Garnand & Garnand
[2024] FedCFamC2F 971
•10 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Garnand & Garnand [2024] FedCFamC2F 971
File number(s): NCC 3531 of 2023 Judgment of: JUDGE BETTS Date of judgment: 10 May 2024 Catchwords: FAMILY LAW – Interim hearing – parenting – where the parents are in dispute as to the schooling arrangements for the two youngest children and the time the youngest should spend with the father – where the father seeks to progress to one overnight on alternate weekends – where the mother seeks that the time remain as daytime only – where the Court considers it appropriate to move to one overnight – where the Court considers that the children should continue to remain at their respective schools and that the mother be restrained from enrolling them in any other school – various restraints – best interests of the children.
FAMILY LAW – Interim hearing – property – two real properties – where each party resides in one – where the wife seeks the sale of the both properties and for the sale proceeds to be held in the solicitors trust account – where the wife does not seek an interim distribution upon sale – where the husband seeks to retain the property he resides in – where the Court must consider whether it is just and equitable to sell the property the husband resides in – just and equitable outcome.
Legislation: Family Law Act1975 (Cth), Pt. VII and Pt. VIII Cases cited: Amador & Amador (2009) 43 Fam LR 268
Re G: Children’s Schooling (2000) FLC 93-025
Strahan & Strahan (2010) 42 Fam LR at 203
Division: Division 2 Family Law Number of paragraphs: 104 Date of last submission/s: 9 May 2024 Date of hearing: 9 May 2024 Place: Newcastle Counsel for the Applicant: Ms Evelyn Solicitors for the Applicant: Gillard Family Lawyers Counsel for the Respondent: Mr Bithrey Solicitors for the Respondent: Delaney Roberts Family Lawyers ORDERS
NCC 3531 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GARNAND
Applicant
AND: MR GARNAND
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
10 MAY 2024
THE COURT ORDERS THAT:
1.The child X born in 2009 live with the Mother and spend time and communicate with the Father in accordance with X’s wishes.
2.The child Y born in 2013 live with the Mother.
3.Y spend time with the Father as agreed in writing between the parents and failing agreement:
(a)During school terms from 9.00am Saturday to 5.00pm Sunday each alternate weekend;
(b)During the school holiday periods;
(i)Order 3(a) will be suspended;
(ii)During the June/July and September/October school holidays, from 9.00am Saturday to 5.00pm Sunday on the first and third weekends of those holiday periods and from 9.00am to 5.00pm on the Tuesday and Thursday of week 1.
(c)During the Christmas school holidays;
(i)From 9.00am Saturday to 5.00pm Sunday on the first, third, fifth and seventh (if applicable) weekend;
(ii)From 9.00am to 5.00pm on the Tuesday and Thursday of first, third, fifth and seventh (if applicable) week; and otherwise
(iii)From 9.00am to 5.00pm on Christmas Eve;
4.Changeovers occur at B Shop at Suburb C unless otherwise agreed in writing between the parents.
5.The Mother is restrained from:
(a)Enrolling Y in any school save for D School Suburb E;
(b)Enrolling X in any school save for F School Suburb G;
(c)Enrolling Z born in 2006 in any school save for H School Suburb J.
6.At any time when the children X and Y are in her care, the Mother is restrained from drinking alcohol to such an extent that would make her unable to legally drive a motor-vehicle in the State of New South Wales.
7.The Father be restrained from consuming any alcohol, or being in any way effected by alcohol, at any time when X or Y are in his care.
8.Each parent be restrained from:
(a)Denigrating the other parent or members of the other parent’s family or household, or any other partner or friend of the other parent, to or in the presence or hearing of the children, or from allowing the children to remain in the hearing or presence of any other third party engaging in such denigration;
(b)Discussing these proceedings with the children or showing the children any Court documents, or questioning the children about any of the Court documents including but not limited to the Child Impact Report, or allowing any third party to so question the children, save for an Independent Children’s Lawyer, a Court Child Expert or any other Single Expert appointed by the Court to specifically do so;
(c)Using the children to pass messages to the other parent;
(d)Inflicting corporal punishment on any of the children or permitting any other person to do so;
(e)Possessing, consuming or being in any way effected by an illicit drug;
(f)Knowingly exposing any of the children to “family violence” as defined in section 4AB of the Family Law Act1975, a copy of which section is attached to these Orders.
9.Pursuant to s 68L(2) of the Family Law Act1975, the children X born in 2009 and Y born 2013 be independently represented AND IT IS REQUESTED that Legal Aid NSW arrange such independent representation and:
(a)forthwith upon appointment by Legal Aid NSW or otherwise, the Independent Children’s Lawyer file a notice of address for service;
(b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent themselves) provide to the Independent Children’s Lawyer copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports;
(c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Federal Circuit and Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and
(d)the Independent Children’s Lawyer prepare a minute of the orders they will recommend be made as final orders.
THE COURT ORDERS ON AN INTERIM BASIS IN RELATION TO THE PROPERTY PROCEEDINGS, THAT:
10.Within twenty-eight (28) days of the date these Orders, the parties shall do all acts and things and sign all necessary documents to effect the sale of the property known as and situated at K Street, Suburb E (Folio Identifier: …) (“The K Street Property”) and for that purpose the following shall apply:
(a)The K Street property shall be listed for sale by private treaty with L Company;
(b)The parties shall do all acts and things and sing all documents necessary to instruct M Conveyancing to act on the sale of the K Street property including preparing the contract for sale;
(c)The list price of the K Street property shall be such amount as I agreed between the parties and failing agreement within seven (7) days the list price for the property shall be nominated by the real estate agent;
(d)The sale price of the K Street property shall be such amount as is agreed between the parties and failing agreement to accept any offer to buy the property that is at least the minimum list price;
(e)The parties are to co-operate in every way with the real estate agents in relation to the marketing of the K Street property for sale including making the keys readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;
(f)That upon agreement being reached for the sale of the K Street property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the K Street property including all transfer documentation upon its submission to them by their agent or solicitor.
11.In the event that contracts for sale of the K Street property are not exchanged within four (4) months of the date of listing for sale by private treaty, unless otherwise agreed between the parties, then the parties shall do all acts and sign all documents as are necessary to sell the property by auction and the following shall apply:
(a)The K Street property shall be listed for sale by auction within a further three months;
(b)The parties shall execute all documents requested by the auctioneer for sale of the K Street property by auction;
(c)The reserve price of the K Street property shall be such amount as is agreed between the parties and failing agreement as nominated by the agent;
(d)The parties are to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the K Street property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction;
(e)The auction sale price of the K Street property shall be any amount in excess of the reserve price but in the event of the reserve price no being reached the sale price of the property shall be such amount as is agreed between the parties or failing agreement any offer received after the auction to buy the property at a price that is at least 98% of the reserve price;
(f)In the event that Contracts for the sale of the K Street property are not exchanged within seven days of the first or any subsequent auction the parties shall cause a further auction of the N Street property to be held within three months after the date of the prior auction and for that purpose the provisions of the above auction Order shall apply, with reserve price to drop on each subsequent auction with the percentage listed in Order 11(e) to drop by 2% each auction.
12.Upon completion of the sale of the K Street property the proceeds of sale shall be paid as follows:
(a)In payment of all outstanding rates, land taxes (if relevant) and other adjustments on the sale;
(b)To discharge the mortgage secured over the property;
(c)A sum of $40,000.00 to be paid to the trust account of the Wife’s solicitor;
(d)The amount necessary to discharge each of the outstanding school fees for the three (3) children Z, X and Y and their respective schools, to include all school fees up to the end of the 2024 school year;
(e)Payment of the agents commission, advertising or other expenses payable upon the sale including conveyancing and other legal costs; and
(f)The balance left over to be applied towards the Commonwealth Bank of Australia home lending account …75 secured over the title of the property at N Street, Suburb E NSW.
13.Pending the sale of the K Street property, the Wife is to have sole use and occupation and both parties are restrained from disposing of, encumbering or otherwise dealing with their interest in this property.
14.Pending settlement of the K Street property, the Wife shall be solely responsible for all outgoings with respect to the K Street property including but not limited to mortgage repayments, council and water rates, insurance and all other costs associated with the upkeep and maintenance of the K Street property.
15.Pending settlement of the sale of the K Street property, the Wife is to vacate the premises no less than seven days prior to the date for completion under the sale contract, leaving the property in a clean and tidy condition and removing all of hers and any dependent’s belongings from any location within the boundary of the property.
16.Until further Order in relation to N Street, Suburb E:
(a)The Husband is to have sole use and occupation thereof;
(b)The Husband is to be responsible for meeting all minimum home loan repayments, rates, utilities, insurances and outgoings for that property;
(c)The Wife is to be responsible for meeting all minimum home loan repayments for the CBA home lending account …75.
17.All extant interim applications are dismissed.
18.In the event that the Husband fails to meet the outgoings for the property at N Street, Suburb E in accordance with Order 16(b), then upon the Wife filing an Affidavit annexing independent evidence corroborating such default, she is at liberty to seek an urgent Order for sale of that property and the Court dispenses with any requirement that she file a formal Application in a Proceeding. Her Affidavit is to set out her proposed Orders.
NOTATION:
A.The Court strongly urges each of the parents to undertake a “Parenting After Separation” program if they have not already done so, because the Court is alarmed at the parents’ attitude and behaviours.
B.NSW Legal Aid has been given access to this file via the Commonwealth Courts Portal (“CCP”) and is granted leave to view copies of documents available on the CCP.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
INTRODUCTION
I have before me competing interim applications in relation to both parenting and property issues.
The parties to the proceeding are the applicant Ms Garnand (referred to as “the wife” or “the mother”), and the respondent Mr Garnand (referred to as “the husband” or “the father”). The parents are in dispute as to what ought to be the schooling arrangements in respect of their two youngest children, X and Y, and they are also in dispute as to what time Y should be spending with the father. The oldest child, Z, is almost eighteen, and there is no need to make any specific orders in relation to him. It is common ground that he is spending time with the parents as he wishes, and no-one really seeks to stop that.
X has been spending some time with the father since the parents’ separation in December 2022, but this seems to have ground to a halt in either March or April 2023, or perhaps in June of 2023, depending on whose evidence is accepted. In any case, both parents agree that as X is fifteen and somewhat estranged from his father, that no-one is going to try to force him to spend time with the father against his wishes.
In terms of the “spending time” arrangements, the real dispute relates to Y. She has been spending time with the father on alternate Saturdays, and the father seeks to extend that time to include overnight time. The mother seeks that the time remain Saturday daytime only.
In relation to the property, each of the parties lives in a home at Suburb E. The wife lives in a property at K Street. The husband lives in a property at N Street. The wife is agreeable to the sale of the K Street property, and also seeks that the N Street property, occupied by the husband, be sold. He opposes its sale, as he wishes to remain living there, and he has aspirations to retain it as part of a final property division in this case.
There is also a dispute as to what ought to happen in relation to the sale proceeds concerning the K Street property, in the event that only it is sold. That is to say, there is a separate home loan numbered #...75, which, it is common ground, was taken out by the parties after separation in order to enable the wife to purchase the K Street property which is now to be sold. The husband wants that loan paid out. The wife opposes the loan being paid out. She wants the net sale proceeds put into trust, but, as I indicate, her desire, and indeed her application, is that both real properties be sold.
THE HEARING & MATERIAL RELIED UPON
The matter came before me for interim hearing yesterday.
The wife was represented by Ms Evelyn of counsel. She read and relied upon a comprehensive Case Outline Document of 8 May 2024; an affidavit of the wife filed 1 May 2024; and a Financial Statement of the wife filed 6 May 2024.
The husband was represented by Mr Bithrey of counsel. He relied upon a Case Outline Document filed 8 May 2024; the husband’s formal Response document filed 18 January 2024; the husband’s affidavit filed 18 January 2024; and the husband’s Financial Statement filed 18 January 2024.
In addition to that material, the parties tended various exhibits to which I will refer as relevant. I also had the benefit of oral submissions from counsel, and I was assisted by such submissions.
PARENTING DISPUTE
I will begin by focusing on the parenting issues.
By way of brief overview, the parents commenced a relationship in either late 2003 or 2004, depending on whose evidence is ultimately believed. They married in 2007. They separated in either December 2022 or perhaps January 2023. In early 2023, the wife purchased the K Street property to which I have referred.
There are three children of the relationship: Z born in 2006 who is, as I indicate, almost eighteen. He is in Year 12 at H School in Suburb J, City O. The middle child, X, was born in 2009, and is fifteen years old. He is presently attending F School in Suburb G, City O, where he is in Year 9. The youngest child Y was born in 2013, and is ten years of age. She attends primary school and is in Year 5 at D School, a Catholic school at Suburb E.
As I have indicated, Z is essentially making his own arrangements. Even though the mother wishes to be able to change X and Y’s school from their current schools, she does not seek to do so in relation to Z; she accepts that he should finish his Year 12 at D School.
During the relationship, each parent was an involved parent for the children. It is unnecessary for me to delve into what each party’s role exactly was in that respect, but both were certainly actively involved so far as the Court is able to tell from the material the parties have filed.
Post-separation, it is common ground that the children have lived in the mother’s care. Z, as I indicate, is spending equal time with each parent. X was spending some time with his father until March, April or perhaps June of 2023, and Y has been spending alternate Saturdays with him.
Factually, this is a difficult case. Of course, I am conducting an interim hearing, which only makes the matter more difficult. The Court cannot make findings about disputed facts, but nor can the Court simply cast to one side the various allegations that each party makes about the other. The Court is obliged to act intuitively and to consider the evidence and to weigh the competing scenarios for the children in the event that each party’s case is ultimately made out or not made out.
I am familiar with the new provisions set out in the Family Law Act1975 (Cth) (“the Act”) and particularly section 60CC of the Act, which sets out the relevant considerations in arriving at a best interests decision - the best interests of the children, of course, being the paramount consideration pursuant to section 60CA.
This case can only be described as troubling in relation to the conduct of both parents. It is obvious from reading the material that theirs was a most unhappy and dysfunctional relationship – the wife says particularly from 2013 onwards. Each parent accuses the other of abusing alcohol. Each parent accuses the other – and there is, in a sense, some agreement that this is so by each parent – that each of them used illicit drugs during the relationship. It is also quite clear, regrettably, that there was significant conflict between the parents which manifested in family violence between them. There is a substantial debate between the parties about exactly what the nature of the violence was, but one thing is clear: that each parent accuses the other of behaving in a physically abusive manner towards them.
The mother concedes some acts of family violence towards the father, which she says were in self-defence. The father, likewise, concedes that at a particular altercation the parents had in late 2022, that he hit the mother, although he says that was self-defence as well.
Exhibit 1 to the proceedings is a Child Impact Report by Mr P and paragraph 28 of that report, in my view, bears repeating:
28It is apparent that there has been a significant background and history of enduring family conflict, as well as there being allegations and counter-allegations of family violence, that the children have been exposed to. It is noted that there are charges against both parties in relation to physical assaults upon the other party (which may have been heard and finalised by the time of this report being finalised). Additionally, there have been ADVO’s put in place against both parental parties which have logically restricted the ease of communication and ‘handovers’ between the two parental parties. The mother’s partner was said to often facilitate the handovers. There is a possibility of an exposure to family violence, and/or an exposure to parental denigration, impacting upon one or all of the children in the future.
At paragraph 29 Mr P records that the mother made some acknowledgement of acts of physical violence towards the father, such as hitting the father with an object. However, the mother was clear to state that such acts were in self-defence and she reported that she had been struck in the face, pushed, and had had injuries as a result of the father’s violence towards her.
I should add here that - for reasons that are unexplained but seem at least partly to relate to some miscommunication - that the father did not attend for the Child Impact Report interview, and so only the mother attended. This is obviously a limitation and no doubt that matter can be explored later.
Each party has an AVO protecting them from the other. The mother has a final AVO protecting her which was made in early 2024: exhibit 4. The order includes NSW standard orders 1, 6 and 8. In broad terms, the father is not to assault or threaten the mother, stalk, harass, or intimidate her, intentionally or recklessly destroy or damage any property she has or any animal that she owns. He is not to approach or contact her in any way except through a lawyer or to attend Court-related events or as agreed in writing. He is not to go where the mother lives or where she works.
There is a provisional AVO, or perhaps an interim AVO (the difference does not really matter), which presently protects the father from the mother. It too contains conditions 1, 6 and 8, and it is broadly in the same terms as that protecting the mother.
The father has been charged with two separate assaults against the mother, the first relating to an altercation in late 2022, the second relating to a push event where the mother apparently attended at the former matrimonial home in mid-2023, although there is some confusion about the date of this particular alleged assault. It, perhaps, does not matter much because in relation to both, the father was acquitted in the Local Court after a hearing. From reading his material, it seems that his defence in relation to the late 2022 assault related to self-defence. In relation to the latter assault, the father’s case is that it simply never happened.
Regrettably, I am not assisted by any reasons for judgment of the Local Court. Those reasons should, if possible, be obtained and provided to the Court at a later date. I am not critical of either party not being able to tell the Court the reasons why the learned Magistrate dismissed each of the charges. There is no guarantee that the father was even present at the time the decision was handed down. He may not have been. Likewise, in the ordinary course of events the mother as a complainant would certainly not have been present. There is obviously a “to be continued” flavour in relation to these matters, but it would be remiss of me not to observe that, of the criminal charges that Police saw fit to bring against the father, he was acquitted. That said, an AVO was put in place for the mother’s protection.
Now in that respect the mother makes numerous allegations of family violence – particularly, at paragraphs 37, 38, 40, and 44 of her affidavit. She accuses the father of damaging property, hitting her, stalking behaviours and various other serious assaults, none of which the father seems to have been charged with, although that is not determinative of the truth or otherwise of such allegations, as is clear from the Full Court’s decision in Amador & Amador (2009) 43 Fam LR 268.
Effectively the mother paints a picture of the father as being someone who made the family ‘walk around on eggshells’, who would from time to time behave in a violent, taunting and aggressive way, and later apologise. She says he has kicked her, hit her, pushed her, held her up against a wall by the throat, including in front of the children. She accuses him of putting a listening device in their room. She also accuses him of engaging in excessive physical discipline of the children and particularly of terrorising young X - on one particular occasion, when the mother found some vaping implement or implements in his bedroom.
She accuses him of assaulting her in late 2022. This seems to be the event which the Police charged the father with, although given all of the allegations and counter-allegations in this case, it may not be. The mother says (or at least infers) that in late 2022 the father assaulted her – but ironically this was not the subject of a criminal charge as best I can tell from her affidavit. Rather, the criminal charge relates to the event of late 2022, so it does seem to have been a different matter. I say “ironically”, because the late 2022 matter is less significant than what the mother alleges had occurred just three days earlier, and it is a mystery to me as to why only the latter matter was the subject of a charge, which, in any event, the father was acquitted of.
It would be fair to say that the mother makes very serious allegations of family violence against the father, and they are matters which the court has to treat seriously. They are not, however, the whole story. As I have indicated, the father accuses the mother of significant family violence against him, including herself perpetrating violence against the children.
He says that she would physically assault him by striking him on the body or the face; that she said cruel or abusive things; that she criticised his mental health, teased him about his Aboriginal heritage and was generally abusive and could be quite extreme, in terms of dealing with the children. In terms of discipline he suggests that on the one hand she would be permissive and spoiling, then go to the other extreme and call them what he says are the most offensive names. He says that the mother assaulted him many times, almost always striking him in the face.
The mother says in her affidavit, she has a lot of regrets about things that happened and wishes things had happened differently, but as I read her material she does not concede engaging in any family violence.
I should add to this that the Police have now brought charges against the mother, in relation to conduct the father has complained of. It seems that in late 2023, the father decided, perhaps cynically in a tit-for-tat way although I do not know the merit of the matter yet, that he would, himself, go to the Police about things the mother had allegedly done to him. I say that it may have been “tit-for-tat”, only because the timing of his complaints is what is of concern. For example, he makes a complaint that years earlier in late 2019, the mother had thrown an object at him, hitting his eyebrow and causing it to bleed. He makes a complaint about a punch in late 2022 and some more hitting in late 2022, which relates to the hitting with an object (which the mother seems to concede may have happened when she spoke to the author of the Child Impact Report). He also complains that the mother started screaming and throwing objects on to the floor in early 2023, as a result of which she damaged some property.
In short, the mother seems to be facing assault complaints as well as a malicious damage complaint. She is pleading not guilty. Like the father, she says that she has been falsely accused. Those matters remain outstanding.
In a nutshell, each party accuses the other of quite high-level family violence, which is a matter of some concern to the Court.
What also concerns me is the almost nihilistic or pyrrhic approach these parties seem to have taken post-separation. I say that because it is quite obvious to me that their conflict is such that they will rapidly deplete their physical and emotional resources if they continue fighting at this rate. I cannot put it any simpler than that.
Apart from family violence issues, which cut both ways, there are issues related to drugs as I have indicated. In that respect, each parent used illicit drugs during the relationship. Each has provided the Court with clean hair strand tests: in the father’s case exhibit 2, in the mother’s case exhibit 5. Injunctions can be put in place to protect the children in relation to drugs, and I do not regard that issue of itself to be something which warrants any further discussion.
There is one disturbing aspect of the matter in relation to drugs, however, and that is the mother’s concession or admission recorded in paragraph 30 of the Child Impact Report, exhibit 1, that:
30The mother did acknowledge giving the child [Z] [“cannabis”]) because [Z] was apparently curious and the mother believed that facilitating and monitoring the child’s experimental drug use was justified.
The mother may have considered such behaviour to be justified, but it was on any view a criminal act to do so, and it could not possibly be justified on any analysis. Indeed, the author of the Child Impact Report confirmed that there was no empirical evidence that doing such a thing was in the child’s best interest.
There are allegations in relation to alcohol abuse; each parent accuses the other of abusing alcohol during the relationship. The mother tenders (as exhibit 6) the father’s GP Health Summary of early 2024, in which the father apparently is recorded by his GP as drinking ten drinks at a time on two separate sessions per week. That is to say, on any reasonable view he ‘binge drinks’ twice a week. Though the father does not concede that description, this is obviously a disturbing amount of alcohol abuse. Having said that, like illicit drugs, the issue of alcohol can be managed by way of injunctions.
The father’s allegations against the mother could not really be said to be any less serious than the allegations she makes against him. He says in paragraph 63 of his affidavit that the mother consumed excessive alcohol on multiple occasions, including to the point of vomiting, with the children witnessing it. He says the mother drunk drove on one occasion and that on another occasion, apparently while also drink-driving, she crashed Z’s car and hid from the Police to avoid undergoing a breathalyser test. He says that the mother called his sister to pick her up as she had fled down the street to avoid the Police and that Z’s car was significantly damaged. I would expect that having made such a serious allegation, the father would call his sister to give evidence at the final hearing, but that is a matter for another day.
I am aware that the mother wanted the father to undertake an alcohol test for the purpose of his hair strand testing and did not do so. It simply suffices to say that I have concerns about the alcohol use of both of the parents. Again however, as I indicate, I consider that it is a matter which can be properly addressed and appropriately addressed by way of injunctions.
The other issue which arises in the context of section 60CC(2)(a) is the parents’ mental health, particularly the mental health of the father. In this respect, there is a live and significant dispute. The mother contends – and this is supported by exhibit 6, the Health Summary – that the father has been diagnosed with a mental health condition (2017), Attention Deficit Disorder (2018) and Depression (2019). The father accepts a diagnosis of depression but positively denies any other diagnoses. I am very sceptical of the father’s evidence in this respect and would find it extraordinary that his own GP would get it so wrong in a Health Summary. It seems in all likelihood that the father is downplaying or minimising the extent of his mental health troubles. That is far and away the most likely situation.
Having said all of those things, the sorts of behaviours which he alleges against the mother in respect of some of her erratic behaviour also raise the spectre of whether she might have some mental health issue as yet undiagnosed.
And in this respect I now turn to the other matter, about which I intend to be scathing, deliberately scathing, of both parents. They have both behaved disgracefully in terms of involving and immersing the children in this dispute. So much I can say without any hesitation because I have it ‘in black and white’, annexed to the affidavits.
Annexure ‘A’ to the mother’s affidavit filed 1 May 2024 is some text messaging between the father and Y, which reads as follows:
[Y]: Mum said if you want to make plans you have to see the solicitor.
I pause there to say that that is evidence of the mother involving the child in family law matters, which is entirely inappropriate. The father responds:
That’s a shame darling. I know you were looking forward to it.
Again, entirely inappropriate, attempting to get the child caught up in an adult dispute. Y responds:
Mum didn’t say no she just said that you need to make plans through the solicitor.
I repeat what I said earlier about that. The father responds:
That’s not true, you’re allowed to spend the day with me. Mum just has to agree, which she clearly doesn’t. As you said you aren’t doing anything else. It’s you who is sadly missing out princess xx.
The father may have blown his child two digital kisses, but in an emotional sense he was in fact effectively slapping her across the face. He was directly involving her in the family law dispute with the mother. His behaviour was disgraceful in this respect. The mother is not much better.
And then I look at the father’s affidavit, and it becomes obvious that it is entirely a two-way street, and that each of the parties is willing to plumb the proverbial ‘bottom of the barrel’ in this respect.
I have before me, as annexures ‘F’ and ‘G’ to the father’s affidavit, some exchanges between the mother and the children.
Annexure ‘F’ consists of a message sent by the mother to Y, which says:
Also, just ignore any texts from Dad today.
This is disgraceful, on the mother’s part. Again, directly involving the child in the dispute.
But worse, I have, as annexure ‘G’ a text message between Z and the mother, and effectively, it goes like this:
[Z]: I’m so sorry I’ve let you down and I didn’t mean too [sic].
Mother: He lied to u, that’s what he does. He manipulates you.
[Z]: I didn’t realise he was manipulating me I’m sorry.
[Z]: I’m so sorry.
Mother:I love u but u need to be smarter than this. U r being pulled into his shit.
Mother: U have really hurt me. I trusted u.
[Z]: I’m rlly sorry I didn’t realise what he was doing, and I’m so so sorry
[Z]: I’m sorry for how stupid I was to not realise and I love you so much
Mother: I trusted u. I didn’t want to tell u and I chose to trust u. …
Disgraceful. In a word, disgraceful. It is completely and entirely inappropriate for these parents to directly involve their children in these sorts of disputes.
In my view, both of these parents should be ashamed of themselves, although I get rather the sense that they are not. Each prefers to claim the victim role, to be the poor helpless victim of the other. The real victims in this miserable dispute are these three children.
In this respect I should also add that a very serious allegation is made about why the father’s time with X, in particular, came to an end.
The mother alleges – and again, if this is true, it is disgraceful behaviour by the father – that on a visit with the father in March or April 2023 X was wanting to go home to his mother; he had texted the mother to this effect. She says that X later complained that the father had taken his and Y’s mobile phones, read their phone messages, and made them sit down for an hour during which time he did not even let them go to the toilet. In other words, the father lashed out at his own son because his son wanted to spend time with his mother.
I should also add that X corroborated that version of events at paragraph 21 of the Child Impact Report, saying that his father was looking at his phone messages, and when he saw that he had messaged the mother, he yelled at him and at Y about the mother and made them both sit on the floor for ninety minutes.
The father denies this event occurred, but does admit that there was a much less serious event which occurred, and I do not need to set out his version. It suffices to say that the allegations made by the mother, corroborated by X, if made out constitute emotional abuse of the children.
I have little doubt, from reading the material in this case, that both parents have emotionally abused these children. Whatever finding a trial judge might make in this case, that basal finding seems almost unavoidable.
These parents need a serious wake-up call. Both of them seem to have behaved in disappointing, non-child focused and emotionally dangerous ways in relation to the children.
In terms of the views expressed by the children, Z and X’s views in terms of their living arrangements are at least respected by the parents, and I give them credit for that as it demonstrates a degree of child focus on their part which is helpful and perhaps a good start.
In relation to Y, I should say that there is some uncertainty about the time she wants to spend with her father. It is common ground she is highly anxious. She is being assessed as possibly having Attention Deficit Disorder or Attention Deficit Hyperactivity Disorder. Asked by Mr P how she felt about the current time arrangements, she said she liked it exactly as it is, but that if she had to spend more time with the father, she would possibly see how one overnight time a fortnight would feel from Saturday to Sunday. She stressed she would like to try it and see how it goes, but that this was the “max” time she wanted to live with the father. She also described him having beer cans on the table, and was clearly upset and anxious about her father knowing that she may have said something to Mr P that the father may not like. Notably, though, she also said she did not miss her father because she always sees him around Suburb E, which she said was good. She was also asked if she loved her father and replied that she did, and she appeared to be genuine as she said this.
Ms Evelyn tendered (as exhibit 7) various psychological counselling sessions undertaken by Y, including pre-separation and post-separation. It is clear that she was taken to the sessions by the mother, not by the father. It is clear that the mother was not present for at least some of the periods of the sessions, in fact the relevant periods where the child made alleged disclosures in relation to things she had witnessed.
Y said that the father had called the mother a liar, told her that the mother was addicted to illicit drugs, and had punched holes in the walls, and that she felt scared for her mother; she just wanted them to stop fighting. Post-separation, she talked about being worried about her father doing things that make her feel uncomfortable, likely relating to his mood, and worrying that the father would hurt her again. She talked about having a worried tummy; that is, anxiety. She clearly had been exposed to conflict between the parents and was suffering as a result of that conflict.
What Y told the counsellor is broadly corroborative of the mother’s complaints about the father’s behaviours, but, as I indicate, there is no suggestion that the father himself attended upon the psychologist in that respect, and it is clear that the mother was the parent who took the child there.
There is little doubt that this child experiences some anxiety in relation to the father and in relation to her parenting arrangements, which is hardly surprising given the way each of the parents have behaved both during the relationship and post-separation.
In my view, when I look at Y and X, each of them have developmental, psychological, and emotional needs in relation to stability. This is an important issue when it comes to the question of schooling. The mother does not want to live at Suburb E any more. She wants to be able to move away from the area because she does not want to bump into the father. I understand that. On her case, it is a reasonable approach, but, effectively, she wants carte blanche to be able to move somewhere in the City O area and thereafter she would simply be enrolling X (and Y) in new schools that are convenient to her new locality. So both children would be uprooted, quite possibly from a Catholic school and into a public school, which is a different education system about which the Court has no real evidence. The children, as I understand it, have always been educated in the Catholic system.
The mother’s position is that she ought to have decision-making responsibility in this respect and that her travel convenience and the like are significant matters which bear in her favour, particularly as, on any view, she would have primary care of the children. In this respect, it is clear that X is torn about what to do at school. He is a boy who has been somewhat bullied, apparently by reason of his appearance and his choice of clothes.
Asked about his school, at paragraph 18 of the Child Impact Report, X said it was okay before expressing some unhappiness about the fact that he was often bullied. The bullying apparently relates to his clothing or state of clothing, and I note in this respect that X also has hobbies, apparently competitively, as I read the material, and the bullying or innuendo is such that it is suggested that he is gay, or something to that effect, by reason of his interests and his clothing and activities, etcetera.
X said that he was generally bullied about his clothing or choice of clothing, particularly during out-of-uniform days, but when asked how he felt about changing schools, he was worried. He did not really want to. He did not really want to move out of Suburb E either, although, to be fair, he may not have a choice about that when the mother sells the K Street property that she is in.
When asked if he thought that changing schools would help get him away from the bullying, X replied that he felt as though bullying happens everywhere and said it was simply likely to happen again wherever he went to school.
Y was much more open to moving school. She complained that apparently the teachers did not like her and that she felt that her friends had become a bit rude and she had a fairly limited peer group that she sat with. She suggested her friends were picking on her and were separating her from the group and that it was only a very small cohort. She was quite open to a fresh start and okay with changing schools as her mother had suggested might happen if they move.
The children’s wishes are such that I would give some significant weight to X’s wish to remain in the same school. I accept what Mr Bithrey says about that, namely, that so far as X is concerned it is ‘better the devil you know’ in terms of bullying issues. In relation to Y, she is young, and I take into account her wishes, but they are not determinative.
I have concern about the capacity of both parents in this case to provide for the children’s developmental, psychological, emotional and cultural needs. It is perhaps more relevant in terms of Y than either of the other two children. I am concerned about each parent’s behaviours and about their immersion of the children in the parental dispute and the allegations of family violence, drug and alcohol abuse, etcetera, as discussed earlier. In short, I have concerns about both parents, not just the father.
There would be a benefit to Y in being able to have a relationship with both parents where it is safe to do so. The question is where to draw the line as to what is safe.
Another significant matter that arises pursuant to section 60CC(2)(f) is stability. These children have been through an awful lot since separation. In the leadup to separation, they have witnessed the parents engaged in high level conflict, at times seemingly violent. The mother has re-partnered since separation with a fellow by the name of Mr Q, about whom I know practically nothing, and he does not even get a mention in her material. The mother is going to be moving out of the property at K Street that she has been living in, so that will be yet another change of address for the children.
If the mother has her way, then I have no idea, frankly, where either X, who does not want to leave his current school, or Y, will end up going to school. I simply do not know. Nor does the mother. What she is effectively seeking is a carte blanche order to be able to live where she wants to live within the City O area, and the children will simply have to fit in with that.
The mother has a job in the City O CBD. There has always been quite a significant amount of travel required for the children to attend school. For a start, they go to three different schools. The distance between X’s school at Suburb G and Y’s school at Suburb E also involves some driving time. The fact of the matter is that a certain amount of driving time is baked into the existing schooling arrangements.
I am mindful of the decision in Re G: Children’s Schooling (2000) FLC 93-025 and of the mother’s right to freedom of movement and to live where she wishes, particularly if she is only moving to somewhere else in the City O area. But equally, I am not confident in giving the mother carte blanche when it comes to parental responsibility, particularly noting the complete uncertainty as to where she will in fact be living if she has her way, and noting some of her own behaviours to which I have referred, particularly, for example, the text messaging between herself and Z.
The Court cannot be asked on an interim basis to uproot these children - X particularly against his wishes, who has clearly had a difficult time at school as it is - and simply place them wherever the mother deems fit. I will not make such an order on an interim basis. I consider that it would be tantamount to making a final order on very limited evidence, because the fact of the matter is that the change for the children’s schooling will be very significant if the mother has her way. I consider a much more appropriate child-focused and best interests outcome to be that the mother chooses to live somewhere where she will be able to continue to facilitate the children’s attendances at their current schools. This will involve a degree of sacrifice for her. Good parenting is sacrifice. It should not be the children who make the sacrifice. It should be the parents.
I am aware that the mother complains about the cost of schooling and the father’s fairly limited child support assessment. There is going to be significant money left over from the sale of the K Street property which can deal with all outstanding arrears at least through to the end of this year, and I intend to address that issue by way of orders.
In terms of the time arrangements that should be put in place for Y, it is a difficult balancing act. I am scathing of both parents, the behaviours of both, the attitudes of both. The question with Y is how to promote a relationship with the father that is safe but also respectful of her lived experience and the difficulties that she has had.
Mr Bithrey contended that the time the father spends with Y should not only include overnight time but, in a practical sense, that the child should be spending half of the daytime of the school holiday periods with the father. Such an order would involve an awful amount of handovers – which would, themselves, potentially be stressful – and would be an artificial arrangement that pays mere lip service to the child’s anxiety and to the fact that she is having to adjust to this enormous upheaval in her life. I consider that the father’s application goes too far in this respect.
I should stress that this was an oral application. On the face of the father’s Response, he was seeking a week-about interim order, although at the hearing that was never pursued – and quite properly so.
Likewise, the mother’s proposal that the father simply spend an alternate Saturday pays lip service to the needs of the child to have a relationship with the father, and to the fact that her older brother Z spends half the time with the father. It also pays lip service to any risk factors that exist in the mother’s home.
Ultimately, I have arrived at orders which I consider strike the appropriate balance for Y as well as taking into consideration the needs and wishes of each of the parents – as well as arriving at section 68B injunctions which will, I think, be self-explanatory. I will come to those orders shortly.
I should also say that in arriving at the decision that the children should remain at their current schools, at least for now, that I am aware of the significant absences that X has had from school.
PROPERTY DISPUTE
I turn, then, to the property dispute, and begin by observing that it is an unusual case. I say it is ‘unusual’ because the wife is not seeking that there be an interim distribution of property in her favour. Rather, she is simply seeking not only that her K Street property at Suburb E be sold, but also that the father’s property at N Street Suburb E be sold. I say ‘father’s property’ colloquially – it is jointly owned.
The wife does not seek to retain the sale proceeds to buy herself a home. She does not seek to access the sale proceeds to pay a bond on a rental property. She earns a good income – and, indeed, upon the sale of the home, she will have a much more significant surplus of income over expenses than she does now. She simply wants to have both properties sold and the net equity placed into a solicitor’s trust account so as to – at paragraph 5.65 of her outline:
preserve the net sale proceeds to secure funds available to her by way of final property settlement.
Ms Evelyn of counsel has provided a very useful Case Outline, for which I express my gratitude, in which in paragraph 5.53 she sets out the equity in each property. In a nutshell, there is net equity in K Street of around $251,489, although that figure will be reduced by the sale costs to probably something closer to $200,000. In relation to N Street, there is a net equity of around $492,000 – although, again, that will reduce by reason of sale costs to probably a figure closer to $460,000.
In relation to the specific loan taken out for the purchase of K Street, the loan repayments are $339 per month at this point in time. The wife does not want that loan paid out. She complains that the husband is not paying it. He agrees that he is not paying it, but he points quite legitimately to her own evidence, wherein she says in her affidavit that when the parties were separating their finances, that they agreed to each pay the mortgages on their own properties.
While it is true that the loan #...75 encumbers the N Street property, it is also clear that it was used as the deposit on the K Street property. It was a loan taken out so that the wife could acquire the K Street property to live in, which property is now being sold, but it is, with respect, effectively, a loan that relates to the K Street property more so than the N Street property, whatever might be the formal encumbrances that are in place. I cannot be critical of the husband not paying that mortgage in the circumstances of this case.
Ms Evelyn makes a strong argument that it simply isn’t practical for the husband to meet the weekly repayments if he retains the N Street property. She points to his Financial Statement in which his expenses exceed his income, his income being some $2,692 per week; his expenses being some $3,310 per week. She points to the fact that the husband has previously been in arrears in relation to the loans, although he has since brought them up to date and there is no evidence that there is any current default or any demand by the mortgagee for any sort of default payment or other action being taken to enforce the liabilities secured by way of the mortgage.
Separately, Ms Evelyn submits that in any event it is very unlikely that the husband will be able to retain the N Street property as part of a final property division. On his own case, presumably his best case, the net property would be divided as to sixty percent (60%) – forty percent (40%) in the wife’s favour, which would effectively see him having to mortgage the N Street property ‘to the hilt’ in order to be able to retain that property and pay the wife her cash entitlement.
Both parties’ arguments are open on the evidence before me, but I come back to the basis of the application itself. It is effectively an interim property order sought by the wife, not so that she can access any of the available equity in the N Street property, but purely to convert the two (2) real properties to cash. She does not bring such an application pursuant to the spousal maintenance power of the Court, though there was reference in the material to some future costs, including mediation costs. There was no application advanced pursuant to section 117 of the Act. Accordingly, any such application that the wife brings for this order, effectively seeking the selling up of both properties, not just hers, but also the one the husband lives in, must be brought pursuant to the Court’s power to make an interim property division, which leads me to the authority of Strahan & Strahan (2010) 42 Fam LR at 203.
The wife has to satisfy the Court that the Court should decide to exercise the power to make a property settlement order in circumstances where the usual way in which a Court proceeds is to make a ‘once-and-for-all’ order.
Simply to put the money in a solicitor’s trust account and to have it sitting there does not seem a particularly good reason to order a person to sell a home they have been living in and which they aspire to retain as part of a property settlement. Though the prospects of the husband retaining the property seem very slim at this point, nothing is impossible and indeed, on his own case, his mother gave him some $125,000 as a lump sum in the later years of the relationship.
The property market might move. There might be another source of payment. I simply don’t know, but it could not be said with certitude that the husband won’t be able to retain the property, only that it seems highly unlikely.
The wife is not seeking the equity herself to buy a property, nor making a section 117 application in those terms. Moreover, if the husband is able to keep the mortgage payments up to date in respect of that property, it seems to me to be unreasonable, unjust and not equitable to order that he sell it. To effectively have the husband sell up a property he doesn’t want to sell just so that all of the money can be converted to cash, simply does not satisfy the requirement set out in Strahan & Strahan, namely that the court should exercise the power in the first place. Such an order could not be readily reversed once the property is sold to a third party. It would be difficult, if not impossible, for the husband to get it back.
It is not as though the N Street property has to be converted to cash in order to remain a secure asset. Orders can be made preventing either party from encumbering that property, and it is sitting there as bricks and mortar. It is not going away. I do not consider it necessary to sell that property out from under the husband over his objection, provided he is able to meet the liabilities, and at the end of the hearing, if he is unable to retain the property, so be it. It isn’t the Court’s role to unduly adjust the property rights of parties in the interim simply because it can; there has to be a principled reason for doing so.
CONCLUSION & ORDERS
In the end, and for these reasons, I have arrived at the orders set out at the commencement herein.
In relation to Y’s time with the father, I pause here to say that I am ordering significantly less than the father was seeking, but the order also represents a movement towards a more natural time progression for the child and her father. I am not increasing the length of overnight stays, and I do not consider that these orders will put the child under undue stress or expose her to unacceptable risk. There are numerous injunctions in this respect.
I pause to say to each of the parents that if either parent breaches the injunction about involving the children in this dispute to any further extent, then upon proof of a contravention, I would regard it as an extremely serious matter. To give an example, the message referred to at annexure ‘G of the father’s affidavit, if proved beyond a reasonable doubt, to have been sent after the making of this order is something I would consider would warrant a consideration of a term of imprisonment. I do not say that in terrorem; I say that to give these parents a wake-up call. The rubbish needs to stop before you do any more harm to these children.
In relation to the property orders, there will be a lump sum sitting in a solicitor’s trust account for use, but it will not be the whole of the amount as the wife seeks. I am allowing a figure that I consider to be just, equitable and reasonable on the very limited evidence before me in terms of such expenses, and I am making sure that the children’s school fees are paid, so the wife is not left carrying that burden unreasonably, which would be very unfair to her, and I will not permit that to happen.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Betts. Associate:
Dated: 10 May 2024
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