Goldberg & Berkshire
[2024] FedCFamC1F 283
•29 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Goldberg & Berkshire [2024] FedCFamC1F 283
File number(s): CAC 1139 of 2022 Judgment of: GILL J Date of judgment: 29 April 2024 Catchwords: FAMILY LAW – PROPERTY – Orders made by consent – Jointly owned property to be sold – Superannuation splitting order in favour of the wife.
FAMILY LAW – PARENTING – Where the mother seeks to relocate to the United Kingdom – Where the father is subject to police complaints, protection orders and termination of employment as a result of attempts to solicit romantic relationships from women – Orders made by consent – Mother to have sole parental responsibility for the child –Child to live with the mother – Mother is permitted to relocate to the United Kingdom – Father is to spend supervised time with the child pending relocation – Following relocation father is to spend supervised time with the child in Australia once per year with the parties sharing the cost of the mother and child’s travel – Father to engage in psychotherapy and treating provider to receive relevant material from the proceedings.Legislation: Australian Passports Act 2005 (Cth) – s 11
Family Law Act 1975 (Cth) – ss 90XE and 90XT
Family Law (Superannuation) Regulations 2001 (Cth) – Part 6
Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 29 April 2024 Place: Canberra Counsel for the Applicant: Mr Selfridge Solicitor for the Applicant: Farrar Gesini & Dunn Counsel for the Respondent: Ms Bertone Solicitor for the Respondent: Leishman Legal Solicitor for the Independent Children's Lawyer: Ms Bartlett, Legal Aid ACT ORDERS
CAC 1139 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GOLDBERG
Applicant
AND: MS BERKSHIRE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
29 APRIL 2024
Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 3 May 2024
THE COURT ORDERS, BY CONSENT, THAT:
PROPERTY ORDERS
B Street, City C
1.The Applicant Husband and Respondent Wife shall do all acts and sign all documents necessary to progress the current offer to purchase the parties’ jointly owned property at B Street, City C (“B Street”).
2.In the event that the current offer to purchase does not proceed to final settlement, then the parties shall do all acts and sign all documents necessary to sell B Street on the following conditions, unless otherwise agreed between the parties:
(a)B Street shall be listed for sale by private treaty with such real estate agent (“the Agent”) as nominated by the Respondent Wife;
(b)The listing price shall be set by the Agent based on the Agent’s assessment of the market conditions, but shall not be less than five hundred and seventy-five thousand Great British Pounds (£575,000); and
(c)The parties shall accept any offer to purchase B Street at or above the listing price.
3.Should B Street not be sold within sixty (60) days of the date it is listed for sale, it shall be auctioned on the following conditions, unless otherwise agreed between the parties:
(a)The Reserve Price shall be set by the Agent based on the Agent’s assessment of the market conditions;
(b)The auctioneer shall be selected by the Agent;
(c)Should B Street not be sold at the first auction, or within the next sixty (60) days, it shall be relisted for auction every sixty (60) days, at a Reserve Price set by the Agent, based on the Agents assessment of the market conditions at the time, until such time as B Street is sold.
4.The proceeds of the sale of B Street shall be distributed as follows:
(a)In payment of the D Bank loan account number …86 secured by mortgage against B Street;
(b)In payment of any sales costs, agent’s commissions and auctioneers fees;
(c)In payment of the balance of any amount owed to E Real Estate, the property letting agent for B Street, in respect of unpaid property letting fees;
(d)The sum of one hundred and forty-four thousand seven hundred and seventy‑two dollars ($144,772 AUD) to the Respondent Wife’s nominated bank account; and
(e)The balance if any, to the Applicant Husband.
AND IT IS NOTED
A.The conveyancing solicitor acting for the parties shall calculate the amount payable to the Respondent Wife pursuant to Order 4d in GBP, using the AUD/GBP conversion rates listed by F Bank on the day of settlement. The conveyancing solicitor acting for the parties shall pay each of the parties the amounts to be paid to them pursuant to orders 4(d) and 4(e) directly to their respective nominated bank account.
Superannuation
5.In accordance with s 90XT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), whenever a splitable payment within the meaning of s 90XE of the Act becomes payable to or on behalf of Mr Goldberg from his interest in Superannuation Fund 1, Ms Berkshire is entitled to be paid (by the trustee) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a base amount of $100,000 and there is a corresponding reduction in the entitlement Mr Goldberg would have had but for these Orders (provided that such base amount shall not exceed the value of the interest determined under s 90XT(2)).
6.The operative time for Order 5 is four business days after the date of service of a sealed copy of the Orders on the Trustee.
7.This order binds the trustee of Superannuation Fund 1.
8.That each party and the Trustee has liberty to apply on not less than three (3) business days’ notice, in respect to the implementation of the super splitting orders.
Other Property
9.Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money under these or any subsequent Orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these Orders;
(b)Any money standing to the credit of the parties in a bank account shall be retained by the party in whose name the account appears;
(c)Each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other except as already provided for in Orders 5, 6 and 7 herein;
(d)All insurance policies shall become the sole property of the owner named hereon;
(e)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
10.The parties shall each bear their own costs of and incidental to these proceedings.
NOTATION
A.The property pool on which these orders are based is agreed by the parties to be:
(a)52 B Street, City C (E580,000 GBP, $1,120,383 AUD)
(b)Mortgage Liability to D Bank (E475,989 GBP, $919,392 AUD)
(c)Liability to E Real Estate (E5,544 GBP, $10,674 AUD)
(d)Estimated sale costs (E18,700 GBP, $36,703 AUD)
(e)Superannuation - $281,501
(f)Total Pool - E $435,115 AUD
(g)Estimated division 37% to Applicant Husband and 63% to Respondent Wife
PARENTING ORDERS
11.That all existing parenting orders and agreements are discharged.
Parental Responsibility
12.That the Mother shall have sole parental responsibility for X born 2017 (“the child”).
13.That except in the event of an emergency when making any major-long term decision for the child:
13.1No less than 14 days prior to making any major long-term decision for the child (“the decision”), the Mother shall inform the Father in writing about the decision she proposes to make and invite the Father to give his view about the decision;
13.2The Father shall share his view with the Mother in writing on the decision to be made within 14 days of receiving notice of the decision; and
13.3The Mother shall consider any view that the Father has shared with her before making the decision and forthwith inform the Father of the decision made.
14.That notwithstanding Orders 12 & 13 above, the Mother is not to change the child’s name without the father’s written consent.
Relocation
15.That the child X born 2017 be removed from the AFP Watchlist.
16.That the Mother be permitted to relocate the child’s residence to City C, United Kingdom.
17.That the Mother is at liberty to apply for and renew passports for the child and pursuant to s 11 of the Australian Passports Act 2005 (Cth), the Minister may issue or renew passports for the child without obtaining the father’s signature or consent.
Supervised Time pending Relocation
18.That pending the child’s relocation to City C, United Kingdom, the child shall live in Sydney, Australia with the Mother and shall spend time with the Father in Sydney, Australia as agreed between the parties and failing agreement as follows:
18.1On alternate weekends commencing 3 May 2024, from 4 pm on Friday until 5 pm on Sunday;
18.2For half the school holiday periods for the second half of school holidays; and
18.3Provided that any time that the child spends with the Father pursuant to this Order is to be in the presence of the nominated supervisors, being Ms G, Ms H or Mr J (the “nominated supervisors”) and each supervisor shall:
18.3.1Receive a letter from ICL regarding the specifics of the allegations made against the Father and the expectations of their supervision roles and responsibilities; and
18.3.2Sign and return an acknowledgement of receipt of that letter prior to the proposed time; and
18.3.3Sign an undertaking as set out in the notation.
Supervised time following Relocation
19.That following the child’s relocation to City C, United Kingdom, the child shall live in the United Kingdom with the Mother.
20.The child shall spend time with the Father in Sydney Australia as agreed between the parties, and failing agreement, as follows:
20.1On one occasion per year for fourteen (14) days in Australia during the United Kingdom Christmas school holidays, with the changeover of the child to be in Sydney.
20.2The costs of the Mother’s and the child’s return travel to Australia be shared equally between the parties and for this purpose the Mother shall notify the Father sixty (60) days before the travel of the amount to be paid by the Father and the Father shall deposit the funds to the Mother’s nominated bank account within 14 days of being notified of the costs by the Mother.
20.3The Father is to keep the Mother informed of the child’s whereabouts should the Father travel with the child outside of the Sydney area.
20.4Provided that any time pursuant to this Order is to be in the presence of the nominated supervisors and each supervisor shall:
20.4.1Receive a letter from ICL regarding the specifics of the allegations made against the Father and the expectations of their supervision; and
20.4.2Sign and return an acknowledgement of receipt of that letter prior to the proposed time.
20.4.3Sign an undertaking as outlined in the notation.
Psychotherapy
21.That the father shall engage in treatment with his psychologist Mr K or other such psychologist as agreed between the parents in writing in order to address the concerns raised as a result of the allegations made against the father as contained in the following:
21.1The affidavit material filed in these proceedings;
21.2In the M Organisation and AFP subpoena material returned in these proceedings; and
21.3In the two applications for personal protection orders brought against the father.
22.That the father shall continue in treatment as per Order 21 above as per the recommendations of his psychologist.
23.That for the purpose of the father’s treatment as per Order 21 above, within 14 days of the date of these Orders the ICL is to provide the father’s psychologist with the following:
23.1A letter from the Independent Children's Lawyer setting out her views regarding the allegations made against the father in the material available to the parties and the concerns raised as a result; and
23.2A copy of Dr L’s mental health assessment of the parents dated 16 February 2023, Dr L's updated mental health assessment of the father dated 27 February 2024 and the Family Report of Ms N dated 5 April 2024.
Disclosure
24.That within 48 hours of receiving the information detailed herein, the Father shall inform the Mother in writing regarding matters relevant to his mental health and parenting capacity, including whether he has been diagnosed with any mental health condition, received (or been recommended to receive) treatment regarding his mental health and any person making a formal or informal complaint of sexual harassment, sexual assault or inappropriate behaviour by the father (whether that complaint is made to the father, the police or any other institution including the father’s employer).
25.That within 14 days of receiving a written request by the mother, the father shall instruct his current criminal solicitor to write directly to the mother confirming whether the father has been charged with any criminal offence, the status of any criminal investigation involving the father and if the father has been charged with a criminal offence, what offence/s he has been charged with and the progress (and/or outcome) of any criminal proceedings, with such communication to occur at the father’s sole cost.
26.That the father shall within 7 days advise the mother in writing of the name and contact information of his criminal solicitors and update the mother with the details of any new criminal solicitor he engages with in future. In the event the father becomes self‑represented in any criminal proceedings, he is to advise the mother within 7 days.
27.Each party is to keep the other advised at all times of their address, email and mobile telephone numbers.
28.That each party is restrained from:
28.1Discussing these proceedings or any other adult issues with the child or in the presence or hearing of the child;
28.2Speaking badly about the other parent or the other parent's family to the child or in the presence or hearing of the child.
Dispute Resolution
29.That upon completion of the following the parents shall engage in family dispute resolution to review the time arrangements and consider the removal of supervision requirements within 2 months of the Father providing the Mother with notice of:
29.1The finalisation of the current investigation into the allegation of the incident in early 2024; and
29.2The Father providing a report from his psychologist confirming that they have received and reviewed the material provided to them by the ICL, the number of sessions attended by the father and whether any further treatment is recommended in relation to the concerns identified by the ICL.
Registration
30.That the parties do all things necessary to register the Orders in the United Kingdom.
Costs
31.Each party shall bear their own costs of and incidental to these proceedings.
NOTATIONS:
A.The terms of the Undertaking referred to at Orders 18 and 20 herein are as follows:
I [NAME, ADDRESS, PROFESSION, CONTACT NUMBER] undertake to the Court:
1.To be present at all times during the periods the child X (“the child”) is spending time with Mr Goldberg (“the father”).
2.That if while supervising the child’s time with the father, I witness any inappropriate conduct on behalf of the father (including the father speaking negatively about the mother or her extended family or the father soliciting the romantic attention of women) then I will terminate the contact period and contact Ms Berkshire (“the mother”) and provide the mother with information regarding what has occurred and facilitate X’s return to her care as per the mother’s request;
3.That if the child tells me of any conduct by the father which I consider to be inappropriate or worrying, then I will contact the mother and provide the mother with information regarding what has occurred and facilitate X’s return to her care as per the mother’s request;
4.That I will not discuss with or in the presence of the child the allegations or any other matter raised in the family law proceedings between the parents;
5.I acknowledge that my role is to protect the child;
6.I also acknowledge that it is for the parents’ benefit that proper supervision takes place; and
7.I have read the letter from the ICL which explains my obligations and the allegations against the Father.
B.Should the Father move to live in the UK then X shall spend supervised time with his Father as agreed between the parties, with a supervisor as agreed between the parties.
IT IS FURTHER ORDERED THAT:
32.The Independent Children’s Lawyer’s discharge will take place 28 days after today’s date.
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 pseudonym, Goldberg & Berkshire, has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
The parties and the Independent Children’s Lawyer (“the ICL”) have come to a common position as to the parenting arrangements for the child of the relationship X. The evidence before the court is indicative that both the parents have been highly involved in X’s life at least until the point of his and their move to Australia. The evidence is suggestive that there has been some degradation in the parental capacity of the father since that period of time and a number of incidents were the subject of evidence which are indicative that some risk and significant degradation of the father’s parenting capacity had arisen.
The nature of those matters centred in large part around the alleged attempts on the part of the father to solicit romantic relationships with adults in manners which have seen him be subject of complaint to the police, the subject of protection orders and the subject of action by his previous employer to terminate his employment. As identified in submissions, a number of those were not disclosed in a timely fashion by the father. A number of other matters have been reported by the mother which were potentially indicative that the father was suffering from mental health struggles, although those matters have not been resolved and I am not making a finding that he does so suffer from mental health struggles.
Those matters, however, raised issues about the nature of the father’s capacity to parent X, the risk that he would expose him to behaviour that would be deleterious to X. Circumstances of the breakdown of the marriage have also imposed particular burdens on each of the parties but in particular on the wife who wishes to return to the United Kingdom (“the UK”) from whence she and the father and X came in 2019. Her evidence supports the notion that she will have significant practical and emotional support that will assist her with the primary parenting of X which these orders will entrust to her.
The parties and the circumstances point to the appropriateness of the mother exercising the primary care of X and under those circumstances, given the significant breakdown of trust in the relationship between the mother and the father it is also appropriate that she exercise sole parental responsibility as proposed by the parties. The evidence is also indicative that despite the difficulties that have faced the father over the last few years, there is a warm and important relationship between the father and X, from which X benefits and which should be maintained in so far as it can be while promoting a safe environment for X. The orders proposed by the parties and the ICL strike that balance. They provide for non-professionally supervised time but under circumstances that those who will be undertaking the supervision are sufficiently apprised of the allegations that have been made against the father and of their responsibilities as supervisors to act as a sufficient safeguard while supporting the ongoing relationship between X and his father.
The parties have also considered carefully how it is that there might be a progression fostered by them from their current supervised arrangement. They have formalised an arrangement both for the father to provide timely disclosure of incidents which may indicate a compromise to his parenting capacity for X to the mother and also a regime where he will receive some psychological support which is directed to assist him and X in respect of the improvement of his parenting capacity and decrease of any risk that he might pose to X. The parents have consented to orders which mandate the father engaging in that process. They have also agreed to orders which would provide for further dispute resolution between them in an attempt to resolve any ongoing issues in respect of the time that the father might be able to spend with X. The orders contemplate that the father’s engagement with psychological support will provide him with the means to deal with the issues that are at present compromising his parenting capacity so that he is able to enjoy, and X is able to enjoy, a fulsome relationship with each other to the benefit of each other.
On balance, the orders deal with the risks that were disclosed in the evidence. They deal with the compromise in parenting capacity that has afflicted the father over the past few years, they deal with appropriate arrangements for the support of the mother as she primarily parents X and notwithstanding the frequency of time between the father and X will be necessarily reduced by his relocation to the UK together form an appropriate arrangement to foster X’s best interests. I make orders in accordance with C2.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 29 April 2024
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