Hillier and Olly (No 2)

[2016] FamCA 955

FAMILY COURT OF AUSTRALIA

HILLIER & OLLY (NO 2) [2016] FamCA 955

FAMILY LAW – PARENTING – Whether the father should be permitted to spend any time with the child – Where the father has been physically and verbally abusive since separation – Where the mother seeks an order the father spend no time with the child – Where the father lacks proper insight into the effect his behaviour has on those around him – Where the father is required to undergo a period of therapy prior to the recommencement of supervised contact with the child.  

FAMILY LAW – PROPERTY – Where the mother earned more income than the husband during the 10 year relationship – Where the superannuation interest determined separately - Where the father made non-financial contributions by undertaking building renovations to the parties’ property – Where a further adjustment in favour of the mother in light of post-separation conduct of the father considered just and equitable. 

Family Law Act 1975 (Cth) 60B, 60CA, 60CC, 61DA, 65D, 65DAC

Coghlan v Coghlan (2005) 33 Fam LR 414

APPLICANT: Ms Hillier

RESPONDENT: Mr Olly

INDEPENDENT CHILDREN’S LAWYER: Peter Williams

FILE NUMBER: BRC 2234 of 2015

DATE DELIVERED: 11 November 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 10, 11, 12 and 13 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bunning

SOLICITOR FOR THE APPLICANT: Pullos Lawyers

COUNSEL FOR THE RESPONDENT: Mr Galloway

SOLICITOR FOR THE RESPONDENT: Jones Mitchell Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms SF Downes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Williams Lawyers

Orders

IT IS ORDERED

Parenting

1. That all previous parenting orders and any previous parenting plans are discharged.

2. That with the consent of the father the child, B born … 2010, (“the child”) shall live with the mother.

IT IS ORDERED UNTIL FURTHER ORDER

1. That subject also to paragraph (4) of these Orders, the mother shall have sole parental responsibility for making decisions on all “major long-term issues” (as that term is defined in s 4 of the Family Law Act1975 (Cth) (“the FLA”)) in relation to the child, save that the mother shall, prior to making the sole ultimate decision about any such issue:

   (a)Inform the father in writing of the decision she is wanting to make;

   (b)Seek the father’s written response in relation thereto;

   (c)Consider by reference to the child’s best interests any such response received from the father prior to making any such decision; and

   (d)Advise the father in writing as soon as reasonably practicable of her ultimate sole decision

2. That notwithstanding paragraph (3) of these Orders, the mother shall not change the child’s name or place of residence in a way that makes it significantly more difficult for the child to spend time with the father, without the prior written agreement of the father.

3. That the father shall continue to attend upon Ms H, Family Therapist, as agreed between him and Ms H, at his expense, and work with Ms H towards improving his insight into the effect of his attitudes and behaviour towards the mother upon his co-parenting relationship with the mother and his parenting relationship with the child.  

4. That as part of the family therapy the father is engaging in with Ms H, the mother shall make herself and the child available to attend upon Ms H at Ms H’s request, at the father’s expense.

5. That when Ms H considers that the father has reached a point at which it is in the child’s best interests to commence spending supervised time with him she shall provide a brief written report to that effect to the Independent Children’s Lawyer (“the ICL”) and to the mother and/or her solicitors (if they are still acting for her) and to the father and/or his solicitors (if they are still acting for him).

6. That if the parties are able to reach agreement as to the terms upon which the child’s time with the father is to commence on a supervised basis they shall present a signed draft of proposed orders to my Associate for my consideration, but in default of agreement, the matter shall be listed for further hearing before me at either the father’s or the ICL’s application, such application to be brought to my attention for listing.

7. That in the meantime, each of the parents shall take all steps that are necessary, if they have not already done so, to register with the Relationships Australia run Region I Children’s Contact Service situated at Suburb J, with a view to potentially starting supervised sessions between the father and the child, pursuant to further order of this Court, at some point in 2017.

8. That the father shall also attend and complete a specialised men’s domestic violence behaviour change program, run by an organisation such as the Domestic Violence Prevention Centre Region I Inc, such program to be commenced by the father within three calendar months of the date of these Orders, with the father to provide evidence, such as a Certificate of Completion, of having completed that course to the ICL and to the mother as soon as practicable after he has completed it.

9. That the father is restrained from harassing, intimidating, threatening or assaulting the mother and from going within 100 metres of the mother’s residence or place of employment.

10. That the father is at liberty to attend parent and teacher interviews at the child’s school and to speak directly with the child’s teacher and school principal concerning the child’s academic progress and school attendance, save that he shall arrange his attendance at such events or appointments so as not to come into contact with the mother or the child, and the father is at liberty to obtain from the school copies of any reports, school photographs or other documents that the school administration usually provides to parents of its students, with the mother to inform the school of this paragraph of these Orders as soon as practicable.

11. That each parent shall provide the other parent with his and her postal address and email address and shall inform the other of any change to those addresses within twenty four hours of any such change.

12. That the father shall be entitled to write and send cards, letters and gifts to the child at the mother’s postal address and the mother shall be entitled to open any such cards, letters and gifts and assess their appropriateness to be read or given to the child and in the event that she determines that any such card, letter or gift is inappropriate to be read or given to the child, she shall advise the father in writing of that decision and the basis for it within seven days of such determination.

13. That the mother shall keep the father informed as to any serious illness or accidental injury suffered by the child.

14. That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), 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 to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

15. That in any event the competing parenting applications shall be listed before me for further mention at 9.30 am on Tuesday, 18 April 2017.

IT IS FURTHER ORDERED

Property alteration

1. That the mother retain as her sole property absolutely, the following:

   (i)The Japanese motor car in her possession;

   (ii)All household furniture, jewellery, and any other items of personal property in her possession or control;

   (iii)Subject to (iv) hereof, money standing to her name in any bank or other financial institution;

   (iv)The sum of $184,716 of the funds held in the Trust account of Pullos Lawyers (plus the correct share of any interest earned on the total of $239,958 (if that principal earned any interest for the mother and the father) calculated in the same proportion as the division of that principal sum as to 184,716/55,241).

2. That the father retain as his sole property absolutely, the following:

   (i)       All of his shares in the company, F Pty Ltd;

   (ii) All household furniture and any other items of personal property in his possession or control;

   (iii)Subject to (iv) hereof, money standing to his name in any bank or other financial institution;

   (iv)The sum of $55,241 of the funds held in the Trust account of Pullos Lawyers (plus the correct share of any interest earned on the total of $239,958 (if that principal earned any interest for the mother and the father) calculated in the same proportion as the division of that principal sum as to 184,716/55,241)

3. That none of the money retained by the father as his pursuant to paragraph (19)(iv) hereof be paid to the father or his solicitors out of Pullos Lawyers Trust account pending the hearing and determination of any costs application to be made by the mother in these proceedings or earlier order of this Court permitting such payment out.

4. That the father shall be solely responsible for and indemnifies the mother against any liability for any and all debts owed by him.  

5. That the mother shall be solely responsible for and indemnifies the father against any liability for any and all debts owed by her. 

6. That pursuant to s 90MT(1)(a)of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the mother’s ( Ms Hillier) interest in the Q Super superannuation fund, the father (Mr Olly) shall be entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount of $56,042.80 and that there be a corresponding reduction to the entitlement the mother, Ms Hillier would have had in the Q Super superannuation fund but for this order.

7. That the trustee of the QSuper Superannuation Fund (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

   (a)Calculate, in accordance with the requirements of the Family Law Act 1975, the entitlement awarded to Mr Olly in the immediately preceding paragraph of this Order; and

   (b)Pay the entitlement whenever the trustee makes a splittable payment from Ms Hillier in the QSuper superannuation fund.

8. That this Order has effect from the operative time and the operative time is four (4) business days after a sealed copy is served on the Trustees of QSuper.

9. That within 7 days after the father, Mr Olly, receives the payment split notice from the trustees under regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the father must do all things and execute all documents (including making a request pursuant to regulation 7A.05 of those Regulations) for the fund to create a new interest in his name in the fund.

10. That within 7 days after the mother, Ms Hillier receives the payment split notice from the trustees under regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994 she must do all things and execute all documents to make a request pursuant to regulation 7A.06(2) of the Superannuation Industry (Supervision) Regulations 1994, for the trustees of the fund to roll over or transfer the transferable benefits of Mr Olly to a fund nominated by him in writing.

11. That within 7 days after the father, Mr Olly, receives the payment split notice from the trustees under regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994 he must do all acts and execute all documents to request the trustees to roll over or transfer his interest in the fund to another regulated superannuation fund, an approved deposit fund, an exempt public sector superannuation scheme, or a retirement savings account specified.

Note: The form of the Order is subject to the entry of the Order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hillier & Olly (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2234 of 2015

Ms Hillier

Applicant

And

Mr Olly

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. B is six years old. She lives with her mother and has done since her parents’ de facto marital relationship ended in early 2014. Her parents had lived together for nearly ten years, the last four of which the child was with them. The child’s father took their separation pretty badly and he has not been able to communicate with the child’s mother in a respectful manner at all since separation. Indeed, early after separation, he was physically violent to the child’s mother and her new partner. In fact, he pleaded guilty in the Magistrates Court to a criminal charge of assaulting the mother’s new partner. He was also made the subject of a family violence order protecting the mother and has, because of the impact of his conduct on the child and the risk of it causing her emotional harm, had serious restrictions increasingly placed on the time that the child spends with him.

2. Indeed, at times, so low has the father been feeling that he has not even taken advantage of the opportunity given to him by Court orders to spend time with the child supervised at a children’s contact centre. He attributed this to the strength of his views about what is right and what is wrong in respect of his parenting relationship with the child. Of course, not even this Court can make him spend time with his child if he does not want to. Whatever may have been the case in the past though, the father came to the trial asserting that he was now very much wanting to spend time with the child.

3. About a year after their separation, after experiencing increasing conflict and unpredictability in the co-parenting relationship with the father, the mother commenced proceedings in the Federal Circuit Court for parenting orders, as well as property adjustment orders.

4. The mother first sought orders conferring equal shared parental responsibility for the child on her and the father. She sought orders that provided for the child to spend unsupervised time with her father on a daytime only basis until a family report and a psychiatric report became available. The proceedings were quickly transferred to this Court soon after they were commenced. They were even placed in this Court’s Magellan list because the father made allegations that the child had been sexually abused by the mother’s new partner. I note here though that he no longer makes such allegations.

5. The father’s behaviour towards the mother did not improve. Unfortunately for the father, he was not able to afford legal representation and clearly received no advice over a long period of time whilst this matter was progressing to trial. Each time he appeared in court against the mother’s experienced legal representatives, his incapacities as an advocate and his complete lack of insight into how best to advance his interests in the court proceedings just made his position worse.

6. Eventually, the matter was listed for trial before me over four days commencing on Monday 10 October, 2016. In the months during which the proceedings were pending, on the mother’s application, two real properties the parties owned were sold and the net proceeds of sale deposited to the trust account of the mother’s solicitors.

7. Then, three weeks before the trial, the mother brought an application for interim litigation costs funding seeking an order that she be paid $90,000 from that money held in the trust account of her solicitors. That was paid to her for her to use in paying her lawyers. When that application was heard, the father also asked for some funds to be paid to him so that he could engage lawyers too. I ordered he be paid $50,000 and, to his credit, he quickly engaged experienced family lawyers.

8. After those lawyers began to represent the father, unsurprisingly, his case dramatically changed. He began to express, in his affidavits at least, an understanding of the fact that his behaviour over the last eighteen months had not helped his position.  He quickly went to see an experienced family therapist who provided evidence on his behalf for the trial. Importantly, the father accepted for the first time that, initially, any time his daughter was going to spend with him needed to be supervised. He now also made no serious case against sole parental responsibility for the child being conferred upon the mother.

9. However, in the week before the trial, the mother also changed her position from one of advocating for the position that the child’s time with the father needed to be supervised to one of advocating that the child’s best interests would be served by not spending any time with the father at all.

10. Consequently, the determination of the parenting orders dispute is now focussed on the need to fine tune the issue of just how the mother is to exercise sole parental responsibility for the child and the significant question of whether the child should spend any time with her father at all (her mother says she should not) or whether she should spend supervised time with him, after he has undertaken an initial period of therapy, only to progress to unsupervised time if and when he demonstrates real behavioural and attitudinal change to the satisfaction of the experts and the Court (as advocated by the ICL and accepted by the father).

Some more Background

1. The father was born in 1973 and is currently 43 years of age. The mother was born in 1979 and is currently 36 years of age. The parties met and commenced living together in mid-2004. The mother is a university educated, health professional and was employed in that capacity at the time their relationship commenced.  The father is a self-employed tradesman and has been ever since they commenced their relationship. The mother, at least, asserted that the father is a good tradesman.  He did not disagree with her assessment. Their only child, B, was born in 2010, and has not long turned six years of age.

2. When the couple got together, the mother had a small amount of superannuation in her account with the Q Super superannuation fund. The father had some savings in the bank. In 2005, they jointly purchased a property at Suburb E, using the father’s savings as a deposit and borrowing the balance of the purchase price from a bank. They moved in and, whilst in occupation, did work converting the premises into two separate dwellings, one of which they occupied. The mother’s regular income was used to make the regular mortgage payments. The father did the construction work, often on normal work days when he had no paid work. The mother physically helped him when and as she could.

3. They jointly purchased a second property at Suburb C in 2010, borrowing the funds to purchase that and securing those by mortgage. They moved into that property and rented out the Suburb E property. The rental they continued to receive on the Suburb E property was used to pay the mortgage instalments in respect of the borrowings used to purchase that property and the mother’s regular income was then used to repay the instalments on the Suburb C mortgage debt.

4. The mother took twelve months maternity leave when the child was born. She cared for the child full-time, with the father’s assistance during times when he was not working; there being a downturn in the industry at that time. When the mother went back to work, the child was placed in full-time day care.

5. At trial, there was no dispute between the parties that the mother’s care of the child is, and has always been adequate and appropriate. Equally, there was no dispute that the father always played a hands-on, practically involved, parenting role and that his physical care of the child was appropriate. There was no dispute that the father was interested and involved in the child’s education and schooling and that, together, the parents decided which school the child would attend. There was no dispute that the father and the child love and care for each other greatly.

1. The couple’s relationship broke down in April 2014. At around that time, the mother left the Suburb C property, taking the child with her. She has lived in rental accommodation ever since. The father remained in the Suburb C property until it was sold, pursuant to an order of this Court, in the middle of this year. The mortgage liability in respect of that property was in advance of scheduled payments at the time the mother left in 2014, by about $12,000. The father made application to the bank, based on hardship, to be able to make interest only payments at some point after separation. However, by the time the mortgage was paid out in the middle of this year, the principal debt owed had increased by around $45,000.

2. That increase was attributable to the father not making payments of principal or interest as they fell due and also to the father drawing down against the loan on a number of occasions without the mother’s knowledge or consent.

3. After their separation, the mother tried to negotiate a parenting plan with the father about the child, who was only three years of age. They could not agree on their parenting arrangements. Nevertheless, the mother allowed the father to collect the child from her residence and to keep her in his care for extended periods of time. The father was irresponsible in respect to the arrangements, as he would return the child late and simply when he decided he would, notwithstanding prior arrangements with the mother.

4. A few months after their separation, the mother had formed an emotional relationship with a new partner. This was followed by a serious deterioration in the father’s behaviour towards the mother and her partner. The father began behaving in a way that demonstrated a serious inability to regulate his emotions. He began acting aggressively and making threats to the mother and her partner. He threatened to destroy property and to physically harm the mother’s new partner. The quality of his verbal expression deteriorated and he began sending text messages to the mother that were vile, abusive, obscene and without any apparent restraint. The mother responded sensibly and reasonably to these but that did not stop them coming to her. The father appeared to be losing complete control of his emotions. Brazenly, he even told the mother to go to the police and to get a protection order against him from the Courts as he simply did not care.

5. At around the end of 2014, rather surprisingly, given the state of his own emotions at the time, the father made an emotional connection with another woman from southern New South Wales. At around this time, sadly, he informed the mother that he had a new life and did not want to be in the child’s life anymore. His offensive text messages, nevertheless continued. He quickly changed his mind about leaving the child’s life though.

6. On 2 December, 2014, under the pretext of returning a lunchbox that belonged to the child, the father went to the mother’s residence at 9:00 o’clock at night, went into her home, went upstairs and assaulted her new partner. The father subsequently pleaded guilty in the Magistrates Court at Suburb K to a criminal charge of assault arising from that event.

7. Throughout these times, the mother was still facilitating the child’s time with the father, though being sorely tested by his behaviour. In early 2015, the father’s behaviour continued to deteriorate. He began holding the child over on visits, causing the mother a great deal of anguish. Not surprisingly, the mother then engaged solicitors and when agreement was not able to be reached between her and the father about fixing parenting arrangements to an agreed schedule, the mother commenced these Court proceedings. At around this same time, the father stopped seeing the child and did not see her for around six weeks. Then he just went and collected the child from school one day without the mother’s knowledge or consent and kept her for several days without taking her to pre-school whilst he kept her.

8. The mother was, as evidenced by her application when she filed it, still prepared to let the child spend unsupervised time with her father and to communicate with him by way of Skype. Even before the matter was heard for the first time in Court, the father again collected the child from school and retained her without the mother’s consent for over two weeks; the longest the child had ever been away from her mother. An FCC Judge ordered the father to return the child to the mother and put in place day time contact only on one day every weekend, with changeovers to take place at a children’s contact centre. Clearly, the father had brought that on himself by his own behaviour.

9. Unfortunately, the father remained without legal representation for many months and his behaviour did not improve. He stubbornly refused to exercise the time with the child that the Court had provided for him in its orders. Soon thereafter though, the father and his new partner started asserting a belief that the child had been sexually abused by the mother’s partner. The matter was quickly back before the FCC Judge, on an application by the mother, and the father’s time was restricted to supervised time only. Again, for some months the father did not take up that opportunity to have any time with the child. His troublesome behaviour continued and he sent some very disturbing recorded Skype messages to the mother and the child.

10. The mother continued to inform the father that she would facilitate contact as ordered and the father continued to be oppositional. When the matter came before me for directions as a Magellan matter in December 2015, arrangements were put in place for the father and the child to spend some time together at a private children’s contact facility on the Region I at the father’s expense until the father registered at the Government funded children’s contact centre at Suburb L.

11. The father started spending time with the child at the private contact centre over Christmas and New Year of 2015-2016, but still did not engage with the Government funded centre to register there. The mother continued to facilitate the child’s time with the father through the private centre right through to the middle of this year, despite the expectation that she had, and the Court had, that the father was to take steps to engage with the Government funded centre. In the middle of this year, the mother stopped taking the child to the father at the private centre after becoming aware of things the father was saying to, and in the presence of the child during his time with her there. Coincidentally, the mother brought an application for suspension of the orders that the child’s time could continue to be supervised at the private centre. A suspension order was subsequently made by a Senior Registrar of this Court.

12. The father continued to maintain assertions that the mother suffered from a mental illness; that she had Munchhausen’s-by-proxy syndrome; that she was deliberately alienating him from the child; that her partner had sexually abused the child, and he continued to present the case that the child should live with him.

13. By the beginning of this year, the father’s new partner had moved from New South Wales to the Region I; taken up residence with him in the Suburb C property; moved three of her five children to live with them, and intentionally fallen pregnant to the father with her sixth child and his second. Rather unfortunately, she gave apparent support and encouragement to the father in respect of the case he was running against the mother and the behaviour he was demonstrating that he now acknowledges was wrong and inappropriate.

14. In July this year, the child’s time with the father, supervised at the private children’s contact service was stopped by order of this Court and, again, the father took no steps to take up the opportunity to have time with the child at a Government funded centre. The child has spent no time with the father since then.

15. In late August this year, at an appointment with the family report writer, scheduled to facilitate the preparation by her of an updated report, the father behaved in a very extraordinary manner. His behaviour was such that it caused the report writer to be so concerned for her safety and the safety of her staff, and so concerned for the emotional wellbeing of the father, that she immediately called off the interview. The evidence satisfies me that the report writer was completely justified in taking the steps she did that day.

16. I have already observed that on 8 September this year the mother’s application for interim litigation costs funding came before me. By that stage, both of the parties’ real properties had been sold and about $380,000 net proceeds of sale were being held in the mother’s solicitors’ trust account. The father, who did not oppose the mother’s application, asked for some funds as well, so that he could retain solicitors to act for him, and I was satisfied that was appropriate, provided the use of the money was carefully restricted to nothing but the payment of lawyers acting in these proceedings. I made orders that facilitated that.

17. The father retained experienced family law solicitors and counsel and the case presented to the Court on his behalf took a significant, not unwelcome turn. However, as I have also noted, the mother responded with her own change, seeking an order that did not provide the father with any time with the child.

The mother’s case at trial

1. The case the mother’s counsel competently argued for her at the trial, was that the father has not really changed and has merely been acting out during the trial in a way that he now realises he must in order to persuade the Court that he should have some time with the child. Counsel’s submission was, in essence, that the father’s attitude towards the mother is so bad that he cannot be trusted not to subject the child to inappropriate conversations and denigration of the mother, such that granting any time with him is not in her best interests. He also submitted that the matter should not be “micro-managed” by the Court by the making of interim orders for further supervision of the father. He argued that it really should be for the father to go and seek his therapy and come back to the mother, and the Court, if necessary, when he is properly able to demonstrate, with expert evidence, that he has acquired insight and will not subject the child to inappropriate behaviour, most notably repeated denigration of the mother and incessant conflict with her.

2. There is much merit in those submissions. However, the Court is statutorily enjoined to make such parenting orders as it thinks proper (s 65D of the Family Law Act) and also to regard the best interests of the child as the paramount consideration when deciding what particular parenting order to make in relation to the child (s 65CA). In determining what is in a child’s best interests the Court must consider the matters set out in s 60CC(2) and (3) of the FLA. Described as “primary considerations” in that list are what have been called “the twin pillars”, namely, the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. It is said that making these the primary considerations is consistent with the objects and principles of the parenting orders Part of the FLA, found in s 60B(1) and (2).  Finally, in applying these two primary considerations, the Court must give greater weight to the second of them.

The Family Report Writer’s position

1. In this particular case, the family report writer, when giving her evidence, was most determined to inform the Court that she observed and believed that the child has a deep love for her father, misses him greatly and wants to spend time with him. Clearly, the report writer was also very deeply troubled by the father’s behaviour over the last eighteen months, and, in particular, his behaviour on the occasions she saw him for the purposes of preparing the family reports. However, she certainly did not recommend that the child not spend any time with her father. She recommended that the child should spend time with him but that any time the child spends with her father in the near future, at least, should be supervised. Indeed, although she welcomed the father’s expressed commitment to commencing family therapy, she observed that she could not foresee a time when the child’s time with the father would not be supervised. The report writer gave me every impression that she did not think the father, even with therapy, would develop the desired insight and change his behaviour around the child and towards the mother, though she was not actually asked a question that elicited such a direct answer.

2. The family report writer, Ms M, was also quite specific in asserting an opinion that the child’s supervised time with her father should be supervised by two supervisors, so that one could remove the child from the presence of the father and the other supervisor at any time it was necessary for the other supervisor to speak to the father and raise with him any inappropriate behaviour or conversation with the child.

3. Importantly though, Ms M was, as counsel for the father pointed out, quite firmly in favour of the child still spending time with her father for the child’s sake and only went on to express support for delaying the commencement of any such supervised time until after the father has had some therapeutic intervention and been assessed as ready to start supervised time with the child when that proposal of the Independent Children’s Lawyer was put to her during her oral evidence.

4. It is quite notable that the family report writer, as troubled as she was by the father’s behaviour that she observed and was also aware of, still supported the child having contact with the father, albeit under careful supervision.

The Father’s Case at trial

1. I am reasonably confident that had the father not retained solicitors when he did in this case that he would not have changed his previous position at all and would not have come to the Court as he did at the start of the trial, having already had one session with a family therapist, and saying that he now accepted the need for insight development. I am also reasonably confident that had that been how the father presented to this Court, still expressing the belief that the mother has Munchhausen’s-by-proxy syndrome, that she was an alienating parent, and that her partner has probably sexually abused the child, that the father would have had little prospect of obtaining parenting orders that provide for the child to spend any time with him at all.

2. However, to the father’s credit, he had retained experienced family law solicitors and had clearly listened to their advice. He went to the family therapist and he readily dropped the outrageously misguided parts of his case, even if he had not yet completely come to terms with just how misguided they were. He listened during the course of the trial and, after it was pointed out to him that he had not yet made an apology to the mother for his conduct which he now accepted was completely inappropriate, the next morning he made a lengthy apology to the mother and her family, and to all others who had been forced to endure his behaviour over the last eighteen months. It was an emotional, impassioned apology that, in my judgment, was quite sincere and not false.

3. The father did not oppose an order being made by this Court that the child lives with the mother. Further, through his experienced counsel, he did not ask for an order that he have unsupervised time with the child. He asked for orders that give him and the child a chance one day, in the not too distant future, of moving to supervised time that might then lead to unsupervised time, if it is assessed as in her best interests. Through his counsel, he did not ask for final orders. He effectively said that he appreciates that it will be for experts and, ultimately, the Court to be satisfied that it is in the child’s best interests for her to spend time with him, supervised or unsupervised.

4. Furthermore, the father acknowledged, when pressed, that the consequence of continued inappropriate behaviour by him, if interim orders giving him some prospect of gaining supervised and then unsupervised time with his daughter are made, will be that the prospect will likely disappear and that his daughter’s ongoing relationships with him and other members of his extended family are likely to be compromised on a permanent basis. He clearly feared that outcome and gave me the impression that he would make every endeavour now to avoid it.

5. At this point, it has to be said that the mother has endured more abuse, stress and inconvenience than any person should have to endure after a relationship breakdown. Her reactions and her resilience in the circumstances also must be appropriately acknowledged and affirmed. In the face of all the abuse and completely misguided assertions about her, she has delivered positive parenting for the child and still facilitated and done nothing to thwart the child’s love for her father. Even as recently as Father’s Day in early September this year, she gave the child $10 to buy her father an appropriate Father’s Day gift at the school stall and made sure the gift was conveyed to the father through her solicitors. Yet, she still had to endure suspicion and unfair complaint by the father about the gift at the trial. That fact demonstrated that the father has a long way to go with his insight development.

6. It is against all of this that I must assess the mother’s proposal presented at the start of the trial that there be no order providing the father with time with the child, and her slightly modified proposal made at the end of the trial that the father be restrained from bringing any application for time with the child for at least twelve months.

7. Although that was the mother’s proposal, I am quite sure the mother herself truly believes that it is in the child’s best interests that her relationship with her father be restored to normal, if possible, albeit in a manner that ensures the child’s emotional and physical wellbeing along the way. However, the mother, through her counsel, still submitted that the father should have to prove he has changed before any orders are made that permit him to have time with the child. She says the orders made now should be final orders and that the father should have to come back in fresh proceedings with that proof.  The family report writer did not agree with that. The ICL did not agree with that. And with respect to the mother, I do not accept that a final order for no time between child and father  is the order that is proper to make in this case at this time in the best interests of the child. That said though, I do accept that there needs to be change demonstrated before the child’s time with her father recommences.

8. Despite the concerns of the mother and the family report writer, Ms M, about the father’s capacity for change, there is, in my judgment, some cause for optimism. The experienced family therapist, Ms H, who gave evidence for the father, critically, in my judgment, expressed the following opinion of the father:

   What gave me some positive view of [the father] on the day was his self-acceptance of responsibility. So, if that continues, then I believe he can demonstrate change.

9. In her oral evidence, Ms H, when discussing a proposed course of family therapy for the father, proposed initially seeing the father each week for a time before changing that, when she considers it appropriate, to sessions every two weeks. She clearly said that sessions with him would need to occur over a couple of months before supervised time with the child should recommence. Ms H’s evidence was that she charges $275 per hour, including GST, for such private sessions but she expressed the thought that the father could probably get assistance from Medicare for up to around ten sessions by obtaining a Mental Health Plan from his general medical practitioner. She said that at an appropriate point, as determined by her, she would like to meet with the mother and the child as part of this process. When asked about this proposed course, the mother said she would be prepared to make herself and the child available to meet with Ms H as part of the father’s therapy, provided she did not have to pay for the sessions. I do not consider that an unreasonable position, particularly given that the mother has received no child support from the father since separation.

1. As I have said, the counsel for the mother urged the Court to make final orders in the matter. Counsel for the ICL and counsel for the father urged the Court to make interim orders and retain effective ‘supervision’ over the matter for a time. Although I am generally very reluctant to make interim orders after trials in parenting proceedings (the Court is enjoined to consider whether it is preferable to make parenting orders that will be least likely to lead to the institution of more proceedings (s 60CC(3)(l))), I am satisfied that interim parenting orders are the proper orders to make in this case at this time. 

2. The parenting orders I will make will reflect my satisfaction that a very cautious approach to a potential reintroduction of the child spending time with the father is the proper approach, as opposed to a strict shut out of the opportunity for that to happen. My orders will provide for the father to participate in family therapy, at his expense, with Ms H until such time as Ms H considers that supervised time should re-commence. That is what Ms H herself proposed should occur. I accept that as appropriate. Ms H will then be required to prepare a report and, absent agreement between the parties, the matter will then need to be relisted before me on the application of the father or the ICL for further interim orders, with all parties, but particularly the mother, having the right to be heard on the issue of the progression to supervised time between the father and the child. 

3. As I have also already noted, Ms M was quite adamant that any supervised time, when it happens, should be supervised by two persons; one to take the child away from the father when intervention by the other supervisor with the father is required. Ms M readily acknowledged that such supervision was likely only to be able to be provided at a private children’s contact centre and not one of the Government funded centres.

4. Evidence was given that a private children’s contact service on the Region I could provide such a service at $440 per hour, limited to weekdays only. Quite simply, I do not consider that the father will be able to meet the expense associated with such private supervision over a period of months during which supervision is likely to be required. Furthermore, the mother gave evidence that she works until 5:00 pm on weekdays with the occasional exception on Wednesdays each second week if things are not too hectic at work. Accordingly, notwithstanding Ms M’s opinion evidence, I do not consider that I will be making orders that supervision, if and when it starts, is to take place at the private contact service that was the subject of the evidence at the trial, although that will be a decision for another day. I am of the view that would be setting the father up to fail.

5. I have seen and heard evidence in very many trials over the years in relation to the supervision provided at Government funded children’s contact centres. The supervisors generally keep quite good notes of significant matters that occur during supervised sessions. Those notes sometimes reflect that a supervised parent has said or done something inappropriate during a supervised session and just how the supervisor has dealt with that. Notwithstanding Ms M’s evidence, I am sufficiently satisfied that if the father progresses to supervised visits with the child in this matter, that such supervision could take place at the Region I Children’s Contact Service, operated by Relationships Australia at Suburb J and that one-on-one supervision, as is provided there, would be sufficient to provide protection for the child from any further inappropriateness from the father.

6. I fully expect that if the father progresses to supervised time with the child at that service by further interim order that he will only thereafter progress to unsupervised time with the child, by final order, after a further recommendation by Ms H that such a progression is warranted and a further hearing of the matter at which the mother and the ICL may be heard should they consider it necessary to make further submissions. At such a hearing, evidence from the service’s supervisors could be very influential in determining the further progress of the matter. However, in any event, whilst the father is waiting for the prospect of progressing to supervised time with the child, the parties could at least take the necessary steps to register with the Region I Children’s Contact Service in expectation of supervised time commencing there at some stage in the not too distant future.  That, of course, is not to say that it necessarily will, though that is the prospective outcome of the anticipated natural progression of this matter.

7. I also intend to order that the father attend and complete a specialised men’s domestic violence behavioural change program. The evidence before me is that he did attend one of those programs already following an order made in the family violence protection proceedings in the Magistrates Court. However, I am comfortably satisfied, on the evidence, that he did not gain much from that course. That is probably because, as Ms M observed, perpetrators of coercive and controlling family violence may never be susceptible to change, but must want to change if a program such as one of these it to have any chance of working. Ms M recommended that the father should do another one of these group based programs parallel to the one-on-one therapy he has with Ms H.

8. Accordingly, satisfied that the father now has expressly accepted the need for change, and optimistic that his completion of another one of these programs will have a more positive affect upon him in the circumstances, I will order him to complete another such program that he is to commence within three calendar months. I will order the father to provide the ICL and the mother with evidence of completion of the program as soon as practicable after it is completed. I am aware that the Domestic Violence Prevention Centre Region I Inc. provides such programs and will refer to that centre in my orders as an example of the sort of program the father is to complete.

Parental Responsibility

1. The statutory presumption that it is in the child’s best interests for her parents to share equal parental responsibility for her clearly does not apply in this case because of the evidence of the violence perpetrated by the father by the text messages he agreed that he sent to the mother and the assault on the mother’s partner that he pleaded guilty to. Those acts undoubtedly constitute family violence as defined in the Act and, given such violence, the presumption does not apply (s 61DA(2)).

2. The mandatory requirements of s 65DAC, where shared parental responsibility is conferred, requiring consultation, genuine effort to reach agreement, and ultimate agreement before a decision about major long-term issues in relation to the child can be made, makes it, at least in my judgment, against the child’s best interests for her parents to have shared parental responsibility conferred by order, where the evidence demonstrates that they cannot communicate with each other in a respectful, restrained manner. Even if the presumption did apply, I would not consider that conferring equal shared parental responsibility for her upon both of her parents in this case would be in her best interests whilst s 65DAC is operative.

3. For the mother, it was submitted that she should have sole parental responsibility for the child without any obligation to consult the father on decisions about major long-term issues. The ICL submitted that the mother should at least inform the father of the decision that is to be made, invite his written input and consider it before she makes the decision and lets him know what it is. The father supported that proposal.

4. I am satisfied that the father does want to continue to fill a parenting role in the child’s life. He expressed recognition of and remorse for his poor past behaviour, including in respect of his written communications with the mother. He expressed recognition of a need to change his ways. I consider that giving him the right to put his thoughts and proposals about significant decisions in the child’s life in writing to the mother for her consideration will provide the father with the opportunity still to be appropriately involved in his child’s life, and to demonstrate any insight and capacity for better communication and co-parenting that he develops. It will similarly reveal ongoing deficiencies in that regard in a way that would make it easy for the mother to argue a case for variation of that order in the future. I am reasonably optimistic that the father, if given this chance, will act appropriately and not act in a way that might result in his right to participate in the process of parental decision making being taken away from him in the future.

5. I will make a sole parental responsibility order in favour of the mother, substantially in accordance with the submissions of the ICL, requiring some consultation with the father by the mother and consideration by her of his input before making the decision herself in the end. It will include an obligation on the mother to inform the father of the decision she ultimately makes. I will exclude from matters over which the mother has sole parental responsibility, decisions to change the child’s name or to change her place of residence such that would make it even harder for the father to spend time with her. Currently, the child bears the same family name as the father. The mother said in evidence that she has no intention of changing the child’s name. Accordingly, there is no need for that issue to be within the sphere of decision making solely conferred upon the mother. In addition, I do not consider it is in the child’s best interests to simply let the mother move with the child to another part of the State, the country, or the world without the father’s agreement or a further order of this Court as that would just enable her to easily thwart this Court’s orders that provide a path of potential progression to a situation where the child spends regular time in the father’s company and care.

Other miscellaneous parenting orders

1. I am aware that there is a State family violence protection order against the father with the mother as the aggrieved party. Nevertheless, I will also make an order that restrains the father from harassing, intimidating, threatening or assaulting the mother and from going within 100 metres of the mother’s residence or place of employment. Such an order, in my judgment, reinforces this Court’s disapprobation of the father’s past conduct towards the mother and her partner and makes it clear that he is obliged to stay away from her home and workplace in the future and to behave appropriately towards her.

2. The family report writer, Ms M, in her oral evidence, expressed the view that the father should be allowed to engage appropriately as a parent with the child’s school. Accepting that, I shall make an order that permits him to attend parent and teacher interviews at the school and to speak directly with the child’s teacher and the school principal, with such appointments to be arranged by him so that he does not come into contact with the mother or the child at the school. My order will also permit the father to obtain school reports and photographs and such documents that the school generally provides to parents of its students. The order will also authorise the mother to inform the school of what the order permits.

3. The parenting orders I will make will oblige each parent to provide the other with details of his and her postal and email addresses and any changes to those details, in a timely fashion. They will permit the father to be able to write and send cards, letters and gifts to the child at the mother’s postal address and give the mother the right to open and consider the appropriateness of any such cards, letters or gifts to be given to the child. If the mother determines that they should not be read or given to the child, the orders will oblige her to inform the father of that decision and its basis in a timely fashion.

4. Finally, the parenting orders shall oblige the mother to keep the father informed as to any serious illness or accidental injury suffered by the child. I consider that is in the child’s best interests too.

5. All of these parenting orders, save for the order that the child lives with the mother, will be made as interim orders, so that there remains opportunity to review and discharge or vary them if considered appropriate in the future, until I can be satisfied that orders should be made on a final basis.  I will not discharge the ICL from the proceedings yet either.

Property adjustment

1. There is no dispute between the mother and the father that the Court has jurisdiction to make orders altering their interests in property pursuant to the provisions of Part VIIIAB of the Act, particularly s 90SM. Neither party made a submission that it would not be just and equitable to make orders altering their interests in property taking into account the matters the Court must consider pursuant to s 90SM(4). Indeed, both the mother and the father expressly asked the Court to make orders altering their interests in property. I accept that doing justice and equity between the mother and the father in this case requires that.

2. The mother and the father agree that when making orders altering property that the following should be considered:

   ·There is $239,958 in the trust account of the mother’s solicitors, being the remainder of the net proceeds of sale of their two jointly owned real properties;

   ·That the mother already received $90,000 in cash from those sale proceeds that she used to pay towards meeting her legal costs and outlays in these proceedings;

   ·That the father already received $50,000 in cash from those sale proceeds that he used to pay towards meeting his legal costs and outlays in these proceedings;

   ·That on 4 April this year the father was ordered to pay $3,300 to the mother towards her costs of the proceedings and that amount was to be treated as partial property settlement received by the father with that amount already being paid to the mother out of the proceeds of sale of the two properties;

   ·That the shares in the company, F Pty Ltd, wholly owned by the father, have a value of $22,430;

   ·That the mother has an interest in Q Super superannuation fund valued at $280,214 and the trustees have been given procedural fairness in respect of proposed orders ‘splitting’ that interest, some of it to be split to the father;

   ·That their personal furniture and effects should not be taken into account, save for the mother contending that the father’s surfboards that he said were worth $100 and his snowboards and snow equipment that he said were worth $1,200 should be considered as part of the property alteration.

3. I am satisfied, the father having told the Court when he was representing himself, that his surfboards, snowboards and other related equipment are all worth about $1,300, that this personal property should also be considered in the property alteration process.

4. Accordingly, I consider the father has property in the form of the shares in his company, F Pty Ltd, and his personal possessions that attract a total value of $23,730. Additionally, he has received the benefit of $53,300 in money from the net proceeds of sale of the two real properties that I am satisfied should be considered property already received by him.

5. The mother has received the benefit of $90,000 from the net proceeds of sale of the two real properties and retains, principally, her superannuation interest worth $280,214.

6. There remains $239,958 in cash to be divided between them and for an appropriate superannuation splitting order to be determined in order to do justice and equity between the mother and the father.

7. Their cash, personal property and money that each has already had the benefit of, totals $406,988. The mother’s superannuation interest is valued at $280,214.

Contributions Assessment pursuant to s 90SM(4)

1. The father said in his evidence that when he and the mother began living together in mid-2004, he had bank term deposits totalling $23,000 and other cash savings of about $7,000. He said that he also owned a work utility, tools and personal possessions. He asserted that the mother had a HECS debt that he did not quantify and nor could the mother, save for saying that it was fairly small. The father also asserted that the mother had about $13,500 in her superannuation fund account at that time, having already been working as a health professional prior to their cohabitation.

2. None of those assertions of fact were challenged or put in issue. I accept them. Indeed, the mother deposed to her superannuation interest being valued at $13,586 at 30 June 2004.  

3. Clearly, the father contributed more in a direct financial sense than the mother did at the commencement of the relationship. Weight must be given to that. As I consider it appropriate to have regard to the superannuation interest separately in this process,[1] the father’s direct contribution in so far as the non-superannuation property at the start of the relationship must be regarded as even greater than the mother’s, without her initial superannuation interest being taken into account at this point.

   [1]          Coghlan v Coghlan (2005) 33 Fam LR 414 per the majority at [63]

4. I am quite satisfied that the mother earned more income than the father did during the entirety of their approximately 10 year relationship, particularly during the second half of it when he conceded he was working. However, I am also satisfied that the father contributed in a direct, non-financial way to the building of wealth by the couple by undertaking building renovation work on their properties during their relationship at times when he might otherwise have been earning income. It is impossible to be precise, on the evidence that was before me, as to the actual value of these things. However, I am satisfied that the father’s unpaid work in doing the building renovation work should be considered favourably alongside the mother’s greater contribution of income during their years of cohabitation.

5. I am also satisfied that the mother contributed as she could to the building renovation work by helping the father when he was working on their property at times when she was not at work herself.

6. I find that after their child was born, the mother and the father both contributed to the parenting of the child and the running and maintaining of the household to the best of their abilities, outside of their working commitments. I would weigh their contributions again as relatively equal in this regard. Accordingly, I would assess the contributions each of them made across all spheres during the actual period of their cohabitation as relatively equal.

7. To the point of their separation, I would, therefore, assess the father’s contributions (not including the mother’s contribution of her superannuation) as greater than the mother’s contribution, principally due to his greater direct contributions at the commencement of their relationship. I would notionally assess that contributions relativity, on a percentage basis, at 55/45 in favour of the father to the point of separation.  

8. For the two and a half years since their separation, the weighting for their contributions swings back in favour of the mother. For all of that time, she made far greater contributions to parenting their child than did the father in a practical sense, and she met the responsibility of financially supporting the child with virtually no assistance from the father. At the same time he continued to occupy their former home, some of that time along with his new partner and her children, to the total exclusion of the mother, who had to rent her own accommodation. During that period, the father did not keep paying all of the principal and interest mortgage instalments on their loans and let the joint liabilities increase. He even diverted rent they were receiving on their investment property to his own benefit instead of paying the repayments on their joint debt with it. He also unilaterally drew down on the loan facility without the mother’s knowledge and consent and used the money he drew for his own benefit.

1. On the father’s own evidence, the debt that was paid out on their former home when it was sold earlier this year was $46,000 more than it had been when the mother moved out in 2014. I am satisfied that reduction in equity is to be taken into account as a further contribution made by the mother to the father’s well-being post-separation. That is not to be taken to mean that I find that the mother contributed $46,000 to the father’s well-being, but rather that his exclusive use of the property whilst their equity in that property was reduced by that amount must be considered and given weight as a contribution by the mother in the contributions assessment process. On the other hand, the father asserted that he did maintain the property in that same period and the mother did not challenge or dispute his evidence on that. That is a direct non-financial contribution by him that again, although not quantifiable, must also be considered in the assessment process and it is.

2. Taking the post-separation period into account, I now assess that contributions relativity as at the time of the trial, on a percentage basis, at 57.5/42.5 in favour of the mother.  Considering their actual property and the funds already received and used by them on costs, and converted to dollar terms, that is $234,018.10/$172,969.90 in favour of the mother.

A further adjustment to do justice and equity having regard to the matters set out in s 90SM(4)(d)-(g), including the matters set in 90SF(3) so far as they are relevant

1. Counsel for the mother submitted that a further adjustment in favour of the mother is necessary to do justice and equity between the mother and the father having regard to the matters set out in s 90SM(d) – (g) including  the matters set out in s 90SF(3) in so far as they are relevant. Counsel for the father agreed. They simply disagreed as to the quantum of the appropriate adjustment.

2. Relevantly, the mother will have the ongoing care for their 6 year old daughter without much practical assistance from the father in the near future. It is likely, I am also satisfied, that she will not receive much financial support from the father for the child either in the future, having regard to the pattern of the last couple of years and the father’s evidence that he does not plan on working a lot over the next few years, but rather to be a stay at home parent for the recently born child of his current relationship who he now has a responsibility to help support as well.

3. The father has not earned very much income in any event when he has been working in recent years. His taxable income for 2013 was $15,494, for 2014 was $16,238 and for 2015 was $20,463. That consists mostly of pay from his company that otherwise only received $47,766 in the 2015 year and had approximately $35,000 of other expenses over and above the payment to him, although about $8,000 of that was attributed to motor vehicle expenses, from which the father probably got some personal benefit.

4. The mother does have good, apparently secure employment and is earning just over $100,000 per annum gross. Importantly, however, the difference in the incomes of the mother and the father is not, I am satisfied, attributable to the circumstances of their relationship or any decisions taken by both of them during their cohabitation in respect of division of family responsibilities.

5. Both the mother and the father are in apparently good health and are still reasonably young.

6. Once legal costs and outlays for these proceedings are all paid for, they will not have a lot of the cash money they receive in this property adjustment left at their disposal, but the mother will be receiving more of that cash money than the father both as a result of her contributions and this further adjustment process.

7. Each of them has a new partner. The father lives with his new partner who works full time earning around $35,000 gross per annum. The mother does not live with her new partner at the moment and there was no evidence of any current plans for them to commence living together.

8. Pursuant to my orders, the mother will also be retaining most of her superannuation interest in Q Super as well, though some will be split to the father.

9. Given that 10 per cent of the amount of money and property being considered for adjustment at this part of the process is just over $40,000, I am satisfied that a further adjustment in favour of the mother of 10 per cent is required to reach a just and equitable division of this property.

10. Accordingly, I would assess the appropriate adjustment of the cash and personal property on a percentage basis to be 67.5/32.5 in favour of the mother. That will result in a division of the total as to $274,716.90/$132,271.10 in favour of the mother. The mother has already received $90,000 of that and the father has already received and retained $77,030 of that. That leaves the mother to receive a further $184,716.90 and the father to receive a further $55,241.10. That will account for the balance of the funds held in the trust account of the mother’s solicitors.

Consideration of the splitting of the mother’s superannuation interest

1. The mother’s superannuation interest in the Q Super fund is valued at $280,214. It was worth $13,586 around the time that she and the father commenced cohabitation. She continued to work throughout their 10 years of cohabitation at the same time as the father worked as a self-employed sub-contractor and whilst he was working on renovations and improvements to their own properties. Her employer was contributing to her superannuation during all those years on her behalf.

2. The undisputed evidence is that at the time of their separation, the mother’s superannuation was valued at $185,977. By August 2016, the value of her superannuation interest had increased by just over another $94,000 to $280,214. There is no evidence as to the breakdown of that growth between further post-separation contributions by her employer that would be solely attributable to the mother’s continued employment and any increase in the value of the fund due to investment earnings on the amount that was in the fund at around the time of separation. However, the mother has been earning just over $100,000 per year gross during that time. The superannuation guarantee, by law, ensures that she would have had not much less than $10,000 contributed to her fund by her employer in each of the years since separation. What was not contributed to the fund on her behalf must have been growth of the accumulated capital through investment earnings.

3. Having regard to the evidence, I am satisfied that most of the contributions made in respect of the mother’s superannuation interest in the Q Super fund that I must consider pursuant to s  90SM(4)(a),(b) and (c) have been made by the mother. Her work prior to the commencement of cohabitation is the sole contributing factor relevant to the accumulation of her interest in the fund that existed at the commencement of cohabitation. She worked throughout her cohabitation with the father and after their separation in the same employment, resulting in the continued growth in the accumulation of her superannuation interest by employer contributions and investment earnings.

4. As I have already observed, I am satisfied that the continuation of her employment throughout their cohabitation was not something that was principally facilitated by the father agreeing to devote himself to homemaking and parenting so that she could devote herself to her employment to generate income to support the family constituted by her, the father and their daughter. He continued to work after their child was born, albeit not as much as the mother, and their child was in full-time child-care during the working week from the age of 1 until their separation. Nevertheless, I do acknowledge, as I have done in respect of the assessment of contributions undertaken in relation to the non-superannuation property of the mother and the father, that the father made contributions to the welfare of the family that do attract some weight pursuant to s 90SM(4)(c) at this stage of the process. I just do not consider that his contribution to the welfare of the family, when being assessed solely against the superannuation interest of the mother, attracts anything near an equal weighting with all of the contributions made by the mother to the acquisition of her superannuation interest and her own contributions to the welfare of the family that I also consider at this stage.

5. Considering solely the superannuation interest of the mother at its value of $280,214, I would convert my assessment of the contributions of the mother and the father pursuant to s 90SM(4)(a) to (c) to a percentage division of 85/15 in favour of the mother.

6. Having regard to the matters set out in s 90SM(4)(d) – (g), including those matters set out in s 90SF(3) in so far as they are relevant, I would make a further adjustment in favour of the father equal to 5 per cent of the value of the mother’s superannuation interest in order to arrive at a just and equitable outcome. The most relevant factors that influence my discretion in this regard I consider are the value of the property and superannuation interest otherwise being retained by the mother pursuant to my orders and the fact that it is likely that the mother will continue to accumulate a reasonably good superannuation interest in the future through her apparently secure employment as a health professional whereas the father is not likely to accumulate much of a superannuation interest at all, weighed against the fact that the mother has had almost exclusive responsibility for the financial and practical support of the child since separation and my satisfaction with the likelihood that this circumstance will not change in the short to long-term future.

7. Consequently, I determine that an order splitting 20 per cent of the mother’s superannuation interest to the father would be an appropriate order which I am satisfied, when considered alongside the other property alteration orders I propose to make, results in overall orders that are just and equitable. 20 per cent of the mother’s superannuation interest, as valued in these proceedings, equals $56,042.80. Satisfied that the trustees of the Q Super fund have been given procedural fairness in respect of the orders I propose to make, I will make all necessary splitting orders.

Further Orders having regard to competing costs applications

1. Conscious of the fact that the father’s legal representatives made a further interim application on behalf of the father for orders that money be paid to them from the money held in the mother’s solicitors’ trust account on account of the father’s costs and outlays in these proceedings not covered by the $50,000 that was already provided for in previous interim orders, as well as the fact that counsel for the mother foreshadowed a costs application on behalf of the mother, whatever the outcome in these proceedings, I will make an order that none of the sum of $55,241.10 currently held in Pullos Lawyers’ Trust account that I have determined is the father’s pursuant to the property alteration orders I will make, is to be paid out of that account to the father or his solicitors pending the hearing and determination of any costs application brought by the mother or an earlier order of the Court that such money may be paid out.

2. For all of these reasons, I make the orders set out at the commencement of this judgment.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 11 November 2016.

Associate:

Date:  11 November 2016