JENNETT & KENT
[2019] FCCA 733
•29 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JENNETT & KENT | [2019] FCCA 733 |
| Catchwords: FAMILY LAW – Parenting and property dispute – mother seeking to relocate to West Australia – father opposing and seeking equal shared care – mother always the primary carer – father unrelentingly critical of mother – significant concerns about father’s mental health – whether father’s time should be contingent on psychiatric assessment – father asserting impecuniosity preventing psychiatric assessment – father asserting total dissipation of proceeds of matrimonial home in excess of $230,000 – court not accepting father’s assertion – relocation plainly in child’s best interests – father’s time to be reserved pending psychiatric assessment – property – father dissipating only significant asset – only superannuation remaining – just and equitable that mother be awarded all of the available superannuation. |
| Legislation: Family Law Act 1975, ss.4AB, 60CC Evidence Act 1995, s.140 |
| Cases cited: Rice v Asplund (1979) FLC 90-725 Goode v Goode [2006] FamCA 1346 |
| Applicant: | MR JENNETT |
| Respondent: | MS KENT |
| File Number: | DGC 95 of 2018 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 21 & 22 February 2019 |
| Date of Last Submission: | 22 February 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 29 March 2019 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms Kanarev |
| Solicitors for the Respondent: | Dandenong Family Lawyers | |
| Counsel for the Independent Children’s Lawyer: | Mr Allen | |
| Solicitors for the Independent Children’s Lawyer: | Altavilla Family Law |
DRAFT ORDERS
The mother have sole parental responsibility of the child, [X] born … 2013 (“the child”).
The mother be permitted to relocate to Western Australia.
The child live with the mother.
The father’s time with the child be reserved.
THE COURT FURTHER ORDERS:
That pursuant to Section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest of MR JENNETT (“the Applicant”) in Super Fund M, Member Number … ("name of fund"), the Trustee of Super Fund M shall pay to MS KENT “the Respondent”) the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $50,000, and that there be a corresponding reduction in the entitlement that the Applicant would have had in Super Fund M but for these Orders.
That paragraph 1 hereof have effect from the operative time.
That the operative time for paragraph 1 hereof is the fourth business day after service of these Orders upon the Trustee of Super Fund M.
That having been accorded procedural fairness, this Order binds the Trustee of Super Fund M to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
That until such time as a superannuation split to the Respondent pursuant to these Orders can be rolled over into a separate account to the Respondent:
(a)The Applicant will give to the Respondent written notice not less than twenty-eight (28) days before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or part his entitlements in the fund.
(b)The Applicant will direct and authorise the Trustee of the fund to communicate with the Respondent and/or any person authorised by her in writing:
(i) To answer any reasonable enquiries as may be made by her or on her behalf from time to time regarding her/his entitlement in the fund, and
(ii) To give to the Respondent and/or her authorised representative a copy of any notice of any application or request by the Respondent which seeks release of entitlements in the fund insofar as that release may affect the Respondent’s entitlement in the fund pursuant to these orders.
(c)That the Applicant by himself, his servants and/or agents be and are hereby restrained from doing any act or thing which would prevent the Respondent, her heirs, executors, administrators or nominees from receiving benefits in the fund to which she is entitled pursuant to these orders.
That in the event that the super split to the Respondent pursuant to these orders can be rolled over into a separate account to the Respondent, each of the parties will do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
That until the happening of any of:
(a)The establishment of a separate account in the name of the Respondent in the fund, or
(b)The transfer or "rolling over" into another superannuation fund of the payment split created by order 1, or
(c)The Respondent satisfying a condition of release and being paid the payment split created by order 1, or
(d)
The Respondent exercising a waiver of rights within the meaning of Section 90XZA of the Family Law Act 1975 regarding the payment split created by order 1, the Respondent be and is hereby restrained by himself, his servants or agents from executing
a death benefit nomination in favour of any person or doing any other act or thing which would render any part of his interest in the fund "a non-splittable payment" within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 and the Trustee of the fund give effect to this order.
NOTATION
A.The father is not to face a Rice v Asplund objection in the event that he undertakes a psychiatric evaluation and produces a report arising therefrom and thereafter seeks to make further application to the Court.
IT IS NOTED that publication of this judgment under the pseudonym Jennett & Kent is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 95 of 2018
| MR JENNETT |
Applicant
And
| MS KENT |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a parenting dispute about the best interests of a young girl, [X], born … 2013. The applicant father seeks that there be a shared care arrangement and, failing that, that the child should live with him. He also appeared to embrace a 5/9 regime at some point during the trial. The mother seeks to relocate to Western Australia and seeks that the father’s time be reserved until such time as he provides a psychiatric assessment. The Independent Children’s Lawyer broadly supports the mother’s application.
For the reasons that follow, and not without considerable regret, it is clear that the orders sought by the mother and the Independent Children’s Lawyer are those that are in [X]’s best interests.
Agreed or Uncontroversial Relevant Matters
The father was born on … 1983. He is of Country B origin, albeit that he was born in Australia. The mother was born on … 1979.
The parents entered into a relationship in or about … 2011 and separated in 2017. There does not appear to be controversy about the fact that the parties separated under one roof in about July 2017 but the relationship came to a conclusive end when the mother went to Western Australia with [X] on 29 December 2017.
The parties had lived, up until then, in the former matrimonial home, which was bought by the father alone in 2006, some five years before the relationship commenced.
The mother’s departure to Western Australia took place while the father had departed on a camping trip on 28 December 2017 and he had no forewarning or knowledge of the mother’s intention to go to Western Australia at all.
The mother is originally from Western Australia and has a number of family members living there including her mother and brother. By 13 January 2018 the mother had made it clear that she did not propose to return to Victoria and the father instituted proceedings on 15 January 2018. He sought a Recovery Order.
The father has two other children, [N] and [O] whose age is not, as far as I can see, denoted with precision anywhere in the materials before the Court. In his first affidavit filed 15 January 2018 the father described [N] as being 9 years old and [O] as 11 years old. They are presumed to be now a year older each.
The mother did return to Melbourne and, as recently as the Family Report interviews on 6 June 2018 the mother expressed an intention
to stay in Victoria. That intention was, however, clearly interrelated with the property aspect of the proceeding which was still underway.
Thereafter in June 2018 the father sold the matrimonial home for some $520,000 with net proceeds of around about $250,000. On 26 June 2018, when Mr Jennett attended by telephone, I made an order restraining him by way of injunction from dealing with the funds from the sale of the matrimonial home. When the matter returned on 29 June 2018 the father informed the Court that he had spent all of the $250,000. He was ordered to put an explanation on affidavit and it will be appropriate to come to that in due course.
Thereafter the mother has amended her application in order to permit her to relocate to Western Australia.
It should be noted that the Court had already ordered on 30 January 2018 that the father pay the mother $10,000 by way of urgent spousal maintenance, such sum to be characterised at trial, and that that order was complied with. The Court had also ordered on 21 February 2018 that the child live with the mother and spend time with the father each fortnight from Friday until Sunday and in the other week from Thursday until Friday.
On 12 July 2018 the Court additionally ordered the father to attend upon Dr D on 22 August 2018 for the purposes of a psychiatric assessment and that the father be responsible for payment. The father’s time was also suspended on that date and supervised time was ordered at the Family Life Children’s Contact Centre, Suburb E, with the parties to do all things necessary to enrol.
The psychiatric report, which Victoria Legal Aid refused to fund, has not eventuated.
The Affidavit Materials of the Parties
It should be noted that Mr Jennett’s self-representation has, very understandably, affected the quality of his affidavits. Much of what the parties have had to say is traversed in the agreed matters above.
In his first affidavit filed 15 January 2018 the father deposed to the relationship’s duration and the birth of [X]. He was, at that time, a full time labourer and the mother was a full time tradesperson. He deposed to the mother going to Perth in December 2017 and not returning. He complained that the mother was staying with the maternal grandmother where there was a large dog which was likely to bite the child. Perhaps most relevantly for these purposes I note that he requested that the mother be psychiatrically examined and went on to say, “I have no objection to being required to be examined too”.
In his second affidavit filed 14 February 2018 the father deposed to the fact that [X] had now been bitten by the savage animal in Perth. He had much to say about the mother’s alleged itinerant and unstable life (which all predated the relationship with him). He deposed to having bought the home in 2006 and to having been employed by [F] as a labourer for three years. He also deposed that the mother hits [X].
In a second affidavit also filed on 14 February 2018 the father deposed to problems between the mother and her elder child, [P]. He asserted that the relationship was very much on and off. He complained that the mother had been hiding money from him. He asserted his belief that the mother was bipolar. He admitted climbing into [P]’s bed on one occasion but said that while he was ashamed of this [P] was not in the bed at the time. He also referred to a financial settlement executed in September 2017.
A further affidavit filed by the father on 15 February 2018 makes further assertions about [P] but they do not take the matter much further.
The mother’s responding affidavit filed 19 February 2018 but executed on 25 January 2018 deposed to a very volatile relationship in which the father always had taken full financial control. She deposed to the father threatening suicide whenever she threatened to leave him. She deposed to her mother and brother living in Western Australia and deposed to being willing to return to Melbourne but not to live with the father. She deposed that [P] had gone to Western Australia in 2014 because the father climbed into her bed naked. I note that at paragraph 12 the mother deposed:
“Whenever I discussed moving out with the Father he would state that I would get no money and no access to [X] if I left.”
The mother has filed a Financial Statement on 1 March 2018. In addition to asserting a half share in the matrimonial home I note that her superannuation amounted to $11,000.
The father’s Financial Statement filed 19 March 2018 shows a salary of $73,676 per year and superannuation of $62,000. He valued his 75 per cent share of the matrimonial home at $337,500 and his 75 per cent share of the mortgage at $220,000. His superannuation was asserted to be $62,000.
The mother filed an Application in a Case on 26 June 2018 seeking to enjoin the father in respect to the proceeds of sale of the home. Her Affidavit in support asserted that the property was sold for $520,000 on 21 June 2018 and that the funds were released on 22 June 2018.
As earlier indicated, when the matter came before Court on 29 June 2018 the father asserted he had spent the money in its entirety. He asserted that he had given it out to people he met in the street and spent some of it on prostitutes and strippers.
The mother’s next affidavit filed 9 July 2018 deposed to the then extant regime of time going well, but the father having moved in with his mother there were obvious space difficulties. There was obviously no longer sufficient bedrooms available for the children.
The father’s affidavit filed pursuant to the Court’s orders to explain himself was filed on 10 July 2018. It runs to 9 paragraphs and it is appropriate to set it out in full:
“1. As I have had my children stolen from me for money
I decided to rid myself of the cancer that is money. The mental and emotional toll of having my kids stolen from me has been too much to the point where I have been unable to work for the last 2 months and am now on indefinite leave. I am extremely lucky my work has been so tolerant with my situation although
I fear I will lose my job soon.
2. As this was not a thought out plan, but rather a decision to remove the target on my back placed there by money I have not kept detailed records of the expendatures.
3. As I have not been working for 2 months I have accumulated several debts from people supporting me through this impossible time that needed paying off first. Again I did not keep track of amounts as the monetary value was irrelevant to me.
4. On Thursday the 21st of june I paid off my credit card,
I withdrew $5000 and gave a gift of $10000 from my Bankwest account.
5. On Friday the 22nd of june I withdrew $40000 from my Bankwest account and withdrew $5700 from my Westpac account and paid $1500 for rent and bills at my new accommodation.
6. On Monday the 25th of june I withdrew $60000, paid
a further $1036.71 on my credit card, paid $67 on my final internet bill and paid for a mail redirect from my Bankwest account. I withdrew $5000 from my Westpac account.
7. On Tuesday the 26th of june I withdrew $40000 and paid
a further $794.21 on my credit card from my Bankwest account. I withdrew $25000, I bought some groceries at Aldi for $15.20 and I paid out $28861 on a lease on my car that I sold. All this was done prior to the court hearing at 2:15pm.
8. The money that remains in the Bankwest account is money that was already in my account before the sale of the house. Some of the money in the Westpac account is money that was already in my account before the sale of the house. As I am not currently working I need these funds to survive.
9. I dont have a detailed record of the cash expenditure. I gave most of it away in $5000 sums to people on the street and the rest I spent on fun to help me through this impossible time.” [sic]
Contemporaneously with her Application in a Case filed 23 October 2018 seeking to relocate, the mother’s affidavit noted that the father’s time had been suspended on 12 July 2018 pending receipt of a psychiatric report. She deposed to having contacted Family Life Suburb E and that the father had made no contact as late as September 2018. The mother deposed to her chances of successful employment in Western Australia given an earlier period of employment with [G]. She appended as exhibit K2 a letter from Suburb H Early Learning Centre dated 2 October 2018 which purported to show [X] having improved since the cessation of time with her father.
In a responding affidavit filed 12 November 2018 the father deposed to the reasons for his delay in applying to the Suburb E Contact Centre. At paragraph 9, in seeking to explain why he was unable to have the psychiatric assessment undertaken, the father relevantly asserted:
“… I got rid of the money as that was clearly clouding the mind of the respondent and her lawyer. My focus is, and always has been on [X]. With the money gone that will make it easier to focus on [X].”
I note that in paragraph 10 Mr Jennett took issue with the Family Report writer Ms A’s qualifications, noting that she had been qualified in 1979 and that much had changed since then.
At annexure J-17, a Doctor’s report dated 5 October 2018, the Suburb J Superclinic relevantly reported of the father, “No stress at work. No relationship problems. Financial problems.”
In his affidavit filed 23 January 2019 the father again sought to explain why he was not able to pay for a psychiatric assessment. He also claimed that his mother was being denied time with the child.
The mother’s affidavit filed 18 February 2019 largely reiterates the matters already deposed. I note that she accuses the father of making disparaging comments towards females generally. She also deposed to organising time between [O], [N] and [X] in conjunction with their mother.
The father filed a substantial tranche of material with his affidavit on 19 February 2019. Paragraph 1 commences:
“As I have stated many times to the ICL and the court, the respondent mother has an extremely questionable pasted.
To date the ICL has not looked into the respondent mother’s history in Western Australia, eg. Police record, accommodation record, psychological history and family history.” [sic]
The affidavit is replete with criticisms of the mother. I note that at paragraph 8 it is asserted that the maternal grandmother had a grandchild die in her care. It is asserted that the maternal grandfather committed suicide and that the mother and her own mother had been assaulted by one of her brothers.
I note that the father appears to have copies of the mother’s tax returns, although I would hope that these were provided during the discovery process.
At annexure J-27 is a report from a Mr K who is a psychotherapist and clinical counsellor. I note that Mr Jennett was described as blaming the legal system for denying him the chance to care for his children. I note that on page 3 of the report Mr K records:
“He reported that he lost his job and his house for him to be able to solely focus on his children affairs.”
It is perhaps sufficient to say that Mr K’s report is entirely supportive of the father but suffers from the very obvious deficiency that Mr K had only Mr Jennett’s account of events to rely on.
The Family Report – Ms A
Ms A saw the parties in June 2018. At that point the father wanted a shared care regime or for [X] to live with him. The mother was not then intending to relocate. I have regard, of course, to the entirety of the report, but would note some aspects.
At paragraph 19 the report noted:
“At times Mr Jennett expressed some frustration with the family law legal system and perceived bias towards mothers.”
At paragraph 34 the report noted:
“At the conclusion of the observation period, Mr Jennett offering and asking if he could spend additional time with [X]. When this was not agreed to by Ms Kent, Mr Jennett made comment
in the presence of [X] that ‘she should be in the care of the father and this speaks volumes about the mother’. An affectionate farewell was given to [X]. It is noted that the parties did not exchange greetings despite being in the waiting room area at the same time.”
[X] was observed to be willing and happy to spend time in the consulting room in the presence of each parent and engaged in play activities.
I note that both parties describe challenges in the area of their intercommunication.
At paragraphs 41-43 Ms A recorded:
“41. Mr Jennett impresses as a man who has strongly held views in relation to his role as a father, not only with respect to [X] but also with his two elder children, [O] and [N]. He openly expressed a high level of frustration in response to his experiences in legal proceedings, not accepting the recent Final Orders made in relation to his two sons but also with Interim Orders made concerning [X]. Mr Jennett expressed views that were determined and unshakeable, this being that his children require the active and substantial care that a father can provide, this reflected in either shared care or a substantial increase in paternal time. At the present time Mr Jennett appears to hold rigid views in relation to perceived benefit of
a shared care arrangement for [X], not accepting possible alternate arrangements. Mr Jennett is also expressing strong denial of maternal descriptions of his behaviour this being aggressive, threatening, domineering and controlling.
42. On balance, it is considered that [X] requires stability and an absence of parental conflict this including openly expressed adult personal views that are negative and critical of the current formal parenting arrangements. There is benefit in [X] continuing to experience primary maternal care at this time in her life. Maternal views whilst cautious in respect
to paternal time with [X], appear to accepting of this child spending planned time with Mr Jennett, particularly when her half-brothers are also in paternal care on alternate weekends. Ms Kent appears to acknowledge the importance to [X]’s emotional well-being to not openly express negative views of the other parent in the presence of this child. Ms Kent is encouraged to continue her personal engagement in counselling in order to maintain her own emotional health, this having benefit in her role as a parent.
43. The paternal proposal for the establishment of a shared care arrangement is considered not in [X]’s best interests given her young age, continuing parental conflict and maternal allegations of paternal family violence. The further paternal proposal for [X] to live in primary paternal care as
a consequence of not being able to secure a shared care arrangement is also considered to lack some insight in to the needs of [X], focusing upon the personal needs of
Mr Jennett.”
The report went on to recommend the continuation of a pattern where she lived with her mother and spent one overnight in one week and two overnights on alternate weekends in a fortnightly cycle.
The Subpoenaed Materials
It should be noted that material subpoenaed from Ms L, psychologist, shows contemporaneous complaint in 2013 by the mother to Ms L including the father describing one of her friends as a walking vagina and propositioning the mother for a threesome. The notes also show that the mother complained of being controlled and that her behaviour was scrutinised. She had raised the issue of the father’s drinking and calling her and her friend walking vaginas. These contemporaneous records are not devoid of significance as we shall see.
I note from the materials subpoenaed from Bank West Legal the husband withdrew sums of money consistent with the figures in his affidavit between 21 June 2016 and 26 June 2016 (on which date the matter was due in Court). He had withdrawn $60,000 in cash on
25 June 2018 at 7.42 am.
I will return to what I make of the father’s explanations of his expenditure in due course but would observe in passing that it is inconceivable that the father had been able to fritter away $40,000 on the morning of 26 June.
The Submissions Made and Evidence Given at Court
The Opening and Evidence of the Father
What follows is taken from my notes. Self-evidently it is not
a transcript but records aspects of the matters said that struck me as being of significance.
Mr Jennett made a relatively extensive opening. It was marked by very significant pressure of speech. Indeed after he had been talking almost without apparently pausing for breath for some 10 or so minutes
I stopped him and indicated that we should move to the direct evidence.
The father said that the entire thing was because the mother took off interstate on 20 December 2017. She had had legal advice before that. The Court needed to look at the mother’s reckless actions. He thought things were amicable before she left. She had denied [X] a father. She was deceptive. The mother’s Financial Statement shows her stashing money away. She had earned $30,000 in the half-year before she took off and was hiding money. He had no access to her finances but she had access to his. The mother was lying. There was a slanderous letter from the Childcare Centre. He had limited access in 2017.
It was all premeditated. The mother claims to be scared of him but she stalked him on Facebook. It was all tactical. It was a step-by-step ploy. The Independent Children's Lawyer refuses to look at anything. The mother had a nomadic lifestyle. She had mental health issues for her whole life. There were problems with the mother’s older daughter. [X] had not seen him for 226 days.
He sought initially that [X] spend alternate weekends with him from Friday to Monday. After this each month one extra day would be added until it was a fifty-fifty relationship. [X] can get her brothers back again.
So far as superannuation is concerned each keep their own and they should keep their other possessions.
If the relocation was permitted he would just be a visitor. He would need fifty-fifty time. When pressed as to what his position would be if relocation were permitted it is fair to say that Mr Jennett was simply unable to engage with the proposition. He would want his child as much as possible.
Mr Jennett was called and adopted his Affidavits and Financial Statement as true and correct.
Under cross-examination by counsel for the mother the father said that the mother was passive aggressive, controlling and dominant and abusive. She had a defective nature. It was parental alienation when she removed the child. He believes the mother has undiagnosed bipolar condition. She has depression and a deteriorating mental state. Her daughter would remind her to take her pills and she becomes sick if she does not take them.
The mother manipulates the legal system. She did the same with [P]’s father. She always blames others. It is coercive control. She is lying.
Mr Jennett conceded that the report of Mr K was based upon what he had told him. He is frustrated with the legal system. The father said he was allowed to form an opinion. He said he was not blaming the mother and is not angry.
I would interpolate and say that both of these latter two statements are simply completely untrue. Everything the father said about the mother was said angrily and apportioned considerable blame as just recorded in the remarks above.
When asked to name three things that stood to the mother’s credit the father said that the mother’s time with [X] can be loving, in her time. I took this to mean from time to time. Next she had stood by the father in his case about his sons. And third she had looked after his sons. The mother is extremely deceptive and he questioned how much of this was real. She was leading two lives. Everything is deceptive.
He had met the maternal uncle. He is a heavy drinker and consumes marijuana. The father had been to Western Australia four times for weeks at a time. The uncle should be assessed. The Court should put a microscope on the home. He had seen the marijuana. It was five to six plants. This was possibly in 2016. The uncle is a nice person but drinks and becomes aggressive.
The maternal grandmother had a child die in her care. She should see [X] up to a point. The child who died was four to five years old. The grandmother’s time should be supervised. The grandmother and the mother’s brother both work full-time as well.
The mother had moved six times in five years. She had told him she moved a lot. She has itchy feet like her father. Her father committed suicide.
Amazingly Mr Jennett went on to say that he had a high opinion of the mother’s family. Given what he had to say about them this is plainly untrue.
The mother had claimed to leave Western Australia because of abusive relations and he believed her. He does not believe her now.
[X] was born in Town Q. The moves were before [X] was born. The mother had a nomadic lifestyle. She works full-time as a tradesperson and does a school run and additional work. He disagreed that the mother could look after the child fully. Indeed his answers became sarcastic and defensive in their tone. He said he could look after [X] full-time.
The father said he was required to undertake a psychiatric assessment. This was impossible. He had no money. The paternal grandmother is being prevented from spending time with the child and she supports his case. There is no evidence of risk or danger to his daughter. He wants to know everything about his child. He said, “You have stolen my time.” His mother wants to see her grandchild. She used to babysit. His mother was not giving evidence. The father said he was not angry but was disappointed. His answers are heartfelt and he has done nothing wrong. The relationship was volatile but not one-sided. He would not do what he was told and this led to problems.
He had not been financially controlling. He had no access to the mother’s accounts. I should interpolate and say that my notes record that by this stage the pressure of speech of Mr Jennett’s utterances was truly remarkable.
The father denied family violence and said there were no Intervention Orders. He denied an incident alleged to have occurred at Christmas in 2017. He said the mattress popped and that it was a minor matter. He said that denying the father is child abuse. He gets worked up. He has not seen his daughter for 226 days. He admitted stepping in dog’s mess on an occasion. He does not yell. He would not say never but there were two parties to it.
I should interpolate again and say that Mr Jennett was almost shouting at this point. A number of Mr Jennett’s answers really consisted of long pejorative rants against the mother.
The father said he had never thrown furniture around the house. He was a labourer before he stopped lifting. He has done heaving lifting and was a tradesman for 10 years. He is a qualified tradesperson and is strong. He never threatened suicide. He never said to the mother, “If you leave you will never see [X] again.” He had never said that he understood why the father of Rose Batty’s child killed the child. He had said that this needed to be investigated. Filicide is not a biological issue. Family violence is not a gender issue. I should interpolate yet again and say that some of the father’s answers at this point were grandiose and delusional.
When it was put to him that he had sold the house to hurt the mother he said he was on the brink of losing his job. He had to get rid of it to concentrate on his child. Money does not matter to him. He had not said to [X] that females are bad. He had not said girly things are bad.
The father said he always has strong opinions because he does his research. Ms A was not interested. The interview was only 25 minutes. This compared with the section 11F interview (described by Mr Jennett as an F11) who was 100 per cent professional. Then the Family Report was less good and this one was the worst of all. There was a lot of detail about his history but none about hers. The Independent Children's Lawyer had subpoenaed all of his records but not hers.
It was put to him that his Financial Statement in March 2018 disclosed an income of $1,416. The father agreed. He said he got fired because he was so upset about losing his children. His focus is his children. Money comes and goes. He recently commenced receipt of Newstart. He has to report how much he has earned but he has earned nothing. He will rebuild his life with his children. He would reassess if the mother went to Western Australia. The father said money is no longer a cancer as it is gone. He pays no Child Support. He had a job for three and a half years and paid Child Support. He supports his children. He said his time is more important than money. He will have to work if he has [X] fifty-fifty.
The father had no records of his expenditure. He had owned the Suburb J property and the net proceeds were closer to $230,000. When questioned it emerged that $10,000 referred to in paragraph 4 of his affidavit had been given to his mother. He had blown $40,000. He spent it and gave it away. He had fun. This meant strippers and brothels. He had not gambled it. He gave it to people in the street. He conceded he could have opened a bank account for the children. He had to get rid of it to keep it from the mother. He had $40,000 in cash. If somebody walked past he would just hand them money. Some responses were funny. One thought it was fake. One person refused to take it. He said most people said ‘thank you’ and that was it.
I interpolate yet again, there is no question that this answer is little short of farcical. A person approached in the street and handed $5,000 without any kind of introduction would be likely to respond in some extremely dramatic way.
The father said he had not hidden money somewhere. He was not trying to hurt the mother. He had sold the car for the payout figure. Everything he did with the finances was to concentrate on the children.
He lives with his mother in a three bedroom property. There is a student in the third room who pays rent. They are all renting. The boys sleep in his mother’s bed together.
When it was put to the father that the mother would have family support in Western Australia the father said this was there when she left originally. He suggested that the support was no good then and would be no good now.
The Father under Cross-examination by Counsel for the Independent Children's Lawyer
The father confirmed that he had been seen with [X] at the Family Report interviews in June 2018. He had read the report. Some things were not exactly right in it.
Final orders were made in respect of [O] and [N] on 28 May 2018. He did not give evidence.
It should be noted that from perusing the file it was apparent that that case proceeded on an undefended basis pursuant to orders made by Judge O’Sullivan.
In that decision the mother was granted sole parental responsibility. The father had wanted fifty-fifty shared care. He has not appealed the decision yet. He is now seeing the boys more.
He has concerns about the mother’s mental health and transient life. He seeks fifty-fifty over time. He believes that what the mother brings to the table outweighs the risk. He said there were big details missing from Ms A’s report. He remembered reading that the mother needed money. He told counsel that, “You ignore the trauma of losing the child.” The mother was setting this up from day dot. All of his children have been stolen from him.
Child Support is raising your children. He would have them fifty-fifty. He is not punishing the mother. He did not tell the mother she would get no money. He had attended brothels and strip clubs. Most of the money was given away. He gave $10,000 to his mother but that was all. If the mother was in Western Australia he would like to see [X] as much as possible. He would travel to see her. He would do whatever it takes for his children. He would have to get work but you need to address the trauma that is being inflicted.
Separation under one roof took place in July 2017. He is not a heavy drunk. He may have been drunk once or twice. He did not get into [P]’s bed. He climbed into [P]’s bed because he was drunk. She was not there. He conceded that he vents. Everyone vents. He had not referred to a friend of the mother’s as a walking vagina. He did not proposition her friend but they did have a threesome. He had not told the mother she was a drain. He is a focused, driven person. The problem is that things are taken out of context. He did not drink heavily during the relationship.
It should be noted that even the above digest of the evidence is in no way complete. Much of what Mr Jennett had to say can really, I regret to say, only be described as irrelevant rants.
The Submissions and Evidence of the Mother
Counsel confirmed in opening that the mother seeks an order for sole parental responsibility and that time take place only at a Contact Centre until a psychiatric assessment of the father is undertaken. He confirmed that the only property now available for division was superannuation and the mother seeks all of it.
In evidence-in-chief the mother adopted her Trial Affidavit and Financial Statement as true and correct. She works as a casual tradesperson earning $971 per week. Her hours are either early in the morning or later in the afternoon. Additionally she undertakes labouring work when it is available. She takes [X] to day care at 6.30 am and the day care workers take her to school at 8.50 am. The mother collects her from day care at about 4.45 pm.
The mother had given her own mother $20,000. This was because her mother had herself advanced $21,000 as a proposed deposit on a property. When she did not buy the property she had to return the funds. The father did not drink every day but drank to excess when he did. Her brother is aged 50. He has beers or scotches but is never drunk. Her mother is about 71 years old. A grandchild had died of meningococcal in her care.
Under cross-examination by counsel for the Independent Children's Lawyer, the mother confirmed that her net wage was about $700 per week. Labouring work is rare. She pays $330 a week rent and about $100-$150 dollars on food. Day care costs are approximately $70 a week after the rebate. [X] gets up at 6.15 am and is in bed by 7.00 pm and copes with the routine. She has no family in Melbourne. She has some friends at work. Her mother advanced the $21,000 in 2017. She was intending to separate, and she intended to buy in Melbourne. The $21,000 is no longer available. The mother has helped her with legal expenses and furniture. Last year she did not intend to relocate but planned to get a house in Melbourne. Her lack of funds is part of her reason for seeking to go to Western Australia.
The father had not entered himself for contact at the Contact Centre. She saw no point being here if the father did not want to see [X].
She would make trips back to Victoria if the father undertook the psychiatric assessment. She would seek supervised time. Time could progress to every second weekend if everything went well.
[X] enjoys her time with [N] and [O]. They have seen [N] and [O] at least once a month. This is arranged through their mother. She has a good relationship with the boys’ mother but they are not best friends. The boys would be welcome in Western Australia. She would return to Melbourne to enable [X] to see the boys. FaceTime with the brothers would be okay.
The mother has support in Western Australia. It would ease the stress and tension for her and [X]. The father has given her $25 in Child Support in total. She was working as a tradesperson full-time in September 2016. Some shifts finished at 10.00 pm. She had a 4.00 am start in 2017. The father would supervise [X] when she worked although he did not bathe her enough. She had concerns about the father but had no choice but to work. The parental grandmother looked after [X] a lot. The relationship with the parental grandmother was important. In the last couple of months [X] has been unfavourable about her grandmother. The grandmother had told [X] that she did not love her when she is naughty. She is not comfortable with the parental grandmother as a supervisor. She is too much on her son’s side.
The mother confirmed that she had supported the father in his disputes about [N] and [O]. She was concerned what would happen if she did not agree with the father. She would be accused of being part of the problem. Her will was overborne.
[X]’s time was generally good in the last year. Her brothers were usually there. The mother confirmed that the incident where the father climbed into [P]’s bed was not reported to the police. His exposure of his genitals to [P] was accidental save on one occasion. [P] left in 2013. The mother was disgusted she had not done anything about it. [P] had told her about the incident on the night it occurred.
I should interpolate and say that this evidence was given with conviction and I accept it.
The mother sees the father play a normal role a father would play. She would support FaceTime. She would pay for [X] to come to Melbourne. The minimum would be twice a year.
She has worked in the past for [G]. They are likely to hire her again.
Under cross-examination by the father, who was of course representing himself, the mother confirmed that she had had one appointment with a lawyer before she left for Western Australia. She left without the father knowing. Online contact can be part of parenting. [X] will have a relationship with her brothers if she lives interstate. The boys’ mother has four children.
The mother had received a letter from the Childcare Centre. She had not requested it. She asked the teachers how [X] was travelling after not seeing her father and they sent the letter. She has a four bedroom property now and there is no one living with her. She had decided to go to Western Australia over a week and a half. She had told the father in front of the Department of Health and Human Services (“DHHS”) that she was contemplating moving. She did not tell him because she was scared he would not let her take [X]. She was concerned with [X]’s welfare if left with the father. She denied hitting [X] a lot and had not assaulted her with a teddy bear.
A day care worker had come with her to the Family Report interviews to look after [X]. The report writer told her to leave it at that. She did not show Ms A the Childcare Centre letter.
The father had not forced her physically to make a post on Facebook. He did force her to write a post saying that they had an amicable relationship. Her Facebook had ceased in about March 2018. She did not think she had joined the fathers’ group. Her Facebook and bank accounts were all being hacked. Her support group in Western Australia were all fine when she came to live in Victoria. She had hoped to get a better support group with the father. Her mother had visited once and her sisters once. The grandmother’s visit was after [X] was born. Her brother had come for a week. She has been back to Western Australia numerous times. They did not want to come to Victoria because they did not like the father. Her brother had never grown marijuana in his garage. He had LED lights. Her brother did have a dangerous dog when she visited with [X]. The dog, which was a bull mastiff, was good with [X]. She herself had been bitten by the dog. [X] was bitten too and the dog was put down.
Her sister lives about one hour from her mother. Her sister works full-time. Her mother works nine days per fortnight and her brother is self-employed. Her mother will stop working if she relocates to Western Australia. She is well past retiring age. A grandchild did die in the grandmother’s care. She had not explained the suicide of her father to the report writer. She did not pick and choose what she did tell Ms A. The death of her nephew was sad and horrible but she was not part of it as she was not there.
[P] had reached out to her at least twice but she did not answer. She was having a hard time with the newborn. Her father told her that [P] was doing well at school. There is a good relationship between [X] and [P]. She sees her every time they go to Western Australia. They are not close. [P] is working and might return to Victoria. She had lived in a shed with [P]. She does not have itchy feet. She moved a number of times. Her brother had beaten her and her mother up in a drugged rage (it emerged this was another one, not the one with the dog).
She is in receipt of government payments. She receives about $70 per week single parent and $400 tax benefits and rent assistance. This goes up in the school holidays. Her net income per fortnight is $1,265 when she is not working in the school holidays. Extra work is casual work.
The father had given her $10,000 pursuant to Court order. This was not Child Support. She had applied for an exemption from Child Support because she was scared of the father’s reaction. He had hated paying Child Support for his sons.
The mother conceded that she had driven past the father’s house. She knew the neighbour across the road and visited them and indeed next door. The father ought to have been working at the time. She was not sure what the father would do. He had been violent with her. There was one police report. There was a fight next door. The father was banging on the door yelling at 2.00 am and the police attended.
In my view, the mother’s evidence about this incident was once again entirely convincing. The father was clearly drunk and making a nuisance of himself.
The mother had sent money to her own mother during the relationship. The father did not know. She did not know if it was repaid. It was about $4,000. She had to transfer funds. She kept $100 here and there and sent it to her mother. The father never had access to her accounts. Every time she spent money the father wanted to know where it went. Towards the end she was so desperate to get money on the side that she took the risk.
The mother has forgotten her medicine on occasion. [X] used to tell her as she likes to be her helper. She had missed her depression tablets. They build-up in the system. There was no change in her mental state. She sometimes missed a whole week. She does not forget her pills now.
The mother was questioned about the Facebook entry she made during the proceedings involving the boys. She said she was trying to appease him. She had not said she would kill the boys’ mother and she had not said she would engage a hitman. She had no contact with the boys’ mother after she took the children. Ms R (the mother concerned) had contacted her in Western Australia.
The mother was cross-examined about a friend called Ms S. This is a childhood friend who lives in Victoria. The mother does not now see her as much. They used to be very close. The father had been rude to Ms S. She had come to live with them for two weeks because she had nowhere else to go. The parental grandmother was the main babysitter in Victoria. Ms S was scared of the father. Her other brother is not aggressive. There had been an incident at home at the time of [P]’s graduation.
The $10,000 paid pursuant to Court order helped her with a bond for her house. It went on furniture and toys for [X] because the father would not let her have anything. When questioned about her alleged $30,000 earnings in 2017, the mother said she was not stockpiling funds. She was paying car payments of $150 per week. Money went on miscellaneous things. She has never been psychologically assessed and has no police record in Western Australia save for speeding tickets. She took the dog to Western Australia but left the cat behind. Her brother’s dog was very anti-cat. One of her brothers lives with her mother. He is the one with the LED lights. The other bother who committed the assault is nowhere on the scene.
The Evidence of Ms C
At the request of the Independent Children's Lawyer, and with the agreement of the parties, the father’s mother was called to give evidence.
When questioned by counsel for the Independent Children's Lawyer, Mrs Jennett confirmed that she had received $10,000. She does not have it now. She gave three to four thousand dollars to her other son soon after she got it. Her son had not asked for the money back to pay for a psychiatric assessment. He had told her that he had sold the house. She did not ask what happened to the money.
Under cross-examination by counsel for the mother Mrs Jennett confirmed that he had told her he had given the money away. She was astonished. She and Mr Jennett and the tenant put in $100 towards the $290 per week rent.
The Evidence of Ms A
Ms A adopted her Family Report as exhibit T1.
Under cross-examination by counsel for the Independent Children's Lawyer Ms A confirmed that she has not seen [X] since last year. Counsel put the parties’ positions to her. Ms A noted that she had not made any recommendation about parental responsibility. The communications between the parents were not good enough. There had been significant events since she had seen the parties. There had been a serious deterioration of goodwill, heightened distress and more critical views. There are practical issues in shared responsibility. It is still important despite these problems, however, that both parents receive school and health reports and the like. The more recent information given to her in the form of the parties’ affidavits did not change her recommendations. It confirmed her view. At the time she saw the father, he expressed distress. This was not just about [X] but also his sons. She did recommend that he engage in counselling. The information provided shows the father is distressed. A psychiatric assessment was not unusual given the circumstances. Supervised time had already been ordered. Ms A asked rhetorically “why should that be reversed?”. The mother describes her support network in Western Australia. She had no firm plans to relocate last year.
Counsel for the mother did not cross-examine.
Under questioning from Mr Jennett as to whether the mother mentioned anything about her history Ms A said it was fully reflected in her report. Her recommendation for time was a continuation. Paragraph 43 is her reasons for this recommendation. The father was aware that [X] was present at the time of the interviews. He was aware that the mother was being interviewed. He asked who would look after [X] and Ms A checked. The support person was there. The interview with Mr Jennett was scheduled for 9.50 am and started then. It finished at 10.40 am and was followed by observation for 20 minutes. The mother arrived at the consulting room at 10.30 am. The meeting with Mr Jennett was not a half hour meeting.
Final Submissions – Independent Children's Lawyer
Counsel submitted that contrary to the mother’s evidence the father was more involved than she said with [X]’s care. The mother was working and the father looked after her when she was. The mother had unilaterally moved to Western Australia. The father denies violence but the mother says that the relationship was extremely unhappy and characterised by verbal abuse. There was no police involvement or Intervention Orders. Nonetheless counsel submitted that the subpoenaed psychiatric notes show that the mother’s complaints of the father’s conduct are not recent invention. Counsel pointed to the mother’s first affidavit at paragraph 12 where she reported the father saying, “Leave me and you will get no money or access to [X].” The father says he disposed of $200,000-$250,000 on strippers and brothels. Only the previous day did he reveal that $10,000 was given to his mother. This could have been recouped.
The father did not tell Mr K that he had spent the money. Counsel submitted that disposal of funds can be family violence within the meaning of s.4AB(g) and (e) as it constitutes an attempt to control. This impacts on the question of sole parental responsibility.
The father has numerous complaints about the mother. She had seen a psychologist in Western Australia. The father was fixed on an idealised view of his role as a parent. He had no insight about how his behaviour affected the mother and [X]. The father complains he has no money to pay for a psychiatric assessment but he dissipated his funds. He is fixated that the mother gave $4,000 to her own mother. The Independent Children's Lawyer thinks it is very important that the disposal of funds by the father has affected his children’s future. Victoria Legal Aid had refused to fund a psychiatric assessment. There was a delay in supervised time because the father delayed applying. The Independent Children's Lawyer submitted that the relocation to Western Australia is in [X]’s best interests. The mother is from Western Australia and has family there and can obtain work there. The relationship between the parents has become worse. The mother gets no Child Support and it beggars belief that the father does not understand that the mother would change her position and decide to relocate to Western Australia after he dissipated his funds.
The relationship with [N] and [O] is a concern. Perth will however reunite [X] with [P]. [X] loves [O] and [N] and the mother will support this relationship. There will be FaceTime and the mother will return to Melbourne two times per year.
The father wants equal time but Ms A opposes. It is not in [X]’s best interests. An order should be made for sole responsibility to the mother. The father is unremittingly critical of the mother and does not maintain the child. The mother accepts that [X] loves her father but the father had the answer in his hands. Time is possible in Melbourne subject to conditions. The father raised time with [X] in [X]’s presence during the Family Report interview. The father does need a psychiatric assessment. Counsel surmised that there could be a Rice v Asplund notation to revisit the matter once the psychiatric report is obtained.
Submissions of the Mother
Counsel submitted that the father was volatile and financially controlling and had made threats. The mother was overborne during her relationship with the father. Asked about three positives the father said the mother was loving, stood by him in his dispute involving [N] and [O] and had looked after the boys. She had left while he was on a camp. She was scared to walk out in his presence. The father denigrates the mother calling her a liar, passive/aggressive and other insults. He had said on more than one occasion, “You ignore the trauma of having lost your child.” The father says he is the victim. In reality he was losing control. Controlling behaviour is violence.
Counsel submitted that the father had in fact not dissipated his money. This did not matter. It is not available now. The father attacked the mother regarding her expenditure of the $10,000 ordered by the Court. The father was controlling about expenditure and was even so in the witness box. The mother could have stayed in Melbourne if she had been given a property settlement. She has a relationship with the paternal grandfather. Counsel submitted there should be supervised time only after psychiatric assessment. The child will be subjected to the father’s views of women and the mother. Both parents love the child but the child should not be a sounding board for the father’s views. The father’s superannuation is about $60,000 and it should all go to the mother. There should be a departure order so that there is no Child Support. She seeks the entirety of the father’s superannuation. The father has failed to support the child.
Final Submissions of the Father
The father said he was unable to fulfil his obligations to financially support [X] but he has been prevented from parenting. There were poor communications when the mother left. The removal of the child is abuse. There is no substantiation to the mother’s claims. The mother is lying and he had rock solid evidence to prove it. Annexure J-11 shows [P] disowning her mother. The mother had disclosed his finances to the boys’ mother. Pointing out a fact is not negative if the point is negative. Everything the mother says is opinions or hearsay. Her claims are all lies. She has no credibility whatsoever. The mother omits essential details and did not tell the family reporter. The mother would know if he was home when she visited a neighbour. The mother’s chances of work in Perth are uncertain. It was not true that the mother’s family do not like him. Communications broke down when she started making more demands. The mother was in Western Australia in September 2017 for three weeks. Why did she not stay there if she was in fear? All the mother’s affidavits are just negative about him. The happiness of a parent is vital to a child. The mother had not considered the relationship between him and [X].
In relation to superannuation the relationship was on and off for five years in total. There should be no access to 18 years worth of superannuation based on a five year relationship. He got rid of the money so he could focus on just his children. [X] has never grown up with [P] and [P] is an adult.
Most of his supporters are women. He does not discourage girly things. [X] is a tomboy.
You cannot buy and sell parental responsibility. It requires rock solid evidence. The mother is unable to deal with adult situations. The mother loves the child but he wants fifty-fifty. The time proposed is not enough to be a parent. All this started when the mother left. What did Western Australia offer that Victoria did not? It was all about the benefits to the mother. There are no bulk bill doctors in Western Australia.
As a final submission counsel for the Independent Children's Lawyer suggested there should be no move to Western Australia until midyear.
Findings about the Credit of the Witnesses
It is always unfortunate to have to make criticism of witnesses
or parties but in this case it cannot be avoided. I have already commented unfavourably on the father’s evidence from time to time. Not only was his evidence given under enormous pressure of speech but he was at times extremely loud. I regret to have to say that some
of what the father said was just plainly untrue. His assertion for example that he was not blaming the mother was palpably untrue. His assertion that he had a high opinion of the mother’s family when
he was criticising the grandmother for a death of a child and her father for committing suicide speaks for itself. As I have already indicated
a number of his answers were simply long pejorative rants and some of his evidence appeared to me grandiose and delusional. He was in the habit of answering questions with questions of his own. He was
a thoroughly unsatisfactory witness. His denial of the fact that he dissipated his funds (if he indeed did) to spite the mothers of his children is plainly untrue. His assertions that the mother had been setting things up from day dot is little short of paranoid.
The mother by way of contrast was an excellent witness. Her answers were clear and concise. She responded directly to questions put to her. She was quite prepared to make concessions against herself when
Mr Jennett put questions to her. By way of example she candidly admitted on occasions having failed to take her anti-depression tablets. This answer is redolent of the calm and clear and in my view wholly honest way in which the mother gave her evidence.
Ms A was a professional witness giving evidence within her area of expertise. She was not shaken in any way in cross-examination and I accept her evidence.
Findings about the Facts
There is no doubt that this was a volatile and strained relationship for some five years or thereabouts. The father I have no hesitation
in finding was controlling and abusive throughout. I have no reason to doubt, and do not, that his language and style of speech would have been at least as unrestrained in the home as it was in the Court.
He would have been controlling both financially and more generally. The mother was badgered in relation to any expenses she made. Her evidence that she had to, as it were, squirrel money away to enable her departure to Western Australia was entirely convincing. I am not able to find that the father was violent in a physical sense but there is no doubt that his controlling and aggressive behaviour amounts to family violence within the meaning in s.4AB of the Family Law Act 1975 (“the Act”). Calling the wife’s friend and I think her also walking vaginas speaks for itself.
The wife was initially prepared to remain in Victoria but this was very much in the context of a possible property settlement. We will never know how much the wife would have received of the approximately $250,000 pool had the property case completed. Unquestionably however she would reasonably have expected to get something. Her decision when this was taken from her to relocate to Western Australia is a matter to which I shall return, but it is sufficient to note at the moment that it was an entirely reasoned response to her circumstances.
This brings us to the one truly extraordinary feature of this case. The father’s evidence is that he within a matter of days, or even hours, dissipated tens of thousands of dollars. Some of this undoubtedly did go on what might be described as riotous living. However there is no suggestion he gambled any of it.
The father’s assertion that he wandered around the streets giving persons he did not know sums of up to $5,000 is simply risible. He did not do so. He may have given away some tranches of cash, but the picture of a man wandering around with tens of thousands of dollars upon him, presumably in some sort of holdall, and giving out huge tranches of cash is outlandish. The police would surely have been called by one of the intended recipients or alternatively, and regrettably, he might well have been robbed of all of it. I have no doubt that the father still has substantial funds somewhere although I will never be able to say where. Counsel for the mother is correct to say that the Court simply cannot apportion these funds as they are simply not available. It should be noted that it is the father’s case that the last tranche of some $40,000 was taken out of the bank in cash on the morning before the Court made the orders restraining him in the afternoon from further dealing with his funds. He did not dissipate $40,000 that morning. He is a liar when he says he did.
Notwithstanding the force of these remarks, which I am well aware attract the operation of s.140 of the Evidence Act 1995, what is truly disturbing is the father’s conduct. On his case he dissipated almost
a quarter of a million dollars for no better reason than that he thought that the mothers of his two children were out to get some of it. That is not the action of a rational and well person.
If, as I find, the father did not dissipate all of it, although he may well have dissipated a lot, it is still not the action of a well man. To lie so contumeliously as I find he must have bespeaks an extraordinary state of mind.
I am not a doctor and I bear that reservation very keenly in mind. But just as one does not need to be a surgeon to see that someone has lost
a limb, so too one does not have to be a psychiatrist to see that somebody must be in poor mental health. Everything Mr Jennett said and did in the Court from start to finish must give rise to the most serious questions about the state of his mental health. His refusal
to have a psychiatric assessment is deeply disturbing.
Even if, contrary to his denials, the father does not have sufficient funds left over from the funds that he dissipated to pay for a psychiatric assessment, there is nothing to stop him obtaining employment and raising those funds. Indeed if I construe his evidence and materials correctly he deliberately ceased his employment. All this is put of course in the context of his asserted desires to concentrate on his children. Spiting the mothers of your children by extracting and dissipating your funds is not doing anything for the children whatsoever, quite the contrary. The father’s position is essentially that he will contribute and pay for his children by having them half of the time. His position before the Court is wholly self-oriented and not child-focused. He referred on more than one occasion to “the trauma of having your children stolen from you”. This florid and inaccurate version of the events speaks for itself.
Against this background I turn to the statutory pathway, still in my view best illuminated by the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental Responsibility
Ms A did not favour an order for shared parental responsibility in light of the very poor communications between the father and
the mother. Given the father’s excessively controlling personality and the very poor interpersonal communication between himself and the mother an order for equal shared parental responsibility is wholly impracticable. It is plainly therefore not in [X]’s best interests. This is all the more so because, as I will shortly explain, I will be permitting the mother to relocate to Western Australia. The child will be in the care of the mother effectively full-time and there is simply
no practical way in which the father can be allotted equal shared parental responsibility in any event.
The father is an excessively controlling and intimidating figure. It is plainly not in [X]’s best interests that he be allotted equal shared parental responsibility because he would not be capable of exercising
it in any kind of equal way.
Furthermore, there has been family violence which rebuts
the presumption of equal shared parental responsibility in any event. The repeated derogatory taunts which I have no difficulty in finding took place, together with the destruction of property and the unreasonable denial of financial autonomy would certainly militate against such an order in any event.
As if that was not enough, as indicated, I am going to permit the mother to relocate to Western Australia in any event so that realistically there will be no meaningful work for an order for equal shared parental responsibility to do.
For the sake of final clarity however I make it plain that if all other matters were set to one side, an order for equal shared parental responsibility is only going to lead to endeavours by the father
to control the mother’s care of [X] and it is quite clear that the appalling communication style he has towards the mother makes
it clear that it is not in [X]’s best interests that there be an order for equal shared parental responsibility. The mother will have to have it alone.
The Spend Time Regime
The position of the Independent Children's Lawyer seemed to me to vacillate. It appeared to be suggested that supervised time might be appropriate. The mother seeks that there be no time until and unless the father provides a psychiatric report. This single issue does not of itself immediately adapt to the terms of section 60CC of the Act but it is still appropriate to endeavour to address it by reference to that statutory pathway.
The Primary Considerations
There is no doubt that Mr Jennett loves his child. There is equally no doubt that [X] loves him. All other things being equal it is plainly desirable that [X] have a meaningful relationship with each of her parents. There is however a real need to protect [X] from psychological harm from being subjected, or exposed to, abuse, neglect or family violence. The father has no insight whatsoever. The astonishing rigidity of his views, which seek to place himself as the victim and the mother as a scheming perpetrator of his ill fortunes, is deeply disturbing.
I am required pursuant to s.60CC(2A) of the Act to give greater weight to this criterion.
The additional Considerations
Section 60CC(3)(a)
The child has not disclosed her views in any meaningful way. When viewed by Ms A [X] had an unexceptionable relationship with both her father and mother.
Section 60CC(3)(b)
[X] has a close and well-formed bond with her mother who has been her primary carer all her life. Her relationship with her father as just indicated appears to be unexceptionable. There is nothing to give any great flavour to the nature of [X]’s relationships with her two grandmothers or the other extended family members. I do know that she loves her two half-brothers dearly and it would seem that she might have some incipient relationship with her adult half-sibling [P].
Section 60CC(3)(c)
The father has prosecuted his case to judgment. He is seeking to participate in making decisions about major long-term issues in respect of [X]. The extent to which he has sought to spend time and communicate with the child is open to some question. When orders were made for supervised time he simply failed to enrol for a number of months. His explanation that he was in a bad space at the time (this being my paraphrase not his exact words) and that he was disheartened by the anticipated lengthy wait is simply not satisfactory. If he had really wanted to see his child he would have spent less time in self-absorbed self-pity as I find he did and more time in getting on with the nuts and bolts of arranging to see [X]. This said however I repeat that the father has prosecuted his case to judgment. He plainly wishes to communicate and spend time with [X] albeit very much on his own terms.
The mother’s conduct in this regard is entirely appropriate and unexceptional.
Section 60CC(3)(ca)
The mother has plainly fulfilled her obligations to maintain the child. The father has dissipated hundreds of thousands of dollars (for all practical purposes) in an endeavour to spite both Ms Kent and the mother of his two boys. He has not contributed effectively scarcely
a single cent in Child Support. While I understand and accept that the mother sought an exemption out of fear of the father’s response,
I accept her evidence that the father loathed paying Child Support in respect of his sons. His attitude that he would provide appropriately for his children by having them for half the time is reflective once again of his utter lack of insight.
Section 60CC(3)(d)
Separation in the event of relocation from her father and her half-brothers will undoubtedly be distressing for [X]. As I understand it everyone agrees that this is likely to be the case. Nonetheless, if the mother relocates to Western Australia she will have the additional support of her close family members. There is no reason to suppose that they will not love [X] all the more when she is close to them.
I note that the mother has already undertaken to return to Melbourne twice per year to enable [X] to see [O] and [N] and I have no doubt she will do so. Her relationship with the boys’ mother is good enough for this to be a practical prospect.
Separation from the father will doubtless also be a loss in [X]’s life but for reasons that I will come to it is for the present time going to be inevitable.
Section 60CC(3)(e)
There will of course be practical difficulty and expense of [X] spending time and communicating with the father should she relocate to Western Australia. However, absent other considerations, the return visits to Melbourne that will occur twice a year and other communication time would normally be possible. Furthermore, if the father was to obtain employment and apply himself appropriately he could visit the child in Western Australia.
Section 60CC(3)(f)
The mother is clearly able to provide for [X]’s needs. The father as I find is significantly impaired in this regard. Not only do I accept the mother’s admittedly relatively muted complaints about the father’s care of her physical person (not bathing her enough and the like) the real difficulty is the father’s lack of insight. Because he is entirely self-focused and sees [X] solely in the context of his own perceptions of his loss, he is most unlikely to be able to provide balanced and appropriate care for [X] when she is in his care. To the contrary I think it is inevitable he will be critical of the mother in [X]’s presence as he was in the Family Report interview.
Section 60CC(3)(g)
The mother is not an itinerant wanderer as the father suggests. She presented as a sensible woman who was carefully considering her various options and coming to a sensible set of conclusions. Her lifestyle is unremarkable. Her background is not sinister. The tragedy of the death of her nephew and the suicide of her father are obviously distressing aspects of her history but there is nothing to suggest that the mother is not well-adjusted and fully able to care for [X] in her primary care. Her depression it seems is now well-managed.
The father unfortunately presents extremely poorly. His personality is bizarre. Some of his thinking is paranoid. Some of his conduct almost beggars belief. He is wholly self-oriented and self-focused. These are plainly relevant considerations.
Section 60CC(3)(h)
This is not relevant.
Section 60CC(3)(i)
The attitude of the mother to the child is that of a responsible parent. The attitude to the child of the father is much more complicated. In essence he sees the child as something akin to personal property. This is an understandable and perhaps normal human emotion but in his case it is exaggerated to a degree. The entire emphasis of the father’s submissions and evidence was to the effect that he was a victim and that his child (and indeed other children) had been stolen from him. The trauma this was said to have caused was emphasised. I accept that the march of events has been deeply distressing to the father. It is another thing altogether to say this was a reasoned response. As counsel for the Independent Children's Lawyer submitted he has been the author of his misfortunates. His wastage of the available money and the resultant, at least asserted, incapacity to pay for a psychiatric report is entirely his own fault. His attitude towards to the responsibilities of parenthood is further illustrated by his abject failure to provide financially for his child.
Section 60CC(3)(j)
I have already dealt with this issue. There was undoubtedly family violence in the form of the father’s coercive and controlling behaviour. His ardent and continued verbal abuse are plainly relevant.
Section 60CC(3)(k)
There is an extant Intervention Order but it is not in the circumstances of any great moment.
Section 60CC(3)(l)
It is entirely desirable to make final orders. For reasons I will come to shortly however I will be providing the father a pathway to move forward should he elect to take it.
Section 60CC(3)(m)
This brings us both to the relocation question and to the orders sought by the mother.
The relocation question can in my view be put shortly. It is well-established that it is a best interests question. The mother does not have to establish compelling reasons for the desirability of moving and there is no onus on the father to demonstrate why relocation should not occur, see Malcolm & Munro (2011) FLC 93-460 at [83] quoted with approval in Hendy & Penningh [2018] FamCAFC 257 at [50].
This matter can in fact be dealt with fairly shortly notwithstanding its considerable importance. The mother’s case to relocate is in truth overwhelming. She has no capacity to buy a home here in Victoria. She has no family here. The previous support, such as it was, of the father is long gone. Her family is in Western Australia. Her mother will clearly be readily available to assist her and she will have the emotional and more generalised support of other family members also. Her desire to be some physical distance from Mr Jennett is also entirely understandable and indeed I suspect that this is part of the reasoning for her desire to move.
Against this of course there will be a measure of disruption to the time spent with the father. He has not however seen the child as he says himself for 226 days. Given his approach to this case it is unlikely
he will be seeing the child in the near future. While obviously the distance from the father and the disruption to the relationship between [X] and her brothers is something I take into account, it is wholly outweighed by the obvious benefits of the relocation.
The relocation will not only ease the mother’s financial difficulties more probably than otherwise, but it will provide her with a secure and settled base. A stress reduced and better adjusted household for the mother must necessarily impact upon [X]’s best interests as her mother is her primary carer. The circumstances of this case taken as
a whole are such that the relocation application must succeed.
This brings us to the question of the father’s psychiatric condition. The father has had plenty of time to address the obtaining of a psychiatric report. Although he says he has no money I do not believe him. Even if it is true that he does not have any of the funds he obtained, he has had time to get a psychiatric report if he was prepared to work. He has not. Emphasising that I am not qualified to make a medical diagnosis, nonetheless Mr Jennett’s presentation was so florid and startling that
I am comfortably persuaded that the Court cannot and should not allow him to spend time with his child until his psychiatric condition
is properly addressed. I am going to make the order that the mother seeks that there be no time or consideration of time with the father until he addresses the preparation of a psychiatric report.
This is of course a significant finding to make but one which the materials taken as a whole and more particularly Mr Jennett’s presentation to the Court makes inevitable in the best interests of the child. The father’s conduct in dissipating this huge amount of money, or alternatively lying about it and concealing it, is so extraordinary that no other conclusion can properly be reached.
Property issues
This matter can be dealt with shortly. The father has diverted
to himself way over $200,000 from the sale of the matrimonial home. The only divisible asset is superannuation. The father has about $60,000 and that of the mother about $11,000.
The relationship lasted only about 5 years and most of the superannuation would have been garnished before or after the relationship.
If one takes the overall pool as approximately $310,000 (the proceeds of sale of the home and the superannuation), a property division of the whole pool could never, given the case of the child, have produced an outcome of less than 30 per cent to the mother.
There should additionally be a departure order so that the father pays no Child Support. The desirability of such an order, given the father’s behaviour and the mother’s circumstances, is self-evident.
Give the father already has over 80 per cent of the pool, it is plainly just and equitable that the entirety of the father’s superannuation be transferred to the mother.
Conclusion
This outcome will of course be a devastating one for the father. I have no doubt that in his own way he dearly loves his child. The way before him is, however, clear. I will, as the Independent Children's Lawyer has foreshadowed, make a notation to the orders to be made to the effect that should the father provide a psychiatric report he will not face the obstacle of the Rice v Asplund objection. If he wishes to see his daughter the path is clear before him.
I have drawn draft orders to reflect these conclusions and will hear from the parties in case there is anything I have overlooked.
I certify that the preceding one hundred and eighty-four (184) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 29 March 2019
Key Legal Topics
Areas of Law
-
Civil Procedure
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Natural Justice
-
Standing
-
Appeal
0
2
3