HOSKING & BUTCHER - [2015] FCCA 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOSKING & BUTCHER

[2015] FCCA 2019

Catchwords:

FAMILY LAW – Children – psychiatric assessments of the parents – father exhibited a paranoid delusional set of beliefs – need to protect the children from physical or psychological harm – capacity to provide for the children’s needs – family violence – sole parental responsibility – children to live with mother and have no contact with father.

FAMILY LAW – Property – de facto relationship – is it just and equitable to make any orders – the parties existing legal and equitable interests in property – contributions – the father’s significantly greater initial contributions – homemaker and parent contributions – subsection 90SF(3) factors – avoidance of Child Support obligations – physical and mental capacity for gainful employment – funds in children’s bank accounts – no order for alteration of property interests.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA, 75, 79, 90SF,90SM

Family Violence Protection Act 2008 (Vic)

Bevan & Bevan (2013) FLC 93-545
Bigelow & Reuter [2006] FamCA 1455
KB & TC (2005) FLC 93-224
Champness & Hanson (2009) FLC 93-407
Clauson & Clauson (1995) FLC 92-595
C & C (2005) FLC 93-220
Ferraro & Ferraro (1993) FLC 92-335
Hickey&Hickey (2003) FLC 93-143
Hirst & Rosen (1982) FLC 91-230
Lee Steere & Lee Steere (1985) FLC 91-626
Mallet v Mallet (1984) FLC 91-507
MRR v GRR (2010) FLC 93-424
Mulvaney & Lane (2009) FLC 93-404
Parshen & Parshen (1996) FLC 92-720
Pierce v Pierce (1999) FLC 92-844
R v Freeman [2011] VSC 139
R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248
Rolfe and Rolfe (1979) FLC 90-62
Russell v Russell (1999) FLC 92-877
Runcorne & Raine [2008] FamCA 837
Stanford v Stanford (2012) FLC 93-518; (2013) 293 ALR 70
Wainder & Wainder (2011) FLC 93-473

Applicant:

MS HOSKING

Respondent:

MR BUTCHER

File Number:

MLC 4128 of 2014

Judgment of:

Judge Roberts

Hearing dates:

16, 17 and 18 March 2015

Date of Last Submission:

18 March 2015

Delivered at:

Launceston

Delivered on:

5 August 2015

REPRESENTATION

Counsel for the Applicant:

Ms E Swart

Solicitors for the Applicant:

Cahill & Rowe Family Law

The Respondent appeared unrepresented

Counsel for the Independent Children's Lawyer:

Mr L Marchetti

Solicitors for the Independent Children's Lawyer:

David Stagg Tonkin & Company

ORDERS

That MS HOSKING (“the mother”) have sole parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2010 (“the children”).
That the children live with the mother.
That MR BUTCHER (“the father”) is not to spend time with, or communicate with the children or either of them.
That MS HOSKING be and is hereby appointed to be the sole signatory in relation to (omitted) Bank Kids Saver account number (omitted) in the name of X born (omitted) 2008 and (omitted) Bank Kids Saver account number (omitted) in the name of Y born (omitted) 2010.
That the preceding Order hereof is sufficient authority for the (omitted) Bank to enable MS HOSKING to operate those two accounts to the exclusion of MR BUTCHER.
That the mother’s application for property orders is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hosking & Butcher is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

MLC 4128 of 2014

MS HOSKING

Applicant

And

MR BUTCHER

Respondent

REASONS FOR JUDGMENT

The applicant is MS HOSKING (“the mother”) and the respondent is MR BUTCHER (“the father”). They used to live together in a de facto marriage relationship in Victoria and they have two children; seven year old X and four year old Y.
Their main disputes are in relation to:
·what parenting orders should be made by the Court under Part VII of the Family Law Act 1975 (“the Act”);
·what property orders should be made under Part VIIIAB of the Act; and
·who should be the designated signatory in relation to particular bank deposits held in the names of the children (because the bank currently requires the signatures of both parties).
The parenting orders sought by the mother are essentially that;
·she have sole parental responsibility for the parties’ two children;
·the children live with her; and
·the children have no contact with the father at all.
The father is seeking orders that the children live with him and the mother equally on a week and week about basis.
At the end of the hearing, the Independent Children’s Lawyer supported “an order being made that the children live with their mother, that she have sole parental responsibility for them (and) that there be no communication or face to face contact with the father”.[1]
[1] Transcript: Page 254
In her application filed on 15 May 2014, the mother sought an order that the father pay her “such sum as is deemed appropriate by the Court” and consequential orders if the payment was made. The property orders now sought by the mother can be summarised as follows:
·That the father pay to the mother the sum of $288,000 within 90 days; and
·That in the event that the sum of $288,000 is not paid within the 90 day period, the father’s home be sold and the mother receive 60% of the net sale proceeds.[2]
[2] The orders ought by the mother at the end of the hearing were detailed in a Minute of Orders Sought provided by her counsel on 18 March 2015.
The father’s position was that there should be no property orders at all.

Terminology

This matter was heard over three days on the dates set out on the cover sheet to these Reasons. For convenience I will refer to those particular days as “Day 1”, “Day 2” and “Day 3”.
I will refer to the children collectively as “the children”, or individually as X and Y.
From time to time I will simply refer to the Independent Children’s Lawyer as “the ICL”.
At the hearing, the mother relied upon an affidavit and a financial statement. Both were filed on 3 March 2015 and I shall refer to them as “the mother’s affidavit” and “the mother’s financial statement”.
The father had filed an affidavit on 2 September 2014 and I will refer to that as “the father’s first affidavit”. He subsequently filed an affidavit and a financial statement that purported to have been sworn on 6 February 2015. For reasons that are unnecessary to recite here, I required him to re-swear those documents and I will refer to them as “the father’s second affidavit” and “the father’s financial statement”.
A Family Report dated 19 January 2015 was received into evidence and I shall refer to that as “the Family Report” and to its author as “the Family Consultant”.
A written psychiatric assessment of both the father and the mother was also received into evidence. I shall refer to it as “the psychiatric assessment” and to the psychiatrist who prepared that assessment as “the psychiatrist”.
I will refer to the Victorian Department of Health & Human Services as “DHS”.
In Mills & Watson, [3] FM Walters (as he then was)[4] said:
Although the law now refers to a child “spending time” with a person (usually a parent) with whom the child does not live, I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[3] Mills & Watson [2008] FMCAfam 2
[4] Now Justice Walters of the Family Court of Western Australia
In both Carpenter and Lunn [5] and Chappell and Chappell [6] slightly differently constituted Full Courts of the Family Court had expressed similar views when they said:
… … The new legislation replaced the legal concept previously known as “contact” with the concept of a child “spending time” with someone. The legislation, however, does not prohibit the use of the noun “contact” in its everyday sense. In these reasons, we propose to use “contact” interchangeably with expressions such as “spend time with”. In doing so, we have not ignored the legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary.
[5] Carpenter and Lunn (2008) FLC 93-382 (Finn, Boland & Thackray JJ -19 August 2008)
[6] Chappell and Chappell (2008) FLC 93-377 (Warnick, Boland and Thackray JJ -15 September 2008)
In my view, those comments make grammatical and legal common sense, so from time to time in these Reasons I will use the word “contact” interchangeably with terms such as “spend time with” and “communicate with”.
The parties owned a number of properties and the following terms will apply in these Reasons:
·“Property L” - a property previously owned by the mother at Property L;
·“Property C” - a property still owned by the father at Property C;
·“Property A” - a property at Property A, which the father owned at the start of the parties’ relationship but which has since been sold;
·“Property R” - a property at Property R, which was acquired during the parties’ relationship and has since been sold.
The father also has a one-tenth share in a property at Property S in Victoria. It is accepted that the property has been held by his family for approximately 40 years and that neither the father nor the mother made any contribution to that property during their relationship. I will refer to it as “the coastal property”.
The mother conducted an (omitted) business during the parties’ relationship known as “(business omitted)”. I will refer to it as “the (omitted) business”.

Brief background

Where I refer to facts in these Reasons, they should be regarded as findings of fact, unless a contrary intention is clear from the context, particularly when there is a dispute between the parties in relation to those facts.
The father is aged 44 years and the mother is 40 years old. They commenced a relationship in mid-2006 and started living together in (omitted) 2007. At that time, the mother owned Property L, furniture and chattels and a motor vehicle. She also had some superannuation. The father owned Property A, Property C, his interest in the coastal property, a motor vehicle and other chattels. He also had superannuation.
The father had purchased Property R with the assistance of borrowed funds shortly before the parties started living together.
X was born in (omitted) 2008.
In 2009 the father sold Property A and applied the funds towards the Property R mortgage and renovation costs of Property R and Property C.
Y was born in (omitted) 2010 and between February and June of that year, the parties lived at Property R. Later that year, the mother started the (omitted) business with $20,000 re-drawn from the mortgage facility secured over Property L. That was subsequently repaid when Property R was sold later in 2010. The proceeds from the sale of Property R were applied towards the Property L mortgage, renovations to Property L and for the (omitted) business.
The parties separated in September 2012. In that month an interim intervention order (“IVO”) under the Victorian Family Violence Protection Act 2008 was obtained by the police for protection of the mother and the children. In February 2013 the father was found guilty of assaulting the mother at the time of separation but no conviction was recorded.
After the parties’ separation, the father continued to occupy Property C (and was doing so at the time of the hearing).
The children spent time with the father on 24 March 2013, during which time the father sent the mother a photograph via text message showing the children with their mouths taped up with duct tape. Y was naked in that photograph. I will refer to that incident further below (“the duct tape incident”).
On 28 March 2013 the mother attended at Property C with two work colleagues to collect personal belongings. The mother alleged that the father became abusive and pushed her several times. This was reported to the police a few days later and the father was charged with assault.[7]
[7] The father admitted that he had been convicted on 23 January 2014 of that assault and two IVO breaches – see Transcript at page 242
In May 2013, a final IVO against the father was obtained by consent (without admissions on the father’s part) with the mother and the children being named as the people requiring protection.
The children last had contact with the father in August 2013.
The IVO was varied in August 2013 to include the mother’s workplace address after the father attended there and dumped her personal belongings in the car park. In November 2014 the validity of the IVO was extended until November 2017.
In relation to the IVOs, the father conceded in his interview with the psychiatrist that “there had been some twenty breaches and that he’d been charged and fined $1,000 in December 2013”.[8]
[8] See page 4 of the psychiatrist’s report
In 2014 the mother closed the (omitted) business. She sold the stock for approximately $20,000, traded in a motor vehicle for $6,000 and had received a $13,000 insurance payment for a truck that had been written off in an accident.[9]
[9] Paragraph 59 of the mother’s affidavit
The mother commenced these proceedings by filing her Application on 15 May 2014. (The father’s Response was not filed until 10 February 2015.)
On 1 July 2014 Judge Curtain made orders which inter alia provided for:
·the parties to attend upon a Family Consultant pursuant to section 11F;
·the appointment of an ICL;
·the parties to attend a Conciliation Conference;
·the parties to attend upon the psychiatrist for psychiatric assessments;
·the restraint of the father from attending or coming within 200 metres of the children’s schools or childcare; and
·various orders in relation to valuations of property.
Judge Curtain also made interim orders that the children live with the mother and that the “question of the time the father is to spend with the children be reserved”.
The Family Consultant provided a Section 11F report on 22 August 2014.
On 4 September 2014 Judge Curtain made orders setting the matter down for hearing in March 2015 and for a Family Report to be provided by the Family Consultant. The orders specifically requested that the Family Consultant read the psychiatrist’s report that was then to be “shortly released”. The Family Report was released on 21 January 2015.
Those orders of 4 September 2014 also required the ICL to provide DHS with copies of the psychiatrist’s report, the father’s affidavit and the Family Report, and that “after reading same the relevant officer of the Department of Human Services is to advise the Court whether they will become a party to proceedings”.[10] The interim orders referred to in paragraph 39 above were also continued.
[10] Order 17
The Conciliation Conference scheduled for 29 September 2014 did not proceed because the father did not attend and because he had not filed a Financial Statement. The Registrar ordered that costs be reserved.
The mother sold Property L in the latter part of 2014 and after discharging the mortgage and paying expenses, she received $171,424.[11]
[11] Paragraph 60.2 of her affidavit
The matter came on before me for hearing on 16 March 2015. The father appeared without legal representation. The mother was represented by counsel, as was the ICL.
Counsel for DHS appeared as amicus curiae and indicated that she had “a short message” that “the Department’s protective concerns (had) been borne out by the reports of [the psychiatrist] of 2 September 2014 and the Family Report of [the Family Consultant] of 19 January 2015” and that DHS “is here to advise the court that it supports an order for no contact, for the father to have no contact with the children”.[12] Counsel for DHS then withdrew.
[12] Transcript: Page 2
I should say at this point that, because DHS chose not to intervene in these proceedings, I have not given any weight to the remarks of counsel for DHS in my decision making.

Credit

Very often in Family Law proceedings the parties see the same event from different perspectives which are clouded by an emotional overlay. Judge Brown put it very well in Ackerman & Ackerman.[13]
Inevitably, proceedings between former marital partners evoke strong emotional responses. These emotions are likely to inform how parties recollect past events and, when those events need to be reconstructed, for the sake of adversarial proceedings such as these, it is only to be expected that such a subsequent reconstruction should favour the party making it.
[13] Ackerman & Ackerman [2013] FMCAfam 109, at paragraphs 137 and 138
In this matter the parties’ versions of events vary so markedly that it is clearly not just an issue of different perspectives. It is therefore necessary for me to determine which versions of events are more likely to be accurate. In general, the father’s versions are so exaggerated, sometimes to the point of being bizarre, that I find that the mother’s versions of those events to be more likely.
For example, I am satisfied that the mother was moving a very heavy cast-iron bath (on her own because the father would not assist her) and that bath accidentally fell on Y’s toe, with the unfortunate consequence that his toe had to be amputated. The father’s version of that event was bizarre and I set it out below:
February 2013 [the mother] cut off by throwing a steel bath at Y, his toe and then requested [the father] to breach a family violence order to care and attend for Y in hospital, staying overnight.
This action of the perpetrator [mother] could have easily resulted in the death of the child or children due to a negligent situation and again no report taken nor an investigation or charges laid as they would have been if [the father] had been the perpetrator and treated with a fine tooth comb. The children should have been in a safe place well out of the range of such an intensely heavy object, a full size cast iron bath.[14]
[14] Paragraphs 22 and 23 of the father’s first affidavit
The concept of the mother throwing “an intensely heavy object, a full size cast iron bath” at her three year old son simply defies belief.
In the first paragraph of his first affidavit, the father says that while he was preparing the family evening meal on 17 September 2012, as a result of an attack on him by the mother the “children were taken hostage by [the mother]”. He goes on to say that Victoria Police supported the mother “breaching the rights of a child” contrary to International Law.
The mother’s version of that event on the day that they separated is far more plausible:[15]
Later that evening, a verbal and physical altercation occurred whilst [the father] was preparing dinner at the family home situated at [Property C]. An argument had developed between us and [the father] became very agitated. At the time, he was holding a large kitchen knife in his hand which frightened me. As a result of threats, X hid in a cupboard. No specific threats were made against me. However, I was very concerned so I grabbed the children and took them to the neighbour's residence. The Police attended and spoke with [the father] who was still very agitated at that time. Given the Police also held concerns for my own and the children’s safety following this incident, the Police applied for and obtained an Interim Intervention Order against [the father] on 21 September 2012.
[15] See paragraph 12 of her affidavit
In the circumstances, I generally prefer the mother’s evidence to that of the father when they differ.

Relevant law – parenting orders

Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration,[16] and in determining what is in a child’s best interests I must consider the matters set out in section 60CC of the Act. That section refers to “primary considerations” and “additional considerations”.
[16] Section 60CA

There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[17]
[17] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant.[18]
[18] Subsection 60CC(3)
Each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.[19]
[19] See Mulvaney & Lane (2009) FLC 93-404 at paragraphs 76 and 77 and Champness & Hanson (2009) FLC 93-407
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence.[20]
[20] Section 61DA
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[21]
[21] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[22]
[22] See subsections 65DAA(2) and (3)
The High Court decision of MRR v GR[23] has clearly stressed the importance of what is “reasonably practicable”. Their Honours[24] made it clear that if it is not open to a court to find that it is reasonably practicable, within the meaning of s 65DAA(1)(b) of the Act for a child to spend equal time or substantial and significant time with each parent, then it is not open to a court to consider making an order as described in s 65DAA(1)(c).[25]
[23] MRR v GR (2010) FLC 93-424
[24] French CJ, Gummow, Hayne, Kiefel And Bell JJ
[25] Also see Wainder & Wainder (2011) FLC 93-473
It is clear that the court is not restricted to considering only the proposals put forward by the parties.[26]
[26] See KB & TC (2005) FLC 93-224

Discussion

In deciding what parenting orders I should make, I will consider the relevant evidence in the light of the considerations under section 60CC of the Act. However, before I do that, it will assist an overall understanding of this matter if I refer to matters contained in the psychiatrist’s report.

The psychiatric assessments of the parties

The psychiatrist summarised his assessment of the mother as follows:
SUMMARY
[The mother] described an isolated rural upbringing. Her father in particular was strict and controlling. As a child she was shy and compliant, and as a teenager she sought freedom and escape. She moved to Melbourne where she worked and studied (course omitted).
[The mother] recalled two isolated incidents of abuse. In hindsight she now believes that her childhood rendered her vulnerable to seeking approval from others and she described a number of co-dependent relationships with men prior to meeting [the father] at a time when she had just separated from an earlier partner. She has come to understand her various vulnerabilities in regard to her choice of partners. On meeting [the father] she was initially drawn to his dependent and vulnerable emotional state consistent with a number of her earlier relationships, that is, her experience of him needing her was part of the psychodynamic between them.
As the relationship continued, she found him to be very different but by this time she’d already had X and eventually Y. [the mother] came to experience [the father] as a man who had little ability to relate at an adult level and similarly evidenced little understanding of the needs of children or interest in them. Conjoint counselling served to underscore his sense of entitlement.
[The mother] felt increasingly trapped and depressed and remained focussed on the welfare of the children and her need to protect them. According to [the mother], [the father]’s emotional functioning varied. He was unstable and often impulsive, could be threatening and was eventually charged with two counts of assault during the relationship at the time of separation and in the post-separation period. He has breached the Orders on a number of occasions and despite being fined for those, he continues to pursue her, making various threats in the process.
[The mother] remains highly concerned as to the children’s welfare in light of his inability to accept the limits of the Court, and has visited the children at their new school. She acknowledged that she had exercised poor judgement in allowing [the father] to have access to the children on the basis of the need to keep peace in their relationship.
DIAGNOSIS
As a result of her experiences both during the relationship and in the post-separation period, [the mother] has developed symptoms consistent with an Adjustment Disorder with Depressed and Anxious Mood and features of Traumatisation.
When he was cross-examined by the ICL, the psychiatrist was asked whether it was his view that continued interaction between the father and the mother would aggravate or worsen the mother’s condition. He said that it was. Indeed, he was asked whether sending letters and cards to the children would have an impact upon the mother, and he said that it “would quite likely continue to exacerbate her current psychiatric condition”. The ICL then asked if it would be best for the mother for such communication to cease, and the psychiatrist said that it would.[27]
[27] Page 30 of the transcript
The psychiatrist’s summary of the father’s assessment was as follows:
SUMMARY
Whilst [the father] described a normal childhood which he said was “great”, there are indications, based on [the mother]’s account that his childhood and family experience were anything but this. If the account allegedly provided by him to her is accurate, that description would be consistent with emotional neglect and abuse of some severity and would be consistent with a lack of secure attachment and emotional damage.
His presentation at interview was unusual and his emotional functioning varied across the assessment. There was evidence of conspiratorial thinking and paranoid delusional belief system. His account in regard to [the mother] was unremittingly critical and disparaging. [The father] described the children in proprietal terms and evidenced little in the way of connection or ability to experience them as separate from his own needs. He confirmed aspects of [the mother]’s Affidavit material, acknowledging that he deliberately provoked her and there was every indication that he had used the children to taunt her (duct tape incident). He spoke of the timeout incident involving X when he locked her out of the house in the dark as a normal and appropriate form of child discipline.
When questioned as to his reaction to the separation from [the mother], he suddenly fell quiet and cried, his presentation at that time strongly resembling a sad little boy. On other occasions he was grandiose and vexatious, and spoke vengefully about bringing the Police to account via his various correspondences to the Attorney General. Throughout he remained utterly convinced the current Contact Orders were orchestrated via a conspiracy involving [the mother] and the Police. He remained vengeful during the assessment and intent on restoring his rights to have the children.
DIAGNOSIS
*   Severe Personality Disorder (paranoid, narcissistic, grandiose & borderline features)
*   Adjustment Disorder with Depressed Mood
*   Psychosexual Disturbance
Under the heading “Opinion” towards the end of his report, the psychiatrist said:
[The father] is self-represented and continues to raise allegations in regard to [the mother], alleging a conspiracy to deprive him of his relationship and contact with the children, alleging that she has taken them hostage. His presentation was both unusual and of concern, and his emotional state varied across the assessment, in the process, exhibiting evidence of a paranoid delusional set of beliefs in the context of an unstable core severe Personality Disorder with narcissistic, grandiose and borderline functioning. In addition, at times he was childlike and vulnerable and there are strong suggestions of sexual disturbance with exhibitionistic and inappropriate behaviours around children, but not his children.
I am not surprised that the psychiatrist stated that the father exhibited a “paranoid delusional set of beliefs”, because that is consistent with other evidence before the court.
During his cross examination of the mother, the father mentioned the records of “(omitted) Health” and I pointed out that at that stage I had not seen any such records. The father responded to my query as follows:
What I’m putting to [the mother] is that there was a deliberate attempt by (her) to have me incarcerated on a mental health basis to control the children and to get access to the money.[28]
[28] Transcript: page 127
Some subpoenaed records from “(omitted) Health Mental Health, Drug and Alcohol Services” were subsequently provided to me and are Exhibit “ICL3”. The first page of that Exhibit is a record created when the father attended at the (omitted) Hospital Emergency Department on 23 November 2012. It states that he “Self presented to ED wanting a diagnosis” and the following is recorded:
[The father] is a 42 yo man who works as a (occupation omitted). He was in the paediatric waiting room of the emergency dept. and not the main waiting room. Was in a relationship with [the mother] for 7 years and they separated two months ago with her taking out an AVO. [The father]’s motivation for attending ED today was in an attempt to “get a diagnosis and treatment” so he could tell [the mother] that he was getting help and would be able to move back into the family home. They have court on Tuesday about the intervention order. … … He will shortly be returning to the family home while [the mother] and the children move out.
He gives a long history of sexually deviant behaviour and anger issues. Gives accounts of getting into physical altercations or road rage incidents. Said that on a few occasions he has exposed himself and masturbated when confronted on the road. He denies he was confronted for this or that he was charged by the police. There were other incidents involving children. A couple of months ago he and [the mother] attended a wedding where she was the bridesmaid. [The father] started dancing with the brides 4 yo daughter who he did not know and picked her up, cuddling her and kissing her head until adults intervened. He says he was “missing” her recently and went to the house at 0200 and [the mother] called the police.
That (omitted) Health record also states: “Lengthy phone call to [the mother] at [the father]’s request. She gives a very concerning history about his behaviours.”
It is clear from Exhibit “ICL3” that the father voluntarily attended at the (omitted) Hospital and the mother’s input was the result of a specific request by him to hospital staff to telephone the mother. His attendance at the (omitted) Hospital was “to ‘get a diagnosis and treatment’ so he could tell [the mother] that he was getting help and would be able to move back into the family home” and it was not a “deliberate attempt by (the mother) to have (him) incarcerated on a mental health basis to control the children and to get access to the money”. However, it is certainly suggestive of the father being both delusional and paranoid at that time.
I note that when I asked the mother whether she had deliberately attempted to get the father incarcerated on mental health grounds, her response was: “No, I just wanted (him) to get some help”. I accept that to be true.

The section 60CC considerations

Primary considerations

In cases that come before the Court, the benefit to the children of having meaningful relationships with both parents is very often in tension with the need to protect the children from harm from abuse neglect or family violence. Subsection (2A) of section 60CC now requires courts to give greater weight to the latter consideration.
Family violence is defined in the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful”.[29]
[29] See s.4AB(1)
I am satisfied that there were numerous instances of behaviour on the part of the father that caused the mother (and on some occasions, children) to be fearful of the father. One such instance is set out at paragraph 53 above. Further, the fact that the father breached IVOs on numerous occasions persuades me that the father’s violent behaviour (as defined in the Act) was not limited to that incident on the day on which the parties separated.
I also accept the evidence of the mother as set out in paragraph 10 of her affidavit:
10. [The father] was also directly violent towards me, with such violence occurring in front of the children. For instance:
10.1 [The father] frequently swore at me and verbally abused me, including calling me a “cunt, slut, dick bitch and fuckbag”, with such denigration taking place in front of the children. On one occasion, he also told me in the presence of the children "it's me against you three cunts'.
10.2 On one occasion in approximately 2011 we were living at [Property L], [the father] was mopping the floor and he had become irate given he kept asking everyone to get out of the kitchen. At the time, I was trying to make dinner. [the father] lost his temper and he ended up smashing the mop to pieces, damaging the walls and calling me a “slut”. This occurred in front of the children.
10.3 [The father] would often push me aggressively. He generally would not hit me but he would push me or break things. He would throw plates or break a light.
10.4 On or about June 2011 I complained to [the father] about his disciplining of X. He had put X outside in the dark. When I complained, [the father] pushed me across the room with his hands on my chest and screamed at me “get the fuck out of my house”.
10.5 If ever [the father] noticed a bruise on my arm he would hit it. He would “pressure point” either myself or the children. He would dig his finger into pressure points on my body or the children's bodies. He did it a lot. The children hated it.
In relation to the incident set out in sub-paragraph 10.4 of her affidavit, the mother also said this at sub-paragraph11.3:
On 5 June 2011, [the father] placed X outside in the dark at 9:00pm as a form of punishment. At the time, X was only 3 years old. [The father] then turned the lights off in the house in order to scare her. [The father] guarded the door and would not allow me to go out and get X. This incident was very distressing for both X and I.
When he was cross-examined about the matters referred to in the two paragraphs immediately above, the father’s general responses were to deny the incidents. However, I generally accept that the mother’s evidence is more accurate.
In relation to the father placing X outside as a form of punishment, I do not see that as deliberate abuse, but rather that the father did not realise that it was distressing to X and was therefore abusive.
In my view, it is also appropriate to consider whether the duct tape incident was another instance of the father being abusive of the children.
On 24 March 2013, the father had the children on his own for the day. The mother sent him a text message to ask how he was going and how the children were. The father’s responding text message was: “Being fucks”. The mother queried that and the father replied: “Oh little shits, u name it”. The mother then sent a message saying: “Bring them back if you want”, to which the father replied: “All good, they will conform”. He then sent a picture message with an accompanying text message: “Go(t) em sorted!”. The picture was of the children gagged with tape over their mouths and Y was naked in that picture.[30]
[30] See paragraph 41 of the mother’s affidavit and Annexure “H14”. The picture of the children is Exhibit “ICL1”.
It is not surprising to me that the mother said that his picture message caused her serious concern.[31]
[31] At paragraph 41 of her affidavit
During his closing submissions, the father attempted to portray the whole incident as something that was “playful” which had been misinterpreted.[32] My concern is that, even if it was not deliberately abusive, the father did not appear to take the children’s perceptions of that incident into account. In that regard, the Family Consultant stated:
His suggestion that he placed duct tape over the children's mouths as a joke on the mother is unconvincing as X said during the s 11F interviews she and Y did not like their father doing this to them, and she would be annoyed if he did this again. This suggests he may have applied the tape against their wishes.
[32] Transcript: Page 271
There is nothing in subsection 60CC(2)(b) that suggests that “abuse” must be intentional or deliberate before it can be taken into account.

Relevant additional considerations

The children’s views

In the Family Report, the Family Consultant said this at paragraph 63:
Although the children indicated during the preparation of this report and during the s11F interviews that they wished to spend time with their father, it is proposed that minimal weight should be applied to their views given their young and tender ages. They have not spent time with [the father] for almost two years, and Y in particular would likely have negligible memories of him. Further, aside from the belief their father has been “naughty” they would have no understanding of the other concerns that have been raised in this matter regarding their father’s behaviour and the risk this may pose to their safety and wellbeing.
I accept that to be a proper summation of the weight that I should attribute to the children’s views.

The relationships of the child with the parents and other people

There is nothing in the evidence before me to suggest that the children have anything other than a warm loving relationship with their mother. The Family Consultant stated: “The children were noted to have a good relationship with their mother and to engage appropriately and warmly with her when she signed them into and out of the childcare room”.[33]
[33] Paragraph 62 of the Family Report
It is unfortunate that the mother did not file an affidavit by her partner, and he was not interviewed for the purpose of the Family Report. However, the Family Consultant noted that “X spoke positively about her mother's partner … and indicated that she was very happy living with her mother and stepfather. She gets on well with (his) two adult children”. [34]
[34] At paragraph 45
The Family Consultant also noted that Y described the mother’s partner as “pretty good” and said that he (Y) also gets on well with her partner’s adult children. Y said that he would be happy if his mother and her partner stay together.[35]
[35] At paragraph 48
The children have not spent any time with their father for almost two years, and given their ages, is likely that their memories of him are fading.

The extent to which the parents have fulfilled their obligations to maintain the children

It is quite clear that the father does not wish to pay any Child Support for his children. He has even opened a special bank account in Y’s name in order to hide his earnings from the Child Support Registrar. As a consequence, it is quite clear that since the party separated, the mother has been almost entirely responsible for the financial support of the children.

The father’s attitude to the payment of Child Support is somewhat coloured by his view that the Child Support Registrar is engaged in a conspiracy with the mother and others to keep his children “hostage”. Consequently, he considers that any money paid by way of Child Support can be regarded as “ransom money”. I will refer to this attitude further below.

The attitudes of the parents to the child and parental responsibilities

I have no concerns about the mother’s attitude to the children or to her parental responsibilities. It is quite clear that she was very concerned about their safety and emotional well-being. However, I cannot say the same about the father’s attitudes.
I have referred above to the father’s attitude to his responsibility to pay Child Support, so I need not say anything further about that.
It is clear from what I have stated at paragraph 67 above that the psychiatrist was of the opinion that the father displayed a proprietorial attitude to his children. It is also clear that the Family Consultant was of the same opinion. He said:
During interview [the father] moved from being quite calm, relaxed and controlled to at other times being tearful and upset about the wrongs he perceives have been perpetrated against him. This emotional lability is concerning, particularly because at no time during any of his interviews did [the father] display any understanding of, or insight into, the children's emotional needs. His entire presentation was entirely concerned with his own needs and entitlements regarding the children, and this proprietorial mindset is deeply troubling in this matter. [36]
[36] At paragraph 66 of the Family Report
He also said:
He has displayed a proprietorial attitude towards them and provided no evidence to suggest he understands and is committed to meeting their needs or best interests. … Instead he blames everyone else for his difficulties. His proprietary attitude towards the children is of particular concern in this context.[37]
[37] At paragraph 73
I accept the opinions of those two independent experts and I note that, in the context of this case, this particular consideration is inextricably linked to the considerations set out immediately below.

The capacity to provide for the children’s needs

What I have set out above shows clearly that the father is unable to separate his own needs from those of the children.
On the other hand, nothing in the evidence causes me to have any concerns about the mother’s willingness and ability to provide for the children’s physical needs, or for their emotional and intellectual needs.

The practical difficulty and expense of the child spending time with and/or communicating with a parent

At paragraph 41 of her affidavit the mother says that following the “duct tape incident”, she insisted that the father’s time with the children be supervised. However, it is clear that she has moved away from that position since then, and she is now seeking orders that there be no contact at all between the father and the children.
At paragraph 42 of her affidavit, she said:
The children have not seen [the father] at all since August 2013. Given my concerns regarding [the father]’s mental health and his volatile behaviour leading up to and since separation, I am not prepared for him to see the children. Previously I had been prepared to agree to supervised contact. However, I have been shown nothing that would indicate to me that [the father]’s behaviour has in any way changed or that he has obtained any treatment. I am scared of [the father]. I am scared for the safety of myself and my children. I do not believe it is in the children’s interest to have any contact whatsoever with [the father].
At paragraph 72 of the Family Report, the Family Consultant said this about the difficulties of supervised contact:
An important consideration in this matter is whether or not the children should spend time with their father, and if so whether such time should be supervised. It is proposed that if such time is to be supervised two issues should be considered. Firstly, whether this is to be an open-ended and ongoing arrangement, something that is not usually desired by the Court, particularly when private (ie a family member) supervisors are unavailable or unsuitable. The other issue concerns the cost of supervision where a professional agency is employed. It is proposed that if the Court determines that ongoing and open-ended supervision is not an appropriate option and that unsupervised time would not be in the best interests of the children, the children will ultimately cope with an order for no time with their father. This is suggested by their young ages, the positive nature of their relationships with their mother and stepfather and the care they have obviously received since separation.
In my view, that fairly summarises the difficulties in relation to continuing contact between the father and the children.

Is it preferable to make an order least likely to lead to further proceedings?

I also note that it is inevitable that there will be continuing and protracted proceedings in this matter if there is an order for supervised contact. That is because the father would quite naturally wish to move away from supervision after some time.

Any family violence involving the children or family member, and any family violence orders

I have referred to this to some extent above, but there is one further matter that requires consideration. It relates to potential or threatened family violence.
The mother says this in her affidavit at paragraph 6.3:
On another occasion after the births of our two children, [the father] stated to me that he “understood why people throw their children off the Westgate Bridge”. I understand this took place when X was approximately two years of age so on (sic) or about 2010.[38]
[38] That was clearly a reference to the circumstances in which a father (Mr Freeman) had murdered his daughter by throwing her off the Westgate Bridge in Melbourne. It is a matter of public record that Mr Freeman was convicted and sentenced on 11 April 2011to imprisonment for life, with a non-parole period of 32 years - R v Freeman [2011] VSC 139.
The psychiatrist specifically asked the father about that paragraph in the mother’s affidavit and reported as follows:
He recalled sitting around with his friend, telling him that he could understand how that happens (throwing children off the Westgate Bridge) because “kids drive you crazy”.
During his cross-examination of the mother, the father asked her the direct question: “Have I ever threatened to throw X or Y off the bridge?”. She answered: “No” but one of her earlier answers to his questioning had been:
My concern was that you were talking to Mr G, … who’s your friend, and obviously you talk to him about different things than you would to me, but my concerns were the same as if you would have said it to me, with the fact that you were sympathising with parents that commit filicide.[39]
[39] Pages 121 and 122 of the transcript
The father was cross-examined about that conversation with his friend, and this exchange took place on Day 2:[40]
[40] Pages 194 and 195 of the transcript
MOTHER’S COUNSEL: So what you’re saying about that is that kids drive you crazy was a comment that you make to [the psychiatrist]?
FATHER:   A basic comment, that’s right. Yes.
MOTHER’S COUNSEL: And you were saying that with your friend Mr G?
FATHER:   Yes.
MOTHER’S COUNSEL: That kids drive you crazy. You can understand how someone could throw one off the bridge?
FATHER:   That’s right. And it was basically said in a similar tone to you.
MOTHER’S COUNSEL: Right. So was it a bit of a joke?
FATHER:   Well, it wasn’t necessarily a joke. It was just a comment, you know. And I didn’t actually realise at the time what the whole situation was with Darcey Freeman, right? But I’ve now been through a system where I’ve been constantly attacked. So I can identify with the daughter and I can also identify with the father. The point being there is that you people need to fix the system.
The Family Consultant also addressed this issue in the Family Report. At paragraph 26 he reported as follows:
When asked about his comment that he could understand why people throw the children off the Westgate Bridge, [the father] confirmed that he made his comment to his friend Mr G prior to the separation without any intention to carry out such an act. He said that since the harassment, abuse and bias displayed towards him by [the mother], the police, the DHS and others, he is now better able to understand and identify with people who behave in this way. He then spoke at some length about the impact of the constant stress he had been experiencing, and that the man who threw his daughter off the bridge must have been experiencing similar stresses. He said “The poor guy ...”, and then almost as an afterthought he added “The poor girl ...”. He gave no indication that he understood that such an action was abhorrent and inexcusable no matter what stress was being experienced, that many people are stressed but do not behave in this manner, or that he acknowledged the huge impact that Darcey Freeman’s death would have had on other members of her family, particularly her mother and siblings.
He commented further under the heading “Evaluation”:
69. [The father]’s attempt to explain his comment to Mr G that he understood why people throw children off bridges did not alleviate concerns in this regard. He explained that his understanding derived from the fact that men who carry out such acts are (allegedly) under extreme pressure and stress and inferred (sic) that this was sufficient justification to behave in this way. This explanation is flawed in that his comment was made prior to the separation and therefore preceded the level of stress he has allegedly experienced since. It is also flawed in that it displays no understanding of the needs of children and is completely self-centred, narcissistic and self-justifying. Serious concern is therefore held regarding the safety of the children in their father's care should he experience unexpected or extreme stress or his mental health deteriorates.
70. Recent filicide (killing of one’s children) research states that a gendered phenomenon has been identified suggesting that men and women tend to kill their children for different reasons. Mothers are reported to kill for altruistic reasons and in association with suicide, whereas men are motivated more by anger, impulsivity and revenge. Other research suggests that the main difference between maternal and paternal filicides is that women generally kill their children because they have too great a responsibility for their care, whilst men generally kill children as a result of too little responsibility for their care. Research also indicates that all too often mental illness is used to explain filicide, thereby obscuring the relevance of other contributory factors. The absence of a frank mental illness does not therefore preclude the possibility of filicide.
I also note that the psychiatrist said this towards the end of his report:
[The father] remains completely insightless and in my view, is not capable of parenting his children in a safe, appropriate, caring and child-centred manner. He remains a threatening presence in the lives of the mother and the children, demonstrating little in the way of care and concern for them as individuals, rather evidencing a strong proprietal wish to have them returned to his care. Similarly there are suggestions that he has been stalking [the mother], possibly with the intent of removing the children from her care. His presentation and description of his relationship with the mother is consistent with a coercive controlling set of dynamics often involving personality-disordered individuals. Such a scenario is known to contain within it high risk …(My emphasis)
One must hold some very serious concerns about the father when he makes statements like: “I’ve now been through a system where I’ve been constantly attacked. So I can identify with the daughter and I can also identify with the father. The point being there is that you people need to fix the system.”
I will make some further comments below about the father’s views about “the system” conspiring to keep his children hostage from him.

Any other relevant fact or circumstance

A common theme in the evidence of the mother, the psychiatrist and the Family Consultant is the father’s unusual behaviour, which was variously described as “bizarre”, “inappropriate” or “weird”. It is clear to me that such behaviour is attributable to his psychiatric condition.
In my view, the father’s first affidavit (prepared without the assistance of a lawyer) also provides evidence of unusual thought processes. For example, paragraph 27 reads as follows:
[The mother] laughing at X pushing her underpants between the cheeks of her bottom stating “I have pants like mummy” in reference to a G string is sexually concerning disturbing and sickening being a four year old child - not, behaviour that needs to be taught, encouraged nor endorsed at such a tender age. Paedophilia intentions have to be questioned. Is [the mother] grooming X for prostitution, child pornography or something else unco-ord (sic) in respect to a financial gain which being highlighted by [the mother’s] actions to date.
Since the parties separated, the father has consistently maintained that there is a conspiracy between the mother, Victoria Police, DHS, the Child Support Registrar and others to keep his children from him as “hostages”. The father sent numerous emails to the mother’s lawyers, politicians, police, government departments, Federal and State courts, the United Nations and others about this.[41] One such email reads as follows:
Please be advise that this crises has now escalated, as a result of non compliance of the terrorist in regard to delivering hostages I will be filing federal court applications, custody and retrieval orders, I understand that this is not in the short term interest of the children but no other arsehole has acted in their interest or mine. You people have some serious mental health problems and be advise that I am prepared to attend prison for these little people. War is declared people!!!! [42]
[41] For reasons that are not clear to me, he even included David Hicks on the distribution list of some emails.
[42] Annexure “H3” to the mother’s affidavit
One police officer on the father’s email list clearly became frustrated by the father’s conduct because he sent a reply email which read: “With all due respect, please stop clogging up my inbox with this rubbish”.
The father’s unusual behaviour often had very definite sexual overtones. Two examples were the subject of much evidence and much comment. The mother’s evidence about them in her affidavit was:[43]
[The father] would frequently engage in sexualised and inappropriate behaviour in public. For instance, he would frequently expose himself to people and considered this sort of behaviour to be “funny”. As an example, on the day of our separation on 17 September 2012, I was driving on the road with our children in my car and [the father] was driving behind us in a van. A truck had cut me off whilst we were on the road. [The father] then proceeded to drive up alongside the truck driver and expose his genitals to the truck driver. The children did not see [the father] engage in this behaviour but I did. When I asked [the father] why he had done that, his response was, “he was being a cock, so I thought I would show him mine”. This kind of reckless behaviour was not uncommon for [the father].
Another example of [the father]’s sexualised and inappropriate behaviour was an incident that occurred on 1 September 2012 whilst we were taking the children for a walk … . During the walk, [the father] had walked ahead of us and he was approaching a green Ford station wagon … which was driving around the roundabout. The driver had tooted the horn and [the father] had waved to the driver in a feminine manner. I had assumed that they knew each other. As I approached [the father], as I was walking a distance behind with both children, the driver went around the roundabout again and repeated what he had done the first time, [the father] repeated the waving gesture. The driver then pulled over, got out of his vehicle and approached [the father], myself and the children. He then asked [the father] whether he would like to go on a date with him. [The father] replied, “yeah sure” and then proceeded to grab the man on his crotch and backside. The man stepped back a little but then continued to ask [the father] if he would like to go out and he suggested that they would “have a lot of fun”. [The father] continued to play along until the man retreated back to his car, wanting to exchange phone numbers. [The father] waved to the man and said, “bye sweety”. I was in complete shock at the incident that had taken place in front of myself and the two children. X asked “why did Daddy call that man sweety?”, which I had no answer for. When I asked him “what the hell was that all about?” [The father] told me that it was obvious the man was “up for a fight”.
[43] Paragraphs 6.11 and 6.12 of her trial affidavit
I will refer to those incidents respectively as the “truck driver incident” and the “roundabout incident”
During his psychiatric assessment interview, the father was specifically questioned by the psychiatrist about the mother’s evidence (which the mother had included in an earlier affidavit) and the psychiatrist said this at page 6 of his report:
He acknowledged that on 7 September 2012 he was following [the mother] with the car and was cut off by a truck. He drove up next to the truck driver and masturbated. It was his account that this was “a bit of fun, a windup. ….”.
and
He acknowledged the incident at the roundabout (1 September 2012). “I said hi. He wanted to have sex with me. I told him he wasn’t my type.”
During his cross-examination by counsel for the mother, the father denied that he had exposed his genitals during the truck driver incident. He attempted to explain the incident as a joke, because he had only told the mother that he had exposed his genitals to the truck driver:[44]
[44] See page 198 of the transcript - some superfluous words omitted
MOTHER’S COUNSEL: Now, do you say you did that or do you say you didn’t do that?
FATHER:   I was saying I was having a joke with her.
MOTHER’S COUNSEL: So you were having a joke when you did it or you were having a joke when you told her you did it? Which is the joke?
FATHER:   So, for example, the exposing of – the claim that [the mother] says that I exposed my genitals never actually happened, but the joke is that I was telling [the mother] that it happened. That’s the joke.
MOTHER’S COUNSEL: Why did you think it was funny to tell her that?
FATHER:   You know, a bit of adult humour. It’s not my fault if [the mother] doesn’t have a bit of a sense of humour.
That evidence conflicts with what the psychiatrist reported, and I also note that the (omitted) Health record of what he stated to (omitted) Hospital staff only two months after the truck driver incident was:
He gives a long history of sexually deviant behaviour and anger issues. Gives accounts of getting into physical altercations or road rage incidents. Said that on a few occasions he has exposed himself and masturbated when confronted on the road.
During his cross-examination the father appeared to concede most of the mother’s evidence in relation to the roundabout incident, save that his evidence appeared to be that the initial approach had been made by the car driver, and not by him. This exchange took place:[45]
[45] Page 199 of the transcript
MOTHER’S COUNSEL: So this guy that was at the roundabout tried to come on to you is what you had said?
FATHER:   That’s right. So he come up to me ‑ ‑ ‑
MOTHER’S COUNSEL: And then what did you do?
FATHER:   So I rubbed him up the leg and I go, “No, mate.” I go, “You’re not my type”, I go, and I think this where the psychiatrist was a little bit hoity-toity because ‑ ‑ ‑
MOTHER’S COUNSEL: Yes. No, don’t give commentary. Did you also wave goodbye and say, “Bye, sweetie” to this guy?
FATHER:   Possibly.

It is quite clear, even from the father’s version, that the father touched the man at the roundabout in a sexual manner (and that the children were present).
The Family Consultant also made specific reference to the father’s inappropriate sexual behaviour. In the Family Report he said:
64. … The sheer number of bizarre and inappropriate sexual behaviours in this matter is troubling, and [the father]’s tendency to trivialise, dismiss or reframe these was concerning.
and
67. It is noted that [the psychiatrist] diagnosed [the father] as having a psychosexual disturbance and this seems consistent with the allegations made. [The father]’s (seemingly proud) statement that he is “different” to most other men in the way he dresses and behaves lends substance to this diagnosis. His sexual banter with the man at the roundabout in the presence of [the mother] and the children suggests he lacks insight and the ability to protect his family from his dysregulated sexualised behaviour, and that he prioritises his own needs over those of his children. His statement that he feared he may be assaulted for rejecting and humiliating this man adds to this concern. That X asked her mother why her father had called the man “sweetie” indicates the children were well within hearing range of the two men, and that X was confused by this incident.
68. Although [the father] denied masturbating to another driver who cut him off on the road, this was unconvincing when considered in the context of the other concerns raised. Whilst it is unclear what the children have been exposed to, it is disturbing that they have been exposed to any such incidents at all. Concern is held regarding [the father]’s lack of appropriate boundaries around the children, and his tendency to normalise his aberrant behaviour and expect his family to do likewise. It is suggested his ability to be an appropriate behavioural model to the children, and offer sensible and level-headed guidance to them is minimal, and his ability to provide a safe and secure environment and to prepare them to become capable and well-adjusted adults is equally deficient.
The father’s inability to observe appropriate boundaries in his behaviour was sometimes evident in the way he conducted his case in this Court. One example occurred during the father’s questioning of the psychiatrist, when the following exchange took place on Day 1: [46]
[46] Commencing at page 36 of the transcript
THE FATHER:   Do you have any homosexual tendencies?
HIS HONOUR:   I don’t think that’s an appropriate question.
THE FATHER:   Do you have any homosexual tendencies?
HIS HONOUR:   Just listen to me. I said I don’t think that’s an appropriate question.
THE FATHER:   Your Honour, this goes to the whole credibility of this report. The situation here is that I was come on to by a gay guy, right. I ridiculed that gay guy and knocked him back, right. And the whole situation is I’m not very good at psychology, but what I’m picking out from this report is that [the psychiatrist] is gay and he has been in a similar situation where he has come on to a heterosexual guy and they have knocked him back.
HIS HONOUR:   I won’t let you ask the question. It’s entirely inappropriate.
The father even commented when he was being cross-examined on Day 2:
… and I think this is where the psychiatrist has a bit of an issue because of his homosexuality … [47]
[47] At page 199 of the transcript
I accept the expertise of both the psychiatrist and the Family Consultant and find that their evidence was not undermined by any cross-examination. I do not accept the submission by the father that the psychiatrist could not explain his diagnosis. If the father thought that was the case, then that was probably the result of the father not understanding what he meant. I also note that the Family Consultant said this at paragraph 27 of the Family Report:
[The father] was angry about his psychiatric report prepared by [the psychiatrist], described it as “shocking” and lacking in balance and fairness. He said he refused to read the complete document.

Conclusions about parenting orders

When I take all the evidence into account, I am not surprised that the psychiatrist and the Family Consultant came to similar conclusions and made similar recommendations.
Towards the end of his report, the psychiatrist said “and in the case of [the father], I consider no contact should occur with the children” [48] and the Family Consultant said:
For the above reasons it is proposed that the children remain in their mother’s care, and that there be no order for the children to spend time with their father. It is also proposed that parental responsibility lie solely with [the mother].
[48] He added appropriately that he had not seen the children and his report needed to be read accordingly.
Because I have made findings that both family violence and child abuse are applicable in this matter, the section 61DA presumption does not apply. I am also mindful of the seriousness of depriving a parent of the ability to share parental responsibility. However, I note that in Runcorne & Raine,[49] Murphy J said:
34. A finding that the parties are utterly incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility, and a finding that this incapacity is highly likely to spill over into regular future conflict for the children, appears to me to lead to a conclusion that the sharing of parental responsibility in the manner envisaged by s 65DAC – and, in particular, sharing parental responsibility equally - is contra-indicated in the best interests of the children.
[49] Runcorne & Raine [2008] FamCA 837
In this matter, I find that the parties are utterly incapable of achieving a proper sharing of parental responsibility. I hold that view largely because of what I have said about the father’s mental state and the effect that his actions have had on the mother. In those circumstances, it is appropriate to make an order that the mother have sole parental responsibility for the children.
In view of the very serious matters that are set out above in these Reasons, I cannot conclude that it is currently in the children’s interests to spend any time with their father. In my view, the risks far outweigh any possible benefit to them. In this regard I conclude that the Family Consultant was correct in his view that “ongoing and open-ended supervision is not an appropriate option and that unsupervised time would not be in the best interests of the children”.
I also note and accept that it was the psychiatrist’s evidence that even the sending of cards and letters to the children by the father would be likely to exacerbate the mother’s current psychiatric condition. That would not be in the children’s best interests.
In the circumstances, I will make orders that:
·the mother have sole parental responsibility for the children;
·they live with her; and
·they have no contact with the father.

Property issues

I now turn to consider whether it is just and equitable to make any orders altering the parties’ property interests, and if it is, what orders are appropriate.
The law with respect to financial matters relating to de facto relationships is found in Part VIIIAB of the Family Law Act 1975 (“the Act”).
Subsection 90SM(1) provides that in property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate altering the property interests of the parties. However, subsection 90SM(3) provides that the court must not make an order under the section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Subsection 90SM(4) states:
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 sections 90SM and 90SF of the Act largely mirror sections 79 and 75 of the Act, it is clear that the approach that Courts should take to the determination of de facto relationship property settlements is essentially the same as that which would apply if the parties had been legally married. Consequently, the Court can have regard to relevant cases decided over the years pursuant to Part VIII of the Act, notwithstanding that Part VIIIAB of the Act only became law in 2009.
Prior to the recent High Court case of Stanford v Stanford,[50] the general approach to the determination of a property settlement application appeared to have been well established by authority as a multi-step process.[51] The steps were said to involve:
a)Firstly, an identification and valuation of the property, liabilities and financial resources of the parties;
b)Secondly, an evaluation of the contributions made by the parties as defined in subsections 79(4) or 90SM(4)of the Act;
c)Thirdly, a consideration of any relevant matters under subsections 75(2) or 90SF(3) of the Act; and
d)Fourthly, before making an order adjusting property interests, being satisfied in all the circumstances that it is just and equitable to do so under subsections 79(2) or 90SM(3).[52]
[50] Stanford v Stanford (2012) FLC 93-518; (2013) 293 ALR 70
[51] See Lee Steere (1985) FLC 91-626; Ferraro (1993) FLC 92-335; Clauson (1995) FLC 92-595, Hickey (2003) FLC 93-143 and C & C (2005) FLC 93-220
[52] See Russell v Russell (1999) FLC 92-877
However, in Stanford, at paragraph 37, their Honours French CJ, Hayne, Kiefel and Bell JJ said:
37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
In paragraph 40 of Stanford, their Honours went on to say:
40. Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”.[53] To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
[53] R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 257
In the majority judgment in Bevan & Bevan,[54] Bryant CJ and Thackray J said:
The High Court in Stanford has laid down three “fundamental propositions” which will provide useful guidance to trial judges in approaching the task under s 79. These were recited above, and could be summarised thus:
1. Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2. The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties' interests in the property are or should be different from those determined by common law and equity;
3. A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.[55]
[54] Bevan & Bevan (2013) FLC 93-545
[55] At paragraph 73
However, it is important to note that their Honours said this in paragraph 42 of Stanford:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
In my view, this is one of those cases where it will be just and equitable to make a property settlement order because there is not and will no longer be the common use of property by the parties. However, it is important to recall that subsection 90SM(4) states that ‘in considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account” the matters listed therein. The specific use of the words “what order (if any)” in the subsection clearly allows the court to make no order altering property interests if that is considered appropriate.

The parties existing legal and equitable interests in property

I propose to ignore the parties’ interests in domestic chattels and motor vehicles in the tables below, because they have little or no value, and, in any event, there is no evidence that there is any joint ownership.
The father has interests in the following:

Property C $480,000

One undivided tenth share of coastal property $100,000

Mercedes motor vehicle $8,000

Father’s business $1,000

Total value $589,000

There is no evidence that the mother has any legal or equitable interest in either of those properties.
The mother’s property interests are in the following:

A deposit on land in (omitted) $15,000

(omitted) Bank deposit $137,000

Total $152,000

There is no evidence that the father has any legal or equitable interest in either of those assets.
The total value of the parties’ non-superannuation assets is $741,000. The father has a legal interest in 79% of that and the mother has 21%.
The mother has an interest in superannuation that is said by her to be worth $55,000. The father’s interest in superannuation is said to be worth less than $700. There is no evidence before me that either party has any legal or equitable interest in the superannuation entitlements of the other party. Consequently, the mother has an entitlement to approximately 99% of the combined total value of their superannuation interests.

The relevant subsection 90SM(4) factors

Contributions

The parties started living together in (omitted) 2007 and they separated in September 2012, so their de facto relationship lasted less than six years.
The mother detailed her own contributions at the start of the relationship in the following terms in her affidavit:
43. At the commencement of our relationship on (omitted) 2006, I:
43.1      Owned the real property situated [Property L]. That property was initially acquired by me in 2005 for $197,000.00 and was financed by way of 95% Mortgage. In 2006, it is likely there was little equity in this property.
43.2      Had around $45,000.00 in Superannuation entitlements.
43.3      Owned furniture and chattels which furnished [Property L].
43.4      Peugeot motor vehicle worth approximately $30,000.00 and encumbered by a loan of similar amount.
It is clear from that paragraph of her affidavit that the non-superannuation assets that the mother brought into the relationship were of minimal value.
She set out the father’s initial contributions in her affidavit as follows:
44. To the best of my knowledge, at the commencement of the relationship, [the father]:
44.1      Owned a real property situated at [Property A]. To the best of my knowledge, this property would have been worth around $280,000.00 in 2006 and the mortgage would have been about $120,000.00. Given [the father] has made no disclosure about this property, these values and figures are only estimates.
44.2      The real property situated at [Property C]. To the best of my knowledge, that property was originally purchased in about 2004 for $170,000.00. Based on the very limited disclosure made by [the father] since separation, I believe that it is his position that that property was worth $240,000.00 in 2006 and that there was a liability encumbering it totalling $200,000.00. Given that [the father] has produced no documentary evidence to support these assertions, I am unaware as to whether these figures are accurate. If they are accurate, then as at 2006, this property would have had around $40,000.00 equity in it.
44.3      An unknown amount of Personal Savings;
44.4      An unknown amount of Superannuation; and
44.5      A share in [the coastal property]. Based on the very limited disclosure that has been made by [the father] since our separation, [the father] had told me that in 2006 his share was worth around $500,000.00 and the liability encumbering his share was around $250,000.00. No documentation has ever been produced to evidence these assertions.
However, the mother’s counsel conceded in her closing submissions that at the start of the parties’ relationship:
·The father’s equity in Property A had been $260,000;
·Property C had not been subject to a mortgage liability and the father’s equity in that property had been worth $240,000; and
·The father’s one-tenth share in the coastal property was worth $50,000.[56]
[56] Page 257 of the transcript

It is clear that in relation to non-superannuation assets, if one excludes motor vehicles and domestic chattels, the mother brought in virtually no equity, whereas the father’s conceded equity in real estate had a total value of $550,000.
As mentioned above, the mother stated in her affidavit that she owned Property L at the start of cohabitation in 2006, and it had been acquired by her in 2005 for $197,000.00 with the assistance of a mortgage loan for 95%. She added that it was likely that in 2006 there was little equity in Property L. She is correct about that, because 5% of $197,000 is $9,850.
On Day 1of the hearing her counsel confirmed that. She said:
They moved in together about six months later, on the material, about (omitted) of 2007. The applicant had [Property L] that she has still got the proceeds of sale, but that had a significant mortgage on it. It had been acquired only a year earlier with a 95% mortgage, so she’s not saying that she had any great equity in it.[57]
[57] At the foot of page 47 of the transcript
In closing submissions on Day 3 her counsel said
But her evidence in the witness box, which was not challenged, was that her mortgage - and it was elicited in response to questioning from the respondent, was that the mortgage was 180,000 and the property was just under 200,000, so when we say little equity, she had around 20,000.
However, that is not an accurate statement of the oral evidence given by the mother when she was cross-examined by the father. She confirmed that she had purchased Property L for $197,000 and that she thought “there was $180,000” owing on her mortgage at a time when the father had paid approximately $100,000 off her mortgage loan.[58] While I have no direct evidence of exactly when the father made that reduction in the mother’s mortgage loan balance, it seems clear that it was in 2010 when he sold Property R.[59]
[58] Page 155 of the transcript
[59] See paragraph 27 of these Reasons and paragraph 55 of the mother’s affidavit.
It follows that there is no evidence that puts the mother’s equity in Property L at any more than $9,850 at the start of the relationship in early 2007.
I conclude that the parties’ equity in real estate at the start of cohabitation was as follows:

Property Owner Value of equity

Property L Mother $9,850

Property C Father $240,000

Property A Father $260,000

Share in Coastal property Father $50,000

Property R Father Nil

Total $559,850

It follows that in relation to equity in real estate, the father’s proportion of the total at the start of cohabitation was more than 98% and the mother’s was less than 2%. (Even if one excludes the coastal property, to which neither party contributed, either before or during their de facto relationship, the percentages are still 98% and 2%.)
At that time the mother had her superannuation interest of $45,000 (which she still retains, but has increased in value to $55,000).
It is abundantly clear (even from the mother’s own evidence) that the father’s contributions at the start of the parties’ de facto relationship were massively greater than those of the mother. I shall refer further to the significance of the father’s initial contributions below.
In her affidavit, the mother said:
During the relationship, I was always employed, earning between $10,000.00 to $20,000.00 per annum. [The father] was also employed, earning about $60,000.00 per annum. I always applied the totality of my income for the benefit of the family in that I used it to pay household bills and amenities and the mortgage on [Property L] (if and when there was a shortfall from the rental income).
However, that appeared to be challenged to some extent by the father in paragraph 16 of his second affidavit where he said: “The Applicant did not work between 2007 and 2010. I seek that the Applicant produce her income tax returns for the period of cohabitation.”
The mother did not produce the requested tax returns to the Court. However, I note that the mother states clearly that the father’s income was variously three to six times greater than hers. In any event, I note that in Parshen & Parshen,[60] the Full Court said the following:
In our view, in the absence of evidence to the contrary, it should be inferred in proceedings pursuant to the provisions of s79 that moneys howsoever received by a party during the course of the parties’ cohabitation, are used by that party for the benefit of the family unit. Such moneys, in those circumstances, thus constitute a financial contribution by the party who received the moneys. [61]
[60] Parshen & Parshen (1996) FLC 92-720
[61] At page 83,665
The mother claims to have made greater contributions than the father as a homemaker and parent. She set that out in her affidavit at paragraphs 46.3 and 46.4 as follows:
Contributions as homemaker in that I was principally responsible for cleaning the home, gardening, cooking, cleaning, washing the laundry, etc.
Contributions as carer for the children. Namely, I was always their principal carer. For instance, when X and Y were babies, I attended to them at night; I bathed them and fed them and comforted them when they were distressed. I was always actively involved in their day to day care.
At paragraph 14 of his second affidavit the father said:
Whilst it is true that the Applicant made a contribution as homemaker. I made an equal contribution in that regard.
However, he did not really challenge her evidence that she was the principal carer for the children. Indeed, it was clear from his cross-examination of the mother that he conceded that she was primarily at home with children rather than earning an income.
It is clear that “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”[62] should not merely be recognised in a token manner, but rather, they should be recognised in a substantial way.[63]
[62] See subsection 90SM(4)(c)
[63] See Rolfe and Rolfe (1979) FLC 90-62 and Mallet v Mallet (1984) FLC 91-507
The father’s Property A property was sold, realising approximately $280,000. Those funds were used to discharge liabilities and to pay for some of the costs associated with renovating Property R and Property C. Property R was also renovated and sold during the parties’ relationship. Funds realised from that sale were used to reduce liabilities, finance renovations to Property L and establish the mother’s (omitted) business.
The mother’s evidence in relation to the closure of the (omitted) business was as follows:
58. My (omitted) business has closed down. Given my frequent changes of residential addresses and having to relocate it has been impossible to operate the (omitted) business.
59. My stock has been sold for approximately $20,000.00, my car was traded in for $6,000.00. The truck associated with the business was written off in January 2014 in an accident. The insurance payout was $13,000.00. This money was used for removal expenses, the rent on the factory until it could be let and living expenses.
The mother provided no details of the expenditure on removal expenses, rent or living expenses but it would appear that the mother does not still retain any of the $39,000 that was realised when her business was closed.
Property L was sold by the mother in 2014 and, after payment of liabilities and expenses, the mother realised a total of $171,424. That equates to an increase of $161,574 in the value of the mother’s equity in that property between the start of the parties’ relationship and its sale late last year.
It is interesting to note that Property L more than doubled in value between the start and end of the relationship and Property C and the coastal property have both exactly doubled in value. However, I have no information that enables me to attribute reasons for those increases. I am unable to say how much of the increases in value of Property L and Property C were attributable to the parties’ efforts as opposed to normal market forces. However, it is quite clear that none of the doubling in value of the coastal property can be attributed to the efforts of either the father or the mother.
In Bigelow & Reuter, [64] Kay J (sitting as the Full Court of the Family Court of Australia) said this at paragraph 25 in relation to the parties’ contributions:
What was the relevant finding is that the wife, whatever she was doing in the course of the relationship, was not able to earn money at the same rate that the husband was able to earn, but there is nothing to indicate that she was not pulling her weight in terms of effort and endeavour.
[64] Bigelow & Reuter [2006] FamCA 1455
In this particular matter, I find that the parties’ effort and endeavour in terms of employment, renovations and homemaker and parent contributions should be weighed equally. That is clearly not the case in terms of the father’s significantly greater contributions at the start of the relationship.
In relation to those significant initial contributions, I conclude that the parties would not have been able to pay for renovations to various properties, reduce mortgage liabilities and start the mother’s business if the father had not introduced the assets that he did at the start of the relationship, thereby providing security for borrowings. In this regard, I am mindful of what the Full Court said in Pierce v Pierce:[65]
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all the other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. …(My emphasis)
[65] Pierce v Pierce (1999) FLC 92-844 at paragraph 28
Consequently, if this matter was to be determined on the basis of contributions alone, I would quite easily conclude that the increase in value of her Property L property was significantly greater than her entitlement and that she has already received more than a just settlement. However, this matter is not to be determined solely on the basis of contributions.

The subsection 90SF(3) factors

The father is aged 44 years and the mother is 40 years old. Both appear to be in good health physically.
While I have some significant concerns about the father’s mental health in relation to parenting matters, that does not appear to affect his capacity to earn an income. He said at paragraph 20 of his second affidavit that he earns “a subsistence level income” as a (occupation omitted). If that is true, I have no doubt that it is because he chooses to earn a low income, primarily because he wishes to avoid his obligation to pay Child Support. That much is clear from his oral evidence and from the fact that he deliberately placed business income in an account in his son’s name in order to hide it from the Child Support Registrar.
The mother says:
I am 40 years of age and I am presently unemployed. I have the full time care of the two children X and Y and it is likely this will continue in the future. I receive no child support from[the father] …[66]
[66] At paragraph 61 of her affidavit
I accept that she is likely to experience some significant difficult receiving proper child support from the father in the future. However, I do not accept that she is likely to remain unemployed for a significant period. In this regard, I note that she was able to establish the (omitted) business based upon her talent and ability, so I would expect that she should be able to obtain some employment in the not too distant future. She clearly has the physical and mental capacity for gainful employment but that employment is likely to be only part-time in order to take account of her continuing responsibilities for two young children.
The mother is currently in a de facto relationship and her partner earns approximately $57,000 per annum.[67]
[67] Item 17 in her Financial Statement
The father does not appear to have a legal responsibility to support any other person.
When I weigh up the subsection 90SF(3) factors, they clearly favour an adjustment in favour of the mother, which I will refer to below.

Conclusions about property matters

In the mother’s Case Outline filed on 13 February 2015, her lawyer states:
The Applicant says as a first step that there needs to be an adjustment of the property interests to enable the remaining property in the name of the Respondent to be sold to provide her with the funds to house herself and the children and that if there is no further division, the court could not be satisfied that the arrangement was just and equitable given the age of the children and the Applicant’s need to provide for them for many years.
With due respect to her lawyer, that conflates the statutory requirements in the manner that the High Court has clearly said in Stanford is not in accordance with the provision of the Act. That is because it suggests that the mother “has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters … set out in [the relevant section]” – in this case a claimed need to house herself and the children, presumably based upon paragraphs (e) and (g) of subsection 90SM(4).
There is no right provided in the Family Law Act for a party to a failed marriage or de facto relationship to be provided with funds for housing by the other party. There is also no right provided in the Act to an adjustment of property interests based upon a disparity in the parties’ financial positions. That was recognised in 1982 by Nygh J in Hirst and Rosen when he said:
I also reject any argument based solely upon the disparity in financial resources between the parties. Section 79, as I have indicated in argument, does not entitle the Court to adopt “a soup kitchen” approach. … It is, therefore, not an open sesame for the Court to administer such justice as it thinks fit. That, indeed, would be a grievous error. [68]
[68] Hirst and Rosen (1982) FLC 91-230 at p 77,251
I have noted above that the father’s contributions at the start of the relationship were approximately 98% of the combined value of the parties’ assets, and the mother’s contributions were the remaining 2%. Based upon their contributions during the relationship as set out above, I conclude that the mother’s entitlement should be increased to approximately 10%. However, I have also indicated that there needs to be a further adjustment in her favour because of the subsection 90SF(3) factors. It would be appropriate to increase her entitlement to 20% of the combined value of the parties’ non-superannuation assets.
As can be seen from paragraphs 155 and 156 above, the mother has 21% of the non-superannuation assets and 99% of the combined value of their superannuation entitlements. I am therefore of the opinion that the mother has already retained more than her entitlement in relation to a property settlement.
Consequently, I will not make any orders altering the parties’ property interests and the mother’s application for a property settlement will be dismissed.

The children’s bank accounts

As mentioned at paragraph 2 above, that parties do not agree who should be the designated signatory in relation to particular bank deposits held in the names of the children.
The mother seeks an order that she “be entitled to the funds currently held under the joint signatories of the Applicant and Respondent” in certain numbered (omitted) Bank accounts held in the names of Y and X.
It is important to remember that subsection 90SM(1) provides that “the Court may make such order as it considers appropriate … 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”.[69]
[69] My emphasis
I am of the view that the order sought by the mother in relation to those (omitted) Bank accounts is misconceived, in that she appears to see the funds held in the accounts in the names of children as “property of the parties … or either of them” and that their interests in that property can be altered by an order of this court. However, it is my view that the funds held in those account are not the property of the parties (or either of them), because they jointly hold those funds as trustees on trust for the children. That applies irrespective of who placed those funds into those accounts, and if either of them was to use those funds for his or her own benefit (and not for the particular child’s benefit), that would be a breach of that person’s fiduciary duty as a trustee.
Having said that, it should be recalled that section 61B of the Act provides that “parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. In my opinion that must include a parent’s duty, power and responsibility to manage a child’s trust fund properly. It follows therefore that, if the mother is to have sole parental responsibility for the children in this matter, she should be the sole signatory in relation to those two (omitted) Bank accounts in the children’s names. I will make orders to take account of that.
I comment that the mother through her counsel conceded that she was not seeking to obtain control of another account in Y’s name, into which the father placed funds from his building business in order to hide those from the Child Support Registrar. It was obviously most inappropriate for the father to do that, however, I am not asked to make any order in relation to that account. In any event, there are no applications before me under either the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.
I also comment that I have absolutely no confidence that the father will comply with any order requiring him to complete any documentation required by the (omitted) Bank to make the mother the only signatory. In view of that, I will make an order that should satisfy the (omitted) Bank the mother has proper authority to operate those accounts without the father’s signature.

Procedure

I heard this matter in Melbourne but I will be delivering this decision in Tasmania. My Associate will make arrangements to provide copies of these Reasons and the Orders by mail or by electronic means.

I certify that the preceding two-hundred and eight (208) paragraphs are a true copy of the reasons for judgment of Judge Roberts

Associate:

Date: 5 August 2015

Property C	$480,000
One undivided tenth share of coastal property	$100,000
Mercedes motor vehicle	$8,000
Father’s business	$1,000
Total value	$589,000

A deposit on land in (omitted)	$15,000
(omitted) Bank deposit	$137,000
Total	$152,000

Property	Owner	Value of equity
Property L	Mother	$9,850
Property C	Father	$240,000
Property A	Father	$260,000
Share in Coastal property	Father	$50,000
Property R	Father	Nil
Total	$559,850