IBSEN & LABODA
[2019] FCCA 3680
•19 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| IBSEN & LABODA | [2019] FCCA 3680 |
| Catchwords: FAMILY LAW – Property settlement proceedings – application for an adjustment of property interests – relationship of seven years duration – de facto relationship – jurisdiction established – just and equitable to adjust property interests – consideration of parties’ financial and non-financial contributions at beginning, during and following end of relationship substantial – where asset pool modest – where superannuation significant – add backs – where money advanced by way of gift to parties by paternal mother – where respondent receives substantial inheritance – where liabilities in issues – where parties seek adjustment of single pool – applicable principles – disparity – orders for adjustment made. FAMILY LAW – Spousal maintenance – where respondent claims weekly or alternatively lump sum spousal maintenance – where respondent has bequest of significant inheritance – whether respondent unable adequately to support herself – where parties means are modest – whether applicant has paid child support as assessed and re-assessed – whether applicant reasonably able to maintain the respondent – applicable principles – where application for spousal maintenance to be considered following the determination of application for adjustment of property interests – respondent not cross-examined – application dismissed. CHILD SUPPORT – Application for departure from administrative assessment of child support – where child support has been assessed and is being paid – where respondent seeks administrative re-assessments of child support – where respondent pays child support as re-assessed – where respondent advances claim for departure from administrative assessment of child support, progressively seeking 100%, 60% and then 50% of children’s school fees, educational expenses, extracurricular activities, private health and all expenses not covered by private health – where delay in seeking application – applicable principles – where no special circumstances are shown – where no relevant grounds made out – where delay would otherwise have been relevant – application dismissed. |
| Legislation: Child Support (Assessment)Act 1989 (Cth), ss.3, 4, 5, 19, 99, 116, 117, 118 |
| Cases cited: Amero & Croft [2010] FamCAFC 118 |
| Applicant: | MR IBSEN |
| Respondent: | MS LABODA |
| File Number: | MLC 12147 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 25 March 2019 |
| Date of Last Submission: | 16 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 19 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Robinson |
| Solicitors for the Applicant: | Argent Law |
| Counsel for the Respondent: | Mr R. Hoult |
| Solicitors for the Respondent: | Barry Nilsson Lawyers |
THE COURT ORDERS THAT
Parenting
Save as otherwise provided in these Orders, the Applicant/Father, Mr Ibsen (the father), and the Respondent/Mother, Ms Laboda (the mother), have equal shared parental responsibility with respect to all decisions about major long-term issues in relation to the children:
(a)X, born … 2009; and
(b)Y, born … 2014, (the children).
For the avoidance of doubt, major long-term issues are issues about the care, welfare and development of the children which are of a long-term nature and include, but are not limited to:
(a)the children’s education, both current and future; and
(b)the children’s religious and cultural upbringing; and
(c)the children’s health; and
(d)the children’s names; and
(e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with either parent.
In the exercise of equal shared parental responsibility, each party must make decisions about major long-term issues jointly, by consulting with the other in relation to the decision to be made, and making a genuine effort to come to a joint decision about that major long-term issue affecting the children.
If the children are spending time with either party in accordance with this Order, during that time neither party need consult the other with respect to decisions made in relation to the children that are not major long-term issues.
Residence
The children live with the mother.
Spend time
The children spend time with the father as agreed between the mother and the father in writing and, failing agreement, as follows:
(a)during school terms, in each fortnight:
(i)in week one, from the conclusion of school on Thursday (or 9.00am if Thursday is not a school day) until the commencement of school on Monday (or 5.00pm if Monday is not a school day);
(ii)in week two, from 5.00pm on Saturday until midday Sunday;
(b)during each of the school holidays:
(i)for the first half of the school holiday period in all even numbered years; and
(ii)for the second half of the school holiday period in all odd numbered years.
(c)during the long summer school holiday period:
(i)for the first seven (7) days of the school holiday period, and each alternate seven (7) days thereafter in all even numbered years; and
(ii)for the second seven (7) days of the school holiday period, and each alternate seven (7) days thereafter in all odd numbered years.
For the purposes of paragraph (6) of this Order:
(a)the school holiday period is taken to commence at the conclusion of school on the last day of the school term and, if different for either of the children, the later date;
(b)the school holiday period is taken to conclude at the commencement of school on the first day of the following school term and, if different for either of the children, the earlier date;
(c)if the children are spending time with the father on the last week of the long summer school holiday period, the children’s time with him conclude at 5.00pm on the day before they commence school on the first day of term one, and, if different for the children, the earlier date;
(d)if a term one, term two, or term three school holiday period has an uneven number of nights, the children’s time with the:
i)father be extended by one additional night in the school term holiday period in even numbered years; and
ii)mother be extended by one additional night in the school term holiday period in odd numbered years;
(e)the fathers’ time described in paragraph 6(a) of this Order is suspended at the commencement of all school holiday periods and will resume at the conclusion of all school holiday periods;
(f)for the avoidance of doubt, the children will remain with the mother at all times when they are not spending time with the father during a school holiday period.
The children spend special occasions with the mother and the father as agreed between them in writing and, failing agreement, in accordance with this paragraph (8) of this Order and all other time pursuant to this Order is suspended to facilitate same:
(a)for the Christmas period as follows:
i)with the father, in all even numbered years, from midday on Christmas Eve until 11.00am on Christmas Day;
ii)with the mother, in all even numbered years, from 11.00am on Christmas Day until 4.00pm on Boxing Day;
iii)with the mother, in all odd numbered years, from midday on Christmas Eve until 11.00am on Christmas Day;
iv)with the father, in all odd numbered years, from 11.00am on Christmas Day until 4.00pm on Boxing Day.
(b)for the Easter period as follows:
i)with the father, in all even numbered years, from 5.00pm on the Thursday before Easter until 10.00am on Easter Sunday;
ii)with the mother, in all even numbered years, from 10.00am on Easter Sunday until 5.00pm on Easter Monday.
iii)with the mother, in all odd numbered years, from 5.00pm on the Thursday before Easter until 10.00am on Easter Sunday;
iv)with the father, in all odd numbered years, from 10.00am on Easter Sunday until 5.00pm on Easter Monday.
(c)if the children are not already in the father’s care, the children spend time with the father on Father’s Day from 10.00am until 8.00pm.
(d)if the children are not in the mother’s care, the children spend time with the mother on Mother’s Day from 10.00am until 8.00pm.
(e)on each of the children’s birthdays, the children spend time with the parent with whom they are not otherwise due to spend time, from 4.00pm until 8.00pm.
(f)on the father’s birthday, the children spend time with the father from:
i)4.00pm until 8.00pm on school days; and
ii)10.00am until 8.00pm if non-school days.
(g)on the mother’s birthday, the children spend time with the mother from:
i)4.00pm until 8.00pm on school days; and
ii)10.00am until 8.00pm on non-school days.
Changeover
Changeover occur as agreed between the mother and the father in writing and, failing agreement, as follows:
(a)on school days, at the children’s school(s);
(b)on non-school days at:
(i)the mother’s residence at the commencement of the children’s time with the father; and
(ii)the father’s residence at the commencement of the children’s time with the mother; and
(iii)each of the mother and the father may arrange for a nominee to deliver or collect the children for the purpose of changeover provided that the nominee is an adult and is known to the children.
Communication
Each party have telephone/Skype or any other communication with the children at all such times which are suitable to the children’s routines and the children will be at liberty to communicate with either parent at all such times as either child may express a wish to do so and the parent with whom the children are then spending time shall facilitate that communication and afford the children privacy during that communication.
For the purposes of communication about parenting matters, the parties use a downloadable application relating to parenting arrangements such as My-Mob, to be used only by the parents who are restrained by injunction from permitting any third-party to use such application or intervene in their communications.
The applicant and respondent immediately inform each other should either child sustain any serious illness or injury while in their care and keep the other properly informed as soon as is reasonably practicable of the diagnosis, treatment and prognosis, together with the name, address and contact details of the person[s] providing treatment and the location at which the ill or injured child is receiving such treatment.
Overseas travel
The application by paragraph 17(b) of the father’s Fourth Further Amended Initiating Application filed on 13 March 2019, seeking that the names of the children be maintained on the Family Law Watch List be dismissed, and it is requested that the Australian Federal Police immediately give effect to this Order by forthwith removing the names of the said children from the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia (the parties being authorised to provide a copy of this Order to the Australian Federal Police for this purpose).
The parties do all acts and things and sign and/or execute all documents required to obtain an Australian passport for each of the children within one (1) month of the date of this Order and, thereafter, renew that passport as required (but no later than six (6) months prior to their respective expiry dates) from time to time, with each party paying one-half of the cost of obtaining or renewing the children’s passports on each occasion.
Either party may temporarily take the children outside of the Commonwealth of Australia upon the following conditions being met:
(a)the travelling parent giving the non-travelling parent at least sixty (60) days’ written notice, either by email or text message, of their intention to travel, including the proposed dates and countries of travel;
(b)the travelling parent must be provided with the children’s passports for the purpose of travel at least forty-five (45) days prior to the proposed departure date;
(c)at least twenty-eight (28) days prior to the proposed departure date, the travelling parent provide the non-travelling parent with:
(i)a copy of any return airline ticket to be used by the children; a copy of a travel insurance policy covering the travelling parent and the children;
(ii)a contact telephone number and the address(es) at which the children can be contacted throughout the period of travel; and
(iii)an itinerary, including at least the proposed dates of travel and the countries to which it is proposed the children will be travelling.
(d)the travelling parent paying all costs associated with the travel;
(e)except as otherwise provided in this Order, the travel period be of no longer than four (4) weeks’ duration on each occasion; and
(f)the travelling parent advising the other parent of any changes to the proposed itinerary and travel arrangements forthwith.
During all periods of non-travel, the father hold the children’s passports.
During any periods of travel (national or international), the non-travelling parent may contact the children by telephone, Skype or other digital or electronic means on at least two (2) occasions per week.
Subject to paragraphs (15), (19) and (20) of this Order, the mother be at liberty to travel outside of the Commonwealth of Australia’s with the children for a period of four (4) weeks’ duration between one of the following, at her election:
(a)1 June 2020, and 1 August 2020; or
(b)1 June 2021, and 1 August 2021.
Any period of travel pursuant to paragraph (18) of this Order is conditioned upon the respondent no later than 30 days before such proposed travel:
(a)lodging with the Registrar of the Federal Circuit Court of Australia, a sum of $10,000 by way of security for the safe return of the children and the costs of any application for their recovery and forthwith providing a copy of the receipt for that payment to the applicant;
(b)providing the applicant with a written undertaking, witnessed by a legal practitioner, that she will return the children to the Commonwealth of Australia not later than 30 days after her departure for such travel and further undertaking that, upon their return, she will provide the children promptly with make-up time with their father.
The said security to be deposited pursuant to paragraph (19) of this Order be released to the respondent upon the return of the children from such travel and the provision of their passports to the applicant.
Other parenting issues
Each of the parties will, at all times:
(a)keep the other party informed of his/her contact details within fourteen (14) days of any change occurring, including any change to a residential address, landline or mobile telephone number and email address;
(b)keep the other party informed of the names and addresses of any treating medical or any other allied health practitioner/s, including psychologists and counsellors, who treat the children and authorise such practitioner/s to provide the other party with all information that they are lawfully able to provide to parents about the children;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner/s to release information concerning the said condition, health issue or illness to the other parent;
(d)authorise the principal of the school/s attended by the children from time to time to provide to the other party all information ordinarily provided by the school/s to parents of students, at the cost of the party (if any);
(e)ensure that the children are not restrained from approaching and/or communicating with the other parent if both parties are in attendance at a school or extra-curricular event with the children as described in paragraph (22) of this Order.
Each of the parties be at liberty to attend at the children’s school(s) at any time but not limited to all events that are routinely attended by parents being parent teacher interviews, sporting events, school productions or extra-curricular activities, and each will notify the other party in writing of their intention to attend any such scheduled school or extra-curricular event no less than 72 hours prior to the commencement of such event.
During the time that the children spend with each of the mother or the father, each parent respectively will:
(a)respect the privacy of the other parent and not question either of the children about the personal life of the other parent;
(b)not denigrate or insult the other parent, the other parent’s partner or the other parent’s family in the presence or hearing of either of the children and use their best endeavours to ensure that others do not do so.
The parties (and each of them) be and are hereby restrained, by injunction, pursuant to s 68B of the Family Law Act 1975 (Cth) (Act), from discussing this proceeding with the children or either of them or allowing any child to read any court order or document produced in this proceeding.
Pursuant of s 13C(1)(c) of the Act, the parties:
(a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program (Program) at an organisation as nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the Program to the other parties’ lawyers and their lawyers.
The parties be at liberty to provide this judgment to a state court.
All other previous parenting orders be discharged.
Pursuant to s 68P(2)(a) of the Act, to the extent any provision of this Order may be inconsistent with an Interim Intervention Order that has been made by a Magistrates’ Court (Intervention Order):
(a)this Order prevails over such order and operates according to its terms;
(b)that Intervention Order is invalid, by force of s 68Q(1) of the Act.
Property
Subject to paragraph (30) of this Order, by 4.00pm on Thursday, 30 January 2020, the monies held in trust by the respondent’s solicitor representing the balance of the proceeds of sale of the property situate at Street A, Suburb B, in the State of Victoria, be divided as to:
(a)$112,010 to the applicant;
(b)$150,956 to the respondent;
(c)any residue or interest on such monies, as to 60% to the applicant and 40% to the respondent.
Contemporaneously with payment pursuant to paragraph (29) of this Order, the respondent deliver possession of the Children’s passports to the applicant.
Each party shall retain for their respective sole and exclusive use, enjoyment and benefit all other items of property (both real and personal, including any choses-in-action or possession, superannuation, employment benefits, insurance benefits or other financial resources) in their name, possession, control or to which they may otherwise be entitled.
Unless otherwise specified in these Orders, and save for the purposes of enforcing this Order any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
The father indemnify the mother, and keep her indemnified absolutely against any liability in his sole name, including but not limited to, any taxation liability arising as a result of the implementation of these Orders.
The mother indemnify the father, and keep him indemnified absolutely against any liability in his sole name, including but not limited to, any taxation liability arising as a result of the implementation of these Orders.
Spousal maintenance
The respondent’s applications for spousal maintenance be dismissed.
Child support
The respondent’s application pursuant s 118 of the Child Support (Assessment) Act 1989 (Cth) be dismissed.
Other matters
All previous orders be, and are, hereby discharged.
All extant applications be otherwise dismissed.
Pursuant to ss 65DA(2) and 62B of the Act, the particulars of the obligations that these Orders create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist the parties adjust to and comply with these Orders are set out in the Fact Sheet attached and these particulars are included in this Order.
By 4.00pm on Thursday, 30 January 2020, the parties file and serve any submissions in relation to costs (not exceeding three pages, 1½ spacing, font 12), and subject to any contrary application, costs be decided on the papers.
IT IS NOTED that publication of this judgment under the pseudonym Ibsen & Laboda is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 12147 of 2016
| MR IBSEN |
Applicant
And
| MS LABODA |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain orders made respecting claims for parenting orders, an adjustment of property interests and spousal maintenance between parties to a de facto relationship under the Family Law Act 1975 (Cth) (Act) and in relation to an application under the Child Support (Assessment)Act 1989 (Cth) (CSAAct).
In summary, I have determined that as concerns parenting orders, the parties’ children should spend time with the applicant for five days in each fortnight and with the respondent for the remaining nine days. A large number of ancillary orders have been proposed and considered.
As concerned an adjustment of the parties’ assets, the applicant’s proposal was for a 70/30 adjustment in his favour (but excluding superannuation interests), whereas the respondent’s proposal was for a 60/40 adjustment in her favour (of all interests) together with spousal maintenance and orders pursuant to s 118 of the CSA Act. I have concluded that it is appropriate to make orders that adjust all interests as to 60% in favour of the applicant and as to 40% in favour of the respondent. The other applications are dismissed.
Overview & procedural history
The parties’ relationship began in 2008 and ended in 2015.
There are two children to their relationship, X born on … 2009, who is now aged ten years and Y born on … 2014, who is now aged 5 years.
The parties remained living under the one roof until August 2016. In June 2016, the applicant told the elder child, X, that the parties would be separating. This led to a series of events including: the child becoming upset; the respondent speaking negatively towards the applicant; he, in turn, threatening to call the Department of Health and Human Services (DHHS) and finally; the respondent calling police.
On 16 August 2016, respondent and her children moved out of their home situate Street A, Suburb B, in the State of Victoria (Street A, Suburb B property).
In October 2016, the respondent applied for an interim family violence intervention order (IVO) against the applicant with the children being named as an affected parties. While the parties are in dispute as to the circumstances giving rise to this application, the applicant contends that he had sought to discuss financial matters with the respondent after discovering she had withdrawn substantial monies from a joint account (~$11,500) and had removed property from the Street A, Suburb B property, including a commonwealth coin.
On 13 December 2016, the applicant commenced this proceeding seeking parenting and an adjustment of property interests. By his Initiating Application, the applicant sought orders for an Airport Watch List order, for the children to live with the respondent and various orders for the children to spend time with him. He sought to be excused from particularising the final relief that would be sought at trial.
The applicant’s solicitor’s served his Initiating Application on the Australian Federal police (AFP). Somewhat curiously, service of the proceeding was treated by the AFP as the equivalent of an Airport Watch List order having been made. In the result, the respondent and children were immediately barred from travelling to Country C for a holiday to visit and stay with her relatives.
On 17 February 2017, the respondent filed a Response accompanied by an affidavit and a Notice of Risk. It was readily apparent that the respondent had been self-represented at that time and that her Response indicated, in short form, her attitude to the relief sought by the applicant. However, she also filed a supporting affidavit seeking that the children be removed from the Airport Watch List. The respondent has appointed a number of different lawyers in the course of the proceeding.
Orders were made on 6 March 2017 listing the matter for a final hearing on 18 July 2018. Extensive parenting orders were agreed including that the parties should have equal shared parental responsibility for the children and their living arrangements. In particular, the parties were agreed that they would each do all things necessary for the children to obtain an Australian passport and for orders regulating the circumstances in which they would travel and that during “periods of non-travel, the mother shall hold the children’s passports”. Respecting property, orders were made to facilitate a conciliation conference so as to assist them to resolve the matter. The parties adduced some evidence as to whether they had in fact agreed on final parenting orders and accusing the other of resiling from that agreement.
On 3 April 2017, the applicant filed an Amended Application by which he sought a just and equitable division of the parties’ property interests “on a 60/40 basis” but did not indicate who should receive either share. The applicant also sought that he have sole use and occupancy of a property situate in Street A, Suburb B pending determination of the proceeding.
On 16 April 2017, the respondent filed an Amended Response in which she sought a division of the parties’ property interests on the basis that 70% of those interests be transferred to or adjusted in her favour. She also sought interim orders for the immediate sale of the Street A, Suburb B property and articular distribution of the net proceeds of sale.
On 1 June 2017, orders were made that the conciliation conference be adjourned and that each party make proper financial disclosure and for the sale of the Street A, Suburb B property and for the application of proceeds of sale. By these orders the parties also agreed to mutual restraints against the drawing down on a mortgage facility. Relatedly, the parties agreed in mutual orders that they would make enquiries as to the status of shares held by D Pty Ltd in a company, E Pty Ltd, the shares in which were defined by their order as “the Country F shares”. The parties also agreed to mutual restraints against the parties dealing with or encumbering those shares except by court order.
On 24 July 2017, upon a contested hearing for an IVO, the applicant consented to the making of final orders, without admissions. However, the order was made operative for a period of 12 months and only the respondent was named as an affected person.
In September 2017, the respondent issued subpoenas on two banks, doing so having regard to an alleged lack of financial disclosure.
A mediation which had been scheduled to occur on 28 November 2017 was cancelled by the applicant some three days beforehand. Instead, the applicant issued subpoenas on the respondent’s banks.
In December 2017, the respondent made a complaint to Victoria Police that the applicant had breached the terms of the IVO. Although he contended that the breach (by sending text messages) had been accidental, the applicant entered a guilty plea, was fined $600 and no conviction was recorded. By the applicant’s account as provided to Dr G, the catalyst for the breach of the IVO was his frustration that the respondent was taking possessions from the Street A, Suburb B property.
On 4 December 2017, following a conciliation conference an order was made for the preparation of a family report by Dr G.
The parties engaged in abundant correspondence respecting overseas travel and were in dispute as to the terms on which it might occur. As a result, the respondent’s further attempt to travel overseas with the children were frustrated. The parties had agreed on overseas travel with the children subject to certain specified conditions. The evidence shows that the respondent failed to comply with those conditions.
In February 2018, the parties and children attended upon Dr G whose report was released on 19 April 2018. Dr G, a clinical psychologist with particular experience in parenting issues, was not cross-examined upon his report.
Shortly prior to the release of Dr G’s report, on 11 April 2018 the respondent made an application for the IVO to be extended and varied so as to restrain the applicant from being within 200m of her home save for the purposes of changeover. Later, on 24 October 2018, the respondent would withdraw her application to extend or vary the IVO.
On 19 July 2018, the trial was adjourned to 15 April 2019. Although the trial did not commence, each party gave evidence that they attempted, over a period of two days and with the assistance of their lawyers to reach agreement to resolve their disputes but were unable to do so.
On 8 October 2018, the respondent filed an Application in a Case seeking an interim distribution of the proceeds of sale of the Street A, Suburb B property, including for payment of Dr G’s family report and $100,000 for the applicant by way of part property settlement.
On 23 January 2019, the applicant filed a Response to the Application in a Case seeking $50,000 be distributed to each party by way of part property settlement.
In … 2019, the applicant entered into a new employment contract. The effect of this contract was that the applicant reduced his hours of work. His decision to do so is to be understood in the context that he had implemented a recommendation of Dr G that if he was to spend further time with the children it would be necessary for him to alter his working arrangements.
On 1 February 2019, the respondent made a further application for an IVO grounded upon allegations that the applicant had employed closed circuit television at a Perth airport to film the respondent and children in the course of their overseas holiday. Although an interim IVO was made, the applicant denied wrongdoing and invited his employer to undertake a formal investigation. The respondent agreed she alleged that the applicant was stalking her using CCTV while at work and that she had made a complaint in relation to him doing so when she had arrived at Melbourne airport after travelling with the children from Perth.
On 11 February 2019, an Order was made for an interim distribution of $50,000 to be paid to each party by way of partial property settlement.
On 13 March 2019, the applicant filed a Fourth Further Amended Initiating Application by which he furnished, for the first time, detailed particulars as to parenting arrangements and orders for the adjustment of the parties property interests including, in particular, that there be an adjustment as to 70% in his favour of such interests with specific orders respecting the treatment of the net proceeds of sale of the Street A, Suburb B property and as to how the E Pty Ltd shares should be addressed.
The day beforehand, on 12 March 2019, the Respondent filed her Fourth Amended Response in which she advanced a detailed proposal for parenting arrangements including overseas travel and an adjustment of property interests including treatment of the net proceeds of sale of the Street A, Suburb B property and in relation to the E Pty Ltd shares together with child support and spousal maintenance.
I acceded to a submission that the parties file written submissions rather than for them to incur the additional costs of a further day in court. In that context, the parties were requested to confer and produce a joint minute of proposed orders indicating where they were agreed and disagreed on particular issues in relation to their respective applications. Regrettably, the minute is extensive and contains elaborate provision in relation to their respective claims and upon which they remain in dispute.
Positions at trial
The parties’ submissions may be usefully contrasted by reference to their Outlines of Case and closing written submissions.
Parenting:
By his Outline of Case, the applicant sought orders for: equal shared parental responsibility (with precise definition of the meaning of “major long-term issues” and consultation); equal time on a week about basis and during school terms and holidays; change over and communication.
The respondent agreed in equal shared parental responsibility and also addressed with equal precision the meaning of “major long-term issues” and consultation and the circumstances in which such consultation was not to be required. She agreed that the children should live with her and also addressed changeover, communication and the children’s spend time with the respondent during school term and in holidays. As appears below and despite Dr G’s recommendations, the respondent sought a reduction in the time which the children spent with their father. The respondent would later modify her position slightly.
By closing submissions, the parties had agreed some parenting issues but were in disagreement about the minutiae of certain arrangements, including the precise spend time and changeover arrangements.
Airport Watch List & travel
As concerned an Airport Watch List order, the applicant sought orders for the children remain on that Watch List until they attain the age of 18 years and that each party be obliged to provide a detailed itinerary, air tickets, insurance and accommodation details (and in default that such travel not be permitted). The respondent’s proposed orders advanced detailed proposals for overseas travel.
The substantive basis upon which these orders were sought was grounded upon the respondent’s entitlement to heavily discounted (last-minute) air travel arising from the terms of a redundancy package that she secured in 2014 after 22 years employment with Employer H, which entitlement is operative until 2036.
By closing submissions, the parties remained in dispute about travel, although they were somewhat less far apart than had been the position before cross-examination had occurred.
Adjustment of property interests
As concerned property, the applicant sought an adjustment of the parties’ property interests in his favour of 70/30 and resisted an equalisation of the parties’ superannuation interests.
The respondent sought an adjustment of the parties’ property interests in her favour as to 60/40 and equalisation of the parties’ superannuation interests on a corresponding basis. She also sought orders for spousal maintenance and periodic child support (which the applicant noted had not been raised until very shortly before the first trial date).
By closing submissions, the parties adhered to their competing positions as to a 70/30 or 60/40 adjustment of property interests and also in relation to superannuation, maintenance and periodic child support.
Spousal maintenance
The application for spousal maintenance was advanced on two bases: (1) for weekly spousal maintenance of $384 per period of two years; (2) alternatively, lump-sum maintenance of $39,936. By her trial affidavit, the respondent increased her claim to $464 per week or a lump sum of $48,256 conditioned upon the grant of her application for a child support departure order. The respondent advanced a further alternative claim on the basis that the departure order was refused, framing it in terms of $880 per week for two years or a lump sum of $91,694.
Child support
The respondent sought relief pursuant to s 118 of the CSA Act that the respondent pay non-periodic child support for 100% of the children’s school fees, educational expenses, extracurricular activities, private health and expenses not covered by private health to be paid by him, as and when he was invoiced by the respondent to do so.
Other matters
A variety of ancillary orders were sought be each party, including costs.
The evidence
In addition to their trial affidavits and financial statements, each of the parties relied upon the report of the psychiatrist, Dr G. Each of the parties filed a number of further affidavits. The applicant filed affidavits sworn by Ms J and Mr K and the respondent filed affidavits sworn by Mr L, Ms M, Ms N and Ms O. Only the parties were cross-examined upon their evidence. No other witness gave viva voce evidence. Although the parties were afforded an opportunity to reflect upon whether they wished to cross-examine Dr G, they did not do so.
The following findings are based upon an analysis of the parties’ affidavits, viva voce and documentary evidence and the inferences which I consider are properly made. The matters set out below include both matters that were common ground, including from their chronologies, and my findings of fact upon particular issues. Matters addressed above in my summary of the procedural history are incorporated in my findings. Given the parties’ tendency to debate the minutiae of their history, and having regard to their definition of the issues in dispute, in many cases it has not been necessary to decide, as a matter of probability, which of the parties’ allegations or counter allegations are to be preferred.
Where the parties had agreed upon a fact or circumstance in their affidavits, chronologies or case outlines, I have taken account of that matter. Where issues of dispute arose, I have addressed them separately in a later section of these reasons. In deciding disputed issues of fact, I have applied the civil standard of proof to the resolution of that issue.[1] The more serious the allegation, the more necessary it was that I took into account the gravity of the allegation in deciding whether it was made out.[2] Where the evidence does not permit the court to make an affirmative finding either way on a particular issue, the court is not bound to do so, and may find that the party which bears the evidentiary onus of proof has failed to discharge it.[3] The court may well accept some parts of a witness’s evidence and reject other parts of it.[4] In careful submissions, counsel for the respondent properly identified that the court is not required in reaching a decision to refer to every piece of evidence or submission presented during a trial.[5]
[1] Evidence Act 1995 (Cth), s 140.
[2]cf Evidence Act 1995 (Cth), sub-s 140(2); Johnson v Page (2007) FLC 93-344, [72]; Briginshaw v Briginshaw (1938) 60 CLR 336.
[3] Kuglioski v Metrobus (2004) 220 CLR 363.
[4] Jabour & Jabour [2019] FamCAFC 78, [110] and cases cited.
[5] Citing Bell & Nahos [2016] FamCAFC 244.
While Dr G’s report contains some useful insights in relation to the nature of each party, for the most part I considered they attempted to give their evidence in a forthright way. The applicant was essentially candid and honest and prepared to make admissions against interest. However, in the course of giving evidence he demonstrated clear inconsistency in relation to his stance on some issues, in particular as to international travel and a Watch List order. The respondent was more guarded in her evidence and at times seemed unable to make concessions in the face of objective facts to the contrary.
In the circumstances, it is useful to address the background to the application and the unchallenged evidence of Dr G before addressing matters relating to parenting, property, maintenance and for a departure order under the CSA Act.
Background
The applicant father was born on … 1968 and is now aged 51 years. He enjoys good health. The applicant is currently employed as a professional with the Employer P, working on a five-week roster. He deposes to a recent reduction in income from ~$112,000 to ~$75,770 per annum. The applicant’s earnings are the subject of some dispute in circumstances in that when a call was made for production of his most recent payslip this call was not answered.
The respondent mother was born on … 1973, is now aged 46 years, and is also in good health. The respondent currently holds casual employment as a professional earning $16,000 per year. While she had been offered full time employment that offer was not taken up. She agrees that she is capable of working full time.
The parties were in a de facto relationship of seven years.
Their relationship began in … 2008. The parties commenced cohabitation at some point between April and July 2009.
There are two children to their relationship, X born on … 2009, who is now aged ten years and Y born on … 2014, who is soon to be aged six years.
The applicant had been in an earlier marriage from 1999 until 2006. His adult child from that relationship is now aged 19 years and lives with him, on a flexible basis, for about 35% of the time.
The respondent had also been briefly married at the age of 26 years.
The parties separated on a final basis from about December 2015 but remained living under the one roof until August 2016. Before final separation, they attempted marital counselling without success. From the commencement of their relationship in … 2009 until their separation under the one roof in December 2015, the parties’ relationship was slightly of more than seven years duration.
As stated above, in a history that was provided to Dr G, the applicant said that in June 2016 he told the elder child, X, the parties would be separating, leading to the events described above.
On 16 August 2016, respondent and her children moved out of the Street A, Suburb B property. The respondent and the children moved into rental accommodation (some 700 m from the Street A, Suburb B property), while the applicant remained in the Street A, Suburb B property.
For some time, and despite remaining in residence, the applicant ceased paying the mortgage on the Street A, Suburb B property.
In October 2016, the respondent applied for an IVO against the applicant with the children being named as an affected parties. I have also set out above that the parties are in dispute as to the circumstances giving rise to this application. The respondent deposed that after discovering the withdrawal of monies from the joint account the applicant had sent a text stating “World War III has begun” and threatened to report the matter to police for theft and reported it to the Banking and Financial Ombudsman.
In addition, the parties agreed to a parenting plan at that time.
On 7 October 2017, the Street A, Suburb B property was sold for $1.020m. The net proceeds of sale were deposited to a solicitor’s controlled monies account. Part of those monies were distributed by way of partial property settlement of $50,000 to each of the parties. At the date of trial, the balance of those monies in trust is ~$262,966.[6]
[6]The parties’ Outlines of Case identified account balances that differed by $1,000. The matter was addressed at trial in such a way that I cannot resolve that issue. In particular, as there was no response to a call upon the respondent for her solicitors to provide an up-to-date copy of their trust account ledger, I have selected the lower of the numbers provided.
While I address the parties’ financial positions in greater detail below, it is sufficient to note the following by way of overview: (1) the parties’ non-superannuation assets are $381,725; (2) the applicant’s superannuation interests are ~$509,000; (3) the respondent’s superannuation interests are ~ $250,000; (4) under a will of the respondent’s late father made in early 2018, he had made bequests of 50% of his estate to the respondent and 25% to each of the parties’ children; (5) after the adjourned trial in July 2018 and shortly before his death, the respondent’s late father made a further will, revoking his earlier bequests to the children and instead making a bequest of 50% of his estate to the respondent’s sister; (6) the real property in the estate of the respondent’s late father has been valued at $690,000, subject to estate expenses.
Notice of Risk & DHHS
By his initiating application, the applicant disclosed that the respondent had sought an intervention order against him naming herself and the two children as an affected parties.
When commencing this proceeding, the applicant also filed a Notice of Risk by which he contended that no child had been abused and that no party was at risk of family violence but that the children were at risk of harm by reason of the mental health of a party.
By her notice of risk, the respondent also contended that no child had been abused, that no party was at risk of family violence. To similar effect, the respondent alleged that a child was at risk by reason of the mental health of a party and was otherwise at risk.
Responding to those notices of risk, the DHHS prepared two reports. First, in June 2016, DHHS reported that the parties had separated but remained living under the same roof. There were concerns for the children in relation to tension in the home at that time. Secondly, in October 2016 there were concerns relating to family violence and the father demanding the return of a commonwealth coin and at a time when an IVO was in place.
Both reports stated that the investigation had been closed at intake.
Dr G’s Family Report
As noted, Dr G was not cross-examined upon his report. His expertise was not in issue.
Having identified the materials with which he had been supplied and the psychological instruments that he had employed for the purposes of his report, Dr G recorded that he had conducted individual assessments upon each of the parents and the elder child, X, and that he had also conducted interactional assessments of the children with each of their parents. Dr G did not assess the younger child, Y. He also described the methodology that he had employed.
It is perhaps useful, in light of the matters addressed below, to provide a summary of Dr G’s recommendations:
a)there should be an increase in the time spent by the children with their father and for them to see him on a regular basis; such as, spending three nights per five week cycle and an additional overnight (e.g. one – two nights) in the intervening period;
b)half of holiday periods should be spent with the applicant;
c)more frequent communication with the children should occur;
d)there should be active involvement between the family and a parent coordinator so as to avoid the present potential for alienation;
e)the elder child, X, in particular should not be exposed to the parties’ negative opinions respecting the other; in particular, X’s alignment with the respondent needed to be addressed;
f)should the father establish a new work regime, and arrangement of 5/9 nights would be appropriate in each fortnight whereby the children spent five nights with their father at nine nights with their mother and with the children’s five nights being arranged into time blocks: (1) in week one – four nights; (2) in week two – one night;
g)the children should spend half of each term and Christmas holidays with each parent together with provision for special days and regular communication during intervening period;
h)the parties would be assisted by consulting suitably experienced psychologists (including by the provision of the family report (and, by extension this judgment);
i)should there be a failure to facilitate the establishment of the children spending time with the applicant, consideration should be given to re-establishing the children’s relationship with their father, including by orders for the children to spend the majority of their time with their father until the immediate impasse is resolved;
j)it was considered essential that the psychologist treating X be provided a copy of the family report.
In addition, Dr G made a series of general recommendations that I have considered and which have evidently received the consideration of the parties in their formulation of proposed final parenting orders.
Background
Dr G provided a history of the parties’ relationship and a summary of the existing parenting access arrangements. In his assessment, Dr G noted “markedly different accounts” related to the parties’ relationship and separation. Dr G also assessed the older child, X. Contextually, Dr G assessed the matter in light of the parties’ current parenting arrangements which provide for the applicant to spend time with the children two out of every five weekends and with two overnights and in addition, on Thursdays from 4pm to 7pm, with holiday spend time being three nights out of 14 nights.
Assessment of applicant
Dr G found the applicant to present as a talkative and overly inclusive person who provided a high degree of detail upon topics that were under discussion. The applicant was considered to have “worked hard in the cognitive evaluation” and as presenting without marked emotionality, and being relatively balanced from a psychological perspective, without marked impression management or self-deceptive enhancement. After obtaining a history from the applicant, it was recorded that in his view, the relationship between his ex-partner and the respondent had become conflictual and that ultimately he had wanted a separation which, in turn, led to disputes primarily in relation to property.
Dr G noted the applicant’s proposal to extend the period of time that the children spent with him, including over weekends until Monday mornings and the possibility of one weekend out of five being from Friday afternoon and also during holidays (albeit in uncertain terms).
The applicant quite openly disclosed various issues related to his health including that, at about the time of his father’s death, he had been held up at gunpoint and, as a result, undertaken counselling. Further, he disclosed that, following the divorce from his first relationship, he had undertaken anger management counselling.
The applicant reported to Dr G that he considered the respondent to be very protective of the children and as identifying this as being central to the current difficulties attending parenting arrangements. Like the respondent, he too recounted that the respondent applied very high standards around the home (see below).
While presenting as being pleasant, Dr G considered the applicant as being extremely over inclusive and as being a person who would have difficulty not articulating what he thought, including that it would be difficult for him not to speak to the children about the respondent, particularly as the parties had experienced significant conflict and animosity. He also considered the applicant may tend towards rigidity and reactivity in relation to the respondent. However, Dr G excluded any psychological disorder in the applicant, instead seeing him as being focused upon his children and with what appeared to be a realistic and understandable desire to have a more complete relationship with them and a greater influence in their lives.
Overall, Dr G considered that the difficulties between the parents appeared to have been contributed to by each of them.
In terms of cognitive evaluation, Dr G considered the applicant presented as a person in the high average range of intellectual ability and in this context observed that the applicant may alter his work, both as to type and routine, in the future.
In providing the results of the several tests which had been conducted, Dr G reported in relation to the applicant, relevantly as follows: there had been a significant elevation in a particular assessment, raising the likelihood that there was over reporting of symptomology; there was no significant elevation in relation to underreporting which was suggestive of sound psychological defences without any significant tendency towards impression management or self-deceptive enhancement; in terms of emotional and thought dysfunction there was no significant elevation; however, as concerned behavioural dysfunction, some elevation for aggressiveness was observed and with borderline elevation for interpersonal functioning and interests. Dr G considered the applicant to exhibit no critical responses but as having some tendency to amplify symptoms and some features which were suggestive of negative thinking or ideas of persecution. Overall, the applicant’s profile was not suggestive as having marked validity problems and as not raising significant concerns about overall personality functioning.
Assessment of respondent
Dr G found that the respondent presented as a person who was initially shy, co-operative and relatively compliant but who presented as being somewhat closed with respect to the issues in question with relatively low insight into her own thinking and approach. He considered that the respondent also presented as being not overtly negative and presenting with both positive impression management and self-deceptive enhancement but as having a generally negative view of the applicant. He also considered the respondent to have adopted a parenting model whereby she co-ordinated the care of the children rather than being involved in any form of co-parenting. Dr G noted that, while the respondent had been close to her father (who was terminally ill at the time of interview), they had become distant as her father did not approve of her relationship with the applicant.
Dr G obtained a relationship history from the respondent in which she variously: described herself as not really knowing the applicant when the relationship began; considered the parties to have very different personalities; regarded the applicant as having a controlling nature and as being both difficult to trust and untrustworthy. Respondent described herself as being under-appreciated and taken for granted and that the relationship ended with the parties hardly talking.
In assessing parenting issues, Dr G found the respondent’s history to be somewhat vague and that she considered the applicant did not see the children because he did not want to see her and that, in the period September 2016 – March 2017, the children had spent time with the applicant for a total of 13 nights. The respondent’s history was that it was only after she lodged a child-support application that the applicant’s position changed significantly and that thereafter the children would spend two weekends in five with their father with this arrangement being formalised by consent orders made in March 2017 (at which time the children also spent 3½ hours with their father on Thursday nights). The applicant also provided some history suggesting that the IVO applications were related to conflict and threats made to her respecting the resolution of financial issues between the parties.
Dr G found it difficult to discern precisely what parenting orders she considered to be appropriate and that she raised a number of objections to the children spending more time with the applicant than was presently occurring, including objections being raised by the elder child, who appeared to have been affected by the parties’ conflict in a way that had not, as yet, affected the younger child (“a free spirit”).
In summary, Dr G regarded the respondent’s stated position in relation to the children spending more time with their father as being contradicted by her expressed view that they should not spend more than the current four overnights in every 35 nights with him.
In his evaluation of the respondent’s personality, Dr G observed that she had no significant medical difficulties or current problems and had identified her various activities in which she described herself as being “a clean freak”, acknowledging this as an issue about which she needed to be more flexible having regard to the children’s young ages and that it was possible this aspect of her nature may have had some impact upon her attitude to the children spending time with the applicant.
In providing the results of the several tests which had been conducted, Dr G reported in relation to the respondent, relevantly as follows: there had been a significant elevation on a response bias scale raising the likelihood that there was over reporting of symptomology; there was also a significant elevation in relation to under-reporting which was indicative of significant impression management with some evidence of self-deceptive enhancement which, collectively, raised the likelihood of self-defensiveness; in terms of emotional dysfunction there was elevation on stress and worry with significant elevation for ideas of persecution and some levels of sensitivity and persecution. Some of these matters were identified as being situational, related to the current proceeding and as amplifying some of the applicant’s present symptoms.
Assessment of elder child
Dr G observed the children to greet the respondent warmly and that each of them played actively and positively.
In discussions with the respondent, it was revealed to Dr G that, since May 2017, X had attended some 14 counselling sessions, and that the counselling psychologist had prepared a report for this proceeding. By contrast, the applicant had stated to Dr G that, although it had only been disclosed to him recently, the applicant had arranged for X to undertake counselling on account of her father’s terminal illness but that although he was timid, he considered the child did not have any psychological problems and may have high expectations of himself. The applicant expressed the further view that neither child had significant health or mental health issues.
Dr G found the child to be talkative and as presenting openly and in a way that indicated the likelihood the child had been prepared for the evaluation, including that he had brought a notebook containing a variety of notes focused upon the amount of time he wished spend with his father. The author considered it obvious that the respondent had been involved in a very direct way in the manner of the child presentation at interview including that “he was aware that the examiner would tell the Court what he liked and did not like about time.”
Against that background, the child was observed to be extremely negative toward the applicant leading Dr G to conclude that the child had experienced a high level of exposure to his mother’s inner emotional life concerning her relationship with the applicant and that he was clearly aligned to his mother. Indeed, in many ways “he presented as speaking on behalf of the mother, as the mother was far less concrete about a variety of issues”. Amongst the more adult topics which had been discussed by the child with Dr G included: issues of finance; the risk of being unable to remain in their current residence; that his father had told the respondent to get out of their home; that his parents had never married, were bad partners and that the mother could instead have conceived him using a donor; of the applicant doing the wrong thing; that the applicant hated the respondent (although she did not likewise hate the applicant); that the applicant denigrated the respondent; that the child reported such denigration to the respondent on a regular basis; the spend time that he wanted to have with his father (including that he did not wish to be picked up from school); of the detailed manner in which the respondent described the items of property she wished to retrieve from the applicant; that the child regarded both the applicant’s extended family and the applicant’s job in negative terms.
Dr G considered the child as indicating that he had “spoken at considerable length with the mother about the relationship between her and the father, in a detailed that clearly is crossing a boundary of what is appropriate for children to engage in, with adults.”
Dr G’s opinions
Dr G also reported on the results of applying the clinically administered tool known as the Family Strengths and Needs Assessment Tool (FSNA), which he described as a tool to conduct a general assessment of parental risk factors, based on professional judgment. The author identified the many different criteria which were applied for the purposes of this assessment. Dr G reported the results of his assessment in relation to each of the parties finding that the applicant had a risk rating of “Low” and that the respondent had a risk rating of “Moderate”.
Dr G provided detailed conclusions in relation to the parenting issues in this case including that: the parties gave markedly different accounts of the relationship; the parties had very different perceptions of the circumstances leading to the end of the relationship; there had been limited time between the children and their father; initial difficulties related to parenting arose from difficulties between the parties in relation to finances and possessions; parental discord as to finances and possessions continued and affected their parenting relations; the respondent had effectively overseen and managed the children’s time spent with their father and limited the time they could spend separately with him; this had become the catalyst for the applicant’s decision to initiate the proceeding; the present amount of spend time was limited.
Dr G’s evaluation raised some significant issues between the parties; namely, the respondent’s view that the children are not in a position to increase their spend time with their father by virtue of their age and difficulties with coping with more time. The respondent also raised her concerns that the applicant had poor parenting skills and that he denigrated her. The respondent said she was concerned that the child Y became highly attached when she was away from her mother. Contrastingly, the applicant stated that the respondent was controlling about the children’s spend time with him and that this was largely due to the lack of the resolution of the parties’ financial issues.
Dr G reiterated his observations in relation to X as a child who had been actively and significantly involved in the parent’s problems and had become “particularly aligned to the mother’s thinking about the father, and more disturbingly, was clearly exposed to problematic opinions that the mother has shared with him regarding the father.” He concluded that the child had become caught up in an alienation type process that was causing him emotional difficulty.
The author concluded that there was no indication supporting the position that the father exhibited significant parenting problems or other psychological difficulties. To the contrary, Dr G identified a dynamic that was suggestive of the respondent having difficulties with control, particularly the inclusion of X into a negative opinion of his father. Dr G considered that the proposed increase in spend time being sought by the applicant was not significant and that it would support the children’s relationship with their father and assist in their development. He considered the mother’s proposal for a reduction in spend time notwithstanding that the children were presently spending only four nights in 35 nights (and five other evenings) with him.
Dr G’s view was that the applicant should have increased spend time with the children. After interviewing the child, Dr G concluded that X's insight into his parent’s conflict was a concern as he is “embroiled in [their] negative relationship”. When summarising his assessment of X, Dr G stated:
. . . His description of the father painted him with suspicion, attributed negative characteristics to the father as well as negative intent of the father. It would appear also that X sees himself as actively involved in establishing time between himself and his father as well as his sister and the father. In many ways, he presented as speaking on behalf of the mother, as the mother was far less concrete about a variety of issues.
Dr G considered that X was “significantly involved in the parent’s problems” and was strongly aligned with the respondent’s view of the applicant as he has been “clearly exposed” to the respondent’s negative opinion of the applicant. Dr G also explained that X may have also been exposed to the applicant’s view of the respondent and considered it to be common amongst children for them to be most aligned to the parent they regularly spend time with.
Intervention Orders
As noted, the respondent has made various IVO applications against the applicant, listing herself as the affected family member. The respondent has been granted IVOs on the following dates: 12 October 2016 (interim); 24 July 2017 (final); 11 April 2018 (extension); 24 October 2018 (withdrawn/varied to remove the children as affected family members); and 1 February 2019 (interim).
The respondent claimed that the applicant followed her around a number of times, namely around the grocery store and in the vicinity of the clinic of the child’s psychologist. She also deposed that on 22 December 2017, the applicant had parked in front of her home notwithstanding the IVO and that he did so at times when he was not scheduled to pick up the children. In the result, the respondent had called the police and made a formal statement which resulted in the applicant being interviewed.
On 24 October 2018, the applicant attended a Magistrate’s Court to contest an IVO application. Having taken a day’s leave from work to do so, he discovered that the respondent had written the previous day to withdraw her application. He had not been notified of this decision.
On the 9 January 2019, the respondent and the children were in Perth on a holiday. The respondent alleged that the children told her that the applicant had showed them surveillance footage of them at the airport in Perth. The applicant denies these allegations and took the initiative to refer the matter to the integrity and security branch of his employer to have the matter investigated. The applicant claimed that the security division cleared him to continue working in his area which requires a high security clearance. He stated that the integrity division was still investigating. The respondent produced an email exchange relating to this issue. The applicant initially said that at the time he had no knowledge that the respondent and the children were in Perth and only found out when he called the respondent while she was in Perth.
The applicant responded to a call relating to his evidence in which he denied having conducted surveillance using CCTV while at work. In this email, the applicant vehemently denied the allegations and made a request for his employer to conduct an investigation in order that he could “clear my name”. Contextually, the applicant’s email stated that the respondent had made historical threats to remove the children and deny him access. He assured his employer that he would cooperate fully with any investigation. The tenor of the employer’s response was that there was no need for him to worry about the matter.
In the context of effective shared care and capacity to communicate, the following issues were raised: (1) that the respondent had made a complaint about her being followed by the applicant in a grocery store or supermarket – the context being that the respondent took the view she was “being followed” – this is the perception she has of the applicant; (2) as to the Perth airport on 9 January 2019 – respondent complains that the applicant had managed to obtain surveillance of her and the children at the airport to which the applicant replied “I vehemently denied such a claim and I’ve had the matter investigated internally” and further “I’ve already referred it to our integrity branch and also to our security branch.” The applicant maintained that he had not looked at any footage of the respondent at the airport. Again, the tenor of the cross-examination was that this was how the respondent perceived it to be. In a further answer, the applicant gave evidence that he had been unaware that the respondent or children had gone to Perth and “had no idea they were there” until he had sent a text message to the respondent asking to be able to speak to the children. Later, when his attention was drawn to a text message sent at about Christmas time, he agreed that his earlier answer had been in accurate and that he had in fact known respondent and children were travelling to Perth.
It is useful to consider other aspects of the parties’ evidence in the context of specific s 60CC factors that are addressed below.
Parenting – Applicable principles
Application is made for a variety of ‘parenting orders’.[7]
[7] Act, s 64B.
Part VII of the Act, which concerns the subject, Children, is arranged in 16 Divisions comprising ss 60-70Q. Part VII has frequently been described as providing a legislative pathway which governs parenting decisions. By way of overview, that pathway includes the following:
a)objects and principles underlying Part VII: s 60B;
b)child’s best interests as the paramount consideration in making a parenting order: s 60CA;
c)how a court is to determine a child’s best interests: s 60CC;
d)primary and additional considerations which are relevant: s 60CC;
e)a presumption of shared parental responsibility: s 61DA;
f)assessment of equal or substantial and significant time: s 65DAA;
g)assessment of reasonable practicability: s 65DAA(5).
See, eg, Goode & Goode;[8] Morgan & Miles.[9]
[8] (2006) 36 Fam LR 422, [5]-[13].
[9] (2007) FLC 93-343, [62]-[71].
However, it is not essential that the court should refer, either to the legislative pathway or to specific provisions of the Act.[10] Authorities which refer to Part VII as prescribing, or as imposing an obligation upon a court to follow a legislative pathway, are properly understood as emphasising that the statutory considerations which are relevant to a particular case must be considered and applied as directed by the Act.[11]
[10] Panno & Panno [2018] FamCAFC 195, [72]; SCVG & KLD [2014] FamCAFC 42.
[11] see, eg, Oswald & Karrington [2016] FamCAFC 152, [47].
The objects of Part VII are stated in s 60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: para 60B(1)(b). The principles underlying those objects recognise certain, extensive, rights of children with respect to their parents: s 60B(2). The rights of the child expressed in s 60B(2) remain subject to an exception “where it is or would be contrary to the child’s best interests”.
In Part VII, Div. 6, Parenting orders other than child maintenance orders, the expression ‘parenting order’ has the meaning given by s 64B(1).[12] Sub-section 64B(1) states that a parenting order is:
[12] Act, s 4.
(a)an order under this Part. . . dealing with a matter under subsection (2); or
(b)an order under this Part discharging varying suspending or reviving an order . . . described in paragraph (a).
Sub-section 64B(2) is cast in ambulatory terms and provides that a ‘parenting order’ may deal with one or more of the following: (a) the persons with whom a child is to live; (b) the time a child is to spend with other persons; (c) the allocation of parental responsibility for a child; (d) the obligation of consultation in cases of shared parental responsibility; (e) the communication a child is to have with other persons; (f) maintenance; (g) steps to be taken before an application be made for variation of an order to take account of changing needs or circumstances of a child or the parties; (h) dispute resolution; (i) any aspect of the care, welfare or development of the child or any aspect of parental responsibility.
Section 65D concerns the subject, Court’s power to making parenting orders. By sub-s 65D(1), power is conferred on the court in proceedings for a ‘parenting order’,[13] to make such parenting orders as it thinks ‘proper’.[14] Sub-section 65D(2) provides that, without limiting the generality of sub-s 65D(1),[15] a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order. Sub-section 65D(3) is presently immaterial.
[13] Subject to ss 61DA and 61DAB and Division 6 of Part VII.
[14]Section 61DA applies where a parenting order is made and requires the Court to provide for the obligations which the order creates and the consequences that may follow upon contravention. Section 61DAB is not presently relevant. Division 6 of Part VII is comprised of ss 65A-65ZD, the whole of which provisions were inserted in, amended by or repealed from, the Act by the Family Law Reform Act 1995 (Cth) and Family Law Amendment (Shared Responsibility) Act 2010 (Cth).
[15] But again subject to ss 61DA, 61DAB and Division 6 of Part VII.
The discretion conferred on a court by s 65D to make such parenting orders as it thinks proper is broad. In Bondelmonte v Bondelmonte,[16] the High Court said of s 65D:
[16] (2017) 259 CLR 662 at [32].
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the Court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (emphasis added)
The power created by s 65D confers a largely unfettered discretion, albeit one that must be exercised judicially.[17] At the same time, the court may, in the interests of consistency, provide guidelines which inform the proper exercise of discretion.[18] The ambit of the discretion explains why a court will not interfere with such orders, merely because it might have taken a different view of the matter.[19] The court’s discretion must also be exercised having regard to the objects and principles stated in s 60B.
[17]Cf Norbis & Norbis (1986) 161 CLR 513, 519 (Mason and Deane JJ) 536 (Brennan J agreeing), 522-533 (Wilson and Dawson JJ).
[18]Cf Morton & Berry (2014) FLC 93-613, [21]-[24] (May, Ainslie-Wallace and Watts JJ) citing Norbis.
[19] CDJ v VAJ (1998) 197 CLR 172, [151]-[152] (McHugh, Gummow and Callinan JJ)
However, the discretionary power conferred by s 65D(2) to make a parenting order is subject to s 65AA of the Act.[20] Section 65AA confirms that, by s 60CA, the court must have regard to the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order. By this route, the obligation in s 60CA is engaged in the exercise of power under s 65D(2). This is because an order made under s 65D is a ‘parenting order’. Further, where the court makes a parenting order for equal shared parenting responsibility, the discretion conferred by s 65D is not at large but must be exercised in accordance with the imperative requirements of s 65DA.[21]
[20] Reid & Lynch (2010) FLC 93-448, [232]-[233] (O’Ryan J, Finn and Strickland JJ agreeing).
[21]Dundas & Blake [2013] FamCAFC 133, [56]; Mellick & Mellick [2014] FamCAFC 236, [58] (see below).
In determining the best interests of a child, there are certain primary considerations which the court must take into account: sub-s 60CC(2). The court must consider:
(a)the benefit to the children of having a meaningful relationship with both of their parents; and
(b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
See ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations). Additional considerations are prescribed by sub-s 60CC(3)(a)-(m).
The entitlement of a party to a de facto relationship to claim maintenance from the other party is regulated by Part VIIIAB, Div 2 of the Act and subject to the threshold requirements contained in ss 90SB and 90SD (which in this case are satisfied). Where a de facto relationship has ended, s 90SE confers power on the court to make a maintenance order. Sub-section 90SF(1) delineates the circumstances in which that power may be exercised.
The two conditions upon which a liability to maintain exists represent the gateway to an entitlement to spousal maintenance.[165] Spousal maintenance may be ordered only where the applicant for maintenance is unable adequately to support him or herself and the respondent to such application is reasonably, or is to some extent, able to do so. Unless those conditions are satisfied, there is no maintenance liability between spouses.[166]
[165] Hall v Hall (2016) 257 CLR 490, [3].
[166] Brown & Brown (2007) FLC 93-316, [50].
Exercise of the power to make a maintenance order is to be considered in the context that the court must, as far as practicable, make orders that will finally determine the parties’ financial relationship and avoid further proceedings between them.[167] The court will therefore give consideration to the desirability of providing for a ‘clean-break’ so as to sever the parties’ relations.
[167] Act, s 90ST.
A spousal maintenance application must be considered following the determination of a property settlement proceeding for the reason that the orders made in the latter application necessarily establish the background against which s 90SE must operate; namely, the financial circumstances of the parties: Clauson & Clauson.[168] There Barblett DCJ, Fogarty and Mushin JJ held:
The result of the s 79 order may be such that the applicant for maintenance can no longer be described as being ‘unable to support himself or herself adequately’ because he or she may have sufficient assets which, with or without income arising from the investment or use of those assets, will provide an adequate level of support. It also defines the other party's capacity to meet any order. (emphasis added)
[168] (1995) FLC 92-595, 81,907; see also Tyson v Tyson (1996) 70 ALJR 285.
Clauson identifies two fundamental considerations which arise from the making of orders in a proceeding for the adjustment of property interests. Upon the making of such orders: (1) the applicant for spousal maintenance may not be able to establish an inability adequately to support him or herself; (2) the capacity of the respondent to the application may be such that he or she may not reasonably be able to provide or afford spousal maintenance. Consideration of the possible impact of the orders made in the adjustment of property interests is thus required in the determination of an application for maintenance.[169] In JS & GP,[170] Kay, Warnick and Boland JJ recognised the requirement that regard be had to the terms of a property order in considering an application for spousal maintenance but held that the cases turned:
. . . very much on their unique factual circumstances, and demonstrate the flexibility, which the legislation affords, to a structured exercise of discretion to tailor an appropriate result for an individual case.
[169] In the marriage of Bevan and Bevan (1995) FLC 92-600 (The Court).
[170] [2006] FamCA 150, [133].
The adequacy of a person’s ability to support themself is the primary condition upon which an entitlement to maintenance depends.[171] The requirement of par 90SF(2)(b) that the applicant for spousal maintenance demonstrate an inability to support him or herself adequately is to be considered having regard to any relevant matter in sub-s 90SF(3).[172] The test whether an applicant for spousal maintenance is able to support him or herself adequately should not be equated with a question of whether they are in need. The proposition that an inability to support one-self adequately is synonymous with subsistence has been firmly rejected. Nor is it necessary that a party must deplete all of their capital in order to demonstrate an inability to support oneself.
[171] Brown, (2007) FLC 93-316, [92]ff.
[172] CfN & N (1997) FLC 92-782, 84,643.
Rather, the focus is upon whether the applicant for spousal maintenance is in a position to finance him or herself adequately from their own resources. The test is whether “by reason of earning capacity, by reason of capital or other sources of income which have accrued independently to the applicant, the applicant is in a position to look after herself”.[173]
[173]Moller & Moller [2017] FamCA 841, [23] citing Eliades & Eliades (1981) FLC 91-022, 76,232, Clauson.
The second condition upon which a liability for maintenance depends is that a person is liable to maintain a spouse who is unable adequately to do so only if that person is reasonably able to do so. This requires consideration of their financial circumstances.
The exercise of the power to award spousal maintenance under s 90SE is constrained by sub-s 90SF(3).[174] The “Court shall take into account only the matters referred to in sub-section (3).” The scope of matters that may be considered in the exercise of power to order maintenance is thus confined.
[174] Act, sub-s 90SF(2).
Once the conditions upon which a liability to maintain a spouse are satisfied, the court is conferred a very wide discretion as to whether to make a maintenance order and, if so, what order should be made. The discretion so conferred on the court is subject to a requirement that the maintenance order should be ‘proper’, a term which is not defined by the Act and which should be construed as meaning appropriate to the circumstances of the particular case. The court may conclude that there is a proper purpose for the making of an order for maintenance and, more importantly, that the order is made in a form which is proper and adequate so as to achieve that purpose.[175]
[175] Brown, supra (2007) FLC 93-316, [61]-[63], [91]-[92].
Concerning the respondent’s inability to support herself adequately, I have paid regard to her affidavit and statement of financial circumstances, each of the relevant matters in sub-s 90SF(3). I adopt, without repetition, my earlier consideration of the evidence. The respondent’s submissions as to this application were confined to a single paragraph. Quite properly, it was conceded that the applicant had not been cross-examined in relation to his capacity to meet spousal maintenance (or a departure order under the CSA Act).
The applicant sought orders for the dismissal of both the application for spousal maintenance and a departure order under the CSA Act. He submitted that significant child support payments had been made and would continue to be made. Concerning whether the applicant was reasonably able to pay spousal maintenance in addition to child support, I have paid regard to his affidavit and statement of financial circumstances. The applicant submitted that he did not have the means to make additional payments in excess of his existing child support obligations. Further, he contended for dismissal on the basis of the respondent’s financial resources. It was said that, according to her current financial statement, the respondent deposed to having weekly expenses of ~$52,000 per annum which was said to be open to scrutiny having regard to her income and other resources said to amount to ~$61,000 net per annum.
It was further submitted that, as a matter of discretion, the court should weigh in its consideration the delay in the bringing of the application. He submitted that the applications had first been brought in July 2018, shortly before the date appointed for the first trial.
I am not satisfied that the respondent has demonstrated a proper need for this relief. As the parties’ text messages between demonstrated, the respondent had been offered full-time employment in early 2019 and agreed she had the capacity to engage in such work. A primary focus of this application was whether the respondent is in a position to finance herself adequately from her own resources. In this context, I have had regard to the respondent’s position as it will be upon the finalisation of the application for an adjustment of property interests. I have also had regard to her recent inheritance.
Nor am I satisfied the applicant is reasonably able to meet a claim for spousal maintenance. The applicant’s gross income is $75,770 per annum and his net income is ~$61,000 per annum. He has stopped living with his mother and has rented accommodation which is not yet fully furnished. While the respondent complains that she has had to make sacrifices, the same holds equally true for the applicant who will now spend more time with the children and have responsibility for their needs while they are in his care.
As noted above, the application was significantly complicated by the forensic choice made not to cross-examine the applicant in relation to his capacity to meet spousal maintenance (or a departure order).
In the circumstances of this case, I am not satisfied that it is proper to make an order for maintenance. As I am not satisfied that it is proper to do so, the application will be dismissed.
Non-periodic Child support
By her Fourth Further Amended Response, the respondent sought relief pursuant to s 118 of the CSA Act that the applicant pay non-periodic child support for 100% of the children’s school fees, educational expenses, extracurricular activities, private health and all expenses not covered by private health. The respondent further sought an order that he pay such expenses within seven days of being invoiced by her for such costs. By her Outline of Case and trial affidavit, the claim was modified to a claim for 60% of those costs. By her closing submission, the claim was further reduced to 50% of such costs. The cascading nature of the application may itself be somewhat instructive.
The CSA Act makes provision for determining the financial support payable by parents for their children and for other purposes. Child support means ‘financial support under this Act, including financial support by way of lump sum payment or by way of transfer or settlement of property.’[176] The CSA Act operates upon a fundamental premise that both parents of a child have the primary duty to maintain the child.[177] Sections 114 and 121 express complementary objects for the purposes of Divs 4 and 5 of the CSA Act as follows:
[176]Act, s 5.
[177]Act, s 3(1).
(a)that the children have their proper needs met from reasonable and adequate shares in the income, earnings capacity, property and financial resources of both of their parents; and
(b)that parents share equitably in the support of the children.
It is readily apparent that, structurally, the CSA Act emphasises the mutuality of the parents’ obligations to provide support for their children.
The principal object of the CSA Act is to ensure that children receive a proper level of financial support from their parents.[178] Further objects include that the level of support to be provided by parents: (1) is to be determined according to their capacity to provide financial support; (2) should be determined in accordance with legislatively fixed standards, and; (3) be readily determined without the need for resort to court proceedings.[179] Consistently with settled principles of statutory interpretation, these objects inform an application of the present kind.
[178]Act, s 4(1).
[179]Act, s 4(2)(a)-(c).
The administrative scheme which is enacted, both for the determination of child support payments and the review of such determinations by the Administrative Appeals Tribunal, is provided by Pts 4-6B of the CSA Act. It is apparent that the CSA Act is structured in a manner designed to enhance the object that child support may be determined without resort to court proceedings. This is not unimportant.
The children who may be covered by the Act are identified by Pt 3 of the CSA Act and include children such as those who are the subject of this application.[180]
[180]Act, s 19.
Part 7 of the CSA Act which concerns Jurisdiction of Courts is arranged in 9 Divisions comprising ss 99-146. Jurisdiction is conferred on the court in relation to matters arising under the CSA Act. [181] Section 116 defines the conditions upon which a person may apply for an order. Section 117 identifies the matters of which the court must be satisfied before making an order of the kind which is the subject of this application. Sections 118 and 124 respectively prescribe the orders that may be made under Div 4 or Div 5 of the CSA Act.
[181]Act, s 99(1).
The court’s power to make a departure order is not unfettered.[182] Before it may do so, the court must be satisfied: (1) special circumstances for bringing the application before a court have been established; (2) such special circumstances must be demonstrated upon one or more of the grounds in sub-s 117(2); (3) if so demonstrated, it must be just and equitable to make a particular order having regard to the matters in paras 117(4)(a)-(g); (4) it must otherwise be proper (within the meaning of sub-s 117(5)), to make a particular order.[183]
[182]Act, s 117(1).
[183]Gyselman & Gyselman (1992) FLC 92-279 (Nicholson CJ, Fogarty and Nygh JJ); Beklar & Beklar [2013] FamCA 327, [237] (Ryan J); Anderson & Anderson [2014] FamCA 776, [23] (MacMillan J).
The requirements to demonstrate special circumstances and the existence of one or more of the prescribed grounds also represent the gateway[184] to consider whether it would be just and equitable or otherwise proper to make a particular departure order. Each of ss 116(1) and 117(2)(a)-(c) respectively employ the phrase ‘in the special circumstances of the case’ when identifying the grounds on which the court must be satisfied before a person may make an application and before the court’s power to make an order is engaged. Contextually, ss 4(2), 115, 116 and 117 emphasise that special circumstances must be established when making an application for a departure order. Properly construed, these provisions constrain and confine the entitlement to bring an application for a departure order to cases in which special circumstances are demonstrated.[185]
[184]Cf Hall v Hall (2016) 257 CLR 490, [3].
[185]Cf CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ), 412 (Gaudron J agreeing).
In Gyselman & Gyselman,[186] Nicholson CJ, Fogarty and Nygh JJ held that although the meaning of the phrase ‘special circumstances of the case’ was not amenable to precise definition, it was clearly intended to emphasise that, properly characterised, the case was both special and out of the ordinary. In its ordinary meaning, the adjective ‘special’ means ‘of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree.’ There is nothing novel in the imposition of a statutory requirement that, before a particular type of application might be brought, special circumstances must be demonstrated. Not infrequently, the rules of court will provide that a party obtain leave before taking a step. It other cases, special leave may be required before a party may proceed at all.
[186](1992) FLC 92-279, 79,065; see also 79,068.
As the Full Court’s analysis in Gyselman illustrates, one of the most common examples of special circumstances is the case in which a party would incur the high costs of interstate travel for the purposes of spending time with a child. Particularly high school fees may be another example. Special circumstances may be shown as where a parent has deliberately left employment for the purpose of sterilising the operation of the CSA Act.[187] So too, special circumstances may be shown as where a parent continued to deny the paternity of a child, such issue having been affirmatively established.[188] Such circumstances may also be shown when a Nil assessment has been issued under the administrative assessment process.[189]
[187]In the marriage of Bolton and Bolton (1992) FLC 92-309.
[188]Dwyer v McGuire (1993) FLC 92-420.
[189]Hartnett v Baker (1995) FLC 92-620.
The cited examples serve to underscore the types of case which will constitute special circumstances and, conversely, indicate those which may not because they are not special or out of the ordinary.
As concerns the conditions which regulate the entitlement of a person to apply for an order under Div 4 of the CSA Act, both parents of the children are parties to a proceeding in this court.[190] However, as was the case in relation to the application for spousal maintenance, the respondent’s closing submission dedicated a single paragraph to the application for a departure order and nothing was said as to the fundamental requirement that it would be in the interests of either parent to consider whether such an order should be made.[191] Nor was any basis demonstrated as to the existence of special circumstances in this case or why any such circumstances were ‘out of the ordinary’.
[190]Act, s 116(1)(b)(i).
[191]Act, s 116(1)(b)(ii).
I accept the submission that the applicant has met his obligations to pay child support pursuant to each of the administrative assessments that have been made in this case. I further accept that the respondent has applied for those obligations to be the subject of reassessment and that such administrative re-assessments of the matter have been undertaken. It is difficult to see why it is in the interests of either parent for the several objects of the CSA Act to be circumvented absent special circumstances being demonstrated or it being shown to be out of the ordinary.
I am not satisfied of the existence of special circumstances in this case. While the parties’ circumstances are modest, to recognise them as such is to place their circumstances squarely within the realm of a great many parents. I also consider that the respondent’s delay in initiating the application for such relief is a relevant consideration against a conclusion that special circumstances are demonstrated. The case does not align with any of the types of situation in which such special circumstances were demonstrated. It would not have been just or equitable to have, in effect, retrospectively adjusted the liability.
The respondent’s trial affidavit demonstrates that she has periodically applied successfully for administrative reviews of the child support assessment. In the course of her cross-examination, she agreed there was no reason why she could not reapply for a further administrative assessment. Further, the respondent agreed in cross-examination that in December 2017 she had applied to the child support agency for a variation in the assessment of child support and that the application had been allowed. The respondent also agreed that when she had applied to have the assessment varied she had been able to go through the normal administrative process and had received satisfactory outcomes.
The respondent also agreed that the present periodic child support of $460 per fortnight equated to $12,000 per annum and that there were no arrears of child support.
The children are enrolled in a local state primary school. This is a relevant consideration having regard to the manner in which the children are being educated and the parents’ expectations in that regard. By her further amended financial statement, the respondent identified that the children’s school fees amount to $40 per week. However, the applicant’s updated financial statement indicates these expenses are $15 per week. In a similar vein, there is a paucity of evidence demonstrating that the children:
a)have extra-curricular activities which involve any significant cost;
b)have a present significant need for particular health care. In particular, hearsay evidence was given of a treating psychologist having indicated that there was no reason why X currently needed to receive further counselling.
Furthermore, according to her further amended financial statement, the children’s average weekly expenses amount to $695. By contrast, the applicant contends those expenses to be $217 per week. None of these matters were explored in cross-examination. As concerns the applicant’s capacity to bear additional liability for child support, it is not without irony that the respondent denigrates the applicant’s work, including to the extent that X described the position to Dr G in terms that “He doesn’t do anything”. Again, consideration of the application is to be seen in the context that the applicant was not cross-examined in relation to these issues.
Nothing is demonstrated in this case to suggest that the respondent’s capacity to provide financial support for the children is significantly reduced because of: (a) her duty to maintain any other child or another person; (b) any such child or person has special needs; (c) any other commitments; (d) some particularly high costs being involved.[192]
[192]Act, s 117(2)(a).
There is no suggestion that the respondent’s capacity to provide financial support for the children is significantly reduced because of her responsibility to maintain a ‘resident child’.[193] It is not suggested that the costs of maintaining the children has been ‘significantly’ affected either because of high costs (or high child care costs), special needs, or because the parties have particular expectations as to the manner in which the children should be educated or trained.[194] Finally, there is nothing in the circumstances of this case that was suggested to make it unjust or inequitable to adhere to the administrative assessment for child support for the children for any prescribed reason.[195]
[193]Act, s 117(2)(aa), 117(10).
[194]Act, s 117(2)(b).
[195]Act, s 117(2)(c).
As I am not satisfied that any one or more of the grounds prescribed by s 117(2) of the CSA Act are established, no occasion arises to address the requirements whether it would be just and equitable to make a particular order or that it would otherwise be proper to do so.
The application pursuant to s 118 of the CSA Act should be dismissed.
Conclusion
The length of this judgment serves to indicate the complexity of the issues that were presented by the issues raised for determination. It is a timely reminder of the importance of parties, and those advising them, to pay proper attention to the real issues in dispute. Both parties sought costs. As indicated at the outset, I will allow them to make submissions and, unless the circumstances indicate otherwise, I will decide any such issue on the papers.
I express my gratitude to counsel for their assistance.
I certify that the preceding five hundred and eight (508) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 19 December 2019
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