Homewood & Parkinson

Case [2021] FamCA 516

FAMILY COURT OF AUSTRALIA

Homewood & Parkinson [2021] FamCA 516

File number(s): ADC 747 of 2015
Judgment of: BERMAN J
Date of judgment: 16 July 2021
Catchwords:

FAMILY LAW – CHILDREN – Parental responsibility – Best interests of child – Where family violence is a factor in the proceedings – Where the parties cannot agree to an approach for the ongoing care of the children – Where the father’s conduct directed towards the mother speaks against shared parental responsibility – Where it is not in the bests interests of the children that there be shared parental responsibility. 

FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Best interests of child – Family Violence – Child’s views – Where the mother seeks that there be no time spending with the father – Where the father seeks a resumption of time initially on a supervised basis and with one of the children’s attendance to be subject to their wishes – Where there are allegations of family violence – Where the mother considers the father presents as a risk to the children – Where one of the children is resistant to spending time with the father – Consideration of whether a meaningful relationship with the father would be in the children’s best interests – Where there is a finding that the father has perpetrated family violence – Where the evidence does not suggest that the father poses a direct threat to the children – Consideration of the impact of time spending on the mother’s ability to parent the children – Where the relationship between the father and one of the children should be fostered – Orders.

FAMILY LAW – PROPERTY SETTLEMENT – Leave to file application out of time – Where the mother seeks leave to initiate property proceedings out of time – Where the father opposes the application – Where the mother initiated both parenting and property proceedings in 2015 – Where the mother discontinued the proceedings shortly thereafter – Where the mother again initiated proceedings in 2018 but only as to parenting matters – Where the mother amended her application to seek orders as to property settlement – Where the mother was declared bankrupt in 2014 – Whether hardship would be caused if leave were not granted – Whether the Court should exercise its discretion to grant leave – Where the mother has a prima facie claim – Where hardship is established – Where the mother’s evidence does not provide a ready explanation for delay – Where the father would not be prejudiced – Leave granted. 

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Future needs – Family Violence – Where the mother seeks 67.5 per cent of the property pool – Where the father seeks that each party retain property and superannuation currently held by each of them – Where the parties were in a de facto relationship for a little over five years – Where there are two children of the relationship…

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Homewood & Parkinson [2021] FamCA 516
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[2021] FamCA 516
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CaseChat Overview and Summary

In *Homewood & Parkinson*, Berman J of the Federal Circuit and Family Court of Australia determined parenting and property settlement matters between the mother, Ms Homewood, and the father, Mr Parkinson. The dispute concerned the children's living arrangements, time spent with each parent, and the division of their modest property pool. The mother alleged family violence, including physical assault and controlling behaviour by the father, which she contended posed a risk to the children and had negatively impacted her mental health. The father sought a resumption of time with the children, initially supervised, and with one child's attendance to be subject to their wishes. The mother also sought leave to file an application for property settlement out of time, having previously discontinued similar proceedings.

The court was required to determine several key issues. Firstly, regarding parenting, the court had to decide whether shared parental responsibility was in the children's best interests, particularly in light of the allegations of family violence and the mother's concerns about the father's conduct. Secondly, the court needed to determine the specific arrangements for the children to live with and spend time with each parent, considering the children's views and the impact of any proposed arrangements on the mother's ability to parent. Thirdly, the court had to consider whether to grant the mother leave to initiate property proceedings out of time, assessing the potential hardship and prejudice to either party. Finally, if leave was granted, the court was required to determine the contributions of each party and their future needs to divide the property pool.

Berman J found that a consensus approach to the children's ongoing care was not possible and that shared parental responsibility would not be in the children's best interests due to the father's low regard for the mother and the resulting anxiety and fear experienced by her. Consequently, the mother was granted sole parental responsibility, with the father to be contacted in writing regarding long-term issues. The children were ordered to live with the mother. Time spent with the older child, X, was to be as he wished, facilitated by the mother. Time spent with the younger child, Y, was to commence with supervised contact and gradually increase, contingent on the father engaging in therapeutic intervention focused on impulse control, anger management, and respectful communication. Regarding property settlement, leave was granted to the mother to proceed out of time, finding that hardship would be caused if leave were not granted and that the father would not be prejudiced. In settlement, the father was ordered to pay the mother $87,855 within 90 days, with provision for the sale of a property if payment was defaulted. The mother was to retain her separate savings, vehicle, furniture, clothing, jewellery, and any benefits from a deceased estate, while the father was to retain the Suburb C property, his separate savings, furniture, clothing, jewellery, and any benefits from a deceased estate.

Orders

Orders of the court

ADC 747 of 2015

BETWEEN:

MS HOMEWOOD

Applicant

AND:

MR PARKINSON

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

16 JULY 2021

THE COURT ORDERS:

1. That all previous orders be discharged.

2. That the mother have sole parental responsibility for X born … 2010 and Y born … 2014 (collectively “the children”) provided that the mother will contact the father in writing in connection with any long term issues involving the children and any decisions that she intends to make.

3. That the children live with the mother.

4. That X shall spend time with the father as may be agreed between the parties subject to X’s wishes provided that if X shall express a wish to spend time with and or communicate with the father then the mother will do all things necessary to facilitate the said time to be spent or communication.

5. That the father shall spend time with Y as follows:

(a) For six (6) periods of two (2) hours duration at a frequency of one (1) period each fourteen (14) days to be supervised at the B Centre upon such terms and conditions as may be nominated by the Director of the said centre.

6. That the parties will do all things necessary to facilitate the enrolment of the parties and the child at the said centre.

7. That thereafter the father shall spend time with Y as follows:

(a) That for a period of six (6) months commencing on the fourth Saturday following the publication of the report prepared by the family consultant, on each alternate Saturday from 1.00 pm until 5.00 pm;

(b) Subject to compliance with paragraph 10, for the following six (6) months thereafter on each alternate Saturday from 10.00 am until 4.00 pm;

(c) For a further six (6) months thereafter from the conclusion of school on Friday until 4.00 pm on Saturday and each alternate weekend and thereafter from the conclusion of school on Friday until 4.00 pm on Sunday on each alternate weekend.

(d) Commencing in the September/October 2022 school holidays for one half of the short end of term school holidays as may be agreed between the parties but in default of agreement the father shall have the first half of the holidays from the conclusion of school until the middle Saturday at 5.00 pm.

(e) Commencing with the Christmas school holiday period in 2022 on each alternate week but in default of agreement the father’s time shall commence from 5.00 pm on the first Saturday after the last day of the school term until the following Saturday at 5.00 pm and each alternate week thereafter.

(f) From 4.00 pm Christmas Eve until 4.00 pm on Christmas Day in 2022 and each alternate year thereafter;

(g) From 4.00 pm Christmas Day until 4.00 pm on Boxing Day in 2023 and each alternate year thereafter.

8. That the children shall spend time with the mother:

(a) From 4.00 pm Christmas Day until 4.00 pm on Boxing Day in 2022 and each alternate year thereafter;

(b) From 4.00 pm Christmas Eve until 4.00 pm on Christmas Day in 2023 and each alternate year thereafter.

9. That handover shall occur at such place as the parties may agree but in the absence of agreement either at a Police Station that is geographically close to the mother’s residence or at a Children’s Contact Service subject to availability and acceptance into the handover scheme.

10. That for a period of six (6) months from the date of this order the father shall attend upon a suitably qualified psychologist, social worker or therapist to comply with all instructions, counselling/or therapies as may be recommended by him or her with such therapeutic intervention to be directed to the following areas:

(a) Impulse control, frustration and self-awareness management;

(b) Psychoeducation regarding the physiological and psychological queues to anger;

(c) Anger arousal reduction techniques, e.g. deep breathing and calming techniques;

(d) Safe, appropriate and respectful physical and emotional ways to “release” anger;

(e) Differentiating between assertiveness and being hostile;

(f) Rebuilding relationships damaged by anger issues; and

(g) Communicating needs without disrespecting others;

and that he shall forward to the mother a document confirming that he has attended on at least six (6) sessions.

11. That each party is at liberty to receive all information, reports and photographs taken of the children from the school at which the children attend.

12. That if any of the children suffer a medical emergency the parent with whom the child is residing or spending time with shall notify the other parent as soon as is reasonably practical and advise of the nature of the medical emergency and the details of any hospitalisation or other treatment.

13. That the father is at liberty to forward gifts, presents and appropriate communication to the children to celebrate and/or commemorate their birthdays, Easter, Christmas and other special occasions provided that the mother will provide to the father appropriate contact details and/or a forwarding address.

14. That the parties are restrained and an injunction is granted restraining each of them from:

(a) Denigrating the other parent to or in the presence of the children or allowing any another person to do so; and

(b) Denigrating the other parent on any social media website or forum or allowing any other person to do so.

15. That pursuant to s 44(6) of the Act leave be granted to the mother to proceed out of time with respect to an application for the alteration of property interests pursuant to s 90SM of the Act.

16. That in full and final settlement of any claim that either party may have against the other for settlement of property or alteration of interests in property pursuant to Pt VIIIAB of the Act:

(a) That within ninety (90) days of this order the father shall pay to the trust account of Cardone and Associates for and on behalf of the mother the sum of EIGHTY SEVEN THOUSAND EIGHT HUNDRED AND FIFTY FIVE DOLLARS $87,855 (the said “settlement sum”).

(b) That in default of the payment of the settlement sum in whole or in part and should the default continue for more than thirty (30) days from the date of the prescribed payment then the parties shall do all things and sign all documents as are necessary to cause the property situate at D Street, Suburb C, South Australia (“the Suburb C property”) to be sold by such manner, at such price, and subject to such conditions as shall be agreed between the parties and in the absence of agreement as may be determined by this Honourable Court upon the application of either party.

(c) That from the net proceeds of the sale of the Suburb C property the mother shall receive so much of the settlement sum as shall remain outstanding together with default interest as calculated at the rate prescribed by rule 17.03 of the Family Law Rules 2004 (Cth) (“the Rules”) to be calculated as and from the date of default until the date of payment to the mother.

17. That the mother shall retain to the exclusion of the father:

(a) Her separate savings including funds in various accounts;

(b) Her motor vehicle;

(c) Her furniture and household contents;

(d) Her clothing and jewellery;

(e) Any benefits, rights or entitlements due or accruing to or which may vest in her under any deceased estate; and

(f) Any other real and/or personal property or financial resources in her name or possession not otherwise specified.

18. That the father shall retain to the exclusion of the mother:

(a) The Suburb C property;

(b) His separate savings including any funds in any account;

(c) His furniture and household contents;

(d) His clothing, jewellery and personal effects;

(e) All benefits, rights or entitlements due or accruing to or which may vest in him under any deceased estate; and

(f) Any other real and/or personal property or financial recourses in his name or possession not otherwise specified.

19. That each party do indemnify the other in relation to their separate debts.

20. That the proceedings be removed from the pending list of cases.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

In addition, the father seeks that the parties communicate with each other as to the health issues affecting the children and that each party be entitled to obtain copies of school reports, notices, letters and invitations to attend parent/teacher interviews or other activities to which parents are usually invited.BACKGROUND The father is 66 years of age and the mother is 37 years of age. The father was born in England and immigrated to Australia in 1972. He holds a Bachelor Degree. He is currently a self-employed professional and operates a modest business from his residential premises at D Street, Suburb C (“the Suburb C property”). He has an adult daughter from a previous relationship. The mother holds a Bachelor Degree. The mother completed a Graduate Diploma on 20 July 2010. During the course of the litigation, the mother was a self-employed professional working on a part-time basis. In October 2020, the mother closed her business and surrendered her business licence. As at the conclusion of the proceedings the mother was not working in any capacity and her only form of assistance was a government benefit, pension or allowance. The parties commenced cohabitation in November 2009 when the mother moved into the Suburb C property. Y was born in 2014 and in January 2015 on the mother’s case the parties separated albeit they were living separately and apart under the one roof. X was born in 2010. The mother and the children left the Suburb C property in February or March 2015. Neither party has re-partnered. The mother alleges that during their relationship the father was violent and verbally abusive. Moreover, the mother contends that the father engaged in controlling and coercive behaviour. The mother alleges that the father was not able to control his use of alcohol and that behaviour and his frequent use of marijuana contributed to the father behaving aggressively, evidenced by frequent and unpredictable mood swings. The mother remains concerned that the father’s aggressive, controlling and coercive conduct presents as a risk to the children, but in particular X. The mother alleges that there were incidents of physical assault by the father to X and that his observations of the father’s conduct and behaviour towards the mother has had a deleterious impact on X’s mental health, to the extent that he requires ongoing therapeutic intervention. Moreover, the mother has been diagnosed with an adjustment disorder with mixed anxiety and depressed mood. She receives therapeutic support from a psychologist and a psychiatrist. The mother contends that her anxiety and trauma is causally connected to the father’s adverse conduct. The mother commenced proceedings for property settlement and parenting orders by filing an Initiating Application on 4 March 2015. For reasons that are not entirely clear, she filed a Notice of Discontinuance of the entire proceedings on 18 March 2015. The parties are not agreed as to the extent and the circumstances of the time the father spent with the children between March 2015 and April 2017. The father considers that he spent regular time with the children unsupervised and on occasion including overnight time.

Evidence

Evidence Before The Court

I was concerned that the matters of importance raised by Ms L may nonetheless have the potential to be considered as having prejudged the central issue in the parenting proceedings and out of abundance of caution, I ordered that a different family consultant be tasked to provide an update or addendum report.THE EVIDENCEThe mother The mother introduced into evidence a photograph taken on 1 May 2012 which she considers is evidence that the father used marijuana. Exhibit “2” in the proceedings consists of photographs taken on 19 January 2015 which the mother contends shows bruising to her upper arm caused by the father. The mother agreed that the final separation was on or about 26 February 2015 but that she was preparing to leave some time prior to that date. The mother was declared bankrupt on 9 August 2014. She commenced family law proceedings on 4 March 2015. Section 90SP of the Act requires that a bankrupt who becomes a party to proceedings for settlement of property is required to give notice of the application to the trustee in bankruptcy. The mother conceded that she did not give the requisite advice. The mother was not able to explain adequately why she neglected to do so. On 21 January 2015, the mother made an application to Centrelink to obtain a pension benefit or allowance. She obtained accommodation in N Town and agreed that she and the children had spent time with the father at his Suburb C property. The mother denied that she and the father shared the same bed and breakfast during a holiday in P Town. Similarly, the mother denied that the parties and the children booked a holiday in the F Region for the 2017 Easter long weekend. The father contends that the parties and the children travelled in the same car whereas the mother denied that they travelled together or that they stayed in the same premises. The mother was challenged over her recollection of the F Region holiday and it was put to her that the father cooked a barbeque for the family on Good Friday, went to a restaurant on Saturday and had a pizza meal on Sunday night. The mother continued to deny the proposition that the parties had shared a holiday in the F Region. The mother’s evidence was unconvincing and I consider on the balance of probabilities that the father’s evidence of a shared holiday in the F Region is more credible. The mother agreed that in 2016 the parties and the children went to Sydney on the same flight. The mother accepted that the father was present but it was her recollection that it was uncomfortable for the children. When pressed, the mother also agreed that the parties and the children attended a Wiggles concert in April 2017. The mother was dismissed from her employment in February 2017. The mother agreed that she had contacted the father for help and advice. The father apparently referred the mother to a barrister specialising in employment law and then to a solicitor to explore whether the mother had a claim for unfair dismissal. It appears that the mother also used the father’s car park in the city and for a significant time she retained a key to the father’s Suburb C property. It is not contested that the father had a key to the mother’s property however, she rejected the proposition that the father was given a key by her and she considers that he got the key by some other indirect means.

Decision

Reasons for decision

I do not consider it possible for the parties to engage in a consensus approach to the ongoing care of the children. The mother should have sole parental responsibility. It would not be in the children’s best interest for the parties to have shared parental responsibility given the low regard in which the father holds the mother and the reasonable response of the mother in terms of an exacerbation of her anxiety, distress and fear of the father following his conduct of the low regard in which she is held by him.Conclusion I propose to make orders that X would not be obliged to spend time with the father other than as he may wish and if so the mother is to facilitate the same. I will make orders that Y spend time with the father, initially on a supervised basis but then gradually increasing in both time and scope. The father will need to engage in therapeutic intervention to assist the father in gaining insight into the deleterious impact of family violence upon the children and the mother. The process will not be rapid but in doing so it may well provide at least some comfort to the mother and give an opportunity to X to view his father in a different light. I am reminded of X’s remarks to Ms M as to what it would require before X may wish to see him again. I propose to make orders as sought by the mother in terms of the father’s ability to access school and other records and information pertaining to the children. I make no order that requires the mother to disclose the residential address and whereabouts of the children but I note that it is not possible to limit or delineate the circumstances in which Y may inadvertently disclose information that might reveal where he lives.PROPERTY SETTLEMENT At the commencement of the trial each party submitted a balance sheet which they considered represented their separate interests in their assets, liabilities and superannuation entitlements. With some amendment, there was agreement that the assets and liabilities as set out in the father’s case outline document is the most accurate representation of the property pool. I propose to ignore the small credit balances held by each of the parties and also the husband’s credit card liabilities. The mother holds a modest superannuation interest in the sum of $32,768. The husband manages a self-managed super fund which totals $70,249. The father’s treatment of his superannuation entitlement is to separate the component that was acquired before the commencement of their relationship presumably to highlight the extent of the father’s pre-relationship contribution of the sum of $45,000 sought to be quarantined by the father, of that sum $42,000 is comprised in a car park. I do not propose to accede to the treatment as proposed by the father of his superannuation entitlement. I am obliged to bring to account the assets and liabilities of the parties as are found at the date of hearing and thereafter to give weight to the separate contributions of the parties relevant to the acquisition of property by each of them.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.