Gazdar & Gazdar (No 2)
[2022] FedCFamC1F 474
Federal Circuit and Family Court of Australia
(DIVISION 1)
Gazdar & Gazdar (No 2) [2022] FedCFamC1F 474
File number(s): PAC 4890 of 2019 Judgment of: BRASCH J Date of judgment: 5 July 2022 Catchwords: FAMILY LAW – CHILD ABUSE - UNACCEPTABLE RISK – CHANGE OF RESIDENCE – Where each parent makes multiple allegations of abuse against the other parent – Where there were allegations that the mother’s partner had committed significant abuse upon one child in which the mother colluded – Where it was found that the allegations of abuse that the children made against the mother were not made out – Where each parent says the other parent poses an unacceptable risk to the children.
FAMILY LAW – CHILDREN – Where both parties seek the children live with them – Where the children are presently refusing to spend time with the mother – Where the father has exposed the children to family violence offences committed against the mother, of which he was convicted – Where the father was found to be undermining the mother to the children which was found to constitute psychological abuse. – Where father also found to be an unacceptable risk to the children.
FAMILY LAW – PROPERTY SETTLEMENT – Domestic Violence – Where the father was convicted and found guilty of a number of violent offences against the mother – Where the mother was the primary homemaker and carer of the children up until separation – Where the mothers’ contributions were found to be more onerous due to the domestic violence experienced – Kennon claim made out.
FAMILY LAW – PROPERTY SETTLEMENT – Future needs – Where the orders made by the court would find the children living primarily with the mother and spending no time with the father – Adjustment made.
Legislation: Evidence Act 1995 (Cth) s 140.
Family Law Act 1975 (Cth) Pt VII and Pt VIII; ss 60B, 60CA, 60CC, 61DA, 65DAA, 67Q, 68B, 68C, 75(2), 79(1), 79(2), 79(4), 106A, 114, 122A.
Residential Tenancies Act 2010 (NSW) (No 42) s 51(2)(a)
Cases cited: A v A (1998) FLC 92-800
Babett & Falconer (2015) FLC 98-067
Baranski & Baranski [2012] FamCAFC 18
B & B (1993) FLC 92-357
Benson v Drury (2020) FLC 93-998; [2020] FamCAFC 303
Blinko & Blinko [2015] FamCAFC 146
Briginshaw vBriginshaw (1938) 60 CLR 336; [1938] ALR 334
Britt & Britt (2017) FLC 93-764
Coghlan and Coghlan (2005) FLC 93-220
Cotton & Cotton (1983) FLC 91-330
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Dovgan & Dovgan [2021] FamCA 306
Dunst v Dunst [2016] FamCAFC 15
G & C [2006] FamCA 994
G and G (2000) FLC 3-043
Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Isles & Nelissen [2022] FedCFamC1A 97
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Jones v Dunkel [1959] 101 CLR 298; (1959) 32 ALJR 395
Jurchenko & Foster (2014) FLC 93-598
Kildea v Kildea (2007) 38 Fam LR 347; [2007] FamCA 1524
Kowalski and Kowalski (1993) FLC 93-343
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69; (1988) 12 FamLR 606
Maine & Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270
Mallett v Mallett (1984) 156 CLR 605
Manolis v Manolis (No 2) [2011] FamCAFC 105
Marriage of Kennon (1997) 22 Fam LR 1; (1997) FLC 92-757
Masson v Parsons (2019) 266 CLR 554; (2019) 368 ALR 583
McCall & Clark (2009) FLC 93-405
Omacini v Omacini (2005) 33 Fam LR 134; (2005) FLC 93-218
Perrin & Perrin (No 2) [2018] FamCAFC 122
Russell & Close [1993] FamCA 62
Stanford v Stanford (2012) 247 CLR 108
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
W & W (1997) FLC 92-723
Division: Division 1 First Instance Number of paragraphs: 352 Date of last submission/s: 3 June 2022 Date of hearing: 19 April 2022 – 21 April 2022 & 28 April 2022. Place: Sydney Counsel for the Applicant: Ms Druitt Solicitor for the Applicant: Matthews Folbigg Pty Ltd Solicitor Advocate for the Respondent: Mr Vassili Solicitor for the Respondent: Michael Vassili Barristers & Solicitors Counsel for the Intervener: Mr Schroder Solicitor for the Intervener: Legal Aid Nsw Parramatta Family Law ORDERS
PAC 4890 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GAZDAR
Applicant
AND: MR GAZDAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
Intervener
order made by:
BRASCH J
DATE OF ORDER:
5 July 2022
THE COURT ORDERS THAT:
parenting
1.The mother have sole parental responsibility for the children, X born in 2006 and Y born in 2011 (“the children”).
2.The children live with the mother.
3.The children have no contact, spend no time with and have no communications with the father, save that the father may forward each child one letter and gifts to a post office address to be nominated by the mother on two occasions per year, being:
(a)on each of the children’s birthdays each year; and
(b)at Christmas.
4.The mother shall do all acts and things to ensure that the children receive such letters and gifts from their father, provided that the letters contain no denigration of the mother or other members of her family.
5.Within seven (7) days of the date of this order, the mother, through her legal representatives is to provide the father with a post office box address for the purposes of facilitating the previous orders.
6.Upon the publishing of these orders and delivery of judgment in this matter, the father is to immediately leave the court room and court building and is to remain at least 500 metres away from the Garfield Barwick Commonwealth Law Courts, Building 1-3 George Street, Parramatta NSW 2124, until 4.00 pm on 5 July 2022.
7.The children must only be released from Child Court Services to the mother, or the mother’s nominee, subject to that person having written confirmation from the mother identifying them as the mother’s nominee.
8.Until the younger child turns 18 years of age in 2029, the father is restrained and injunctions hereby issued restraining the father from:
(a)assaulting, molesting, harassing, denigrating or abusing the mother or either child;
(b)approaching or being within 200 metres of either child or the mother;
(c)being within 200 metres of any school that either child attends;
(d)being within 200 metres of the mother’s residence;
(e)being within 200 metres of the mother’s place of employment;
(f)contacting or responding to the children by any means whatsoever including but not limited to electronic means, social media or through any third party, other than as specifically provided for in these Orders;
(g)contacting the mother by any means other than through her legal representative; and
(h)permitting or allowing the children or either one of them to enter or remain in any premises which the father may occupy.
9.Order 8 hereof is an injunction made against the father pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) for the personal protection of the mother and the children and:
(a)if a police officer believes, on reasonable grounds, that the father has breached the injunctions (or any of them) the police may arrest the father without warrant and the father will be brought before this registry of the court or any other court exercising jurisdiction under the Act, on the first day which the courts next sits after the arrest, or as soon as practicable after that date; and,
(b)IT IS NOTED that pursuant to s 122AA of the Act a person who is authorised or directed by provision of the Act, or by a warrant issued under a provision of the Act, to arrest another person may use such reasonable force as is necessary to make the arrest or to prevent the escape of that person after the arrest.
10.In the event either or both children attend upon the father’s home, work or any other such location where he is present, the father must cause the child/ren to be immediately returned to the mother, including but not limited to contacting the mother’s legal representatives to arrange the return of the child/ren to the mother.
11.Pursuant to s 114 of the Act, and once the younger child turns 18 years of age, the father is restrained and injunctions are hereby issued restraining the father from:
(a)assaulting, molesting, harassing, denigrating or abusing the mother;
(b)entering or remaining in the home or the premises in which the mother resides;
(c)entering or remaining at the mother’s place of work.
12.Within 48 hours of the date of these orders the father shall deliver to the mother’s nominee at a location nominated in correspondence from the mother’s lawyers the following items (if they are not already with the children):
(a)the children’s mobile telephones;
(b)the children’s iPads;
(c)the children’s school uniforms, homework and IT equipment required for school;
(d)their passports;
(e)all items nominated by the mother in the correspondence referred to; and
(f)such other items that will be required by the children.
13.A copy of these orders may be provided by the mother to the children’s schools and extra-curricular activity providers.
14.The mother may provide a copy of these orders and the reasons for judgment to any treating practitioner (psychiatrist, psychologist, counsellor, therapist, clinical social worker or allied health worker) consulted by her or either child, including her caseworkers at Organisation D.
15.The Court requests the Australian Federal Police forthwith remove the names of the children, X (male) born in 2006 and Y (male) born in 2011 from the Family Law Airport Watchlist in force at all points of arrival and departure by air or sea in the Commonwealth of Australia.
16.For the purposes of s 11 of the Australia Passports Act 2005 (Cth), the mother shall be permitted to apply for an Australian travel document for the children X born in 2006 and Y born in 2011 and the mother’s signature and consent alone shall be sufficient to apply for all travel documents.
17.The mother may provide a copy of these orders to all government authorities responsible for, or involved with, overseas travel and travel documents.
18.The mother be permitted to travel with the children outside the Commonwealth of Australia, without requiring the written consent of the father.
19.The mother shall do all acts and things necessary to engage and continue to consult a therapist recommended to her by the Independent Children’s Lawyer in consultation with the Single Expert, Mr C, and to facilitate this order the mother shall:
(a)attend at such frequency and for such duration as directed by the therapist;
(b)ensure that the children attend upon the therapist at such frequency and for such duration as directed by the therapist; and
(c)be responsible for the costs of the therapy.
20.The order for the appointment of the Independent Children’s Lawyer shall continue for a period of 12 months from the date of these Orders.
21.The Independent Children’s Lawyer shall provide copies of the following documents to the therapist referred to in Order 19 above and to the NSW Department of Communities and Justice (“DCJ”):
(a)the Single Expert report of Mr C dated 3 August 2021;
(b)these Orders; and
(c)Reasons for Judgment in these proceedings.
22.It is requested that the staff of DCJ place a copy of these Orders and Reasons for Judgment on their Child Story database so that it is available and accessible to Helpline staff and any caseworkers subsequently assigned to the family.
23.The mother shall provide to the therapist in Order 19 above an irrevocable authority to facilitate the Independent Children’s Lawyer obtaining information from the therapist in relation to the children’s progress, welfare and development in the care of the mother.
24.Pursuant to s 67U of the Family Law Act, a recovery order is issued for the children X born in 2006 and Y born in 2011, and will lie in the registry for a period of 12 months from the date of this Order, and may be uplifted upon the written request of the Mother’s legal representative.
PROPERTY
25.Within two months of the date of these orders, being 5 September 2022, the father shall:
(a)do all acts and things necessary to cause the withdrawal of the caveat with dealing number …83 secured on the property known as and located at E Street, Suburb F being the whole of the land contained within Folio Identifier …59, (“the [Suburb F] property”);
(b)cause the discharge of any mortgage secured on the property;
(c)unless otherwise agreed between the parties in writing, the father is restrained and an injunction issues restraining the father from encumbering, using as security, or otherwise dealing with the Suburb F property; and
(d)upon compliance with the previous order, the mother shall pay to the husband the sum of $298,702 and the husband will transfer to the wife the whole of his right, title and interest in the Suburb F property and the wife will thereafter have sole use and occupation of the Suburb F property.
26.In the event that the mother fails to comply with Order 25, then, within 28 days of default the parties do all acts and things and sign all documents necessary to list the Suburb F property for sale, such sale to occur as follows:
(a)the property will be listed with an agent as agreed between the parties or in default of agreement an agent appointed by the President of the Australian Property Institute (NSW Division) or their nominee at the request of either party;
(b)the property will be listed at a price agreed by the parties or in default of agreement, as nominated by the President of the Australian Property Institute (NSW Division) or their nominee at the request of either party;
(c)the mother will do all acts and things to make the property available for inspection;
(d)a solicitor agreed between the parties shall act on the sale and failing agreement, a solicitor nominated by the President of the Law Society of NSW; and
(e)that both parties do all acts and things and sign all documents necessary to effect the sale of the property.
27.Upon the sale of the Suburb F property, the proceeds of sale be distributed as follows:
(a)payment of the real estate commission, legal fees and other legal costs associated with the sale (“the net proceeds”);
(b)The net proceeds will be added to the following assets:
(i)Motor Vehicle 1: to be retained by the father at $1,500;
(ii)Home contents: to be retained by the mother at $4,000;
(iii)Bank Account 1: to be retained by the mother at $2,000;
(iv)Superannuation Fund 1: to be retained by the father at $141,003; and
(v)Superannuation Fund 2: to be retained by the mother at $12,084.
(“the revised total”)
(c)The parties will then calculate what distribution is required to each party from the revised total property adjustment to achieve an adjustment of 65 percent to the mother and 35 percent to the father.
28.In the event the property does not sell by private treaty within a period of three months from the date of listing:
(a)the parties do all acts and things and sign all documents necessary to list the Suburb F property for sale by auction with a listing price and reserve price as agreed between the parties or in default of agreement, as determined by the President of the Australian Property Institute (NSW Division) or his nominee at the request of either party;
(b)the parties will jointly negotiate with any prospective purchaser;
(c)the parties will agree upon a reserve price or in default of agreement, they will approach the President of the Australia Property Institute (NSW Division) or his nominee to obtain a determination as to whether any such offer is fair and reasonable and shall abide by any such determination by the President of the Australian Property Institute (NSW Division) or his nominee.
29.That upon the property being sold at auction in accordance with Order 28, the proceeds of sale be distributed as set out in Order 27 above.
30.In the event Order 26 is activated, then pending the sale of the Suburb F property:
(a)the mother shall have exclusive occupancy of the property no later than seven (7) days from the date of default;
(b)the mother must ensure that the house and contents are insured at all times for the full replacement value and pay all necessary insurance premiums; and
(c)the mother shall pay for all outgoings in relation to the property during the time that she resides there including council rates, water rates, electricity, gas, and telephone.
31.Both parties do all acts and things and execute all documents, authorities and writings as are necessary to give effect to all or any of these orders.
32.Subject to any other provisions in these orders, the father and the mother shall each respectively retain all interest in and entitlement to:
(a)all real property now in his/her respective ownership;
(b)all personal property now in his/her respective ownership, possession or control;
(c)all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively;
(d)all interests in life insurance policies and superannuation funds standing in his/her sole name respectively; and
(e)the items listed as financial resources in their respective names in Exhibit 19.
33.Each party, as may be relevant under these orders, is required to keep the Suburb F property in a reasonable state of cleanliness as that concept is understood within s 51(2)(a) of the Residential Tenancies Act 2010 (NSW) (No 42), until these Orders are implemented.
34.The husband is restrained from taking, acquiring, destroying, defacing or relocating any of the items of joint contents, or causing any such actions, with the agreed value of $4,000 in Exhibit 19.
35.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 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.
36.The parties have liberty to re-list the proceedings on matters of interpretation or implementation of these Orders, on the giving of seven (7) days’ notice to the other, by email to associate, copying the other party.
37.The parties are to file any Application for Costs within 21 days of these Orders.
PARENTING AND PROPERTY
38.All extant Applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gazdar & Gazdar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
INTRODUCTION
These are final property and parenting proceedings.
The two children in this matter, X and Y, (“the children”) were born, respectively, in 2006 and 2011. Both parents contend that the other parent has committed acts of family violence and abuse against them and the children, and, that the other parent poses an unacceptable risk to the children. The mother, Ms Gazdar, born in 1979, (“the mother”) proposes she have sole parental responsibility. The father, Mr Gazdar, born in 1970, (“the father”) also seeks a sole parental responsibility order, but in his favour. The mother proposes the children have no time with their father. The father seeks the children have two hours of supervised time on alternate Saturdays with their mother, at her cost.
At the end of the hearing, counsel for the Independent Children’s Lawyer (“ICL”) handed up a Minute of Order, which in summary, would see the children living with their mother and having no time with their father. The ICL also sought a raft of orders to facilitate the change of residence, and supports for the children.
BACKGROUND
The applicant mother’s name is listed in the court’s file as Ms Gazdar, and, the respondent father as Mr Gazdar. The file itself and court listings are in the name of Gazdar. However, the mother explained ‘[Gazdar] is the name of the place in Country G where the father’s family is from. The mother indicated she preferred to be known by a different name, and in court, preferred to be called by the same. Likewise, the father indicted his preference to also be called by a different preferred name. I apologise for the court’s listing. The parties were thereafter referred to as their preferred names during the hearing.
Both parents were born in Country G. In 2002 the father migrated from Country G to Australia. The parties were married in Country G in mid 2003, with the father returning to Australia in November 2003. The mother then migrated to Australia in October 2005.
The parties separated on a final basis on 1 December 2016 according to the mother, or 3 December 2016 for the father. It is not necessary for me to make a finding as to the specific date of separation. No one submitted I ought make this finding.
Post-separation, the father was charged with five offences of violence said to be committed against the mother. He entered a plea of not guilty and the matter went to trial. Both parents were cross-examined. On 20 November 2017 the father was convicted and sentenced for all five offences. The dates of the offences, and the first instance sentences are as follows.
·2016: common assault - 12 months supervised probation;
·2016: stalk/intimidate intend fear physical etc harm (Domestic) - 12 months supervised probation;
·2016: assault occasioning bodily harm (DV) - 100 hours’ community service;
·2016: assault with act of indecency - seven months’ imprisonment, suspended upon entering a bond;
·2016: common assault - 12 months supervised probation.
A Provisional Apprehended Domestic Violence Order (“ADVO”) naming the mother and the children as protected persons was issued in late 2016, and a two-year Final ADVO was made in late 2017 again naming the children and the mother as the people in need of protection. Both ADVOs listed the usual mandatory orders and also enjoined the father from approaching or contacting the mother and children. The terms of the ADVO were extended to mid 2020 when the mother’s application to further extend the ADVO was dismissed.
In early 2018, the father appealed against the assault convictions and sentences. The convictions were confirmed, although two of the sentences were varied.
Post separation to when the ADVO ended in mid 2020, the father said he spent no time with the children, nor initiated communication with them. Rather, he said the mother called him daily and he would then talk to the children. Conversely, the mother said the father was breaching the ADVO in late 2017 and 2018 by communicating with the children, seeing them and driving by her house. The mother was living with the children in the former matrimonial home during this time.
Once the father renewed communications with the children in late 2017 and in 2018, X in particular was exhibiting challenging behaviours at home and to the mother. It does not matter for these purposes whether he or the mother initiated the renewed communications.
In early 2019 the father was found guilty of two counts of Contravene Prohibition/Restriction AVO (Domestic). The offence dates were in 2018. The father was sentenced to two community correction orders, one for nine months and the other for 12 months, to be served concurrently.
Of his convictions and breaches, the father said a number of times in court that apart from causing a bruise to the mother’s wrist when trying to restrain her when she was “in a fit of rage”, and her misinterpreted perception of financial control, “I still maintain my innocence, [but] I respect the courts’ decisions” (for example, Transcript 20 April 2022, p.11 lines 39-40).
It was the father’s position that the mother was the aggressor in the relationship, both to him and especially the children. The matters alleged against her were many and serious, including, but not limited to that she: hit the children daily and often with implements such as a belt, wallet, dumbbell or spatula; bit them; kicked X in the head; filmed Y naked coming out of the shower to show her then partner; colluded in Y being inappropriately touched by her then partner; sprayed bleach in X’s eyes; pulled Y’s tongue out when he was in Year 2 and put her hand in his mouth; threatened to kill the children; threatened to suffocate them; and, would have her brother in Country G bash Y. No charges have been laid, nor ADVO proceedings brought against the mother. That does not however resolve these allegations.
Upon the expiration of the ADVO in 2020, the father agreed he regularly attended upon the former matrimonial home to see the children. It was the mother’s position that she considered this to be an intrusion and she did not want him there.
The mother instituted property proceedings on 3 October 2019. The father filed his Response to Initiating Application on 4 March 2020, also in relation to property.
After police involvement in early mid 2020, the mother left the home at the suggestion of police for one night to “prevent further incident”, but the children have not seen her since, other than some afternoons after school where X and the mother met perhaps for a month to six weeks or so, and an attempt to see Y on 2 November 2020 before school.
It was the mother’s case that the father caused the children to make the many allegations they did, and in doing so, undermined her to such a degree that they are consequently refusing/rejecting her. Conversely, it was the father’s case that the children opened up to him about the gross violence and abuse at the hand of the mother and her then partner, Mr H, such as to warrant their refusal/rejection of her.
The mother amended her Initiating Application to include parenting proceedings on 12 November 2020. The father joined issue with respect to parenting by his Amended Response to Initiating Application filed 4 December 2020.
The children were legally represented in the proceedings by the ICL. The ICL and his counsel, Mr Schroder were of considerable assistance. Ms Druitt, of counsel, represented the mother and Mr Vassili appeared as solicitor-advocate for the father.
While the proceedings concerned both applications for financial orders and applications for parenting orders, the hearing was primarily concerned, understandably, with the parenting matter.
EVIDENCE and witnesses
The applicant mother relied upon the following documents:
·Further Amended Initiating Application filed 30 September 2021;
·Financial Statement filed 30 September 2021;
·Affidavit of Ms Gazdar filed 28 October 2021;
·Affidavit of Mr J filed 3 November 2021;
·Mother’s Tender Bundle, but only in so far as documents from that bundle were tendered during the trial;
·Counsel’s Case Outline filed 14 April 2022;
·Written Submissions filed 27 May 2022;
·Written Submissions in Reply filed 6 June 2022.
In her Case Outline, the mother included an affidavit of Mr H filed 28 October 2021. However, on the first morning of the hearing, the court was informed that Mr H would not make himself available for cross-examination. Mr H lives in Country G. Accordingly, his affidavit was not read by the mother, nor tendered by the father. Thus, I have not had regard to paragraph 65 of the father’s written submissions filed 27 May 2022 which refers to this affidavit, as it is not before me. I cannot accept a submission made by the father that the mother did not call Mr H because his “evidence would not have assisted the mother, effectively corroborating the sexual abuse allegations” (Father’s Written Submissions filed 27 May 2022, paragraph 17 (Parenting)). If his evidence was unhelpful to the mother, then, logic leads to the conclusion that she would have not filed an affidavit from him in the first place, nor included it in her material to be read for the trial. I also do not accept, as a matter of logic, that Mr H’s absence “corroborates” the sexual abuse allegations.
The respondent father relied upon the following documents:
·Amended Response to Initiating Application filed 4 December 2020;
·Amended Notice of child abuse, family violence or risk filed by the respondent on 21 June 2021;
·Affidavit of Mr Gazdar filed 2 November 2021;
·Financial Statement filed 12 October 2021;
·Father’s Tender Bundle, but only in so far as documents from that bundle were tendered during the trial;
·Case Outline filed 14 April 2022;
·Written Submissions filed 27 May 2022; and
·Written Submissions filed 4 July 2022.
The ICL relied upon the following documents
·Expert Report Mr C dated 3 August 2021;
·Child Responsive Program Memorandum (“CIC Memo”) dated 12 March 2021, by Court Child Expert Mr B;
·Magellan Report dated 10 February 2021;
·ICL’s Tender Bundle, but only in so far as documents from that bundle were tendered during the trial;
·Counsel’s Case Outline filed 12 April 2022;
·Written Submissions filed 6 May 2022; and
·Written Submissions filed 4 July 2022.
Both parents were cross-examined. The maternal grandfather, Mr K gave evidence through an interpreter. Mr K was, unsurprisingly, supportive of his daughter. That is as far as I am prepared to take his evidence due to difficulties with and disputes over the translations. The single expert, Mr C, was also cross-examined.
The standard of proof is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case [62].
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
The trial went longer than listed. Due to counsels’ varying commitments, no date could be found for oral submissions. A timetable for written submissions was made and complied with.
On 1 July 2022, the Full Court (comprised of a five judge bench) handed down the decision in Isles &Nelissen [2022] FedCFamC1A 97 (“Isles”). I had that Judgment sent to the parties’ legal representatives and made orders giving the parties an opportunity to provide written submissions about the articulation of law in the Isles decision by 4.00 pm on 4 July 2022.
Counsel for the Independent Children’s Lawyer filed submissions on 4 July 2022. I accept the articulation of the law in those submissions.
The father’s legal representative also filed submissions on 4 July 2022. I largely accept the articulation of law in those submissions, but note the references to Briginshaw v Briginshaw (1938) 60 CLR 336 have long been overtaken by s 140 of the Evidence Act 1995 (Cth). However, the father’s submissions went well beyond the articulation of law, and repeated many submissions about the findings I should make against the mother.
No submission were received on behalf of the mother.
ISSUES
On the first day of hearing I asked the legal representatives to prepare a List of Issues that required my determination and Particulars of the Sexual Abuse Allegations. This was marked Exhibit 14. The List of Issues was framed by the parties as follows:
(1) Whether the Court should make a finding that the child [Y] has been sexually abused and whether the mother was complicit in the alleged sexual abuse by [Mr H]. (particulars were provided separately).
(2) Whether the Court should make a finding that there is an unacceptable risk of the children being exposed to family violence and abuse [as defined in the Act] or neglect, if they are in the mother’s care.
(3) Whether the Court should make a finding that there is an unacceptable risk of the children being exposed to family violence and abuse [as defined in the Act] or neglect, if they are in the father’s care.
(4) Whether the Court should make a finding that the children have been psychologically abused by the mother in the expression of her views as to the father and other comments and actions to and in the presence of the children which are unlikely to be able to be ameliorated by Court Order.
(5) Whether the Mother lacks insight and capacity to care for the children in so far as an asserted incapacity to disassociate their reports of harm or their behaviour from that of being caused by the father.
(6) Whether the views of [X] in wishing to live with his father are such, having regard to his age, that he would be unlikely to remain in the mother’s care, if the Court so ordered.
(7) Having regard to issue 6 above, an issue of possible separation of siblings.
(8) The capacity of each of the parents to provide for the needs of the children including their intellectual and psychological needs.
(9) The weight to be attached to the views expressed by the children including with whom they should live, with whom and in what circumstances they should spend time and communicate with.
(10) Whether the Court should make a finding that the children have been psychologically abused by the father in assertedly [sic] alienating the children from the mother.
The Particulars of Sexual Abuse (see Issue 1 above) were provided as per the table below. However, where the initial document referred to pages in the Tender Bundles, I have replaced those references with the relevant exhibit number. I also note that the year listed in the date column is when the father said the incidents happened, not when he was told. For example, whilst the video call of Y naked was said to have occurred in 2017, the father said he only became aware of that sometime in the second half of 2020.
Date
Allegation
Source
1
2017
Video call involving Y while naked.
That in 2017 the mother was on a video call with her erstwhile or current partner Mr H and at such time Y stepped out of the bathroom naked after a shower. At the request of Mr H the Mother had then directed her phone camera towards Y. Y notices that Mr H was on screen and could see him (Y) naked, then proceeds to run out of the room.
Father’s Affidavit: Paragraph 163
Ex 15: L School
Confidential Case Note dated 21
September 2018.
2
2017
That Y was touched inappropriately by Mr H in 2017. Specifically that:
Mr H would make him sit on his lap.
When they went to bed, Mr H would hug Y and then began touching and squeezing Y’s penis.
Mr H then took Y’s hand and placed it in his (Mr H’s) shorts and made him touch and squeeze his (Mr H’s) penis.
Mr H’s penis became hard. Mr H held Y very tightly and began to shake Y.
That there was some ‘yucky stuff on his bum’ and the next day, when he “did a pooh, my butt was hurting.”
That his mother was asleep at the time.
The Mothers Failure to Report
That Y disclosed sexual contact by Mr H to his mother and she responded. “Okay okay. Don’t worry. I’ll tell Mr H not to do this again. You don’t tell this to anyone, to your friends, your school or even X, because if you do, two people will come and take you from here and then you have to live with another two parents and there will be a lot of other children in that house and they will hit you and beat you. You won’t get lollies and toys and you can’t see us anymore”.
The Mother then gave Y some money and told him to buy some sweets.
Mr H came home that day with toys and clothes for Y.
Y says that the abuse happened each time Mr H stayed over.
Father’s Affidavit: Paragraph 163
Ex 36: New South Wales Police Force Date: 15/12/20
COPS Report
Ex 37: NSW Police Force COPS date:
15/12/20
Ex 3: Magellan
Report Paragraph 39
3
12 May 2021
Child advises of initial observation of blood on his penis.
That Mr H had touched Y on the Penis and that Y’s Penis commenced bleeding when Mr H touched his penis. That there was blood on Y’s penis after touching by Mr H.
Father’s Affidavit
filed 2 November
2021: Paragraphs
199 and 200
Parenting proceedings – Legal principles.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII as follows:
(1) The objects are to ensure that the best interests of children are met by:-
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” [8].
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
Further, if the presumption does apply, then it may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Best interests of the child
Section 60CA of the Act provides that “[i]n deciding whether to make a particular parenting order in relation to the children, a court must regard the best interests of the children as the paramount consideration”. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the court to give greater weight to s 60CC(2)(b). This balancing act is one that looms large in this case, with both parents saying the balance rests upon the children needing protection from the harm which the other parent presents to the children.
A meaningful relationship
In considering a meaningful relationship per s 60CC(2)(a), in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at page 83,476, the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests. [122]
In this matter, neither parent nor the ICL proposed the children have a meaningful relationship with the other parent. I do not consider two hours of supervised time once a fortnight, as the father proposes for the children and the mother, will provide the opportunity for a meaningful relationship. I can see no long term benefit to the children from such a proposal. It also makes no sense that the father would propose any form of time, given the horrendous allegations he levelled at the mother.
In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a ‘prospective’ one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents will be of advantage to a child”. In other words, the focus is upon whether the children having a meaningful relationship with a particular parent will be of advantage to the children in the future.
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Full Court noted that:
… having a ‘meaningful relationship’ with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests [123].
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child [169].
In Loddington Cronin J further added that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering” [173].
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
… that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
Protection from harm
The second primary consideration in determining the child’s best interests, as set out in
s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.Both parents in his matter make allegations of family violence and abuse, and they also both say the other is an unacceptable risk to the children.
It is important to keep in mind that these are two separate and distinct matters. So much is clear from M v M (1988) 166 CLR 69 (“M v M”), that on the one hand, proving alleged sexual abuse (as it was there) according to the civil standard of proof and, on the other, establishing the risk of the feared sexual abuse occurring in the future.
I pause to observe that whilst M v M concerned sexual abuse, the Full Court of the Family Court of Australia (as it then was) later extended such principles to cases involving allegations of children being at risk of physical or emotional harm for other reasons (A v A (1998) FLC 92-800 at [3.14]–[3.15] and [3.24]).
Consistently, Isles at [2]-[5], reminded:
In respect of the first issue, the High Court said (at 76):
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw.
(Citations omitted)
The reference to Briginshaw v Briginshaw (1938) 60 CLR 336 was the endorsement of an earlier enunciation of the common law principle of the civil standard of proof, now enshrined within s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”).
In relation to the second question pertaining to risk, the High Court said (at 77–78):
… [T]he court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. … [T]he 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.
But the High Court did not elaborate how the alleged risk of abuse would be established on the evidence before the Court.
The Isles Court added at [82]-[83]:
Correctly, the primary judge said this to distinguish positive findings of sexual abuse from findings of unacceptable risk of harm:
60.The primary position of the mother and the [child welfare agency] is that the Court make a finding of fact, on the balance of probabilities, that the father has sexually abused [the child] with consequent orders to attend to future risk. This would constitute a finding of fact based on the empirical evidence as, indeed, would be the task of the Court in respect of the father's submissions that the mother has fabricated or opportunistically manipulated an otherwise innocent statement from [the child]. Put simply, this is an exercise of findings of fact. The notion of ‘an unacceptable risk,’ is, however, a predictive or prospective exercise for the Court in determining whether there is a ‘risk’ into the future; the magnitude of the that risk; and whether there are tools or circumstances to adequately mitigate that risk.
…
65.The evidentiary fact-finding exercise is conducted to the standard of on the balance of probabilities pursuant to s 140 of the Evidence Act whereas the predictive consideration of unacceptable risk, not being limited to findings of past fact, looks more to “possibilities” …
(Emphasis added)
Though both are evidence-based, the primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse.
Allegations of family violence and abuse
Many allegations of violence and abuse have been made in this matter. As I consider those allegations, I do so by reference to the evidence before me and fact finding on the balance of probabilities, as provided for in s 140 of the Evidence Act which, I have already extracted.
It is important to keep in mind that the serious allegations in this matter do not, in and of themselves alone, control the outcome. As the High Court said in M v M at [76] with respect to sexual abuse allegations, but just as relevant to other forms of abuse:
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the [C]ourt’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
This is also a case where the father submits that the court “would need to exercise extreme caution in rejecting the likelihood that the abuse did take place …” (Father’s Written Submissions filed 27 May 2022, paragraph 6 (Parenting)). What he really asks me to do is to make positive findings of sexual abuse against Mr H and a positive finding that the mother colluded in this by failing to report it. In reality, he also seeks positive findings of abuse or impropriety with respect to the videoing of Y. He also urges positive findings of physical and emotional abuse by the mother against the children. The mother too seeks positive findings of physical and emotional abuse by the father against her and the children.
As to positive findings, it is useful to recall the following also from M v M (albeit s 140 of the Evidence Act 1995 (Cth) has overtaken the reference to Briginshaw):
In considering an allegation of sexual abuse of the child the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw at 76.
(citations omitted)
Unacceptable risk
Section 60CG of the Act presses courts to avoid making orders which expose any person to an “unacceptable risk of family violence” and, when determining how children’s best interests will be advanced, s 60CC(2)(b) of the Act obliges courts to have regard to any need to protect children from physical or psychological harm through their subjection or exposure to “abuse”, “neglect” or “family violence” – terms widely defined in ss 4(1) and 4AB of the Act.
In a very helpful overview, Isles summarised the authorities on unacceptable risk since M v M some 30 years ago, culminating in the following recitation of the law at [50]-[53]:
In Fitzwater, Austin J rejected the proposition that a finding of unacceptable risk needs to be made according to the civil standard of proof, saying:
132.Having eschewed the need for any positive factual finding that the father had sexually abused the eldest child, the mother’s case was instead that the evidence was still sufficiently persuasive to establish the risk of sexual abuse posed by the father to the children, and furthermore, that the magnitude of the risk was unacceptably high, such that it could only be attenuated by the imposition of the children’s permanent supervision when spending time with the father. The trial judge properly understood that to be the nature of the mother’s case, as is evident from the reasons for judgment (at [1], [31], [60], [497], [501]). Consequently, the mother and the trial judge were entirely focussed on what the evidence implied was the risk of harm to the children in the future; not what probably did or did not happen in the past.
133.In civil proceedings, s 140(1) of the Evidence Act provides the “case of a party” must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the “case of a party” is defined (in the Dictionary to the Evidence Act) to mean “the facts in issue in respect of which the party bears the legal burden of proof”. The substantive law determines where the legal burden of proof falls in respect of facts in issue.
134.It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at 76; ZP v PS (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at 188-189). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at 231).
135.The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)).
136. In Malec, Brennan and Dawson JJ said (at 639-640):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
and Deane, Gaudron and McHugh JJ said (at 643):
…The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring…
137.The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald & Karrington (2016) FLC 93-726 at [60]; Bant & Clayton (2015) 53 Fam LR 621 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
140.It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) (2009) FLC 93-422 at [56]-[61]; Johnson and Page at [68], [71], [76], [77]).
141.Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
We agree with and adopt that commentary as being a correct statement of the law.
The High Court has recently had occasion to say more in a similar vein about establishing future potentialities in civil litigation, albeit in the context of jurisdictional error. Although the decision was split, the majority said this in MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 (“MZAPC”):
38.… Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred — as distinct from what would have occurred — had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.
39.Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.
(Emphasis added) (Footnotes omitted)
The point being made, importantly for present purposes, was that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.
The Isles Court concluded its consideration of the nature of findings of unacceptable risk as follow at [86]:
We have already acknowledged how risks of harm are not susceptible of empirical proof, but a mathematical hypothetical will nevertheless illustrate how findings of “unacceptable risk” cannot be measured by the civil standard of proof. Imagine a child will be minded by one of three randomly allocated carers. Assume one of the carers would sexually abuse the child, but the other two would not, meaning the child stands a 33.33 per cent chance of being sexually abused if left in care. No sensible adult would take the risk of leaving the child in care because, even though the prospect of sexual abuse is only possible but not probable, the risk is still too high to tolerate. In other words, it is unacceptable. If parents (and courts) were to instead only react to risks which are probabilities then, in that example, the child would still be left in care unless shown he or she was susceptible to sexual abuse by two of the three carers and the risk was then rated at 66.66 per cent.
If I identify the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62.
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. Those considerations can be conveniently grouped under the following headings:
Issues relating to the children – their views, level of maturity, culture and relationships:
·Subsection (3)(a) – any views expressed by the children and any factors (such as each of the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
·Subsection (3)(b) – the nature of the relationship of the children with each of the child’s parents and other persons, including any grandparent or other relative of the children;
·Subsection (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents and any other characteristics of the child that the court thinks relevant; and
·Subsection (3)(h) – issues pertaining to the culture of the children if the child is Aboriginal or a Torres Strait Islander.
Issues relating to the parents – decision-making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Subsection (3)(c) – the extent to which each of the children’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the children, to spend time with the children, and to communicate with the children;
·Subsection (3)(ca) – the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children;
·Subsection (3)(f) – the capacity of each of the children’s parents, and any other person, to provide for the needs of the children, including emotional and intellectual needs; and
·Subsection (3)(i) – the attitude to the children, and parental responsibilities, by each of the children’s parents.
Issues of family violence:
·Subsection (3)(j) – any family violence involving the children or a member of the children’s family; and
·Subsection (3)(k) – any family violence order that applies or has applied involving the children or a member of the children’s family and if applicable, taking into account a number of stated matters.
Effect of change:
·Subsection (3)(d) – the likely effect of any changes in the children’s circumstances, including the likely effect on each of the children of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the children have been living.
Practical difficulty of implementation:
·Subsection (3)(e) – the practical difficulty and expense of the children spending time with and communicating with a parent and whether that will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
Avoiding further proceedings:
·Subsection (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
Other relevant matters:
·Subsection (3)(m) – any other facts or circumstances the court considers relevant.
Consideration – parenting dispute.
The presumption of equal shared parental responsibility
Mr B, a senior Family Consultant and author of the CIC Memo said this:
Currently there appears no capacity for the parents to meaningfully communicate regarding the children and their needs. The allegations raised above suggest that the behaviour of one or both parents has been so problematic that there is no reasonable prospect of any functional co-parenting relationship developing in the future
(CIC memo dated 12 March 2021, paragraph 34).
Neither parent nor the ICL proposed an order for equal shared parental responsibility. This is a matter where the parents’ abhorrence of the other is palpable. Both accused the other of manipulating, priming or coaching the children when the children’s words or actions did not fit with each parent’s narrative. It is also a matter where the parties have not had any form of functional shared, co-parenting or shared decision making since separation in December 2016. Indeed, the idea that they could communicate about anything, much less major long term decisions for the children, only needs to be stated to reveal the lack of reality in that proposition. On these bases, the presumption, if it had been relied upon by any party, is easily rebutted as not being in the children’s best interests. Equally, given my subsequent findings about family violence, I can also safely conclude that the presumption was inapplicable in the first place.
The task then is to determine which parent should exercise parental responsibility. There are two reasons why I make the order in favour of the mother. First, the orders I will make see the children living with their mother. Second, in locating and accessing Organisation D for the children in 2018 when X’s behaviours were challenging, the mother arranging for the children to get support from Organisation U in the aftermath of separation, and in accessing supports for herself, the mother gives me confidence that she will obtain advice to assist the children as and if required.
The benefit to the child of having a meaningful relationship with both of the child’s parents.
In his single expert report, Mr C said this of a meaningful relationship:
At present, the children are having no relationship with their mother, and reject contact with her comprehensively. However, the children have previously been actively cared for by their mother, and for a period she was their primary carer, notwithstanding that there were relationship difficulties…
…
Ideally, the children should be able to maintain a relationship with both parents, see both parents regularly, and be unburdened by their parents and their parents’ conflict. The history suggests that for this family, having both parents actively and meaningfully involved in the children's lives is a significant undertaking, and that for the children, it may not be possible to maintain a meaningful relationship with both parents simultaneously; …
(Single Expert Report dated 3 August 2021, paragraph 153, 166)
Mr B, a senior Family Consultant and author of the CIC Memo said this:
…It appears highly unlikely that [X] and [Y] will be able to enjoy positive relationships with both of their parents into the future…
(CIC Memo dated 12 March 2021, paragraph 40).
Having heard the parties give evidence and their unrelenting and unequivocally poor view of the other, I have no hesitation whatsoever in accepting the opinions of both experts. This is one of those cases where, due to the parent’s respective views of the other, there will be no positive benefit to be derived by the children in attempting to craft orders to foster a relationship with both parents. Indeed, by reference to Mr C’s opinions which I extract later, a relationship with both parents is likely to cause the children harm.
I move on to the Issues as framed by the parties.
THE ISSUES AS FRAMED AGAINST THE FATHER (EXHIBIT 14)
There are three issues framed against the father:
·whether the Court should make a finding that there is an unacceptable risk of the children being exposed to family violence and abuse [as defined in the Act] or neglect, if they are in the father’s care;
·whether the Court should make a finding that the children have been psychologically abused by the father in assertedly [sic] alienating the children from the mother; and
·the capacity of each of the parents, and in this consideration the father, to provide for the needs of the children including their intellectual and psychological needs.
The first of these three issues is in two parts: whether the father committed acts of family violence and abuse against the mother and/or the children, and, separately, whether the children are at an unacceptable risk in the father’s care. Whilst neglect is included in the issue, no party pursued this aspect.
I will consider the concept of unacceptable risk as a separate issue, after I make determinations with respect to both the allegations of family violence and abuse, and, the allegations of psychological abuse and “alienation”, or as it is also referred to, a resist and refuse dynamic.
The parties’ issue relating to the acts of family violence and abuse by the father
For the following reasons, I find that the father has committed acts of violence and abuse against the mother and children.
First, the father was convicted of multiple charges of assaults and stalking/intimidation, and his appeals against these convictions were dismissed. He was also convicted of two contraventions of the ADVO. I have already referred to the offences, breaches and sentences. They are most serious and appalling matters, including acts of indecency.
The father’s case was that he inadvertently caused a bruise on the mother’s wrist when trying to restrain her when he said she was in a fit of rage, and, that she misinterpreted but perceived their financial arrangements were controlling. He otherwise maintained his innocence with respect to these assaults, but said he respected the courts’ decisions – decisions made on the higher standard of proof of beyond reasonable doubt. I too will respect the courts’ decisions.
Accordingly, I find the father committed the acts of violence against the mother for which he was convicted, and confirmed on appeal. I also find he breached the ADVO in the way found by the local court.
Second, on separation, X gave an interview to Child Protection workers at school on the afternoon of 6 December 2016, marked Exhibit 12, where he spoke of liking his mother and father, and not really getting into trouble from his mother. He also said that his father sometimes hit him and Y on the legs and cheeks. He also spoke of his father hurting his mother by pulling her arms and legs, which he observed, as did Y on occasion. When given cards which portray emotions, he picked a scared and worried face when speaking of being hit and seeing his mother hurt. He described in considerable detail the most recent time the father hit the mother and tried to pull her by her arms and legs into the bedroom, and the mother later trying to get out of the bedroom. He had a sense of chronology and he answered what he was asked. There was also an ambivalence about his father in this interview, as opposed to later interviews. It is useful to keep these in mind when considering his later interviews and what Mr C had to say about all interviews.
In the December 2016 interview X also spoke of the mother being hurt mostly every week, and that he was worried about being hurt. He was given a picture of three houses. In the “House of Worries” he wrote “Dad hitting mum”, and “when I get hurt”. In his “House of Dreams” he included amongst others “Dad not hitting mum” and “not get hurt”. He said he was worried about going home if the father was there.
What X said he observed largely accords with what was placed before a Local Court by the police in their application for the ADVO; that application is attached to the mother’s affidavit. The father, heralding his innocence in these proceedings (yet respecting the courts’ decisions), was asked why X would say such things and he replied that the children were “completely under the control of the mother” (Transcript 21 April 2022, p. 20 lines 44-45).
However, this December 2016 interview occurred when the parties had just separated. In other evidence, the father said the marital relationship had been happy up to six months before separation and in yet other evidence, that it had been happy to October 2016. There were no cogent evidence from the father, in the happy relationship pre-separation, that the mother had “complete control” of the children. True, the father did refer to an incident in 2015 where X’s pinkie was apparently broken, but respectfully, his answer about control did not make sense and in any event, is at odds with his adamant and strident answers that he and the mother were happy up to either six months prior to separation, or to October 2016.
Thus, on the father’s own evidence, I find that X was not under the complete control of his mother in early December 2016, and what he said to Child Protection case workers on 6 December 2016 to be his authentic, and incredibly damaging, lived experience of both observing his father’s violence and abuse to his mother, and of X and Y also being the victims of violence and abuse directed to them by the father.
Further, of this December 2016 interview, Mr C said:
Right. So – but it would be fair to say, wouldn’t it, that in this interview, he doesn’t display the controlling and redirecting tendencies of his interview with you? - - Not only that – that is correct, but you will also notice what I think is a very important feature, and that is he conveys ambivalence. That is that he wants his dad to come back, but also doesn’t want his dad to come back, but he has got mixed feelings. It’s a bit balanced. It shows a sense of – of reflection of both sides of his feelings. That is normal. To talk about those split off feelings is most unusual and not psychologically a reflection of – of good health.
So can we more safely rely upon what he reports in this interview? - - That conveys to me a sense of spontaneous narrative in response to my more open-ended questions. It’s – it’s quite a different style of interview and quite a different response by [X].
And would you feel more confident relying upon the factual matters in this interview than on, for example, your own interview with him? Yes. Yes. I would.
(Transcript 28 April 2022, p. 22 lines 5 – 19)
I accept Mr C’s evidence. X’s ambivalence with respect to his father was clear in the 2016 interview. He answered the questions asked of him; he had detail; he had a clear chronology; he was not pushing an agenda irrespective of the question asked.
Third, the father accepted in cross-examination that the mother misinterpreted, but that she nevertheless perceived, he had perpetrated financial abuse and control over her by having bank account/s and real property in his sole name (or a joint account which she could not access). By doing this, the father denied the mother the financial autonomy she would have had otherwise.
Fourth, in cross-examination, the father was taken to an email from the mother’s employer Organisation M, dated 16 September 2020, at Annexure D to her affidavit. It stated:
[Organisation M] has received three phone calls over the past week and half at our [Suburb N] Site in regards to [Ms Gazdar’s] suitability to work in her current role […].
The first caller reported details of police and FACS involvement, giving police event number and contact details for FACS case worker, insinuating abuse from [Ms Gazdar] to her children.
This caller would not leave his name or details.
The second caller, a female a couple of dates later reported similar information and accusations and did not leave contact details.
The third caller identified himself as [Mr Gazdar] and left a number for me to call him back.
I called [Mr Gazdar] yesterday (14.9.20) where he passed on information to me in relation to [Ms Gazdar’s] relationship with her children and questioned her suitability to work with people with disabilities.
I informed him that I have contact the police and FACS and was advised by them there was no case for [Ms Gazdar] to be investigated for.
I also informed him that if he wishes to make those accusations he needs to keep them for his custody hearing and solicitor, not to [Ms Gazdar] place of work.
I told him we have no issue with [Ms Gazdar] working with our clients at [Organisation M] and advised him or his friends not to call [Organisation M] again.
I also said if it was to continue we would be advising the police.
(emphasis added)
The father denied he made the first call, even though the male caller was able to give details of police and FACs involvement, even having the police event number and contact details for FACs case workers. The second call was from a female with similar information. The father denied he had a friend or colleague call, and further claimed that he had not had any female friends since 2016, even platonically. He denied making the third call, even though he was specifically named as the third caller with that person leaving a mobile number that he agreed was his. Despite these denials, the father accepted he was called back on his mobile in cross-examination:
So you’ve got somebody who’s masquerading as you, endeavouring to do mischief to your ex-wife?‑‑‑I don’t know.
Right. Okay. Can I suggest to you, sir, that’s extremely unlikely?‑‑‑I don’t know.
…
So you’re saying she’s returning a phantom call that you never made?‑‑‑I never made a call to her.
But she has phoned you, returning the call is what this record says?‑‑‑Yes
…
But the phone number left was yours, and she phoned you back. You’ve already admitted you spoke with her?‑‑‑Yes. Yes. Yes. Yes. I do agree.
(Transcript 20 April 2022, p. 34 lines16-28).
I do not accept the father’s denials about these calls; indeed, I find them incredulous. I also do not accept the father’s written submission that this was the mother setting him up for an ADVO: that was not put to the mother. Further, there is no evidence before me that the mother used this for a ADVO application. Rather, I find that it was the father who made the third call, made or organised the first call and organised the one from the female. On his own case, he had few friends or colleagues and did not identify anyone else who was in possession of these details. In evidence unrelated to these calls, the father and one of the children spoke of a conspiracy between the mother and a Police Liaison Officer. Yet, it makes no sense that the Police Liaison Officer would make such a serious call when she was said to be conspiring with and for the mother. In any event, the father did not make such a suggestion in his cross-examination of the mother.
I find the making of such calls to be an incident of coercive control, seeking to undermine the mother and disenfranchise her from paid employment and the means by which she was supporting herself. It also demonstrated the lengths the father was prepared to take, to prosecute his agenda of undermining the mother. Separately, in denying he made at least the third call, where he is specifically named and his mobile number quoted, does his credit no service.
The mother clearly saw these aspects in terms of control; her distress was palpable in cross-examination.
The father’s submissions at [12-14 ] highlighted the mother’s complaints:
12. The [mother] did not work during the relationship, despite the [father] securing interviews and workplace opportunities for her.
13. The [mother] made the following concessions during cross-examination:
a. That the [father] assisted the [mother] in enrolling in and completing a university application in [Town V, Country G] for a [postgraduate course];
b. That before she “came to Australia”, she “didn’t want to do any studies”; and
c. The [father] asked the [mother] to go to a childcare for “two to three days” to “see how the childcare works”.
14. The above statements were contrasted by the [mother] when she stated “He didn’t allow me to work, he wanted me at his mercy”. It is submitted that the [father] at all times encouraged the [mother] to enrol in further studies and employment, however the [mother] was not willing to study or obtain employment during the relationship.
(emphasis added).
As submitted by the father, he “assisted her” to enrol in a postgraduate degree she did not want to do. Similarly, he “asked her” to work in a caring profession, when she wanted to work in the field in which she held tertiary qualifications. That is the context in which she referred to being at his mercy, being unable to pursue career autonomy.
This leads me to the conclusion that the father was attempting to control and coerce the mother into what he thought she should study and where she should work by providing her with no other options. That is, to control how she may, or may not contribute to the family union.
In the father’s submissions, it was conceded that he was convicted of assault, “however he denies all other allegations of family violence made by the [mother] against him” (Father’s Written Submissions filed 27 May 2022, paragraph 17 (Property)). That does not accord with the father’s actual evidence. Other than the bruised wrist from restraining the mother and her (misinterpreted) perception of financial control, the father denied all other allegations and also proclaimed his innocence with respect to his convictions.
Under a heading of Kennon in his submissions, the father also denied making a call to Company M, the mother’s then employer, and said it was likely the mother setting him up. That was not put to her in cross-examination. The submissions added:
…the [mother] had ample opportunity during the course of these proceedings to issue a subpoena to [Company M], the [father]’s phone records or otherwise, to ascertain the identity of the callers at the relevant time alleged, however, failed to do so. It is respectfully submitted that the Court would draw an adverse inference pursuant to Jones v Dunkel and thus accept that this information would not have assisted the [mothers]’s case.
(Father’s Written Submissions filed 27 May 2022, paragraph 18 (Property))
That submission is respectfully misplaced. The mother made the allegation that it was the father. It was entirely a matter for her how she evidenced that allegation. But having made the allegation, there was nothing stopping the father from issuing subpoena as he outlined above. This is also in circumstances where the start of this trial was consumed with the father’s application for subpoena to issue to the mother and her lawyer for communications between the mother and Mr H. He had also issued subpoena to telecom providers for other purposes. He was not a novice to issuing subpoena.
There was also nothing stopping the father from cross-examining the mother that she was the architect of the calls, but he did not.
I have already made findings about Company M. There is no need for me to make a Jones v Dunkel [1959] 101 CLR 298 inference against either party. I would not advance the matters before me.
The father also rejected the Kennon claim because the mother signed a statutory declaration on 25 May 2007 saying she had a happy life. It was also submitted that permanent residence would “individually benefit her”. That overlooks the fact that by this time, the mother was married, living in Australia and had one child (at that stage), born in Australia. I have no difficulties accepting the mother would sign what she needed to secure permanent residence, with her young family in Australia.
This submission was also made by the father:
It is accepted that the [father] was convicted of a charge arising from domestic violence. The lack of particularisation of the purported abuse prior to the conviction raises the question if such evidence could rationally affect the assessment of the existence of family violence. There is no evidence to state that she was prevented from contributing or that any alleged abuse otherwise rendered her contributions arduous. It is submitted that the evidence shows that the [father] actively assisted the [mother] in seeking work and in fact helped secure work experience at a [caring facility]. The [mother], in fact, continued to work on the state of the evidence post separation. The raising of the children may have been more arduous, however, the wife continued to call the [father] for his assistance post separation on the evidence of the father. While the [mother] denied she ever called the father, this was inconsistent with the evidence of the COPS entries and facts of the breach of AVO by the father, where the breach resulted in the calls made to the father by the mother. The [father] additionally assisted in pursuing [her postgraduate degree] in [Country G], noting that it was his family who paid for university fees.
(Father’s Written Submissions filed 27 May 2022, paragraph 19(b) (Property))
(underline added).
The father was not convicted of “a charge” (singular) arising from domestic violence. It was multiple charges and two contraventions. This submission about a lack of particulars seems to go behind the other courts’ decisions and the father’s declared respect for those decisions. I have already made findings about Y’s December 2016 interview and what he described there. As to the idea that the mother was not prevented from contributing, the evidence was the father asked her to look at caring roles for work but she wanted to work with her skill bases. The submission also fails to engage with the alternate proposition that the mother considered his “help” to be controlling. As to the mother continuing to work, the evidence is clear that the mother was only able to secure work for remuneration once she and the father separated. It was not a matter of her “continuing” to work.
I do not have evidence before me to consider whether it was the mother who made the calls to the father during the term of the ADVO. In any event, even if I did, it remains that the father was convicted of two counts of breaching the ADVO. I will again respect those courts’ decisions, as the father himself declared. I have already considered the postgraduate degree.
The father’s submissions then added, “…that family violence itself does not explain how the Mother acted generally towards the children post separation” (Father’s Written Submissions filed 27 May 2022, paragraph 20 (Property)). This seems to concede the fact of family violence. Even if that I am wrong in understanding this submission, it conflates two separate issues – the fact of the family violence upon the mother, and, the allegations subsequently made against her.
The father’s submissions then go on to make a detailed justification of the father taking over the home in mid 2020 (see paragraph 21-22 (Property) of Father’s Written Submissions filed 27 May 2020). I do not understand the father’s occupation of the home in mid 2020 to be a plank of the mother’s Kennon claim, and have already made extensive findings about all the allegations the children have made against their mother. It may be that the father’s submissions in these paragraphs go to post-separation contributions from mid 2020 as opposed to Kennon, but it is not in dispute that he has been the sole carer then.
Both for my findings of violence and abuse in the parenting aspect of these proceedings, and for the controlling manner in which the father operated the household to which I have referred above, I find a course of violent, abusing and controlling conduct by the father towards the mother during the relationship.
I then turn to whether this conduct made the mother’s contributions more onerous. The mother deposed that she “often experienced feelings of fear and anxiety when he was present” (mother’s trial affidavit, paragraph 17). In paragraph 22 of her trial affidavit the mother deposed that the father had told her on dozens of occasions that if she reported anything to police she would be homeless with X, and that she was “scared and anxious about being homeless with [her] son and being alone. Because [the father] worked in the welfare sector [she] believed what he told [her] about the police”.
In his submissions extracted above, the father (appropriately) conceded the mother’s parenting contribution may have been made more arduous. I accept that to be so. It is common ground that X’s behaviours were particularly challenging in 2018, which was when the father was having communications with the children (see Baranski & Baranski [2012] FamCAFC 18 at [257]-[259] where one party may render the other party’s post-separation contributions more arduous).
The Full Court held in Britt & Britt (2017) FLC 93-764:
The respondent submitted that the appellant’s evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.
The real question is whether the evidence, taken as a whole, is capable of leading to such an inference… [74-75].
In all of the circumstances of family violence and abuse in this case, I can safely infer that the mother’s indirect and homemaker contributions were made more onerous. To underscore the drawing of this inference as to contributions, I extract some of the unchallenged particulars of police application for the ADVO in the favour of the mother and children:
Once inside, the [father] shut the door and notified the [mother] she was not allowed [sic] to leave the room or premises without his permission. After stating this the [father] approached the [mother] and lifted her blouse up with one hand. Using his other hand, he then pulled down the underwear of the [mother] and placed them in his left pocket. Using his right hand the accused pinched the vagina and inner right thigh of the [mother]. After completing this action, he threw the [mother] onto the bed and moved towards the bedroom door and locked it. The [mother] got up from the bed and approached the [father] repeatedly requesting for him to let her leave the bedroom. The [father] denied her requests and stood in front of the door. Making it physically impossible for the [mother] to exit the room.
…
[moving to another event]
After hearing this the [father] stated “You are lying, I want to know the truth. It was not planned. You’re [sic] not telling the truth? Ok I’ll [sic] open your mouth”. The [father] then physically removed the clothing the [mother] was wearing with both his hands, resulting in the [mother] being completely naked in their bedroom. The [father] grabbed the [mother] by her arm and physically dragged her out of the room into the kitchen. He threatened to call for their children so their children could see their mothers naked body. The [mother] pleaded with the accused for him not to wake their children and for them to see their mothers naked body. The [father] agreed to this, however moved the [mother] towards the back door and said “Ok I am going to show your nude body to other men on the street”…
(Mother’s trial affidavit, pages 29-30).
As just two examples of violence and abuse of the many already detailed, it is not hard to see how such tyranny would lead to the mother’s indirect and homemaker contributions being made more onerous by the father’s course of conduct. This was a household of control, and of demeaning and demoralising courses of conduct, that had real consequences for the mother’s ability to contribute as a parent – to which the father’s submissions properly conceded.
As such, I find this is one of those exceptional cases, where the mother’s contributions were made more onerous due to the father’s family violence and abuse.
In determining the mother’s Kennon claim I must weigh the contributions that have been made more arduous or onerous for the mother, together and collectively with the other contributions of both parties (see Benson v Drury (2020) FLC ¶93-998). That is, the Kennon argument must be considered within the holistic approach to all contributions.
Post separation contributions
It is common ground that the mother was the sole carer and financial provider for the children from December 2016 to mid 2020. She did not receive any financial support from the father in this period of time, but had exclusive use of the former matrimonial home. The father made no homemaker or caregiving contributions during this time.
It is not disputed that the father had free lodging and accommodation with others in that period. The mother also submitted the father had access to matrimonial funds, through his severance pay out upon the loss of his job post-separation. While that maybe so, I have no evidence before me to assess the reasonableness of his expenditure (see by analogy, Omacini v Omacini (2005) 33 Fam LR 134 at 146).
It is common ground the father has been the sole carer of the children since mid 2020. After that, the mother was assessed to pay modest child support to the father; there are no arrears in evidence before me. The father has had sole use of the former matrimonial home since mid 2020 and sole care of the chidlren. The mother has not made any homemaker or caregiving contributions since mid 2020.
I have already taken into account the concession made by the father (under the Kennon considerations above) the mother’s raising of the children may have been made more arduous. I do not double count that here.
It was not disputed that the mother is paying rent with her Financial Statement stating she pays $360 per week. From her post-separation income, she acquired Motor Vehicle 2 but that was listed as a financial resource in the joint balance sheet (Exhibit 19).
Evaluation of contributions overall
It was the father’s final position in submissions that contributions were equal.
The mother said contributions favoured her in the vicinity of a 55% adjustment in her favour.
There is no presumption of equality in the assessment of spouses’ contributions under either
s 79 of the Act (see Mallett v Mallett (1984) 156 CLR 605 (“Mallet”) at 610, 613, 625, 639-640, 647). However, often the evidence will necessarily lead to a conclusion that the spouses’ contributions were relatively equal when contributions as a homemaker and parent are properly afforded substantial and not merely token recognition (see Mallett at 609, 623, 636, 646).
Looking at the myriad of contributions in this long relationship, and in collectively considering the mother’s Kennon claim, her longer period of sole homemaking contributions post-separation, together with the other contributions of both parties holistically, all contributions weigh slightly in the mother’s favour warranting a 55 percent adjustment for contribution in her favour.
Whilst I have taken a holistic approach (as authorities require), I am fortified in the adjustment proposed above, in light of the father’s submissions that “If a Kennon adjustment were made, it would in our respectful submission, not amount to more than a 5% adjustment to the mother having regard to the age of the children” (Father’s Written Submissions filed 27 May 2022, paragraph 43 (Property)).
I appreciate a 5 percent adjustment is a 10 percent differential. In money terms, that 5 percent equates to $63,029 or, on the 10 percent differential, $126,059. That is appropriate.
Section 79(4)(d).
The property order I will make will not affect the earning capacity of either of the parties under s 79(4)(d) of the Act. Neither party suggested otherwise.
Section 75(2) Factors
The mother seeks a 20 percent adjustment in her favour for an accumulation of s 75(2) factors. In submissions, the mother highlighted that: she would have the sole financial and emotional support of the children; the father will make no financial support for the children; her income is modest; the father has “considerable earning capacity”; the father’s health is not as poor as he portrays; and, he has considerably more superannuation than the mother (Mother’s Written Submissions filed 27 May 2022, paragraphs 15-19).
The father also seeks a 20 percent adjustment in his favour. As set out in submissions, he agitated for a 10 percent adjustment in his favour for the care of the children and a further 10 percent adjustment on the basis of his inability to obtain meaningful employment in future due to his health issues (Father’s Written Submissions filed 27 May 2022, paragraphs 38-39 (Property)).
In the alternative, the father submitted that should the court be minded to place the children in the care of the mother, it would be just and equitable for the mother to receive an adjustment of 10 percent, in view of the following factors:
(a) [X] is 15 years old and will be turning 16 this year, while it is only [Y] who is of a relatively young age of 11 years; and
(b) The mother is employed and is of good health.
(Father’s Written Submissions filed 27 May 2022, paragraph 41 (Property))
Subsection 75(2)(a) – the age and state of health of each of the parties
The mother is 42 years of age and the father 50 years of age. The mother is in reasonable health.
The mother submitted that I would not accept that the father “is disabled as he claims in light of the Corrective Services assessment of capacity in Exhibit 9” (Mother’s Written Submissions filed 27 May 2022, paragraph 17) and consequently, he has considerable earning capacity. I will return to that under the capacity for gainful employment consideration below.
As to his health, the father said he suffered an injury on or around 2014. Notwithstanding, he was able to work for remuneration outside the home until late 2016 when charged with the various assaults and initiation of the ADVO proceedings. In late 2019 he suffered an additional injury which has resulted in ongoing medical complications, which causes pain when he walks. Whilst references to these diagnoses are in evidence, I have no evidence about what any of this means in terms of the father’s health. I do see reference in 2014 to difficulty standing, but the father continued to work until suspended in late 2016. In cross-examination about his health, the father accepted he could undertake a desk job.
The father also suffers from severe depressive disorder which was diagnosed in 2017 by psychologist. The father submitted he “is currently taking medication to treat his depression and attending counselling” (Father’s Written Submissions filed 27 May 2022, paragraph 36 (Property)).
In the premises, little turns on the parties’ age and health.
Subsection 75(2)(b) – the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The mother was given leave to adduce oral evidence to update her financial circumstances, with modest updates that at time of trial, she earned $821 gross per week, paid $105 in tax, thus netting $716 a week. The mother pays modest child support.
The father receives $692 per fortnight from a disability allowance and $430 per fortnight in family tax benefit. In submissions it was said he is on JobSeeker payments of $315 per week.
At trial, the mother was working at Company W. I have no evidence to suggest she is underemployed.
The father said he had “been unemployed since 2016” when his employment within the welfare sector, as it then was, ceased. He was engaged as a medical professional.
The father submitted that his health issues meant he was “…unable to engage in physical labour. This will impact his ability to engage in meaningful employment in the future” (Father’s Written Submissions filed 27 May 2022, paragraph 35 (Property)).
The mother took issue with this, pointing to the father’s pre-sentence report of November 2017, which was marked Exhibit 9. In that report, the father’s GP detailed he did not have any current back pain and was “fit for work”.
Similarly, in a police record of 23 November 2018, which was marked Exhibit 8, the father told the police he could not have been driving by the mother’s house (an allegation of breaching the ADVO) because he was at work. When this was put to the father in cross-examination his evidence went from the “phone statements could have been misinterpreted” to “I don’t exactly know what I said but what I’m trying to explain is they could have misunderstood what I said…because I did not say I’m working because I’ve never worked”, then “Because I’ve got [an injury] and therefore I can’t do any physical labour. I can do desk job” (Transcript 20 April 2022, p.26-27 lines 34-5).
Whilst the father said he was on a disability pension, that took the mother by surprise at trial, and the basis for his pension is not known.
In any event, on the strength of the reports from external sources, I do not share the father’s contention that he is unable to work. Indeed, on the strength of those same external sources, and the father’s admission he could do desk work, I find he is not unable to engage in meaningful employment in the future; that is, the father has underutilised earning capacity. That said, I have neither evidence of what he might do by way of employment outside home (other than a desk job as he said), nor earn.
The father has superannuation of $141,003 and the mother has superannuation of only $12,084. Yet, the parties’ age differences are such that the mother is almost 10 years younger than the father and has longer to earn income and accumulate some further superannuation should she remain employed.
Ultimately, the parties’ various individual factors under this sub-heading balance each other out. In the premises, I do not accept the father’s contention that he ought receive a 10 percent adjustment “on the basis of his inability to obtain meaningful employment in future due to his health issues” (Father’s Written Submissions filed 27 May 2022, paragraph 39 (Property)).
Subsection 75 (2)(c) – whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
Under my parenting orders, the mother will have the sole care of the children.
As such, she will have to financially and emotionally support the children. If the best predictor of the future is the past, then I can safely conclude that the father will provide no financial support for the children upon them being given into the mother’s care.
As noted, the father submitted that if the children stayed with him, he ought have a 10 percent adjustment in his favour. He also conceded (appropriately) that if I changed residence, then the mother ought have a 10 percent adjustment in her favour taking the parenting into account but also her income earning capacity.
Subsections 75 (2)(d) and (e) – commitments of each of the parties that are necessary to enable the party to support himself or herself, and a child or another person that the party has a duty to maintain; and the responsibilities of either party to support any other person
Neither party made any, or any substantive submissions about this. As such, nothing turns on this consideration. I have already considered the impact on the mother of her having the care and control of the children of the marriage, and will not double count that by including it again here.
Subsection 75 (2)(f) – the eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or of another country; or any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party
The father said he is in receipt of a disability pension, but I have no information from Centrelink about that. I also have no information about what benefits the mother may be entitled to once the children are in her care. Nothing turns on this.
Subsection (2)(g) – where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
Neither party made any, or any substantive submissions about this. As such, nothing turns on this.
Subsection (2)(h) – the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
Maintenance was not sought. This is not applicable.
Subsection (2)(ha) – the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant
Not applicable.
Subsection (2)(j) – the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
No maintenance orders were ought. This is not applicable.
Subsection (2)(k) – the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
Neither party made submissions about this. I agree it is inapplicable.
Subsection (2)(l) – the need to protect a party who wishes to continue that party’s role as a parent
Both parties wish to continue the role as a parent, albeit a sole parent. In the circumstances, nothing turns on this and no none made submissions I ought consider it.
Subsection (2)(m) – if either party is cohabiting with another person—the financial circumstances relating to the cohabitation
Not applicable.
Subsection (2)(n) – the terms of any order made or proposed to be made under section 79 in relation to the property of the parties; or vested bankruptcy property in relation to a bankrupt party
Not applicable.
Subsection (2)(naa) – the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to a party to the marriage; or a person who is a party to a de facto relationship with a party to the marriage; or the property of or vested bankruptcy property in relation to a person covered by the categories aforementioned
Not applicable.
Subsection (2)(na) – any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
The father did not pay any child support or other financial support to the mother when the children were with her from separation to mid 2020. Conversely, the mother pays the father child support as assessed. I do not know when that started, but plainly some time after the children came into his sole care.
Subsection (2)(o) – any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
Not applicable.
Subsections (2)(p) and (q) – the terms of any financial agreement and any Part VIIIAB financial agreement that is binding on the parties to the marriage
This consideration is not relevant.
Evaluation of s 75(2) factors
The consideration which looms large here is that the mother will have the sole care and control of the children, and will be solely responsible for their financial support into the future.
I accept part of what the father submitted that:
In the alternative, should the Court be minded to place the children in the care of the Wife, it is submitted that it would be just and equitable for the Wife to receive an adjustment of 10%, in view of the following factors:
a. [X] is 15 years old and would be turning 16 this year, while it is only [Y] who is of a relatively young age of 11 years; and
b. The Wife is employed and is of good health.
(Father’s Written Submissions filed 27 May 2021, paragraph 41 (Property)).
I have already made findings about the s 75(2)(a) and (b) considerations to which the second part of this submission relates.
I do however find that the sole burden of parenting the children, and all that comes with that, warrants an overall s75(2) adjustment of 10 per cent in the mother’s favour. A 10 percent adjustment to the mother for s 75(2) factors is $126,058. That is a 20 percent differential and representative of $252,117 in the balance sheet. That is appropriate
WHAT PROPERTY ORDER IS APPROPRIATE TO ACHIEVE A JUST AND EQUITABLE OUTCOME?
The property of the parties or either of them will be divided so to reflect the father receiving 35 percent and the mother receiving 65 percent of the net overall asset pool.
On a pool of $1,260,587 the mother is to receive $819,382 (rounded) and the father $441,205 (rounded). But in the event the Suburb F property is to be sold, that final adjustment will depend upon the net sale proceeds.
The father sought to sell the Suburb F property. The mother sought to retain it and pay out the father. The father submitted there was no entitlement to keep a residence “per se”. While that may be so, in circumstances where the father proposed the home be sold, there is nothing lost to him if the mother is given the chance to pay out the father. I accept that the mother has no evidence of borrowing capacity, but that is a problem for her, not the court, on the orders she proposes. The father will get his entitlement whether or not the property is sold. Indeed, his actual cash entitlement may be slightly more if the mother can pay him out, because if the property has to be sold, then the pool will be reduced by costs of sale.
Hence, I will give the mother the option to pay out the father, but will make orders for the sale of the property if she cannot. I will base my sale orders on those orders proposed by her. One of the orders proposed by the mother is for the father to discharge any encumbrance against the Suburb F property. The evidence of both parties is that the property is in the father’s sole name and is unencumbered. Hence if there is any encumbrance against it, that has not been placed in evidence before the court, and would have arisen by his doing. If that is the case, then that is a consequence of his actions and thus his responsibility.
I also make an order that the property is to be maintained in a reasonable state of cleanliness as that concept is understood within s 51(2)(a) of the Residential Tenancies Act 2010 (NSW) (No 42). Neither party sought this, but I make this order to regulate how either party is to deal with the single most valuable item in the balance sheet.
I will also order that the joint contents will become the mother’s sole possessions. I do so, so they can be used by her in the former matrimonial home. More so, the idea of these two parties being able to agree on some kind of separation of personal property into one lot each defies logic.
I also make an order that those joint contents ($4,000 on Exhibit 19) are not to be acquired, destroyed, defaced or relocated, by the father, or him causing any such actions. Whilst the mother did not seek such an order, it would defeat the point of the orders that those items are to be hers, and hers on the balance sheet, if the father then took them.
Under the heading of “Step 4: S79(2) - Is the Proposed Outcome Just and Equitable?”, the father also submitted I not “merely equate it [the Kennon claim] to that amount required to enable her to retain the home” (Father Written Submissions filed 27 May 2022, paragraph 43 (Property)). Plainly, I have not done so.
On a pool of $1,260,587 and at a 65-35 percent adjustment, if the mother can pay out the father, then the outcome will be as follows:
Item
Mother to Retain
Father to Retain
1.
Matrimonial Home (E Street, Suburb F)
$1,100,000
$0
2.
Motor Vehicle 1
$0
$1,500
3.
Home contents
$4,000
$0
4.
Bank Account 1
$2,000
$0
5.
Superannuation Fund 1
$0
$141,003
6.
Superannuation Fund 2
$12,084
$0
7.
Sub-total:
$1,118,084
$142,503
8.
Property distribution at 65 percent of the pool to the mother and 35 percent to the father:
$819,381 (rounded)
$441,205 (rounded)
9.
Total amount for mother to pay to father:
$298,703
If the mother cannot pay out the father, then the net proceeds of sale (as defined in the Order) will be added to Items 2-6 at those agreed values to give the revised total (as also defined in the Order). The parties will then calculate a 65-35 percent adjustment on that revised total at Item, and taking into account what each will retain and at what value, calculate the new payment figure at Item 9.
I am satisfied that the proposed property sfettlement achieves a just and equitable outcome.
I certify that the preceding three hundred and fifty-two (352) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 5 July 2022
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