HEDLUND & HEDLUND
[2020] FCCA 2578
•14 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEDLUND & HEDLUND | [2020] FCCA 2578 |
| Catchwords: FAMILY LAW – Parenting and Property – final hearing – 10 year cohabitation – two children now 8 and 7 – elder child diagnosed with autism and intellectual disability with high needs – younger child diagnosed with autism but lower needs – father engaged in long term emotional abuse constituting family violence – post separation father encouraged elder child to assault mother and abscond to father’s house – damaged elder child’s relationship with primary carer mother – repeatedly put child’s life at risk when absconding – put younger child at risk from elder child’s outbursts – callous disregard for children’s physical safety and emotional needs – likely that if father not allowed to influence eldest child will quickly settle – supervision not a long term option – Parenting Orders – no time and no communication and consequential orders – Property – $1 million pool – mother brought in major asset – mother cannot work due to children’s needs – on basis of found parenting orders mother’s submission 75/25 – father’s submission 70/30 – mother unlikely to work for a considerable time – Property Orders – 75/25 to mother. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CA, 65AA, 60CC, 60CC(3), 60CG, 68B, 68C 69ZL, 75(2), 79, 79(4), 81, 106A Evidence Act1995 (Cth), ss.79, 140(1) 140(2) |
| Cases cited: M v M (1988) 166 CLR 69 B & B (1993) FLC 92-357 Stott & Holgar and Anor [2017] FamCAFC 152 Briginshaw v Briginshaw (1938) 60 CLR 336 Stanford v Stanford (2012) 247 CLR 108, [2012] HCA 52 |
| Applicant: | MS HEDLUND |
| Respondent: | MR HEDLUND |
| File Number: | SYC 2529 of 2017 |
| Judgment of: | Judge B Smith |
| Hearing dates: | 1 October 2019, 2 October 2019, 3 October 2019, 4 October 2019 |
| Date of Last Submission: | 4 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Spain |
| Solicitors for the Applicant: | McDermott Lawyers |
| The Respondent appeared in person |
| Solicitors for the Independent Children's Lawyer: | Mark Macdiarmid Family Law Specialist |
ORDERS
Parenting
All prior parenting Orders are discharged.
The mother, Ms Hedlund born in 1970, shall have sole parental responsibility for the children X born in 2011 and Y born in 2013 (“the children”).
The children shall live with the mother.
The children shall spend no time with and have no communication with the father Mr Hedlund born in 1976.
Order 4 above may be varied by the mother at her absolute discretion and in writing as follows:
(a)If, and only if, the mother considers it to be in the children’s best interests, then one or both of the children may communicate with and or spend time with the father in accordance with any agreement reached between the parents in writing.
(b)This Order does not impose on the mother any obligation to engage in any discussions with the father about, nor to enter into any agreement with the father about, the children communicating with or spending time with him.
(c)This Order does not give the father any right of enforcement.
Each parents shall keep the other advised at all times of an email address by which they can communicate about the children, which email may be specified as one created solely for this purpose.
(a)This Order does not oblige the mother to check any such email address if she does not wish to do so.
The Independent Children's Lawyer’s appointment continue for two years.
The children's treating psychologists or counsellors be asked by the Independent Children's Lawyer to explain these Orders to the children.
Pursuant to section 68B of the Family Law Act 1975, Mr Hedlund born in 1976 be restrained by injunction from:
(a)contacting or attempting to contact Ms Hedlund born in 1970 by any means, including through a third party, except only that he may seek to communicate with her in a respectful manner about the children solely pursuant to the email address provided by her pursuant to Order 6 above;
(b)contacting or attempting to contact X born in 2011, by any means, including through a third party;
(c)contacting or attempting to contact Y born in 2013, by any means, including through a third party;
(d)approaching or coming within 100 metres of Ms Hedlund, X, or Y,
(e)approaching or coming within 100 metres of any place where Ms Hedlund, X, or Y might reside from time to time;
(f)approaching or coming within 100 metres of any place where X or Y might attend day care or school; and/or
(g)approaching or coming within 100 metres of any place where Ms Hedlund might work from time to time.
Pursuant to section 68C the injunction in Order 9 above pursuant to section 68B of the Family Law Act 1975 (Cth), is for the personal protection of Ms Hedlund, X, and Y.
If a Police Officer, which includes a member of the New South Wales Police Force, believes on reasonable grounds that Mr Hedlund, at who the injunction is directed, has breached the injunction they may arrest them without warrant.
A copy of these Orders may be given to any school, care facility or other place where the children attend and to their treating practitioners.
Property
Within no less than 29 days and no more than 42 days the parties shall sign all documents and instruments and do all things necessary to transfer:
(a)To the father the sole ownership of:
(i)The remains of the proceeds of sale of B Street, Suburb C, held in a controlled monies account managed by Coleman Greig Lawyers Pty Ltd, being item 1 of the joint balance sheet;
(ii)Any amount remaining in the joint Commonwealth Bank Accounts ending ...74 and ...4 and the D Bank Cash Management Account ending ...24, being items 3, 4 and 5 of the joint balance sheet, and to close those accounts.
(b)To the mother the sole ownership of:
(i)The 6000 credits in E Timeshare being item 13 in the joint balance sheet.
A total based amount of $131,839 of the father’s superannuation be allocated to the mother in accordance with Orders 14 and 15 hereof.
A base amount of $100,000 is allocated, as required by section 90MT(4) of the Family Law Act 1975 (Cth), to Ms Hedlund born in 1970 out of the interest of Mr Hedlund born in 1976 in D Bank Super Accumulator:
(a)That, in accordance with section 90MT(4) of the Family Law Act 1975 (Cth):
(i)Ms Hedlund is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount allocated in this Order; and
(ii)Mr Hedlund’s entitlement, and the entitlement of such other person to whom a splittable payment may be made out of Mr Hedlund’s interest in D Bank Super Accumulator (account number ...09) is correspondingly reduced.
(b)That, the trustee of the D Bank Super Accumulator ("the trustee") shall do all such acts and things and sign all such documents as may be necessary to:
(i)calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001, the entitlement for Ms Hedlund by this Order; and
(ii)pay the entitlement whenever the trustee makes a splittable payment of Mr Hedlund’s interest in D Bank Super Accumulator (account number ...09).
(c)That having been accorded procedural fairness in relation to the making of this Order, this Order binds the trustee of D Bank Super Accumulator.
(d)That this Order have effect from the operative time and the operative time is the fourth business day after the Final Order is served on the trustee.
A base amount of $31,839 is allocated, as required by section 90MT(4) of the Family Law Act 1975 (Cth), to Ms Hedlund out of the interest of Mr Hedlund with Super Fund F – G Bank Plan:
(a)That, in accordance with section 90MT(4) of the Family Law Act 1975 (Cth):
(i)Ms Hedlund is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount allocated in this Order; and
(ii)Mr Hedlund’s entitlement, and the entitlement of such other person to whom a splittable payment may be made out of Mr Hedlund’s interest in Super Fund F – G Bank Plan (account number ...80) is correspondingly reduced.
(b)That the trustee of the Super Fund F – G Bank Plan ("the trustee") shall do all such acts and thins and sign all such documents as may be necessary to:
(i)calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001, the entitlement for Ms Hedlund by this Order; and
(ii)pay the entitlement whenever the trustee makes a splittable payment of Mr Hedlund’s interest in Super Fund F – G Bank Plan (account number ...80).
(c)That having been accorded procedural fairness in relation to the making of this Order, this Order binds the trustee of Super Fund F – G Bank Plan.
(d)That this Order have effect from the operative time and the operative time is the fourth business day after the Final Order is served on the trustee.
Within 42 days of the making of these Orders the mother, and to the extent necessary the father, will sign all documents and instruments and do all things necessary to list for sale the property at H Street, Suburb J at a listing price agreed with the real estate agent, whom the mother shall solely appoint, and shall proceed to sell the property at a sale price agreed with the real estate agent, and following such sale the proceeds of sale shall be applied as follows:
(a)In payment of the adjustment of rates on settlement;
(b)In payment of agent's commission on sale;
(c)In payment of all legal and all other proper costs of sale;
(d)In payment to the Commonwealth Bank of Australia in and of a sum sufficient to discharge the registered mortgage over the property;
(e)In payment to the parties of the residue, to give effect to a distribution of the parties property as determined as to 75% to the mother and 25% to the father, in accordance with the Court’s Reasons for Judgment of 14 September 2020 and these Orders and assuming:
(i)the value of items 1, 3, 4 and 5 of the joint balance sheet are as they were determined to actually be when transferred to the father;
(ii)the values of items 6-20 of the joint balance sheet are as set out in the judgment; and
(iii)the values of items 27-34 of the joint balance sheet are as set out in the judgment, subject to the value of the $131,839 base sums transferred to the wife by these orders being assumed to be her interest.
In the event the property does not sell by private sale within 3 months from the date of this Order, then the mother shall sign all documents and instruments and do all things necessary to list the property for sale by public auction, with an auction agent whom the mother shall solely appoint, with the reserve price to be advised by that auction agent, and shall proceed to an auction within no more than 5 months from the date of these Orders, and following such sale the proceeds of sale be applied as provided for in Order 16 herein.
In the event that Order 17 herein operates and the property does not sell by public auction, then the property shall be resubmitted for sale by public auction with a reserve price no less than 5% lower within a further 6 weeks, and that process shall continue every 6 weeks until the property is sold, and following such sale the proceeds of sale be applied as provided for in Order 16 herein.
Otherwise than as provided for in these Orders, each of the parties shall be and are hereby declared to be the sole and absolute owners at law and in equity of all items of property presently in each party's possession, custody or control.
In the event that either party fails, neglects or refuses to sign or execute any deed, document or instrument required by or to give effect to these Orders, then pursuant to section 106A of the Family Law Act1975 (Cth), that the Registrar of the Family Court of Australia, shall be and is hereby authorised, empowered and directed to sign and execute any deed, document or instrument in place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to the same.
All extant Applications, including Contravention Applications, be dismissed.
Within 28 days, any party or the Independent Children’s Lawyer who seeks costs is to file an Application in a Case together with and Affidavit in support of the Orders sought by them.
NOTES
A Form of this Personal Protection Order will be published with the Orders.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and those particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Hedlund & Hedlund is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2529 of 2017
| MS HEDLUND |
Applicant
And
| MR HEDLUND |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
The applicant mother Ms Hedlund born in 1970 (“the mother”), now aged 50, and the respondent father Mr Hedlund born in 1976 (“the father”), now aged 44, commenced cohabitation in 2007 at a property already owned by the mother at H Street, Suburb J (“H Street, Suburb J”).
They married in 2008, had children, and finally separated on about 10 April 2017, after approximately 10 years of cohabitation.
The mother commenced these proceedings in 2017. Each party seeks different parenting orders. Each party also seeks financial orders altering the interests of the parties in their property pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”) and determining and ending the financial relationships between the parties pursuant to section 81 of the Act.
The overwhelming majority of the hearing related to the parenting issues. The parties had three children. The first child K was medically terminated in 2010 due to a medical diagnosis. The two children, the subject of the proceedings, are X born in 2011 (“X”) aged nearly 9, and Y born in 2013 (“Y”) aged 7 (jointly known as “the children”).
Both of the children have been diagnosed with autism spectrum disorder and have special needs. X was also diagnosed with an intellectual disability, behavioural problems and delays in development. X has exhibited major behavioural problems, particularly in the mother’s care. The reasons for the nature and extent of that conduct whilst X is in the mother’s care is a central issue in the case. Y, whilst also diagnosed with autism, has much lower needs and no relevant behavioural disorders.
The mother has been the children’s primary caregiver, and because of their high level needs, has not been in substantial employment since 2010.
At hearing the mother sought orders that she have sole parental responsibility, and that the children live with her and spend no time with and have no communication with the father.
At hearing the father sought orders that there be equal shared parental responsibility, with the father to have all parental responsibility in respect of health and education, that the children live with him, that X spend no time with the mother and that Y spend alternate weekends and some school holiday time with the mother.
The Independent Children’s Lawyer (“ICL”) supported the mother’s proposal.
The mother alleges that there was family violence committed against her by the father during the relationship, mainly by way of verbal and emotional abuse and intimidation and controlling behaviour, with two specific acts of physical violence, and with the children being consistently exposed to that family violence.
The father says that there was family violence committed by each of the parties against the other, in the context of a volatile relationship where each party was under enormous stress because of the high needs of their children. The father also raises the mother’s mental health and its impact on her parenting capacity as a feature relevant to the decision as to where the children should reside.
The mother’s case is that whilst X was always a difficult child and they had a difficult relationship, and that X has had a propensity for hitting people including her and for running away, the significant escalation of her difficulties in parenting X post separation is a result of the father’s conduct. The mother says that X’s consistent behaviour of assaulting her and absconding, putting his life in grave danger each time he does this, is a result of the father telling X to hit her and to run away.
That case is based upon X repeatedly telling a range of people that this is his reason for hitting his mother and absconding, including his teachers, his treating psychologist, his treating psychiatrist and the single expert.
The father’s case is that the mother is unable to manage X, putting X, Y and also the mother at risk, and that this is a risk that will increase as X grows and becomes stronger than the mother. He denies having told X to assault the mother and abscond from her. He was not able to offer any explanation why X would be consistently telling people that this was in fact what the father was telling him to do. The only evidence the father could offer, apart from his denial, was that when Y, then aged five, was asked about this issue he told the single expert that the father was not telling X to do this.
For reasons set out below, including in particular the extensive history of contemporaneous complaints by the mother to medical practitioners, the father’s recorded concession of family violence to the mother’s GP, and the father’s positive case that he was justified and entitled to use what he termed an “arm bar takedown” to restrain the mother rather than stepping back from her when she slapped him during an argument, I am comfortably satisfied that the father engaged in the family violence as alleged and that the mother also responded with occasional acts of family violence as a direct consequence of being the victim of this conduct.
For reasons set out below, I also find that post separation the father has been instructing X to assault the mother and abscond and that the father did this in order to achieve the father’s desired result that the children, or at least X, would be ordered to live with him. In reaching that conclusion I rely in particular upon the expert opinions of both X’s treating psychiatrist, Dr L, and of the single expert clinical psychologist, Ms M, that X was probably telling the truth. In this regard these are experts who both have specialised knowledge of “child development” within section 79 of the Evidence Act1995 (Cth) (“the Evidence Act”) to give reliable evidence on that topic.
X’s behaviour in response to those instructions has resulted in X being placed at risk. As a young child with an intellectual disability and autism spectrum disorder, X has an even more limited ability for self-care than the average 7-9 year old when crossing roads and dealing with strangers, yet he has repeatedly run away from the mother’s home to the father’s home, where he uses a key left out for him by the father to enter.
This behaviour has impaired X’s ongoing emotional development by causing him to strike out at the mother, undermining X’s attachment with his primary carer. It has also damaged the relationship between X and Y, and harmed Y and his emotional stability and safety by making Y live in an environment in which he is afraid of X and X’s outbursts against the mother. It has also created an adverse living environment for the mother where she is, in effect, still the victim of the consequences of the father’s family violence.
I have been cognisant of the relevant standard of proof in making findings of such terrible behaviour on the father’s part.
The father’s conduct in this regard has involved, as Ms M described it:
a callous disregard for X’s physical safety and emotional needs
Given these findings, the only possible way in which X can be made safe is if the father is not in a position to continue encouraging X to behave in this way. The only way to achieve that is for X to have no contact, or only limited supervised contact, with the father. The consequence of such an order would also be to make Y and the mother safe from X’s conduct.
Whilst I have considered long-term supervised contact or occasional recognition visits, the difficulty in this case is that the occasional reintroduction of the father to the children is likely to repeatedly exacerbate X’s problems. I have also considered whether it might be feasible for Y to continue seeing the father, but given the father’s conduct with regards X and that X would be distressed by Y seeing the father, I also consider that untenable.
In these circumstances, the only alternative available to me to protect the best interests of these children is to make the orders sought by the mother, and supported by the ICL, that the children spend no time with and have no communication with the father.
I acknowledge that this will result in a terrible loss to both children. The consequences for children who grow up without a father can be dire, and they will also lose access to the extended paternal family. As the single expert Ms M stated:
…it’s a matter that the court will have to try to find the least-worst scenario for X and for the family.
These orders are not X’s or Y’s fault, although they will suffer because of them. Nor are these orders a consequence of any conduct by the mother. They arise purely and solely due to the father’s callous behaviour and the need to protect the children from him.
The mother’s mental health was also an issue in the proceedings. I find that the mother’s mental health issues were situational and a direct consequence of being the victim of ongoing emotional abuse and family violence by the father, and post separation of having to deal with X’s escalating behaviour caused by the father. Whilst the mother has managed her mental health adequately, so that it has not substantially impaired her parenting capacity in any event, I am satisfied that with the removal of the father as a negative factor in her life, her mental health will significantly improve and that it is not a risk factor for the children.
As noted above, the financial proceedings took up a small fraction of the hearing. The parties sensibly agreed on the overwhelming majority of items and values to be included on the joint balance sheet. They also broadly agreed as to contributions.
In final submissions, dealing with the scenario that both children live with the mother which I have ultimately found to be in their best interests, the mother’s submission was that the property should be divided as to 75% to the mother and 25% to the father, and the father submitted that it should be 70% to the mother and 30% to the father. In the context of a net property pool including superannuation of just over $1,000,000, the sum in dispute was approximately $50,000. Given the way in which the trial was conducted I will, necessarily, deal with this issue as concisely as the parties did.
The Court had affidavit and oral evidence from the mother and the father, relatively short evidence from the mother’s cousin, Ms N, and the maternal grandmother, Ms O. The Court also had two detailed reports dated 24 September 2018 and an addendum report dated 24 September 2019 as well as oral evidence from the appointed single expert clinical psychologist Ms M. A number of treating reports were also included in the evidence, including a notice of risk to the Department of Communities and Justice (“DCJ”) with regards to the father’s behaviour, from X’s treating psychiatrist Dr L together with his oral evidence.
There was also an affidavit annexing a report from Dr P regarding medication. He was not called. No submissions were made that his opinion should be preferred to those of Dr L and no reliance was placed on this opinion by any party in submissions.
I note that when the matter was reserved, interim orders allowing the father time with the children continued. There were applications to re-open by the father because the father said that X’s ongoing conduct meant that X should be removed from the mother’s care. The events outlined post hearing are entirely consistent with what would be expected given my findings, and do not lead me to consider that any further hearing is required, given the overwhelming weight of evidence that X’s conduct was caused by the father’s encouragement, and that X’s conduct is likely to improve significantly and relatively quickly when the father’s influence is removed from his life.
THE LEGAL QUESTIONS
What is an “unacceptable risk”?
The Court is required to regard the best interests of each child as the paramount consideration when making parenting orders (ss.60CA, 65AA).
The primary considerations when looking at each child’s best interests, considered further below, are first and foremost the need to protect the child, or children, from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence, and secondly the benefits to a child of having a meaningful relationship with both parents. The legislature has made it clear that the protection from harm is to be given greater weight than the promotion of meaningful relationship with both parents (s.60CC).
The High Court of Australia (“the High Court”) in the leading case of M v M (1988) 166 CLR 69 considered the balancing of these two primary considerations. Whilst that case was decided in the context of the risk of sexual abuse, the principles apply equally to other cases of risk. The High Court said at [25]:
In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In B & B (1993) FLC 92-357, the Full Court of the Family Court of Australia (“the Full Court”) considering the issue said:
…the standard used by the Family Court to ``achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access''. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
In Stott and Holgar and Anor [2017] FamCAFC 152 at [37] the Full Court said:
As an eminent former judge of this Court has said (emphasis added):
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
Definition of Family violence
“Family violence” is defined by section 4AB of the Act as:
…violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
The definition of family violence is by design both broad and inclusive, and specifically encompasses not only matters such as assault and sexual assault or other sexually abusive behaviour, but also matters such as: stalking, repeated derogatory taunts, intentionally damaging property or injuring animals, unreasonably denying financial autonomy or withholding financial support, preventing the making or keeping of connections with family, friends or culture, or deprivation of liberty.
It is intended to encapsulate the entire spectrum of intimate partner violence, usually driven by an attitude of superiority and entitlement, which may cause one partner to seek to control the other partner through a combination of intimidation, threats and verbal abuse, as well as through gas-lighting, micro regulation, and often the isolation of their partner from their social supports to weaken them.
Standard of proof
The person who makes an allegation, usually, bears the onus of proving it. The standard of proof is the civil standard of the balance of probabilities, per section 140(1) of the Evidence Act 1995 (Cth) (“the Evidence Act”). However, without limiting the matters to be taken into account, subsection 140(2) requires the Court to take into account the nature of the legal issues involved, the subject matter of the proceedings, and the gravity of the matters alleged. This is the clear statutory successor to the principles enunciated by the High Court when considering the civil standard of proof in proving adultery in divorce proceedings in Briginshaw v Briginshaw (1938) 60 CLR 336.
Justice Rich said on the application of the civil standard in such circumstances:
In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.
Justice Dixon stated the principle as:
…when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. …
…reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.
Allegations of family violence are by their nature serious. The allegation that the father intentionally encouraged X to assault the mother and abscond are particularly serious, and accordingly the Court is required to take into account the gravity of the specific matters alleged, and in this case the fact that if I find the father has behaved as alleged the necessary consequence is a no time and no contact order, when determining whether or not they have been proved to the civil standard.
PARENTING
Did the father or mother engage in family violence?
The mother’s case was primarily of verbal and emotional abuse and humiliation, manipulation and control. However, she also alleged that there were two significant events involving physical abuse. The first was alleged to have occurred on 9 August 2014, and there was a substantial amount of evidence about this event from both parties. The second was alleged to have occurred on 21 March 2017. This was the precursor to the final separation of the parties.
Incident of 9 August 2014
Whilst there were differences in the parties’ versions, in particular as to whether the mother slapped the father open handed on the arm and left cheek as she says, or struck him closed handed four times around the head as he says, the overall accounts of the events were not dissimilar.
To provide context, my observation was that the father was a physically large and imposing man, compared to the mother who was physically much smaller. There was evidence that the father was approximately 6’4” tall and 130kg. The father indicated that he was aware of the need to take into account the fact that people might be, unintentionally, intimidated by him not because of his conduct but because of his size.
The event started with a verbal argument earlier in the day. The mother alleges that the father said words to the effect of:
It’s your fault K had a medical disorder, as you couldn’t be bothered to take a tablet.
And also that:
You’re responsible for all X’s problems, because you didn’t take him to playgroup or day-care early enough. His social problems and language delay are all your fault.
The mother’s case was that these types of comments were part of a consistent pattern of verbal denigration and abuse across the course of the relationship, starting after K’s death.
The mother said that later the same day they argued again, and that the father grabbed her handbag and started going through it saying that he wanted his money. She said that:
c. While struggling over the bag, I slapped Mr Hedlund on the upper arm once and on the left cheek twice. Each slap was openhanded. Mr Hedlund grabbed my left wrist and bent my arm and wrist back, forcing me to the ground. My wrist was sore and bruised and there were bruises on my forearm where Mr Hedlund’s fingers dug in to my arm. Mr Hedlund said, ‘I don't want to hurt you’, I replied, ‘It’s too late, you are.’ I was in pain from what Mr Hedlund was doing.
d. Mr Hedlund said ‘I’ll ruin your life.’ ‘You are a violent criminal and you should be in jail. I’ll call the police. You hit me four times.’
The mother’s evidence was that whilst the father had told her that he could have “swatted flies with more strength” she regretted having lost her temper and struck him. In examination by the father she repeated that:
So do you have any remorse over using that force on your husband?---I have apologised a number of times.
The father’s version of events in his affidavit is that the family was due to attend an extended family member’s birthday party and that approximately five minutes before they were due to leave there was a conversation in which she told him that she was not going to the party. She allegedly went on to say that she was not going to allow him to take the children and then threatened to report the family car as stolen to the police if he took it and have him charged with kidnapping the children.
He says that the car keys were in the mother’s bag, and that is why he took her bag from her to recover the car keys, which he had seen her take and place in the handbag a few seconds earlier. He says he was not trying to take her money, and did not need it, as he had his own wallet and credit cards. His version of events is that:
As I was going through Ms Hedlund’s bag to recover the car keys, Ms Hedlund struck me with her right hand on the arm. Ms Hedlund then, with her left arm, struck my face on the left side, which caused me pain. Ms Hedlund then, with a closed fist, struck both the left and right side of my face with her left and right hand. The children, who were sitting in the high chair in the lounge room were witness to this attack. As I did not consent to being struck, the attack was continuing and it was apparent to me that Ms Hedlund had lost her temper. I decided to act to resolve the situation. I caught Ms Hedlund’s left wrist as she was approaching to strike me for the fifth time. I agree with Ms Hedlund that I hyper extended her arm and forced her to the ground. I also agree with Ms Hedlund that I said words to the effect of “I don’t want to hurt you, calm down and I will let you go.” Ms Hedlund continued to scream profanities at me, with words to the effect of “Fuck you” for a short period of time, while I repeated my calls for her to calm down. When Ms Hedlund calmed down, I released the hold. A verbal argument continued until members of my family arrived, who I had called to help defuse the situation.
During the course of the trial the father cross examined the mother, and asked the mother the following questions:
… I’ve had a background in security for a long time. I believe you had lost your temper. Had you lost your temper?---I was very frustrated with you and your behaviour towards me.
So you still believe that a restraint technique, that’s used by police and security, as the lowest level of force even on passive resisters, is an assault after you strike me in the head?
During the father’s cross examination, when he was being asked questions about that incident , I asked the following questions:
HIS HONOUR: Do you think that might have been a bit of an overreaction on your part, sir?---I believe she had lost her temper, your Honour and I was effectively trying to restrain her to get her to calm down and it did take a little while.
Couldn’t you – couldn’t you have just walked away? Couldn’t you have walked away?---What with the children in highchairs right next to me and leaving someone who’s striking someone in the head who has lost her temper?
Yes?---I believe she probably needed to be restrained.
The father’s case, as put to the mother, was that his actions using what he termed an “arm bar takedown” rather than stepping back from his angry wife were entirely reasonable and justified.
I do not accept that the mother was, as the father suggested in his reply, completely out of control or someone who posed a risk to the children and needed to be restrained. Taking into account the other evidence of family violence considered below, including the father’s concession of the history of family violence to the treating general practitioner Dr Q, and my findings with regards to the father’s conduct in encouraging X to abscond and assault the mother, I am comfortably satisfied that the father’s behaviour was representative of his beliefs concerning his entitlements to control the mother and that this event constituted an act of family violence by each party, but primarily by the father.
Incident of 21 March 2017 and final separation
The mother’s evidence-in-chief was that she was forced to leave the matrimonial home at R Street, Suburb C on 10 April 2017 due to the ongoing family violence perpetrated by the father.
At the time of separation the police took out an ADVO against the father and charged him with Common Assault and Assault Occasioning Actual Bodily Harm in respect of events of 21 March 2017. He was not ultimately convicted, however the standard this court applies is not the criminal standard, and I am looking at each event as part of the totality of the father’s conduct over an extended period of time.
The mother’s evidence-in-chief was that on the night of 21 March 2017:
[He] physically forced me off the bed, swung me around causing my nose to bleed and reefed my arms up behind my back pushing me out of the bedroom and into the lounge room. I tried to sleep in the lounge room, but [the father] constantly woke me up through the night. As a result of the assault I suffered bruising and a nosebleed.
Her evidence was that the next day the father began asking her to apologise for what had occurred the night before.
The mother said that on 22 March 2017 she attended Dr Q and that Dr Q observed the bruising on her upper arms that had come about due to the events of the day before.
The consultation notes of 22 March 2017 noted that the attendance was for a throat and sinus infection as the mother had moved recently and also:
Had an altercation with her husband last night. He was argumentative and wanted her to leave their bed. He allegedly grabbed her by the arms and bent them back and “frog marched” her to sleep on the couch as he did not believe she was sick and had a rest rather than do work around the house. He pushed her around and she got a nosebleed allegedly from being shoved around. Had bruises on both upper inner arms consistent with the injuries she discussed with me. He refused to let her use the car to take X to his OT appointment and she managed to get a lift with a friend but had to catch the train home which took her 2.5 hrs and was hard on X. Counselling on her options and domestic violence. She will try and formulate an escape plan. Directed to S House. He threatened to kill an injured bird she is nursing with a brick as she showed it more concern than for him.
She said that the father insisted that she made an appointment for him to come with her to see Dr Q. This appointment occurred on 31 March 2017 with both of them in attendance. She said that at the consultation Dr Q suggested a trial separation and that the father said to Dr Q:
I think she needs to be admitted to a mental facility.
She submitted that Dr Q then said that an inpatient program was not appropriate and that the depression was situational.
Annexure D to the mother’s affidavit is a report of Dr Q dated 13 April 2017. Part of that report reads:
I must note that on 22/03/2017 she came to see me where she had evidence of bruising on her upper arms where she alleges Mr Hedlund grabbed her and forcibly removed her from her bed to force her to sleep on the couch. She also alleged that he caused her to have a nosebleed from being “shoved around”. She has also in previous visits told me that Mr Hedlund has threatened to rape her, threatened to cut her off from finances and she has also told me that he threatened to kill an injured bird she was nursing with a brick, as she was showing it more affection than she did to him.
In that letter Dr Q also noted that in her opinion:
Since early 2015 it became evident to us that Ms Hedlund was suffering from domestic abuse. She has been subject to psychological abuse and bullying from her husband Mr Hedlund for a number of years. This has been noted by me, our psychologist Ms T and also independent health services including U Clinic. Mr Hedlund and Ms Hedlund were visited by the child and family health nurse Ms V in September 2016 who then rang me very concerned in regards to what she saw at the time as '”having all the hallmarks of domestic abuse”.
Due to her situation with 2 children with special needs and her domestic abuse, Ms Hedlund came to see me in regards to her mental health in February 2015. She was diagnosed with depression and underwent counselling and did very well indeed. She has been stable with an antidepressant. She saw a psychiatrist last year as she was forced to give up her firearms due to her depression. He also felt she was stable and undergoing correct treatment. Her depression is clearly situational and a large part of it is due to the behaviour she tolerate from Mr Hedlund.
In respect of the events of 21 March the wife also gave a statement to police which formed the basis of the ADVO application. In the application which she gave evidence that was taken from her statement it was submitted that:
About 12:00am on Tuesday 21 March 2017, the victim went in to the bedroom where she and the accused sleep. As the victim was getting into the bed, the accused became agitated and told her to “get out of bed and go sleep on the lounge”. The victim told the accused, “no, I want to get some sleep”. Due to this the accused became agitated and told the victim that she has 5 seconds to do so and began to countdown from 5 seconds to 0 seconds. The victim still declined to leave and sleep on the lounge.
Whilst the victim was laying on the bed, the accused took hold of her with one hand on each part of her upper arm and turned her around. The accused then proceeded to twist the victim’s arms behind her back and pull them in an upwards motion. This caused the victim to feel immediate pain where she told the accused, “that hurts”. The accused replied to the victim “it’s meant to”.
The accused got out of the bed whilst holding the victim’s arms behind her and kept them placed in an upwards motion. He walked her from the bedroom to the lounge room with her arms in this position and pushed her onto the couch in the lounge room. Whilst the accused was arguing with the victim she was crying and did not speak to the accused due to his actions.
Throughout the night the accused went in and out of the lounge room waking the victim up as she was trying to sleep. During this time, the accused told the victim, “if I see you walk towards the kitchen, I will assume you’re going for a weapon and I will deal with you appropriately.” The victim did not reply to the accused and aimed to go to sleep to prevent any further altercation.
I note the similarity in terms of the arm bar technique which the father agrees he used on the mother in 2014 to the description contained in the more detailed statement, given contemporaneously to police, of what occurred.
Whilst the father agreed with the occurrence of the events in 2014, he denied repeatedly that any event at all had occurred on or about 21 March 2017.
His evidence and his case was that this was a malicious allegation fabricated by the wife in the context of their separation on 10 April 2017, solely for the forensic purpose of anticipated proceedings or to make life difficult for him, and that there was no substance to it.
The clinical notes of Dr Q for Friday 31st March 2017 (Exhibit C) note that there was a surgery consultation which starts with:
Mr Hedlund came in with Ms Hedlund.
It is clear from that and the rest of the entry that both the mother and the father were present throughout. The consultations notes, which are not a report but appear to be the contemporaneous records of Dr Q, noted that the father did not think the mother was getting adequate treatment for her depression and Dr Q’s view that she discussed that she did not think that was the case and that:
…a lot of her depression is situational in regards to the confines of her marriage.
Dr Q recorded :
Discussed many different issues in their marriage where he feels she is not responsible and not living up to his definition of her responsibilities. States she has, “cost them thousands pissing around with the tradies in respect of their house”, however could not come up with an actual time this had happened. Brought up a car accident – I explained an accident is not irresponsible – it is an accident.
…He has a very rigid view of how things should be. I brought up the occasion where he made her take Y to his OT appointment by public transport in the hot sun and they needed to walk and he said she deserved it – I asked if the child deserved it and he said other children have it worse.
He admitted to physical violence on her in recent times as Ms Hedlund told me in a previous visit where he removed her from their bed and made her sleep on the couch.
She also admitted to physical violence in the marriage many years ago when she slapped him but then he counteracted with forcing her arm behind her and taking her down to the floor.
He admitted that he likely does use some verbal abuse but seems to think that is okay.
It appears that the doctor discussed with the parties the avenues open to them, including doing nothing, trained counselling, changing things or trial separation, and she noted that the father:
Did not react very upset to the mention of a trial separation.
She later noted that:
They have very different views on how the boys should be brought up – he insists on structure and discipline – he states the boys are very different with him and with his parents than what they are with her – I explained this occurs often in families and can be very normal.
He uses discipline in that he puts them physically into a high chair when they do not do what they are told – Ms Hedlund is unable to do this as she does not have the strength.
On the question of whether or not an event occurred on 21 March 2017, and if so, what occurred, I am comfortably satisfied that there was an event which occurred broadly in line with the mother’s allegation.
In coming to that conclusion I take into account the following things. Firstly, the father agreed in Court that he had used an arm bar technique before, and his very clear position was that since the mother did not let him have the handbag and was slapping him, he was entirely justified in using that force to hyperextend her arms behind her back and take her to the ground.
Secondly, when the mother saw Dr Q on 22 March 2017, not only did she make the allegation at that time that she makes now, significantly, Dr Q observed evidence of bruising on her upper arms, and no other explanation for that bruising was given by the father.
Thirdly, and most significantly Dr Q recorded that the father:
…admitted to physical violence on her in recent times as Ms Hedlund told me in a previous visit where he removed her from the bed and made her sleep on a couch.”
In final submissions the father could advance no explanation for why Dr Q would have fabricated this admission.
Given all of this evidence I am comfortably satisfied to the requisite standard that this event occurred broadly as the mother alleged.
Did the father engage in verbal and emotional abuse throughout the relationship?
The mother also identified a variety of other events, including for example being locked in a garage for two hours by the father, and other similar matters in respect of which there is no other contemporaneous evidence. The father denies these allegations. In these circumstances it is difficult to make any specific findings about these specific events.
To support her case this was not two isolated events of family violence, but rather that there was a consistent level of verbal humiliation, abuse and control, and the mother relies upon the clinical records of Suburb C Medical Centre (Exhibit K) and the admission noted above that:
“He admitted that he likely does use some verbal abuse but seems to think that is okay.”
Read as a whole, those contemporaneous clinical records support the summary provided by Dr Q in her report of 13 April 2017. This material clearly rebuts any suggestion of recent or post-separation invention or fabrication, which was the essence of the argument made by the father. I will not go through all this voluminous material but will identify some of the key entries.
On 13 February 2015 the mother met with a psychologist Ms T, who was working in the same organisation and is not to be confused with the doctor with the same surname at the same practice. Ms T’s opinion as shortly stated in these clinical notes was:
The interview reveals that there are obvious signs of depression due to being controlled and bullied by her husband. Ms Hedlund finds it difficult to discuss or effectively communicate in her relationship with her husband. She is also under continuous stress due to her behaviourally challenged son, X. She needs counselling support to help her deal with her emotional struggles.
On 12 March 2015, Dr Q applied the Edinburgh postnatal-depression scale, having previously noted the possibility of postnatal depression on 16 February 2015. On 29 June 2015 Dr Q noted that the wife was asking if she should continue antidepressants, noted she was still having issues in her marriage and had sought advice from solicitors, which the father would be worse off from any split and hence he was looking for reconciliation, and that things had been better since. There was also a reference to counselling regarding the marriage.
An event was reported on 31 August 2016, in which X had run amuck and managed to get his hands on a bottle of Panadol, which he drank “Maybe a whole bottle.” But the mother waited till the father came home and took X to the hospital. Testing showed he “did have slightly elevated paracetamol levels but no more than if he had had a normal dose”.
There was no real issue but that record goes on to say that the father was:
…very upset as he was told off at the hospital. [He] then told her off. Also said she had tried to hide it from him. Mr Hedlund has been telling her off. Things have eased up with Mr Hedlund since then. Things relationship wise have been reasonable until this incidence. Although she does get listed her faults as per Mr Hedlund all the time. He tells her to ask for help, and then when she does, he berates her for it. She is basically walking on eggshells all the time. From what she tells me he is emotionally abusing her. She is teary and depressed.
On 16 September 2016 the mother visited Dr Q because her firearms license was up for renewal (noting that both parties had firearms because they practised pistol shooting), and she asked the doctor if she had to state that she had postnatal depression and was told that she did. At that time the history noted is that:
Has no real avenues out of situation. Mr Hedlund controlling and abusive will use anything as a “weapon” not physically abusive.
The reference to the father being “not physically abusive” in these notes is consistent with the mother’s case, and the contemporaneous documentary evidence of her complaints, that the overwhelming majority of the family violence was through verbal abuse, control and manipulation, with two major physical incidents.
Arising from a consultation with Dr Q on 28 November 2016 it was noted that the mother:
LONG counselling session.
Discussed emotional abuse from husband – multiple claims of same. Has at times threatened to rape her – once at least. Has physically restrained her once, although she did slap him first. This was how W Counselling got involved in their family. Everything is always Ms Hedlund’s fault. Things are only good if he is in a good mood. He uses words to demolish her confidence. All the hallmarks of emotional abuse. Discussed support systems. Discussed going to S House and organising to leave. I doubt she will do this as she is economically trapped. He is pushing for her to be admitted to a psych hospital – referral for same given.
The entry for 14 December 2016 Dr Q noted:
Asking for referral to Region Z Hospital. Husband is insisting she needs to be an inpatient somewhere. Has done a phone assessment with them. Is wanting to go into their family or day program. She is interested in a day program called Managing Moods - needs to see their psychiatrist. Seeing him on Monday morning. Has brought in a referral form – same filled.
The notes for 5 April 2017 for Dr Q noted that the father “is currently on his best behaviour”. It also noted that she was:
…having a lot of trouble controlling X – cannot get him in the car when picking him up from school. Took her 90 minutes to try and get him in his car seat the other day – he physically scratched and kicked her. Undoes his seatbelt. Looking at getting restrictive belts for him. Ms Hedlund does not feel her depression is getting worse … Ms Hedlund is looking at leaving her husband.
Having considered this evidence, and also the evidence of Dr L and Ms M relevant to this issue as set out below, I am comfortably satisfied to the relevant standard that the father has engaged in long-term family violence of the kind alleged by the mother.
Dr L
Dr L is a consultant psychiatrist, a Clinical Associate Professor at Sydney Medical School, and a Senior Staff Specialist in the Department of Psychological Medicine at the AA Hospital, where he acts as X’s treating psychiatrist.
Dr L had prepared a series of reports addressed to X’s treating paediatrician Dr BB. These were dated from 20 March to 27 September 2019. He also prepared a separate report dated 27 September 2019 which he forwarded to the (then) Department of Family and Community Services (“FACS”) notifying of a Risk of Serious Harm in respect of the father’s risk to X.
In his notification to FACS on 27 September 2019, Dr L set out his observations during a consultation that:
On the 11th of September 2019 at the appointment with me, X was somewhat anxious and running round the Department before the appointment. Following the start of the appointment he was unsettled. During the appointment X said “I’m going to punch you on the nose mummy because daddy told me to". She said “that would hurt me and I will get upset''. He said “I am angry you are talking about me and my running off. I do not like you” to which Ms Hedlund said "I love you". He then threw his water bottle towards his mother. He then went to punch Ms Hedlund. She cuddled him and he settled in a couple of minutes.
He concluded that:
What I wish this notification to do is to draw attention to the father’s inability to hold the needs of the children primary, both in terms of his perspective and also in terms of the mother's perspective. His continued contact is therefore harming the wellbeing of X and the relationship between X and his mother. It is also clear, that Mr Hedlund’s behaviour is significantly contributing to the emotional and behavioural disturbance exhibited by X. X has good quality care from his mother, but suffers separation anxiety and oppositional behaviour, particularly at handovers, when the father's presence emphasises the negative and hostile messages his father gives him. In addition Mr Hedlund's menacing and combatitive behaviour to me as someone trying to help his son, as communicated to the staff in our department, and previously to the referring paediatrician, makes me particularly concerned for the safety of the mother and son. …
I recommend that in view of the safety of such a vulnerable child with intellectual disability, autism and a medical disorder and mixed emotional and behavioural disturbance, that he should not have regular contact with this father and that any future contact should be supervised to prevent the boy being adversely affected by his father's hostile communication. I fear that to allow the current situation to continue may affect X’s development in the long term.
Dr L was called and cross examined prior to Ms M. He was asked whether he accepted her then recommendations in her 2019 report, considered further below, that because of X’s behaviour making him a danger to himself and to Y and the mother that X should live with the father whilst Y lived with the mother, and that there be some arrangement for the children to spend time together and see the other parent.
Dr L did not agree. His position was that the mother is X’s “primary attachment figure”, he considered that the mother had parenting competence, considered the mother’s mental health problems were related to the domestic abuse situation and that she had shown “pretty good recovery”. Whilst there have been relationship difficulties between X and the mother, Dr L had formed the view that “much of the current disturbance pertains to the father’s inability to hold the needs of the child as primary …” by reason “…of the father causing X to be negatively disposed to his mother”.
He stated that X was “not severely disturbed” and was “actually quite settled in school” and that:
It’s any situations that deal with this persisting conflict between the parents that make him highly anxious and significantly oppositional. I think that there are problems, therefore, with the nature of the father’s contact and the way in which he is able to intensify that anxiety…
Dr L considered that the risks to X flowing from family conflict were amplified because of his medical conditions, and that he was “actually quite a nice-natured boy underneath his other disabilities”. He considered the parental conflict and in particular the father’s behaviour was the hub of the issue and that if the Court limited the father’s access so that the father could not continue encouraging X’s behaviours then:
I would feel reasonably optimistic that X will settle down and improve further in his relationship with his mother.
Dr L did not accept Ms M’s opinion that X’s behaviour could escalate for 12 to 24 months before settling if there was a no time order made in respect of the father. He considered that the combination of X’s nature, appropriate medication, and an environment enabling the mother to establish authority and safety through the removal of the father’s input would cause X to settle quite quickly.
Given that opinion, Dr L did not think that the mother or Y were at risk of “being seriously harmed or killed” by X, as raised by Ms M, but did accept that Y was at “a small risk” of emotional harm from repeated exposure to X’s behaviours. However, on the basis that he would expect X to settle down without the input of the father, he thought X’s relationships with both the mother and Y would become easier.
He stated that in his opinion, the risk to X of the loss of the relationship with the father was less than the risk to X of the paternal relationship continuing. I note that as Y was not his patient Dr L did not provide direct opinions concerning Y.
His recommendation was that both children live with mother and that X spend no, or limited, supervised time only with the father.
Dr L acknowledged that the father had a concern that he had formed an adverse opinion about the father based on what the mother had told Dr L prior to having met the father. Dr L said that he was conscious that he was getting information from “one side and not the other” and that he “tried to take information and observe information of X’s behaviour and the behaviour reported about the father when that’s been relevant…”.
Having had the benefit of hearing Dr L’s evidence, noting that he has been the subject of complaints by the father, I am comfortably satisfied that to the extent that Dr L formed and expressed an adverse opinion of the father it was well based in the facts of this case and on the father’s demonstrated conduct, and it was an appropriate and professional opinion to form in the context of his exercise of independent clinical judgment.
The ICL and / or the mother may advise Dr L of the result of this Hearing. If Dr L is still the subject of complaints by the father he may be advised that at his request a copy of these reasons may be released to him to provide to any Body investigating his professional conduct.
Ms M
Ms M is a clinical psychologist with extensive experience in this jurisdiction, including dealing with psychological factors relevant to the needs of parents and children in conflict in family law proceedings. She was appointed as the joint single expert by the parties.
Ms M gave evidence after Dr L. She was provided with a copy of his reports of 27 September 2019 and was told the essence of Dr L’s evidence and opinions.
At the time of her first report in 2018 the mother was proposing sole parental responsibility and that the then existing Court Orders for a 4/10 arrangement continue, although instead of two blocks of two nights, she was seeking one block of four nights to reduce transitions, possibly with an additional afternoon.
On assessment the mother did not exhibit any signs of serious psychopathology. The mother’s diagnosis of “situational/reactive depression” in the context of the relationship conflict was noted together with the ongoing treatment with Ms T psychologist. Ms M added that on her review of the documentation there was no indication that the mother had experienced psychotic symptoms. Completion of the self-administered Personality Assessment Inventory (“PAI”) suggested she was not defensive and had a clinical profile that was within normal limits and did not suggest any possible diagnosis.
Ms M stated in 2018 that:
Overall, testing with Ms Hedlund indicated that she was open and not defensive, and that she does not have any mental illness that would affect her capacity to care for children. She may, however, benefit from learning techniques to manage her temper around the children.
The father’s presentation was noted as defensive in response to questioning, often deflecting questions by asking questions and providing indirect responses. She said the father preferred to focus on the mother’s faults and flaws and “seemed to struggle to self reflect on his own contributions to any difficulties”. There were no overt signs of psychological illness.
At that time Ms M recommended consideration be given to Ms Hedlund having sole parental responsibility for the children in some areas, such as health. She also recommended that the children should live primarily with the mother and spend time with the father from Friday after school to Monday before school each alternate weekend and 1 to 2 nights in the other week (e.g. Wednesday or Wednesday and Thursday), as well as equal school holiday time. Further, she recommended that the father undertake a parenting after separation course and a course in anger management.
As the mothers evidence was that transitions were particularly difficult, because for example the father would place X near the door but not inside the door of her house which complicated the transitions, Ms M also recommended family therapy to assist with X transitioning between the parties, and that the father should comply with the recommendations made by professionals to assist X’s transitions by leaving quickly and shortening transition times. She advised that if he failed to do so, that time should be reduced to 3 to 4 nights per fortnight and shorter block times during holidays. Consequential recommendations included non-denigration by the parties and refrainment from discussing legal proceedings with the children.
The father’s character
A significant part of the mother’s case is that the father is in colloquial terms a bully, who harasses and intimidates everyone around him, and who will do whatever he needs to do, to get his way. This assessment of his character is central to both her case on family violence and also the case that the father has been encouraging X to assault her and abscond.
This issue was considered by Ms M in her 2019 report. She stated:
42. Mr Hedlund was polite for the first five minutes of the interview while discussing issues about consent. However, as soon as he was asked about what has happened since the first assessment, he became agitated and, and for most of the interview thereafter, he was openly hostile towards me. He spoke loudly, repeatedly voiced his anger and frustration with my initial report and the "system". He also made threatening remarks about how I would be sued in any other environment except that I had "immunity" through the Courts and claimed that is why I "operate in that space". Consistent with his response style in the initial interview, Mr Hedlund often deflected questions, spoke about Ms Hedlund instead of answering a question about his behaviour, and/or rephrased my question to answer with another question. As such, it was often difficult to elicit a straight answer from Mr Hedlund. While there were no obvious signs of psychopathology, Mr Hedlund's hostility suggests that he struggles to manage his emotions and behaviour, and has difficulty understanding what behaviour is appropriate.
She continued:
49. Mr Hedlund then became quite agitated and said "I know where you are going with this". He complained that my initial report was biased….4.63.49
…
50. Spontaneously, Mr Hedlund shared his opinion (in a very forceful manner) that there was "evidence in contrast" to what I had written in the first report, that the report was biased and uncritical of Ms Hedlund, and that I had ignored the fact that he was not charged with assault. He referred my report as being "extortion". He also claimed that I was protected by the Court system and that is why I work in "this space". At this point in the interview, Mr Hedlund was speaking very loudly and his tone was extremely hostile and intimidating in his demeanour.
In the context of her own observations of his behaviour with her, Ms M also commented upon the reports about similar behaviour from treating practitioners that:
I also have concerns about how Mr Hedlund has conducted himself with professionals involved in the family. He has been hostile and intimidatory towards multiple medical professionals, including those at the CDU, Dr BB, Dr L and myself. He appears to be angered about what he perceives to be an unjust and gender biased system (in both the medical model and the Court system). My view is that such an aggressive approach has not been effective in helping the children. Further, his behaviour raises concern about Mr Hedlund's capacity to see things from others' perspective and whether he is able to manage his own emotions and behaviour. In contrast to his account that he worked with his treating psychologist about how to manage his emotions and behaviour, there is no evidence that he has made changes. Accordingly, my view is that Mr Hedlund requires ongoing psychological intervention to assist him with emotional and behavioural regulation, parenting skills, and appropriate interactions with others.
Ms M was asked on oral evidence about her observations of the father’s behaviours noted above. In the context of being asked questions about whether she would be willing to continue as a treating practitioner for the children if the behaviour was repeated and she had to deal with the father she said:
I tolerated it for the assessment, for the sake of completing the assessment. I did at one point think that I may end it. It got to that level of hostility where I thought, “This is unacceptable.” But I understand that my role is to do the assessment, and I felt it important to continue the assessment, so I continued with the interview. But if it was ongoing like that I would either have to advise Mr Hedlund to manage his behaviour or terminate if I was the treating psychologist, if that’s what you’re asking.
The extent of the hostility was emphasised, given that dealing with situations of high conflict is inherent to her work. She said:
But this was quite at a level … that I don’t normally experience. I have had that experience certainly with … a few clients, but most people are able to manage their anger and hostility towards me in a manner – in a manner that – even if I’ve already conducted an assessment, most people are able to manage that and behave appropriately. This was somewhat out of the ordinary in that it was quite significantly hostile – openly hostile… He was certainly intimidating.
I consider this direct evidence from Ms M highly significant. It is consistent with, and therefore tends to support and substantiate the documentary evidence that the father is willing to engage in intimidation and bullying. That is was also consistent with the mother’s case of her experiences in dealing with the father, as well as with Dr L’s evidence, and strongly supportive of the mother’s case of family violence, in particular by reason of harassment, intimidation and control.
Ms M gave oral evidence that she did not think the father felt the need to change and had doubts that he would follow recommendations to help him change.
In terms of the risks to the children of living with and spending time with the father with these characterological traits, separate from the question of whether or not he has been encouraging X to assault and abscond from the mother, Ms M said:
… there’s certainly a risk that if that behaviour was to continue that the children would, well, be exposed to physical and emotional harm, but that they would also mimic that in time, and that could be mimicking that behaviour towards their mother, women generally, or peers, each other; that there could be some increase in their own controlling – they learn that as a means of communication; a means of conflict resolution, etcetera, so no, it’s poor modelling.
Did the father encourage X to assault the mother and abscond?
On the significant question of whether or not the father has been encouraging X to assault the mother and to abscond from her, in her 2019 report Ms M reported at paragraph 80-82:
80. When X was asked about his mother, he said that he gets along with her but sometimes he fights with her. When he was asked whether that was sometimes often or always, he said always. When he was asked why he fights with his mother, he said that his mother is "just stupid"' and that he just hates her. He said he did not know why but he said he does not love her.
81. When X was asked about his father, he said that he never fights with his father. He said that he loves Mr Hedlund.
82.When he was asked what the difference was (why he loved Mr Hedlund and hated Ms Hedlund), he said, "daddy tells me fight my mummy". Spontaneously, X said that Mr Hedlund tells him to hit, punch and bite her. When he was asked whether he does that, X said, "yes". When he was asked whether he hit his father, he said that he did not. When he was asked why he said because he loves his father.
In paragraphs 85, 86 and 89, Ms M recorded that;
85. I then told X that I had heard he had been running away. He said, "yeah" in quite a cheeky voice and he explained that he takes his mother's key, goes out to the front gate and gets into his father's house when using a grey key. He added, "don't tell mummy", it's a secret. .. Hiding in hole".
86. When X was asked whether his father says he should not run away, X said that his father tells him to run away. When he was asked whether he thinks it is safe to run away, X said that he thinks it is not safe but denied being scared. Similarly, he said that his father does not shout at him but he claimed that Mr Hedlund does not smack him and has never scared him or hurt him.
…
89. I then suggested to X that he seemed to be very close to his father. He said that he was. Without prompting, X repeated that his father is telling him to run away. He did not know why but he repeated that his father tells him run away and says, "kick, punch and bite".”
In addition to her own direct observations, Ms M reported that she had spoken to Ms CC, school principal, and that:
151. Ms CC…also said that X has told his teacher "daddy tells me not to do what mummy says". As recently as yesterday, he reportedly told his teacher "daddy told me I've got to fight mummy". Ms CC’s view is that X, in his autistic world, would not be making that up.” 4.84.151
She also referred to the fact that:
Further to this, X has repeatedly disclosed to independent professionals (including myself, the school, Ms DD, and Dr L), that Mr Hedlund tells him to run away and hit/hurt his mother. Given X's ASD and ID, he is (a) a child who would be easily influenced and (b) a child who would not be sufficiently sophisticated to make up such claims. On balance, therefore, it is my opinion that X has likely been influenced by Mr Hedlund to hold negative views of his mother and to misbehave in her care.
Given her direct experience of X telling her that he was assaulting and absconding from the mother because the father told him to, and acknowledgement that this was consistent with what X had told school teachers, Ms DD and Dr L, and noting her expert opinion that X would be easily influenced and not sufficiently sophisticated to make up such claims, this led her to hold the opinion that X had likely been influenced by the father to hold negative views about the mother. This also influenced X misbehaving in the mother’s care in a manner which put X’s safety at risk every time he absconded. Ms M concluded that:
94. I have serious concerns about Mr Hedlund's parenting capacity. Firstly, it is difficult to ignore X's disclosures that his father tells him to run away from Ms Hedlund and to hit her. If X's account is accurate, that Mr Hedlund tells him to act this way, and that X acquiesces to please his father, this suggests a callous disregard for X's physical safety and emotional needs. It also indicates an inability to co-parent with Ms Hedlund, and to support the mother-child relationship.
Ms M was asked about this opinion in oral evidence by counsel for the mother and said:
Were you able to form a view at all – are you able to form a view at all as to whether or not – well, X certainly has a genuinely-held belief that that’s what his dad wants him to do, doesn’t he?---Yes.
Do you know where that has come from?---Well, X told me also that his father had told him to hit, kick, punch, or words to that effect, and that his father has told him to run away. I can only surmise, given that he has told multiple people that – that he is a young child, that he’s autistic and he has got an intellectual disability – it is that he is repeating what he has been told by his father.
And if that is the case, do you agree that that amounts to emotional abuse?---Yes.
When challenged in cross examination on this opinion by the father, in the context of her statement in the 2019 report at paragraphs 100 and 106, that when Y was asked about the topic of X running away, Y said his father “tells him to be safe and that he needs to stay home with mum”. Ms M stated:
What weight do I put on – I put some weight, not a lot of weight. Y is only five; he’s not there all the time, and on balance X has told Dr L that – his psychologist – me, and his teacher. So on balance I would say that it’s more likely that you have told him that and X is repeating that, versus what Y has either heard or been privy to or understands.
Are Y and the mother at risk from X living with them?
Despite her statement in her 2019 report that if the father was encouraging X to abscond and assault the mother this suggested a “callous disregard for X’s physical safety and emotional needs”, Ms M had recommended in the report that X live with the father and Y live with the mother.
In oral evidence Ms M confirmed that the reason she had made that recommendation was due to the identified risk in the mother’s household of X’s behaviour, including the risk that X posed to Y and the mother, which she assessed as very high and potentially fatal, and of the risk of self-harm to X as a consequence of his violent behaviours and absconding.
Ms M confirmed that the mother’s parenting skills were adequate, noting that the mother was struggling to manage X’s behaviour “that’s more about X than her”.
When presented with Dr L’s opinion that if the father’s involvement was removed X would likely settle quickly and the risks to X, and to Y and the mother of X living with the mother would be removed, Ms M stated that:
If Mr Hedlund is undermining Ms Hedlund’s parenting and if he is encouraging X to abscond and if he is not supporting X being settled in Ms Hedlund’s care, then I would agree that all of those would exacerbate the problem for X and, well, possibly cause the problem and certainly, if not cause it, exacerbate it.
She also said that:
I think for me this is very difficult because if the father is the main source driving that anxiety, then to remove it you would expect X’s behaviour to settle after a certain time. For me the bigger question is how long that might take to settle and what happens in the interim period, but, yes, if – if it’s the parental conflict that is the main driver for it and X is exhibiting anxiety and he’s acting out or acting out by being aggressive, in this case to his mother and to Y, then it’s certainly a possibility – a high possibility – a high likelihood that if you remove the parental conflict then that will settle over time. I think the – the – the question, as I said, for me is how long that will take to settle and the risks in the – in the meantime and whether anyone can wait for that to occur.
On the question of how long it might take X to settle she said:
And I would – look, it’s– it’s speculation about how long that would take to settle. But I don’t think that it would be immediate, and I don’t think that he would quickly forget his father and stop wanting to see him. So there would need to be additional levels of safety mechanisms put into place to my mind if that was to happen, to support Ms Hedlund to support X. Whether that was extra care through W Counselling, a stay somewhere, an inpatient stay like EE Services, where Ms Hedlund could have additional support for how to manage X’s behaviour. It might be increased medication or locks or sensor alarms or whatever that might be. But I think there would need to be some additional safety mechanisms put into place, because I would expect his behaviour – X’s behaviour to escalate, at least in the short term.
In the event the mother’s case on parenting was accepted she submitted that the split should be 75% to 25% in her favour, and the father submitted that it should be 70% to 30% in the mother’s favour. The agreed split in the mother’s favour took into account both the mothers significantly greater initial contributions, as well as the impact of caring for the boys on her future earning capacity. The sum involved in the 5% difference is just over $50,000.
The major issue argued about was the structure of the orders. The father says that he needs some capital to be able to re-establish himself and that he should not be left solely with superannuation. Consequently he seeks the sale of H Street, Suburb J.
The Court is required to identify the parties existing legal and equitable property interests, whenever acquired, pursuant to the ordinary principles of the common law and equity.
The parties submitted the following joint balance sheet. I note that some of the mathematics was incorrect, e.g. about $150 in respect of assets and I have corrected that for the purposes of setting out the agreed positions. Where the parties are in agreement I have deleted the figures from the second column to highlight the areas of disagreement.
As will be seen from the below table the only substantial issue was as to the husband’s loans and legal fees.
| ASSETS | ||||
| Ownership | Description | Wife’s estimated value | Husband’s estimated value | |
| 1 | Joint | B Street, Suburb C (remains of proceeds of sale, held in Controlled Moneys Account managed by Coleman Greig Lawyers Ply Ltd) | 10,000 | |
| 2 | Wife | H Street, Suburb J | 725,000 | |
| 3 | Joint | Commonwealth Bank Account ending ...74 | 1,999 | |
| 4 | Joint | Commonwealth Bank Account ending ...54 | 1,051 | |
| 5 | Joint | D Bank Cash Management Account ending ...24 - account closed 9 February 2018 & funds transferred to CBA account ending ...54 | 0 | |
| 6 | Wife | Commonwealth Bank account ending ...67 (account opened 10 September 2003) | 1,559 | |
| 7 | Wife | Commonwealth Bank Account ending ...14 (account opened 21 July 2017) | 3,414 | |
| 8 | Wife | Commonwealth Bank Account ending ...37 (account opened 23 July 2017) | 1,750 | |
| 9 | Wife | Commonwealth Bank Account ending ...77 (account opened 16 June 2017) | 3,317 | |
| 10 | Wife | FF Credit Union account ending ...86 | 150E | |
| 11 | Wife | GG Bank account ending ...39 | 95 | |
| 12 | Husband | Westpac Account ending ...61 | 2,980 | |
| 13 | Joint | 6000 credits in E timeshare | 3,000 | |
| 14 | Husband | 180 GG Bank Shares | 1,424 | |
| 15 | Husband | 32 Employer HH Shares | 1,000 | |
| 16 | Wife | 229 GG Bank Shares | 1,811 | |
| 17 | Wife | Motor Vehicle 1 | 18,000 | |
| 18 | Husband | Household contents | 10,000 | |
| 19 | Wife | Household contents | 10,000 | |
| 20 | Wife | Jewellery | 2,000 | |
| Total | $798,550 | |||
| LIABILITIES | ||||
| Ownership | Description | Wife’s estimated value | Husband’s estimated value | |
| 21 | Joint | Loan secured against H Street, Suburb J property (account ending ...84) | 199,998 | |
| 22 | Husband | Westpac Visa card | 0 | 8,969 |
| 23 | Wife | Commonwealth Bank MasterCard account | 5,476 | |
| 24 | Husband | Loan from parents | 0 | 61,000 |
| 25 | Husband | Westpac Flexi Loan account ending ...36 | 0 | 32,032 |
| 26 | Husband | Outstanding Fees Coleman Greig | 0 | 25,000E |
| Total | $205,474 | $332,475 | ||
| SUPERANNUATION | |||||
| Member | Name of Fund | Type of Interest | Wife’s estimated value | Husband’s estimated value | |
| 27 | Husband | Super Fund F (ending ...80) | Accumulation | 200,640 | |
| 28 | Husband | D Bank Super Accumulator (ending ...09) | Accumulation | 143,682 | |
| 29 | Husband | Super Fund JJ (ending ...14) | Accumulation | 9,821 | |
| 30 | Husband | Super Fund JJ | Accumulation | 13,865 | |
| 31 | Husband | Super Fund KK | Accumulation | 6,864 | |
| 32 | Husband | Super Fund LL (ending ...18) | Accumulation | 914 | |
| 33 | Husband | Super Fund MM (ending ...06) | Accumulation | 0 | |
| 34 | Wife | D Bank Superannuation | Accumulation | 105,000 | |
| Total | $480,786 | ||||
| NET TOTAL ASSETS (incl. Superannuation) | $1,073,862 | $946,861 |
The only issues were in relation to liabilities. The mother’s submission was that only the mortgage over H Street, Suburb J should be allowed, and that items 22-26 should be deleted as post separation liabilities, and the mother included her own credit card liability, the amount of which was agreed. Further, in respect of item 26, it was submitted that outstanding legal fees should not be allowed.
I do not allow item 26, the father’s legal fees outstanding, as each party is prima facie required to bear their own legal costs subject to any order of this Court.
In respect of item 24, the loan from the father’s parents it was submitted for the mother that there was an evidentiary issue in terms of proof. I was not directed to any evidence to independently support the existence of the loan. There were no loan documents tendered. There was no suggestion that the father’s parents were not available to give evidence in support of his allegation of the loan and that it was repayable. The proof of such a loan requires more than an assertion and the father did not meet the necessary evidentiary onus.
In respect of item 25, it is not clear to me what the evidence in support of that was. No submissions were made. In the circumstances I will not allow that amount. Nor will I allow, given the submissions, the wife’s credit card debt.
I note that the former matrimonial home at Suburb C was sold and each party received an interim property distribution of $100,000 and ongoing payments of $450 per week towards their rent, so the sum remaining in item 1 is unknown. The parties did not seek to have that money otherwise dealt with or “added back” and in circumstances where each party received an equal distribution, that was an acceptable approach which I will not interfere with.
Accordingly, I find the final balance sheet to be as follows:
| ASSETS | ||||
| Ownership | Description | Value | ||
| 1 | Joint | B Street, Suburb C (remains of proceeds of sale, held in Controlled Moneys Account managed by Coleman Greig Lawyers Ply Ltd) | 10,000 | |
| 2 | Wife | H Street, Suburb J | 725,000 | |
| 3 | Joint | Commonwealth Bank Account ending ...74 | 1,999 | |
| 4 | Joint | Commonwealth Bank Account ending ...54 | 1,051 | |
| 5 | Joint | D Bank Cash Management Account ending ...24 - account closed 9 February 2018 & funds transferred to CBA account ending ...54 | 0 | |
| 6 | Wife | Commonwealth Bank account ending ...67 (account opened 10 September 2003) | 1,559 | |
| 7 | Wife | Commonwealth Bank Account ending ...14 (account opened 21 July 2017) | 3,414 | |
| 8 | Wife | Commonwealth Bank Account ending ...37 (account opened 23 July 2017) | 1,750 | |
| 9 | Wife | Commonwealth Bank Account ending ...77 (account opened 16 June 2017) | 3,317 | |
| 10 | Wife | FF Credit Union account ending ...86 | 150E | |
| 11 | Wife | GG Bank account ending ...39 | 95 | |
| 12 | Husband | Westpac Account ending ...61 | 2,980 | |
| 13 | Joint | 6000 credits in E timeshare | 3,000 | |
| 14 | Husband | 180 GG Bank Shares | 1,424 | |
| 15 | Husband | 32 Employer HH Share Plan | 1,000 | |
| 16 | Wife | 229 GG Bank Shares | 1,811 | |
| 17 | Wife | Motor Vehicle 1 | 18,000 | |
| 18 | Husband | Household contents | 10,000 | |
| 19 | Wife | Household contents | 10,000 | |
| 20 | Wife | Jewellery | 2,000 | |
| Total | $798,550 | |||
| LIABILITIES | ||||
| Ownership | Description | Wife’s estimated value | Husband’s estimated value | |
| 21 | Joint | Loan secured against H Street, Suburb J property (account ending ...84) | $199,998 | |
| Total | $199,998 | |||
| SUPERANNUATION | |||||
| Member | Name of Fund | Type of Interest | Wife’s estimated value | Husband’s estimated value | |
| 27 | Husband | Super Fund LL (ending ...80) | Accumulation | 200,640 | |
| 28 | Husband | D Bank Super Accumulator (ending ...09) | Accumulation | 143,682 | |
| 29 | Husband | Super Fund JJ (ending ...14) | Accumulation | 9,821 | |
| 30 | Husband | Super Fund JJ | Accumulation | 13,865 | |
| 31 | Husband | Super Fund KK | Accumulation | 6,864 | |
| 32 | Husband | Super Fund LL (ending ...18) | Accumulation | 914 | |
| 33 | Husband | Super Fund MM (ending ...06) | Accumulation | 0 | |
| 34 | Wife | D Bank Superannuation | Accumulation | 105,000 | |
| Total | $480,786 | ||||
| NET TOTAL ASSETS (incl. Superannuation) | $1,079,338 |
The total value of the parties’ net assets and superannuation is $1,079,338.
The major asset is the mother’s property at H Street, Suburb J, which is however subject to a joint mortgage because of later actions regarding the former matrimonial property, which has since been sold. The next major asset is superannuation of which the father holds approximately 78%.
For the purpose only of the indicative calculations set out below, I will treat the mortgage over H Street, Suburb J as being the mother’s sole liability as running with the house. For the moment I will not consider the $16,050 in joint property, which will also need to be divided.
On that basis, the wife has $767,096 in assets; $199,998 in liabilities, and $105,000 in superannuation, for a total of $672,098 or approximately 62% of the net assets and superannuation, if the H Street, Suburb J mortgage runs with the H Street, Suburb J property which is solely in her name.
On the same basis, the husband has $15,404 in net assets and $375,786 in superannuation for a total of $391,190, or approximately 38% of the net assets and superannuation.
Contributions
The parties agree that the wife, who is some six years older than the husband, brought H Street, Suburb J and also an investment property at NN Street, Town OO to the relationship at cohabitation.
In 2002 the mother used her savings to purchase H Street, Suburb J for $327,000 in her own name. She borrowed $250,000 as a mortgage and paid the deposit and all other expenses including stamp duty legal and other associated expenses, from her savings. She still owns this property. In 2004 the mother purchased an investment property at NN Street, Town OO for $462,000, including stamp duty and associated costs, purchased solely using a mortgage over NN Street, Town OO and H Street, Suburb J.
The father’s evidence was that at cohabitation he owned “assets of a nominal value including but not limited to a vehicle worth approximately $5,000”. He “also had a liability in the amount of $25,000”.
At cohabitation the parties moved into H Street, Suburb J. They moved into rental accommodation in Suburb PP in about 2007 and leased H Street, Suburb J out.
The evidence was that both parties continued to work until during the mother’s pregnancy with K. Following the termination in 2010, and with the birth of X in 2011 and then Y in 2013, and because of their very high needs, the mother has not worked in any substantial capacity since about 2010, and instead she has been primarily responsible for the care of the children.
The father was working as a professional with Employer QQ earning approximately $120,000 per annum at the commencement of the relationship. Around late 2010, he commenced employment with Employer HH as a professional (Contractor) with an approximate income of $200,000 per year. The father continued to work full-time and assisted with the children. At hearing his evidence was that he was earning approximately $175,000 gross per annum.
In about late 2010 the parties purchased the property at B Street, Suburb C (“ B Street, Suburb C”) for $347,500 primarily using a mortgage. In about late 2011 the parties agreed to sell the mother’s NN Street, Town OO property for a net profit of about $30,000.
After some renovations the parties moved into B Street, Suburb C in about late 2012.
At the time of separation B Street, Suburb C was in the process of being demolished. It was sold pursuant to Interim Orders dated 31 May 2017. In addition, the Interim Orders included Orders for two lump sum payments to each party of $50,000, totalling $200,000, and $450 per week in rent was being paid to each of the parties from the residue of the funds.
Post separation the father paid his assessed Child Support levy and will remain liable to pay that into the future so that part of his income will continue to go to support the costs of the children.
I am required to consider whether there is an effect on earning capacity of the Orders I make. Unlike the parenting orders, the property orders have no relevant effect upon the earning capacity of either of the parties.
Section 79(4) incorporates the provisions contained in section 75(2) of the Act. The parties submitted on the following factors as relevant, given the Orders proposed to be made regarding parenting.
The principal questions related to the likelihood of the mother being able to return to work at some stage and the need to provide a reasonable standard of living for each party, in respect of which the structure of the Orders arose as the father submitted that it would be unjust for him to only receive superannuation.
Beyond that the parties were not able to articulate the precise reason why the adjustment would be 70/25 rather than 70/30, or vice versa. That decision can be no more than a matter of the overall impression.
It was agreed that the father’s income is $175,000 per annum gross, and about $2,100 net per week, or about $109,200 net per annum.
The mother’s submission was that the great likelihood is that she will not be able to go back to work anytime in the near future.
The evidence clearly establishes that the mother will need to provide full-time care and support for X, and to a lesser extent for Y, for a considerably longer period of time than might be the case with children not suffering from these disabilities. Where another parent might find that as the children enter high school the primary carer’s capacity for employment increases, perhaps starting with part-time work and then extending to almost full-time work as the children progress through high school. It is significantly less likely to be the case for this mother, even given the findings I have made accepting Dr L’s opinion that X will settle quickly after these orders are made.
There is a real risk that the mother may be providing care for X, in particular, long past the time when most children have obtained their independence. Dr L gave evidence that, whilst it was difficult to say at this stage, if X does not settle and were to be significantly emotionally disturbed he would not be employable. However, even if X may be able to obtain employment, it is likely to be only in protected employment.
In terms of independent living, Dr L thought that X would always need some support. He was not able to advise what that level of support would be. He stated that:
…in many families it’s continued residence with a parent for decades. In more difficult situations, long term residential care would need to be funded under the NDIS and things like that so that – I would think he’s always going to need, in effect – at minimum, he’s going to need someone to turn to to give advice and to support him over more complex paperwork. At worst, he might need someone living in to support his behaviour and help him on a day-to-day basis.
The mother sought the opportunity to retain H Street, Suburb J as an investment property by taking over the mortgage, and in the alternative a sale with a superannuation split to get to 75% of the pool. I was informed that the mother’s solicitor would provide procedural fairness to the husband’s superannuation funds.
The combination of the mothers greater initial contributions, relatively equal contributions during the relationship and possibly after separation, although there was limited evidence on this, the father’s unimpaired earning capacity and his payment of child support, the mothers inability to work for the foreseeable future as a consequence of the children’s, and in particular X’s, very high level of care needs, and the prospect that X may need a high level of care for considerable period of time and may never achieve independence from the mother, other than through placement in a residential facility catering for adults with significant intellectual impairments or other disabilities, satisfies me that the range the parties have identified is appropriate.
Given that the mothers earning capacity is likely to be significantly impaired until at least the children’s teenage years, and may well be impaired significantly beyond that by reason of her need to continue to support X in particular and to a lesser extent Y, and given the husband’s relatively high earnings although offset by his Child Support obligations, on balance I am satisfied that is appropriate to adjust the parties interest in the property pool as to 75% the mother and 25% the father to allow the mother some prospect of permanently rehousing herself in the long run.
The father’s complaint that if H Street, Suburb J is not sold this will leave him only with superannuation and without a capital sum so unable to re-establish himself is a fair point. In circumstances where the mother does not propose to live in H Street, Suburb J, but rather to keep it as an investment, I consider the balance of justice and equity require the property be sold so that the father has access to some capital by way of cash to allow him to re-establish himself by re-entering the property market. In those circumstances the orders I will make will require H Street, Suburb J to be sold. The mother’s proposed minute of order in that event proposed an allocation of $131,839 of the father’s superannuation to the mother if H Street, Suburb J is sold. That allocation results in, broadly, equal superannuation for the parties. That addresses the father’s concern and accordingly I will make that order as proposed by the mother.
Given the fact of COVID-19, I consider that the orders should include a “rise-and-fall” clause given the potential uncertainty as to the actual value of H Street, Suburb J even though no party sought or proposed such a clause.
Decision - property
I am satisfied that it is appropriate, just and equitable that an order be made adjusting the parties’ property interests pursuant to section 79 of the Act: see Stanford v Stanford (2012) 247 CLR 108, [2012] HCA 52. These orders are intended to determine and end the financial relationships between the parties.
COSTS
If either party seeks costs they are, within 28 days, to file and serve an Application in a Case specifying the costs orders they seek together with a supporting affidavit.
This also applies to the ICL who did not make an application for costs in the proposed orders.
I certify that the preceding two hundred and fifty (250) paragraphs are a true copy of the reasons for judgment of Judge B Smith
Date: 14 September 2020
FINAL PERSONAL PROTECTION ORDER (Cth)
Family Law Act 1975 ss 4, 68B, s68C (Cth)
DATE: 14 September 14, 2020
MR HEDLUND you must follow the orders below. It is a criminal offence not to follow these orders. You could be arrested by police and charged. If you are convicted you could go to prison or be fined.
You could also be charged with other criminal offences. If you are convicted of these offences, you could receive a higher penalty.
Enforcement: This order may be enforced by a “Police Officer”
Police Officer means:
(a) member or special member of the Australian Federal Police; or
(b) a member, however described, of the police force of a State or Territory
You must follow these orders until: INDEFINITE FINAL ORDER – NO FINAL DATE
The Orders have been made to protect:
Ms Hedlund born in 1970;
X born in 2011; and
Y born in 2013
You must follow these orders even if Ms Hedlund born in 1970, X born in 2011 and Y born in 2013 don’t want you to or tell you that you don’t need to. If you attempt to do any of the things below, it will still be a criminal offence.
Orders about behaviour
You must not do any of the following to Ms Hedlund born in 1970, X born in 2011 and Y born in 2013, or anyone they have a domestic relationship with:
A)assault or threaten them;
B)stalk, harass or intimidate them; and
C)intentionally or recklessly destroy or damage any property that belongs to or is in the possession of Ms Hedlund born in 1970, X born in 2011 and Y born in 2013.
For example:
You must not do any of these things in person, through another person, or through electronic communication and devices (for example, by phone, text messages, emails, Facebook or other social media, or GPS tracking).
You must not do or say anything that may make Ms Hedlund born in 1970, X born in 2011 and Y born in 2013 feel frightened, or feel that you may harm them or damage their belongings in any way, including any jointly owned property and pets.
Orders about family law and parenting
You must not approach Ms Hedlund born in 1970, X born in 2011 and Y born in 2013 or contact them in any way, unless the contact is:
A)as ordered by this or another court about contact with child/ren; or
B)as agreed in writing between you and the parent(s) about contact with child/ren,
For example:
You must not approach or contact Ms Hedlund born in 1970, X born in 2011 and Y born in 2013 in person or through electronic communication (for example, by phone, text messages, emails, or Facebook or other social media) or by any other means, including by asking someone else to contact them.
If Ms Hedlund born in 1970, X born in 2011 and Y born in 2013 contacts you and you reply, no matter how many times they contact you or the reason for doing it, you will be breaching this order.
For (B): For family law matters, accredited means accredited under the Family Law Act 1975.
Orders about where you cannot go
You must not go within 100 metres of:
A)any place where Ms Hedlund born in 1970, X born in 2011 and Y born in 2013 live; or
B)any place where they work; or
C)any place where they go to school or child-care or after school activities; or
D)any place listed here:
For example:
You are not allowed to go within 100 metres of the boundary of those places.
If you have been living at this address and need to pick up any of your belongings, you can apply to the court for a Property Recovery Order or you can contact police.
If you would like to talk to someone about managing your emotions or stresses, help is available. Call:
Men’s Referral Service on 1300 766 491
Relationships Australia on 1300 364 277
The Parent Line on 1300 1300 52.
If you breach this order:
You could go to prison or be fined.
You could be charged with other criminal offences (for example, assault or intimidation), as well as the breach of this order. If convicted of these offences, you could receive a higher penalty.
If you have any questions about the order, you can contact:
a solicitor
Legal Aid NSW on (02) 9219 5000
Local Police Station and ask for the Domestic Violence Liaison Officer (if you are the protected person)
LawAccess NSW on 1300 888 529 or Services on 131 450 or cellpadding="0" cellspacing="0">
Person affected: MR HEDLUND People protected: Ms Hedlund born in 1970, X born in 2011 and Y born in 2013 Date and Duration of Order: INDEFINITE FINAL ORDER Case number and Court:
federal Circuit Court of Australia, Sydney Judge B. Smith
SYC 2529 of 2017Powers of arrest
If:
(a)an injunction is in force under section 68B for the personal protection of a person (the protected person ); and
(b)a police officer believes, on reasonable grounds, that the person (the respondent ) against whom the injunction is directed has breached the injunction by:
i.causing, or threatening to cause, bodily harm to the protected person; or
ii.harassing, molesting or stalking that person;
the police officer may arrest the respondent without warrant.
Note: Section 122AA authorises the use of reasonable force in making an arrest.
For the purposes of subsection (1), an injunction granted under section 68B is an injunction for the personal protection of a person if, and only if, it is expressed to be for the personal protection of the person.
Subsections 114AA(3), (4), (5) and (7) apply in relation to a person arrested under this section as if:
(a)the person had been arrested under subsection 114AA(1) because he or she was believed to have breached an injunction granted under section 114; and
(b)the person on whose application the injunction was granted under section 68B were the person on whose application the injunction under section 114 had been granted.
S4 "police officer" means:
a.a member or special member of the Australian Federal Police; or
b.a member, however described, of the police force of a State or Territory.
S122AA
Powers to enter and search premises, and stop conveyances, for making arrests under this Act or warrants
Power to enter premises
If the arrester (see subsection 122A(1)) reasonably believes the arrestee (see that subsection) is on premises, the arrester may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the arrestee or arresting the arrestee.
However, the arrester must not enter a dwelling house between 9 pm one day and 6 am the next day unless he or she reasonably believes that it would not be practicable to arrest the arrestee there or elsewhere at another time.
(a)Power to stop and detain conveyance
If the arrester may enter and search a conveyance under subsection (1) (disregarding subsection (2)), the arrester may, for the purposes of effecting the entry and search, stop and detain the conveyance.
Note: The reference in subsection (1) to premises covers a conveyance: see subsection (5).
Rules about stopping, detaining, entering and searching conveyances
If the arrester stops, detains, enters or searches a conveyance under this section for the purposes of arresting the arrestee, the arrester:
(a)may use such assistance as is necessary; and
(b)must search the conveyance in a public place or in some other place to which members of the public have ready access; and
(c)must not detain the conveyance for longer than is necessary and reasonable to search it; and
(d)may use such force as is necessary and reasonable in the circumstances, but must not damage the conveyance by forcing open a part of the conveyance unless:
i.the person (if any) apparently in charge of the conveyance has been given a reasonable opportunity to open that part; or
ii.it is not possible to give that person such an opportunity.
Definition of premises
In this section:
"premises" includes a place and a conveyance.
Correction (11 November 2020)
The ‘Delivered on’ date on the coversheet was amended from ‘11 September 2020’ to ‘14 September 2020’.
5
4