accept that at some stage in the relationship the severity of the father’s beliefs became a source of conflict I am not satisfied that the religious practices of the father constituted family violence.
The father asserted that he supported and followed G’s success at school and her extra-curricular activities. G strongly denied this saying that any such support was rare and begrudging. She said that he did not even attend the assembly at which she was appointed school captain of the senior school. The father said that he was there and could prove it with the video of the event that he took. Despite being encouraged to do so he never produced the video. In that circumstance I accept the evidence of G and her mother on this issue.
In mid April 2011 G went to a hotel at Town L. It appears that the father heard about this event from other members of the Muslim community and, he says, from reading a coarse and explicit on-line conversation on Facebook between two boys.
On 24 April 2011 G and her mother were present at the Suburb M house in Sydney.
According to G and her mother the father said “Someone has stopped me and told me that [G] picked up a guy at the [hotel] and slept with him”. The father, it is said, then took the car keys from G and said “You are forbidden to leave the house. If you do I will drag you across town by the hair and smash your face.” It is also said that he said to G “You are worse than a toilet for men to use”, “you are a prostitute”, and “you are no longer my daughter”. He spat in G’s face where upon the mother intervened only to be pushed up against the car and be strangled by the father. As G went to push him away the father threatened to bash G. (Affidavit of G affirmed 14 May 2013 [36]).
The father’s version was that “Some people have told me they saw you out driving a car drunk with other school children in the car with you. My friend told me that you are lucky that you did not kill yourself and these other kids”. He then referred to the Facebook conversation and approached G with this whereupon the mother intervened saying “You have no right to tell [G] what to do. She can do whatever she wants. She can sleep around with whoever she wants”. He then says that the mother hit him twice on the face with her closed fist and threatened to hit him again. The father said the incident concluded with him saying to G “You are welcome to drive a car back to [Town L] but you are not having the use of the car to drive anywhere until you have finished your HSC”. (Affidavit of the father affirmed 23 August 2013 [70]).
The father does not say what he said to G in response to the Facebook conversation. From the reply he asserts the mother made about G being entitled to sleep around, the content of the Facebook material was clearly raised by the father.
The Facebook conversation would be upsetting to most parents and would be extremely upsetting to devoutly religious people. That, and the allegation about the car, could easily cause anger. Absent such a reaction there is no apparent reason why the mother would suddenly strike the father as was alleged. The father’s version has this, on any version, physically violent episode, being concluded by his calm and measured words about G using the car. That does not seem likely. These factors cause me to doubt the father’s version.
In August 2011 G was leaving in her mother’s car to attend an appointment with her chemistry tutor. She says the father became aggressive and said “You cannot go and meet any boys”. When G informed him she was attending a chemistry lesson she said the father pulled her from the car ripping the car keys from her hand scratching her hand. When the mother went inside and got another set of keys the father picked up a metal tool similar to a crowbar saying words “I will smash the car to pieces”. The mother then drove G to her chemistry lesson and then to the L Police Station to report the incident.
The father’s version of events was:
[71]At the time [G] was going to drive the Applicant’s car, a [Toyota], to a chemistry lesson. I said to her words to the following effect: “You can’t drive this car. Our insurance does not cover you for driving this car. If you want either I will drive you or you can call your mother and she can drive you”.
[G] said nothing. She went inside and called her mother who came outside. The Applicant hopped in the passenger’s side of the car and permitted [G] to drive the car despite my objections. [G] drove the car off the property. Later that evening I received a call from [L] Police Station and a conversation occurred along the following lines:
Police: “I have been informed that you refused to allow your daughter to drive her car”.
Respondent: “My daughter’s car was in Sydney but she wanted to drive her mother’s car and her mother’s car is not insured for my daughter to drive. I was concerned that if she had an accident we wouldn’t be covered so I didn’t want her to drive. Despite my objection her mother allowed her to drive the car.”
(Affidavit of the father affirmed 28 August 2013)
On 12 August 2011 G and the mother reported this incident to the police. The police notes record the complaint being the mother and the father “have become involved in a verbal argument about their 18 year old daughter driving their motor vehicle”. There is no reference to acts of violence. On the other hand, if the incident occurred as the father suggested there would be no basis at all for attending the police station. That I consider unlikely. Even allowing for some exaggeration of the incident by them, G and her mother, at the time, felt it necessary to report the incident. Accepting their evidence on this issue is a further ground for accepting their evidence in relation to the May incident.
I am satisfied that both incidents occurred largely as asserted by the mother and G. Such events clearly constitute family violence. To make that finding I am fully conscious of the degree of satisfaction required to make such a serious finding. I should add that G’s evidence on these matters was given most compellingly which the father sought to dispel by submitting that, as G had been a talented actor at school, this was merely play acting. Demeanour is a most unsatisfactory basis for determining credit but to the extent it assists I do not accept the father’s submission.
It was alleged that in May 2010 the mother’s sisters Ms AA and Ms SS were visiting. J was then 16. They say that on the way to a rugby game J made a comment to which his father objected. They say the father pulled his hair, punched him and said words to the effect “You are rubbish”, “You are not my son”, “You are worthless”.
In their affidavits, in relation to an earlier event on the same day, the paragraph dealing with that event in each of their affidavits was almost identical. Their description of the event involving J was also almost in identical terms.
It may be that they are describing the same words and actions but one would not expect them to use the identical phraseology. The use of identical words and phrases may be nothing more than an over-zealous use of cut and paste by the person who drafted the affidavits but even that robs the evidence of weight. In her cross-examination, Ms SS said she had a clear recollection of J being punched in the stomach, whereas she said he had been punched in the back in her affidavit. Her sister said that Ms SS was not present at the time of the assault.
J swore an affidavit in these proceedings but as it was limited to him describing the events that occurred on 23 April 2013 it is difficult to attach any significance from his failure to mention this.
Bearing in mind the standard of proof required for such events I am not satisfied that this event occurred as alleged.
The father alleged that the mother was violent towards the child K and hit her frequently. The mother said that she has smacked the child from time to time. There is no other evidence that supports the suggestion that the mother has been violent towards the child and I do not accept that she has.
Abuse of the child K
On 21 January the father said that after returning the child to the Town L premises after visiting the park with her he said that the mother said to him:
[75]I want you to know that he [[Mr Z], the mother’s friend] loves me so much. He is willing to move to [Town L]. If I make one phone call he will come and bash or even kill you.
(Affidavit of the father affirmed 28 August 2013)
According to the father the child was present at the time.
On 27 January the father said he had the following conversation with the child:
[76][The child]: “Dad, mum took me to a birthday party for [Mr Z] (the Applicant’s boyfriend). My bum hurts. He put his finger up my bum”.
Father: “What does he look like?”
[The child]: “He has a yellow truck.”
Father: “I am going to speak to your mother.”
[The child]: “I am scared Dad. Don’t tell mum.”
Father: “[K] you don’t have to be scarred.”
[The child]: “Mum leaves me in the car alone when she visits [Mr Z]. It is hot in the car and I get scarred.”
(Affidavit of the father affirmed 28 August 2013)
The father raised these complaints with the mother who he said replied “Don’t take any notice of [K]. She is just a child, she will say anything.”
The following Monday, 30 January 2012, the father reported the incident to the Department of Community Services. A few days later he said he received a phone call from a Police Officer at Town L who said that he would like to interview the child and asked where she was.
He said a week later he had the following conversation with the Police Officer:
[78]Officer: “Mr. [Ganem], the DOCS representative and I interviewed [K] at school. In his opinion she appears to be a happy young girl.”
Father: “Did you have any concerns?”
Officer: “Yes there are some concerns, however we interviewed her mother as well.”
Father: “That was a mistake. You should not have interviewed [K] in the presence of her mother if she is afraid of her.”
(Affidavit of the father affirmed 28 August 2013)
The father referred to the recording of the interview. He asserts that the child clearly nodded her assent to the question asking if anyone had touched her bum. The child sometimes nodded as questions were asked but, other than for one occasion, repeatedly denied that anyone had touched her bum, that Mr Z had done so or that she had told her father that he had. Once she nodded to the question as to whether she had told her father that Mr Z had touched her, but immediately denied that he had. Taking the interview as a whole I am not satisfied that the interview establishes that the child did accept that she had made the complaint to her father notwithstanding that one apparent assent. At that time she had consistently denied doing so.
It appears from the recording of the interview of the child that the mother was not present at the time.
Mr Z denies doing anything improper with the child. He has never been interviewed by the police in relation to the allegations made by the father.
On 2 February 2012 Detective Sergeant SW informed the father that the police had no fears for the child’s safety and that they would not take any further action. His file note is as follows:
Inform [the father] of outcome of interview. No fears for safety. Comfortable no offence occurred. More interested in Child being left in car allegation. Talks about that & wants to push up on that. Not interested in talking about the sexual element. Inquires about [Mr Z] and whether still involved with mum. Not relevant to report & tell him that. Comments that he hopes [the mother] learns lesson from this. I don’t make comment. Indicate my actions to follow & happy with same.
This creates a very different picture to the one now presented by the father who, at the hearing, repeatedly and forcefully raised his concerns about the child being abused by Mr Z. If he genuinely held such concerns at the time one would expect that he would have pressed the police more on this issue instead of not wanting to talk about it and raising another issue seemingly much less serious. The note is quite inconsistent with the evidence of the father that he was told the police had concerns about the child. I do not accept the father’s evidence as to his conversation with the police.
The father maintains his belief that Mr Z is a danger to the child. This is so notwithstanding the investigations referred to. He is particularly upset therefore that the mother left the child in Mr Z’s care for two days when she flew to Brisbane to be with her sister who was in hospital in intensive care. At the time Mr Z’s two adult children and his teenage child were living with him.
The Family Consultant had the opportunity to observe the child with Mr Z. They got on well and she did not seem to be frightened. The father suggested to the Family Consultant that 36 per cent of sexual assaults are carried out by step-fathers. The Family Consultant said that she was not aware of any basis for that statistic. She agreed that a higher proportion of fathers and step-fathers are child abusers and step-fathers perhaps slightly higher. It was her opinion, however, that on the facts and circumstances of which she was aware, the risk of the child being sexually abused by Mr Z was no higher than the risk of her being sexually abused by any adult male, including the father.
In M v M [1988] HCA 68 at [25] the High Court said:
[25] Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

The above evidence does not establish that Mr Z has sexually abused the child as alleged. The allegation of abuse has been mentioned only once and only to the father, if in fact it was made. There is no other evidence consistent with such abuse and there is evidence that is inconsistent with it. The above evidence also falls well short of establishing that the child being in the presence of or being with Mr Z would expose her to an unacceptable risk of sexual abuse.

The Father Takes the Child K

On 23 April 2013 the mother’s application for an extension of the AVO was dismissed at the Local Court. At the time the child was being cared for by J at the Town L property. J said that he received a phone call from his father saying that he was coming to pick upthe child and take her to town for a couple of hours.
There was no doubt that the father was keen to take the child with him. He did not wait for the child to put shoes on and took her only in the clothes that she was wearing.
On leaving the house the father passed the car of the mother who was returning. She says he said to her “Look I will bring [the child] back so that she can start school on Monday. There are only a few days of the holidays left and I haven’t seen her for 15 months”.
J followed the father and the child into Town L. His father said that he was taking the child to Sydney. J asked him to let him take her back home but his father refused. The following day a recovery order was made by the court.
In his oral evidence, but not in his affidavit, the father said that immediately after they passed the mother in the driveway the child said to him “I should have ducked so mum didn’t see me.” It was the father’s evidence that whilst the child was with him she made two complaints about her mother and Mr Z. The first was that they had taken the child to Town W the previous weekend and she had fallen off her bike and hurt her chest. The father was so concerned he took the child to Dr BB. He provided a letter which said:
This is to certify that miss [K Ganem], age 6 years, presented to me with her father complaining of chest pain her check up was not very clear & been referred to the Chest X-ray.
(Annexure A, Affidavit of the father, affirmed 14 May 2013)
I note that it was the father that made the complaint and that there is no indication by the doctor as to what, if anything, he found on examination. A subsequent x-ray showed no abnormality.
The lack of any medical findings suggesting an injury of any sort supports the evidence of both the mother and Mr Z that after the child fell off her bike at Town W she continued riding her bike for the rest of the day and walked around the venue for a large part of the following day. She would seem not to have suffered any noteworthy injury.
I am not satisfied therefore, that there was any neglect or improper treatment of the child at Town W at the hands of the mother or Mr Z.
The father also said that the child informed him that at Town W she “saw mum and [Mr Z] naked in bed and they were doing things”.
It is of significance that the father said that after they had passed the mother in the driveway immediately after he took the child, the child said to him words to the effect that “I should have ducked so Mum didn’t see me”. I find that a remarkable statement for a six year old who had been primarily cared for by her mother since birth and who hadn’t seen her father for the last 15 months. I am not satisfied that the child made that statement or the statement about the mother and Mr Z in the motel in Town W.
The father said that the child is scared of her mother and was relieved that she was taken away from her mother by the father. This, he says, was confirmed by the CCTV footage taken on 26 April 2014 at R Police Station when the child was returned to her mother pursuant to the recovery order. The father said that the recording shows that the child did not run to her mother, but rather clung to his legs and did not want to go with her.
I have viewed the CCTV footage. It shows the child arriving with her father hand in hand. She is clearly upset but was not screaming as asserted by the father. When her mother approaches her she initially moves closer to her father and then behind him. Shortly thereafter the mother picks her up and the child puts her arms around her mother’s neck and remains there very comfortably.
When this was put to the Family Consultant by the father the Family Consultant declined to comment saying that people behave differently when traumatised and that she could not comment on the meaning of the child’s behaviour. The footage does show that after the initial reluctance the child easily moved to her mother’s care without hesitation. The father’s submission that the footage demonstrates that the child was scared of her mother is not established.
The mother said that after the return of the child she suffered nightmares for some time. This evidence was supported by evidence from G. The nightmares have ameliorated somewhat. The father puts this down to his beneficial influence arising from the supervised contact.
The Family Consultant had a different view. She said:
And your view in September 2014 is that because there's a remaining hostility/mistrust between the parents that you can't see that the matter can move from a supervised regime to an unsupervised regime; is that correct? Yes, not - not in a way that is not - poses significant risks to [the child], to her emotional and psychological wellbeing because of the events that have occurred.
Well, are those events the domestic violence allegations? It's possibly a culmination of events and, as I've said in my report, I think the court will need to make a finding in relation to the family violence allegations. The particular event that I think has really changed what I felt able to recommend for [the child] were - was the incident in April 2013 when [the father] took [the child] and the impact of that on the child, and the understandable anxiety that has caused the child. That, in addition to the ongoing allegations, which I can't see will end including the sexual abuse concerns, and the impact of the child being in the middle of those ongoing allegations, and also the ongoing hostility between the parents. Now, because of the incident that occurred in April 2013 - and I think it's most unfortunate because every time I've seen [the child], she clearly does enjoy the time she spends with her father. She enjoys --
(Transcript of proceedings, 16 September 2014, pages 2-3)
I accept the opinion of the Family Consultant that it was the taking of the child by the father that caused her considerable anxiety.
In determining what parenting orders to make the best interests of the child are the paramount consideration. In determining those best interests the Court must have regard to the factors set out in s 60CC of the Act.
The first of two primary matters raised by that section is the benefit to the child of having a meaningful relationship with both the child’s parents. A meaningful relationship is one which is important, significant and valuable to the child. In the present case the Family Consultant opined that, if the parents could cooperate with each other and appropriately facilitate time with the other parent the child could quite easily spend significant and substantial time with her father which would be of benefit to her. She recognised, however that it was not possible for that to occur in this matter. She described the relationship between the parents as toxic. Such a step would, she said, require the father to undergo a significant change to his attitude as opposed to that exhibited in April 2013 when he removed the child from her mother. It would also require the mother to put aside her anxiety and fears in relation to the child spending time with the father. Neither is possible. She said:
That's of the second report ? Yes.
Correct? Yes. The additional factor, which I think is very significant is - is the parental relationship and the toxic ongoing nature of the conflict because if it wasn't for that, I think [the child] would be quite able to have daytime and weekends with her father but that is present. And because of the events of April 2013, to move to - move [the child] from the supervised arrangement, which is going well and she does enjoy, to any form of unsupervised time would require significant faith in [the father's] behaviour, and that [the father] is able to put aside some of his concerns, which I formed the view are firmly held, and not question the child about his concerns. Likewise, [the mother] needs to be able to put aside her anxieties and her concerns to help the child safely transition to unsupervised time, otherwise the child is going to be in - living in anxiety.
(Transcript of proceedings, 16 September 2014, page 3, lines 26 – 39)
It is clear that the child has enjoyed her time with the father at the contact centre. The Family Consultant opined that the child is closely attached to her father despite his significant absence and that the child has not yet aligned with the mother.
Thus it would appear that the child is capable of having a meaningful relationship with her father. The present position is, however, not desirable. The Family Consultant asked the question “How healthy is it for [the child] to remain in the toxic situation in which she is presently.” She said the child might cope but at what cost. It would be psychologically abusive and she did not think that either parent could or would be able to protect her from that psychological abuse. The only likely protective mechanism for the child then is to align with one of the parents which would be psychologically damaging to the child. While the child would be distressed and possibly suffer a grief reaction if prevented from spending time with her father this would be less psychologically damaging because an adult has made the decision for her rather than her being forced to make the decision herself.
She said:
Can I suggest this to you, that the reason it possibly is not surprising is that [the child] is equally aligned or equally attached to both her father and her mother?   Quite possibly, but the question now needs to be asked is how healthy is it for her emotionally to be kept in that position? And that's the issue. And do adults keep her in that position which is living in a traumatically toxic situation as a child.
Can I just stop you there. Why do you say it's traumatic?
HIS HONOUR:   Well, no. No. I   can you
MR FORD:   I'm sorry, your Honour.
HIS HONOUR:   I would like to hear the rest of the answer, please?   It's - it's - it's living in that situation. And she may be able to continue to cope with it, but the question we would need to ask is at what psychological cost that is for her because to be a child in that position and not have the two adults who are there to protect you protecting you from that, it's abusive. It's very psychologically abusive and that is, I think, the issue now. It's the critical issue in which I've come to the position I have, and because I have come to the position that I don't think either parent is going to protect her from that. So we either leave her there or we take her out of it, or we leave her there until she does align as her older siblings have and allow - make - forcing her to align to one parent or the other is actually more damaging because it requires her to then split the people that she loves, and she has got to cut off one of them, and that is actually more damaging. That is what happens when children completely align. They then cut off an important part of themselves.
(Transcript of proceedings, 16 September 2014, page 7, line 1 – 25)
I accept the evidence of the Family Consultant. I find that the only way to deal with the toxic behaviour of the parents which is psychologically abusive of her is to remove her from the conflict. The views of the parents are intractable. I cannot see that the mother will support any significant time of the child with her father. The father, on the other hand, said that he would rather the child live with a foster family than with her mother.
It follows that the benefit of the child having a meaningful relationship with her father is outweighed by the psychologically abusive position she will be put in in having to move between time with her mother and with her father. This matter supports the child either spending no time with her father or spending supervised time with her father.
There are many cases which establish that, generally speaking, supervised time is not an appropriate long term answer. It was the Family Consultant’s opinion that supervised time was not appropriate in this case as it would never resolve anything. The father said that he had had enough of supervised time and no longer wanted to be treated like a criminal. He said he would not attend the supervised time if that order was made as a final order. He was supported in this by the Family Consultant. She thought the matter needed to be decided one way or the other now. I accept that supervised time is no longer appropriate. Indeed the Family Consultant said that, if the parents could manage it, unsupervised time would be appropriate now.
The child has a close and loving relationship with her mother who has been the primary carer of her since birth. There is no basis for removing the child from her care and from that relationship from which the child clearly obtains a significant benefit.
The second primary consideration is the need to protect the child from physical or psychological harm resulting from being subjected to or exposed to abuse, neglect or family violence.
I have found that the child is not at an unacceptable risk of abuse, neglect or family violence whilst with her mother or with Mr Z. I find that there is a risk to the child of family violence if she were to live with the father. The risk that is most likely to arise is that, as the child gets older and seeks to become more independent, that will clash with the father’s beliefs. As I have found in relation to G that clash led to violence and it could do so again. Although the child, if she were to live with her father, is quite likely to be subjected to strict Muslim practices, that of itself is not family violence.
It is of concern that the father’s new wife did not give evidence. She attended the interviews for the first Family Report but not the second as her son took ill at the Court and was taken home by her mother. The Family Consultant said she was not concerned by the father’s wife not attending for the Family Report because she assumed that she would be giving evidence but was concerned that she was not. Thus the attitude of the person who would be undertaking the primary care for the child in the father’s household was not able to be asked as to her approach to the father’s religious practices should they impinge on the children in the way alleged by G and the mother.
This matter again supports the child remaining with the mother.
The court is required to take into account a number of additional considerations. The first of these are any views expressed by the child. The child is relatively young and given the conflict in the relationship her views carry little weight. Nonetheless the child’s views are that she is happy to spend time with her father at the contact centre but did not wish to spend time with him otherwise.
The statements made by the child to the Family Consultant do not support the father’s evidence that the child is scared of her mother. She said:
[45]As outlined in the previous report, unless evidence emerges which confirms abuse of [the child] in her mother’s care, this writer cannot support the option of [the child] living with [the father]. [The child] has always lived with her mother and she is likely to experience significant feelings of grief and loss if such significant change were to occur for her. On the three occasions in which this writer has now met [the child], nothing has emerged in the interviews or observations with her to suggest that she does not have a close and loving relationship with her mother or to suggest that [the child] is fearful of her mother [as [the father] suggests]. [The child’s] capacity to maintain her existing relationships with [G] and [J] is also important and, realistically, this is not likely to occur if she were to live with her father. Despite [the father’s] own very serious complaints about [the mother], he himself says that he would not be seeking for [the child] to live with him if it were not for his concerns about Mr [Z].
(Second Family Report dated 9 September 2014)
I have already dealt in some detail with the nature of the relationship of the child with each of her parents. The child appears to have a close relationship with J and G and seems to be developing a relationship with Mr Z. The Family Consultant reported that the child spoke positively about her relationship with Mr Z and his children.
The Family Consultant said:
[The child’s] capacity to maintain her existing relationships with [G] and [J] is also important and, realistically, this is not likely to occur if she were to live with her father.
(Second Family Report dated 9 September 2014 at [45])
As to the father’s wife, the child told the Family Consultant that she does not really know her, is not used to her and did not wish her to attend supervised time. This is not surprising, given the limited time that they have spent together. The same must be said about the father’s new child MM. It is unfortunate that neither of them attended the supervised time. This was due, at least in part, to a letter written by the mother’s solicitors on 20 May 2013 which said:
We advise that we object to anyone accompanying you in your visits with [the child] at this stage; and we have notified the Independent Children’s Lawyer of out objection.
The father did not seek to press the issue although it appears that MM did, at times, accompany the father to the contact centre.
The result is that there is no close or established relationship between the child and the father’s new family.
These matters support the making of the orders sought by the mother.
As discussed above neither party is willing to or has the ability to facilitate a close and continuing relationship between the child and the other parent.
The Family Consultant said of the likely effect of a change in the child’s circumstances including a separation from her mother:
[The child] has always lived with her mother and she is likely to experience significant feelings of grief and loss if such a significant change were to occur for her.
(Second Family Report dated 9 September 2014 at [45])
On the other hand, the child has expressed some fear about her father “keeping her for a long time”.
In her earlier report the Family Consultant hypothesised that the father’s actions in removing the child from her mother may make such a fear for her a reality. In her evidence to the court she said that that hypothesis had now been confirmed and was a reality. This confirmation largely arose from the removal of the child and her reaction to it. Thus the child is reluctant to spend time with her father outside of the contact environment where she feels safe.
There was some discussion of the parties’ proposed living arrangements in the future. The mother said that she has discussed with Mr Z the prospect of living with him and buying a house together but such a decision is likely to be made after the conclusion of this court case. If that is to occur it is likely that the mother would sell the L property and move to western Sydney within 30 minutes of the father’s residence.
The father, on the other hand, has considered a return to Town L. Notwithstanding the distance involved, the parties managed to attend the Town T Contact Centre regularly. Thus, the difficulty and expense of maintaining contact with both parents is not a significant factor.

The next consideration is the capacity of each of the child’s parents, and any other person to provide for the needs of the child including emotional and intellectual needs.
The child has been largely supported by her mother. The father says that he has not worked for the last two years. He has not received any Centrelink benefits. He says, merely, that he has borrowed to survive and offered no further elaboration. My findings in the property proceeding indicate that the father has had the capacity to provide such support but has not done so.
His present financial support of the child is minimal to say the least notwithstanding that he seems capable of supporting his other wife and child.
The capacity of each of the parents to provide for the needs of the child including emotional and intellectual needs would have to be doubted given that they are unable to come to terms with what would be most desirable for the child which is a relationship with both her parents.
Otherwise the mother seems to be able to provide for the day to day emotional and intellectual needs of the child adequately. In relation to the attitude to parenting the Family Consultant said:
[45]Despite [the father’s] own very serious complaints about [the mother], he himself says that he would not be seeking for [the child] to live with him if it were not for his concerns about Mr [Z].
(Second Family Report dated 9 September 2014)
As to the father the position is unknown. It is clear that the father inappropriately and excessively questions the child, particularly about the mother’s relationship with Mr Z. This was noted by the workers at the contact centre and also was a subject of complaint by the child to the Family Consultant.
I have already discussed at length the attitude of the child and the responsibility of parenthood demonstrated by each of the child’s parents and family violence.
The order that I propose making in these proceedings is not likely to lead to the institution of further proceedings in relation to the child.
I am also required to take into account s 60CC(4) which is as follows:
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
The day to day and indeed major long term issues in relation to the child have been made by the mother simply because of the circumstances of the relationship. She has not discussed or involved the father in these. This is not surprising given the nature of the communication between them which is poor and when it exists is abusive. For example, the father writes emails to the mother describing her as “Queen of bum washing”, a reference to her job as a healthcare worker. It was not, as he suggested, teasing.
On the other hand the father has spent time with the child in accordance with the current orders of the court without being late or missing a session. Other than for the first occasion the mother has also complied with those orders, although there has been a continuing dispute between them as to whether the father has appropriately and properly complied with the order for the payment of money to enable the mother to buy petrol to travel to the contact centre.
I have already referred to the parents’ obligations to maintain the child.
Section 61DA(1) of the Act creates a presumption that it is in the best interests of the child that the parents to have equal shared parental responsibility. That presumption does not apply if the court is satisfied that there has been family violence. I am satisfied there has been family violence and that the presumption does not apply.
The fact that the presumption does not apply does not mean that there cannot be an order for equal shared parental responsibility, nonetheless. It is not however justified in this case because of the toxic relationship between the parents and their impossibility to communicate. Accordingly, it will be necessary for one parent to have sole parental responsibility.
Although the father initially submitted that if the child were to live with him she should spend time with the mother at each weekend and whenever the child wished to, he also sought an order that that the child never see her mother again in the event that her mother hit her again. The father says that the child sees him as her only protector. In his evidence, when asked that if the mother had no relationship with Mr Z would he have any concerns with the mother caring for the child, he replied to the effect that he did not. He said, however, the mother would have to abide his conditions and that she would have to cook, clean and not go to parties and not leave the child with strangers. The father also said in submissions that the child would be happy to live with him because she would be living with a family, that it would be better for her and that the choice should really be between his present family and a foster home. It is hard to reconcile these various submissions.
They indicate to me that the view of the Family Consultant is correct and that the father’s main concern is to prevent the child from coming into contact with Mr Z. Whether this is as a result merely of the alleged sexual abuse or for some other reason such as jealousy is not possible to say as it was not explored in evidence.
The Family Consultant summarised her view thus:
[51]The family consultant has formed the view that, due to their ongoing hostility and mistrust of the other, neither parent is likely to act in ways to genuinely and constructively support [the child] in moving towards unsupervised with her father, particularly overnight time. Therefore, the family consultant is no longer able to recommend ongoing unsupervised time between [the child] and her father.
(Second Family Report dated 9 September 2014)
I accept that opinion. It is consistent with my findings above. I also accept the Family Consultant’s opinion that there be a high risk of further allegations and litigation in the event that there is to be unsupervised time between the child and her father.
The consideration of the matters raised by s 60CC supports the child living with her mother. The evidence establishes that it would not be in the child’s best interest for there to be unsupervised time between the child and her father. The evidence establishes that the supervised time should cease.
The sad reality is that there should be an order that the father spend no time with the child.
This is a significant order to make. It deprives the child of, at least in the short to medium term, the opportunity to develop a meaningful relationship with her father which would be of benefit to her. However such an order recognises the difficult position in which the child has been placed by her parents and is in her best interests. As the Family Consultant said the child must be removed from the conflict between her parents and in the circumstances of this case the only way that can be done is to remove the contact between the child and her father.
It follows that given the relationship between the parents the mother will also have an order for sole parental responsibility. There is no possibility of any useful communication between them or likely agreement as to what decisions would be in the best interests of the child.
It was suggested by the ICL that it would be desirable that there be some sort of limited contact between the father and the child by email or Skype. As was said by the Family Consultant that is not likely to assist and is likely to maintain the conflict. There was however, no opposition to an order providing that the father have access to school reports and school photos, be informed of serious illness or medical need for treatment and that there be a restraint on the father from taking the child out of Australia.
It is also appropriate that there be non-denigration orders.
The mother sought an order that she be granted liberty to apply if there were difficulties in obtaining a passport for the child and for the child to be removed from the Airport Watch List. That order will be made.
The mother sought an order that the respondent father be restrained from coming into contact with the child and for the effect of that be restrained within 100 metres of her or the applicant. Given the history of events, particularly of that which occurred in April 2013 that is an appropriate order to make.
The ICL sought an order for the payment of her costs in the $20 510 in total, subject to a party obtaining an exemption from the Legal Aid Commission. Having regard to the parties assets and other matters discussed in the property section of these reasons, that is an appropriate order to make.

Property

Applicable Principles

According to guidelines established through a series of leading decisions the court is required to determine the following matters:
a)The assets, liabilities and financial resources of the parties to the marriage.
b)Having regard to the breakdown of the marriage if any, is it just and equitable to consider whether the alteration of the parties’ interests in their properties is just and equal.
c)All relevant contributions of each of the parties.
d)The matters in paragraphs (a) – (c) of s 79(4), must be identified and weighed against each other.
e)The matters in paragraphs (d)-(g) of s 79(4), particularly paragraph (e) which takes up, by reference, the provisions of s 75(2) must be considered and a determination made as to what, if any, alterations should be made to the entitlements of the parties earlier assessed on account of their contributions.
An order under s 79 must not be made unless the court is satisfied in all of the circumstances, it is just and equitable to make the order.
The parties were in substantial agreement as to what assets and liabilities were held by them at the time of the hearing. There are only three issues that require attention.
The father sought to have included at a value of $70 000, cattle grazing on the Town L property. There was no evidence of any such cattle or their value. The mother sought to have included $2 782.58 as a joint debt, a partnership debt paid by the mother’s sister. There was no evidence that this was so. There was a dispute as to whether the father’s furniture had a value of $1 000 or $5 000. There was no evidence as to its value. As the father accepts a value of $1 000, in the absence of evidence, I shall adopt that figure.
Thus the assets and liabilities of the parties as at the date of the hearing are as follows:

Assets Description	Owner	F/value
O Street, Town L	Joint	675 000.00
X Street, Suburb M	Joint	820 000.00
E Street, Suburb H	Partnership between the father and the mother	810 000.00
Ganam Pty Ltd NAB Savings No …193	Ganem Pty Ltd	193.81
Greater Building Society BSB …789	Mother	6.00
NAB mother’s savings account BSB … No …512	Mother	936.71
NAB New Partnership Account BSB … No …275	Joint	163.02
Company car value – Toyota	Joint	24 000.00
Company car value – Nissan	Joint	6 000.00
Company car value – DYNA truck	Joint	2 000.00
Company car value – Subaru (J’s car)	Joint	14 000.00
Father’s CBA bank No …161	Father	NK
Father’s CBA bank No…826	Father	NK
Mother’s Superannuation with HESTA	Mother	55 692.47
Father’s Superannuation	Father	35 895.41
Farm Tools & Equipment	Joint	3 000.00
Furniture and Chattels with mother	Joint	5 000.00
Furniture and Chattels with father	Joint	1 000.00
Ford motor vehicle	Joint	1 000.00
Mazda motor vehicle – G’s car	Joint	13 500.00
TOTAL:	$2 467 387.42

Joint Debts:	Owner	F/value
NAB Mortgage Loan BSB … No …227	Joint	447 370.46
The … Shire Council (for 2013/2014 – due 11/4/14)	Joint	2 090.35
OSR land tax	Joint	473.30
TOTAL JOINT DEBTS	$449 934.11

Subsection 79(2) of the Act

I must first determine whether it is just and equitable that there be an alteration of the property rights of the parties. This must be done by consideration of the relationship, its breakdown, if any, the property held by the parties and the basis on which it was held and used by them. The determination is not to be conflated with the consideration of matters arising under s 79(4).
In the present case I am satisfied that it is just and equitable to make orders altering the interests of the parties to the marriage to the property held by them. They are no longer living in a marital relationship. As the parties are no longer living together in a married relationship the basis on which their property was owned and used has ended. It is appropriate, therefore, that their property interests are altered so as to meet their new needs and circumstances.

Brief chronology of property acquisition

The parties began cohabiting in February 1991. In January 1992 they entered into a franchise agreement to operate Business 1 at Town L, New South Wales. The mother asserts, without contradiction, that she applied $19 050 from her Credit Union account towards the purchase. The father sold his car for approximately $24 000 and the mother’s mother lent the parties $15 000.
In 1995 the parties entered into a franchise agreement for Business 2 at Town L, New South Wales. The source of the funds used to acquire that business was not disclosed.
Ganem Pty Limited was incorporated in June 1998 with the father as director and the father and mother each owning ten shares. Ganem Pty Ltd initially undertook work for a government agency and then for a variety of institutions on the North Coast of New South Wales and the Central West of New South Wales. The father conducted the day to day operations of the business, generally staying two nights a week in Town L and the other five nights of the week away from Town L conducting the company’s business. The work for the institutions seems to have ceased in June 2005. The mother undertook the book-keeping and clerical work for the company.
Throughout this period the properties at Town L, Suburb M and Suburb H were acquired. The evidence does not disclose either the date or the means of acquisition of them.
On 29 November 2005 the mother inherited $79 500 from her father’s estate which was applied to a mortgage on the O Street, Town L property.
On 10 July 2006 the mother inherited a further $100 000 from her father’s estate which was applied to the mortgage on the Suburb M property.
In 2000 Ganem Pty Ltd serviced a contract with a transportation company then known as WB Company which later changed its name to CD Company. Ganem Pty Ltd continued to conduct that business until 2012.
The parties divorced on 12 August 2011 but nonetheless the business continued to operate with the mother conducting the book keeping and the father responsible for the day to day running of the company’s business.
The mother ceased to work for Ganem Pty Ltd on 27 January 2012 when the father demanded that she have nothing further to do with the company and denied her access to the company bank accounts and Visa cards.
On 26 March 2012 this court made the following orders:
4.In relation to property orders, the following orders be made as sought in the application in a case filed 6 March 2012:
1.Upon the applicant undertaking to the court to abide by any order the court may make as to damages in case the court should hereafter be of the opinion that the respondent or applicant (as the case may be) shall have sustained any such damage by reason of this order which the applicant or the respondent (as the case may be) ought to pay.
(b)The respondent is restrained and an injunction issue restraining him from:
i.incurring any liability in excess of $5,000 on account of himself and the applicant jointly or;
ii.causing any company or trust in which he or the applicant have an interest to incur any liability in excess of $5,000; without the prior written consent of the applicant.
(e)that if the respondent proposes to remit any money from Australia for a purpose other than usual business activities of the respondent, that the respondent give the applicant not less than 14 days notice in writing, such notice to be given to the lawyer for the applicant of any intention on his part to remit such money overseas.
(f)that until further order the respondent be restrained from withdrawing any capital from or charging or in any other way dealing with the capital in account No. …193 BSB … being the “[Ganem] Pty Ltd” Bank account held with the National Australia Bank [Town L] without first giving the applicant 21 days notice in writing of his intention to do so, such notice to be given to the lawyer for the applicant.
(g)that until further order the respondent be restrained from withdrawing any capital from or charging or in any other way dealing with the capital in account No. …879 BSB …; being the “[Mr and Ms Ganem]” Bank account held with the National Australia Bank [Town L] without first giving the applicant 21 days notice in writing of his intention to do so, such notice to be given to the lawyer for the applicant.
2.That until further order the respondent:
(a)cause any money received in respect of the company “[Ganem] Pty Ltd” (ACN …) (“the company”) to be paid into bank account …193 BSB … of that company used and operated in the usual course of business of that company.
(b)cause any money received in respect of the partnership “[Mr and Ms Ganem]” (“ABN …) (“the partnership”) to be paid into bank account …879 BSB … of that partnership used and operated in the usual course of business of that partnership.
3.That on or before the 15^th day of each month the respondent cause to be sent to the applicant, in respect of the companies, photocopies of:
i.all bank statements in respect of the companies for the preceding month.
ii.all bank statements in respect of the partnership for the preceding month.
iii.all invoices prepared by and sent out by the companies for the preceding month.
4.That the respondent will, within 24 hours, provide to the applicant non-transactionable internet access to the following account:
(a)Account No. …193 BSB … being the “[Ganem] Pty Ltd” Bank account with the National Australia Bank.
5.That the respondent give the applicant not less than 21 days notice in writing, such notice to be given to the lawyer for the applicant, of any proposal on his part to do any of the following acts or things in respect of the company “[Ganem] Pty Ltd” (ACN …) that is to say:
(a)sell, dispose of, encumber, transfer or otherwise deal with any shares owned by the parties or either of them;
(b)vary, modify, change or amend the memorandum and articles of association;
(c) resign from any directorship or position of office or cause, suffer or permit the appointment of any further or other directors or other office bearers or cause the applicant from being removed as a director;
(d)cause, suffer, permit or vote in favour of any resolution for the issue or allocation of any further shares in any class;
(e)sell, dispose of or encumber any asset; and
(f)change, suspend or cancel the on-line banking facilities with the National Australia Bank and/or the access code in relation to same or do anything limiting or restricting or preventing the applicant’s access to them.

The father did not call any of the persons who are parties to these transactions to give evidence. The payments into the father’s bank account are not consistent with the father’s own evidence.
It appears that the father has made some payments consistent with the operation of a factory after he says he sold it. He certainly continued to work there for some time although, it is possible, that it could be that he promised to do so as part of the sale. If he did, however, that obligation is not recorded in any document before me.
Given these contradictions it is impossible to accept the father’s evidence as to the purchase and alleged sale of the factory. It is difficult, however, to make a finding that the father presently has an interest in the factory. The evidence falls short of establishing that. No value of the factory was proffered. On the face of the documents the father is owed a considerable sum by Mr QY. I would be reluctant to place any weight on any evidence of the father or a document prepared on his behalf without corroboration.
The obligation is upon the father to adequately disclose his financial affairs. He has failed to do so. He clearly had access to substantial funds. Whether that was by way of borrowing or from other sources available to the father is impossible to say. This is a significant matter which will be taken into account in due course.
The mother sought to have the court take into account as “add backs and/or notional assets” the following:

Addbacks and/or Notional Assets:	Owner	W/value	H/value
[Town NN Factory]	49% [Mr QY] 51% [Mr HR]	440,000.00	440,000.00
[Ganem] Pty Ltd – value and unpaid shareholder dividends (as at 30/6/11)	Joint	345,422.00	345,422.00
Profit/Monies taken by H from [Ganem Pty Ltd] (NAB Savings No …193) – av $18,000 per month for 11 months (Jan to Nov 2012)	Joint	198,000.00
Profit/Monies taken by H from [Ganem Pty Ltd] (via [OO] Pty Ltd) – av $18,000 per month for 20 months (dec 2012 to sept 2014)	Joint	360,000.00
Paid costs to receivers (as @ 13/8/14)	Joint	12,937.42
Legal costs paid by Wife	wife	32,644.95
Legal costs paid by husband	Husband	NK
1,389,004.37

[As per original]

I have dealt with all of the above save for the last three entries.
As has been seen the Receivers were appointed to Ganem Pty Ltd and the Ganem Partnership. The partnership conducted the business of owning and letting out the Suburb H property. The Receivership was terminated on 20 February 2013. In respect of the Receivership of the Ganem Partnership the Receiver’s remuneration costs and expenses of $17 679 remains outstanding.
A payment of $10 133.74 was paid by the Receivers to their lawyers on 13 August 2014. The money came from assets of the partnership in the Receiver’s hands.
Taking that payment into account the amount owing in respect of the remuneration and legal fees in respect to both the company and the partnership was $78 499.17 on 13 August 2014. At the end of the hearing those fees, including the Receiver’s lawyer’s fees were $96 727.17. As has been seen pursuant to the earlier orders of the court the father is liable to pay those fees.
It is appropriate that, at least in the first instance, the assets the subject of the Receivership should bear the burden of the expenses of the Receivership. The father is liable to pay the bulk of the Receiver’s fees. There is therefore no compelling reason to add back this portion. In any event, add backs should occur only in exceptional circumstances. This is not one.
The father asserted that the Receiver’s fees were excessive.
Mr A, one of the Receivers, has sworn a detailed affidavit which annexed detailed timesheets. These identified the work done by his employees, the hourly rate and a description of what work was being undertaken. Mr A and one of his employees were cross examined at some length by the father as to these entries. Their explanations as to the various entries in the time sheets put to them were unremarkable and did not point to any wrong doing. None of his criticisms have been established. I am satisfied that the charges of the Receivers are fair and reasonable and that orders should be made providing for the payment of those fees from any share of property that the father is to receive.
Whilst an add back for legal fees can be appropriate I will not add back the mother’s legal expenses. I do not know the source of the payments and she has had the benefit of the income from the partnership for some time.

School Fees

An amount of $27 732.71 remains owed by the parties to Y School at Town L being the fees for the final year or years of attendance there by J.
At the time of the parties’ divorce in. 2011 they agreed that they would bear the costs of J’s schooling jointly. By consent orders made on 26 March 2012, as set out in paragraph 150 above the father agreed to pay “all school fees invoiced by [Y School] including tuition fees, excursion fees, book fees, meal and extracurricular activities”. He has not done so and the school has commenced proceedings in the Local Court against both parties seeking their recovery. Those proceedings are fixed for hearing at the Local Court on 14 November 2014.
Although the father did not formally apply to set aside that order I took his submissions to be in the nature of such an application. I am not satisfied that it is appropriate to set aside that order. It was entered into by consent by the father at a time, when according to his present testimony, he could not afford to do so. He, presumably, had a basis for agreeing to the order at that time. No change in the circumstances of any significance that has occurred since then such as would make it just to set aside or to vary the order have been identified let alone established and I do not propose to vary it.

The Parties’ Contributions

The parties had a long relationship of some years. There is no doubt that throughout the relationship each of them worked very hard. For a significant part of the relationship the father spent five days a week away from home working in the business. The mother conducted work as the bookkeeper of the business and worked as a parent and homemaker. Her two inheritances were applied to mortgages over properties owned by the parties.
Throughout those years they acquired three properties the subject of these proceedings, only one of which currently bears a mortgage. They also raised their three children. Having regard to their respective financial contributions, non-financial contributions to their property and to the welfare of the family, their contributions up to the time of separation should be regarded as equal.
Since separation the mother has had almost all of the care of the child K. She has done so with almost no assistance, financial or otherwise, from the father.
For a significant period since separation the mother has had the benefit of the net rent of the Suburb H property.
These two matters sufficiently, although necessarily imperfectly, set each other off and no further adjustment is required to take into account post separation contributions.

Section 79(4) Factors

I do not see that the order I propose making will have any effect upon the earning capacity of either party to the marriage.
The parties are both in good health. The mother presently works as a healthcare worker. She will receive the benefit of the future income of the H property.
The father says he is presently unemployed and has been so for some time. He gives no evidence of the steps he has taken to obtain work other than to say he recently obtained work at CD Company as a security guard but was terminated on his first shift because of difficulties that company had with the mother serving subpoena on it. He says that he has suffered significant depression during that time and that caused him difficulty in obtaining work. There is no evidence of any medical diagnosis.
The result of the orders I propose making each of the parties will retain the residence in which they live. The mother will also obtain the benefit of the H property which will generate an income for her. The father, as can be seen, has the capacity to borrow significant amounts of money and to engage or attempt to engage in business as he has done since separation. He has the capacity for employment.
The father submitted that the mother has a significant financial resource available to her in that she is or is about to engage in a relationship with Mr Z and that they are about to buy a house together. The mother and Mr Z denied that they had bought or were in the process of buying a property together. They each said that, although a permanent relationship involving them living together was possible, neither was proposing to consider that until the conclusion of these proceedings. Thus, although it is possible that the mother might enter into a full time relationship with Mr Z, it remains just that.
The mother will have the care, control and support of the child for a significant number of years to come.
The mother has debts totalling some $23 187 which have arisen after separation.
The father, on the other hand, asserts that he has liabilities of $442 825.29 which include previous costs orders, the Receiver’s costs of $96 727.17, the school fees and the ICL’s costs, together with debts owed to Mr MZ, Mr DH and Mr HR of $30 000, $140 000 and $96 000 respectively.
If, indeed, the father does owe those amounts of money then he is in a difficult financial position.
The father has remarried, has a young child by that marriage and another child to the marriage is to be born shortly. He thus has the obligation to support his wife and his two children.
The evidence does not establish that either party is entitled to or receiving a pension allowance or other Government benefit. The evidence does not disclose the financial circumstances of the father’s current wife but it was not suggested that she had significant assets or income.
The mother is not cohabiting with Mr Z. His financial position is unknown in any event.
The court is entitled to take any other relevant matter into account under s 75(2)(o) of the Act. Two particular matters were raised by the mother.
The first was that the level of family violence made the mother’s contributions to the family more arduous. Although there was some evidence of family violence, as discussed earlier in the judgment, there is no evidence as to how that made the mother’s contributions, of any particular kind, more arduous. The evidence does not bring the case within the exceptional band of cases identified by the Full Court in Kennon and this claim is not made out.
Where there has been non-disclosure, whether accidental or wilful, the court is entitled to err on the side of generosity to the person who might be seen to be disadvantaged by the lack of financial candour. In those cases the court need not be unduly cautious about making findings in favour of the innocent party. Black & Kellner (1992) FLC 92-287; 15 FamLR 343, Weir & Weir [1993] FLC 92-338 and Kannis & Kannis [2002] FamCA 1150.
I have detailed the father’s non-disclosure above. That is a significant factor to be taken into account and weighed in favour of the mother. The father has clearly had access to very large sums of money the source of which remains largely unexplained.
Taking these matters into account I am satisfied that it is appropriate to make an adjustment under s 75(2) in favour of the mother. This reflects, in particular, her continuing care of the child and the father’s non-disclosure.
The mother sought orders that would see her retain the L property and the H property and be liable for its mortgage. The father would retain the M property. He would, however remain liable for the Receiver’s fees, school fees and the costs orders that have already been made. He would also be liable for whatever debts he incurred after separation. He says that they are extensive. This division is somewhat less than what might otherwise have been made having regard to the father’s non-disclosure. I am of the view that this is an appropriate adjustment as this adjustment would see, in broad terms, each of the parties retaining the properties in which they presently reside.

Form of Orders

The net assets of the parties are $2 017 453 ($2 467 387 less $449 934).
The car presently used by Gand the car presently used by J which are jointly owned are, by consent, to be transferred to each of them respectively. They have a total value of $27 500. The net assets to be divided between the parties are thus $1 989 953.
If the mother receives the L property and the H property but remains responsible for the mortgage on the latter she would receive the following assets and liabilities:
O Street, Town L           $675 000
E Street, Suburb H           $810 000
Greater Building Society Account          $6
NAB account           $936.71
Toyota motor vehicle          $24 000.00
The mother’s superannuation           $55 692.47
Farm tools and equipment          $3 000
Furniture and Chattels          $5 000
Total$1 573 635
The mother is to be liable for the following debts:
NAB mortgage loan   $447 370
Rates owing to the … Shire Council        $    2 090
OSR Land Tax   $      473
Total $449 933
On that basis the mother will receive net assets of $1 123 702.
Thus, of the assets to be retained by the father and the mother, she is receiving 56.5 per cent of the total net assets.
The father will retain the following assets:
X Street, Suburb M           $820 000
Ganem Pty Limited Account           $194
Nissan motor vehicle  $6 000
The Dyna Truck            $2 000
Father’s Superannuation   $35 895
Furniture and Chattels  $1000
Ford motor vehicle  $1000
Total $866 089
The father will not bear any of the parties’ liabilities referred to above.
A division of the parties’ assets so that the mother receives 56.5 per cent and the father 43.5 is appropriate. It reflects an adjustment, having regard to their respective contributions, of 6.5 per cent, or $129 347 (based on the assets excluding the cars being given to the children). That is a substantial adjustment reflecting the mother’s continued care of the child in particular, the non-disclosures of the father and taking into account the mother will be receiving an income producing property. I reiterate that the property division sought by the mother was that she receive the Town L and Suburb H properties and be liable for the mortgage on the latter. The above division is, therefore, in accordance with the orders sought by her. It would not be appropriate to go beyond those proposed orders notwithstanding the difficulties with the father’s disclosure. Further, it is to be recalled that the father is to be liable to the Receivers for their fees and for the outstanding fees to Y School. When one adds to this the benefit the mother will receive into the future from the H property one can see why no further adjustment was sought. It is an appropriate result in all the circumstances.
It follows that there will be orders providing for the payment of the Receiver’s fees and the school fees by the father. The father is also indebted to the mother for outstanding costs. The mother sought orders enabling the sale of the M property, in effect by her, in the event either the outstanding costs payable to her or the Receiver’s remuneration were not made. I do not consider it appropriate to make orders in advance for enforcement of the judgment. The mother and the Receivers can enforce the orders in their favour as they may consider appropriate.
There will be orders that the husband receive the company and indemnify the wife in respect to any liabilities for which she may be liable but she will be required to release it from any claims she may have against it. This is because the husband had the effective management of that company, to the exclusion of the wife. For similar reasons, similar orders will be made for the wife to receive the benefit of the partnership and to indemnify the husband in respect of its liabilities.
Taking all of the above matters into account, I am satisfied that the orders I propose to make are appropriate, that is to say, just and equitable taking into account all of the matters I have discussed under the heading s 79(4) as set out above. The orders meet, as best they can in the circumstances, the obligation under s 81 finally to determine the financial relationship between the parties and avoid further proceedings between them to the extent possible.

Child support departure order

The mother seeks an order that:
That pursuant to Section 123(1)(b) of the Child Support (Assessment) Act, the Respondent forthwith pay to the Applicant $84,504.60 as lump sum child support payment for the child of the marriage. This sum is to be 100% credited against the husband’s future liability for child support in respect of the <CHILD_child_children>, under section 69A of the Child Support (Registration and Collection) Act.
[As per original]
Neither the mother’s evidence nor the mother’s submissions identified how the sum sought was arrived at.
On 8 July 2014 the Child Support Agency (“the Agency”) issued an assessment to the father requiring him to pay child support for the child in the sum of $676.65 per month. As at 29 August 2014 the arrears of child support payments was $1 646.36.
That assessment was based upon a finding by the Agency that the father had a tenable income of $82 000. This is, of course, at odds with the father’s assertions that he has no relevant income. The father lodged an objected to the assessment which has not been determined at the date of hearing.
Section 123 of the Child Support (Assessment) Act 1989 (Cth) provides that an order for child support may be made otherwise than in the form of periodic payments. The determination of such an application is governed by s 124 which provides:
(1) Where:
(a) a carer entitled to child support or a liable parent makes an application under paragraph 123(1)(a); and
(b) the court is satisfied that it would be:
(i)just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(ii) otherwise proper;
to make an order that the liable parent provide child support for the child otherwise than in the form of periodic amounts paid to the carer entitled to child support;
the court may make the order.
(2) In determining the application, the court must have regard to:
(a) the administrative assessment in force in relation to the child, the carer entitled to child support and the liable parent; and
(aa) any determination in force under Part 6A (departure determinations) in relation to the child, the carer entitled to child support and the liable parent; and
(b) any order in force under Division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent; and
(c) whether the carer entitled to child support is in receipt of an income tested pension, allowance or benefit or, if the carer entitled to child support is not in receipt of such a pension, allowance or benefit, whether the circumstances of the carer are such that, taking into account the effect of the order proposed to be made by the court, the carer would be unable to support himself or herself without an income tested pension, allowance or benefit.
(3) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make an order under subsection (1), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
(3A) In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).
(4) In determining whether it would be otherwise proper to make an order under subsection (1), the court must have regard to the matters mentioned in subsection 117(5).
(5) Subsections (2), (3), (3A) and (4) do not limit the matters to which the court may have regard.

Subsections 117 (4), (6), (7), (7A) and 8 provide:
(4) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b)the proper needs of the child; and
(c)the income, earning capacity, property and financial resources of the child; and

(d)the income, property and financial resources of each parent who is a party to the proceeding; and

(da) the earning capacity of each parent who is a party to the proceeding; and

(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i)himself or herself; or
(ii)any other child or another person that the person has a duty to maintain; and

(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g)any hardship that would be caused:

(i) to:
  (A) the child; or
  (B) the carer entitled to child support;
  by the making of, or the refusal to make, the order; and

(ii) to:
(A) the liable parent; or
(B) any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and

(iii) to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
…..

6) In having regard to the proper needs of the child, the court must have regard to:
(a) the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
(b) any special needs of the child.

(7) In having regard to the income, earning capacity, property and financial resources of the child, the court must:
(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.

(7A) In having regard to the income, property and financial resources of a parent of the child, the court must:
(a) have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.

……
(8) In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care.

There is in force, at present, an administrative assessment for child support. It is based upon a finding that the father’s income is in excess of that contended for by him. The nature of the existing assessment points against the making of a non-periodic order because the father’s material income, as determined by the Child Support Agency has been taken into account in the assessment.
Turning to s 117(4) there is no satisfactory evidence of the direct and indirect costs incurred by the mother in providing care for the child. This, and the fact I do not know how the sum sought as a non-periodic payment of $84 504.60 has been arrived at, makes it difficult, if not impossible to determine that the proposed order is just and equitable, even if all of the other factors which are to be considered otherwise pointed in favour of the order.
The nature of the assessment and the fact that it is under review, when coupled with the lack of relevant detail as to the sum sought and lack of evidence as to the cost of the child’s care precludes a finding that the order sought is otherwise property. This is so even if the other considerations, required it to be taken into account by s 124, supported such an order.
The application for non-periodic child support will be dismissed.

I certify that the preceding two hundred and ninety-four (294) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 24 December 2014.

Associate:

Date: 24 December 2014