Goodryngton & Salter
[2023] FedCFamC1F 641
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Goodryngton & Salter [2023] FedCFamC1F 641
File number(s): SYC 4805 of 2019 Judgment of: SCHONELL J Date of judgment: 2 August 2023 Catchwords: FAMILY LAW – PARENTING – Unacceptable risk – Where both parties sought sole parental responsibility and for the children to live with them – Where the Court finds that both parents did not act at times in the best interests of the children – Where the mother’s use of an illicit drug exposed the children to actual harm – Where the evidence demonstrates that the mother has not used the illicit drug since April 2020 – Where both parties have been less than honest with the Court – Consideration of primary and additional considerations under s 60CC of the Family Law Act 1975 (Cth) – Where the Family Consultant recommended that the children live with the father and spend time with mother – Where the Independent Children’s Lawyer sought orders in line with the recommendations of the Family Consultant – Orders made for the father to have sole parental responsibility, for the children to live with him and for the mother’s time to progress to four consecutive nights.
FAMILY LAW – PROPERTY – Where both parties sought financial adjustment – Where the father’s contributions exceeded those of the mother – Where the father will have the primary care of the children – Where a just and equitable outcome was found to be 18 per cent to the mother and 82 per cent to the father.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA, 90SF, 90SM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.01
Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 154
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (intervener) (2003) FLC 93-143; [2003] FamCA 395
Horrigan & Horrigan [2020] FamCAFC 25
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Nagel & Clay (2020) 60 Fam LR 550; [2020] FamCA 326
Robb and Robb (1995) FLC 92-555; [1994] FamCA 136
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Singerson & Joans [2014] FamCAFC 238
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Division: Division 1 First Instance Number of paragraphs: 216 Date of hearing: 13 – 16 June 2023 and 24 July 2023 Place: Sydney Counsel for the Applicant: Mr Cairns Solicitor for the Applicant: Heras Family Lawyers Counsel for the Respondent: Mr Othen Solicitor for the Respondent: MCW Lawyers Counsel for the Independent Children's Lawyer: Ms Conte-Mills Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
SYC 4805 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GOODRYNGTON
Applicant
AND: MR SALTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
2 AUGUST 2023
THE COURT ORDERS THAT:
Parenting Orders
1.All prior parenting orders are discharged.
2.The respondent father (“the father”) have sole parental responsibility for the children X born 2015 and Y born 2016 subject to Order 3 below.
3.In his exercise of parental responsibility, the father shall notify the applicant mother (“the mother”) in writing twenty-eight (28) days prior of any decision he intends to make in his exercise of parental responsibility and the mother may respond in writing to the father’s notification within fourteen (14) days. The father shall consider any input the mother may have before making a final decision.
4.The children shall live with the father.
5.The mother shall spend time with the children as follows:
(a)For six (6) months from the date of these orders:
(i)In week 1, each alternate Saturday from 8.00 am until 7.00 pm commencing 3 August 2023; and
(ii)In week 2, each alternate Thursday from after school (or 3.00 pm) until 7.00 pm.
(b)For a further six (6) months:
(i)In week 1, each alternate weekend from after school Thursday (or 3.00 pm) until 7.00 pm Saturday; and
(ii)In week 2, each alternate Thursday from after school (or 3.00 pm) until 7.00 pm;
(c)For a further six (6) months:
(i)During school term time:
(1.1)In week 1, each alternate weekend from after school Thursday or (3.00 pm) until 7.00 pm Sunday;
(1.2)In week 2, each alternate Thursday from after school (or 3.00 pm) until Friday before school (or 9.00 am); and
(ii)During school holidays, for four (4) consecutive nights in each fortnightly period as agreed, and failing agreement from 3.00 pm Sunday until 3.00 pm Thursday commencing in the first week of the holidays and each alternate week thereafter for longer holiday periods.
(d)Thereafter:
(i)During school term time, each alternate weekend from after school on Thursday (or 3.00 pm) until before school on Monday (or 9.00 am); and
(ii)During school holidays, for one half of each school holiday period as agreed and failing agreement for the first half in even numbered years and the second half in odd numbered years, with changeover at 7.00 pm on the middle Saturday of the short school holiday periods and at 7.00 pm on 7 January in the Christmas school holiday period.
(e)Other times as agreed in writing between the mother and the father.
6.In the event the mother is not spending time with the children in accordance with these orders on Mother’s Day, then the mother shall spend time with the children from 9.00 am until 5.00 pm on this day.
7.In the event the father is not spending time with the children in accordance with these orders on Father’s Day, then the father shall spend time with the children from 9.00 am until 5.00 pm on this day.
8.On the occasion of the children’s birthdays, the parent who is not otherwise spending time with the children in accordance with these orders shall spend time with the children from 3.00 pm until 6.00 pm.
9.On the occasion of Christmas Day, the children shall spend time with each parent as agreed in writing between the parents and failing agreement with the mother between 8.00 am and 1.00 pm in even numbered years and from noon to 5.00 pm in odd numbered years.
10.The mother is to complete hair strand testing as requested in writing by the father on not more than twelve (12) occasions over the next three (3) years. For this purpose, the mother shall:
(a)Ensure her hair is long enough to be tested (not less than 4 cm) and not chemically treated;
(b)Authorise the testing laboratory to send the test results directly to the father; and
(c)Undertake the test within forty-eight (48) hours of a written request by the father to do so.
11.The father and the mother shall share equally the fees associated with this testing.
12.In the event the mother fails to complete a test in accordance with Order 10 herein, or returns a positive drug test without explanation from a medical practitioner, then the mother’s time with the children in accordance with Order 5 is suspended and the mother’s time with the children shall be from 9.00 am until 7.00 pm each alternate Saturday until the mother produces negative hair strand tests which cover a period of six (6) consecutive months at which time the mother’s time with the children shall recommence from Order 5(d). In addition, Order 10 shall recommence with the father being able to request the mother participate in hair strand testing on not more than twelve (12) occasions over the subsequent three (3) year period.
13.For the purposes of changeovers that do not occur at school, changeovers shall be as agreed and failing agreement, the mother shall collect the children from the father at McDonalds Suburb B at the commencement of her time and the father shall collect the children from the mother at McDonalds Suburb B at the commencement of his time and both parents shall ensure that during changeovers:
(a)Each parent will behave in a civil and courteous manner to the other parent and any other person who may be present;
(b)Each parent will conduct themselves in a civil and child-focussed manner;
(c)Each parent will limit their conversation to matters that specifically pertain to immediate matters of the children passing from one parent’s care to the other; and
(d)Neither parent will discuss issues of any controversy between them.
14.Each parent shall be permitted to communicate directly with the children’s school/s, and medical practitioners to obtain any necessary information and/or documents about the children’s progress including information to which parents are ordinarily entitled to receive including reports, photograph order forms, access to any school ‘app’ or parent portal, and this order shall constitute sufficient authority for such communication.
15.Both parents shall keep the other advised of the health of the children including any serious illness, medication or hospitalisation of either child as soon as reasonably practicable.
16.Both parents shall keep the other advised of the names and contact details of all of the children’s treating medical practitioners, dentists and allied health professionals.
17.Without limiting any other order providing for communication between the parents and the children, the children may communicate with both parents by electronic means at any reasonable time when they are in the other parent’s care and each parent shall do all things necessary to facilitate the children communicating with the other parent by electronic means on a regular basis.
18.The mother may attend any school activity in which the children or either of them are participating and to which parents are ordinarily invited to attend.
19.The mother shall ensure the children attend upon any activity the children or either of them are participating in when she is spending time with the children in accordance with these orders, and for this purpose, the father is to keep the mother informed in writing as to such activities that will occur during the mother’s time with the children (this includes but is not limited to birthday parties, sporting, school and cultural activities).
20.Both parents are to keep the other advised as to their telephone and email contact details and their address, and shall inform the other in writing within forty-eight (48) hours of any change to such details.
21.Both parents are to communicate in writing (save for any emergency) and such communication shall be only in relation to issues pertaining to the children or either of them.
22.Neither parent is to go within 100 metres of the other parent’s home unless expressly invited in writing by the other parent to do so.
23.Neither parent is to remove the children or either of them from their school unless it is in accordance with that parent’s Court ordered time (ie the mother shall not remove the children from school during the father’s time with the children and nor shall the father remove the children from school during the mother’s time with the children).
24.Without admissions, when the children are spending time with each parent (including by electronic means) that parent is restrained from:
(a)Questioning or interrogating the children about the time they have spent with the other parent and each parent shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the children;
(b)Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship, with the parent's knowledge or in their presence;
(c)Discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other person to do so with their knowledge or in their presence;
(d)Permitting the children having access to any of the documents filed in these proceedings; and
(e)Communicating any information intended for the other parent through the children.
25.Within fourteen (14) days of the date of these orders, the father is to do all acts and things necessary, including providing a copy of these orders to the organisation, to enrol both children into the C Program through D Organisation and ensure the children participate in this program for as long as deemed necessary by program staff.
26.Within the next twelve (12) months, both parents are to participate in and complete the E Program through D Organisation and upon completion shall send the other parent evidence of such completion.
27.The parents shall pay the Legal Aid Commission of New South Wales an amount of $14,734.50 to be shared equally ($7,367.25 each) within twenty-eight (28) days or in such other timeframe as agreed with Legal Aid.
Financial Orders
28.Within 21 days of the date of these orders, the father is to do all acts and things necessary to cause the trailer to be listed for sale and, for the purposes of the implementation of this order, the trailer be listed for sale with the auction house F Auctions for sale at the best possible price by way of auction and upon the completion of the sale and after the deduction of the costs of sale that the net proceeds be paid as to 18 per cent to the mother and the balance to the father.
29.Within three (3) months of the date of making these orders, the father shall pay $395,015 to the mother.
30.In the event that the father fails to comply with Order 29 herein, then within 7 days of non-compliance with the orders, he shall do all such acts and things and sign all such documents as are necessary so as to cause to be listed for sale for the best possible price the property located at G Street, Suburb B NSW (“the Suburb B property”) being the whole of the property in the folio identifier … and for the purposes of implementation of this order, the following shall apply:
(a)Within 21 days of the father’s failure to comply with Order 29 herein, he shall appoint a licenced real estate agent to have the conduct of the sale of the Suburb B property;
(b)Within 21 days of the failure to comply with Order 29, he shall instruct a solicitor or conveyancer to have the carriage of the sale of the Suburb B property;
(c)The father shall list the Suburb B property at such reasonable market price, to be agreed upon between the parties in writing, and failing agreement, at a price recommended by the agent.
(d)The father shall provide written authorisation to the real estate agent and conveyancer/solicitor, upon engaging their services, permitting the mother to receive any and all information about the sale.
(e)If contracts for the sale of the Suburb B property by private treaty have not been exchanged within three (3) months from the date of the Suburb B property being placed on the market for sale, then the father will cause the Suburb B property to be listed for sale by way of public auction within four (4) months from the date that the Suburb B property was placed on the market for sale.
(f)If listed for sale by public auction, a reserve price shall be fixed by agreement between the parties in writing, and failing agreement, at a price recommended by the agent.
(g)The parties shall attend any such auction (“the first auction”) of the Suburb B property and in the event that the reserve price of the Suburb B property is not reached, the father will negotiate with any bidder present at the first auction. If contracts for sale of the Suburb B property are not exchanged as aforesaid within 14 days of the first auction taking place, then the father will cause a second auction (“the second auction”) to be conducted no later than one month from the date of the first auction and for the purposes of the second auction, the reserve price will be 5 per cent below the reserve price of the first auction and in the event that the reserve price of the Suburb B property is not reached the father will negotiate with any bidder present at the second auction.
(h)If the Suburb B property is not sold at either the first or second auction, the father will do all acts and things and sign all documents necessary for the purposes of further auctions to be conducted on the same terms as referred to in Order 30(f) until such time as the Suburb B property is sold.
(i)Pending completion of the sale of the Suburb B property, the father shall:
(i)Do all such things necessary so as to cooperate with the marketing real estate agent, including making the property available for inspection at reasonable times and providing a key for access to the Suburb B property; and
(ii)Refrain from further encumbering the Suburb B property, save and except for the purposes of complying with any Order for payment of money to the mother, and continue making payments on the mortgage secured on the Suburb B property.
(j)Upon completion of the sale of the Suburb B property, the father do all acts and things and sign all documents necessary to distribute the proceeds of sale as follows:
(i)To pay out and discharge any and all mortgages including but not limited to the mortgage secured against the title of the Suburb B property;
(ii)To pay all real estate agents costs, commissions, legal expenses and other expenses of the sale;
(iii)To distribute the balance as follows:
(1.1)Payment to the mother of 20 per cent of the balance; and
(1.2)The balance then remaining after payment to the mother shall be paid to the father.
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 Goodryngton & Salter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings for parenting orders and financial adjustment under s 90SM of the Family Law Act 1975 (Cth) (“the Act”). The primary focus of the litigation has been the competing parenting applications in relation to the parties’ two children, X aged 8 and Y aged 7.
The mother relied upon the following documents:
(1)Amended Initiating Application filed 5 May 2023;
(2)Affidavit of mother filed 26 May 2023 (“trial affidavit”);
(3)Affidavit of mother filed 14 July 2023;
(4)Affidavit of Ms H filed 26 May 2023;
(5)Financial Statement filed 11 June 2023;
(6)Financial Questionnaire of the mother filed 3 December 2020;
(7)Financial Questionnaire of the father filed 15 December 2020; and
(8)Case Outline document.
The father for his part relied upon the following documents:
(1)Amended Response to Initiating Application filed 19 May 2023;
(2)Affidavit of father filed 26 May 2023 (“trial affidavit”);
(3)Affidavit of father filed 20 July 2023;
(4)Affidavit of Ms J filed 26 May 2023;
(5)Affidavit of Ms K filed 20 July 2023;
(6)Affidavit of Dr L filed 26 May 2023;
(7)Affidavit of Dr L filed 21 July 2023;
(8)Financial Statement filed 26 May 2023; and
(9)Case Outline document.
Both parties and the Independent Children’s Lawyer (“the ICL”) sought to rely upon the Family Report dated 27 January 2023 prepared by Ms M.
In addition to the documents relied upon, each of the parties tendered various documents.
BACKGROUND
The mother was born in 1984 and is currently aged 39 years.
The father was born in 1975 and is currently aged 48 years.
The parties have two children together, namely X born 2015 who is currently 8 years of age and Y born 2016 who is currently 7 years of age.
The father also has two children from a prior relationship that are 17 and 15 years of age respectively. The mother deposed that she contributed to their care during the relationship, including caring for them when the father was overseas for work, preparing and taking them to school and cooking for them.
The parties commenced cohabitation in 2013 and separated on a final basis on 20 August 2018.
At the commencement of cohabitation, the mother owned a property in the United Kingdom with her former partner and she says she had savings of about $33,000. The property was subject to a mortgage.
At the commencement of cohabitation, the father owned an unencumbered property at Suburb B (“the Suburb B property”), superannuation, shares and his company P Pty Ltd.
The parties and the children resided in the Suburb B property throughout the relationship.
The father says that at the commencement of cohabitation, the mother was unemployed, and he financially supported her. He says that following cohabitation he employed her at P Pty Ltd and paid $5,000 into a joint account. The mother says she began working at P Pty Ltd in 2014 and that the father would deposit between $3,500 to $5,000 into the joint account regardless of how many hours she worked.
In 2014, the father proposed to the mother. The mother contends that the engagement ring cost approximately $15,000.
From around early 2015 to mid-2017, the Suburb B property was rebuilt. The father says that he took out a mortgage and has solely been meeting the repayments from his income. The mother disputes this. She says she made a payment of $100,000 towards the mortgage on 7 March 2016, as well as payments totalling $35,000 towards the rebuild of the property on 16 and 19 March 2016. The mother also contends that she was heavily involved in the renovation process.
In early 2015, the father transferred P Pty Ltd into the mother’s name. He says he did this so that he could be an employee of the company and be able to borrow money to pay out his former wife.
In 2015, the father purchased Motor Vehicle 1. The parties are at issue as to its cost, with the father contending it was around $5,000 and the mother contending that it was around $25,000.
Both parties used drugs during the relationship but the extent of the drug use is controversial. The father contends that he no longer uses drugs. The mother says that she does not know if the father has ceased using drugs as he has not been subjected to drug testing.
The father contends that in 2017, he became aware that the mother was heavily using an illicit drug which resulted in her behaviour and appearance changing. He says that she became erratic and unpredictable, lost a considerable amount of weight and appeared to be gaunt.
In 2018, the father received a personal injury payout of $131,652.
The mother contends that in 2018, the father purchased a recreational vehicle for $130,000.
On 19 August 2018, the father contends that he returned home from a work trip and found the house to be untidy with empty alcohol bottles in and around the house. The father says that their friend told him that the mother had a party and that the children were present.
Following separation on 20 August 2018, the mother left the home without the children. The father says contact with the mother was sporadic and that she did not see the children. The mother says that the father refused to let her see the children unless it was at their home. She did not see the children again until around the end of August or sometime in September.
In August 2018, the father spoke to Ms Q, the director of R Childcare, being where the children attended child care. Ms Q then called the police. The father informed the police that he “[felt] like topping [himself]” (father’s trial affidavit, paragraph 24). The father says that he was being flippant and was joking but nevertheless attended the hospital because he felt compelled to do so by the police officer. He was released from hospital later that day.
The father says in about late September 2018, the parties commenced sharing the children’s care.
In September or October 2018, the father attended the mother’s residence to collect the children. He says there was no answer and through a window he saw the mother lying on a couch appearing to be unconscious. He contends that the children appeared unkempt and that the house was dirty. The mother denies that she was using illicit drugs. She says that she had a migraine, took some pain relief tablets and dozed off. She says that the house was messy but that it was not dirty as asserted by the father. The father says he subsequently contacted the Department of Communities and Justice.
In late 2018, the mother began living in a women’s refuge.
In 2018, the father says that the mother transferred P Pty Ltd back into his name. The mother contends that the father removed her name from the company without her knowledge.
The father contends that on multiple occasions in late 2018, the children’s child care informed him that the mother had failed to collect them from child care, and that the children appeared unwashed, had dirty clothes and were hungry. In cross-examination, the mother conceded that it was possible this was true because of her drug use.
In 2019, the mother pawned her engagement ring. The father says he retrieved the ring and thinks he gave it back to the mother. The mother says that he paid $4,000 to retrieve it and that she does not know what the father did with it.
In early 2019, the father says the mother ceased living at the refuge. He contends that he did know where she was residing and that reports from the child care prompted him to not return the children to the mother.
The mother says that in April 2019, she picked the children up from the child care and took them home with her. She says that five days later, the father subsequently took the children from the child care and did not return them to the child care.
About one week later, the mother attended upon the Suburb B property. An incident occurred which resulted in both parties each retaining a child. The parties are at issue as to what occurred. The mother contends that the children were playing in the neighbour’s yard and started to run towards her. She says that the father picked Y up and walked across the road to the park, which resulted in X shouting for her sister. She says she followed the father and asked for him to let Y go as she was crying. She says he let Y go but subsequently grabbed X and walked back to the home and shut the door. The mother says she could not enter the house so she went home with Y.
The father contends that the mother was aggressive and yelling so he called the police. He says she ran to the girls, picked up X, grabbed Y’s hand and began pulling them towards her car. He says he ran towards them and picked up Y and walked with her to the park. He says that the mother followed, put X down and ran towards him, scratching him and trying to pull Y from him. He says he put Y down and the mother grabbed her, ran to her car and subsequently drove off at a high speed.
Each parent contends that they contacted the police and that they conducted a welfare check at each party’s home.
The children remained separated until 12 May 2019. Both parties contend that the other did not return the child in their care to child care. The father says he facilitated calls with X and the mother but that she did not do the same with Y.
On 12 May 2019, the father dropped X at the mother’s home for Mother’s Day (which the mother says was conditional on her telling him where she lived).
The father says that the mother subsequently retained both children despite previously agreeing to take them to child care. The mother subsequently only allowed the father to see the children for short periods in public places.
On 15 July 2019, the father signed a parenting plan.
The mother began working casually to earn money. In July 2019, she received a text message from a new ‘client’ asking her to pick up items for work from his residence. On the following day, the mother drove with the children to the ‘client’s’ residence. The mother left the children in the car and stepped inside the house to get the items. She says she heard the ‘client’ on the phone saying words to the effect that she was there. During this time, the father took the children.
The mother was not aware that the father had taken them and thought they had been kidnapped. The mother received a message from the father about 15 minutes later saying that he had the children. The police subsequently conducted a welfare check on the children.
On 23 July 2019, the mother commenced proceedings in the Federal Circuit Court (as it then was).
Later in July 2019, the mother collected the children from the child care. The children did not see the father until Court orders were made on 27 August 2019, which provided for the children to live with the mother and spend alternate weekends with the father. The mother was also ordered to undergo hair follicle testing.
In September 2019, the father contends he saw that the mother had cut her hair short and dyed it. The father contended that this was done to mask any drug testing.
On 28 September 2019, the father messaged the mother saying that he would provide her with financial support each month. He subsequently paid the mother $1,000 each month for three months.
In March 2020, the father refused to return the children to the mother. He contends that he was concerned about her drug use. On 7 April 2020, a recovery order was made and the children were returned to the mother.
In April 2020, the mother undertook a hair follicle test. The test result as provided by the mother suggested that it was negative, however, it was revealed that the mother had falsified the test results and that she had actually tested positive for an illicit drug.
The mother contends that she has been drug free since April 2020.
On 30 June 2020, orders were made that the children live with the father and spend supervised time with the mother. The children have been in the father’s care ever since.
In or around February 2021, the parties ceased using a professional supervision service and the mother’s time was subsequently supervised by the father.
The mother contends that from about April to August 2021, the parties had an amicable relationship and that the father allowed her to spend time with the children beyond what was ordered.
The mother contends that in August 2021, the parties’ relationship deteriorated and that the father stopped allowing her to spend extra time with the children. She says that on some occasions she would see the children for less than the time ordered.
In March 2022, the mother contends that she, the children and the father went to the movies. She says after this event, she did not see the children again until May 2022. The mother says that the parties were unable to reach an agreement as to a supervisor.
On 13 May 2022, orders were made increasing the children’s time with the mother such that over a twelve month period she would spend time with the children each alternate Saturday from 8.00 am to 7.00 pm on an unsupervised basis.
On 19 August 2022, orders were made providing for the father to pay the mother $45,000. The father says he obtained a loan from his mother to make the payment.
The trial commenced on 13 June 2023 and ran for four days. The trial was conducted on the basis that the mother had been drug free since April 2020, albeit that the father retained reservations about her truthfulness. The Family Consultant was cross-examined on the last day of the hearing and her evidence was that, assuming the mother had remained drug free, the children’s time with her should progress over time to four nights a fortnight and half school holidays. The Family Consultant did not support a change in the children’s primary care.
Based on this evidence, the father amended the orders he sought and agreed to a time arrangement with the mother that saw a progression in the children’s time in accordance with the Family Consultant’s recommendation. On that basis, I ordered that the children commence spending overnight time with the mother, reserved my decision and adjourned.
That same day, the father sought to reopen the case after it was discovered by the ICL that the mother had tested positive for a different illicit drug in February 2023. Consequently, I discharged the order made for the mother’s time to progress to overnight and adjourned the matter part heard to 24 July 2023.
The consequence of the positive drug test was that pursuant to the orders of 13 May 2022, the mother’s time with the children reverted to supervised time. Between June 2023 and the resumed hearing on 24 July 2023, the mother did not spend any physical time with the children as she was unable to afford the cost of supervision.
On the return date, the mother gave evidence that she had not used that illicit drug and that the positive drug test was an anomaly. Expert evidence relied upon by the father put in issue this assertion. There was further cross-examination of the Family Consultant who largely adhered to the position she had adopted in June 2023, notwithstanding the positive drug test. She did, however, recommend that the progression to overnight time proceed more slowly and not commence for a further six months. She did not recommend that the mother’s time revert to supervised time, even assuming contrary to the mother’s evidence that she had used an illicit drug.
Each of the parties had filed applications and responses seeking a variation to the existing orders to cover the period between the end of the hearing and delivery of judgment. The mother sought an immediate progression to overnight time. The father sought orders that the mother’s time change from a Saturday to a Sunday and that it be supervised until such time as she produced another negative hair follicle test completed three months after the last test.
Neither party’s position was in conformity with the Family Consultant’s recommendation. In circumstances where the children had not seen the mother, where her unchallenged evidence was that she could not afford supervision and where the Family Consultant recommended that the mother’s time continue on an unsupervised basis, I made orders to cover the period between the end of the hearing and delivery of judgment that saw the mother spend unsupervised time with the children each alternate Saturday, with the first Saturday to commence immediately following the hearing.
PARENTING
At the commencement of the hearing, both parties sought sole parental responsibility and that the children live in their primary care. The mother proposed that the children spend time with the father for four nights a fortnight and half of each school holidays. The father for his part sought orders that the children spend day only time with their mother each alternate weekend. He made no provision for any holiday time or any increase in the children’s time with their mother.
The Family Consultant was cross-examined on the last day of the hearing in June. Following her cross-examination, the ICL proposed orders that the father have sole parental responsibility and that the children’s time with the mother increase over a 12 month period to half school holidays and four nights a fortnight in the school terms (Exhibit 37).
The mother did not change her orders
The father changed the orders that he sought and largely adopted the recommendation of the Family Consultant which were largely reflected in the orders proposed by the ICL with some minor variations.
Following the hearing on 24 July 2023, the ICL submitted revised orders. Those orders followed the recommendations of the Family Consultant in that they delayed the implementation of overnight time for six months but increased the children’s time with the mother by adding time in the alternate week after school. In six months, the time would then progress to overnight time such that within 18 months, the children would be spending four nights per fortnight and half school holidays with the mother (Exhibit 40).
There was no change to the mother’s orders
Notwithstanding the position of the father in June 2023, he reverted largely back to the position he had adopted at the commencement of the hearing, namely that the children spend only day time with their mother. He made no provision for any holiday time or any increase in the children’s time with their mother (Exhibit 41).
I have listened very carefully to the evidence and taken note of the answers given in cross‑examination. I have also carefully observed each of the parties give their evidence and the way they answered questions. Each of the parties and their respective witnesses, with the exception of Ms J and Ms K, were cross-examined as was the Family Consultant.
I have read the Family Report and listened closely to the cross-examination of the Family Consultant. There was no challenge to her experience or expertise. Having read her Family Report carefully and watched her give her evidence, I am satisfied that she has a comprehensive understanding of the issues and a unique insight into the problems facing both of these children. I found the Family Report and her oral evidence considered, insightful and logical. I accept the opinions and recommendations as set out in the Family Report and qualified and/or expanded upon in the Family Conultant’s oral evidence other than where I specifically find otherwise.
The Family Consultant in her Family Report recommended, subject of course to findings, that the father should have sole parental responsibility for the children on the proviso that he inform the mother of any major decisions and that the mother be permitted to contact the children's school, health and allied professionals and be involved in consultations, that the children live in the father’s primary care and that time with their mother increase over a period of 12 to 18 months to four nights a fortnight as well as on other special occasions, and that the children also progress over the same period of time to an arrangement that saw them spending half of each school holidays with both parents. The Family Consultant also recommended that the parties and children engage in various programs as well as therapeutic support and that the mother continue to undertake random hair follicle testing for a period of 12 to 18 months.
DISCUSSION
I have significant concerns about the capacity of both parents to protect the children from psychological harm. Both parties contend that the other poses a risk of harm, albeit in different ways, as a consequence of their past conduct.
The father contended that the mother exposed the children to a risk of harm by her drug use and that her drug use continues to expose them to harm. As a consequence of the recent positive drug test, his counsel submitted that the children were at an unacceptable risk of harm in the mother’s care. In that respect, the Family Consultant recorded the father’s position in the following terms:
45.… He advised that he does not trust any of [Ms Goodryngton] drug test results as she has forged at least one result and reportedly avoided undertaking testing when requested, including having cut and coloured her hair. He indicated that even continued drug tests would unlikely reassure him as “she has dodged them before”. He advised that even if [Ms Goodryngton] is refraining from drugs use at the moment, he has grave concerns that when the proceedings end she will relapse and the children will be impacted again. He said that he believes that [Ms Goodryngton] is likely still misusing drugs at present as she is not presenting as “rational, fair minded or reasonable” when it comes to the children and these proceedings. He was unable to provide examples other than her continuing to give the children many lollies, and sending them home to him with one kilogram of sugar (which [Ms Goodryngton] reportedly told him was a birthday joke). [Mr Salter] also spoke of not being reassured that [Ms Goodryngton] has appropriately acknowledged her issues with drug use, engaged in appropriate supports/rehabilitation, instead choosing to apportion blame for her drug use to him.
On the part of the mother, she contended, amongst other assertions, that the father was a perpetrator of family violence including exerting coercive and controlling behaviour towards her, that he demonises her to the children, and that he has sexual proclivities that expose the children to a risk of harm.
The Family Consultant recorded:
81. Both parents have made allegations of family violence, including verbal, physical and emotional abuse. [Ms Goodryngton] has also made allegations of financial abuse and behaviours consistent with coercive and controlling family violence. Both parents have reported feeling fearful for their psychological and physical safety. While [Mr Salter’s] allegation are concerning, he related them to [Ms Goodryngton’s] drug use, whereas [Ms Goodryngton’s] allegations are of a more concerning and extensive nature. If either, or both of the parents’ allegations are accurate, this has likely had and will continue to have, significant impact on [X] and [Y], particularly their sense of physical and emotional safety and their development. They may be exposed to situations that make them feel unsafe and fearful and both parents’ emotional wellbeing and parenting capacity would likely be diminished, therefore impacting their ability to appropriately safeguard them. It is difficult to say whether the allegations raised by both parents are an issue of escalating conflict contributed to by both parents, or whether it is one of the other parent behaving in a psychologically abusive and controlling manner. However, the DCJ also references concern that [Mr Salter] was displaying some controlling behaviours, such as observing [Ms Goodryngton] at school pick up/drop off and retaining the children in his care. However, [Mr Salter] has maintained that these behaviours were based on concerns for the safety and wellbeing of [Y] and [X], in the context of [Ms Goodryngton’s] drug use. It is of note that [Ms Goodryngton’s] drug use was substantiated during DCJ involvement. If the Court found that either parent had perpetrated family violence, particularly of a coercive and controlling nature, then this would make the sharing of parental responsibility inappropriate. In this case the Court may need to consider sole parental responsibility.
Findings in relation to the question of risk inform to a considerable extent the arrangements in relation to the future care of the children in the sense of which parent the children should live with on a primary basis and what time the children should have with the other parent as well as the various restraints and/or restrictions sought by each of the parties.
The father contended that the mother has been untruthful in the past in relation to her drug use including misleading the Court by the presentation of a falsified drug test in April 2020, and that she has failed to acknowledge the extent and seriousness of her addiction as well as the risk that it posed to the children. He further submitted, in essence, that the recent positive drug test is proof of what he has been asserting about the mother’s truthfulness. Each of the father’s counsel and the ICL urged a finding that the mother did not fully appreciate and/or accept the harm occasioned to her children by her use of an illicit drug and each submitted that the Court should find, notwithstanding the mother’s denials, that she had used another illicit drug as asserted in the hair follicle test result in February 2023 (Exhibit 38).
There is some force to the submissions of the father and the ICL about the degree to which the mother acknowledges the extent of her drug use and the impact it had on her children as well as the exposure of them to a risk of harm. To a large extent, her affidavit presented a sanitised history of her drug use and its impact.
I accept the father’s evidence of what he observed from about late 2017, when he says he became aware that the mother was “heavily using [an illicit drug] as [he] found drugs and paraphernalia in her wardrobe and caught her using” (trial affidavit of father, paragraph 10). The evidence revealed and I find that, in 2018, the mother’s use of the illicit drug spiralled out of control such that she was heavily affected by the drug and not properly caring for the children. The evidence from the children’s child care reveals that the children were being presented to their child care in an unkempt way such that the child care was providing them with meals, and washing them and their clothes. I am comfortably satisfied in light of the evidence provided by the child care records that the mother’s use of the drug in this period of time exposed the children to not only a risk of harm but to actual harm. The mother’s parenting capacity post separation was clearly compromised by her drug taking. I am satisfied that such risks of harm continued throughout 2019 and into the early part of 2020.
However, the evidence also reveals that each of the parties acted immaturely and without proper regard for the welfare of the children in the period between separation and June 2020. Both parties acted unilaterally; each removing the children at various periods of time from the care of the other. In April 2019, the mother removed Y from the father’s care and left X in the father’s care. The consequence was then that until May 2019, one child was in the care of each parent, with the other parent not seeing the other child and the children not seeing each other. This reflects poorly on both parents’ parenting capacity. In May 2019, the mother removed the children from the father’s care and retained them in her care until July 2019. In July 2019, the father removed the children from the mother’s care and on 30 July 2019, the mother then removed the children from the father’s care.
I am not satisfied that in the period up until August 2019 either parent discharged their obligations of protecting these children from harm. Such chaotic parenting contributed significantly to creating a scenario of instability for these children.
Fortunately, it appears that the orders of August 2019, placing the children in the mother’s care and providing the father with alternate weekend time, for a period at least settled the physical arrangements for the children. It did not, however, protect them from the mother’s drug use. In that respect, I accept the father’s evidence in his trial affidavit as follows:
64. Regrettably in about December 2019 after observing [Ms Goodryngton] at handovers, I came to the view that she was again using drugs. This was evidenced by weight loss, a sallow skin tone, eyes sunk into their sockets and a jittery demeanour. I also observed that [Ms Goodryngton] scratched herself frequently. [Ms Goodryngton] would not maintain eye contact with me.
In April 2020, the mother undertook a drug test. It is not in issue that the mother amended the drug test and presented it as if it was a negative result in circumstances where the result was positive.
The evidence of Dr L, a consultant pharmacologist and forensic toxicologist, is to the following effect:
9.The presence of [the illicit drug] in the hair of [Ms Goodryngton] at a concentration of […] is in my opinion a moderate concentration.
10.Whilst an amount of external contamination cannot be completely excluded, in the absence of any relevant circumstances of likely contamination, the concentration of [the illicit drug] detected in the hair of [Ms Goodryngton] is more consistent with the regular use of the drug at sometime within the period of time represented by the hair sample. The dose of drug ingested or the specific number of drug use occasions cannot be established with any reliability.
11.The time period represented by a 3.9cm length of hair collected from the head [in] April 2020 may reasonably be between early-December 2019 and early-April 2020 when assuming a growth rate of 1 cm per month, generally regarded as the average growth rate for head hair. Note, the two weeks immediately preceding the collection date is excluded from the timeframe due to the hair representing that time period not being available for collection if the hair is cut i.e. the growing follicle is at or below the scalp.
12. The number of drug use occasions cannot be established reliably due to the number of variables that influence drug concentrations in hair nor can the period of use within the above timeframe. It is possible that the drug use occurred throughout the time period represented by the sample analysed i.e. daily or near daily, or during discrete periods of time within the time period represented by the hair sample.
(Affidavit of Dr L, Annexure A)
Dr L was not required for cross-examination at the hearing in June. I accept his evidence.
The mother’s conduct in using the illicit drug and compounded by her amending test results to mislead the Court has had disastrous consequences not only for herself but also her children. This is entirely of her own making and has deprived the children of a proper relationship with her for a significant part of their childhood. At the time that she changed the test results her daughters were aged 5 and nearly 4. The consequence is that their relationship with their mother was significantly disrupted. Their time with her was significantly reduced and in the over three years since that event, they have never spent more than one day a fortnight in their mother’s care. Her actions, therefore, have continued what I regard as the significant disruption and risk of harm to the children’s relationship with her. Despite her attempts to attribute some blame to the father, the mother is the party who is entirely responsible for this outcome.
In February 2023, the mother returned a hair follicle test that was positive for another illicit drug. The mother denies that she used that drug and contended that the test result must be an error. The test results were apparently sent to the offices of each of the solicitors and the ICL. The father’s solicitors say they did not receive the test result albeit his counsel conceded that the email sending the result contains the correct email address. The mother’s solicitor said that she opened the email but not all of the attachments including the one for February 2023. Despite the ICL’s counsel attempting to explain why the ICL did not act on the email, I do not understand the submission. The less said about the discharge of each of the lawyer’s obligations in this respect the better.
That does not, however, excuse the mother’s conduct. She knew she had tested positive. Even accepting for the moment her denial, her trial affidavit’s presentation of the evidence of drug testing was as follows:
37. I have completed the following chain of custody drug tests:
a. hair drug test collected [in] October 2019
b. hair drug test collected [in] April 2020
c. hair drug test collected [in] September 2020 and emailed [later in] September 2020
d. hair drug test collected [in] December 2020 and emailed [later in] December 2020
e. hair drug test collected [in] January 2022 and emailed [in] April 2022
f. hair drug test collected [in] April 2022 and emailed on [the same day] and again [in] May 2022
g. hair drug test collected [in] August 2022 and emailed on the same day.
h. hair drug test collected [in] December 2022 and emailed [later in] December 2022
i. hair drug test collected [in] March 2023 and emailed [in] May 2023
38.Each hair drug test that has been conducted except for the test in April 2020 has returned a negative result for any illicit substances.
I am satisfied that those paragraphs by omission are false. As to paragraph 37, it failed to include that she had undertaken a test in February 2023. As to paragraph 38, it was false to assert that all of the tests that had been undertaken returned a negative result.
I am satisfied that the mother knew she had tested positive and the paragraphs referred to above falsely present the true picture. The mother’s falsifying of drug tests and her failure to be frank with the Court about the positive drug test (irrespective of whether it was correct or a false positive) draws into sharp focus her honesty and candour.
As to the accuracy of the positive test, Dr L in report of 21 July 2023 recorded answers to a series of questions as follows:
1. Over what period the drug would have been consumed to provide such a reading and/or in what quantity.
…
1.3. The period of time represented by the hair sample is approximately between early October 2022 to early February 2023, when assuming the generally accepted average growth rate of 1 cm/month.
…
2. Whether any over the counter medication and/or prescription medication could account for the result as contained within this drug test.
2.1. No. There are no over the counter medications and/or prescription medications that would result in the presence of [the illicit drug] and its metabolites in the hair of [Ms Goodryngton].
3. The likely history of drug use to the person who returns a result such as that found in [Ms Goodryngton’s] test result of […] February 2023 is indicative of.
…
3.3. The concentration of [the illicit drug] and metabolites […] in the hair of [Ms Goodryngton] is consistent with a number of drug-use occasions during the time period represented by the hair sample.
3.4. It cannot be determined if the use if weekly or monthly given the variables associated with hair testing.
…
5. The procedure undertaken to ensure that there is no cross contamination of the sample provided
5.1. Cross contamination of samples is not likely within an accredited laboratory.
5.2. All samples are handled separately and tested on at least two separate occasions to ensure results are consistent and eliminate the possibility of crosscontamination.
6. The possibilities of the sample taken [in] February 2023 being a false positive result due to an anomaly.
6.1. Whilst the possibility of an incorrect result can never be completely excluded, it is very unlikely given the procedures in place that the result of the sample collected [in] February 2023 is a false positive.
7. The possibilities of the sample taken [in] February 2023 being a positive result due to contamination
7.1. The presence of […] metabolites of [the illicit drug], are more consistent with use than contamination.
7.2. Whilst contamination by sweat of another user of [the drug] is possible, this is an unlikely source of contamination.
…
8. The possible explanation as to why [Ms Goodryngton] had a positive test result for [the illicit drug and its metabolites] from the sample taken [in] February 2023 but had a negative test result for all substances tested from the sample taken [in] March 2023.
8.1. The most likely explanation is that the drug use period occurred early in the time period associated with the […] February 2023 that was not included in the time period associated with the […] March 2023 sample.
8.2. Alternatively, the hair may have been treated with bleach, dye etc between collection times. Hair treatments are known to reduce drug concentrations and if relevant, may have reduced the concentration of drugs in the hair of [Ms Goodryngton] below the limit of detection.
(Footnote omitted)
(Affidavit of Dr L filed 21 July 2023, Annexure C)
Dr L was cross-examined at the hearing in July. He adhered to the evidence in his report. I accept his evidence. I am satisfied on the balance of probabilities that despite the mother’s denials, she used that illicit drug on at least one occasion sometime in October 2022. I am also satisfied that she misled the Family Consultant in her interviews with her in November 2022 in suggesting that she had remained drug free.
In light of that finding, the evidence of the Family Consultant and the answers the mother gave in cross-examination, I am satisfied that the mother does not have an understanding of the degree of harm that she exposed her children to by her drug addiction nor the degree of risk that is accompanied by the use of illegal drugs.
That said, there is no evidence that the mother has used her main illicit drug subsequent to April 2020. Nor is there any evidence of her appearing dishevelled or unkempt. The current presentation of the mother is vastly different to that which existed pre-April 2020. If it were otherwise, given the father’s vigilance, I am confident there would have been evidence to the contrary.
On balance, the evidence would appear to me to reveal that the mother was a functioning parent until approximately September 2017. Thereafter, the mother’s consumption of the illicit drug spiralled out of control and she exposed the children to a substantial risk of harm as well as to actual harm. The evidence reveals that her last use of the drug was sometime prior to April 2020. I am satisfied on the evidence that the mother has not used the drug subsequently. It would thus appear that certainly for the three or more years subsequent to April 2020, the mother has changed what had been a pattern of behaviour and its consequential impact on herself and her children. She has not used the illicit drug, she has maintained employment and accommodation, and she has attended to the collection and return of the children in compliance with orders. There is no evidence from the father or anyone else to suggest that the mother has resumed using the illicit drug. The father does not give evidence of the mother appearing in a dishevelled and/or unkempt way as she did during the period in which the evidence establishes she was using the illicit drug.
The father contends that the mother’s past history of illicit drug use and recent positive test for another illicit drug poses an unacceptable risk of harm to the children. He also submitted that this risk is exacerbated by her limited insight and her failure or inability to fully appreciate and/or accept the extent of risk and possible harm occasioned to her children by her drug addiction together with her recent positive drug test. Her denials of drug use, he submits, increases that risk.
In assessing the degree of risk posed by the mother’s history of drug use, I place great weight on the evidence of the Family Consultant which I accept.
Her evidence was that on the assumption of a positive finding of drug use, there is raised a concern about the mother’s degree of insight and her vulnerability to relapse. It was also of concern that the mother failed to accept or acknowledge her use of drugs. However, she also stated that the test result needed to be seen in a wider context and against the past history. She indicated that what was significant about the use of drugs was not so much the use per se but the impact such use has upon the parent, their parenting capacity and the children.
In the context of the history, since April 2020, even allowing for the positive drug test, there was no evidence of a return to the mother’s pre-April 2020 presentation. That is, the children have remained safe in her care, she has employment and accommodation and is not presenting in the same way with the consequential impacts upon the children as existed pre-April 2020. The Family Consultant emphasised that it was a different drug and that the presenting circumstances now are very different. She also indicated that the children need to have a more substantial relationship with their mother than what is currently allowed by the existing orders. The Family Consultant described the children as “yearning” for more time with their mother.
The Family Consultant assuming that the drug test in February 2023 was positive adhered to the recommendation for time she had promoted in June 2023, albeit she suggested that there should be a more cautious introduction to overnight time such that it commence in six months’ time. She was also of the view that the children should in that six month period spend more time with their mother than just once a fortnight and that it should include time after school one night in the alternate week. Her evidence was that a more conservative progression together with an ongoing testing regime was consistent with both protection of the children from the risk of the impacts observed pre-April 2020 and the need to progress their relationship with their mother.
The father placed great emphasis on what was described to the Family Consultant as the mother’s lies including the mother’s past history of misleading the Court, her attempts to disguise and manipulate the accuracy of test results by dying her hair and the results of the positive drug test. The mandate of this Court, however, is not punish parents and consequentially their children for a parent’s failings including their dishonesty or failings of insight, but rather to make an order that is in the children’s best interests.
I am satisfied that while there remains a possibility of a risk of relapse and/or a risk of harm to the children by the mother’s drug use, the history post April 2020 of an absence of the impact of drug use on the mother and consequentially on her parenting capacity together with the clear evidence of the Family Consultant leads me to conclude that such risk of harm, as does exist, is acceptable and is, to the extent possible, ameliorated by the orders that I will make.
There are also aspects of the father’s conduct that pose a risk of harm to the welfare of the children. While there was much focus on the mother’s history of drug use and much cross‑examination about her failure to give a candid and frank account of the extent of her drug use and in particular the impact that it had upon the children, the father’s affidavit was completely silent about his own history of drug use. It was only upon the cross-examination of the father were there admissions that between 2013 and 2017, the father had used the illicit drug with the mother. There is not a single paragraph of the father’s affidavit that makes any reference to his own history of drug use. Such a failure is inconsistent with his obligations of disclosure.
Parties to parenting proceedings are, as in financial proceedings, bound by a duty to disclose matters that are relevant. Such disclosure obligation is made fundamentally apparent by the obligations set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). In that respect, r 6.01 provides as follows:
6.01 General duty of disclosure
(1) Subject to subrule (4), each party to a proceeding has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner.
Note: The proceedings to which the duty of disclosure applies include both parenting proceedings and financial proceedings. Failure to comply with the duty may result in the court excluding evidence that is not disclosed or imposing a consequence, including punishment for contempt of court.
(2) The duty of disclosure applies from the start of the proceeding and continues until the proceeding is finalised.
Note: Parties are also expected to comply with the duty of disclosure when complying with the pre-action procedures.
(3) The duty of disclosure also applies to a litigation guardian appointed under Part 3.5.
(4) This rule does not apply to a respondent to an application alleging contravention or contempt.
In Nagel & Clay (2020) 60 Fam LR 550, Harper J observed in the following terms:
76.The duty of disclosure is fundamental in all proceedings under the Act. It is not some hollow guideline to which perfunctory lip service can be paid. Numerous financial cases have made this point. In Waterman & Waterman (2017) FLC 93-762 at [32] – [33] the Full Court emphasised that the duty to disclose is a duty owed “both to the other party and to the court” and endorsed the comment of the Full Court in Morrison & Morrison (1995) FLC 92-573, at 81,670 that “Ordinarily, a failure to comply with that duty will amount to a miscarriage of justice”. I see no relevant distinction between financial and parenting cases in this regard.
I agree with this observation.
Likewise, I regard the father as less than frank in relation to the extent of his disclosure of his past history of suicidal ideation. I am satisfied that the father misled the Family Consultant in his denials of any recent history of suicidal ideation; such denial being inconsistent with his admission to T Hospital following expressions of self-harm.
The father’s evidence of how he came to be admitted to T Hospital was a cocktail of obfuscation and denial. The father variously described in the course of his cross-examination that his statements of suicidal ideation were either a foolish thing to say or that he was only joking. I am satisfied from an examination of Exhibits 14, 15 and 16 that the father’s threat to harm himself were significantly more substantial than that to which he was prepared to make any concession during cross-examination until the contents of the documents were placed in front of him.
Documents produced by the children’s child care record finding the father sobbing in the hallway of the centre. The records of the child care reveal the following:
During the conversation [Mr Salter] became more distraught and at one point admitted that [Ms Goodryngton] had hit him with a stool, and he had bruising on his arm, which he showed me. He told me that it wasn’t the first time and [that] he was really concerned for the girls. I encouraged him to go to the police or try and get some help from a counsellor. [Mr Salter] then became even more distressed and he told me that he was thinking about killing himself because he didn’t know how to deal with all of this […]. I convinced him that he needed to talk to someone, and I called the police.
When the police arrived [they] spoke at length to [Mr Salter] and then as per their protocol, the called an ambulance to take [Mr Salter] to the hospital for assessment.
(Exhibit 16)
At no time when the father was recounting what happened on that particular occasion did he indicate that an ambulance had been called and that he was taken to the hospital in an ambulance. In relation to the calling of the police, he said the police were called by the child care in response to the mother’s behaviour. It is quite clear from the records of the child care and the other records that the police were called as a consequence of the father’s threat to harm himself.
Exhibit 15, being a COPS record, records the following entry for August 2018:
… Staff at the location called police due to a parent at the location stating he wanted to kill himself. … Police enquired about [the father’s] mental state as child care staff had stated to police that he indicated suicidal thoughts. [The father] stated that he wants to end it all and die. Police enquired if [the father] meant he wanted to end his life now and [the father] cried and said he didn’t know. Paramedics arrived a short time later and spoke to [the father]. [The father] initially backtracked and stated he was fine and didn’t want to go to hospital or kill himself. Then he stated again that h wanted to die and appeared very distressed. [The father] also stated that he thought about [killing] himself all the time. Paramedics conveyed [the father] to [T Hospital] where police completed a Section 22 schedule before handling [the father] over to hospital staff. …
This account is starkly at odds with what the father said occurred on this day. I prefer the documentary evidence to that of the father.
I also found the father’s evidence unconvincing as to how it was that he found where the mother was with the children in July 2019. The father contended that he found out the mother was going to be at a particular place through a friend. He said that the friend had been speaking to another person unknown to the father. The father said that he then arranged to go and visit the place where the mother would quite fortuitously be. The mother was not challenged on her evidence. Her affidavit makes it quite clear that when she entered the property she heard the person say “[s]he is here .. picking up” (mother’s trial affidavit, paragraph 168).
I am satisfied that the only reasonable inference from all of the evidence is that this was a setup by the father for the purposes of removing the children from the mother’s care. I do not accept the father’s explanation. His evidence was delivered in a fashion that was unconvincing. The father’s conduct on this particular occasion is made even more egregious by the fact that the parties had agreed some days earlier that the children would remain in the mother’s primary care. This event adds credence to the mother’s assertions that the father has acted in a coercive and controlling way towards her.
I also find the father’s denials of any involvement in the sending of the WhatsApp messages exhibited to the mother’s affidavit unconvincing. It was not put to the mother that she had invented the various WhatsApp communications or that she had set upon a course of creating fictitious messages between herself and the father.
He initially denied that there was any WhatsApp communication between him and the mother and then walked back from that absolute proposition and conceded that it was possible that some of the WhatsApp messages exhibited to the mother’s affidavit could be a communication between them. When asked why it was that one could be a communication when the others were not, he postulated that the mother included them to make the others seem more credible.
An examination of the WhatsApp messages makes the content of many of them entirely consistent with other objective events. For example, there are various WhatsApp messages discussing the purchase of a vehicle that occur at or about the same time as it is agreed that the father purchased Motor Vehicle 1.
I am also satisfied that the father has been highly critical of the mother to the children. The Family Consultant recorded her conversations with the children in respect of what they say their father said about their mother in the following terms:
61.… [X] explained that her father told her that her mother “chose to leave” the family but her mother says that she did not. [X] said that “it is hard to know who to believe, but I am starting to believe my father more”. [X] said that her father has told her “the truth” about her mother, that her mother “has done many bad things in the past”, including stealing money, “taking us out of kindy when people said not to”, and that her mother “had bad people around her who have been in jail”.
…
63.… [Y] said that her father told her that her mother has “been to jail” and “has rude people with her”, but [Y] said that “this is not true”. She advised that she has not heard her mother speak unkindly about her father.
Of these statements, the Family Consultant said “based on some of the comments by both [Y] and [X] it seems that they are exposed to [the father] making less than positive comments about their mother” (Family Report, paragraph 90). I find the father’s denial that he made such statements to the children as implausible. He proffered no adequate explanation as to why they might report such things to the Family Consultant.
I am satisfied that the father has acted in a coercive and controlling way towards the mother and has demonised her to the children. I am unable to find as contended for by the mother that he has the sexual proclivities she asserts. I am satisfied for the reasons given that the father has acted in a way in the past that poses a risk of harm to the welfare of the children. The Family Consultant stated that “[t]he primary issue for consideration at this stage, is what the most feasible and positive parenting arrangement for [X] and [Y] is going forward” (Family Report, paragraph 78). I am satisfied that, notwithstanding the competing risks identified above, the orders I propose are ones that address both the primary issue as identified by the Family Consultant and are ones that are in the children’s best interests.
APPLICABLE LAW
Parenting matters are governed by Pt VII of the Act.
Section 60CA of the Act mandates that the best interests of a child are the paramount consideration. The objects of the Act are identified in s 60B, which sets out not only the objects of the Act but the principles to be applied.
Section 60B of the Act provides:
(1)The objects of this Part 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.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Pursuant to s 61DA(1), the Court is required to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for him or her, but that presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence, or there is evidence which satisfies the Court that it is not in the bests interests of the child for the presumption to be applied.
In the event that the Court is satisfied that the presumption applies, then pursuant to s 65DAA of the Act, the Court must positively consider whether orders should be made which result in a child spending either equal time or substantial and significant time with both of the child’s parents.
Substantial and significant time is defined by s 65DAA(3) of the Act as follows:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In determining what time order should be made under s 65DAA(1) and (2) of the Act, the Court looks to whether spending equal time or significant substantial time is in the best interests of the child, and whether as a separate consideration it is reasonably practical.
The best interests of a child are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the child’s best interests. These primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration set out in s 60CC(2)(b).
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. Those considerations will be discussed further below.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ stated:
76.It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
In reaching my decision, I have considered all of the relevant sections of the Act, albeit that I am not required as a matter of law to specifically address each such consideration.
PRIMARY CONSIDERATIONS
Meaningful relationship
It is ordinarily in children’s best interests to have a meaningful relationship with both their parents.
The Full Court in Sigley & Evor (2011) 44 Fam LR 439 identified the following as important matters of guidance in relation to s 60CC(2)(a) at 463–464:
(a)“a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26];
(b)“the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)”: McCall & Clark (2009) FLC 93-405 at [118];
(c)“what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”: Godfrey v Sanders (2007) 208 FLR 287 at [36]; and
(d)“[t]he submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most likely to ensure the children had a ‘meaningful relationship’ with both parents. This is an incorrect assumption. The court’s obligation is to make orders most likely to promote the child’s best interests”: Champness & Hanson (2009) FLC 93-407 at [103].
I am not satisfied that the father’s proposal that the children spend day time only once per fortnight with the mother and that they otherwise have no communication with their mother for 13 days except on the special days being Mother’s Day, their birthdays and Christmas is one that meets the requirement of a meaningful relationship nor one that is in their best interests. It is not sufficient given the ages of these children to merely propose an order that the children may communicate with the other parent by electronic means.
The Family Consultant was of the view that such a proposal was inconsistent with the children's best interests and one that failed to promote a meaningful relationship. I am satisfied, however, for the reasons that I give and the orders I make that the children will have, to the extent possible in light of the risks and consistent with their best interests, a meaningful relationship with both of their parents.
Section 60CC(2)(b)
As noted, however, the Court’s obligation is to make orders that are in the children’s best interests and the question of risk and harm are not subordinate to the issues of meaningful relationship.
The primary focus of these proceedings has been on the need to protect the children from a risk of harm and in that respect each of the parties made allegations of risk against the other.
For the reasons earlier given, I am satisfied that such risks as are identified are acceptable within the construct of the orders that I propose to make and can be managed by the orders that I propose.
ADDITIONAL CONSIDERATIONS
The Court must also have regard to such of the additional considerations under s 60CC(3) of the Act as are relevant. I will, to the extent that I have not already done so, address the additional considerations.
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The children are currently aged eight and seven.
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated:
34.In some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
35.... whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed.
I recognise, as is contained in the Family Report, that as far as X was concerned, the most important thing to her at the moment was that she has more time with her mother. Y understandably expressed a wish that her parents would live together so that they could be a family again.
The father seemed to suggest in his evidence that X had at times expressed some indifference in regard to spending time with her mother. It was not explored with the father as to whether he believed that X might be telling him what he wanted to hear.
(b) The nature of the child’s relationship with each of the parents and other persons
The Family Consultant recorded that the children are loved by both of their parents and from her observations each of the children have a loving relationship with both parents (Family Report, paragraph 76). It is clear that the children also have a close and loving relationship with the father’s children of his prior relationship. It would appear that the father has actively prevented the children having a relationship with the maternal grandmother. In that respect, his evidence is that in the event that the mother passes the telephone to her mother so that the children can speak to their grandmother, he ends the phone call. That said, the children’s maternal grandmother gave evidence of her experiences with the children and how they relate to her and that the children always give her hugs and kisses and say that they will miss her. I have no reason not to accept that the children have good relationships with each of their parents and their half-brothers and maternal grandmother. No submission was put to me otherwise.
(c) Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; spend time with the child; and communicate with the child
This is not a relevant consideration and I am satisfied that each of the children’s parents has taken, to the extent to which orders have permitted it, an opportunity to participate in decisions about the children. That said, the current orders restrain the mother from contacting the children’s schools. It was within the father’s power to vary that order and/or consent to the mother contacting the children’s schools. He has chosen not to vary that order and thus the mother has been denied an opportunity to engage in more long-term issues in relation to the children’s schooling.
(ca) Extent to which each of the parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
This does not appear to be a relevant consideration.
(d) Likely effects of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
It is clear that in the twelve-month period between separation and the making of orders on 27 August 2019 both parents imposed upon each of these children a chaotic and destabilizing pattern of care. Neither of them acted consistently with responsible parenting; each of them placed their own needs above those of the children and each sought to gain some advantage by removing the children from the other’s care. Indeed, between approximately April and August 2019, it would appear that the children’s primary residence changed on at least three occasions. Even when the parties had reached agreement at a mediation that provided for some stability in their living arrangements, it was unilaterally breached by the father days later by their removal from the mother’s care.
That said, however, it would appear that the orders that were then made in June 2020 have introduced a degree of stability in relation to the children’s lives. The Family Consultant observed as follows:
77. Fortunately, it seems that circumstances have stabilised for the family, and most importantly for [Y] and [X]. They have had a routine parenting arrangement, have settled into school, have further developed their relationship with their father and have maintained a close relationship with their mother, despite the limited time with her. The fact that [X] and [Y] have maintained such a close and positive relationship with their mother over the past two and a half years despite the limited time, may confirm that they had a secure relationship with [Ms Goodryngton] in the early formative years.
I accept her observation.
The Family Consultant also recorded:
87. The upheaval of the last few years means that [X] and [Y] more than ever would benefit from a period of stability, security and certainty with minimal upheaval and disruption. [X] and [Y] are too young to have the emotional maturity to understand the impact that some issues and decisions will have on their long-term wellbeing, However, [X] and [Y’s] yearning for more time with [Ms Goodryngton] should not be dismissed, particularly if previous risk issues have been mitigated. …
I accept the evidence of the Family Consultant that the children’s living arrangements have stabilised and find that it would be inconsistent with their welfare to impose or introduce anything that could have the effect of destabilising what appears to now be a stable routine.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not relevant.
(f) The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The Family Consultant recorded:
68. The teachers advised that [X] and [Y’s] attendance at school is very good, they are punctual, neat and clean, very organised and attend with appropriate lunches and homework completed. [Ms S] advised that it is obvious that [X] gets assistance with her homework as it is completed to a high standard and [Ms U] advised that it is evident that [Mr Salter] supports [Y] with routine reading and practice of sight words, due to her progress. Both teachers described [Mr Salter] as engaged and approachable, and that he communicates regularly on the [school application]. Both children are progressing as expected for their age and stage and both try their best at learning goals.
I am satisfied that the father has met the children’s physical and intellectual needs whilst he has been their primary carer.
I am satisfied that there are significant limitations on the part of each of the parents to provide for the children’s emotional needs. It is clear from the past history that each of the parents have acted in a way which demonstrates an incapacity to place the children’s needs at the forefront.
I am concerned that the orders that the father initially promoted demonstrated a failure to place the children’s best interests at the forefront and seemed more motivated in continuing to punish the mother for her past errors. In that respect, I note the Family Consultant recorded that the father still harbours much anger towards the mother (Family Report, paragraph 37). She also recorded that the father was less convinced that the co-parenting relationship could ever be positive and expressed many concerns and criticisms of the mother (Family Report, paragraph 52).
The Family Consultant recorded that the father wished to change the current arrangements from Saturday to Sunday so that the parties are not required to coordinate extracurricular attendances.
I am satisfied that the father’s initial orders and the matters referred to above in the Family Report demonstrate that he fails to recognise the significance and importance of the mother in the children’s lives. Whilst his final orders removed some of these concerns, he still promoted an arrangement that restricted the children’s time with their mother.
That said, it is clear that the mother has also at times when she was affected by drugs failed to place the children’s needs at the forefront. I am satisfied for the reasons I have given earlier that she exposed the children not just to a risk of harm but to actual harm. She was neglectful in relation to their care as is recorded by the children’s child care.
There are thus parenting deficits on both sides. In the period since the making of orders in June 2020, the mother’s parenting has been less of a focus. That said, it would appear that there are no serious issues advanced in the submissions by either party of any event subsequent to June 2020 that reflects poorly upon the mother’s parenting capacity or her capacity to be able to provide for the children’s needs except for her use of an illicit drug in October 2022.
The Family Consultant was at pains to identify the significant impact that the conflict between the parties has on the children and the risk that it exposes for their future welfare. In that respect the Family Consultant observed the following:
79. At a foundational level, the most worrying concern is the inconsistent and poor co-parenting relationship. … One of the most harmful aspects of separation on children and their wellbeing, is ongoing high conflict between the two people they love the most. It would seem, that the co-parenting relationship may be vulnerable to further difficulty in the future.
It would appear that neither parent is prepared to step back from the brink and act in a way which will ameliorate this risk to their welfare.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
This is not relevant.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right
Not relevant.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This has been canvassed extensively above.
(j) Any family violence involving the child or a member of the child’s family
This has been addressed extensively above.
(k) Any relevant inferences that can be drawn from a family violence order, if it applies
There is no family violence order.
(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 child
These parties have been in conflict about the children’s living arrangements since their separation in August 2018, which is soon to be some five years. It is in the children’s best interests for these proceedings to end and for them to have some certainty in their life. I am hopeful that the orders that I make are the least likely to lead to further proceedings.
(m) Any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that is relevant that has not otherwise been addressed above.
PARENTAL RESPONSIBILITY
Pursuant to s 61DA(1) of the Act, the Court is required to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility.
Neither party sought an order for equal shared parental responsibility. Each sought an order that they have sole parental responsibility and such a position was supported by the ICL.
The Family Consultant referred to the high degree of mistrust between the parties and what she described as an unstable co-parenting arrangement and different parenting practices. All of these factors are inconsistent with an order for equal shared parental responsibility. She recorded as follows:
86. Ideally, [X] and [Y] would benefit from observing their parents engage in polite and respectful, child focused communication. However, this does not seem to be possible at present. To mitigate further harm to either parent, but most importantly [X] and [Y], parental contact and communication should likely be reduced to offer them, and particularly [X] and [Y] a sense of emotional safety. …
I am satisfied that, having regard to what is set out in the Family Report, it would be contrary to the best interests of these children for there be an order for equal shared parental responsibility.
WHICH PARTY SHOULD THE CHILDREN LIVE WITH AND WHAT TIME SHOULD BE WITH THE OTHER PARTY?
I am ultimately persuaded that the stability that these children have had as a consequence of the orders made in June 2020 is such as to be the determining factor in relation to which parent they should live with for the majority of time. I am satisfied that, in light of what the Family Consultant recommends and in light of her clearly articulated reasons in her Family Report and oral evidence, to remove the children from the father’s primary care and to place them in their mother’s primary care would be to invite more instability into their lives in circumstances where they are still very young and require stability and routine.
I accept the evidence of the Family Consultant that the children should progress to spending four nights per fortnight with their mother. I am satisfied that four nights a fortnight is an arrangement that is in the children’s best interests and one that can be accommodated within the risk profile that is identified in the evidence, and that orders can be crafted that progress over an 18 months period to such an arrangement.
In that respect, I am also of the view that an arrangement whereby the children for six months spend every second Thursday with their mother from after school until 7.00 pm and all day Saturday each alternate weekend is in accordance with the recommendations of the Family Consultant. Thereafter, time can increase to overnight time. In that respect, I am satisfied that the orders as proposed by the ICL meet the best interests of the children according as they do with the expert evidence other than in respect of the default provision in the event that the mother tested positive in the future.
In that respect, the ICL proposed that if there were a positive test result the children’s time with their mother resume back at the start; that is, with incremental increases from day time only for six months. I am not satisfied that this is in their best interests. Such an arrangement is in essence punitive and punishes the children for the failings of their mother. It does not address the children’s needs for more time with their mother than is currently the case or would result from the default as suggested by the ICL. The orders I propose more accommodate and meet the competing tensions of safety, risk management and the children’s relationship with their mother.
FINANCIAL ADJUSTMENT
The parties are also at issue as to what the financial adjustments should be consequent upon the breakdown of their relationship. The mother’s counsel contended that the Court should find the contributions of the mother over the course of the relationship and subsequently would give rise to a contribution based finding of 20 per cent to her. The father’s counsel for his part contended that the contribution based finding should be 10 per cent to the mother. Each of the parties put alternative adjustments under s 90SF(3) on varying basis depending on who would be the children’s primary carer.
In circumstances where orders will be made that the children remain living in the father’s primary care, the mother’s counsel submitted that there should be a further 5 per cent adjustment to the mother giving rise to a division of the parties’ assets overall as to 25 per cent. The father’s counsel contended that, in the event that the children remained living in the father’s primary care, any adjustment under s 90SF(3) would be modest and at best 5 per cent, giving rise to a division of the parties’ assets in the proportion as to 15 per cent (at its highest according to his submission) to the mother and 85 per cent to the father.
The parties were in agreement as to how the assets in a structural sense should be divided. In that regard, they each proposed that the father be given 90 days in which to make a payment to the mother and thereafter the property at G Street, Suburb B would be sold. In circumstances where the parties were unable to reach agreement about the value of a trailer, it would be sold and the proceeds divided in the proportions as ultimately determined on a final basis.
APPROACH TO PROPERTY PROCEEDINGS
The approach to be adopted in a financial adjustment case under s 90SM of the Act is to follow the well-recognised four-step process (see Hickey & Hickey & Attorney-General for the Commonwealth of Australia (intervener) (2003) FLC 93-143). Following such an approach, the Court identifies and values the assets and liabilities at the date of hearing for the purposes of division. Secondly, the Court assesses the contributions of the parties within the meaning of s 90SM(4) of the Act and determines a contribution based entitlement. Thirdly, the Court identifies the relevant matters under s 90SF(3) and determines such adjustment as is necessary to the contribution based entitlement. Finally, the Court considers the effect of the findings and must then determine whether the order as proposed is in all the circumstances just and equitable.
Consistent with the ratio arising out of the High Court’s determination in Stanford v Stanford (2012) 247 CLR 108, I am of the view that it is just and equitable that an order be made adjusting the property interests of the parties. The parties are no longer living together and there is no longer the common use of their property. The assumptions and undertakings that governed the use of their property ended with separation and both parties sought that there be an adjustive order.
BALANCE SHEET
The parties’ assets and liabilities were captured in a document, which became Exhibit 25 in the proceedings. By the time of submissions, it revealed the following:
Ownership Description Applicant’s value Respondent’s value ASSETS 1 RESP G STREET, SUBURB B $2,400,000 $2,400,000 2 APP V STREET, CITY W, UNITED KINGDOM 50% SHARE £92,000 GBP60,000
AUD$112,770E112,770 3 RESP 200 SHARES IN P PTY LTD 4 RESP SHAREHOLDINGS – Z INVESTMENTS, AA INVESTMENTS, BB INVESTMENTS, CC INVESTMENTS, DD INVESTMENTS, EE INVESTMENTS E340626
340626 5 RESP MOTOR VEHICLE 2 E38,525
E38,525
6 RESP PROPERTY, PLANT, EQUIPMENT E9791
E9791 7 RESP NAB INTEREST ACCOUNT #...85 E 14,789 E 14,789 8 RESP NAB TRANSACTION ACCOUNT #...50 E 3,352 E 3,352 9 RESP NAB USD ACCOUNT (US 20,160) E 31,033 E 31,033 10 APP CBA ACCOUNT #...20 212 E 212 11 APP CBA ACCOUNT #...39 1 1 12 APP FF BANK #...73 1 1 13 APP CBA DIRECT INVESTMENT ACCOUNT 7 E 7 14 RESP GG BANK #...91 E 1,314 E 1,314 15 RESP HH BANK ACCOUNT E 1,716 E 1,716 16 RESP CBA ACCOUNT E 478 E 478 17 RESP JJ BANK ACCOUNT E 408 E 408 18 RESP MOTOR VEHICLE 1 E12500 E 12500 19 RESP RECREATIONAL VEHICLE E50000 E 50000 20 RESP TRAILER E8,000 NOM 21 RESP BOX TRAILER E500 E 500 22 RESP ENGAGEMENT RINGS E15,000 NIL 23 APP HOUSEHOLD CONTENTS E500 E 500 24 RESP HOUSEHOLD CONTENTS E20,000 E 5,000 25 RESP CBA BANK ACCOUNT ENDING …54 FOR X E$694 Excl 26 RESP CBA BANK ACCOUNT ENDING …62 FOR Y E642 Excl 27 RESP CBA BANK ACCOUNT ENDING …25 FOR KK E$0.01 Excl 28 RESP CBA BANK ACCOUNT ENDING …09 FOR LL E$617 Excl 29 RESP CBA BANK ACCOUNT ENDING …96 FOR X E$5,261 Excl 30 RESP CBA BANK ACCOUNT ENDING …43 FOR Y E$4,397 Excl 31 RESP CBA BANK ACCOUNT ENDING …12 FOR KK E$2,931 Excl 32 RESP CBA BANK ACCOUNT ENDING …20 FOR LL E$2228 Excl 33 RESP CBA BANK ACCOUNT ENDING …47 FOR KK E$14,815 Excl 34 RESP CBA BANK ACCOUNT ENDING …63 FOR LL E $361 Excl 35 RESP CBA BANK ACCOUNT ENDING …61 ON TRUST FOR KK E$959 Excl 36 RESP CBA BANK ACCOUNT ENDING …33 ON TRUST FOR LL E$1070 Excl 37 RESP CBA BANK ACCOUNT ENDING …60 ON TRUST FOR X AND Y E$153 Excl 38 RESP COMMSEC SECURITIES ON TRUST FOR KK E12,393 Excl 39 RESP COMMSEC SECURITIES ON TRUST FOR LL E12,693 Excl 40 RESP COMMSEC SECURITIES ON TRUST FOR X AND Y E$3366 Excl Total $ E3,124,103 $ 3,023,753 ADDBACKS 41 RESP CASH WITHDRAWN FROM GG BANK MORTGAGE #...74 ON 28 June 2018, 28 AND 31 AUGUST 2018 $100,000 NIL 42 APP INTERIM DISTRIBUTION PURSUANT TO ORDERS DATED 19.8.22 EXCLUDED
45,000 Total $E100,000 E$45,000 LIABILITIES 43 APP FF BANK MORTGAGE ON V STREET, CITY W, UNITED KINGDOM 50% SHARE E57,182 E57,182 44 RESP NAB MORTGAGE ON SUBURB B PROPERTY E402,594 E 402,594 45 APP MM FINANCE CREDIT CARD 4,794 NIL 46 APP DEBT TO FATHER FOR VET FEE 792 792 47 RESP VISA NIL E 7,219 48 Resp LOAN TO MS NN DISPUTED 45,000 Total $E465,362 E$512,787 SUPERANNUATION Member Name of Fund Type of Interest Applicant’s value Respondent’s value 49 APP Superannuation Fund 1 ACCUMULATION E 80,653 E 80,653 20 RESP Superannuation Fund 1 ACCUMULATION E 430,479 E 430,479 Total $E511,132 E$511,132 FINANCIAL RESOURCES Ownership Description Applicants value Respondents value Total
The parties were apart in relation to the composition of the Balance Sheet by reference to Items 20, 22 and 24 being values ascribed for the trailer, engagement ring and household contents; whether or not there should be included Items 25 to 40 in the Balance Sheet, being various shares and bank account balances held by the father on trust for his children; Item 41 and 42 being various addbacks; and whether or not the various debts of the parties at Items 45 to 48 should be included.
The dispute in relation to Item 20 was resolved by its sale and it therefore will be removed from the pool of assets for division.
The father said in relation to the engagement ring that he bought it back from the pawn shop and thought he gave it to the mother. The mother put in issue the contention that the ring was in her possession. The mother’s evidence in relation to the engagement ring was not challenged, namely that the ring was pawned and she received $2,000 for it and that the father subsequently purchased the ring back from the pawn shop, informing her that he had paid $4,000 for it. The mother otherwise sought to rely upon a valuation certificate dated 11 September 2014 showing that it had a value of $27,000, which formed part of the exhibits to her affidavit. There was no objection to the valuation certificate and in circumstances where that is the only expert evidence as to its value, I would ordinarily have relied upon that figure as the value for the engagement ring. However, given that the mother said it had a value of $15,000, notwithstanding the expert evidence, I will adopt her assertion as an admission against interest.
There is no expert evidence for the value of the father’s household contents. In those circumstances, I will therefore adopt the father’s value of $5,000.
In relation to Items 25 to 40, this is said by the father to be property of the children held by him on trust for them. He was not challenged on this assertion. There is no evidence before me that I could find that the father has dealt with the assets of the children such as to give rise to a submission that he held them other than as trustee. In circumstances where these monies are the property of the children, I do not propose to include them in the parties’ property for division.
Item 41 is monies withdrawn from the GG Bank mortgage totalling $100,000, I accept the submission of the father’s counsel that this money was part of the proceeds of his settlement with PP Company. In that respect, I accept the father’s evidence that the money was deposited into his mortgage and then withdrawn and used to purchase a recreational vehicle, and that he put some money into his children’s bank accounts. I do not propose in those circumstances to add that money back.
The mother received an interim distribution by way of a payment of $45,000 from the father. The mother’s evidence was that almost all of these monies were applied to legal fees. In those circumstances, I am satisfied consistent with what the Full Court said in Trevi & Trevi (2018) FLC 93-858 that it is appropriate that these monies be added back. During the course of submissions, the father’s counsel revealed that the father’s solicitors held in trust the sum of $52,000. I will in those circumstances include the monies currently held by the father’s solicitors of $52,000 as an asset of the father’s.
Otherwise, both of the parties seemed to suggest that the various credit card debts of the parties should either be included or ignored. In circumstances where each of the parties have a credit card liability, I do not see a principled reason as to why they should not be included given that the Court ordinarily includes all of the assets and liabilities of the parties at the date of hearing.
The father’s counsel conceded that in the event that I brought to account as an addback against the mother the sum of $45,000, then I should exclude the loan obtained by the father. I propose to adopt that approach solely on the basis of his counsel’s submission.
Accordingly, I find the pool of assets for division between the parties to be as follows:
Ownership Description Value ASSETS 1 RESP G STREET, SUBURB B $2,400,000 2 APP V STREET, CITY W, UNITED KINGDOM 50% SHARE £92,000 $112,700 3 RESP 200 SHARES IN P PTY LTD $438,116 10 APP CBA ACCOUNT #...20 212 11 APP CBA ACCOUNT #...39 1 12 APP FF BANK #...73 1 13 APP CBA DIRECT INVESTMENT ACCOUNT 7 14 RESP GG BANK #...91 1,314 15 RESP HH BANK ACCOUNT 1,716 16 RESP CBA ACCOUNT 478 17 RESP JJ BANK ACCOUNT 408 18 RESP MOTOR VEHICLE 1 12500 19 RESP RECREATIONAL VEHICLE 50000 20 RESP TRAILER NIL 21 RESP BOX TRAILER 500 22 RESP ENGAGEMENT RINGS 15,000 23 APP HOUSEHOLD CONTENTS 500 24 RESP HOUSEHOLD CONTENTS 5,000 Total $3,038,453 ADDBACKS 41 RESP FUNDS HELD IN FATHER’S SOLICITORS TRUST ACCOUNT 52,000 42 APP INTERIM DISTRIBUTION PURSUANT TO ORDERS DATED 19.8.22 45,000 Total $97,000 LIABILITIES 43 APP HH BANK MORTGAGE ON V STREET, CITY W, UNITED KINGDOM 50% SHARE 57,182 44 RESP NAB MORTGAGE ON SUBURB B PROPERTY 402,594 45 APP MM FINANCE CREDIT CARD 4794 46 APP DEBT TO FATHER FOR VET FEE 792 47 RESP VISA 7,219 Total $472,581 SUPERANNUATION Member Name of Fund Type of Interest Value 49 APP Superannuation Fund 1 ACCUMULATION 80,653 20 RESP Superannuation Fund 1 ACCUMULATION 430,479 Total $511,132 TOTAL $3,174,004 ASSESSMENT OF CONTRIBUTION
The assessment in a property case calls for the exercise of a discretion and a holistic value judgment of the respective contributions of the parties. The Court is required to consider all of the contributions of the parties as the Full Court in Dickons v Dickons (2012) 50 Fam LR 244 makes plain:
24.… the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
25.Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “giving overzealous attention to the ascertainment of the parties’ contributions” (Norbis v Norbis (1986) 161 CLR 513 at 524 ; 65 ALR 12 at 18 ; 10 Fam LR 819 at 825 ; [1986] HCA 17) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
The Full Court in Horrigan & Horrigan [2020] FamCAFC 25 emphasised and reinforced that the proper approach to the assessment of contributions is:
35.… well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties’ respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment. …
I am also mindful of what the Full Court said in Singerson & Joans [2014] FamCAFC 238 at [66] that for the purposes of s 79 of the Act, there is nothing to suggest that any category of contribution needs to be quarantined and applied solely to particular assets. In my view, the authorities require evaluation of all contributions to the property of the parties, notwithstanding that the categories of property may be different. This view has been confirmed by subsequent Full Courts such as in Jabour & Jabour (2019) FLC 93-898, where their Honours observed that a primary judge should be cautious in emphasising the importance of an increase in value of a particular item of property at the expense of “the myriad of other contributions that each of the parties has made during the course of the relationship” (at [35]).
The consistent theme from the authorities is that the multifarious contributions over the relationship and subsequently of all types are to be assessed in a holistic way.
Guided by such Full Court determination, I propose to assess the parties’ contributions.
FINDINGS AS TO CONTRIBUTION AND SECTION 90SF(3)
I am satisfied that at the commencement of cohabitation the father’s assets significantly exceeded those of the mother. In that respect, at the commencement of cohabitation, the father owned the unencumbered matrimonial home which had a value of $675,000. He also had superannuation of approximately $43,000 and shares worth approximately $235,000. That said, the value ascribed for those shares was their value on disposal in 2014, namely some six months or so after the parties’ commenced cohabitation, and I am not informed as to whether or not there was any capital gains tax payable upon the disposal.
The mother for her part was the owner of a property together with her former partner in the United Kingdom. There is no evidence as to its value. The mother gave some evidence that it had a mortgage liability of approximately £60,000. It would appear she also had some cash savings.
At the commencement of cohabitation, the mother was unemployed but commenced working for the father in his company shortly following cohabitation.
I accept the mother’s evidence that during the course of the parties’ relationship, the mother worked for the father’s company and was paid a wage. I accept her evidence that her wages were deposited into a joint account and that she applied those wages for the benefit of the parties. I accept the mother’s evidence as out in paragraph 349 of her affidavit that she made a substantial contribution to the mortgage from her wages. In that respect, the only cross‑examination of her in relation to the table of expenditure of her income was in relation to an amount of $43,000 that was deposited into her account by the father. Otherwise, I accept her evidence of a significant sum of money being applied to a mortgage reduction as well as her evidence of her wages being used to meet the father’s child support payments and other various expenses during the course of the parties’ relationship.
I also accept the father’s contributions made by providing a home for the parties to live in. I acknowledge the mother’s contributions towards the renovations that were made to the home and accept her evidence of the role that she played in liaising with various tradespeople during the course of renovations of that home. I also acknowledge the father’s contribution of the proceeds of his settlement with PP Company.
The parties were at issue as to who was the primary carer of the children during the course of their relationship and in that respect I am satisfied that, whilst both parties played a role in relation to the care of the children, in the period following their birth it was the mother who was their primary carer.
The history of the parties’ care of the children in the period post separation was less than clear. I am satisfied, however, that on balance, in the period between August 2018 following the parties’ separation and August 2019 when orders were made placing the children in the mother’s primary care, the mother was the one who had majority care of the children. That order was reversed as a consequence of orders made in June 2020 and since that time the father has been the primary carer of the parties’ children.
I accept the mother’s evidence that during the course of the time when the children were with her, the father paid limited child support. I accept subsequent to June 2020 the father has assumed almost the entire physical care of the children in circumstances where the mother’s time has not exceeded one day a fortnight.
Having regard to all of the contributions of each of the parties over the course of their relationship and up until the time of hearing, I am satisfied that a contribution based entitlement as to 10 per cent fails to properly recognises the mother’s contributions. That said, I am also satisfied that a contribution based finding as to 20 per cent overstates the mother’s contributions and fails to pay significant regard to both the father’s significant initial contribution as well as his significant care of the children in the period following the making of orders in June 2020. I am satisfied that a proper assessment of the contributions of both parties gives rise to a contribution based assessment as to 15 per cent in favour of the mother.
In relation to the matters under s 90SF(3), I recognise that under the terms of the parenting orders that I will make the children will remain living in the father’s primary care albeit that they will ultimately be spending four nights a fortnight in their mother’s care during school terms and ultimately for half of each school holidays.
The father’s income is greater than that of the mother’s and the contribution based findings favour him to a significant proportion.
I recognise that the mother will be obliged to pay child support but that, on balance, it is likely that the father will still assume the greater financial burden just by virtue of the caring arrangements.
I also recognise that the mother made during the course of the parties’ relationship a contribution to the care of the father’s two children from his prior relationship. In that respect, it is important to recognise that contribution by the mother consistent with what the Full Court said in Robb and Robb (1995) FLC 92-555 in the s 90SF(3) adjustment. Taking all of the above matters into account, I am satisfied that there should be a further adjustment in favour of the mother of 3 per cent.
The consequence of my findings as referred to above is that the parties’ assets should be divided as to 18 per cent to the mother and the balance to the father.
The pool of assets for division has a value of $3,174,004. The effect of my findings as against the pool of assets is that the mother will receive assets having a value of $571,321. In circumstances where the mother has assets having a value of $176,306, there will be required to be paid by the father the sum of $395,015. The parties agreed that the father will be given 90 days to make this payment failing which the home will be sold and the mother will be entitled to 20 per cent of the net proceeds of sale, being the value of the payment by the father as a percentage of the net proceeds of sale of the home on the agreed values.
I am of the view that this represents a just and equitable outcome.
I certify that the preceding two hundred and sixteen (216) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 2 August 2023
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