Joslyne & Carrel (No 6)
[2025] FedCFamC1F 154
•13 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Joslyne & Carrel (No 6) [2025] FedCFamC1F 154
File number: BRC 10297 of 2021 Judgment of: SCHONELL J Date of judgment: 13 March 2025 Catchwords: FAMILY LAW – PARENTING – Final Orders – Where each party seeks sole parental responsibility and primary care with the other to have time each alternate weekend and half school holidays – Where the mother contends that the father perpetrated family violence – The father accepted that he had perpetrated some acts of family violence but denied any instance of physically assaulting the mother – Where the mother had contended that the father posed a risk of sexual abuse including an allegation that the father had engaged in ‘grooming’ the child – Despite such a contention the mother proposed that the father spend unsupervised time with the child – Where the mother’s orders changed over the course of the hearing with no explanation provided as to their change - Where the ICL submitted that the mother’s allegations were irreconcilable with her changing positions and submitted that she has conducted litigation to frustrate the father’s relationship with the child – Where the father contended that the mother posed a risk of psychological and emotional harm to the child by her failure to facilitate a relationship between the father and the child –The Court is satisfied that the father does not pose a risk of harm to the child – Change of residence with sole parental responsibility to the father.
FAMILY LAW – PROPERTY – Final Orders – period of cohabitation was approximately six years – Where the mother’s contributions, as a victim of domestic violence, would have been made more onerous- The Court is satisfied that the contributions of the father exceed those of the mother due and that but for his financial contribution the parties would have almost no assets to divide – Contribution based finding favouring the father as to 55 percent – Future needs adjustment of 10 percent in favour of the father due to limitations on his earning capacity and the majority care of the child – Property of the parties divided as to 65 percent to the father and 35 percent to the mother.
Legislation: Family Law Act 1975 (Cth) Pt VII, VIIIA, ss 60B, 60CC, 60CC(2)(a), 60CC(2)(b), 60CC(3), 61DA(1), 65DAA, 65DAA(3), 65DA(2), 90FS(3), 90SM, 90SM(4) Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Sigley v Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Warner v Hung (No 2) (2011) 297 ALR 56; [2011] FCA 1123
Division: Division 1 First Instance Number of paragraphs: 280 Date of hearing: 21 August 2023, 22 August 2023, 1 March 2024, 4 March 2024, 5 March 2024, 29 January 2025 Place: Heard in Sydney and Brisbane via audiovisual link, delivered in Sydney Counsel for the Applicant: Ms Jardine on 21 August 2023, 22 August 2023, 1 March 2024, 4 March 2024, 5 March 2024, Mr Duplock on 29 January 2025 Solicitor for the Applicant: O’Sullivans Law Firm Counsel for the Respondent: Ms Eviston Solicitor for the Respondent: Freedom Law Counsel for the Independent Children's Lawyer: Ms Wardle Solicitor for the Independent Children's Lawyer: Gary Rolfe Solicitors ORDERS
BRC 10297 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JOSLYNE
Applicant
AND: MR CARREL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
13 MARCH 2025
THE COURT ORDERS THAT:
1.That all existing orders are discharged.
PARENTING ORDERS
2.Mr Carrel (“the father”) shall have sole parental responsibility for the major long-term issues in relation to the child X born 2018 (“the child”).
3.That the father in exercising sole parental responsibility shall:
(a)Ms Joslyne (“the mother”) in writing via AppClose of any decision that needs to be made;
(b)The mother must respond within five (5) days in writing via AppClose of his views in relation to the decision;
(c)The father must consider the view of the mother in making a decision; and
(d)Inform the mother of any major long-term decision that he has made within five (5) days.
4.The father and mother are not required to consult with each other about the issues that are not major long-term issues for the child when he is in their care.
Lives With
5.That from the first Friday after the making of this order the child shall live with the father.
Spend time with
6.That commencing from the second Friday after the making of these orders the child shall spend time with the mother as agreed between the parties in writing but failing such agreement each alternate weekend from Friday 5.00pm to Sunday at 5.00pm and to 5pm Monday in the event that it is a long weekend.
7.Changeover shall occur as agreed between the parties in writing but failing such agreement as follows:
(a)On Fridays after school at the child’s school; and
(b)At all other times at McDonalds situated at Town Z.
8.That in the event the child is unwell and cannot attend time in accordance with Order 6 above, the father shall arrange for the child to spend make-up time with the mother as soon as possible thereafter.
Communicate with
9.That the child shall communicate with the mother as agreed between the parties in writing but failing such agreement as follows:
(a)On Tuesdays and Thursdays from 6:00 pm to 6:30 pm via Facetime/video call;
(b)The mother is to initiate the video call to the father’s device and the father shall facilitate such call and ensure that the child is available at such time; and
(c)The father is to afford the child privacy during such video calls.
10.The parents shall communicate via AppClose for parenting matters.
School
11.The child shall attend O School for primary school education.
School Holidays
12.The child shall spend time with the parents during the Queensland School Holidays as agreed between the parties in writing but failing such agreement time in accordance with Order 6 shall be suspended and the child shall spend time with the mother as follows:
(a)For the first half of all Queensland School Holidays in even numbered years and the second half in odd numbered years;
(b)That school holiday time shall commence after school on the last day of the school term to 5:00 pm on the day that is calculated to be the halfway point of the school holidays;
(c)That the number of nights in each school holiday period is to be used to calculate half of the school holidays;
(d)If there is an uneven number of nights in each school holiday period, then the mother will retain the additional night; and
(e)That changeover shall occur in accordance with Order 7 above.
13.That during the Queensland School Holidays, the child shall communicate with the parent who the child is not currently spending time with (‘non-residential parent’) as agreed between the parties in writing but failing such agreement as follows:
(a)On Tuesdays and Thursdays from 6:00 pm to 6:30 pm via Facetime/video call;
(b)The non-residential parent is to initiate the video call to the residential parent’s device and the residential parent shall facilitate such call and ensure that the child is available at such time; and
(c)The residential parent is to afford the child privacy during such video calls.
Special Days
14.That the child shall spend time with the parties on special occasions as agreed between the parties in writing but failing such agreement as follows:
(a)Father’s Day
(i)Should Father’s Day fall on a weekend when the child is spending time with the mother, time in accordance with Order 6 above shall be suspended and the child shall spend time with the Father for the entire Father’s Day weekend; and
(ii)The child shall spend time with the mother, on the weekend immediately following Father’s Day to make up for the missed time.
(b)Mother’s Day
(i)Should Mother’s Day fall on a weekend when the child is spending time with the father, time in accordance with Order 6 above shall be suspended and the child shall spend time with the mother for the entire Mother’s Day weekend; and
(ii)The child shall spend time with the father, on the weekend immediately following Mother’s Day to make up for the missed time.
(c)Where Easter does not fall in a school holiday period
(i)The child shall spend time with the mother from 9:00 am Good Friday to 12.00 pm Easter Sunday in even numbered years and from 12.00 pm Easter Sunday to 5 pm Easter Monday in odd numbered years.
(ii)The child shall spend time with the father from 9:00 am Good Friday to 12.00 pm Easter Sunday in odd numbered years and from 12.00pm Easter Sunday to 5:00pm Easter Monday in even numbered years.
(d)Christmas
(i)The child shall spend time with the mother from 12:00 pm Christmas Eve to 12.00 pm Christmas Day in odd numbered years and from 12.00 pm Christmas Day to 12:00 pm Boxing Day in even numbered years.
(ii)The child shall spend time with the father from 12:00pm Christmas Eve to 12.00 pm Christmas Day in even numbered years and from 12.00pm Christmas Day to 12:00 pm Boxing Day in odd numbered years
Restraints
15.That the parties shall be restrained and an injunction issue restraining the parties from
(a)Consuming illicit drugs whilst the child is in their care.
(b)Consuming alcohol whilst the child is in their care above the level of 0.05% blood alcohol.
(c)Physically disciplining the child; and
(d)Seeking or participating in counselling/psychological care for the child in the situation where the purpose of the counselling/psychological care is to counsel the child around the situation that he has suffered or been exposed to domestic violence prior to the date of this Order.
16.The mother is restrained and injuncted from bringing the child into contact with Mr C born in 1979.
Privacy
17.During the time the child is with any parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent.
(b)Speak respectfully of the other parent.
(c)Not speak to the child in relation to any adult issues and/or parenting matters; and
(d)Not denigrate or insult the other parent in the presence of or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing of or presence of the child.
Other issues
18.That the parents will:
(a)Keep the other parent informed at all times of their email address, landline contact telephone number and mobile contact telephone number, and advise of any changes thereto within forty-eight (48) hours of the change; and
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child.
(c)That the parents do all things necessary to ensure that the other parent is listed as an emergency contact with all allied health care providers, medical practitioners, care providers, schools or extra-curricular activities that the child may attend from time to time.
(d)That this paragraph shall operate as any authority necessary for any allied health care provider including but not limited to medical practitioners, specialists or hospital treating the child and any care and/or educational facility which the child may attend upon from time to time to provide to the other parent such information as they may request regarding the child’s health, welfare and development at their own expense.
(e)That both parents notify the other immediately, and if immediately is not possible, within four (4) hours, upon the child suffering any serious injury, illness, accident or emergency whilst in their care and advise the other parent of the treatment provided and the contact details for the relevant medical service providers as soon as reasonably possible.
(f)That in the event that the child requires medication, such medication and relevant dispensation instructions shall accompany the child at changeovers.
(g)That each parent be at liberty to attend at all school functions and events that are normally attended by parents.
19.The parties are to forthwith take all steps and sign all documents necessary to vary the Domestic Violence Order made in the Magistrates Court at Town B in mid-2021 so that the father is not in breach of that Order by complying with these Orders.
FINANCIAL ORDERS
20.The parties shall forthwith do all acts and things and sign all documents necessary to sell the property at CC Street, Suburb DD in the State of Queensland for the best price reasonably obtainable and the following orders shall apply:
(a)the parties shall list the property for sale with an agent as agreed upon between the parties and failing agreement within 14 days as nominated by the father (“the agent”);
(b)the parties shall instruct a lawyer as agreed upon by the parties and failing agreement within 14 days as nominated by the father to have carriage of the sale of the property (“the lawyer”);
(c)the property shall be listed at a price and method as agreed upon by the parties and failing agreement within 14 days as nominated by the agent
(d)On the settlement of the sale of the property the proceeds of sale are to be paid in the following manner and priority:
(i)all costs and expenses of sale including legal costs and disbursements, agent's commission, marketing and auction expenses;
(ii)the amounts required to discharge the mortgage to Westpac;
(iii)adjustments on settlement;
(iv)65 percent of the balance to the father;
(v)a payment to the father of $46,031.40;
(vi)the balance to the mother.
21.In the event either party refuses or neglects to execute a document or deed required to give effect to these orders within 7 days of being presented with such document or deed, then pursuant to s 106A of the Family Law Act 1975 (Cth), a registrar or other officer of the Federal Circuit and Family Court of Australia be appointed to execute the said document or deed in the place of the defaulting party.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Joslyne & Carrel has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings between unmarried parties pursuant to Part VII and Part VIIIA of the Family Law Act 1975 (Cth) (“the Act”) following the breakdown in June 2021 of their relationship of about six years.
The hearing initially commenced on 21 August 2023 but was adjourned part heard to November 2023 following an amendment in the father’s case. The hearing did not resume in November 2023 given the mother’s hospitalization and was adjourned until March 2024. After three days, the Court made interim orders and adjourned the matter part heard to December 2024. The hearing did not take place in December given the late withdrawal of the mother’s counsel and concluded in one day on 29 January 2025 with judgment reserved.
The Part VII proceedings involve the parties’ only child X born 2018. Each seeks sole parental responsibility and primary care with the other to have time each alternate weekend and half school holidays.
The Part VIIIA proceedings relate to the division of a very modest pool of assets that has a net value of approximately $532,000 (Exhibit 31).
A curious feature of the parenting case was the evolution in the orders each party proposed which resulted in the hearing taking longer than it otherwise should.
At the commencement of the hearing on 21 August 2023, the mother sought orders for sole parental responsibility, the child live with her and to spend time with the father once a month for two hours supervised at a contact centre. She also sought orders that would permit her to relocate (should she decide to do so) to an undisclosed location within Australia. The father sought orders for equal shared parental responsibility, for the child to live with the mother and for time with him to increase incrementally to each alternate weekend and half school holidays.
On the second day of the hearing, the father sought to amend his application seeking equal shared parental responsibility, orders for the child to live with him and for the child to spend time with the mother (after a moratorium of three months) each alternate weekend and for half school holidays (Exhibit 20). The father’s changed position was supported by the ICL. As a consequence of that late amendment, the hearing was adjourned part heard.
Interim orders were made for the father to spend day only time supervised by the paternal grandfather.
In an updated Family Report prepared in anticipation of the resumption of the part heard hearing in March 2024, the report writer recorded the mother’s position to have changed and to now be as follows:
42.In consideration of any planning and/or actions taken to progress a relocation plan, she informed, 'I have looked at cheap land in South Australia and […] Western Australia', these areas stated to offer lower mortgages and thus less financial pressure.
43.Under such circumstances, her proposal to allow [X] and the father to remain connected, included 'regular facetime to ensure there is an interaction. School holiday time. If he comes for 7 days, then 7 days of supervised contact. Depending on how [X] copes with it', stating that to support this and feel comfortable in such arrangements she would need to see, 'the accusations and false allegations stop, and the paranoia is not there', although presented no clarity as to how this could be measured, particularly at a distance.
The part heard hearing resumed on 1 March 2024 with the mother’s cross-examination concluding that day at 2.55 pm. On the second day of the hearing and during the father’s cross-examination, the mother amended the orders that she sought as to time between the child and the father. She now sought the father have time each alternate weekend supervised by the paternal grandfather for 12 months and thereafter unsupervised as well as time in the school holidays (Exhibit 25). The mother abandoned her application to relocate.
No evidence was called in the mother’s case explaining this change in position.
On 5 March 2024, following the cross-examination of the report writer and before submissions, the mother again amended the orders she sought, seeking the father’s time to occur each alternate weekend and for half school holidays. The mother abandoned any requirement for supervision (Exhibit 39). Again, no evidence was called in the mother’s case explaining this further change in position.
The father and the ICL proposed orders in similar terms, namely that the father have sole parental responsibility, that the child live with the father, and that after a moratorium of six weeks, the children spend time with the mother each alternate weekend and half school holidays.
At the conclusion of the March 2024 hearing interim orders for unsupervised time with the father were made in the terms proposed by the mother and the proceedings were adjourned part heard.
At the hearing in January 2025 the positions of the parties remained substantially as they had been at the March 2024 hearing.
DOCUMENTS RELIED UPON
The mother relied upon the following documents:
(1)Initiating Application filed 26 June 2023;
(2)Affidavit of mother sworn 15 July 2023;
(3)Affidavit of mother sworn 16 February 2024;
(4)Financial Statement filed 14 July 2023;
(5)Notice of child abuse, family violence or risk filed 5 August 2021; and
(6)Outline of Case Document.
The father relied upon the following documents:
(1)Further Amended Response filed 22 November 2024;
(2)Affidavit of the father sworn 14 July 2023;
(3)Affidavit of the father sworn 16 February 2024;
(4)Affidavit of the father sworn 14 November 2024;
(5)Affidavit of Mr K sworn 16 February 2024;
(6)Financial Statement sworn 14 July 2023;
(7)Outline of Case Document.
The ICL relied upon the following documents:
(1)Affidavit of Ms M filed 14 August 2023;
(2)Affidavit of Ms AA filed 25 October 2022 (the First Report);
(3)Affidavit of Ms AA filed 10 August 2023 (the Second Report);
(4)Affidavit of Ms AA filed 27 February 2024 (the Third Report);
(5)Outline of Case Document.
Each party tendered various documents that became Exhibits in the proceedings.
BRIEF BACKGROUND
The mother was born in 1977, and the father was born in 1979.
The parties are broadly in agreement that they commenced cohabitation in or about late 2014. There were brief periods of separation, but both parties agree that the date of final separation is June 2021.
There is one child of the parties' relationship, X born 2018. The mother has two children of a former relationship who lived with the parties and are currently aged 15 and 13.
The mother is employed as a professional in her own business but had varying periods of unemployment through the course of the relationship.
The father worked in various positions but in late 2016 sustained an injury. He received a disability payout of $224,000 in early 2018.
In mid-2018, those funds together with his superannuation of $75,000 and a mortgage were used to purchase a property at CC Street, Suburb DD ("the Suburb DD property") in the parties’ joint names.
The matter has an extensive history of litigation before this court. Previous reasons for judgment and the history to each application are reported in the following judgments:
·Joslyne & Carrel [2023] FedCFamC1F 742;
·Joslyne & Carrel (No 2) [2023] FedCFamC1F 745;
·Joslyne & Carrel (No 3) [2023] FedCFamC1F 1056;
·Joslyne & Carrel (No 4) [2024] FedCFamC1F 25; and
·Joslyne & Carrel (No 5) [2024] FedCFamC1F 134.
OVERVIEW OF THE PARENTING CASE AS PRESENTED BY THE PARTIES
I have read all of the evidence relied upon in the proceedings, including the Exhibits, but do not propose to repeat all of it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447:
62. … A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Each of the parties made various assertions that the other parent posed a risk of harm to the child.
The mother contended that she and her children had been the victims of family violence perpetrated by the husband that occurred during the relationship and continued thereafter including up to the time of the hearing. She had initially contended that the child was exposed to a risk of harm by the father’s attitude to parenting, his anger, issues of coercion and control, breach of domestic violence orders (“DVO”), stalking and or surveillance, his untreated mental health issues, his gambling and drinking of alcohol to excess including while taking prescription drugs such that time with him was required to be limited and supervised.
The mother’s case outline filed 15 August 2023 summarized some of these allegations as follows:
a.The mother asserts that there has been a history of family violence with issues of the fathers mental health more specifically pertaining to the combined use of prescription drugs (pain killers) and alcohol resulting in (amongst other incidents) attempted suicide […].
b.The mother has been subjected to Family Violence including a [weapon] being held to her throat and the father then turning the [weapon] upon himself around children.
c.The mother has two older children who spent the majority of their lives with the father of [X] who have been exposed to Family Violence and have been impacted by same resulting in disclosures by the children [N] and [R] to police and Department of Families.
At the hearing in March 2024, the issues of risk expanded to include that the child was at risk of sexual abuse including an allegation that the father had engaged in ‘grooming’ the child.
The father and the ICL submitted that the mother’s allegations were irreconcilable with her ever evolving and changing positions in relation to time with the father and called sharply into focus her credibility, whether she was supportive of a relationship between the child and the father and/or whether she has conducted the litigation in a way designed to frustrate the father’s relationship with the child and would continue to do so in the future if the child remained in her primary care.
The father accepted that he had perpetrated some acts of family violence but denied any instance of physically assaulting the mother.
The father contended that the mother posed a risk of psychological and emotional harm to the child by her attempts to frustrate a relationship between the child and the father and by her failure to facilitate a relationship.
ICL’s submissions
At the conclusion of the hearing in March 2024, the ICL submitted that the Court should make orders for the child to live with the father, for him to have sole parental responsibility, and after a moratorium of 3 months the mother spend time with the child each alternate weekend and for half of the school holidays. The ICL submitted that both parents had a good relationship with the child and that whilst the father was untested as a primary carer, there was evidence he had experience having parented the mother’s two older children.
The ICL submitted that there could be no criticism of the mother’s physical care of the children and her capacity to attend to their day-to-day needs. However, there was a significant deficit in her parenting capacity in so far as it came to promoting a relationship between the child and the father. The ICL acknowledged that the orders they proposed involving a separation of siblings and the child from his primary carer which would be emotionally damaging but that on balance there was less risk long-term in placing the child in the care of the father.
The ICL submitted that the Court should approach with a high degree of cynicism the mother’s very late change in position in circumstances where it was inconsistent with the case she had conducted in the years subsequent to separation and was unexplained by evidence.
At the conclusion of the hearing in January 2025, the ICL maintained the position promoted at the hearing in March 2024. The ICL’s counsel described the mother’s stated position that there should be unsupervised time as an ‘artifice’ and that her real position was that the father posed a risk of harm to the child. The ICL submitted that the mother had not had ‘an epiphany’ but rather was attempting to prevent the Court considering a change of residence.
The ICL referred to the mother’s recent actions in attempting to prevent the father attending an awards ceremony at the school as but a further example of her attempts to frustrate the child’s relationship with his father. The ICL submitted that the father did not pose any risk of harm to the child; that the child has a stable and loving relationship with his father; and that the only way he can have a relationship with both parents is where he resides with his father, notwithstanding that it will be a big change in the child’s life.
Father’s Submissions
At the hearing in March 2024, the father’s counsel agreed with the proposals of the ICL, save that he did not press for a moratorium in relation to the mother’s time. The father’s counsel described the mother’s proposal for unsupervised time each alternate weekend and half school holidays as disingenuous, insincere and inconsistent with the case she had conducted that the father posed a risk of harm. His counsel described the mother’s orders as lacking bona fides in circumstances where she had made numerous attempts to frustrate the father’s relationship with the child. She submitted that the child was at risk of future emotional harm if he were to remain in the mother’s primary care.
His counsel submitted that the Court should find the father to be a truthful witness who made appropriate concessions where necessary, conceding incidents of family violence. His counsel urged the Court to find the mother evasive, unwavering in her view and not able to answer a direct question the majority of the time. She urged the Court to find the child was not at risk of sexual harm in the father’s care and that the father had not engaged in grooming the child.
At the conclusion of the hearing in January 2025, the father’s counsel adopted the submissions of the ICL and submitted that the mother had provided no proper explanation for the change in the orders she sought.
Mother’s submissions
At the hearing in March 2024, the mother’s counsel submitted the mother’s proposed orders, including various injunctions and restraints on the father were sufficient to ameliorate the risk of harm that the mother perceived the father posed if they were made and complied with. In that respect, the following submission was made:
HIS HONOUR: No, but I’m asking for you to tell me as the mother’s representative whether or not I am to make a finding on the mother’s case as to whether or not the father poses a risk of harm to the child.
MS JARDINE: Excuse me. Your Honour, the position is that if the various restraints that are contained in the orders that were provided to you today are complied with by the father in relation to – and I will take you to paragraph 9 in those orders. He’s restrained from committing family violence towards the mother or the father of the children, he’s restrained from consuming alcohol or being adversely affected by alcohol when [X] is in his care. He is restrained from permitting [X] to attend on licensed premises without the presence of the paternal father, and he is restrained from commenting on any form of social media about the mother, her family, or these proceedings, or allowing anybody else to do so. Those particular restraints in relation to the father, if those restraints are made, and that’s part of a court order, then I’m instructed that there’s no risk of harm.
Her counsel submitted the father had perpetrated family violence upon the mother including physical, emotional and verbal abuse, that there were concerns about the father’s capacity to care for the child submitting that he had prioritised gambling over caring for the child, and that he has not demonstrated that he was able to prioritise the child over being a ‘fun day’ father. She submitted that the father had sought to minimise the family violence and that the Court should prefer the mother’s evidence to that of the father’s and that the Court should find that the mother and her children had been emotionally and psychologically harmed by the actions of the father.
The mother’s counsel referred to the evidence of the report writer as to the risk of harm that could be occasioned to the child by a disruption of the child’s relationship with the mother and his siblings, and urged the Court at the end of the March hearing to impose a trial period where the mother would be given the opportunity to show that her level of distrust was really behind her and that she had heard and taken in the evidence of the report writer. Such submission was made in the context of explaining, in the absence of any evidence, the mother’s changed orders.
At the resumed hearing in January 2025, the mother’s counsel submitted that the mother had complied with orders and had facilitated a relationship between the child and the father. Her counsel acknowledged that there was a high level of distrust and that the mother has a very fixed view about the father. He submitted that the mother’s beliefs are unchangeable. He submitted that a change in the child’s primary care would impact upon the child and that the risks of change in primary care when balanced against other risks favoured the child remaining in the mother’s care as an order in the child’s best interests.
The mother’s counsel indicated that the mother no longer pressed all the injunctions that were submitted in March 2024 as necessary to mitigate the risk of harm posed by the father.
CREDIT
I found the mother to be an unconvincing and unreliable witness, and I am comfortably satisfied that I can place no weight on her evidence save where it is corroborated by an objectively sourced document (and, in that respect, one that is not based upon assertions provided by her) or is objectively established through admissions made by the father. I am satisfied that the mother for the reasons expanded on below is prepared to say anything including proposing any order that will further her case for the purposes of ensuring that the child has as limited a relationship as possible with the father or as the hearing progressed to avoid a change in primary care.
The mother has provided no evidence explaining the abandonment of her assertions as to risk of harm that she said had warranted supervision. An explanation by her counsel from the bar table is not evidence. Her assertions as to risk of harm at the commencement of the hearing are inconsistent with the orders she proposed at its conclusion. Her assertion that the father was ‘grooming’ the child and consequentially the child was at a risk of sexual harm was, I am satisfied, nothing other than a desperate, opportunistic and manipulative attempt to seize upon an innocuous event and distort it to serve her own purposes.
In the First Report, the report writer recorded the father’s views as follows:
99.The father specifically concerned that the mother has persistently used her knowledge […] to bully and intimidate, with there being some possibility she seeks to elongate and provide enough distractions / make accusations resulting in an ultimate severing of the relationship.
I am satisfied this is what the mother has done during the course of this litigation.
I found the father to be a more reliable witness than the mother. Whilst he is not without fault and has perpetrated acts of family violence against the mother, I am also comfortably satisfied that she has perpetrated family violence as well. The parties had a highly dysfunctional relationship in which each of them conducted themselves so as to disparage and hurt the other. The father was asked questions about many of the mother’s allegations in cross-examination. In most instances, it amounted at best to a recital of an allegation by way of a question to which there was a response either accepting or denying the proposition. Such an approach did not aid in the task of fact finding.
While in the reports, the report writer may have found the father evasive in some of his answers to her, that is not my finding. I am satisfied that the father attempted to answer questions directly and truthfully. He made many admissions of family violence some clearly contrary to his interest which runs somewhat inconsistent with the submission advanced by the mother’s counsel that he was evasive or minimized his behaviour and or conduct.
I prefer his evidence to that of the mother where they conflict.
ISSUES
Arising from the submissions and the way the cases were presented I identify the following as the primary issues for resolution:
(1)Did the father perpetrate family violence as alleged by the mother.
(2)Does the father pose a risk of harm to the child; and
(3)Has the mother attempted to frustrate a relationship between the child and the father, and will she continue to do so.
The resolution of these issues will inform many of the findings to be addressed pursuant to s 60CC.
Did the father perpetrate family violence as alleged by the mother
The mother made numerous assertions of family violence allegedly perpetrated by the father during the relationship and subsequently.
Her affidavit recorded allegations that included that he ripped an engagement ring off her finger (paragraph 25), made threatening statements to contact her ex-partner and what she described as other aggressive actions (paragraph 26), that he had a gambling problem (paragraph 32), anger issues, had threatened to end his own life (paragraph 34), allegedly told her he had threatened to push a supervisor at work off a roof (paragraph 37), drank alcohol while taking pain killers (paragraph 39), that he was aggressive with the mother when she raised issues about his use of alcohol and medication (paragraph 41), that he consumed alcohol to excess, that he was angry towards nursing staff following the birth of the child such that he was prevented by nursing staff from attending (paragraph 47), gave one of her children who was 11 years old alcohol (paragraph 49), yelled at her daughter, telling her that he was not her father (paragraph 52), referred to the mother in derogatory terms in front of the children (paragraph 54), accused the mother of being a prostitute (paragraph 54), was drunk and urinated at the end of the bed following an argument following which he then locked the mother out of the house (paragraph 56 and 57), threw “all my stuff out on the lawn” (paragraph 63), would not let the mother pick up the baby when the baby cried (paragraph 64), was involved in an argument at Christmas 2019 where he swore at the mother and left the mother and children in Victoria and returned to New South Wales alone (paragraph 71 and 77), punched his fist through a door in anger when affected by alcohol (paragraph 79), held a weapon towards the mother, threatened to kill her then turned the weapon on himself which was observed by the mother’s daughter and made threats to kill the mother (paragraph 87), threatened to kill himself (paragraph 91), butted the mother’s chest (paragraph 96), threatened to burn the house down (paragraph 110), walked in on her eldest son who was in the shower and accused him of “pulling himself off” (paragraph 113), whenever affected by alcohol he abused the mother (paragraph 114), abused the mother in front of the children and disparaged her as a professional (paragraph 115), during an argument smashed the remote control for the TV (paragraph 117), attempted to kill himself whilst intoxicated (paragraph 118), told the mother that he would hunt her down if she left him and he would make her pay (paragraph 122), made allegations that the mother was attempting to poison him and try and kill him (paragraph 125), in 2016 had physically struck the mother’s children (paragraph 136), had taken the mother’s children to a public bar and left them to sit at the bar whilst he drank and played the poker machines (paragraph 136), accused the mother of sleeping with court staff to obtain a DVO and hiding money in her trust account (paragraph 162).
Following the parties’ separation, the mother contended that the father attempted to monitor her activity, that he was involved in coercive and controlling behaviour that including surveillance of her and that he had on numerous occasions breached an AVO.
For the purposes of the First Report, each of the parties were interviewed. In relation to the respective positions of the parties on this issue, the report writer records the following:
15.In her affidavit material and repeated at interview, the mother documents a pattern of significant physical, emotional, verbal, and psychological control, threats, intimidation as well as financial abuse while in a relationship with the father as well as post separation attempts to stalk and harass and breaches of the Protection Order.
16.The father denies the allegations made in relation to being a perpetrator of significant family violence, although agrees there was a level of mutual volatility at times between the parties, asserts no excess alcohol use and having taken pain medications as prescribed. He accepts some acute instability of mental health as a situational response to loss of employment and pain from workplace accidents, as well as a single act of [self-harm] as side effect of being prescribed the incorrect mental health medications, which are now altered and he is responding more positively to.
In relation to the father, the report writer recorded her impressions as follows:
38.[Mr Carrel] was polite, pleasant, and cooperative at interview. His responses, however presented as largely superficial and lacked meaning and insight, nor the ability to place his child's needs for emotional safety at the centre of decision making. When issues of risk and concern were raised with the father, he struggled to express much insight or empathy during discussion, appearing to evade answering questions entirely or providing responses that justified his narrative, thus lacking responsibility and minimising the impact of his behaviours on others and the longer terms consequences on them from witnessing his actions. Notwithstanding this presentation, the father demonstrated a keen and apparent genuine desire to formulate a plan for developing a relationship with his son, allowing [X] to identify with both parents.
In relation to alcohol use, she recorded the father reporting to her in the following terms:
45.In relation to alcohol use, he reported his current use to be ‘a few beers on a Friday or Saturday night if I feel like I've done something to deserve it’, stating this to be ‘3 or 4 Great Northern’, mid strength, denying any use of alcohol during the week at all and no daytime drinking. The father accepted previously consuming alcohol to an increased level but denied any problematic use to limit his capacity to be a safe and responsible parent.
The report writer recorded the father’s denial that he misused his medications or that it had any ill effect on his mood, behaviour or increased his aggression. The father accepted that he had developed a gambling problem which equated to about $3,000 a week and despite promising to stop he continued in this vein during the relationship and accepted that it had caused some stress on the relationship as well as personally for the mother (First Report, paragraph 57). The father agreed that he had been unable to work because of his injury, that it had a devastating effect on his mental health, that he got grumpy, that he put on weight, was depressed and felt useless. He reported that he became annoyed and frustrated and would yell, swear and call the mother lazy.
The report writer discussed the mother’s allegations of family violence with the father. She records the father informing her in the following terms:
63.At interview with [Mr Carrel], he discussed that family violence in the parties' relationship went ‘both ways, yes, I’d yell and scream, but I certainly did not touch her. I would try to diffuse a situation by getting into bed, but she'd follow and then obviously I'd raise my voice more and more and then [N] would come out and say, 'stop yelling''.
64.When asked what the parties would argue about, he advised 'over money, I'd spent my super and TPD on my house and car and then I was using my pension for the house insurance, car, car insurance and food and then I would have no money left ... [Ms Joslyne] was paying for the mortgage ... I'd get questions, 'where has all your money gone?'.
65.[Mr Carrel] discussed the mother would call him names such as ‘cunt’ say ‘you‘re just like your mother ... you’re a mummy's boy’, further advising ‘that would get under my skin’. He avoided answering the question, what his response would be, when asked
66.[Mr Carrel] was asked about the specific allegations as detailed in the mother's affidavit material. He stated to accept that his [self-harm] attempt was ‘wrong’, although did not accept that there was any significant impact on the children, denying that [R] present, 'she was asleep, I checked', and as such considered there to be no emotional impact due to not being direct witnesses to the event.
67.The father acquiesced that ‘the yelling and screaming was totally wrong ... but we both did that’. He denied ever chasing the children with a [weapon] or ever using a [weapon] at any time to threaten, intimidate or be controlling or coercive at any time to [Ms Joslyne].
68.In respect of viewing [N] masturbating as alleged by [Ms Joslyne] in her affidavit, the father claimed that ‘I found him on the bathroom floor, it was accidental, the door handle came off’.
69.Regarding threatening to contact the mother's ex-partner over whom there are significant concerns of family violence, [Mr Carrel] replied, ‘yes, I did do that, but I'm not convinced about what happened there’. [Mr Carrel] deflected a conversation attempted by the writer to highlight the charges and conviction received by this person was determined in a criminal Court and thus he had been found guilty of family violence and assault behaviour. [Mr Carrel] dismissed that this determined him a threat.
In cross-examination the father admitted he had been angry and frustrated with the mother, agreed he had told the mother’s daughter that he was not her father, agreed that he called the mother derogatory terms and called her names, agreed he urinated at the end of the bed when intoxicated, agreed he had locked up the house after the mother had left but that she had been able to return to the house as she had a key, agreed that following the incident in Victoria he had driven off in anger but said he contacted the mother the next morning and agreed that it was not the right thing to do to leave the mother at that time, and that he had apologised to her. He agreed he got angry when intoxicated and had punched a door in anger. The father agreed that he unintentionally walked in on the mother’s daughter in the shower. He agreed there were arguments in front of the children about money and that he threw the remote control on the ground. He agreed his gambling placed a strain on the relationship and would have made it difficult for the mother and agreed that he placed the mother in a bear hug from behind.
The mother’s case as to risk involves numerous allegations of family violence. The mother bears the onus of proof to establish on the balance of probabilities the allegations she makes. It is reductive to simply contend that an acceptance of some of her assertions based upon admissions by the father amounts to an acceptance of the totality of her allegations.
The Court “must feel an actual persuasion” of the case advanced by the party bearing the onus of proof. The concept of actual persuasion was elucidated by Emmett J in Warner v Hung (No 2) (2011) 297 ALR 56 as follows:
48.Under s 140(2) of the Evidence Act 1995 (Cth) (the Evidence Act), the Court must, in deciding whether it is satisfied that a case has been proved to the requisite standard, take into account:
•the nature of the cause of action or defence;
•the nature of the subject matter of the proceeding; and
•the gravity of the matters alleged.
When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] ALR 334 at 342.
I am satisfied on the basis of the father’s admissions recorded by the report writer and admitted in cross-examination that the father perpetrated family violence on those occasions. The mother’s other allegations were denied by the father. I am not satisfied that the mother has established that the father perpetrated family violence other than on these occasions given my overall credit finding.
The mother contended that the father was engaged in ‘grooming’ the child when the father’s penis fell out of his shorts on an occasion when the child was sitting on his lap. Despite the mother making such an extraordinary allegation, the father was not asked a single question about this event by the mother’s counsel. I accept the father’s evidence that what happened was accidental. I do not accept the mother’s evidence that it was intentional, nor do I accept that it constituted ‘grooming’.
Does the father pose a risk of harm to the child
I recognise that the report writer has over the course of her three reports changed her views in respect of risk.
In the First Report, she noted that there were areas of risk and concern in relation to the father in respect of family violence, child safety, alcohol abuse and mental health issues. In that report, she observed as follows:
139.In seeking to assist the Court in making their determination, it is the professional assessment of this writer that emotional harm was caused to at least [Ms Joslyne's] older children (although noting they are not subject to these proceedings), with it probable that [X] was exposed to some acts of a similar nature, although possibly offered some protection due to his young age at separation. It is additionally assessed that given the respective parties narrative at interview and based on a review of all the filed material before the Court, that in all likelihood the relationship between [Ms Joslyne] and [Mr Carrel] was one characterised by family violence with [Mr Carrel] as the main perpetrator of this abuse.
…
141.It is further assessed, [Mr Carrel] has personal risk and vulnerability from a mental health perspective with, albeit stated to be historical, alcohol and prescription medication misuse, and this impacted on his ability to offer safe and responsible parenting at times.
I accept the report writer’s conclusion in paragraph 141 of her First Report and otherwise have reached a view that the father for the reasons referred to above perpetrated family violence.
In the Second Report, the report writer recorded the following:
27. The writer identifies as a central issue:
•Appropriate time arrangements for [X] and the father in consideration of any ongoing risks, personal or parenting vulnerabilities for each party.
•The continued and assessed meaningful engagement with personal and parenting change by the father, alongside being a reliable and consistent presence in his child's life, the formation of a positive connection now evident.
•The ongoing rhetoric provided by the mother for family violence behaviours these assessed to now relate more to her own personal trauma and high anxiety state.
•The need for this child to be able to enjoy a healthy relationship with both parents equally, assessed that this is not currently his experience with there being an impact on his longer-te1m ability to develop a healthy schema of self and identity.
She recorded that the mother persisted in her belief that the child was at a risk of harm with the father and included in her report the further examples the mother advanced. In that respect, the report writer recorded:
135.In formulating her view of ongoing risk, the mother’s narrative at interview was largely retrospective and focussed on the prior behaviours of the father, [Ms Joslyne] unable (or unwilling) to assimilate any of the stated changes by the father into his more recent behaviour. Examples provided by [Ms Joslyne] to demonstrate the lack of acceptance and continued risk by the father were either ones deemed to be historical or accepted by the father. More recent examples to highlight ongoing violence behaviours, lacked content or were those considered to meet the definition of post separation conflict, not a distinct dynamic of family violence per se.
I agree with her opinions in this paragraph of her Second Report.
The report writer also recorded as follows:
85.Notwithstanding and with due respect to the mother's stance, it is the assessment of the writer that any risk from an ongoing pattern of such behaviour by the father has now reduced substantially and this is no longer a barrier in the child being able to build an increased relationship with the child.
…
92.[Mr Carrel] appears to have made substantial effort to reduce alcohol consumption and has now demonstrated via the independent testing process of CDT and hair follicle testing nil problematic use over a sustained period since April 2022.
94.Substance use of any nature is not considered to be a risk area currently. It is the assessment of the writer that the father has now demonstrated over a considerable period, abstinence and/or reduction from all substances and that there is now no increased risk to [X] by the father being impacted or incapacitated in this regard.
…
101.It is assessed that acute, and/or pervasive difficulties from a mental health perspective are not current factors, the current post separation conflict arising from a place of intractable and conflict instigated post separation behaviours.
…
139.It is therefore determined that the father has made the necessary and sustained effort to position himself to be a safe and responsible parent and that his time with [X] should begin to increase incrementally. In support of such increases, it would be useful to have the father supported in this role by his father, [Mr K], who the writer assessed would be able to fulfil this role safely. The Court may wish to seek an undertaking from [Mr K] to ensure that he understands his role to ensure the father acts in a safe and responsible manner during the time for [X].
I accept these opinions.
In the Third Report, the report writer recorded the mother’s ongoing assertions that the father posed a risk of harm noting:
9.The mother continues to assert that the father poses a risk from the perspective of continued family violence behaviours and unmanaged mental health. She determines that 'the father still displays issues in respect of coercive control and does this by way of false allegations, deposing to facts that are not true and seeking highly restrictive orders'.
10.In addition, she expresses concern that the father is seeking to mislead the Court as to the exact nature and extent of any alcohol use and patterns of gambling.
…
19.At interview, [Ms Joslyne] identified, 'the only way I can maintain an arrangement is supervision in a contact centre or other facility', continued concerns for emotional manipulation by the father who she identified, 'during BCC [Mr Carrel] would talk (to [X]) about memories of things that happened with [N] and [R] that didn't happen. It needs to be monitored'.
In that report, she did not consider that allegations of family violence, child safety, alcohol or substance abuse or mental health of the father were by then issues of risk. In that report, she noted as amongst the central issues that:
•The preference for [X's] primary caring arrangements to be provided by the mother with whom he is most familiar and who represents his strongest attachment figure.
•Despite, consideration to be given to a transfer of residence should the mother continue to deny the child a meaningful relationship, this perpetual stance considered to lack a current or valid assessment of risk and must then be considered akin to parental alienation.
The report writer recorded:
90.During the current review, [Ms Joslyne] determined this pattern persists, detailing her perception of ongoing risk by the father, the provided examples considered by the writer to lack substance and/or a repeat of what has already been considered and evaluated, thus deemed to be historic. For example, she cited an accidental meeting in traffic, as well as some alleged intimidating behaviours by the father and grandfather to the employed security guard, as well as some paranoia by [Mr Carrel], accusations levied at her suggesting legal bias and/or influence. As [Ms Joslyne] was invited to explore these alleged incidents, it is the assessment of the writer that she sought to contextualise these events, scrutinised through the lens of her prior experiences of the father, lacking a renewed perception or recognition of any effort by [Mr Carrel] to manage himself differently.
…
92.During the current interview process, it is determined by the writer that the mother did not present any new information to suggest family violence behaviours perpetrated by the father have continued to a level (if at all) justifying limited and supervised time. [Ms Joslyne] represented historical events to suggest current risk, these examples were either not accepted by the father, who could provide reliable alternative interpretations, there was an absence of independent corroboration nor ones considered relevant to the required evaluation as to whether the child can be safely supported to enjoy a positive connection with his father.
…
98.The writer reiterates without moderation, the assessment of the prior review that there has been substantial, sustained change by the father who has engaged in appropriate supports to reduce personal risk and enhance parenting insight and capacity. Aside from the intractable views of the mother, concerns now deemed to hold little, if any merit, it is assessed there are no barriers to [X] spending substantial time with his father.
I accept the conclusions of the report writer in the Second and Third Reports as to any risk posed by the father.
The mother’s case as presented in the submissions made in March 2024 were that the father did not pose a risk of harm if various injunctions were made and complied with as sought by her in Exhibit 39. Those injunctions were not made in March 2024. The necessity for the majority of the injunctions was abandoned in the submissions made in January 2025. The mother’s counsel in final submissions on 29 January 2025 did not submit that the child was at any risk of harm in the father’s care.
Accepting as I do the evidence of the report writer as to any risk posed by the father and based on my own assessment of the evidence, I am satisfied that the father does not pose a risk of harm to the child let alone an unacceptable risk of the type variously contended by the mother.
Has the mother attempted to frustrate a relationship between the child and the father, and will she continue to do so
A central feature of the case as presented by the father was that the mother has conducted the litigation in a way designed to frustrate the child’s relationship with the father. In that respect in the Second Report, the report writer recorded one of the issues to be:
•Whether the mother is now seeking to alienate the father from forming a reliable relationship with the child, and in doing so seeking to use the current Court process as well as her own knowledge of the legal system to abuse the father.
The father in his affidavit filed 14 July 2023 said as follows:
168.I am extremely concerned that this is another instance of [Ms Joslyne] using her knowledge of systems including the legal system and her knowledge of [EE Family Services] to deprive [X] of a meaningful relationship with me.
169.I believe that [Ms Joslyne] used this to blow out my legal costs, use the legal system to her advantage and do all she can to have me give up and leave.
…
171.I believe that [Ms Joslyne] will do everything she can to sabotage the relationship between [X] and I.
I am satisfied for the reasons set out below that the mother attempted to do each of these things.
In the Third Report, the report writer said:
97.In considering the writers remit to act as an independent and child focussed advocate for [X], it is the repeated assessment that [Mr Carrel] needs to be prioritised as a significant adult in [X's] life. Thus far and continuing, [Ms Joslyne] has denied [X] the right to complete identity formation, and although whilst some initial restrictions on the nature and extent of time offered were certainly necessary at the commencement of the proceedings, this is a dynamic no longer considered to be impactful on the child, one that restricts the promotion of a meaningful relationship with his father and the development of a consistent and predictable attachment pattern.
…
100.To assist the Court to make final Orders, it is assessed as increasingly worrisome that [Ms Joslyne] appears to thwart efforts to progress time, the father's renewed position to seek a transfer of residence entirely appropriate within the context of this personal and parenting frustration. Whilst there, may indeed be some benefits to [X] within such an arrangement predominantly the promotion of a healthy relationship with his father without influence, this is considered to be a last resort and is not supported at this stage, although the decision making in this regard is marginal.
…
103.Nonetheless, and with some regret, should [Ms Joslyne] be unwilling to support a plan to allow the promotion of a regular and meaningful relationship with the father as outlined, the Court may consider it in [X's] best interests for primary care to be offered by the father who demonstrates no reciprocal resistance to support the maternal connection.
While in her cross-examination she said:
…So, my point there, your Honour, is that whilst the ultimate recommendation is to try and maintain this child at home with the mother where his primary attachments are and so on, that I remain very concerned about whether the father is going to be allowed to have a role in the child’s life, and whether [X] will be able to form that in a really meaningful way. And if that continues, and if the allegations ..... improve and continue – the ceasing of time and the necessity for supervision where it’s not necessary and so on, I am worried about whether actually those primary caring responsibilities can be supported within the mother’s household. So it’s a very marginal determination to keep him where he is, however, there are certainly risks to that too, and I understand obviously the mum has changed her position today, but I guess, you know, the best predictor of future behaviour is past behaviour, and what we’ve seen is a very significant intractable pattern of trying to thwart at all turns this relationship. And that does worry me, that under those primary caring arrangements, that will continue.
The parenting proceedings were commenced by the mother in August 2021. She steadfastly maintained that the father should only ever spend very limited supervised time with the child until March 2024 when she, without adducing any evidence explaining her changed position, dramatically changed the orders she sought.
I am satisfied for the reasons advanced below that the mother is not supportive of a relationship between the child and his father, that she has attempted to frustrate a relationship and that she will, adopting the words of the report writer, continue to “thwart” a relationship between the child and the father.
The first parenting orders were made by consent on 8 December 2021. Those orders provided for the father to spend supervised time with the child for two hours each fortnight. The orders carried with them the information pursuant to s 65DA(2) and the consequent obligation cast upon the parties. I am satisfied that the mother as an officer of the court and as a family lawyer was well aware of the obligations imposed upon her.
In her affidavit, the mother says:
195.On interim Orders of 8 December 2021 being made for supervised contact and for [Mr Carrel] to be responsible for all fees for the contact centre at [EE Family Services, Region FF]. I completed intake paperwork and attended the interview.
196.[Mr Carrel] had not paid the fees and based on what 1 have seen and heard [Mr Carrel] had not attended the intake interview.
197.[Mr Carrel] filed a contravention Application against myself for not facilitating time at the contact centre and made no mention that he had not paid fees or attended the intake interview.
198.On the first return of the Contravention Application only then did [Mr Carrel] inform that he had not paid the fees but pursued the Application anyway which was subsequently withdrawn by [Mr Carrel] at the Contravention Hearing.
199.If [Mr Carrel] had paid the contact centre fees and attended the intake interview at [EE Family Services] contact could have occurred.
The records of the centre reveal (despite the mother consenting to the centre as the place to undertake supervision) that she refused to sign the centre’s service agreement (Exhibit 5 and 7) and it was upon that basis that the centre did not facilitate time. The mother did not sign the service agreement until June 2022. I am satisfied that her affidavit misrepresented the actual position.
The mother offered no plausible explanation for her refusal to promptly sign the service agreement. The consequence was that despite the terms of a consent order providing for the child to see the father fortnightly, the child did not see the father until the first visit on 8 July 2022. There were then visits on 30 July and another on 11 August 2022.
In August 2022 the mother complained about an alleged lack of supervision (Exhibit 8) which led to the centre withdrawing the offer to supervise. The mother complained that she was not advised that the paternal grandfather would be present, but her principal complaint was that various lollies given to the child contained stickers depicting a man holding a gun. The mother’s complaint was that it amounted to the child being used as a messenger to perpetrate family violence against her.
The evidence reveals that the mother was advised before the contact session that the father wished to bring the paternal grandfather to the visit by way of email dated 15 July 2022. The mother chose not to respond to the email. On the occasion of the visit, the centre asked the mother if she consented to the paternal grandfather attending and did not provide consent. The mother’s email of complaint to the centre that she was not notified of another party attending the centre (Exhibit 8) ignored the father’s email to which she had elected not to respond. There was no foundation to the mother’s complaint of a failure on the part of the centre.
The mother complained to police alleging the provision of the stickers constituted a breach of the AVO (Exhibit 11). The father was interviewed by the police and advised that he did not know the stickers depicted guns as they were inside the bag, and it only became apparent when the bag was opened. The police advised the mother the father would not be charged.
Having heard the cross-examination of the mother and father on this issue I am not satisfied that there was any basis for the mother’s complaint to the police nor any basis for her to have prevented the child seeing his father and paternal grandfather. I am satisfied it was an attempt by the mother to have the father prosecuted for a breach of the DVO and a further attempt by her to disrupt the child’s relationship with the father.
Despite the orders providing for the child to spend time with his father each fortnight, he had between December 2021 and 12 August 2022 seen him on three occasions. I am satisfied this was entirely as a consequence of the mother’s attempts to thwart a relationship.
On 16 August 2022, the mother filed an Application in a Proceeding seeking various orders including to suspend the father’s time pursuant to the December 2021 orders. Despite seeking such an order, at the hearing of that application on 25 October 2022 the mother consented to orders providing as follows:
16.That the child spend supervised time with the Father for two (2) hours per fortnight at the [P Contact Centre] located at [Suburb GG], commencing on Tuesday 8 November 2022 at 11.30AM, and each alternate Tuesday thereafter or at such other time as can be accommodated by the centre.
The mother provides no explanation for this complete about face. The filing of an application to suspend time and to then agree to orders for time could be viewed as little more than an attempt to thwart a relationship and the bringing of a meritless application. The mother agreed in cross-examination that she made no proposal for the father to spend time with the child between 12 August 2022 and 8 November 2022 despite the existence of an order. I am not satisfied that there was any basis for a refusal to facilitate time or for the filing of the application suspending his time.
As with the December 2021 orders, the October 2022 orders imposed obligations on both parties to comply with the orders. I am satisfied the father did all he could to comply with the orders. I am satisfied that the mother sought (whether actively or passively it matters little) to frustrate the orders.
Despite the order providing for the father to spend two hours with his son each fortnight, he was only ever permitted one hour.
The first occasion of time occurred in November 2022. Before time even started that day, the mother complained to the police that the father had parked two spots away from her at McDonalds. The mother agreed in cross-examination that the father had made no attempt to contact her at McDonalds.
In the mother’s cross-examination, she was asked whether it was her hope that he would be charged by the police to which she replied she wanted it investigated. Exhibit 14 includes the police officer’s notebook which records the mother telling the police officer, “I want to report this as a breach of the domestic violence as I don’t believe it’s a coincidence”. The notebook is signed by the mother.
Her answers in cross-examination are at the very least disingenuous and unconvincing. Her complaint to the police was I am satisfied just another attempt to have the father prosecuted for an alleged breach of orders with the aim of frustrating his time.
The police records reveal that they investigated and examined the CCTV footage from McDonalds which showed the father arriving first and before the mother and then leaving shortly after the mother arrived. The police record it as “chance encounter” where the father took appropriate action. They describe the mother’s complaint of a breach of the order as unfounded (Exhibit 14). It is unexplained and was unexplored why if she found the experience as she asserts, she did not immediately leave.
The visits at P Contact Centre proceeded sporadically. No time occurred in January 2023, the mother alleging she and the children had contracted Covid-19. The father described the supervision to occur in an environment where he was not allowed to provide food to the child, take photos and with the supervisor unilaterally changing the times. In respect of these visits, the report writer observed in the Second Report as follows:
119.There have been fortnightly scheduled sessions of time for the father and child held at [P Contact Centre]. These sessions last for one (1) hour. Subpoenaed records of seventeen (17) session notes have been provided to the writer, noting that of these, four (4) were cancelled due to illness by the child and a further one (1) occasion due to it being Anzac Day (although not rescheduled). The writer has also reviewed five (5) brief audio clips as well as the e-mail and text message correspondences.
120.Whilst the writer does not wish to be professionally disrespectful to this valuable service, the criticisms of the father and some of the restrictions placed upon him in this time are assessed to be unnecessarily punitive. For example, there are some references made by the father to his life at home such as [agricultural] equipment, prior experiences of time with the child including shared experiences when attending with the child at the previous contact centre, which the writer considers are natural interactions and conversations one might hold with a child under such circumstances, but which he is asked to cease. The father is not noted to be negative or critical of the other parent, he does not use coercive language or tactics designed to extrapolate information from the child about his or the mother's circumstances and he makes effort to quickly move the child onto other subjects if these are introduced by [X].
121.The writer also finds the restriction on the father from being able to provide Easter eggs (and other toys) highly restrictive and unnecessary. These are the limited occasions those who are in a supervisory relationship maximise with their child seek to make connection. In the transactional world of a child of this age, such provision of gifts and celebration of special occasions is a natural, and acceptable way to seek to maintain and strengthen their attachment and sharing of each other's world. This should be encouraged, albeit with some boundaries so that the child does not create expectations which cannot later be translated.
The observation of the report writer accords with the father’s evidence.
Despite orders consented to by the mother in October 2022 for time each fortnight for two hours, on 16 June 2023 the mother filed an Amended Initiating Application in which she sought to reduce the father’s time to two hours once a month. The mother also sought orders as follows:
24.That in the event the mother is unable to obtain finance to effect any Family Law Property Settlement between the parties that the mother be permitted to relocate within Australia.
25.That in the event of the mother changing address that the mother shall inform the court of the address, but otherwise that address shall remain confidential.
The mother was interviewed for the purposes of the Second Report on 11 July 2023. The report writer records as follows:
28.[Ms Joslyne] contacted the writer on the morning of the interviews by email to inform her intention to bring the child [X] as well as her older two children ([R] and [N]) to the appointment with the stated intention to have these children interviewed. There had been prior correspondence between the writer, ICL and the mother to establish the schedule for the day, consideration to this request denied. The writer immediately responded to relate that the decision had been made not to include any of these children in the process of review, despite which a further text message was received reiterating this intention by the mother. She was again asked not to bring the children informed that a clear decision had been made about this and told they would not be interviewed.
29.Despite this correspondence [Ms Joslyne] brought all three children. These children were sent away by the writer to be cared for by the mother's partner, [Mr C]. It was explained at the commencement of her individual interview the rationale for excusing these children as part of the process. This being; the acceptance of the dynamic of family violence within the parties’ prior relationship to which the older children in particular had been exposed. The process of review being forward focussed; The actions of interviewing the children with a high potential for this to be psychologically retriggering for them and the need to balance any benefit of information shared; The nature of the assessment process not designed to be a therapeutic one, there being no time, nor it being the appropriate forum to manage a child’s resulting distress.
A not dissimilar difficulty was faced by the ICL in his attempts to interview the child. The mother was cross-examined as follows:
MS WARDLE: Now, you recall that in June 2023 you were asked to bring [X] in to see the independent children’s lawyer for an interview; that’s correct, isn’t it? Yes.
And you refused. That’s correct, isn’t it? I disagree. I myself, I didn’t agree to go to the ICL’s office, but I did propose that [X] be greeted in other circumstances.
Didn’t you initially say that any child who is not at school is not required to be interviewed by the independent children’s lawyer? Isn’t that – wasn’t that your first response? It was along those lines, yes.
Yes. And then after being asked to bring him in again, you suggested that he can either see [X] at the family report interviews or go to the contact centre in the father’s time and see him; isn’t that right? Yes.
We then get to this year, and you – and I asked for an order that you bring [X] to the independent children’s lawyer, and your counsel indicated to the court, on his Honour’s prompting, that that wasn’t required because you’re an […] and you would do it; isn’t that right? Yes.
Right. And then you were asked to bring him in and you notified the independent children’s lawyer that you wouldn’t be bringing him in unless you’ve got seven days’ clear notice; isn’t that right? I requested seven days’ notice, yes.
And then you were given eight days’ notice but then notified – but you didn’t respond to the independent children’s lawyer email saying whether that time was suitable, did you? No.
And then what happened is the independent children’s lawyer ended up having to be in court on that day and that time, and they sought to rearrange that time, didn’t they? Yes. And it was.
And then you insisted that it be that day, knowing that the independent children’s lawyer was required in court, didn’t you? Yes. I made that request.
Yes. And it took until Wednesday of last week before he actually got to speak to [X], wasn’t it? Yes. I – I can’t recall the exact date, but, yes, I believe around that time, yes.
Right. 21st of this month? Yes.
Right. And when you got there, you asked, “How long is this going to take”; isn’t that right? Yes.
What was wrong with [X] talking to the independent children’s lawyer, ma’am? He was hiding behind the couch.
Ma’am, what was wrong with [X] talking to the independent children’s lawyer? I was concerned about [X] being anxious, being in a strange office with another strange person.
HIS HONOUR: As opposed to a security guard he has never met.
MS JARDINE: Sorry, your Honour. I’m just
THE WITNESS: It was – sorry. It was
HIS HONOUR: Is that the case? As opposed to a security guard he had never met? At McDonald’s.
He had no difficulty with that, but having him come to see an officer of the court, you had a problem with that? The office surroundings.
Okay. How much would you think that little exercise would have cost the public purse? You communicating with the ICL, changing arrangements, what do you think that would have cost the public purse, [Ms Joslyne]? I don’t know.
You weren’t just trying to be difficult, were you? No.
(Transcript dated 1 March 2024, page 68 line 25 – page 69 line 45)
In determining what time order should be made under ss 65DAA(1) and (2) of the Act, the Court looks to whether spending equal time or significant substantial time is in the best interests of the children, and whether as a separate consideration it is reasonably practical.
The best interests of children are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the their best interests. The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration set out in s 60CC(2)(b).
Section 60CC(3) sets out additional considerations in determining what is in children’s best interests. Those considerations will be discussed further below.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ stated:
76.It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
In reaching my decision, I have considered all of the relevant sections of the Act, albeit that I am not required, as a matter of law, to specifically address each such consideration.
PRIMARY CONSIDERATIONS
Meaningful relationship
It is ordinarily in a child’s best interests to have a meaningful relationship with both their parents.
The Full Court in Sigley v Evor (2011) 44 Fam LR 439 at 463–464 identified the following as important matters of guidance in relation to s 60CC(2)(a):
(a)“a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26];
(b)“the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)”: McCall & Clark (2009) FLC 93-405 at [118];
(c)“what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”: Godfrey v Sanders (2007) 208 FLR 287 at [36]; and
(d)“[t]he submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most likely to ensure the children had a ‘meaningful relationship’ with both parents. This is an incorrect assumption. The court’s obligation is to make orders most likely to promote the child’s best interests”: Champness & Hanson (2009) FLC 93-407 at [103].
Each of the parents and the ICL presumably contend that the proposals that they advance are ones that are consistent with ensuring that the child is able to maintain a meaningful relationship with each of their parents.
I am not satisfied that if the child remained in the mother’s primary care that despite the orders, she promotes the child would be able to maintain a relationship with both parents. I am not satisfied that the mother sees any benefit to the child in maintaining any form of relationship with the father. I am satisfied that if left in the mothers primary care the child’s relationship with the father would unless he were vigilant and prepared to litigate end.
I am satisfied, for the reasons that I give, and the orders I make, that the child will have, to the extent possible consistent with his best interests, a meaningful relationship with both of his parents.
As noted, however, the Court’s obligation is to make orders that are in the children’s best interests and the questions of risk and harm are not subordinate to the issue of a meaningful relationship.
SECTION 60CC(2)(B)
I am not satisfied that there is a need to protect the child from harm posed by the father, in light of the case as eventually advanced by the mother.
ADDITIONAL CONSIDERATIONS
The Court must also have regard to such of the additional considerations under s 60CC(3) of the Act as are relevant. I will, to the extent that I have not already done so, address the additional considerations.
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child is aged 6 years and in year 1 at school.
The report writer says in her last report the child missed his father. The father gives evidence that the child tells him that he wants to spend more time with him. The mother seems to suggest the child wants to spend less time with the father.
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated:
34.In some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
35.... whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed.
Given the child’s age, I place little weight on his stated views.
(b) The nature of the child’s relationship with each of the parents and other persons
I am satisfied that the child has a loving and close relationship with each of his parents and his siblings. It was not submitted otherwise.
(c) Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; spend time with the child; and communicate with the child
The report writer in her cross-examination said:
Right. Would you characterise even though the mother hasn’t had sole parental would you characterise the way the mother has exercised decision-making to date as that excluding the other party? I am not aware of any times when [Ms Joslyne] has consulted with the father. So yes I believe that she has excluded over those key decisions.
(Transcript dated 4 March 2024, page 192 lines 40–45)
I am satisfied that the mother has persistently failed to communicate with the father about major long-term decisions in relation to the child and would continue to do so the most recent example being Exhibit 44 as referred to above. I accept that the father has consistently sought to spend more time with the child and that the mother has persistently sought to restrict it.
(ca) Extent to which each of the parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother has financially supported the child since separation.
The father has not paid child support for the child at any time since separation and that reflects poorly upon him. I accept his unchallenged evidence that he has paid for sport lessons and purchased clothing and shoes for the child.
(d) Likely effects of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
I accept the evidence of the report writer that a change in the child’s primary care will be distressing for the child and that he will suffer a sense of emotional loss. He will also have a lesser relationship with his siblings.
That said I have little doubt given the mother’s attitude to date that she will attempt to frustrate his relationship with his father and that a loss of that relationship will be intensely felt by the child and have long-term consequences.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parents live a long distance apart. The effect of this is that alternate weekend time must end on a Sunday evening and renders mid-week time impracticable. Otherwise, this is not a relevant consideration.
(f) The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that both parents are able to meet the child’s physical and intellectual needs.
I am not satisfied that the mother has any capacity to meet the child’s need to have a relationship with the father.
I accept that the father is untested as a primary carer, but he does have parenting skills as identified by the report writer.
I am satisfied that both parents have, at times, failed to place the child’s emotional needs ahead of their own as a consequence of the entrenched parental conflict. The father certainly failed to do so at times during the course of the relationship.
I accept the opinion of the report writer that there were deficits in the father’s parenting capacity and that these deficits exposed the child to family violence during the relationship. However as set out at length in the Second and Third Reports the father has developed insight and is reflective and acknowledging of his vulnerabilities and has sought to address them such that he no longer poses a risk of harm.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
This is not a relevant consideration.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right
This is not a relevant consideration.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This has been canvassed extensively above. I have significant concerns as referred to above as to the mother’s conduct and behaviour in her attempts to frustrate and disrupt the child’s relationship with the father. She has consistently over the course of the litigation contacted the police and other authorities on numerous occasions with I am satisfied the aim of attempting to persuade them to investigate the father with the aim of disrupting if not ending the child and parent relationship and in almost every instance they were baseless allegations.
She has persisted in this endeavour throughout the litigation. To that end in her Amended Initiating Application filed 13 November 2024 (Exhibit 43) she sought the following order:
33.That leave be granted for the Applicant to provide Family law documents, Orders and correspondence be released to the Queensland Police Service and lawyers for the purposes of investigating criminal breaches of the Domestic Violence Order commencing proceedings in State Courts
Beyond her assertion, there is not a scintilla of evidence that the police have requested this information. As a professional in her own business she would know that the police could at any time contact the court to access court files. I am satisfied this request was done with the hope that the police might investigate one of her baseless allegations with the aim to frustrate and ‘thwart’ a relationship between the child and the father. There is a significant risk that she will in the future continue to make baseless complaints.
The father in his affidavit filed 14 November 2024 gives a recent example of the mother’s attitude to parenting. In that affidavit he says:
32.On 3 October 2024, I purchased [X] new pair of shoes for school because [X] had grown out of his old ones. [X] told me that he was not allowed to wear the shoes I'd bought him and that in the second week of the school holidays, after I'd bought him new shoes, his mum bought him another pair and told him that he is not to wear the ones I bought. [Ms Joslyne] sent the pair I bought back with [X] the next time he spent time with me. The pair I bought were good quality ASIC shoes, the pair [X] now wears to school are poor quality sfida shoes that are already starting to fall apart.
Despite the opportunity to cross-examine the father, the mother’s counsel clearly on instructions elected not to do so. I accept the father’s evidence. This sends an appalling message to the child that the father is not valued or respected.
The father on the other hand has, despite significant difficulties in his parenting during the relationship, sought to address his problems as recorded in the Second and Third Report. He has waited patiently to be able to restore his relationship with the child. While there were concerns in the past as to the father’s attitude to the responsibilities of parenthood apart from his failure to pay child support they no longer exist as a concern.
(j) Any family violence involving the child or a member of the child’s family
This has been extensively addressed above.
(k) Any relevant inferences that can be drawn from a family violence order, if it applies
I draw no inference from the DVO in circumstances where it was made on a without admissions basis.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These parents have been in significant conflict about the child’s living arrangements in the years subsequent to separation. It is in the child’s best interests for these proceedings to end. I am confident that an order leaving the child in the mother’s primary care would see further attempts to frustrate time and lead to applications for enforcement. I am satisfied that the father will promote and foster an arrangement between the child and the mother and that the risk of further litigation is less likely if the child is in the father’s primary care.
(m) Any other fact or circumstance that the court thinks is relevant
There is no other fact or circumstance that is relevant.
PARENTAL RESPONSIBILITY
Pursuant to s 61DA(1) of the Act, the Court is required to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
Each of the parents sought sole parental responsibility. They have no capacity whatsoever to coparent. To impose an equal shared parental responsibility order on them would be to invite further disputation into the child’s life. Neither sought a reservation of equal shared parental responsibility in the event their position of primary care was not accepted.
It naturally follows that the parent with primary care is the parent that should have sole parental responsibility.
CONCLUSION
It was the evidence of the report writer that the best predictor of future behaviour was past behaviour. She expressed scepticism about the mother’s new proposed orders for unsupervised time after 12 months and the motivation behind them. She opined that if the mother could not facilitate a relationship, then a change of primary care should be considered.
For the reasons addressed extensively above I am satisfied that the mother has no capacity to foster and encourage a relationship between the child and his father. I am satisfied that she will if the child remains in her primary care continue to frustrate and ‘thwart’ the child’s relationship with his father.
As referred to earlier in these reasons, the report writer supported the child remaining in the mother’s primary care subject to the caveat that the mother supported a relationship. As referred to earlier during cross-examination, the report writer said that there needed to be as follows:
…regular, reliable supported time with the father where that is going to be committed to without all these allegations and delays and you know accusations to [X’s] time. If that can’t be realised, as I said in my report and it is marginal the decision-making is marginal, then it might be that if mum can’t do that then a transfer of care to the father is absolutely what will need to happen.
(Transcript dated 4 March 2024, page 199 line 45–page 200 line 5)
In the period between March 2024 and January 2025 the mother had an opportunity to dispel any concern that her proposal for unsupervised time was other than bona fide and that she was genuinely motivated to ensure that the child had a relationship with the father that would not be inhibited or frustrated by the sort of behaviours that had been the subject of criticism by the report writer and which had led the report writer to conclude that if they continued that a change of residence “will need to happen”. The sad reality was that the mother continued to make baseless complaints, sought to frustrate the child’s relationship with the father and filed an application for supervised time that was abandoned with no explanation. It was but another glimpse into the future which awaits the child’s relationship with his father if she remains the child’s primary carer.
I am satisfied and find that the mother’s orders proposing unsupervised time were entirely motivated by resisting a change in primary care and not as a result of some newfound insight as to the importance of a relationship between the father and the child. I am satisfied that she will not support or permit regular reliable time and there is a significant risk she will continue to make baseless complaints to undermine and inhibit the relationship.
Her counsel contends that the mother has complied with the orders presumably as a response to the submissions that she has sought to frustrate the relationship. The submission is subtractive. As the sections of the Act make compellingly clear there is more to a parenting determination than simple physical compliance with an order. The focus is as much on attitude and capacity as it is on the delivery of a child to a particular place. The latter can be undertaken by an intermediary divorced from the task of parenting.
I am satisfied that the only way the child can have any form of relationship with both his parents is where he resides in the primary care of the father, notwithstanding the distress this will occasion. Having regard to all of the above matters, and all of the s 60CC considerations, I am satisfied that the arrangement proposed by the father and the ICL are ones that are in the child’s best interests save that I am not satisfied that there is basis for a moratorium of time and given the distance the parties live apart I am satisfied that orders proposing time on birthdays is impracticable.
I propose to make orders to give effect to my reasons.
FINANCIAL ADJUSTMENT
The approach to be adopted in a financial adjustment case under s 90SM is to follow the well-recognised four-step process (see Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143). Following such an approach, the Court identifies and values the assets and liabilities at the date of hearing for the purposes of division. Secondly, the Court assesses the contributions of the parties within the meaning of s 90SM(4) of the Act and determines a contribution based entitlement. Thirdly, the Court identifies the relevant matters under s 90SF(3) and determines such adjustment as is necessary to the contribution based entitlement. Finally, the Court considers the effect of the findings and determines whether or not the order as proposed is in all the circumstances just and equitable.
Each of the parties sought orders by way of financial adjustment. The parties are no longer living together and there is no longer the common use of their property. The assumptions and undertakings that governed the use of their property ended with separation. I am satisfied that it is just and equitable that an order be made adjusting the property interests of the parties (see Stanford v Stanford (2012) 247 CLR 108).
The parties tendered a Balance Sheet (Exhibit 31) which recorded the following;
Ownership Description Applicants value Respondents value 1 Joint CC Street, Suburb DD $660,000 $660,000 2 Resp Motor Vehicle 1 $18,000 $18,000 3 Resp Personal Belongings and equipment (Respondent) $3,965 $3,965 4 App Personal Belongings and equipment (Applicant) $3,165 $3,165 5 App Bank Account Westpac ending …39 $1,679 $1,679 6 App Westpac Account ending …24 $1.58 $1.58 7 App Westpac Account ending …72 $1.27 $1.27 8 App Childrens Account $1579.81 $1579.81 9 App OO Ltd Shares $3350 $3350 10 Resp Nab Account $70 $70 11 App Nab Account $25 $25 12 Resp HH Lawyers $40,000 $40,000 Total $731,837 $731,837 ADDBACKS 13 Total LIABILITIES 14 Joint MM Financial Services $230,000E $230,000 15 Resp JJ Financial Services $1,989 16 App Westpac Personal Credit Card $635E $635E 17 App KK Financial Services $1335 $1335 18 App LL Financial Services $988 $988 19 App HECS Debt $50,711.57 $50,711.57 Total $387,700.57 $387,700.57 SUPERANNUATION Member Name of Fund Type of Interest Applicants value Respondents value 20 Resp ATO Search Nil 21 App Super Fund 1 Accumulative $28,798.74E $28,798.74E 22 App Super Fund 2 Accumulation $7,548.96E $7,548.96E Total $36,347.70 $36,347.70 FINANCIAL RESOURCES Ownership Description Applicants value Respondents value 23 Resp Crypto Currency 42.88E Nil Total $42.88 $0
(As per original)
During the course of submissions, it was agreed that Item 12 should be attributable to the Applicant. The parties counsel agreed that the money in the children’s account (Item 8) should be excluded, and the mother did not press inclusion of Items 19 and 23. As to Item 15, I am not satisfied there is a principled reason why I should exclude the father’s liabilities when the mother’s liabilities are included. I note that it was not the subject of cross-examination and appears in his financial statement. I will include the father’s liability.
Accordingly, I find the pool of assets for division between the parties to be as follows
Ownership Description Value 1 Joint CC Street, Suburb DD $660,000 2 Resp Motor Vehicle 1 $18,000 3 Resp Personal Belongings and equipment (Respondent) $3,965 4 App Personal Belongings and equipment (Applicant) $3,165 5 App Bank Account Westpac ending …39 $1,679 6 App Westpac Account ending …24 $1.58 7 App Westpac Account ending …72 $1.27 9 App OO Ltd Shares $3350 10 Resp Nab Account $70 11 App Nab Account $25 12 App HH Lawyers $40,000 Total Assets $730,256.85 Liabilities 14 Joint MM Financial Services $230,000E 15 Resp JJ Financial Services $1,989 16 App Westpac Personal Credit Card $635E 17 App KK Financial Services $1335 18 App LL Financial Services $988 Net Total 495,309.85 Member Name of Fund Type of Interest Applicants value 20 Resp ATO Search 21 App Super Fund 1 Accumulative $28,798.74E 22 App Super Fund 2 Accumulation $7,548.96E Total $36,347.70 TOTAL $531,657.55
The assessment in a property case calls for the exercise of a discretion and a holistic value judgment of the respective contributions of the parties. The Court is required to consider all of the contributions of the parties as the Full Court in Dickons v Dickons (2012) 50 Fam LR 244 at [24]–[26] makes plain:
24… the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
25Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “giving overzealous attention to the ascertainment of the parties’ contributions” (Norbis v Norbis (1986) 161 CLR 513 at 524 ; 65 ALR 12 at 18 ; 10 Fam LR 819 at 825 ; [1986] HCA 17) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
Guided by such Full Court determination, I propose to assess the parties’ contributions.
The mother through her counsel contended that the contribution assessment should be 60 percent to the mother while the father’s counsel contended that the contribution assessment should be 55 percent to the father.
The parties seem to be in broad agreement that they commenced cohabitation in or about late 2014. They thereafter separated in about early 2015 and resumed a relationship around the end of 2015. The mother says the father “moved back in” around early to middle 2016 at paragraph 32 of her affidavit and later says the father asked if he could reconcile “midway through 2016” at paragraph 36.
It is not in issue that the parties separated in June 2021. Thus, the period of cohabitation was at best about six years.
Each of the parties have given differing accounts of their financial position at the time of commencement of the relationship. In the mother’s Case Outline document, she contended that neither party had any assets of substance. In that respect, the Case Outline document filed 15 August 2023 records that, “The mother asserts that the parties had little by way of initial financial contributions prior to cohabitation”.
I am satisfied that each of the parties had little in the way of realizable property other than superannuation. In that respect, the father contends his was worth approximately $75,000 whilst the mother contends hers was worth approximately $15,000 to $20,000.
Despite the parties only cohabiting for approximately six years it is difficult to get a precise and comprehensive understanding of the parties’ respective contributions in the period leading up to the work accident sustained by the father in late 2016. This is because it was not the focus of any cross-examination and the affidavits of both fail to really address in any precise way their respective contributions.
In some respects, it does not seem to matter because it seems to be common agreement that the parties separated in or about March 2015 and resumed cohabitation in either late 2015 or mid‑2016.
Despite the mother’s contention that the father made a minimal contribution I am satisfied that he did make contributions up until his work accident. I accept his evidence that he contributed his income to the family constituted by the mother and her children. I do not accept the mother’s evidence that he spent the totality of his income on gambling or alcohol but accept that he spent some of it.
I accept the father’s evidence where he states he made various financial contributions as follows:
247.[Ms Joslyne] says that she has always paid her way, but very often I was assisting her with finances and purchasing the kids' glasses, presents etc. [Ms Joslyne] always insisted I pay cash, which I never thought to question.
In or about late 2016, he sustained an injury at work.
I accept his evidence where he asserts:
249.I applied for a cash payment of $10,000 for hardship from my superannuation to pay bills.
250.I applied for a Total and Permanent Disability ("TPD") payment that [Ms Joslyne] and I both worked on. I received $224,000. [Ms Joslyne] now suggests that she did virtually all the work to have my TPD claim paid out. [Ms Joslyne] would do the typing and sending things after I had been dealing with [NN Insurance Company]. [Ms Joslyne] did help with the TPD claim but she helped me as a partner.
251.I had my superannuation released in two payments of $37,500 each for a total of $75,000. I bought myself a car for $27,000.
The parties thereafter purchased a home.
I accept his evidence that he received $224,000 in addition to which he received a payout of his superannuation of $75,000. The funds were thereafter utilised to purchase a motor vehicle and the balance was applied towards the purchase of the property at Suburb DD in the sum of $429,000. The purchase was funded by way of mortgage with the balance being met from his TPD and superannuation.
Some renovations were otherwise undertaken to the property after its purchase which were funded from the remainder of the father’s TPD payment. It is not in issue that the totality of the TPD payment and his superannuation was expended on the acquisition of the home and improvements to it and the purchase of a car.
I accept also that the mother made some contributions through her work in assisting in the progress of his TPD payment.
It seems undisputed that following his work injury he did not otherwise return to work and commenced receiving a disability pension.
The parties are at issue as to the respective financial contributions by them in the period subsequent to the receipt of the TPD payment and separation, a period of approximately four and half years. I am satisfied that the father in the period subsequent to the TPD payment did make a contribution to the support of the family and the mother constituted by himself, the mother and her two children from a prior relationship and later the birth of a child of their relationship. In that respect I accept his evidence as follows:
259.Whilst we were living together in the matrimonial home, I would pay the house insurance, food, car insurance and other bills such as kids’ glasses, sports, bookclub etc. as I was only on a disabled pension. [Ms Joslyne] would pay the mortgage, rates, power and water fortnightly as she received the parenting payment and her normal Centrelink payment.
In 2018, X was born. It would appear that the father remained in receipt of a disability pension and the mother seemed to have undertaken some part-time work, again albeit the evidence is far from clear or precise.
I accept that the parties shared the care of the child following his birth, albeit I accept that the mother played a more substantial role than the father.
The parties separated in November 2021 and for the first twelve months following the parties’ separation, the father had no contact whatsoever with X. I am satisfied that in the period post‑separation he has made no direct financial contribution to the support of the child and that the mother has made a substantial contribution in the nearly four years post-separation by way of parenting.
The father’s time with X did not properly resume until orders were made by the Court in August 2023 and subsequently amended by further orders made in March 2024. Since that time the father has spent regular periods of time with X each alternate weekend and half school holidays.
It is an agreed fact that in the period subsequent to separation, the mother has remained in occupation of the former matrimonial home. She has paid only interest payments under the mortgage, and I accept the mortgage balance has increased modestly subsequent to separation.
I accept the mother was a victim of family violence and that her contributions would have been made more onerous.
Having regard to all of the contributions of both parties over the period from 2014 to the date of hearing, I am satisfied that the contributions of the father exceed those of the mother. His significant financial contribution by his TPD payment and pre-cohabitation superannuation is such that without it the parties would have almost no assets to divide. Assessing both parties’ contributions holistically I find the contribution assessment favouring the father as to 55 percent.
In relation to matters under s 90FS(3) I have regard to the fact that the father has suffered a serious injury and is not working. It was not suggested that he had an earning capacity.
The mother is a professional and seems to be variously employed, albeit according to her affidavit her income is modest. I accept that she has two children in her care and does not receive any Child Support in relation to those children.
The orders I make as to parenting will see the father assuming majority care of the child.
I also have regard to the contributions made by the father to the support of the mother’s two children.
Each contented there should be an adjustment based on primary care of the child. Having regard to all of the above matters I am satisfied that there should be an adjustment in favour of the father given the limitations on his earning capacity and the majority care of the child and that adjustment should be 10 percent.
Accordingly, I find that property of the parties should be divided as to 65 percent to the father and 35 percent to the mother.
I am satisfied that this finding gives effect to a just and equitable division of the parties’ assets.
No party sought a superannuation splitting order in respect of the mother’s superannuation. The major asset of the parties is the former matrimonial home. The parties were at issue as to the state of the premises and the need for it to be repaired.
The parties have no capacity whatsoever to constructively work together to effect repairs to the property. Nor is there any evidence that the parties have any money with which to affect the repairs. There seems to be some contention that monies are due under an insurance policy in relation to the damage to the property but the evidence, like much of the evidence in this case, is sparse and not supported by a document.
I am satisfied that to leave it to the parties to reach some agreement about the repairs would be a recipe for disaster. The mother has remained in occupation of the property for at least three years in the period subsequent to separation. The evidence as to what she has done to affect the repairs or progress the insurance claim in relation to the property is scant.
I propose to make orders that will affect a sale of the property. The orders will require the property to be listed for sale at a price agreed upon between the parties and failing agreement as nominated by the listing agent. I will provide a mechanism in the orders for the appointment of a listing agent and solicitor. I have little confidence that the mother will act in the interests of the father in circumstances where she receives a lesser sum of the property so in the event the parties cannot agree on the appointment of the agent and solicitor, the father shall be the party who nominates.
The proceeds of sale of the home will be divided as to 65 percent to the father and 35 percent to the mother.
The other property of the parties totals $101,657.55 of which 35 percent to the mother is $35,580.14. She has net property including superannuation having a value of $81,611.55 being $46,031.40 more than her entitlement. Thus, from her 35 percent share there will be a payment to the father of $46,031.40.
I propose to make orders to give effect to this result which I regard as just and equitable.
I certify that the preceding two hundred and eighty (280) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 13 March 2025
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