HENTY & SULLIVAN

FAMILY COURT OF AUSTRALIA

HENTY & SULLIVAN

[2012] FamCA 470

FAMILY LAW – CHILDREN - Best interests
FAMILY LAW – CHILDREN - Substantial and significant time
FAMILY LAW – CHILDREN - With whom a child lives

Family Law Act 1975 (Cth)

APPLICANT:

Mr Henty

RESPONDENT:

Ms Sullivan

INDEPENDENT CHILDREN’S LAWYER:

Simone Wunderlich

FILE NUMBER:

MLC

738

2010

DATE DELIVERED:

22 June 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

24 November 2011, 14-17 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mould

SOLICITOR FOR THE APPLICANT:

Peninsula Law

SOLICITOR FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr G Combes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Agricola Wunderlich

Orders

That the mother shall have sole parental responsibility for the child S Henty born … December 2008.
That the child shall live with the mother.
That subject to paragraph 4 of these orders, the child shall spend time and communicate with the father as follows:
(a)Until the start of the 2013 school year:
(i)     Each week from 10.00am Wednesday to 10.00am Thursday;
(ii)    Each alternate weekend from 10.00am Saturday to 5.00pm Sunday;
(b)Upon the start of the 2013 school year:
(i)     Each week from the end of kindergarten Wednesday to the start of kindergarten Thursday;
(ii)    Each alternate weekend from the end of kindergarten Friday to 5.00pm Sunday;
(iii)     For the second and fourth week of the December/January school holidays commencing at 10.00am on Monday of the second and fourth week and ending at 10.00am Monday of the third and fifth week thereafter;
(c)Upon the child commencing school:
(i)     During school terms, each week from the end of school Thursday to the start of school Friday and each alternate weekend from the end of school Friday to the start of school Monday;
(ii)    For the first six nights of the first term holidays of the child’s first year at school commencing at the end of school on the last day of the school term and ending at 10.00am on the seventh day thereafter;
(iii)     For seven nights in the second term school holidays of the child’s first year at school commencing at the end of school on the last day of the school term and ending at 10.00am on the eighth day thereafter;
(iv)   For seven nights in each of the first, second and third term school holidays thereafter commencing at the end of school on the last day of the school term and ending at 10.00am on the eighth day thereafter;
(v)    For the first part of the December/January school holidays, at the end of the child’s first year of school and thereafter, from the end of school on the last day of term to 5.00pm on the 16^th day thereafter;
(d)On special occasions being:
(i)     On Father's Day from 9.00am to 5.00pm, if Father's Day falls outside time otherwise to be spent with her father;
(ii)    On her birthday for three hours from the end of school on a school day and from 10.00am to 1.00pm on a week-end or school holiday day, if her birthday falls outside time otherwise to be spent with her father;
(iii)     From 4.00pm Christmas Eve to 4.00pm Christmas Day in the year that the child commences school and each alternate year thereafter;
(iv)   From 4.00pm Christmas Day to 4.00pm Boxing Day in the year after the child commences school and each alternate year thereafter;
(e)Changeover shall take place at X Police Station, unless these orders provide for changeover to take place at the child’s kindergarten or school;
(f)That when the father is spending time with the child in school holidays pursuant to these orders, his other week-end and week-day time is suspended;
(g)By telephone each Tuesday with the mother to facilitate such telephone calls at 7.00pm.
That:
(a) If Mother’s Day falls outside time the child otherwise spends with her mother pursuant to these orders, then from 9.00am to 5.00pm on Mother’s Day she shall be with her mother; and
(b) If the child’s birthday falls outside the time she otherwise spends with her mother pursuant to these orders, then on her birthday she shall be with her mother for three hours from the end of school on a school day and from 10.00am to 1.00pm on a week-end or school holiday day.
That each of the mother and the father shall be restrained from using physical discipline on the child.
That each of the parties shall keep each other informed of any change of telephone number or address, within 48 hours of such change.
That each party shall be restrained from denigrating the other in the presence of or hearing of the child.
That each party shall inform the other as soon as practicable, in the event of the child suffering a serious illness or accident requiring medical treatment, whilst in the other’s care.
That the mother shall authorise any kindergarten, child care centre or school attended by the child to provide the father with any information sheets, newsletters, order forms for photos and any other material usually provided to parents.
That until further order the father and mother by themselves, their servants or agents be and are each hereby restrained from removing, attempting to remove, or causing or permitting the removal of the child S Henty born … December 2008 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the said child on the AIRPORT WATCH LIST in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court.
That the solicitor for the father shall be responsible for effecting service of a sealed copy of this order upon the proper officer of the Australian Federal Police and the Marshal of the Family Court of Australia who are requested to give effect to the order.
That the mother’s application for a property settlement shall be and is hereby dismissed.
That the father has leave to withdraw his annulment of marriage application, and all other outstanding applications are hereby dismissed.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Henty & Sullivan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 738 of 2010

Mr Henty

Applicant

And

Ms Sullivan

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Mr Henty (“the father”) (who was born in Australia, and is aged 36), and Ms Sullivan (“the mother”) (who was born in Europe and is aged 29), met in China in late 2007, when they were both working there.
They came to live in Australia in mid-2008, married in October 2008, and had their daughter S Henty (“the child”) in December 2008. They separated finally in February 2010.
The child, now 3½, has at all times lived with her mother. Since separation, the time she has spent with her father has built up via court orders. Since FitzGibbon SR’s orders of 23 August 2011, she has spent overnight time with her father. She sees him each week from 10.00am Wednesday to 10.00am Thursday, and each alternate weekend from 10.00am Saturday to 5.00pm Sunday, a total of four nights each fortnight.
The father wants the child to live with him, seeing her mother on each alternate weekend from Friday to Monday, on special occasions, and for parts of school holidays. He proposes though that until December 2013, in order to ease the child into the change of residence, she will spend only six nights per fortnight with him, spread throughout the fortnight, as well as blocks of holiday time.
The father says he is very concerned about the mother’s previous violence towards him, and specifically about her violence to the child. He says the mother has deliberately injured the child on a number of occasions, including recently, and that she presents a very significant risk to her.
The mother wants the father’s time with the child reduced to one day per week. She says she is concerned that the child is stressed as a result of the time she is spending with her father. She returns tired and aggressive from her time with him. The mother says she is particularly concerned that the child is being emotionally abused, by his very negative attitude towards the mother. She also worries more generally about his unpredictable and negative behaviour.
The Independent Children's Lawyer proposes to retain the current regime, increasing the time the child spends with her father once she starts kindergarten in 2013, and again when she starts school. The ICL takes into account the child’s age and needs, and the animosity between her parents.
By the end of the case, the ICL also sought an order for the mother to have the sole parental responsibility for the major decisions for the child. That proposal was based on the evidence of the Family Report writer, Mr L, that it could not be in the child’s best interests for these two parents to have to make decisions together for her, when they have no capacity at all to support each other, communicate, or put aside their own hostility. Mr L said the parent with whom the child primarily lives should be the decision-maker. That is how the ICL arrived at the proposal for the mother to take that role. She agreed. The father vehemently opposed it.
The mother also seeks a property settlement. She claims a payment from the father of $6,500, to represent her half share of monies used by him at the conclusion of the relationship, largely comprised of Baby Bonus and Family Allowance payments.
The father seeks an order for the mother’s property application to be dismissed, and seeks no other property orders.
Otherwise, until shortly into the case, the father had sought an annulment of the marriage, claiming he only married the mother under duress. Although he withdrew that application, the allegation persisted.
I will deal with the parenting issues, followed by the property settlement.

MATERIAL RELIED UPON AND ORDERS SOUGHT

The father relied upon:
·His Amended Initiating Application filed 14 March 2012
·His affidavit sworn and filed 24 April 2012
·The affidavit of his mother, Ms B sworn 1 March 2012 filed 5 March 2012
·His Financial Statement filed 7 February 2012
The mother relied upon:
·Her Amended Response to Initiating Application filed 2 February 2012
·Her affidavit sworn and filed 18 April 2012
·The affidavit of her friend Ms C sworn 29 February 2012 filed 1 March 2012 (not required for cross-examination)
·Her Financial Statement filed 6 February 2012
The ICL relied upon:
·The affidavit of Mr L sworn 20 February 2012 and filed 23 February, annexing his Family Report dated 22 August 2011
·The affidavit of Dr K sworn 15 August 2011 and filed 23 August 2011 annexing his psychiatric report of the husband dated 17 August 2010, his psychiatric report of the wife dated 24 August 2010, and a supplementary report of both parties dated 24 August 2010.
The father was represented by counsel, as was the ICL. The mother represented herself. I made sure that she had access to relevant provisions of the Family Law Act.
With the other parties’ agreement, the mother cross-examined witnesses after Mr Combes for the ICL had done so. That gave her the opportunity to understand how to ask questions, and ensured that she did not need to cover any material already covered by Mr Combes, unless she chose to ask additional or different questions.
The mother speaks very good English, and was sufficiently across the material and the issues in the case to pursue her proposals quite clearly.

RELEVANT LEGAL PRINCIPLES IN PARENTING CASES

Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to the detail below. Section 60CC(4) provides that the Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the Court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. The presumption does not apply if there are reasonable grounds to believe a parent has abused the child or engaged in family violence, and if it does apply, it can be rebutted if the Court is satisfied it is not in the child’s best interests.
If there is an order for equal shared parental responsibility, the Court is then obliged to consider whether a child should spend equal time with each parent (s 65DAA (1)), or substantial and significant time with the non-residential parent (s 65DAA (2)).
In this case, each parent agreed to an intervention order against the other on 10 February 2012. Each is precluded from approaching the other or committing family violence against the other or the child. In each instance though the intervention order is subject to anything permitted by an order under the Family Law Act.

THE ISSUES IN THE PARENTING CASE

It is convenient to consider the issues in this case under the umbrella of the s 60CC considerations, starting with the primary considerations under s 60CC(2), which contain twin considerations.
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I am satisfied that the child has a meaningful relationship with both of her parents. That is clear upon the independent evidence of the expert. It is also clear from his evidence that the child is primarily attached to her mother, with whom she has always lived.
Although the father largely embraced Mr L’s report, saying it was “one of the best reports” he had read, he was still adamant that Mr L was wrong on the question of the child’s attachment.
The father says that the child was always primarily attached to him. He described a profoundly dysfunctional relationship between mother and baby in the early part of the child’s life, before separation. He talks of the mother’s bond with the child really only improving in the latter part of 2011, so that in his view the parents now have “an equal bond” with her. I shall return to what more he says about that. For present purposes, I note that I accept the expert’s opinion as to the child’s primary attachment to her mother.
I also accept Mr L’s opinion that the child has “a secure and robust father-daughter bond”. The mother did not seem to dispute that. She was forthright in wondering about any good in the father’s parenting, based on her own experiences, but she was prepared to accept that the child should at least spend one day per week with him. As she said in opening the case, she now accepted it was “supposed to be”.
The Family Law Act makes it clear that the primary consideration of the benefit to the child of a meaningful relationship with both of the parents needs to be weighed equally with the need to protect the child from physical or psychological harm or abuse. In this case each parent makes allegations against the other.
The mother talks of a history of controlling, abusive and at times violent behaviour by the father towards her, and sometimes the child, and expresses the substantial concern that in the father’s care, the child is emotionally abused because of his very negative attitude towards the mother, which she believes he conveys to the child. She also has some other concerns as to his daily care of the child, and that the child is tired and stressed from the amount of time she spends with him.
The father on the other hand raises very serious concerns as to the mother’s treatment of the child. He describes not only a woman who was consistently violent towards him and the child when they were together, but one who continues to be a major threat to the child. According to him, she has threatened to harm and even kill the child, and has deliberately hurt and injured her on a number of occasions since separation.
These various allegations are so intertwined with considerations as to each parent’s capacity to take care of the child, and their capacity to facilitate the other’s relationship with her, that I shall analyse the detail in that context.
In that light I turn to the additional considerations.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Given that the child is only three and a half years old, understandably her views have not been specifically sought. Mr L however confirmed that the child is “very secure and quite comfortable” in the care of both parents.
He described the child as of a “slightly cautious or introverted temperament”. He said it was particularly noticeable at her mother’s home, where she took a good 20 to 25 minutes sitting in her mother’s lap before she would engage with him at all, gradually becoming prepared to play.
With her father however, when Mr L observed them at a play centre, the child engaged much more quickly. Mr L said it was partially because she recognised him after the meeting at her mother’s home, but also in part because her father provides “very direct encouragement for her to be more exploratory”.

Mr L said the difference in approaches to her parenting probably operates to her benefit, both parents providing security and encouraging growing autonomy. He reiterated in his evidence that what he described as the mother’s comforting, reassuring, coddling parenting style, was well complimented by the father’s challenging and activity based style.
Otherwise, Mr L observed a changeover at the police station. He observed that the child experienced some separation anxiety. He heard her crying as she went into her father’s care, but within two or three minutes of her mother’s departure, she had settled and was sitting happily in her father’s lap, engaging in chatty conversation with him.
Mr L emphasised, in his report and in his evidence, that the parents need to remain focussed on managing that anxiety with the strategies that he set out in his report, “rather than … simply attributing blame for it to some sort of good parent/bad parent dynamic.”
(b)the nature of the relationship of the child with:
(i)     each of the child’s parents; and
(ii)    other persons (including any grandparent or other relative of the child);
(f)the capacity of:
(i)     each of the child’s parents; and
(ii)    any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)     the order is a final order; or
(ii)    the making of the order was contested by a person;
These considerations are at the heart of the case. The parents are deeply polarised. As noted, they are each very critical of the other, each alleging that the other parent was violent to them, and violent to the child, during the relationship. In my view, neither is without their fault in what was clearly a very unhappy and volatile relationship.
The father’s affidavit and evidence was full of allegations that the mother was physically, emotionally and financially violent towards him. He claimed that she regularly slapped, kicked, punched, spat on, scratched and attacked him. In his affidavit, he swore that she was never with him “for longer than an hour without having an explosive turn of mood.” He gave examples of the mother breaking his personal belongings, of two incidents where she cut up his clothing, and of incidents where she destroyed his laptop and mobile phone.
The father has consistently alleged that the mother threatened to kill him if he did not bring her to Australia and marry her. He said that he took the threats seriously in light of her telling him that she had “friends in the … Mafia”. He said he also believed her family was involved with the Mafia.
The father alleged that while they were together, the mother was also violent to the baby. He said that in February 2009, when the child was about six weeks old, the mother became angry and threw her across a couch, before punching both the father and the child, and “crow-pecking” the child’s head.
He said there was an incident in April 2009, when the mother stabbed a kitchen knife into a wall, before charging at him and the child.
He alleged that during the relationship, the mother “deliberately and regularly” screamed into the child’s ear, in order to make her cry.
For her part, the mother alleged that the father was physically violent, as well as unpredictable and emotionally abusive during the marriage.
She described a marriage where she experienced the father’s unreasonable anger attacks, and physical violence, including being hit while she was holding the child.
She described three particular incidents.
First, she swore of an incident in February 2009, saying that the father attacked her while she was breastfeeding six-week-old S. She said that the father pushed her in the head and smashed her glasses. The police attended.
She said that a few months later, he hit her in the face, again while she was holding the child. Again the police attended.
She swore that in December 2009, there was an incident at a cemetery in Queensland, when the father, the mother and the child were visiting the father’s brother’s grave, with the paternal grandmother. There was an argument and, according to the mother, the father hit her in the face, while she was holding the child, causing her to fall with the child. The father denied that.
She also said he involved the child in their arguments by, for example, grabbing her hands and screaming at her when she was about six months old, “Are you gonna be a bitch like your mother?” She said that he frequently pushed her when she was holding the baby.
She described his unpredictable anger attacks in a way that made her worry about the child’s safety. She described him as not caring about the child and that he “hated her as me”.
Everything the parties have set out in their affidavits, that they have said in evidence, reported to experts, or written in correspondence that I have seen, makes it very clear that they were ill-suited, had profound relationship problems and very poor communication, and that they were extremely unhappy, even from early in their short relationship, and it seemed to deteriorate further from there.
I am satisfied that the relationship was chaotic, and that the police were called to the home something like five times in the course of 2009. It seems that at different times one or other of the parents was the one who called the police. There have been intervention order proceedings in the past. Recently, each parent obtained an intervention order against the other, lasting until 2026.
Neither parent was sufficiently unassailable in their evidence that I can say that he or she was the only one giving a fully truthful account on this issue.
My concerns about the veracity of the father’s account of the history arise from aspects of that history that simply do not commend themselves, and upon what I regard as exaggerated and unreliable accounts given by him. I shall deal with them as relevant.
Overall, I found the mother, of the two, a little more flexible, a little more willing to make concessions, and less prone to starkly exaggerated claims. I shall return to examples of her concessions. However some of the denials made by her, in particular in relation to parts of her own history, did not ring true. I shall also deal with them as relevant.
From the first day of the LAT proceedings, the father was profoundly critical of not only the mother’s parenting of the child, but every important aspect of her past life.
He has always said that she was involved in an escort service, prostitution, and an organised crime group.
He has consistently said that she “self-impregnated”, by taking his sperm from her chest and inserting it “with her fingers into her vagina”, so as to trick him or deceive him into her pregnancy with the child.
He has consistently said that she married him only to obtain Australian citizenship, and that he married her only under duress. Although he withdrew his annulment application in the course of the hearing, after I had made observations as to the strict law of duress, and highlighted the difference between personal pressures that someone might feel and a legal definition of duress in this context, nevertheless he maintained that he had in fact married the mother under duress.
There were hints in email correspondence that the husband said he received from the wife, early in their relationship, that she might have been at least in some way involved in some sort of escorting work. In an email dated 6 December 2007, annexure “L” to the father’s trial affidavit, she purportedly wrote:
At these days i do not ‘meet’ anybody only you (!) i m not bich. Now i ve got enough opportunity to earn money easily in other ways. I ve got chinese friend that helped me a lot when i was stuped, so i should pay in return (as you said, right)/ that day, when i worn like prostitute (you said that!) i just helped him to meet VIPs, i mean only accompany and TALK (without sex) I wont do it again, cuz he stayed in Beijing only for a few days. I really do not fuck around and it really hurts when you say: ‘//take his money and disease and shove it// or // ifuck you!//’
The mother denied that the email came from an email address that belonged to her. The address was “…”. It was recorded as from “Ms G” (G being a nick-name of the mother). It was signed off with the mother’s first name.
I reject her account that the father simply fabricated the email. It is predominantly in her style, saying things she says elsewhere, and would require an uncanny skill to weave in only small additional details to achieve a negative impact on this litigation.
Moreover, in an email dated 13 February 2008, to the father from the same address, purportedly from the mother in response to various allegations he was making against her, she seems to be referring to the address of “…” as one of her “work-chat programs”. In that email she says:
I never did escorting (isnt that obvious that i ve got a lots of opportunities to earn money using my brain not body?...)
It is unlikely the father would have written that. It is more likely it is her email, that “…” was an email address she sometimes used, and there were some mixed messages as to whether she had any contact at all with escorting.
The material however cannot lead me to a definitive finding that she had an entrenched involvement in escorting work, nor that she was a prostitute. Her frustration at those allegations by the father was evident from very early in the relationship. Consistent themes of his distrust, and his belittling comments about her, come through from the earliest correspondence. Although in this case he invariably included only her replies to emails sent by him, without attaching his original emails, it is apparent from the tenor of her responses that she was exasperated by his repeated suspicions and accusations, even in the earliest months of their relationship.
He also asserted that she was imprisoned in China for prostitution. Her explanation, that the Chinese authorities kept her at a police station one day, while an issue with her passport was sorted, was entirely plausible, and appeared to be supported by her contemporaneous email explanation to him when he was making accusations on the topic.
Similarly, apart from his assertions, there is no independent evidence that she had or has any connection with an organised crime group.
As to threats by the mother since separation, it became clear that she had sent the father several threatening text messages. She had denied it, but when confronted with several text messages, she conceded then that she had probably been upset and said for example that he “would regret the day [he] was born”, or words to that effect in two different text messages. Again, his own text messages in the sequence were not presented.
As to the father’s allegation that she “impregnated herself”, the mother has consistently denied it. I am not sure of the science or the feasibility of what he suggested. There was no evidence about it. I can only refer to the probability that the child was conceived, as the mother maintains, by conventional impregnation. What is apparent in any event is that the result of that impregnation is now a three-and-a-half-year-old child who is dearly loved by her father as well as her mother. It is apparent that it has caused the mother exasperation that the father continues to claim that she made herself pregnant in that way, and must have been upsetting when, in 2009, the father suddenly sought a paternity test, which suggested that at least at that time, he was questioning that he was the child’s father. It was never made clear as to how that questioning sat with his version of her self-impregnation.
The father’s allegations about the mother’s irreputable past overlook that when he met her in China, she was a young woman of about 24, who had studied for a number of years at university in Europe, was perfectly fluent in Russian, Mandarin and English, and that she worked in China in the international trade area. In any event, it would be natural to note that whatever he believed about her, he still married her after that. This is where his argument of duress comes into play.
The claim of duress simply does not add up.
First, it is apparent from the emails to which I have referred, that on many occasions the mother was upset by the father’s behaviour and allegations, and was complaining about that to him. She was also expressing heart-felt feelings for him. The duress he refers to is not apparent from those communications.
Secondly, the father had many opportunities not to go ahead with the marriage. Before the parties returned from China to Australia, they visited the mother’s family in Europe. It was apparent that he could have left without the mother at any time. He said that he did not have that choice because of his belief that the family were involved with organised crime, and that on one occasion he saw the mother’s father with a gun. She vehemently denied that.
The father conceded that he went to the airport to leave without the mother, but called her from the airport to ask if she was coming with him. That is not the action of a man under duress, and her account that she agreed to join him once he assured her he wanted her to, was the most probable one. He agreed he “proposed” to her after that, with a ring, albeit he emphasised it was a very cheap ring.
He said that back in China, and then in Australia, the duress continued, and he did not want to marry the mother. He was however, even on his own case, paying various substantial amounts for the parties not only to move themselves and their belongings to Australia, but also to assist her in various visa applications.
The father said that, back in Australia, he changed his surname from “Weston” to “Henty”, effectively to buy time before the marriage. I find that a disingenuous explanation. It is clear that, as the mother has said, he has a poor relationship with his father. He denied that, saying that they had a “good relationship”: that they were “Facebook friends”. That struck me as a strange definition of a good relationship between father and son. It transpired that they had seen each other very rarely in very many years. The mother’s explanation that the father blames his father for his brother’s distress and ultimate suicide may well be a proper explanation. In any event, I was certainly not satisfied that he had changed his name to slow down the marriage. The marriage occurred within only a matter of a few months after their arrival in Australia.
The small wedding was organised by the father, as was a lunch that day. Before that, he had taken Ms Sullivan to meet with his mother. His mother had written a very nice letter to Ms Sullivan’s mother about the impending marriage.
The evidence simply did not support that in the lead up to the marriage there was any duress whereby the father could not exercise his free will to stop the marriage. He may or may not have had the concerns he expresses that unless they married, he would not see his unborn child, or that she would be born in a Siberian winter – as he said the mother had threatened – but such concerns are well short of duress.
I note too that contrary to the father’s argument that the mother put him under duress to marry her, solely to obtain a visa to live in Australia, as soon as they separated, she made it clear that she wanted to return with the child to Europe. In fact, he gave them money for their tickets. And, when they had fought in December 2009 at the brother’s grave site, he and his mother drove Ms Sullivan and the child to the airport for them to return to Europe. I accept Ms Sullivan’s evidence that the only reason she did not leave at that point, was because the child did not have a visa. I accept that the only reason the mother did not leave thereafter, was that the father had obtained a Watch List order to stop her.
Just as there are themes that have persisted in the father’s case, revolving around deep and harsh criticisms of the mother, she has equally maintained a theme as to his very poor mental health. It was not supported by the expert evidence.
In August 2010, each party was assessed by an independent forensic psychiatrist, Dr K. Dr K found that neither parent suffered any psychiatric illness or mental disorder.
As to the mother, Dr K said that she did not “give the slightest evidence of psychiatric disturbance”. He said there was nothing in her presentation to describe her as other than a “perfectly adequate” parent.
When he saw the father, before he had seen the mother, Dr K said that nothing “should stand in his way of being an effective and appropriate parent” although he described a “rather obsessional personality structure”. After he later saw the mother, Dr K’s opinion was that he was “sure much of the relationship problems depended upon the obsessional aspects of [the father’s] personality.”
Dr K expanded upon that in his supplementary report (dated 24 August 2010) when he said:
We not uncommonly find that obsessional/controlling men become somewhat paranoid about the behaviour of their partners and they are always disqualifying and critical and can be quite devastating to the self-image of the partner.
People who have this obsessive personality structure are often very intolerant and very critical and have difficulty being close to people and difficulty in intimate relationships.
Dr K said that he did not think there was enough material to say that the father has “a formal paranoid disturbance”, but he added:
It is probably worth keeping in mind that people with this obsessional personality structure often have difficulty in terms of coping with a small child and their expectations of conformity on those small children is often unrealistic.
Although Dr K said that “may well apply” to the father, he had properly noted in his report that he had not seen the father with the child or met the child.
In evidence, when told of the father’s very serious allegations that the mother has deliberately hurt the child, Dr K said that in the absence of a finding to that effect, then it is “a worry”, and suggests “very grave trouble” relating to the mother and having a good stable relationship with the child. Nevertheless, Dr K has remained clear in his evidence that the father does not suffer from a mental illness.
Although Dr K’s evidence does support that the mother would have found the father’s personality structure very difficult to deal with, based on this evidence, her persistence that he is in fact mentally unwell is not sustainable.
Certainly, the father has had difficulties in his own family history. It seems that his younger brother committed suicide some years ago. There were references to that young man being the victim of Mr Henty’s father’s sexual abuse. I can make no finding about that. I do note however that Mr Henty did change his surname and moved to live away from this country for a substantial period. Again I cannot make definitive findings about that, but when the mother describes those actions as part of him distancing himself from his family, there is that possibility. I cannot put it higher than that, and certainly now he does have a relationship with his mother who has supported him in this case.
So in summary, so far as the history is concerned, I cannot make a definitive finding that only one party was responsible for the volatility in their relationship. The police were involved a number of times. It suggests there were incidents of violence. The mother admits some violence on her part (I shall return to her concessions), but the father does not. Although not all her evidence as to her history has been forthright, it has been more so than his assertions about her, and about the circumstances surrounding the marriage. That may cast light on who is more honest about the source of the violence in the relationship but as I have said, I cannot be certain about it.

That brings me to the period since separation and each parent’s current concerns about the other.
Although each parent expresses significant fears about the other parent’s capacity to care for the child, the father’s allegations are by far the most serious.
The father is of the strong and clear view, he says, that with her mother, the child will be physically injured, that is deliberately injured.
He said he bases that view first on her violent behaviour towards the child while they were together. That is of course denied by the mother.
Mr L was clear in his professional view that there was nothing at all in the relationship between mother and child to suggest that sort of background between them.
The father said that he based it also on threats the mother had made that she would hurt or kill the child, or that “bad things would happen” if he pursued the court proceedings. She may well have made such threats. She admits to some said in temper. It fits with the volatility in their relationship. It does not excuse them. Even in the throes of arguments, or the frustration over litigation, such threats should not be thrown about. To any extent that the mother has done so, it is wrong.
The father alleged four specific instances where, since separation, the mother has deliberately injured their daughter. He said that these acts occurred in connection with important Court dates. He sees that as the culmination of the mother’s threats.
One was as recent as February 2012. The child jammed two fingers in a door whilst in her mother’s care. The father was adamant that the mother deliberately closed the door on the child’s fingers, as this court case was nearing.
He said that in August 2010, around the time of the psychiatric assessments, she deliberately sprained the child’s wrist.
He said that in July 2011, shortly before the Family Report update, she texted him while he was driving off with the child in the car so that he would be distracted and have an accident.
And finally, he said that around the time of the first Family Report interviews, in approximately 2010, he saw the mother deliberately pinch the child at changeover to make her cry.
He could give no explanation as to why she would do those things close to interviews for reports, assessments or hearings when, as well as being cruel to her little daughter, they would also be contrary to her own interests. And it seemed unlikely that she would in any way try to make him have an accident while the child was in the car, but he persisted in his belief that it was her intent.
There is no reasonable basis for the father to ask the Court to believe that the mother has deliberately injured the child, or as Mr L put it – if her behaviour conformed to the father’s allegations – that she had “tortured” the child. And, given the amount of time he proposes that the child shall continue to live with her mother, it simply does not give any credence to a genuine concern on his part that his daughter is being physically mistreated in that way.
Again, it was clear from Mr L’s evidence that this little girl has a close, loving, secure relationship with her mother, and that her primary attachment is to her, without any suggestion whatsoever that she has been the victim of such heinous treatment. Mr L’s favourable assessment of the mother and her relationship with her daughter however, did not dissuade the father from the view that she was acting in this evil manner, even though, as noted, he had volunteered that it was “a good report” save only on the issue of his daughter’s attachment to him.
The mother is concerned that the father is extremely negative about her, particularly in the child’s presence. She says that since January this year, every time the child comes back from the father’s care, she says things like “Papa said Mama hit baby [S]”, “Papa said that Mama is bad” and “Papa said that Mama don’t love [S]”.
The father denied speaking negatively about the mother to the child. He said that until recently he never discussed the mother at all. Recently, he has asked basic questions, along the lines, “Did you have a nice time?”, without prying in any way. He certainly denied the abusive behaviour of confusing and disturbing the child by talking down her mother to her.
It is apparent from the father’s affidavit material, from each part of the proceedings before me, and from his evidence in Court, that he sees no significant good in the mother’s parenting, and really cannot entertain that she has a beneficial place in the child’s life.
I am satisfied that there is a very high probability that he has talked down the mother to the child. It fits with his immutable views. It fits too with the particularly nasty allegations he has made that the mother deliberately physically hurts the child, allegations that I find are without foundation.
The mother is concerned that the father cannot care properly for the child’s day to day needs. She said the child returns from her time with him tired, hungry and aggressive. She said that a while back the child said she did not “pee” while with her father, and also that she came back constipated. The mother concluded that the child was not relaxed with her father.
It is quite likely that each parent has a different routine with the child, but there was nothing to suggest that the father cannot attend to the child’s needs. At least so far as Mr L’s observations were concerned, he is a capable father when it comes to meeting her day to day needs.
I note here that throughout the proceedings the father emphasised his experience with teaching and child development. The reality is, he has had very little training at all. His experience with teaching young children is in the context of teaching English as a second language in China and/or Japan, and his educational background in that regard has been in the form of very short “on the job” training. I do not say that to denigrate him in any way. He does have some experience working with children. From Mr L’s report, I can be satisfied that the father has a good capacity to engage with, entertain, and contribute to the child’s education. I am concerned though at the way he has “overblown” his qualifications, and used them quite frequently as a means to “put down” the mother, by claiming a superior understanding of their young daughter’s needs.
In any event, tiredness, hunger or crabbiness after the child’s time with her father could be explained in many ways, not necessarily reflecting badly on him. I am concerned though that if he is critical of the mother, that will be extremely stressful to a child of the child’s age, but I cannot find that the most probable problem is with him meeting the child’s day to day needs. At the same time, I do not find that the mother is fabricating her concerns in this regard. Rather, her anxiety about the child’s care when away from her, is reflected in those concerns.
That brings me to each parent’s attitude to the other. First, the mother is very negative about the father. She was however at least open to some concessions, she was able to rationally explain her concerns, and she did not make rash allegations against him of the magnitude of those he made against her.
When asked about the father’s good points, she could not describe any. At one point she said that she doubts that the father loves the child, and fears that he uses her as a “tool” for “drama” against the mother, explaining that she felt that he would not behave the way he did if he really loved his daughter.
Although that shows an undesirable attitude on the mother’s part in terms of respect for the father as the child’s father, and casts doubt on her capacity to encourage the child’s relationship with him, there were still aspects of the evidence that gave some comfort in that regard.
First, and most fundamentally, she has complied overall with orders. There was a short period when she did not permit the father to spend time with the child. She agreed that was the case, but explained that it was following an incident in mid-2011, when she said the father drove off angrily with the child, who was screaming and distressed, and not properly secured in the car. She did not hand over the child the following weekend. She then took intervention proceedings. There was a period of about a month when she did not produce the child, until the intervention order was made.
I was comforted that the mother’s current proposal is not that the child should spend no time at all with her father, only less time. Although that may not be my conclusion, it does not necessarily mean that she is mischievously trying to exclude the father from the child’s life, so much as trying to reduce the stresses on her.
I note that in failing to recognise good points in the father, the mother did explain that he had only shown her bad points. She was quite forthright about the fact that it was her experience of him that led to her lack of trust, and her incapacity to see any good points. She was quite direct in admitting that she thought it would be “better” if he was out of their lives. She emphasised her fear that he was undermining her relationship with the child, based on comments she said the child had recently made. And the serious allegations he made that she had been deliberately harming the child clearly would not have enhanced her trust in him, or her confidence that he is capable of supporting her role in the child’s life.
Unlike the father, the mother was able to make some concessions against her own interest.
She admitted having slapped him in April 2008. She admitted calling him “bad words” at various times. She admitted to saying inappropriate, even threatening things, when arguing. She admitted cutting up some of his clothes in temper. She admitted stabbing a knife into an ironing board, during an argument, and throwing his mobile into the street.
She admitted that at the father’s brother’s grave site, she said something to him and his mother to the effect that his whole family was “crazy”. That gave me some insight into the fact that she was as likely to “dish out” the abuse, as she was to receive it. It was clearly an extraordinarily insensitive line in that setting.
She was also capable of making at least some concessions in the father’s favour. She was able to concede that the child was now coping better with the routine of the time spent in each household. She was able to concede that the child talks to her about activities that she likes with her father. In passing, she mentioned that she has the father’s photograph on the fridge for the child.
The father’s view of the mother, as a person and as a parent, remains profoundly negative. Although he described the child as “very charming”, “very well behaved” and “very calm”, he was unable to give any credit at all to the mother, with whom the child spends the most time. When asked whether her mother loved her, he first replied “I guess. Maybe.” He later added “I’m sure she does” but could not leave it at that, going on to say that he feared that once the mother is not “matching” him for this final court case, she will “go downhill”.
The father was asked if he could say anything positive about the mother as a mother. Not only did he struggle, but he used it as an opportunity to either deride her, or to promote himself.
As to her good points, he said that she had the ability to give a good first impression, the barb obviously being in the inference that the first impression was not a genuine one.
Otherwise, he concentrated on the “good point”, that she was “competitive”. He explained that it was a good point in the sense that she had “a lot of deficiencies” in her parenting, but as he had tried to set “standards of care” and “good goals” in parenting the child, the mother had effectively mimicked him in order to compete, and that had improved the child’s wellbeing and care.
When describing how charming and beautiful the child was, the father did add a caveat. He said she had “abandonment issues”. His expansion on that related to the period in 2009, when the child was a baby. He said there were frequent occasions when the mother would chase him from the home and leave the baby inside for two to five minutes at a time. It was not a convincing argument that the child suffers any “abandonment issues”. Certainly the expert noted difficulties within a normal range for this little child in handovers, but there was no concern for anything more serious than that. The father’s expressed concern about “abandonment” seemed to reflect his desire to gratuitously criticise the mother, rather than the reality.
The father showed little insight into the strength of his dislike of the mother, and the adverse impact for the child if he is not able to curb his feelings and move on in his life. Mr L made that clear in the 2011 Family Report, suggesting counselling for him. The father said that Mr L had already raised that with him in 2010, and thereafter he saw three experts for several sessions. It was never made clear as to why he saw three different people, nor as to why he had not stayed in counselling. He said that the sessions had helped him realise that “even where there is abuse, there may be love”, or words to that effect. That was just another swipe at the mother, rather than an indication that he had developed the insight he needs to be the best parent to the child.
There appeared to be some positivity in the fact that the father said he believed the mother’s relationship with the child had improved in the last six months. However, even that concession left me with little comfort. He was putting the time at which the mother had formed a “proper bond” with the child as at about August last year, that is, when Mr L last saw the parties. It is when Mr L spoke of the primary attachment with the mother. The father was quick to point out that the bond was not there when the child was small, and he expressed his concern that things would deteriorate after this case. That is, he seemed to be describing a short-term bond, only coinciding with the Family Report. And, in maintaining that the mother has been deliberately causing serious physical injuries to the child, even very recently, it seemed to counter heavily against any genuine acceptance of the mother’s healthy relationship or bond with the child.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
Clearly neither parent has a great deal that is positive to say about the other parent. I cannot be confident that either is capable of positively encouraging the child’s relationship with the other.
As I have noted however, the father’s allegations against the mother are far more significant than vice versa. It would be heinous if a parent were deliberately inflicting serious physical injury on a child. In this case, the father’s allegations, which I find to be unsubstantiated, are themselves heinous. It gives little confidence that in his care, the child’s relationship with her mother would be encouraged, or even facilitated.
I have more confidence that the mother will at least facilitate the child’s on-going relationship with her father. That is based on her conduct in the course of several years now, where she has for the most part complied with orders, even orders to which she has been vehemently opposed.
I am confident that provided the child is well cared for by the father, and he does not undermine her relationship with her mother, then of the two parents, the mother is the more likely to settle into and accept a regime of the child spending substantial time with the other parent.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The child does not have the benefit of extended family close by. Her mother’s family is in Europe. Her father’s mother is interstate and does not spend a great deal of time with her. The father rarely sees his own father. The child’s relationship and time with her parents is very important.
I accept Mr L’s expert opinion as to the child’s attachment to her mother. The consideration of how long a child of the child’s age, with her personality make-up, can spend away from her mother, is therefore a significant one. Mr L said that it would generally be up to two to three days, three days at “the outside”. When he last saw the child, three days would have been the “very upper limit”, given her slightly cautious and introverted manner. I note however that was a year ago.
Mr L is concerned by the conflict between the parents. He is also concerned that the father’s allegations of the mother’s physical abuse of the child – if found to be untrue – and his denigration of the mother, would suggest that it is “unsafe” for the child with her father. Mr L nevertheless maintained the view that it was the behaviour rather than the amount of time spent with the child, that would adversely impact upon her. That is, the damage would be done even in a short time, so there was no point reducing it.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
In this case there is no practical difficulty or expense that precludes the child spending time with, or communicating with either parent.
The mother does not drive. The father has a car. The changeovers have been occurring at the X police station. The mother is easily able to walk to the changeover point. There is no dispute about that arrangement continuing, at least until changeovers may occur at kindergarten or school.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
In this case it is obviously important for the child to have full exposure to the culture and traditions of her European mother, and her Australian father.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The child is only three. She has already been the focus of litigation for a substantial part of her life. It is important that she is able to relax and be a child, enjoy both her parents, and be free from conflict.
As I have noted, living with her mother, she has been able to see her father pursuant to court orders. I would be concerned if her living arrangements are reversed, that the father would continue to raise serious allegations against the mother that would bring the case back to court.

CONCLUSION RE PARENTING CASE

I am satisfied that, although the parents have no affection towards or positive opinions of the other, they do both love the child. It is terrible for her that, despite expert advice and her parents’ attendance at courses or counselling, each parent still struggles to accept that, neither showing a true appreciation of how damaging on-going conflict will be for her.
That said, for now the child is obviously thriving and developing very well. I accept it has been in her mother’s primary care. I accept the expert evidence that her attachment is primarily to her mother. It follows that it is in her best interests to continue to reside with her mother.
A pressing issue in this case is as to how decisions can be made for the child. The ICL changed her position, seeking joint parental responsibility at the start of the case, but sole responsibility to be exercised by the mother, by the end of the case. That change was based squarely on an assessment of all the evidence, and Mr L’s persuasive expert opinion that sadly, the depth of hostility and antipathy between the parents in this case means it cannot be in the child’s best interests to have the parents trying to make decisions together. Already it is clear they cannot agree on a school.

I agree with Mr L. The relationship between the parents was of short duration and poor quality. There is not even a foundation of good communication between them. The child’s interests could not be provided for, if her parents need to agree. There was nothing in the evidence to suggest that any joint counselling would be fruitful. Mr L did not support that as feasible.
I am forced to choose one parent to make the major decisions for the child, so that she is not kept in limbo by her parents’ incapacity to agree. The father’s alternative proposal that, if the parents are not to share the responsibility, he should at least be permitted to make educational decisions, is unworkable. It would leave the decisions for the child fragmented between two parents who are diametrically opposed in every way. In any event, the evidence did not lead me to conclude that the mother would be any less able to cope with that area of decision than any other.
Mr L’s evidence, that parental responsibility should rest with the parent with whom the child is living, is the only logical course open at this stage. Accordingly it will rest with her mother.
I am satisfied that the child has a robust bond with her father. That is to his credit in having built and maintained their relationship, despite his disappointment at the constraint of court orders. It is also to the mother’s credit, that the child has obviously been free to enjoy that important relationship.
Mr L was asked a great deal about how the child’s time with her father could best be configured. It is understandable that from the father’s point of view, as much time as possible with the child is important. It is also understandable that from the mother’s point of view, she does not want the child away from her for longer than she believes the child can cope, given her young age and stage.
Mr L’s expert evidence was effectively sympathetic to both points of view. In his report, he recommended that the child spend each Thursday overnight with her father and then each alternate weekend from Friday to Monday. He recommended holiday time to commence in the 2012-2013 summer break.
Mr L explained his proposed regime on the basis that it enabled the child never to go more than three days without seeing her mother and no more than five days without seeing her father, and she would spend some time with her father on seven days each fortnight, and some with her mother on eleven days each fortnight. It also minimised the number of changeovers.
In Mr L’s opinion, serious attempts by the father to undermine the mother when the child was with him, could occur whether she was with him for a short time or a long time, so he did not see that as too significant a consideration.
Mr L emphasised in several places in his report that he had not heard all the evidence and that much depends on factual findings. It is true that the Court, having the benefit of both the expert’s report and his evidence, but the broader evidence as well – particularly of the parties as tested in cross-examination – is best placed to finally determine the regime most likely to be in the child’s best interests.
I am satisfied that the ICL’s proposal is the appropriate one. It has the child with her father, until the start of the 2013 school year, each week from 10.00am Wednesday to 10.00am Thursday, and each alternate weekend from 10.00am Saturday to 5.00pm Sunday. It reflects the orders implemented in just September 2011, and proposes then that the time will extend from after the start of the 2013 school year, and again when the child starts school. It provides for holiday time then to build up. That accords sensibly with Mr L’s evidence that until the child herself is in a settled regime of school terms, school holidays as such are not a particularly relevant consideration from the child’s point of view.
The ICL’s proposal reflects the need for the child to enjoy her secure and robust relationship with her father. It enables him to spend week time and weekend time with her, and in due course to engage with her kindergarten and school. It minimises changeovers, so far as possible. It reflects and respects the mother’s point of view, which I accept, that the child has started to settle well into this routine. It specifically reflects, as counsel for the ICL said in submissions, the mother’s genuine anxiety surrounding the child spending more time with her father at present.
It rejects however a reduction in his time to just one day per week, as she would have chosen. Given the child’s bond with her father, it is too little. It also rejects the increase in time with her father that he would have chosen. Given the mother’s reasonably based concerns about the child’s time away from her, and the concerns about his attitude to the mother, it would be too much.
I agree with the submissions of counsel for the father that to the ICL’s proposed orders, orders need to be added for the child to be with her father on Father's Day, with her mother on Mother’s Day, and to spend time with each parent on her birthday.
The parents also agree to orders mutually restraining them from removing the child from Australia, and a Watch List order to support the restraint. The father proposed that the child’s passport be kept in the Registry of this Court. I am satisfied, in light of the Watch List order, that would be unnecessary.
I have considered how best to word the Watch List order. I am satisfied that to provide certainty for the authorities who need to implement it, the Watch List order must prevail unless there is a Court order to the contrary. If there is consent, the parties can obtain a simple, inexpensive order. Consent should not be unreasonably withheld.
Counsel for the father at one point submitted that holiday time between the child and her father should be “tried” later this year, to see how it proceeds “on a trial basis”. When I asked counsel how such a trial could genuinely be assessed between these two warring parents, he was, not surprisingly, at a loss for any suggestion. It could not work.
The reality for the child is that, although her parents love her, they have only negative views of each other. I hope that with the conclusion to these proceedings, the parents might find the mental and emotional space, and the insight, to appreciate that they have a beautiful daughter, an innocent in the midst of their conflict, and one who cannot blossom into the healthy, happy adult that both would wish for, if their hostility continues to override her needs.

RELEVANT LEGAL PRINCIPLES IN PROPERTY CASES

These proceedings are brought pursuant to section 79 of the Family Law Act 1975 (“the Act”).
The process of determining the parties’ entitlement is a four-step one. It involves:
·Identification of the property of the parties and an assessment of its value;
·Consideration of the contributions made by the parties, including direct and indirect contributions both financial and non-financial, and contributions to the welfare of the family, including contributions as home-maker and parent;
·Consideration of the circumstances which relate to the present and future needs of the parties, their resources, means, capacities and obligations; and
·A decision that is just and equitable in all the circumstances.
The property issues in this case are of the narrowest compass. Shortly before separation, the parties paid $13,000 by way of a deposit on a property. At separation, the father recouped the deposit. The mother seeks a half share, the sum of $6,500.
There is presently only one extremely modest asset, being a second-hand car, valued at about $4,000, owned by the father. The father used the deposit monies to buy the car. He also bought airline tickets for the mother and child worth about $2,000, replaced the clothing he said was cut up by the mother, paid removal and resettling expenses and paid some of his legal fees.
There are no other assets.
The mother’s parents in Europe own a property that she stands to gain in due course. The evidence about it was sparse. As to when she may inherit it, it is a complete unknown. It may be that the father similarly stands to gain some inherited property from his parents. Again, there was virtually no evidence about that, and it cannot be a feature of any significance in this case.
When it comes to contributions, the evidence is somewhat unclear. I do accept it as probable, however, that the father made the majority of contributions early in what was an extremely short relationship. The evidence satisfies me that he was the one largely responsible for meeting the quite substantial expense of moving the parties to Australia, including fares, the shipment of goods, and various visa applications for the mother.
She said she had some savings of about US$2,000, mostly spent on baby items.
Although the father claims that he was the “breadwinner” while the parties lived together in Australia, I note that the mother was either pregnant or at home with the baby, so I regard each as making equal but different contributions at that time.
There seems to be no disagreement that the parties’ Baby Bonus (about $5,000) and Family Allowance payment (about $7,000) comprised part of the $13,000 deposit monies. It seems that the mother contributed the balance from her savings, but after separation, it was returned to her via the purchase of the airline tickets to Europe.
Looking at the s 75(2) and other factors, I note that the father is 36, and the mother is 29. I heard nothing in the evidence to suggest that either has other than good health.
The father works as a business manager. He works three days’ per week, earning about $600 gross.
The mother presently receives social security, and $33.33 per week by way of child support from the father. She supports herself and the child from that amount. She hopes to work part-time once the child is at kindergarten. She is optimistic that she will obtain good employment, given her fluency in English, Mandarin and Russian, experience in international trade work, and her qualification from undertaking a recent course in the international trade area. I am satisfied that at her age, and with her skills, she is well positioned to obtain good employment.
Under s 75(2)(o) of the Family Law Act, I am entitled to consider “any fact or circumstance which …the justice of the case requires to be taken into account”. I take into account two factors under that heading.
The first is that I accept at the end of the marriage the father had to replace a substantial number of clothes, cut by the mother in temper. He reckons the expense at $8,000. She concedes cutting up some of his clothes but to a lesser extent. I cannot make a definitive finding about it, but I am satisfied that in weighing up the very small sum of money in dispute, the clothing was an asset, wasted by the mother’s wanton and deliberate action, and should be taken into account.
The second factor is that the only existing asset is the second-hand car, bought by the father. Of the two parents, he is the only driver. The mother says she intends soon to undertake the written test for a Learner’s Permit. It is not clear as to whether and when she will gain a Driver’s Licence. It is the use of that car that has enabled the regime whereby the child spends time with her father, to continue. The changeovers occur close to the mother’s home so that it is within easy walking distance. It is the father who does substantial driving in order to have it take place. The loss of that car would be a very significant loss indeed.
When I consider the justice and equity of property orders, I note that of the $6,500 that the mother would say was due to her as her half-share of the deposit monies, she received about $2,000 in the form of airline tickets. If I consider the balance of $4,500, and take into account the father’s greater contribution early in the relationship, his expense in replacing clothing, and the impact of losing the one modest asset, the motor vehicle, I reach the conclusion that justice and equity will be achieved if I dismiss the wife’s application without any orders.

THE ORDERS

The parenting and property orders that I propose, subject to any submissions as to form, are as follows:
16.That the mother shall have sole parental responsibility for the child S Henty born … December 2008.
17.That the child shall live with the mother.
18.That subject to paragraph 4 of these orders, the child shall spend time and communicate with the father as follows:
(a)    Until the start of the 2013 school year:
(i)Each week from 10.00am Wednesday to 10.00am Thursday;
(ii)Each alternate weekend from 10.00am Saturday to 5.00pm Sunday;
(b)    Upon the start of the 2013 school year:
(i)Each week from the end of kindergarten Wednesday to the start of kindergarten Thursday;
(ii)Each alternate weekend from the end of kindergarten Friday to 5.00pm Sunday;
(iii)For the second and fourth week of the December/January school holidays commencing at 10.00am on Monday of the second and fourth week and ending at 10.00am Monday of the third and fifth week thereafter;
(c)    Upon the child commencing school:
(i)During school terms, each week from the end of school Thursday to the start of school Friday and each alternate weekend from the end of school Friday to the start of school Monday;
(ii)For the first six nights of the first term holidays of the child’s first year at school commencing at the end of school on the last day of the school term and ending at 10.00am on the seventh day thereafter;
(iii)For seven nights in the second term school holidays of the child’s first year at school commencing at the end of school on the last day of the school term and ending at 10.00am on the eighth day thereafter;
(iv)For seven nights in each of the first, second and third term school holidays thereafter commencing at the end of school on the last day of the school term and ending at 10.00am on the eighth day thereafter;
(v)For the first part of the December/January school holidays, at the end of the child’s first year of school and thereafter, from the end of school on the last day of term to 5.00pm on the 16^th day thereafter;
(vi)From 4.00pm Christmas Eve to 4.00pm Christmas Day in the year that the child commences school and each alternate year thereafter;
(vii)From 4.00pm Christmas Day to 4.00pm Boxing Day in the year after the child commences school and each alternate year thereafter;
(viii)By telephone each Tuesday with the mother to facilitate such telephone calls at 7.00pm; and
(d)    On special occasions being:
(i)On Father's Day from 9.00am to 5.00pm, if Father's Day falls outside time otherwise to be spent with her father; and
(ii)On her birthday for three hours from the end of school on a school day and from 10.00am to 1.00pm on a week-end or school holiday day, if her birthday falls outside time otherwise to be spent with her father.
(e)    Changeover shall take place at X Police Station, unless these orders provide for changeover to take place at the child’s kindergarten or school;
(f)     That when the father is spending time with the child in school holidays pursuant to these orders, his other week-end and week-day time is suspended.
19.That:
(a)   If Mother’s Day falls outside time the child otherwise spends with her mother pursuant to these orders, then from 9.00am to 5.00pm on Mother’s Day she shall be with her mother; and
(b)   If the child’s birthday falls outside the time she otherwise spends with her mother pursuant to these orders, then on her birthday she shall be with her mother for three hours from the end of school on a school day and from 10.00am to 1.00pm on a week-end or school holiday day.
20.That each of the mother and the father shall be restrained from using physical discipline on the child.
21.That each of the parties shall keep each other informed of any change of telephone number or address, within 48 hours of such change.
22.That each party shall be restrained from denigrating the other in the presence of or hearing of the child.
23.That each party shall inform the other as soon as practicable, in the event of the child suffering a serious illness or accident requiring medical treatment, whilst in the other’s care.
24.That the mother shall authorise any kindergarten, child care centre or school attended by the child to provide the father with any information sheets, newsletters, order forms for photos and any other material usually provided to parents.
25.That until further order the father and mother by themselves, their servants or agents be and are each hereby restrained from removing, attempting to remove, or causing or permitting the removal of the child S Henty born … December 2008 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the said child on the AIRPORT WATCH LIST in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court.
26.That the solicitor for the father shall be responsible for effecting service of a sealed copy of this order upon the proper officer of the Australian Federal Police and the Marshal of the Family Court of Australia who are requested to give effect to the order.
27.That the mother’s application for a property settlement shall be and is hereby dismissed.
28.That the father has leave to withdraw his annulment of marriage application, and all other outstanding applications are hereby dismissed.
29.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
30.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

I certify that the preceding one hundred and eighty three (183) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 22 June 2012.

Associate:

Date:

[2012] FamCA 470

22 June 2012

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Costs

Jurisdiction

Procedural Fairness