Hiron & Tourle
[2022] FedCFamC2F 1283
Federal Circuit and Family Court of Australia
(DIVISION 2)
Hiron & Tourle [2022] FedCFamC2F 1283
File number: MLC 10835 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 30 August 2022 Catchwords: FAMILY LAW – parenting proceedings – father ordered sole parental responsibility – failure to provide drug screens because party know screens would test positive – mother involved in troubling events – property proceedings – section 90SM alteration of property interest – property division of 70 per cent to the father and 30 per cent to the mother – whether the second day of proceedings should continue in the absence of the mother – orders made in absence of a party. Legislation: Evidence Act 1995 (Cth) s 144
Family Law Act 1975 (Cth) ss. 60CA, 60CC, 90SF, 90SM, 102NA, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 15.19
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth)
Cases cited: Hickey and Hickey and the Attorney-General [2003] FamCA 395; (2003) FLC 93-143.
Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932.
Division: Division 2 Family Law Number of paragraphs: 73 Date of hearing: 29 & 30 August 2022 Place: Melbourne Counsel for the Applicant: Ms K Paull Solicitor for the Applicant: Cohrssen Partners Pty Ltd Solicitor for the Respondent: No appearance Counsel for the Independent Children's Lawyer: Mr S Foo Solicitor for the Independent Children's Lawyer: Aitken Partners Pty Ltd ORDERS
MLC 10835 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HIRON
Applicant
AND: MS TOURLE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
30 AUGUST 2022
THE COURT ORDERS THAT:
FINAL PARENTING ORDERS:
1.The Applicant, Mr Hiron (‘the Applicant’), have sole parental responsibility for the children X born in 2009 and Y born in 2011 (‘collectively referred to as the children’).
2.The children live with the Applicant.
3.The children not spend any time with the Respondent, Ms Tourle (‘the Respondent’) unless agreed between the parents in writing, text message or email.
4.The Respondent be and is restrained from approaching or remaining within 200 meters of any property in which the children reside and / or any school in which the children or either of them are enrolled.
5.The Applicant be and is permitted to do all acts and things necessary to obtain a passport for the children, or either of them, without the consent of the Respondent, and this order be and is authority for the purposes of the Australian Passports Act 2005 (Cth).
6.The children be permitted to travel internationally with the Applicant and/or his agents and/or spend time with a person outside of Australia with the Applicant’s consent.
7.The parents not denigrate nor insult, nor allow any other person to denigrate or insult, the other parent or the other parent’s relatives or friends to, or in the presence or hearing of, the children.
8.The Respondent be and is permitted to negotiate child arrangements by letter, email or text message BUT ONLY IF the Respondent does not commit family violence while doing so.
9.The Applicant be at liberty to provide a copy of these orders to the children’s school/s.
10.The Applicant be at liberty to provide a copy of these orders and the family report to any of the children’s treating therapists.
11.The Respondent be at liberty to provide a copy of these orders, reasons for judgment and family report to any therapist she consults and to Victoria Police.
12.The Applicant be at liberty to provide a copy of these orders, reasons for judgment and family report to any therapist he consults and to Victoria Police.
13.The order appointing the Independent Children’s Lawyer be discharged.
FINAL PROPERTY ORDERS:
14.That the Applicant, pay to the Respondent the total sum of $71,312 to the Applicant (‘the total payment’), by two payments as follows:
(a)The first payment in the sum of $10,000 on or before 4.00pm on Tuesday 13 September 2022 (‘the first payment date’); and
(b)The second payment in the sum of $61,700 on or before 4.00pm on 4 October 2022 (‘the second payment date’) but provided that;
(i)the Respondent has vacated the property known as A Street, Suburb B and being the whole of the property described in Certificate of Title Volume … Folio … (‘the property’);
(ii)and in the event the Respondent has not vacated the property by the second payment date, then the second payment be paid to the Respondent 14 days after she has vacated the property.
15.That after the first payment has been made and no later than 4:00pm on 3 October 2022, the Respondent, Ms Tourle, vacate the property.
16.If the Respondent fails to vacate the property as provided by these orders the Applicant be permitted and authorised to:
(a)approach Victoria Police and provide a copy of these orders and reasons for judgment to assist in the Respondent’s removal from the Property;
(b)enter and take possession of the Property; and
(i)change the locks;
(ii)replace the doors with security doors or install security screens;
(iii)repair any broken windows;
(iv)install window grilles;
(v)install a security system including alarms and/or CCTV cameras;
(vi)remove all chattels in the possession of the Respondent and advise the Respondent of that removal by email or text message, and if not claimed and collected by the Respondent within a further 14 days, deliver same to a waste and recycling centre; and
(vii)replace, adjust, or install a fence at the maximum height in accordance with Victorian fencing standards.
17.That contemporaneously with the second payment:
(a)the Applicant be entitled to sole use, occupation and legal and equitable ownership of the property but subject to the mortgage and the charge of Mr & Mrs G dated 18 February 2011; and
(b)the Applicant discharge the Respondent from any liability for, and indemnify the Respondent against, all payments and liability pursuant to the registered mortgage number (insert from title search) to the National Australia Bank (‘the mortgage’) and all taxes including income taxes, capital gains tax and all apportionable rates, taxes and outgoings of or with respect to the property of whatsoever nature and kind but save and except and excluding any electricity and gas supply charges incurred during the Respondent’s occupation after 8 December 2019 and the date the Respondent vacates the property.
18.That contemporaneously with the first payment:
(a)The Respondent do all acts and things and sign all such documents as maybe required to withdraw any caveat lodged by her or on her behalf over the title to the property (‘the caveat’) at her expense.
(b)In the event that the Respondent fails to withdraw the caveat as provided herein then, pursuant to section 106A of the Family Law Act 1975 (Cth) (‘the Act’) the Applicant’s solicitor for the time being, is hereby appointed and authorised to do all acts and things and execute all documents or authorities in the name of the Respondent, Ms Tourle, as may be required to cause and effect the withdrawal of any caveat or caveats lodged by the Respondent or on her behalf over the title to the property and to deduct any necessary Titles office fee paid (but not legal fees) from the second payment.
19.That in order to effect the first payment and the second payment to the Respondent;
(a)within 7 days of these Orders the Respondent provide the Applicant’s lawyers by email, text or ordinary post bank account details of the Respondent’s bank account; and
(b)in the event that the Respondent fails to provide her bank account details to the Applicant’s lawyers by the time the first payment or the second payment is to be paid, then the first payment and/or the second payment be placed into a trust account on behalf of the Respondent until she provides her bank account details so as to permit the payment/s to her.
20.That in the event that the whole of the first payment and the second payment has not been made within 30 days of the second payment date, then the Applicant sign all documents and do all things necessary to cause the property to be forthwith sold altogether out of court (“the sale”), and upon completion of the sale, the proceeds of the sale be applied:
(a)First, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to discharge the mortgage and any other encumbrance affecting the real property;
(c)Thirdly, so much of the first payment and second payment as is then outstanding together with interest thereon at the penalty rate applicable to sums due under orders pursuant to the Act adjusted monthly from the second payment date to the Respondent;
(d)Fourthly, the balance to the Applicant;
21.That pending the first payment and the second payment or completion of the default sale:
(a)The parties hold their respective interests in the real property upon trust pursuant to these orders; and
(b)Neither party encumber the real property without the consent in writing of the other party save to the extent necessary to comply with these orders.
22.That unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property (but not fixtures) being deemed to be in the possession of the Respondent).
(b)Monies standing to the credit of the parties in any join bank account are to become the property of the party in whose name the account is registered.
(c)Each party retain any superannuation benefits belonging to or earned that party.
(d)Insurance policies remain the sole property of the owner named thereon.
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
23.The lawyers for the Applicant serve by post, text message and email a copy of this Order.
24.All previous Orders be discharged.
25.All extant applications are otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.The Court will email the parties the settled reasons delivered extempore on 30 August 2022 when available.
C.The sum of $71,312 has been calculated as being 30% of the net non-superannuation pool of assets and liabilities of $299,000 or $89,700 but less $7,000 ‘keep’ and less $11,000 costs and less $388 half valuation fee.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hiron & Tourle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
INTRODUCTION
These are the settled ex tempore reasons for the matter of Hiron & Tourle. These reasons should be read together with the first two judgments in this matter, judgments where settled reasons have been delivered, the first being on 24 May 2021, and the second on 15 July 2021.
The father, Mr Hiron (‘the Father’), is 43 years old, and will shortly be a qualified tradesman in full-time employment. The mother, Ms Tourle (‘the Mother’), is 44 years old, and, as far as the Father knows, is unemployed. From her demonstration of her mental health and ability to organise her life in these proceedings at the moment, she may well be unemployable, and would appear to be dependent upon some aspect of Social Security.
The parties' children are 13-year-old X and 11-year-old Y (collectively known as ‘the children’). The parties commenced cohabitation in 2009, and separated after a period of significant unhappiness in 2018, on or about 6 December 2018.
troubling events
The unhappy events are described in the Father's affidavit filed 2 October 2020 as follows:
9.Throughout the relationship and after separation, the children and I have been physically, psychologically, verbally and emotionally abused by [Ms Tourle]. Examples of family violence perpetrated by [Ms Tourle] include but are not limited to the following:
…
(d)On or about the evening of [early] 2018 [Ms Tourle] attempted suicide. The children were present in the home when this occurred. I called an ambulance who took [Ms Tourle] to the [H Hospital] where I was advised that she had attempted suicide by overdosing on a mixture of cocaine, Panadol and alcohol.
(e)On or about 6 December 2018, on the day of separation, we had a big argument about a series of issues we had experienced throughout our relationship. … On this day, during our argument about the above issues, I threatened to leave her and she in response punched me, spit on me, and she threw a broom which missed and smashed a nearby window. I proceeded to leave, however, she again became physically aggressive. I held her arm and put her to the floor reasonably and without excessive force. I knew this pattern could not continue and I left the matrimonial home with the children for good. That was the day we separated.
(f)In or about January 2019 whilst attending a barbecue at [Ms Tourle's] sister's home, [Ms Tourle] hit me to the side of my head with her closed fist. She hit me again and the family members rushed to intervene, however, [Ms Tourle] in response hit two others as well. This whole event occurred in front of the children. …
(g)In or around January 2019, the children and I were walking home from school with [Ms Tourle] on the telephone. [X] did not want to speak to [Ms Tourle] on the phone but after I encouraged him to speak with his mother, [Ms Tourle] told [X] that she was going to go to his house and drag him out by his fractured arm. [X] was visibly upset and afraid that [Ms Tourle] would attend our home to hurt him and he told me so.
…
(j)On or about 14 April 2019, the children informed me that during their time with [Ms Tourle], they had played with an unloaded handgun. The children also informed me that [Ms Tourle] said that she wanted to use that gun on me. The children were both deeply upset and afraid that their mother would shoot me. Both [X] and [Y] would regularly awake at night having nightmares that I had been shot by their mother.
(k)On or about 28 March 2019, I received flurry of text messages from [Ms Tourle] stating the effect that she does no longer wanted to spend time with the children. These text messages stated, "I don't want the children anymore!!", "You 're all haters!!", "I have nothing left for any of you!!", "I'm empty!!", "I have been left alone to many times in my life!!", “Left to fight my own Battles, battles that are always started by others!!", "So Goodbye!!", "I have no love, no care, no consideration, no thought for any of you ever again!!"
(l)On or about March 2019, I sent a text message to [Ms Tourle] stating, "Hey there hurting a lot put yourself in their shoes, they have nothing but room in their heart for you ...". In response, I received a text message which stated, "No they don't! I already explained everything to them and what would happen if they did! I told them They Would Never See Me Again and it's time they learnt there are consequences to Their Actions!! And what actions could do to their lives & to other people's!!"
(m)In or about May 2019, I took the children to [Ms Tourle's] house for a visit. [Ms Tourle] started arguing with me and said that I am to blame for her drug use. I told her that I would not make an effort to see her again and after she picked up a kitchen knife, put it to her throat, screamed out to the children and said words to the effect, "Come and see me kill myself because Dad is leaving me!" The children screamed and hid in their bedrooms. After, when [Ms Tourle] went to that bathroom, I gathered the children and fled. The children have not seen [Ms Tourle] since.
(n)In or about June 2019, [Ms Tourle] sent text messages to my family members and the children directly stating to the effect that she would kill herself in the drive way at my house for all of us to witness.
(o)On or about 23 June 2019, [Ms Tourle] sent a chain of text messages to [Y's] mobile phone: "Please! Please! Please!, "So you want mommy to die?", "I'm going home to kill myself", "Goodbye", "I love you very much", "I hope you find a better mommy", And I will miss you so much", "I have some bonds clothes for you at home". [Y] showed me these messages and I called the police. The police arrived and I was subsequently informed that the police had found knives and the drug 'ice' in her car. I believe she received criminal charges as a result.
(p)On or about 20 January 2020, [Ms Tourle] sent to me a text message containing a photo of herself holding a large machete to her own throat.
(q)On or about 1 October 2019, [Ms Tourle] called [Y] by phone and during the conversation, she asked why she and [X] did not answer the phone when she called. She abused [Y] called her names for not answering the phone. [Ms Tourle] later threatened [Y] by stating words to the effect that [Ms Tourle] would send one of her associates to my house in order to attack me. [Y] and [X] cried uncontrollably and begged for her not to actually do it. … She later sent me text message which stated to the effect that I should "look over my shoulder."
(emphasis added)
The significant matter is that, due to circumstances outside the Father's control, the Mother last saw the children in May of 2019, as described above. Those matters were never in contest and are corroborated by reproductions of the text messages in evidence. I accept the Father’s evidence about these events.
First question: proceed without one party?
These proceedings come before me on day 2 of what was a three-day Final Hearing fixture. The first question I must determine is whether I should proceed in the absence of the Mother. The proceedings have been marked by the Mother's only occasional involvement in the proceedings. The Mother did not attend Court on 10 November 2020. She did not file documents in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) after being served with the Father's application. She did not file documents in accordance with the orders made on the first return on 10 November 2020 to file documents on 10 December 2020. She did not attend the Conciliation Conference, or serve documents as ordered.
The Mother did not attend the Child-Inclusive Conference on 22 March 2021, notwithstanding she had the opportunity to do so. She did attend on 15 April 2021, and again on 24 May 2021 and 15 July 2021. She did participate in the Family Report interviews on 8 March 2022. The Mother had not filed any documents save for two documents served in May of 2022, and ultimately filed in June of 2022. The Mother did not file any further documents.
The Court received an email from the Mother on the morning of the first day of the Final Hearing, indicating that she was caught on the Suburb J line, and she duly attended court. She indicated to me that she proposed to make an adjournment application, but I have not heard that application. She attended court without any documents, and upon inquiring of her, she told me that she had received, but not read, the Family Report. I determined that I should, without objection from the other parties, provide her with copies of the documents that were relied upon by those parties. Those documents were provided to her at about 12:00pm and I adjourned the matter to 2.15pm.
During the luncheon adjournment it was reported to my Associate, and I accept, that a serious incident occurred whereby the Mother attended the women's rest rooms of the court and a person was heard to be screaming. Security staff attended, and my Associate was told they found the Mother on the floor of the toilet with a belt around her neck, and with her hands pulling on that belt.
An ambulance was called for the Mother, and an ambulance attended the court over some considerable time while the paramedics assessed the Mother, and court security staff were in attendance for the bulk of that period to ensure the Mother's welfare. Ultimately the ambulance left without the Mother, and the Mother made her own way home. I was told and accept that counsel for the Independent Children's Lawyer (‘ICL’) telephoned her on the evening of the first day to inform her that the matter had been adjourned to the following day.
At 9.49am, the ICL received a long email from the Mother which was sent to the Court at 9.59am. That email made it clear that the Mother was aware of the hearing having been adjourned to today, and that she did not intend to attend, or to provide any further evidence to the Court, save for the assertions and submissions in the email. That email became exhibit M2 and was tendered without objection from the other parties, and I propose to treat it as a submission on the Mother's part, or on behalf of the Mother.
The Mother's email included:
…
I cannot say anymore. Your Honour, given the information before you.
I am excusing myself from anymore torment of the court process. I will only damage myself further without a lawyer. This week was the first chance I had given everything to seek out a lawyer, but sadly the case had been scheduled also.
…
The proceedings had been fixed for Final Hearing as a special fixture on 15 October 2021; the parties have had more than a year to get ready for the Final Hearing. I despair that whenever this case comes on, were I to even consider adjourning it, the Mother will not be in any better position or have complied with Court orders any better than she has. In those circumstances, I find that it is appropriate to proceed as authorised by rule 15.19(e) of the Rules under the heading ‘Failure to Attend a Court Event’, and I will proceed on the evidence I have before me.
proceeding on a final basis
In this case I do not regard the matter as proceeding as if it were undefended, notwithstanding I would be empowered to do so by rule 1.33(2)(c) of the Rules in the circumstances of the Mother not complying with many directions, and certainly the trial directions to file material or to indicate what material she relied upon. I do not regard it as undefended because I have taken account of the Mother's submissions contained in the M2 document, and also her documents filed in June of 2021. In addition to that, I have taken into account what she had to say in the Family Report interview.
Had the Mother attended, she would not have been able to cross-examine the Father because of the orders made on 15 July 2021 (when she had attended Court). There I made an order pursuant to section 102NA, which prohibited the Mother personally cross-examining the Father. The Mother did not take advantage of the separate bucket of money set aside by Parliament (administered by Legal Aid Victoria) that would have funded her representation at the Final Hearing, notwithstanding I ordered her to do so. That order has been in existence for a long time.
The first day of the Final Hearing, which was truncated because of the events over lunchtime. Also because the Mother told me that she had not ever read the Family Report. I felt it important that she have a further opportunity to read the Family Report it before proceeding and a hard copy of the Family Report and trial documents was provided to the Mother by the Court shortly before the luncheon adjournment.
I find that the Father's solicitors have bent over backwards to ensure that the Mother is informed of the proceedings and has receipt of documents, and I find that the Court, and the ICL, have also bent over backwards to ensure that the Mother is able to participate in the proceedings.
Why the Mother is unable to participate in the proceedings is difficult to define. I remain of the view that I had earlier expressed, having had the Mother appear in front of me on interlocutory matters, that the Mother may suffer from an undiagnosed mental illness, or a personality difficulty, in addition to a substance abuse disorder.
In all of those circumstances I determine that it is in the interests of justice to proceed to make final orders in the matter.
Material Relied upon
The Father relied on the following materials at Final Hearing:
·Affidavit of the Father dated 2 August 2022;
·Further Amended Initiating Application of the Father dated 29 July 2022;
·Financial Statement of the Father dated 29 July 2022
·Family Report prepared by Mr K dated 16 March 2022;
·Affidavit of the Father dated 9 July 2021;
·Affidavit of Mr L dated 11 May 2021
·Affidavit of the Father dated 2 May 2021;
·Affidavit of the Father dated 9 April 2021;
·Child Inclusive Conference Memorandum prepared by Mr M dated 22 March 2021;
·DFFH section 69ZW report dated 22 February 2021;
·Affidavit of the Father dated 12 February 2021;
·Notice of Risk of the Father dated 6 October 2020; and
·Affidavit of the Father dated 6 October 2020.
The ICL relied on the following materials at final hearing:
·Family Report prepared by Mr K dated 16 March 2022;
·Child Inclusive Conference Memorandum prepared by Mr M dated 22 March 2021;
·DFFH section 69ZW report dated 22 February 2021; and
·Subpoena material.
Exhibits
The following documents were marked as an exhibit:
·M1 29 August 2022: Email from Respondent Mother 29 August 2022 at 10.25am re: explanation why not at Court (yet).
·C1 29 August 2022: Email reply from Associate;
·C2 29 August 2022: Email releasing the Family Report sent 25 March 2022;
·ICL1 29 August 2022: Schedule of drug screens requested from the ICL to Mother;
·ICL2 29 August 2022: Email response from the Mother to ICL dated 18 July 2022;
·F1 30 August 2022: Proposed Minute of final orders;
·M2 30 August 2022: Email from Mother to ICL at 9.59am 30 August 2022;
·ICL3 30 August 2022: Bundle of emails regarding Mother’s appointment for psychiatric assessment with Dr N: Email of 25 October 2021; Email of 26 October 2021 regarding reschedule of Dr N appointment; email of 16 November 2021 (from Dr N);
·F2 30 August 2022: The curbside property valuation dated 23 April 2021;
·F3 30 August 2022: Father’s most recent payslip (apprentice rate); and
·F4 30 August 2022: Fathers costs notice.
Parenting Proceedings
I have heard submissions from counsel for the ICL and counsel for the Father about the children's orders that should be made.
Other significant matters include that the Mother has been ordered to comply with supervised drug tests on a random basis when notified by the ICL. The ICL requested supervised drug screens of the Mother on 16 March, 20 April, 23 May, 6 June and 18 July of 2022. The Mother did not ever provide any drug screen of any sort, supervised or otherwise.
Following the last request on 18 July 2022, the Mother emailed the ICL, which included the following:
…
I will do a urine test, but it will not be supervised!! Force a supervised test & my life will end as I do not know how much more I can take as I have never ever used the word "No," let alone smacked them!
…
I find that the Mother refused to provide drug screens as requested of her because she knew that those drugs screens would be positive for illicit drugs.
Another important aspect of the case is that there is an order that the mother undergo a psychiatric examination, to be organised at public expense by the ICL. The ICL retained a psychiatrist for the assessment. The psychiatric assessment was arranged for Tuesday, 26 October 2021, and the Mother did not attend, but a friend or colleague of hers attended by telephone, and advised Dr N's rooms that the Mother was unwell. Based on that, Dr N was generous enough with his time, notwithstanding he was working at Legal Aid rates, to reschedule the appointment for 15 November 2021.
It is a matter that I take into account as discussed on the interlocutory proceedings (and hence the parties are aware of it for the purpose of section 144 of the Evidence Act 1995 (Cth)) that to have an expert witness of the experience of Dr N available to examine a party in proceedings before me, at Legal Aid rates, is difficult, and there are very few psychiatrists generous enough, and competent enough, to deal with that work. The end result was that, notwithstanding that Dr N had set aside time for two such appointments, the Mother did not attend either appointment.
The Mother demonstrates an articulate capacity at times, and has, when she has addressed me and in her written documents tendered, demonstrated that she is an intelligent woman. I find that she did not attend upon Dr N partially because of the chaos and disorganisation in her life, but also partly because she knows very well that a psychiatric examination would not demonstrate her claim to me (on an earlier interim hearing) that she did not have any mental illness or disability.
I also point out that she submits (in writing) that she should have equal-shared parental responsibility. In this case the presumption of equal-shared parental responsibility does not apply because there are reasonable grounds to believe that family violence has occurred. In this case, unfortunately, it is not only reasonable grounds to believe: but in fact family violence - and significant family violence - has occurred from the Mother to the Father and the children. Hence the presumption does not apply, and hence I do not need to consider a regime of equal time, and in any event it would not be in the children's best interests.
The Family Report
I take into account the Family Report in which the Mother participated, and I will recite the recommendations of the report:
RECOMMENDATIONS
143. That [X] and [Y] live with [Mr Hiron].
144. That [X] and [Y] spend time with [Ms Tourle] at their discretion.
145.That should [X] spend time with [Ms Tourle] that this be supervised, and that [Ms Tourle] be clear of all illicit drugs.
146.That [X] have access to a therapist should time commence with [Ms Tourle].
147.That [Ms Tourle] be assessed by a psychiatrist.
148.That [Ms Tourle] complete hair follicle drug testing.
149.That [Ms Tourle] attends and completes a Change Behaviour Program and engages with a therapist.
150.That [Mr Hiron] and [Ms Tourle] avail themselves of an electronic means of communication as noted.
The long and the short of the report is that the children retain some affection for their mother, and certainly X would like to see his mother if she were well.
The Applicable Law
I apply and take into account the whole of Part VII of the Family Law Act 1975 (Cth) (‘the Act’), including the following provisions:
…
60CA:Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(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;
(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;
(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;
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(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)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
In this case the primary consideration of the safety of the children looms large. The tragic circumstances of the Father’s life and the children's life is that, on the evidence before the Court, it is clear that it is not safe for the children to spend any time with their mother and it has been so for some time.
The Father sought orders for sole parental responsibility, and for the children to live with him. He also sought to lay out a pathway for the Mother to obtain therapy or treatment, and to then seek time from him. He is concerned that the Mother will seek to find a school where the children attend and attend there. There is only a small prospect of that. However, were that to happen, the consequences would be serious for the children, given the Mother's lack of insight into her behaviour and her capacity for emotional outbursts, and hence I will make the orders largely as the Father has sought, and as discussed with his counsel in the hearing.
I take into account all of the matters under section 60CC as recited above, and the best interests of the children. The Father, for some time, went out of his way to try and encourage the Mother to moderate her behaviour and to engage with the children, and I refer to the communication set out above (and bolded) where paragraph 9(l) (… “room in their heart for you …”) is recited.
Hence the children have the benefit of a steady parental figure of the Father, who has parented the children very well in difficult circumstances, and I will make those orders as discussed with the counsel and as urged by the ICL.
Property Proceedings
I now turn to the property proceedings. Both parties seek property orders, and the parties no longer enjoy the shared benefit of the property that they once enjoyed together as a family. At the moment the Mother is in the family home, and has continued to reside there since separation, without paying rates, or mortgage payments, and it appears has not paid the gas bill and electricity bill.
Applicable Law
The law I must apply is as follows (from the Act):
Section 90SM Alteration of property interests
(1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them--altering the interests of the parties to the de facto relationship in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the de facto relationship; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines.
…
(2)If a party to the de facto relationship dies after the breakdown of the de facto relationship, an order made under subsection (1) in property settlement proceedings may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(3)The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e)the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
…
Because of section 90SM(4)(e) I must take account of section 90SF which is as follows:
Section 90SF Matters to be taken into consideration in relation to maintenance
(1)In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:
(a)only to the extent that the first-mentioned party is reasonably able to do so; and
(b)only if the second-mentioned party is unable to support himself or herself adequately whether:
(i)by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or
(ii)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(iii) for any other adequate reason.
Note: For child of a de facto relationship , see section 90RB.
(2)In applying this principle, the court must take into account only the matters referred to in subsection (3).
(3) The matters to be so taken into account are:
(a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f)subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(o)the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i)a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii)a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p)the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i)a party to the subject de facto relationship; or
(ii)a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s)the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t)the terms of any financial agreement that is binding on a party to the subject de facto relationship.
(4)In exercising its jurisdiction under section 90SE, a court must disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
Just and equitable and the preferred approach
I find that it is just and equitable to make property orders (section 90SM(3)).
In Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932 ('Keskin') the Full Court, Strickland, Kent & Austin JJ, at [44] approved what was the age old and pre Stanford "preferred approach" as to the how the nuts and bolts of section 79(4) of the Act, and hence section 90SM(4) of the Act, fitted together:
[20]In Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143 at [39] the Full Court, in setting out what the case law revealed as the "preferred approach" to the determination of an application under s 79 of the Act, referred to four inter-related steps, including that "the Court should identify and assess the contributions of the parties within the meaning of ss. 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties". The Full Court did not purport to elevate the preferred approach as being mandatory, as was observed by a later Full Court in Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 at [61]- [63], [72]. However, adoption of that preferred approach is a means by which many of the mandatory factors in s 75(2) of the Act, in particular paragraph (b) - the income, property and financial resources of each of the parties; paragraph (ha) - ability of a creditor to recover debt; paragraph (n) - the terms of any proposed order under s 79 of the Act; can be considered, as these must be considered, in determining any adjustment pursuant to s 75(2) of the Act. Conversely, if the preferred approach is not adopted there must be a means discernible from the reasons to identify that these relevant mandatory s 75(2) factors have been considered, and how they have been brought into account, in the making of any s 75(2) adjustment...
That preferred approach set out at [39] of Hickey and Hickey and the Attorney-General [2003] FamCA 395; (2003) FLC 93-143 ('Hickey') is as follows (citations omitted):
[39]The case law reveals that there is a preferred approach to the determination of an application pursuant to the provisions of section 79. That approach involves four interrelated steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of hearing. Secondly the court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b) & (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly the court should identify and assess the relevant matters referred to in section 79(4) (d), (e), (f) & (g) ("the other factors") including, because of section 79(4), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment study (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
Lest it be said there is a conflict between the High Court's disavowal of "entitlement" to a section 79 order by mere separation and/or section 79(4) contribution on the one hand, and the use of the word "entitlements" in the Hickey passage cited above, I regard the use of that word in the above context as synonymous with "assessment." I will have regard to what I find to be the contribution based assessment rather than entitlement.
The division or adjustment of property acquired over the parties' lifetime is a serious, stressful and emotionally intense legal matter. Many family lawyers find that failing to have regard to the preferred approach in negotiations, mediation or litigation (including submissions) is likely to widen the areas of dispute and make resolution by agreement more difficult and often results in a party, or both, merely seeking what he or she simply wants or regards as fair from his or her point of view.
The preferred approach assists me in making a principled and orderly determination of the parties' property dispute.
Step one: identify the property pool
The single expert valuation in April 2021 identified the value of the former de facto matrimonial home (“the home”), in the condition that it is in, at $820,000, which was the value of the land. Hence the home as it was, which was partially renovated and with parts of the works exposed to the weather, only land value. Attached to the Father's affidavit, which was only served on the Sunday before the hearing, but which was yesterday provided to the Mother, was a recent bank valuation of the home that puts the value of the property at $800,000.
I find for the purpose of these proceedings that the value of the home is $800,000. The Father does not otherwise have a car, and has inconsequential personal savings. I find the pool to be the home at a value of $800,000, and the Motor Vehicle 1 car transferred to the Mother in 2019. I have determined, doing the best I can, to attribute a value of $15,000 to the motor car.
I will put the liabilities of the parties that are known to me in two separate categories. The liabilities on the Father's part will include, from his Outline Of Case, items 5, 6, 7, 8, 9 and 12, but with items 9, the water rates updated (what I was told this day) with a further approximate $1612 to $5950, and with the outstanding council rates to be updated to approximately $10,000, which means there are liabilities that the Father will have to bear of about $508,000.
On the Mother's side her only asset is the motor car, which I treat as an asset of $15,000, but with the outstanding electricity and gas accounts, which are in her name, and in the event that any liability turns out to be attached to the Father, they should be paid by the Mother. However, I cannot see on the evidence before me that there is any liability for the Father, because those accounts are in the Mother's name, and those accounts I find are in the order of $8000. Hence the Mother has assets in her control of a net figure of about $7000, and the Father has assets of a net figure of about $292,000.
In addition, the Father has assets, or superannuation, of about $53,000. The Mother will have some superannuation, but she has not disclosed that amount, but it is likely to be of a very modest amount.
At the time the parties’ commenced cohabitation the Father had savings of about $100,000. He was assisted to purchase the home by a loan which is item 7, the loan repayable to his grandparents of $77,000. That is an interest-free loan; it is only repayable in 2026; it is a loan on very generous terms. He also has a loan repayable to his father of $22,000 for legal fees. I do not include the paid legal fees as an asset and so will not include that liability.
Hence the pool of assets is as set out here:
Description
$
$
The home to be retained by the Father:
800,00
Liabilities to be borne by the Father including mortgage, loans and rate arrears:
(508,000)
Net assets of the Father:
292,000
Mother motor car:
15,000
Liabilities to be borne by the Mother:
Electricity about $4,000; and Gas about $4,000:(8,000)
Net assets of the Mother:
7,000
Total assets and liabilities:
299,000
Father’s superannuation:
$53,000
Mother’s superannuation:
Not known.
Step two: Contributions – Section 90SM(4)(a)(b) and (c)
The home was purchased with significant borrowings from the bank, together with the Father's savings, and the loan from the grandparents. The property was registered in the Father's sole name on or about 25 January 2011. Thereafter the home was the matrimonial home of the parties.
Until shortly before separation in 2018, the parties lived the not unusual life of hard work in paid employment, and otherwise sharing the caregiving activities of homemaking and parenting to the parties' two children. The Father was engaged in well paid employment to a greater degree than the Mother. When he was not engaged in employment he was involved in sharing the care of the children.
When the Mother was not engaged in employment she was engaged in the care and parenting of the children, up until sometime in 2018. I find that it is in around about 2018, shortly before separation, that the Mother's involvement with illicit drugs commenced, and from that point in time a significant deterioration in her personal circumstances occurred.
Post separation the Father has had the sole burden and responsibility of parenting the children. His initial contribution is significantly greater than the Mother's. His contribution from late 2018 (that is post separation) until this time is also significantly greater than the Mother's.
The parties' contributions during the marriage over the eight or nine years they resided together and worked hard in their different roles is significant and is the major contribution of both of the parties over those many years. The Mother's case, as set out in her email, urges a number of things and includes; (a) that there should be no property orders until the FMH has been renovated; and (b) that the parties should hold their interests in the FMH equally, but on trust for the children.
It was urged that I should find at the second stage a contribution position of 75/25. I am persuaded that such a submission is in the right ballpark, but I am persuaded that overall the Father should be regarded as making a little over double the contribution to the property that the Mother has made, which would start off being something in the order of one-third, two-thirds, but I take into account how difficult the task has been and will be before he has possession of that home. I take into account the difficult circumstances of his parenting the children since separation.
Overall contribution should be regarded as 70/30.
Step three: Section 90SF matters.
I then turn to section 90SF(3) matters, that is standing on the door of the Court and looking forward as to largely prospective factors. The Father will have the sole financial burden of the care of the children for a number of years yet, given the children's ages, as they are of 13 and 11, and further the very expensive years of teenage-hood is just approaching.
The Father has recently (or will shortly) qualify as a tradesman, and is in full-time paid employment. The Father, at the end of the contribution exercise, will have a little over double the capital that the Mother has. The Mother at the moment, and for the foreseeable future, does not have the personal skills to organise, or engage, or continue in paid employment, and will be dependent upon whatever Social Security benefits her skills enable her to organise.
It was urged upon me that I should make a further modest 5 per cent adjustment on account of the balancing of all of the matters under section 90SM(3), and in robust and persuasive terms the Father's counsel urged upon me that I should make a further adjustment of at least 5 per cent in his favour.
Balancing all of those matters, I am of the view that it is not appropriate to make a further section 90SM(3) adjustment, notwithstanding that the Father will have the sole burden of those circumstances. The Father will have capital in the order of $200,000 behind him, relatively well paid employment as a tradesman, but also the burden of the expenses of these two children.
The Mother will likely not have the ability to support herself for many years. I also take into account that the Father has some superannuation that will not be divided, and he will retain that superannuation, and that is a factor to be considered under 90SM(3).
CONCLUSION and nuts & bolts
In all of those circumstances I consider there should be a 70/30 adjustment of the property. The form of property orders will be as discussed with the counsel for the Father.
The Mother’s total payment should be 30 per cent of $299,000 or $89,700 but less her “keep” or net assets of $7,000 and less the costs I have determined she should pay of the unnecessary Court events caused by her failure to attend or file documents and her half share of the valuation expense paid by the Father on her behalf of $388. That payment should be $71,312 (30% of $299,000 less $7,000 less $11,000 less $388).
As discussed with counsel indemnity costs are only ordered in exceptional circumstances. The Father sought all of his costs, start to finish, on an indemnity basis, and including on two occasions whether interim applications were entirely unsuccessful.
As discussed with counsel, I must have regard to section 117 and the starting point is that each party pays his or her own costs. I have ascertained that the Father’s scale costs (pursuant to Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021, Schedule 1) when appearance was necessary or wasted due to the Mother not attending should be paid by the Mother. Those were:
·3 February 2021 First Conciliation Conference (Mother did not attend).
·15 April 2021 Interim Hearing listed after Child Inclusive Memorandum (11F), Mother did not attend.
·3 October 2021 Second Conciliation Conference, Mother did not attend.
·29 August 2022 First day of Final Hearing; Mother in partial attendance; matter unable to proceed.
Scale costs are:
DATE/ DESCRIPTION SCHEDULE 1 REFERENCE COST 3 February 2021 Item 5 $1,964 15 April 2021 Item 4 $1,964 3 October 2021 Item 5 $1,964 29 August 2022 Counsel’s fee $3,300 General allowance for further work required by Mother’s low compliance and non-attendance: $9,192 Total: $10,992 Total rounded to: $11,000
Costs of $11,000 are appropriate because of the additional trouble, time and cost for the Father’s solicitor was put to by the Mother’s intermittent participation in the proceedings.
Further, part of the property settlement to the Mother ($10,000) should be paid shortly and the balance when the Mother vacates the property.
Hence the property orders will be along the lines as discussed, and I will settle them when I have the draft in front of me from counsel for the Father. And there will be also a default provision that in the event the Father does not make the payment to the Mother that the property will be sold. However, the default provision will also be conditional upon the Mother vacating the property.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 30 August 2022
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