Joyce & Antony
[2022] FedCFamC1F 588
•12 August 2022
Federal Circuit and
Family Court of Australia (DIVISION 1)Joyce & Antony [2022] FedCFamC1F 588
File number(s): CSC 947 of 2019 Judgment of: HOGAN J Date of judgment: 12 August 2022 Catchwords: FAMILY LAW – PARENTING – Best interests – Where each parent seeks that the child live with them and spend time with the other parent – Where the parents live geographically distant from each other – Where the child has always been primarily cared for by the mother – Whether the mother will support the child’s relationship with his father.
FAMILY LAW – PARENTING – Parental responsibility – Where each parent seeks sole parental responsibility – Where the presumption of equal shared parental responsibility does not apply due to family violence – Where the parents have difficulties in communicating – Where the mother has previously made decisions unilaterally – Where the child will live primarily with the mother – Where it is nevertheless in the child’s best interests that his parents have equal shared parental responsibility for the major long-term issues relating to him.
FAMILY LAW – PROPERTY SETTLEMENT – Where the father’s initial contributions far outweighed the mother’s initial contributions – Where the relationship was of about ten years’ duration – Where the contributions of the parents during cohabitation and between separation and trial were said to have been equal – Where the s 75(2) matters favour the mother.
Legislation: Family Law Act 1975 (Cth) Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Cox & Pedrana (2013) FLC 93-537; [2013] FamCAFC 48
Hepworth v Hepworth (1963) 110 CLR 309; [1963] HCA 49
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Vigano & Desmond (2012) FLC 93-509; [2012] FamCAFC 79
Division: First instance Number of paragraphs: 261 Date of hearing: 20-24 September 2021; 12-13 October 2021 Place: Heard in City MM on 20-24 September 2021 and in Brisbane via video link on 12-13 October 2021, delivered in Brisbane Counsel for the Applicant: Ms Dart Solicitor for the Applicant: O’Shea & Dyer Solicitors Counsel for the Respondent: Mr Trevino QC Solicitor for the Respondent: Reaston Drummond Law Counsel for the Independent Children's Lawyer: Mr Pack Solicitor for the Independent Children's Lawyer: Keir Steele Waldon Lawyers ORDERS
CSC 947 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JOYCE
Applicant
AND: MR ANTONY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
12 August 2022
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
2.The child X, born 2012, live with the mother in the G Town area.
3.The parents shall have equal shared parental responsibility for the major long-term issues of the child (as that expression is defined in the Family Law Act 1975 (Cth)), including:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)any changes to the living arrangements that make it significantly more difficult for the child to spend time with each parent.
4.The parents shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility, as follows:
(a)each shall inform the other parent in writing about the decision proposed to be made; and
(b)unless the decision relates to an acute or life threatening illness or injury to the child (when the time frame will be dictated by medical needs) each parent shall, at least two (2) months before the date on which the proposal is to be implemented, provide the other, in writing, with the details of any proposal and the intended date on which the proposal is to be implemented; and
(c)the parent receiving the proposal shall, within seven (7) days of receiving the same, provide the other parent with written details of any proposed variations to the proposal; and
(d)the parent receiving written details of any proposed variation to the initial proposal shall, within seven (7) days of that receipt, provide the other parent with written notice of their response to the proposed variation; and
(e)each parent shall make a genuine effort to come to a joint decision about a proposal before the intended date on which the proposal is to be implemented.
5.Each parent has responsibility for decisions about the day-to-day care, welfare and development of the child when he is in that parent’s care.
6.Unless otherwise agreed by the parents in writing, the child shall spend time with the father as follows:
(a)on the second, fifth and eighth weekends of each school Term: from the conclusion of school on Friday to 4.00 pm Sunday (or 4.00 pm Monday if Monday is a public holiday), with the father to collect the child from school at the start of the time and the changeover at the end of the time to occur at McDonald’s Restaurant, V Street, G Town; and
(b)on the May Day long weekend each year (in the event that this weekend is not the second, fifth or eighth weekend of the Term), provided that the father gives the mother no less than twenty-eight (28) days’ notice in writing of his intention to spend time with the child on this weekend and that he intends to take him to AA Town: from 6.30 pm on Friday until 3.00 pm on Monday, with the changeovers at the start of the time and at the end of the time to occur at the H Roadhouse; and
(c)during the school holiday period at the conclusion of Term 1 each year:
(i)in odd numbered years: from 2.00 pm on the Saturday immediately after the end of the school Term until 2.00 pm on the second Saturday of the school holiday period; and
(ii)in even numbered years: from 2.00 pm on the second Saturday of the school holiday period until 2.00 pm on the Saturday before school resumes for the next school Term; and
(d)for all of the school holiday period at the conclusion of Term 2 each year: from 2.00 pm on the Saturday immediately after the end of the school Term until 2.00 pm on the Saturday before school resumes for the next school Term; and
(e)during the school holiday period at the conclusion of Term 3 each year:
(i)in odd numbered years: from 2.00 pm on the Saturday immediately after the end of the school Term until 2.00 pm on the second Saturday of the school holiday period; and
(ii)in even numbered years: from 2.00 pm on the second Saturday of the school holiday period until 2.00 pm on the Saturday before school resumes for the next school Term; and
(f)if the child is attending a public school: for four (4) weeks during the school holiday period at the conclusion of Term 4 each year, with such time to occur:
(i)in odd numbered years: from 2.00 pm on the Saturday immediately after the end of the school Term (the first Saturday) until 2.00 pm on the fifth Saturday of the school holiday period; and
(ii)in even numbered years: from 2.00 pm on 27 December of that year until 2.00 pm on the Saturday immediately before school resumes for the next school Term; and
(g)if the child is attending a private school: for five (5) weeks during the school holiday period at the conclusion of Term 4 each, year with such time to occur:
(i)in odd numbered years:
A.from 2.00 pm on the Saturday immediately after the end of the school Term (the first Saturday) until 2.00 pm on the fifth Saturday of the school holiday period; and
B.from 2.00 pm on the second last Saturday of the school holiday period until 2.00 pm on the last Saturday before school resumes for the next school Term; and
(ii)in even numbered years:
A.from 2.00 pm on the Saturday immediately after the end of the school Term (the first Saturday) until 2.00 pm on the second Saturday of the school holiday period; and
B.from 2.00 pm on 27 December of that year until 2.00 pm on the Saturday immediately before school resumes for the next school Term.
7.Notwithstanding Order 6(a) and unless otherwise agreed by the parents in writing:
(a)if the weekend on which Mother’s Day falls is the second, fifth or eighth weekend of the school Term:
(i)the child shall remain in the mother’s care on that weekend; and
(ii)the child shall spend time with the father on the weekend immediately after the Mother’s Day weekend: from the conclusion of school on Friday to 4.00 pm Sunday (or 4.00 pm Monday if Monday is a public holiday), with the father to collect the child from school at the start of the time and the changeover at the end of the time to occur at McDonald’s Restaurant, V Street, G Town.
(b)if the weekend on which Father’s Day falls is not the second, fifth or eighth weekend of the school Term, the child shall spend time with the father from the conclusion of school on Friday to 4.00 pm Sunday (or 4.00 pm Monday if Monday is a public holiday) on the Father’s Day weekend in addition to the time prescribed by Order 6(a) and changeovers on that weekends shall occur by the father collecting the child from school at the start of the time and returning him to the mother’s at the end of the time at McDonald’s Restaurant, V Street, G Town.
8.The changeovers at the start and end of the child’s holiday time with the father (as prescribed by Orders 6(c) to 6(g) above), shall occur at the H Roadhouse.
9.For the purpose of facilitating the changeovers which occur during the child’s holiday time with the father, each parent shall use the TalkingParents application website to advise the other, no less than ninety (90) minutes before changeover is to occur, of their current location.
10.Each parent is at liberty to have a person other than themselves collect the child at the commencement of his time with that parent, or to return him to the other parent at the conclusion of such time, provided that:
(a)any such person is known to the child; and
(b)the parent having someone other than themselves attend the particular changeover informs the other parent by message sent using the TalkingParents application website no less than forty-eight (48) hours prior to the changeover, of the name and contact phone number of the person who shall attend at changeover on that parent’s behalf; and
(c)no less than forty-eight (48) hours prior to the changeover, the parent having someone other than themselves attend the particular changeover provide the other parent with a photograph of the person attending at changeover on that parent’s behalf.
11.Each parent is at liberty to communicate with the child, when he is not in their care, by telephone, Skype, FaceTime or other similar facility (the communication) between 7.30 pm and 8.00 pm (or such other time as agreed by the parents in writing):
(a)each Tuesday and Thursday; and
(b)on the child’s birthday; and
(c)on the parent’s birthday; and
(d)on Christmas Day; and
(e)on Easter Sunday.
12.For the purpose of facilitating the communication referred to in Order 11:
(a)each parent shall keep the other advised of a mobile phone number to be used to contact the child and, in the event of any change to the same, advise the other of this within forty-eight (48) hours of the change occurring; and
(b)the parent with whom the child is not spending time shall initiate the communication; and
(c)the parent in whose care the child is at that time shall make the child available to receive the communication; and
(d)the parent in whose care the child is at that time shall arrange for the child to contact the calling parent on the following night if, for any unforeseen circumstance, the child misses the communication from that parent; and
(e)each parent shall ensure that the child has privacy during the communication.
13.During the time the child spends time with or communicates with either 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; and
(b)speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence 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 or presence of the child; and
(d)if a third party is denigrating the other parent in the presence of, or within hearing of, the child: take all reasonable steps to remove the child from that location; and
(e)refrain from swearing at the child.
14.Pursuant to s 68B of the Family Law Act 1975 (Cth):
(a)the parents are each restrained and an injunction issues restraining each of them from using physical discipline to discipline the child; and
(b)the parents are each restrained and an injunction issue restraining them from providing the child with any of the documents used in these proceedings or allowing him to read the content of the same; and
(c)the mother is restrained and an injunction is issued restraining her from changing the child’s surname or using any surname other than “Antony” to refer to the child or permitting any other person, institution or authority to use a surname other than “Antony” to refer to the child; and
(d)the mother is restrained and an injunction is issued restraining her, unless it is otherwise agreed between the parents in writing, from removing the child from school or causing him to attend at school other than by attending on an in-person basis.
15.The mother shall continue to attend on Mr BB or such other suitably qualified therapist as he may recommend.
16.Unless otherwise agreed by the parents in writing, each parent shall do all acts and sign all documents necessary to ensure that the child attend CC School from the start of Term 1 in 2024 until the completion of his secondary education.
17.Subject to any restrictions imposed by the school, both parents are at liberty to attend any school event at which parents would ordinarily attend such as, but not limited to: speech nights; parent-teacher interviews; sports events; swimming carnivals and fetes.
18.Subject to any restrictions imposed by any extra-curricular service provider upon whom the child attends, both parents are at liberty to attend the child’s extra-curricular activities.
19.Neither parent shall enrol the child in any activity which occurs during time that the child is living or spending time with the other parent without first obtaining the written consent of that parent.
20.Each parent shall keep the other informed of the contact details of the child’s doctors, health care and other treatment providers and of the contact details of any school, educational facility or extra-curricular activity provider at which the child attends.
21.Each parent shall inform the other as soon as is reasonably practicable of any chronic medical condition, significant health issue or illness suffered by the child and, in the event of the child being admitted to hospital for emergency treatment or being taken to a medical practitioner for urgent treatment following any accident, injury or sudden illness, shall immediately, by the best means available, notify the other parent of the following details:
(a)the name and contact details of the medical professional administering the treatment; and
(b)the medical or other complaints for which the child was taken to the medical professional; and
(c)any treatment and/or medication prescribed for or provided to the child and the reasons for the same; and
(d)if the child is admitted to hospital: the name and contact details of that hospital.
22.In the event that the child is admitted to hospital, both parents are at liberty, subject to any restrictions imposed by the hospital, to visit the child during his admission to hospital.
23.By this Order, any treating medical practitioner is hereby authorised to release to both parents such medical information about any medical emergency, significant health issue or significant illness suffered by the child as they are lawfully able to provide about the child.
24.By this Order, any school, educational facility or extra-curricular activity provider at which the child attends is authorised to provide each parent with such information as they are lawfully able to provide about the child and his progress.
25.If there is a cost associated with the provision of any information or documents by the child’s doctors, health care and other treatment providers or school, educational facility or extra-curricular activity providers, that expense shall be borne by the parent requesting the information.
26.Each parent shall keep the other parent informed at all times of their residential address, a contact telephone number and an email address and shall:
(a)notify the other as to any change in those details as soon as practicable after such change and no later than after forty-eight (48) hours of the same; and
(b)notify the other parent at least sixty (60) days prior to relocating their residence beyond a fifty (50) kilometre radius from where they currently reside.
27.Unless otherwise agreed between the parents in writing, they shall, save for in emergency situations, communicate with each other about the child via the TalkingParents application website.
28.Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the child, nor involve the child in any discussions regarding any issue in dispute between them and each parent shall take all reasonable steps to remove the child from any such discussion if instituted by any third party.
29.Should the parents be unable to agree in the future about any significant parenting matters, then the process to be used for resolving disputes about the same and to resolve any disputes about the terms or operation of these Orders shall be as follows:
(a)the parents will consult with a Family Dispute Resolution Practitioner (FDRP) via DD Services or a private practitioner to assist with resolving any dispute or reaching agreement about changes to be made; and
(b)the parents will pay the costs (if any) of the FDRP equally; and
(c)in the event that the parents cannot agree upon the FDRP, then the mother will nominate three (3) practitioners and advise the father in writing of the details of each practitioner’s fees, experience and availability; and
(d)the father shall, within seven (7) days of receipt of her list, choose one of the practitioners from the mother’s list; and
(e)in the event that the father fails to choose a practitioner within seven (7) days, the mother may choose a practitioner; and
(f)whichever way the practitioner is chosen, the father shall arrange for an initial appointment for the parents to attend upon that practitioner as soon as possible and shall notify the mother of the details of the appointment in writing.
AND IT IS FURTHER ORDERED BY WAY OF FINAL PROPERTY SETTLEMENT THAT
30.Within ninety (90) days of the date of these orders, the father pay the mother the sum of $949,676.87 by payment into the trust account of the mother’s solicitors O’Shea Dyer Solicitors Pty Ltd.
31.In the event the father fails, omits or neglects to comply with Order 30 above, then real property located at B Property, Z Street, AA Town in the State of Queensland, more particularly known as Lot 1 on Survey Plan … , being that land contained in title reference … (the property) shall be offered for sale by private treaty and, for the purpose of this Order:
(a)the property shall be listed for sale by private treaty within 14 days, with such listing to be with a real estate agent agreed between the parties within seven (7) days or, failing agreement, as appointed by the President of the Real Estate Institute of Queensland; and
(b)the listing price will be as agreed between the parties or, in the absence of agreement reached within the time prescribed for the listing for sale of the property, such price as nominated by a valuer jointly engaged by the parties or, in the event of a disagreement about the valuer, as nominated by the president of the Queensland division of the Australian Institute of Valuers and Land Administrators (Inc); and
(c)each party shall co-operate in every way with the selling agent including by:
(i)allowing inspection of the property at all reasonable times requested by the agent; and
(ii)ensuring that the property is in a neat and clean condition at the time of any inspection undertaken by the agent and prospective purchasers; and
(iii)assigning all documents that the agent may request which relate to the listing for sale of the property, other than a contract or agreement for sale which has not been authorised by the parties respective solicitors.
(d)the father shall execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price agreed between the parties or, failing agreement as to price, at any price at or above the price nominated by the valuer appointed pursuant to Order 30(b); and
(e)the parents shall jointly instruct a solicitor as agreed to have the conduct of the sale of the property and, in the event that they are unable to agree about the solicitor to be appointed then the solicitor shall be as nominated by the President for the time being of the Law Society of Queensland; and
(f)neither party may confer on any agent, without the consent of the other party, any right to any sole or exclusive agency in respect of the property or to any commission payable in respect of the sale of the same; and
(g)if the agent certifies in writing to the parties’ solicitors it is reasonably necessary for the work specified in such notice to be carried out to the property so as to assist in effecting a sale and provided the cost of any such work is less than $10,000, the father may cause such work to be carried out and the costs of the work shall be recoverable by him from the proceeds of sale; and
(h)in the event the property is not sold by private treaty within six (6) months, or such other time frame as agreed between the parties in writing:
(i)the parties shall list the property for sale by public auction with the agent appointed pursuant to Order 30(a) of these Orders; and
(ii)the reserve price for the purpose of such auction shall be such as the parties agree upon within fourteen (14) days after the date upon which the property is first listed for sale in accordance with Order 30(a) of these Orders or in the absence of agreement a price determined by the valuer appointed pursuant to Order 30(b) of these Orders; and
(iii)in the event the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the property at a price which is not more than 5% below the reserve price; and
(i)if the property remains unsold, the parties shall do all acts and things and sign all documents necessary to immediately relist the property for sale by public auction again, on a date nominated by the said agent.
32.On settlement of the sale of the property, the proceeds of sale be paid in the following manner and priority:
(a)all costs and expenses of sale including legal costs and disbursements, agents commission, valuer’s fees, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties); and
(b)the amounts required to discharge the mortgage(s) registered number … in favour of Australia and New Zealand Banking Group Limited; and
(c)the amounts required to pay all municipal and water rates outstanding with respect to the property; and
(d)the amount required to repay to the father the cost of carrying out work on the property in relation to work carried out in accordance with Order 30(g) of these Orders; and
(e)the balance then remaining be paid to the parties as follows:
(i)the principal sum of $949,676.87 to the mother to be made payable to the trust account of O’Shea & Dyer Solicitors Pty Ltd together with interest on the principal sum calculated in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 from the date of default of the payment as required by Order 29 until date of payment; and
(ii)the balance to be paid to the father.
33.Unless otherwise specified in these orders and save for the purpose of enforcing the payment of any monies due under them or any subsequent orders:
(a)each party is entitled, to the exclusion of the other, to be the sole legal and beneficial owner of all property (including any choses-in-action) in that party’s possession or under that party’s control, including but not limited to:
(i)any interest held by that party in any real property; and
(ii)any interest in any corporate entity or partnership; and
(iii)any funds standing to the credit of that party in any bank account; and
(iv)any furniture, furnishings and personal effects of whatsoever nature in that party’s possession; and
(v)any entitlement to superannuation.
(b)each party is solely liable for and shall indemnify the other in relation to any liability encumbering any item of property to which that party is entitled pursuant to this Order.
34.The father shall, at his cost, ensure that, within thirty (30) days of the date of this Order:
(a)the following chattels of those particularised in the Amended Initiating Application filed 20 September 2021 are delivered to the mother’s residence at EE Street, Suburb FF in the State of Queensland: item 5.1 (her grandparents paintings); item 5.5 (her father’s brands); item 5.7 (her bridles and other tack equipment); item 5.8 (her mother’s photographs); item 5.9 (her mother’s cookbook); 5.10 (cookbooks gifted to her by her mother); 5.21 (pink antique kitchen hutch); item 5.24 (19 year old mare); item 5.25 (one colt branded GG, green broken); item 5.27 (one Welsh pony); item 5.3 (large antique cream bear and other toys) and three purebred Jersey cows and one heifer; and
(b)if he is able to locate them on the property, the following chattels of those particularised in the Amended Initiating Application filed 20 September 2021 are delivered to the mother’s residence: items 5.2 and 5.3 (sharpening stone and timber block); item 5.4 (her great-grandmother’s heirlooms including a glass urn filled with peacock feathers); item 5.11 (items gifted by deceased grandparents); items 5.14, 5.15 and 5.16 (antique dinner set and cutlery sets); 5.18 (jewellery); items 5.29 and 5.32; with item 5.6 (mother’s father’s saddle); item 5.22 (mother’s great grandmother’s watch) and item 5.28 (mother’s toolbox).
35.In order to facilitate the father’s return of the chattels as required by Order 33, the father shall give the mother no less than fourteen (14) days’ notice in writing of the date and time at which the chattels will be delivered to her residence at EE Street, Suburb FF in the State of Queensland.
36.In the event that either party refuses or neglects to do any act or sign any document required to be done or executed in compliance with the provision of these orders then, pursuant to s 106A of the Family Law Act 1975 (Cth), a Registrar of the Federal Circuit and Family Court of Australia (Division 1) is hereby appointed to execute all deeds are documents in the name of the defaulting party and to do all acts and things necessary to give validity and operation to this Order and the affidavit of the solicitor for the non-defaulting party shall be sufficient evidence of any refusal or neglect to do any act or sign any document required to be done or executed in compliance with the order.
AND IT IS FURTHER ORDERED THAT
37.Each parent and the Independent Children’s Lawyer has leave to provide a copy of the Order made 12 August 2022 and the Reasons for Judgment published in support of the same to the school at which the child attends, to any therapist upon whom the parents and/or the child attend for the purpose of therapy and, if necessary, to the Department of Children, Youth Justice and Multicultural Affairs (by whatever name the Queensland Department is then known), the authority of any State or Territory responsible for child protection and, if necessary, to any member of the Queensland Police Service, the police service of another State or Territory and the Australian Federal Police.
38.Save as is otherwise ordered herein, no party is permitted to use any document provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
39.The father has liberty to apply on the giving of forty-eight (48) hours’ notice in writing in the event that the mother fails to make the child available to spend time with him in accordance with the terms of this Order.
40.The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
IT IS DIRECTED THAT
41.Any application by the father in reliance on the liberty to apply conferred by Order 39 shall, if practicable, be brought immediately to the attention of Hogan J with a view to it being allocated an urgent hearing date.
AND IT IS FURTHER ORDERED THAT
42.All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.
43.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Joyce & Antony has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
These proceedings require the determination of:
(a)those parenting orders which are in the best interests of ten year old X[1] (who is known by both of his parents as “X”); and
(b)the terms of property settlement orders which are, in all the circumstances, just and equitable.
[1] Born in 2012.
Some brief details
X’s mother was born in 1979 and is now 43 years of age. His father was born in 1963 and is now 59 years of age. X’s parents are in dispute about the duration of their cohabitation: they started to live together in either 2009 (on his mother’s account) or 2010 (on his father’s account); married in 2013 (when X was about 13 months old); separated under the one roof in September 2018 (on the father’s account) or separated in September 2019 (on the mother’s account) and divorced in March 2021.
Consequently, theirs was a cohabitation of about either eight years’ duration (as the father contends) or about ten years’ cohabitation (as the mother contends). Whilst the father maintained his position at trial, I think it relevant to note that the contents of notes taken by his psychologist of a consultation which occurred on 26 May 2021 included that the father advised that his relationship had been of a duration that was a little under ten years and that separation occurred in September 2019.[2] Further, when interviewed by Dr P, a psychiatrist who interviewed both parents and prepared a report to assist the Court in its determination of those parenting orders which are in X’s best interests, the father told him that, by mid-2019, the parents were not sharing a bed – an assertion which, it seems to me, carries with it the implicit suggestion that they had continued to do so prior to then. Given these matters, I have been persuaded to conclude that it is more likely than not that that the parents’ cohabitation extended over a period of about ten years.
[2] Exhibit 28B.
X has always lived primarily with his mother. Apart from during a relatively short period of time when Y, his now fifteen year old half-brother, was away at school during the weekdays, he has also always lived with him. Y spends time with his father (Mr HH) largely in accordance with orders to which the mother and Mr HH are parties.
The mother, X and Y (when those children are not spending time with their respective fathers) currently live on a property owned by the maternal grandparents and located about 20 minutes’ drive from G Town. The father lives by himself on B Property (the property), which is located over 300 kilometres from G Town.
X’s father has two adult children from a previous marriage: 37 year old Ms JJ, who lives in LL Town, and 33 year old Mr KK, who lives in City MM. Whilst X has met Mr KK and has spent some time with him when spending time with his father in City MM, he has never met Ms JJ. This is because she and the father are estranged to the point where the father has not met either of her two children (his grandchildren).
X’s mother also has two adult children from a previous relationship: nearly 24 year old Ms NN, who lives in QQ Town, and nearly 22 year old Ms OO, who lives in PP Town. She is estranged from both of them. Whilst seemingly based on Ms OO’s perceptions and more recently reported experiences of the mother’s parenting of her when she was a child, their estrangement appears to have occurred after September 2019; the estrangement between Ms NN and the mother is of longer standing.
The parenting aspect of the proceedings
Interim parenting orders made by consent on 28 February 2020 provided that X live with his mother in G Town and spend time with his father on each alternate weekend (from after school Friday until 6.00 pm on Sunday) and for half of the school holidays and that he communicate with him by telephone on Monday and Thursday evenings. However, following concerns about the impact on X of travelling from G Town to the property and back again each alternate weekend, orders were subsequently made by Baumann J on 30 September 2020 to provide for X to spend time with his father from after school Friday to 6.00 pm on Sunday on two weekends in each school Term. He continues to spend half of the school holidays with his father and to communicate with him by telephone on a regular basis, although that communication has not been without issue or conflict on occasion.
Applicable principles
In these proceedings for a parenting order[3] in relation to X, I may, subject to s 61DA[4] and s 65DAB[5] and Division 6 of Part VII of the Family Law Act 1975 (Cth) (“the Act”), make such parenting order as I think proper.[6] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[7] In deciding whether to make a parenting order, I must regard X’s best interests as the paramount consideration.[8]
[3] Family Law Act 1975 (Cth) s 64B.
[4] Presumption of equal shared parental responsibility.
[5] Parenting plans.
[6] Family Law Act 1975 (Cth) s 65D.
[7] Family Law Act 1975 (Cth) s 60B.
[8] Family Law Act 1975 (Cth) s 60CA and s 65AA.
The matters to which regard must be had in determining those parenting orders which are in X’s best interests are found in s 60CC of the Act. The requirement to “consider” each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[9] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in his best interests; in assessing all of the relevant considerations in arriving at my conclusion about those orders which are in his best interests, I have paid close attention to the evidence given by the parents in their affidavits and when cross-examined, the evidence given by the witnesses (both in their affidavits and when cross-examined) called in the cases of each of the parents and the Independent Children’s Lawyer and the contents of the documents in evidence before me.[10]
[9]See Banks & Banks (2015) FLC 93-637 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).
[10]Including by carefully rereading aspects of the Transcript of the proceedings and having regard to the notes taken contemporaneously during the course of the trial.
I have also considered carefully the contents of the Case Outlines filed in each parent’s case and by the Independent Children’s Lawyer and have reflected upon the thoughtful and helpful oral submissions made by Counsel who appeared for each parent and the Independent Children’s Lawyer.
Competing proposals
Each parent asserted that X’s best interests would be met by living with that parent. Each contended that they should be accorded sole parental responsibility for the major long-term issues relating to X. Each proposed that X should spend significant and substantial time (taking into account the practical difficulties associated with the geographic distance between them) with the other and that such time should include half of the school holidays. Each proposed that X should have the opportunity to communicate regularly with the other parent when not spending time with them and that he should attend a private school for his high school years: the mother contended that he should attend CC School in G Town if he remained living primarily with her, whilst the father contended that he should attend as a weekly boarder at a boarding school in AC Town if he moved to live with him.
Whilst the mother initially advanced orders in terms set out in the Amended Initiating Application filed 20 September 2021 (and repeated in her Case Summary Document filed 13 September 2021), she ultimately adopted the orders proposed by the Independent Children’s Lawyer – other than in relation to the issue of the allocation of parental responsibility. Ms Dart, who appeared for her, also raised a concern about the manner by which the orders sought by the Independent Children’s Lawyer proposed to deal with the issue of the parents’ attendance at those school events or activities to which parents are usually invited.
Whilst the Independent Children’s Lawyer advanced that an order according the parents equal shared parental responsibility was an order that was in X’s best interests, the mother retained her position that she should be accorded sole parental responsibility for the same, albeit with an associated requirement that she seek the father’s input prior to any decision being made and genuinely consider his views.
The Independent Children’s Lawyer proposed orders as outlined in the document provided by Counsel in the course of his submissions. In broad terms, these orders included that X live with his mother in the G Town area, communicate with his father twice each week and spend time with him: for three weekends in every school Term; for half of the school holidays at the end of Terms 1 and 3 each year; for all of the school holidays at the end of Term 2 each year and for the majority of the school holidays at the end of Term 4 each year. As noted, the Independent Children’s Lawyer contended that, despite the conflict and problematic communications between the parents, X’s best interests would be served by an order which accorded his parents equal shared parental responsibility for the major long-term issues relating to him.
The father’s position, as particularised in the Amended Response filed 19 February 2020, was that final orders should be made to accord him sole parental responsibility for the major long‑term decisions for X (without any obligation that he seek the mother’s input in relation to decisions about the same), that X live with him and that he be at liberty to particularise the orders for his time with his mother following the release of the Family Report. At the trial, the father’s primary position was as outlined in the Case Summary Document filed on his behalf on 13 September 2021: namely, by way of broad overview, that he have sole parental responsibility for the major long-term decisions for X (subject to a requirement that he keep the mother informed of decisions made and make a reasonable attempt to obtain her opinion about the same), that X live with him and spend time with his mother for two weekends each school Term and for half of each school holiday period.
Whilst his case did not really include any detailed particulars of the orders he sought in the event that his primary case was unsuccessful, his position was that, in such a scenario, he would seek to be able to spend as much time with X as possible. Further, if the Court was persuaded to take up the Independent Children’s Lawyer proposal about the way in which parental responsibility should be allocated, he sought that detailed orders be made to, in essence, provide the parents with guidance about how to go about making decisions jointly, how to consult each other about any decision to be made about the major long-term issue and how to make a genuine effort to come to a joint decision about it – as they would be required to do if an order was made for them to have equal shared parental responsibility for the major long-term issues relating to X.[11]
[11] Family Law Act 1975 (Cth) ss 65DAC(2) and (3).
Parental credit and the credit of other witnesses generally
Mr Trevino QC, who appeared for the father, urged that I find that the mother was not a witness of credit and that she had lied deliberately on multiple occasions in an attempt to fracture the relationship between X and his father, to advance her own case and to besmirch the father’s character and reputation. He also submitted that I should not accept the mother’s evidence unless it accorded with other independent evidence and that, where the two conflicted, I should prefer the evidence given by his client and the witnesses called in his case to the evidence she gave.
Whilst I certainly accept that, on various occasions, the mother deliberately lied, I am not persuaded that all of her accounts fall into this category. I am not persuaded that I can confidently exclude other aspects of the explanation provided by Dr P (as discussed elsewhere in these Reasons) for her behaviours. I think it much more likely than not that many of the mother’s accounts are an amalgam – some are deliberate lies, some are the consequence of histrionic behaviours, some are the result of confabulation. Given Dr P’s evidence, which I accept in this respect, to the effect that the mother’s complex personality structure does not, of itself, mean that she is incapable of being an effective parent to X and that the relevant focus should be on how X is going in her care and whether he is going okay, it seems unnecessary to me (in determining those parenting orders which are now in X’s best interests) to attempt to dissect aspects of the mother’s conduct more than is expressed throughout these Reasons.
Whilst I have certainly approached the mother’s evidence with significant caution, I am not persuaded that the father has always been completely accurate or truthful in his recounting of events and interactions with others. For example, Dr K did not corroborate his assertion that she had spoken with him about the idea of there being a moratorium over X’s time with his mother if he moved to live with him (her evidence was that she did not recall that and that it was not something she would have suggested to the father); whilst the father’s account was that, when he was interviewed by Dr P, he had proposed that X’s time with his mother be supervised as that suggestion or proposal had arisen after a discussion he had had with Dr K, her evidence was to the effect that she did not recall speaking with the father about that and that her only recollection of the issue of supervised time arising was in the context of the mother’s proposal that X’s time with his father be supervised. Further, his account that Mr RR advised him to contact the Education Department to see what action they could take against the mother following her decision to cease X’s attendance at T School in May 2020 was not supported by Mr RR’s evidence and was not corroborated by any entry in the school records. In addition, the content of his Amended Financial Statement failed, in my view, to clearly record the totality of the income and financial resources available to him via his control of corporate entities and the partnership and his attempt to explain the difference in the livestock numbers he provided to the mother’s solicitors was generally underwhelming.
My significant caution in assessing the mother’s evidence – a caution that is greater than I have generally applied to the father’s evidence – does not mean that I have automatically preferred his evidence to hers whenever the two have conflicted. Both parents, it seemed to me, at times gave evidence in a way which they each considered would benefit themselves and advance their respective cases. Whilst the mother’s evidence was, I consider, rife with examples of this affliction, the father’s evidence when attempting to explain the difference between the livestock numbers he provided on 14 and 17 September 2021 respectively also provided a good example of the same.
Further, I accept the thrust of the submissions made by Ms Dart for the mother to the effect that the fact that the mother was charged with offences of violence against the father in September 2019 does not, of itself, mean that she was not herself the victim of domestic or family violence. In addition, that a parent is a liar does not of itself mean that they do not possess other qualities that permit them to discharge all of the matters associated with being a parent.
I have, after careful reflection, also concluded that there is much force in the submissions made by Ms Dart about the manner in which I should approach and assess the evidence given by Dr K. I was left with the uncomfortable feeling that, in assessing the parents and providing the assessments and opinions contained in her reports, Dr K simply accepted the father’s account of everything without any, or any significant, scepticism: after all, despite being afforded two opportunities to do so during her cross-examination, she was unable to identify anything in the information provided by the parties in which she preferred the account given by the mother to that given by the father. Her evidence in this respect heightened my concern that she had formed an adverse view of the mother very early on in the assessment and, thereafter, proceeded to almost entirely discount her account or version of events. Her comment to the effect that the mother presented herself as a “victim” (seemingly because she asked that the father be removed from the Registry whilst she was there and that she asked that some things she said not be recorded in the report) certainly suggests that, if she did not completely accept the father’s contentions, she was certainly significantly swayed by them.
My concerns were certainly not allayed but, if anything, were further amplified by Dr K’s answers when cross-examined by Ms Dart: in my view she was, on a number of occasions, very quick to rebut suggestions that were critical of the father’s response to a particular situation or his case and to express opinions that were critical of the mother. For example:
(a)when asked whether it was fair to say that the father had presented to her as that he was not at fault for any of the interactions that occurred between himself and the mother, her response was to say that that was “probably true of both of them”; and
(b)when asked about the possibility that, given the father’s very negative view of the mother, X might be exposed to the same if he lived primarily with him, she said that she thought he had the capacity to quarantining his views of the mother from his parenting of the child and that she had not seen any evidence that he had denigrated the mother to X – despite noting in her first report that X told her that he did not like it when “they said nasty things about each other”; and
(c)having said that she had seen significant evidence of the mother denigrating the father to X and having opined that she probably did not have the capacity to quarantine her negative views of him from X, she subsequently agreed that X had not told her directly that his mother had said bad things about his father to him and that she had not observed anything between the mother and X to suggest that she had denigrated the father to him, before saying that she was not saying that the mother had denigrated the father to X but had relied upon the father’s account and Mr HH’s evidence to conclude that there was significant evidence that the mother had denigrated the father to the child, before accepting that there was no evidence from Mr HH that the mother had denigrated the father to X (as opposed to his account of the manner in which she had behaved toward him) and then accepting that she had accepted the father’s assertions that the mother was likely to have denigrated him to X; and
(d)when asked whether she was aware that the father had taken X to the police station in January 2021 because, in essence, having unsuccessfully sought to change the time when he was to return X to his mother’s care, he had not complied with the operative order, she said that she was aware of that “but also of his explanation why that occurred” and, when asked whether she accepted that it was not in X’s interests for his father to have taken him to the police station, her response was “probably not”.
In addition, there was, I consider, significant force in Ms Dart’s submission to the effect that Dr K became something of an advocate for the father’s position. I would have been more hesitant to reach this conclusion had Dr K’s reports proceeded on the basis that she expressed whatever opinions she expressed (for example, in the first report, the opinion that X should move to live with his father) as being conditional on an acceptance of the account provided by, for example, the father. Approaching her assessment by asserting that “if” the father’s account of events was accepted, her opinion would be “[A]” and “if” the mother’s account of events was accepted, her opinion would be “[B]” would have indicated that she brought (and, more importantly, maintained) an open and independent mind to her overall consideration of the data presented to her.
My concerns about the way in which Dr K appeared to, in one sense, take up the father’s case and seek to prosecute it for him are further heightened by the fact that, despite acknowledging when cross-examined by Ms Dart that he had made comments to her that were critical of the mother (although they were not, on her recounting, as strong as his comments to Dr P – which included his view that the mother had no moral compass – or to his own psychologist – which included that the only feelings he had for her were contempt), she did not seem to me to, in her report, to consider specifically the possibility that, if X moved to live with his father, the father might expose him to such views. Her opinion about that issue, already discussed above, was only directly expressed during the course of her cross-examination.
The primary considerations[12]
[12] Family Law Act 1975 (Cth) ss 60CC(2)(a), (b) and (2A).
The Act does not define the term meaningful relationship, nor does it prescribe criteria on which the Court should rely to assess how a child’s parents have, or should have, a meaningful involvement in that child’s life. In McCall & Clark,[13] the Full Court concluded that the preferred interpretation of “benefit to a child of a meaningful relationship” is the prospective approach. Consequently, I am required to consider and weigh the evidence at trial and to determine: whether there is a benefit to X in having a meaningful relationship with each of his parents; and, if so, how, if it is otherwise in his best interests, orders can be framed to ensure that he has a meaningful relationship with both of his parents. If I conclude that there is a benefit to X of having a meaningful relationship with both of his parents – which conclusion does not depend simply on there being a lack of danger of physical or psychological harm to him from time and/or communication with that parent[14] – then I must consider whether such benefit needs to give way to the requirement to protect him from physical or psychological harm.[15]
[13] (2009) FLC 93-405.
[14]Vigano & Desmond (2012) FLC 93-509 at [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
[15]Vigano & Desmond (2012) FLC 93-509 at [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
Despite the significant and wide-ranging criticisms each made of the other in the cases they presented, both of X’s parents have demonstrated – by the terms of the orders each has sought – that each considers there is a benefit to X of having a meaningful relationship with both of them. Their positions in this respect are certainly supported by Dr K’s evidence (which I accept in this respect) to the effect that X needed and wanted to have a relationship with both of his parents.
Despite the concerns that each raised about the prospect of X being exposed to negative, critical and derogatory comments about each of them whilst in the care of the other, both parents advanced that his best interests will be met by spending significant time in the care of the parent with whom he does not primarily live.
Whilst each parent appeared to try to sheet home responsibility to the other for the significant conflict that plagued them in the aftermath of September 2019 and engulfed X to some extent, his position, as recounted to Dr K in early 2020, was clearly that he wanted both of his parents to stop saying things about the other (saying that he did not like it when “they said nasty things about each other”) and for the parental conflict to stop because, at the very least, he felt that he was stuck in the middle of it.
In order to address the risk that, in the future, X might be exposed to negative and critical comments made by one parent about the other, the orders made will require each parent to refrain from making derogatory comments about the other in X’s presence; in order to minimise the risk that X will again be exposed to the type of unacceptable behaviour which occurred at those changeovers when his father brought clothes for him to use and his mother refused to accept them and required him to remove some pieces of them so that they could be returned to his father (as I accept she did), changeovers will, as far as possible, occur at school and, where that is not practicable, in a public place.
One of the father’s significant concerns was that the mother would, in the future, undermine X’s relationship with him – as he contended she attempted to do after September 2019. I think it clear that, in the period between late September 2019 and about April 2020, the mother impeded X’s ability to spend time and communicate with his father. I accept she chose not to tell the father where she and X were living; I accept that she enrolled him in school at SS Town using a name other than that recorded on his Birth Certificate; I accept that, after interim parenting orders were made in February 2020, her actions contributed to the first two visits between X and his father not proceeding in the manner that would have been anticipated following the making of those orders. However, I also accept that, since that time, X has spent time with his father largely in accordance with the terms of the operative interim parenting orders. I also accept Dr K’s assessment of the relationship between X and his father – as recounted in each of the reports she has prepared – as being one in which X wants to spend time with his father, is not anxious or scared of him and enjoys the time that they spend together.
Whilst the end result may well have been different had the father not taken the steps that he did to ensure that X was afforded the opportunity to spend time with him, his actions could not leave the mother in any doubt whatsoever that he values his relationship with X and seeks to play an active part in his upbringing. I certainly accept that this is the case.
Another matter about which the father was significantly concerned was the prospect that the mother’s compliance with the terms of parenting orders would wane once the proceedings were finished and she was no longer under “the spotlight” that is associated with the same. He contended that there was a very real risk that, as she had previously in her interactions with Mr HH about Y’s parenting arrangements, the mother would revert to being oppositional and would fail to implement those terms of a parenting order which provided for X to spend time with him; his contentions included, in essence, that whatever improvements the mother had been able to show in her behaviours toward him, her interactions with X’s school and her relationship with Mr HH were nothing more than contrivances intended to persuade that she had undergone a “road to Damascus” change of position.
The father’s concerns in this respect could not, it seems to me, be considered unwarranted or without foundation. The mother’s past behaviours have, as noted elsewhere in these Reasons, already impeded X’s opportunities to spend time and communicate with his father in the period from late September 2019 until about April 2020. However, the reality is that the mother has complied, since April 2020, with the interim parenting orders which have prescribed X’s time with his father: in fact, when interviewed by Dr P in November 2020, the father told him that the contact arrangements were going well. Further, it seemed to me that the most significant issue associated with the changeovers after April 2020 arose in January 2021 when the father unilaterally changed the time at which X was required, pursuant to the order, to return to his mother’s care.
I accept that the father is very clearly of the view that the mother has been unable to shield X from her negative views of him and that, should X remain living primarily with his mother, as he has done so since the parents separated in September 2019, there will be a risk of psychological harm. It is also very clearly the mother’s position that the father has been unable to shield X from his negative views of her and that the father is overly critical of her to others. I am completely satisfied that both of these parents have, at times, exposed X to their negative view of the other – so much is clear from X’s comments as recorded by Dr K in her June 2020 report (to which reference has already been made).
However, and perhaps despite their earlier actions, X’s account to Dr K when interviewed in August 2021 included that: nothing made him feel sad or angry and he was not worried at the moment but did worry a little at changeovers because there had been arguments there in the past and he did not want them to start again; he was feeling more comfortable with his mother than before and liked it when living with her and he also liked it when living with his father.
Despite the myriad criticisms each parent made about the other, both proposed that, if X lived primarily with them he should spend significant time in the care of the other. Whilst the father’s case included that continuing to live with the mother would place X at an unacceptable risk of suffering physical and psychological harm, he proposed that X spend two weekends each Term and half of each school holiday period with her on the basis that such a parenting regime would sufficiently ameliorate the risk he alleged.
I also note that, whilst the father’s evidence of his direct observations of the mother’s physically abusive behaviours toward X was that, in early 2017, he saw her punish him by hitting him over the back of the head a number of times because he was unable to understand something in his school book, he accepted, when cross-examined, that X had not made any report to Dr K, anyone at his school or anyone in authority to suggest that he was concerned about being physically disciplined by his mother (although he suggested that he thought his son may possibly be too young to be assertive and independent enough to make that type of disclosure to a third party); he also accepted that there was no evidence to suggest that X had recently been physically disciplined by his mother.
The additional considerations
X: his views and the nature of his relationship with each of his parents[16]
[16] Family Law Act 1975 (Cth) ss 60CC(3)(a), (b), (d) and (g).
Despite the comments X made to the family consultant when interviewed in February 2020 for the preparation of the Child Inclusive Conference Memorandum to Court, I have no doubt that he loves his father and seeks to have an ongoing and meaningful relationship with him: so much is, in my view, clearly established by his comments to Dr K when interviewed by her in May 2020 and August 2021.
I accept that, when he was first interviewed by Dr K in May 2020, X’s position was, in essence, that he supposed that the interim parenting arrangement was “okay” – although he disliked the duration of the travel time that was required for him to return to the property on weekends. I accept that, when asked about where he would prefer to live, X said that he could not make that choice. I accept he outlined that changeovers at that time were not good because his mother usually became upset and there had been a lot of yelling: despite this, he denied feeling scared of any person or unsafe around them. I note that Dr K outlined that her observations of X’s interactions with each of his parents demonstrated that he was at ease and physically affectionate toward them (albeit that his exchanges with his mother were also said to have been accompanied by some “tension”) and that she was inclined to think he was comfortable with both of his parents and wanted the conflict between them to end. I also note that she thought it likely that X had some inner turmoil about the ongoing conflict between his parents and that she opined that, if the conflict was permitted to continue, there was a risk he would internalise that he was in some way responsible for it. I accept she thought he appeared settled at his current school and that he had a reasonable relationship with Y.
To the extent that X’s behaviour during his first interview resulted in Dr K forming the impression that the mother had previously encouraged – or, at the very least, failed to correct – him when he made sarcastic comments about his father, it is relevant to note that there was nothing in his behaviour when interviewed in August 2021 to suggest a continuation by the mother of any tacit acceptance of such behaviour.
I accept that, when interviewed by Dr K in August 2021, X told her that he was happy at school, had friends, was not bullied or picked on and had a nice teacher. I accept he told her that he would like to spend three weekends per Term with his father but would not like to travel to the property for these because the travel was too long. I accept he also said that it was good to go to the property during the school holidays.
I accept Dr K’s report, in essence, that X appeared comfortable with each of his parents when she saw them together in August 2021; I accept that she saw nothing in his interactions with either of them at that time to suggest that he felt anxious with either – I accept her account that he joked with each of his parents and I consider that his observed interactions demonstrate that he has a positive attachment to each of them.
The parents: X’s relationship with each of them; their involvement in X’s life; their respective capacities to meet X’s emotional, intellectual and other needs; their attitude to their child and to the responsibilities of parenthood[17]
[17] Family Law Act 1975 (Cth) ss 60CC(3)(b), (c), (ca), (f), (i) and (m).
The mother
It is, I think, necessary to have particular regard to the evidence given by Mr BB (a psychologist upon whom the mother has attended on an on-and-off basis since 2004) and Dr P (a psychiatrist who assessed each of the parents and prepared a report to assist the Court) so that the mother’s actions and behaviours (as discussed elsewhere in these Reasons) may be seen and understood in some context.
Mr BB
Unless otherwise specified I generally accept the evidence given by Mr BB. I accept that he has seen the mother professionally, on and off, since 2004. I accept he initially saw her in late 2004 to assist her to deal with unresolved childhood issues which were said, at that time, to have been exacerbated by her presence in a domestically violent relationship in which she felt fear and anxiety. I accept that a report he authored after the mother attended upon him between about mid-September 2004 and about late January 2005 recounted, amongst other things, that, during the consultations, the mother advised that:
(a)when she was a very young child (around four years of age) she saw her father physically assaulted during a home invasion and thought he was going to be killed – an incident which Mr BB opined could have had enormous impact on her feelings of safety and security at the time; and
(b)she had been sexually assaulted when she was eight years of age and remained able to form a mental picture of that assault; and
(c)she had been deeply affected by the death of a close friend.
The occurrence of these events was not put in issue in the proceedings.
Mr BB‘s report also suggested that, during this tranche of their interactions, the mother discussed issues such as dealing with anger and negative emotions.
I accept that, as at 2005, Mr BB considered that the mother had displayed quite solid symptoms or elements of Post-Traumatic Stress Disorder (“PTSD”). I accept his evidence to the effect that, whilst he was not then prepared to diagnose her as having PTSD, he had told her that he felt that she had symptoms of PTSD.
Whilst I accept Mr BB’s assertion that he felt that, by the end of this tranche of their engagement, the mother seemed generally more self-aware and as having come to terms with her past, such assessment is, of course, relative; I am not persuaded that it should necessarily be regarded as a definitive conclusion that, by that time, the mother had achieved a significant degree of insight into her own behaviours. Many of her subsequent behaviours and certain aspects of her evidence when cross-examined refute the existence of such insight.
Further, whilst the 2005 report also included the assertion that, in November 2004, the mother reported that she was able to catch herself when she was about to fly off the handle and was able to think about consequences before speaking, her subsequent behaviours have made it clear that she has not always been able to contain her reactions when subjected to stressors.
I accept Mr BB’s evidence to the effect that the mother re-engaged with him in about 2011 and that, at that time she attended upon him for about six months. I accept that, because he subsequently changed his employment and that practice did not respond to his request for his notes, he was unable to provide any further detail about the substance of their interactions at that time.
I accept that the mother subsequently re-engaged with Mr BB again in about August/September 2020; it seems likely that, in order to do so, she had to take deliberate steps to seek him out. I accept that, as at the trial, she had seen him on about 20 occasions and that, between about August 2020 and June/July 2021 she mostly engaged with him on a fortnightly basis. I accept her engagement after that was when she felt she needed to speak with him and subject to his availability and that he had seen her during the week before the trial. Whilst his preference was that their sessions would have occurred in-person, a variety of factors meant that this had not been practicable and, consequently, the sessions had occurred via video-link and, later, by telephone.
Mr BB was clearly aware that the mother’s mental health status fluctuates: as I understood his evidence, she moves (in a mood sense) between being highly anxious and stable and lots of things are capable of impacting on, or causing, fluctuations in her mental health. He thought that her mental health remained vulnerable and outlined that she could be anxious at times and could make choices that were “not great”, although he also thought her level of maturity had settled over the previous 15 years. Mr BB’s view included that the mother could have developed various personality traits as a defence mechanism – which I took as meaning, in essence, “as a defence mechanism to the various traumas to which she had been subjected over her life”. His view was that whilst she has various personality vulnerabilities, these were not present to the extent that he would classify them as a disorder. He also thought it possible that, if exposed to psychological stressors, the mother’s anxiety could be triggered – although he also said that he had seen some improvement in her mental health in more recent times.
I accept that Mr BB remains ready and willing to continue to engage therapeutically with the mother into the future; I accept that, if she calls on him in the future as she has in the past, he will continue to provide her with the supportive psychotherapy which he has previously provided. I accept his assessment that such supportive psychotherapy would likely assist the mother to decrease her anxiety responses to psychological stressors. Given this, it is clearly in her interests that she continue to engage with Mr BB, particularly given, as Dr P noted, he appeared to have been able to establish therapeutic rapport with her and provided her with someone with whom she could reality check some of her thoughts, conclusions or proposed actions.
Dr P’s evidence
A noted, Dr P prepared a report (dated 10 June 2021) to assist the Court in the parenting aspect of these proceedings. He did so after interviewing the father on 12 November 2020 and the mother via videoconference on 10 November 2020 and by way of face-to-face interview on 22 April 2021. The mother’s second interview occurred because Dr P was concerned, after reviewing material provided to him, that he had failed to assess her accurately given that the first interview occurred as it did.
I accept Dr P’s evidence about his assessment of the mother during her first interview on 10 November 2020 and that he considered that: there was no evidence of depression or anxiety; there was some hyperbole in her language; there was no evidence of psychosis and no disorder of form of thought; there was no major mental illness in the form of an organic mental state, psychosis, primary mood disorder or anxiety disorder; any previous depressive disorder was in remission; she had traits of a histrionic personality.
I accept Dr P’s recounting that, having perused the documents provided to him, it became clear that the mother had previously suffered significant adversity and trauma (for which she had not seen a psychiatrist) which she had not previously disclosed to him. I accept that, when interviewed for the second time in April 2021, the mother provided Dr P with the information he recorded her as having told him. I accept his assessment, after this interview, that he considered that there was still no evidence of psychosis or an underlying psychotic type condition.
I note that Dr P accepted that the home invasion to which the mother was subjected when a child and her experience of being sexually abused when she was a child were the types of experiences that would give rise to PTSD. I also note, though, that his evidence included that, from his point of view, the traumatic events of the type the mother had described to him were far more likely to have caused damage to personality: his view was that he thought this was what had happened to her and that her personality had been skewed in many ways by her developmental experiences, which he did not limit only to the traumatic events she had experienced.
I also accept his recounting that, unlike the position during his first interview with her, when he interviewed the mother in April 2021 she demonstrated marked changeability in her demeanour and affect and was tangential; I accept his account that she was pleasant but hostile when he challenged her about matters. Again, he concluded that: her affect was not consistent with depression or anxiety; there was no disorder of form of thought other than a degree of circumstantiality and some tangentiality; there was no clear evidence of psychosis and there was nothing to indicate she was suffering from a psychotic disorder.
I accept Dr P’s overall assessment, arrived at on the basis of his interviews with the mother and review of the material outlined in his report, that the mother has a complex and unusual personality configuration. I accept his evidence to the effect that what he described as her unusual thought content (which encompassed the matters to which he was taken when cross-examined by Mr Trevino QC) likely stemmed from her complex personality disturbance and could be regarded or characterised as being: a histrionic exaggeration of what had actually occurred; or, the result of vivid imagination; or, the expression of deceptions with an intent to deceive or enhance her case; or, confabulations (being the production or creation of false or erroneous memories without the intention to deceive) and self-deceptions.
I accept Dr P’s evidence to the effect that he considered that the mother displayed a number of tendencies or personality traits that were seen in paranoid, borderline, narcissistic and histrionic personality types – although he was uncertain about whether she suffered from a psychiatric illness apart from these personality issues. I note that his evidence also included that she may also suffer from an underlying chronic dysthymia or persistent depressive disorder (which he described as a low-grade of depression which fell short of major depression and which was not disabling but tended to be long-term and which waxed and waned over the years according to psychosocial circumstances) and that, if this was present, it may “dip” into major depression at times and could accentuate the problematic personality traits he had identified her as having and which he particularised in his report.
I also note and accept that having had the opportunity to peruse the same, Dr P considered that Mr BB’s recorded observations of his interactions with the mother between early September 2020 and mid-April 2021 were inconsistent with her experiencing a primary disorder of mood over that period of time.
I accept Dr P’s evidence that the mother’s complex personality issues (which, it seemed to me, were also described as “significant vulnerabilities in personality” and “highly problematic personality traits”) and difficulty in a range of personality domains did not mean that she could not be an effective or good parent to X. He also said, and I accept, that her problems with affect regulation may have resolved somewhat over time and that the moderation of problematic personality traits over time was not unusual in a person with personality vulnerabilities as the same could be ameliorated by experience, time and maturity even if they were conceptualised as being “pervasive”.
I accept his evidence to the effect that, at present, the mother appeared to be in a pretty good place psychologically in that she generally presented well (albeit subject to being challenged), was not depressed and appeared to have reasonably good functioning. I also accept his evidence to the effect that neither parent appeared to be able to see things from the other’s point of view.
Whilst Dr P accepted the suggestion made by Mr Trevino QC that it was very possible that the mother’s “unusual thought content” (which encompassed those matters Mr Trevino QC raised with him) was in fact a manifestation of her acting deceptively with an intention to deceive and enhance her case (in which case, Dr P considered that she should be regarded as having a personality trait of “engaging in deception”), I have already expressed my view about this prospect.
Whilst I accept that all of the problematic personality traits identified in the mother have the potential to impact upon her capacity to care for X and have the potential to cause him harm (for example, the harm that would flow to his development if he were exposed, on an ongoing basis, to denigration of his father), I also accept Dr P’s evidence to the effect that what is important to consider is how the mother is looking after X now and whether X is “doing okay”. I note, in this respect, that Dr P’s evidence included that he had not seen any data to indicate that X was not doing okay.
I accept Dr P’s evidence to the effect that he considered it a positive sign that the mother had engaged with Mr BB and, given her complex personality issues, that he had been able to continue in a therapeutic relationship with her. I accept he thought it positive that the mother had managed to discuss some of her difficulties with Mr BB and that it appeared he had provided her with appropriate support. I accept his evidence to the effect that, whilst the mother’s personality configuration is so complex and/or significant it is not actually treatable (in the sense that the supportive psychotherapy in which she engages with Mr BB will not change her basic underlying personality structure), she would be likely to continue to obtain benefits from continuing to consult with Mr BB because he appeared to have provided her with a level of support, understanding, encouragement, reality-testing and, perhaps, advice such that engaging with him probably challenged some of her beliefs and restructured some of her ideas or perceptions.
Even though aspects of the information referred to by Dr P in his report suggested that, in the past, the mother has, on occasion, sought assistance from her general medical practitioner, the hospital and a psychologist other than Mr BB when she felt overwhelmed, my acceptance of Dr P’s evidence to the effect that:
(a)it was likely that the intensity of the mother’s problematic personality traits and associated behaviours would wax and wane over time according to her circumstances and that experiencing crises and life stressors might lead to greater intensity of the same; and
(b)he thought that continuing to work with Mr BB would likely help the mother continue to develop further insight and provide her with further assistance in managing life stressors; and
(c)he would be concerned if the mother ceased her therapeutic engagement with Mr BB,
has persuaded me that it is in X’s best interests (irrespective of the other parenting orders that are made) for the mother to be required, by order, to continue to attend upon Mr BB or such other suitably qualified therapist as he may recommend to her.
I turn now to resolve the disputed issue of the value to be accorded to the identified items on the Balance Sheet. In doing so, I make clear that I consider that findings about the respective credit of each parent are not necessarily relevant to the assessment of their respective contentions about the value which, in the absence of expert evidence, should be attributed to various items of property – a more creditworthy unqualified witness is no more expert than a less-creditworthy unqualified witness because mendacity does not affect expertise.
Item 2 – Plant and equipment; Item 16 – Tandem Trailer
The plant and equipment and the tandem trailer in the father’s possession were not the subject of expert valuation. Instead, the mother asserted the plant and equipment should be accorded a value of an estimated $65,500, whilst the father contended that it be valued at $50,500. This difference arises because each parent attributed different values to the items included within the categorisation of “plant and equipment” – although there is no expert evidence about those values either.
The father’s evidence in support of his contention that the values he asserted should be preferred to the values asserted by the mother was, it seemed to me, limited to asserting that, when the parents started to live together, the plant and equipment had a value of $77,000 (a contention which was, itself, unsupported by expert evidence).
I propose to value each of these items by averaging the values contended for by the parents: consequently, I value the plant and equipment at $58,000 and the trailer at $6,450.
Item 4 – Livestock
The mother asserted that the livestock on the property should be valued at about $1,567,169.85, whilst the father asserted that they should be valued at $1,445,230.85.
The $121,939 difference in the contended-for value arose despite the parties’ jointly engaging Mr AE in 2020 to value the livestock on the property. I accept that, having inspected the livestock on the property in November 2020, Mr AE prepared a report in December 2020. Whilst that report does not form part of the evidence at the trial, it seemed accepted that Mr AE’s methodology involved him assessing the livestock into various categories, then arriving at their weight and then applying either a cents per kilogram or a set dollar value to each of them to arrive at a total value of the herd.
I accept that, in July 2021, the mother’s solicitor wrote to the father’s solicitor to propose that the valuation of the livestock be updated ahead of the trial; I accept that, in August 2021, the father’s solicitor replied to advise, in effect, that the father did not want to pay for Mr AE to attend at the property again but, instead, would provide updated livestock numbers which could be used to update the value attributed to the livestock.
I accept that, on 14 September 2021, the father’s solicitor provided the mother’s solicitor with spreadsheets of “updated livestock numbers” that set out the number of livestock which the father asserted fell into each of the “groups” used by Mr AE when he valued the livestock in 2020: that is, the father (and not Mr AE) was responsible for characterising the livestock into the groups. According to these spreadsheets, the total number of livestock was 1303, of which, relevantly, 308 were in Group 1, 92 were in Group 2 and 155 were in “[Group 3]”; there were none in Group 4. [49]
[49] Exhibit 42A.
I accept that, on 17 September 2021, the father’s solicitor advised the mother’s solicitor that “our client has advised that there was an error in the livestock figures” and that the previously provided spreadsheet was in error. A new spreadsheet was provided. It asserted that the total number of livestock was 1215, of which, relevantly, 131 were in Group 1, 95 were in Group 2 and 155 were in “[Group 3]”; the number of Group 4 livestock was 86. [50]
[50] Exhibit 42B.
I accept that, on 17 September 2021, (the Friday before the trial started) the parents sent further joint correspondence to Mr AE to request that he provide an updated valuation of the livestock on the property. I accept that, on 20 September 2021, Mr AE advised, in effect, that he was unable to value the livestock properly without having first physically inspected them. However, he then authored correspondence, dated 22 September 2021, in which he provided a value of the livestock – based on the information that had been provided on 17 September 2021 (and not on the information provided three days earlier on 14 September 2021) and without him counting the livestock or characterising them himself.
It is in this context that the mother asserted that the livestock should be valued on the basis of the figures provided by the father on 14 September 2021 and the father asserted that they should be valued on the basis of the figures he provided on 17 September 2021.
The father was cross-examined by Ms Dart about the discrepancy in the information he had provided on 14 and 17 September 2021. His evidence included that the spreadsheets that had been provided on 14 September 2021 were copies from his normal record keeping and that he had prepared the figures contained in them from the paddock books which he said were updated any time there were stock movements between paddocks “etcetera”. When asked whether he accepted that the figures he had provided on Friday (which was 14 September 2021) were different to those that he had provided on Tuesday (which was 17 September 2021), he said “I don’t recall exactly”.
The father went on to explain that it had been a very difficult exercise or process; that it had taken him a great deal of time to uncover errors he had made in his calculations, but it all essentially came from the paddock books – he said it was just a matter of him trying to ensure that the livestock would be characterised (whilst he said “reconcile” it seemed to me that that was what he was trying to convey) within (or, I infer, into) the same classes and groups that Mr AE had used when he did his valuation in 2020.
Whilst this aspect of the father’s evidence may have explained the discrepancies in the characterisation of livestock into different groupings across the 14 September 2021 information and the 17 September 2021 information, it does not seem to me to account for the fact that the total number of livestock asserted on 17 September 2021 was 88 head less than the total number asserted on 14 September 2021.
When asked to address the difference between the 308 Group 1 livestock advised on 14 September 2021 and the 131 Group 1 livestock advised on 17 September 2021, the father first said that what he had actually done was double count “I think those cows, [Group 3] or – or something along those lines. I – had inadvertently double counted a – that particular group”. When asked to explain how, if he had double counted the livestock, the number went from 308 to 131, his evidence was that he may have “reassessed” because the “[Group 3 livestock]” was an estimation he had done “just one evening” and, since then, he had driven around the paddock and thought that perhaps he may have overestimated those numbers. The difficulty in the father’s explanation insofar as it relates to “[Group 3 livestock]” is that the number of livestock in this category did not change between the information provided on 14 September 2021 and that provided on 17 September 2021: each set of data asserted the existence of 155 “[Group 3 livestock]”.
I found the father’s attempts to explain the decrease in the number of livestock in the herd between the figures he asserted on 14 September 2021 and the figures he asserted on 17 September 2021 unconvincing, especially given his clear evidence that he had taken the information contained within the data provided on 14 September 2021 from the paddock books.
I think it much more likely than not that, having estimated the numbers provided on 14 September 2021, the father simply re-estimated or, to use his term, “reassessed” the same in a manner that was advantageous to him.
Given his evidence that the data conveyed on 14 September 2021 was sourced in the paddock books, I intend to value the livestock according to the numbers provided on that day. Consequently I find the livestock to have a value of $1,567,169.85.
Item 5 – Motor Vehicle 1
There is no expert evidence to establish the value of this property. According to the joint Balance Sheet, it is owned by the father; it was not included in the items identified by Mr Trevino QC as being property of the mother to which regard should be had for the purposes of calculating the cash amount that the father will be required to pay to her.
The father contends that this vehicle should be valued at $4,500. Given the mother’s evidence about the advice she received from a mechanic in April 2020 about the vehicle (which was that she had been told it was then valued at $4,000 or $5,000) this seems to be a reasonable proposition and I accept it.
Accordingly, I attribute a value of $4,500 to this vehicle.
Item 7 – Motor Vehicle 2
There is no expert evidence to establish the value of this vehicle, which is owned by the father. He attributes it a value of $9,000, whilst the mother asserts that it should be valued at $14,000. According to the notes to the joint Balance Sheet filed 8 October 2021:
(a)the rationale for the father’s asserted value is that: he paid $13,000 for the vehicle when he purchased it on 31 October 2018; there is a panel which needs to be repaired and, according to Redbook, its value range is $9,800 to $12,000; and
(b)the rationale for the mother’s asserted value is that: she contends the father has modified the vehicle in a way that adds to its value and Redbook suggests a value range of $15,200 to $18,100 (for a private sale) or $11,300 to $14,200 (for a trade in).
I intend to value the vehicle at $11,500, which I arrive at by averaging the values contended for by each party, noting that this amount is within the range of value contended for by the father and also within the range contended for by the mother if the vehicle was traded in.
Item 8 – Motor Vehicle 3
Whilst the father sought to include this vehicle in the list of property of the parents for the purpose of these proceedings, it is registered in the name of the maternal grandfather.[51] The father’s proposition was that, because, prior to separation the mother used about $6,196 from his cheque account to pay for repairs to it, the Court should regard it as property of the parents and use the sum spent to represent its value.
[51] Affidavit of the father filed 27 August 2021, paragraph 149.
I decline to adopt that course. On the evidence before me, this vehicle belongs to the maternal grandfather. I note the submissions made by Mr Trevino QC that I should assess the contributions of the parents prior to separation as equal – and it seems to me that the payment of funds towards the maintenance of this vehicle prior to separation falls squarely within the assessment of contributions made during cohabitation. In addition, I also note the unchallenged evidence given by Ms F Joyce (the maternal grandmother) to the effect that she and the paternal grandfather provided assistance to the parents during the cohabitation: for example, they sent two of their staff to assist on the property for three months (at their cost) after a natural disaster and they gifted some farm equipment. Whilst there is no evidence to quantify the value of these contributions (arguably made as a consequence of their daughter being in a relationship with the father), it seems to me to be quite possible that they would go a fair way to, in one sense, offsetting the approximately $6,000 spent on repairs.
Item 9 – Farm Vehicle 1
The father said the mother took this vehicle (which both parents accorded, in the joint Balance Sheet, an estimated value of $8,000) and other items (including a trailer and some tools and equipment) with her when she left the property. Whilst the trailer is included in the joint Balance Sheet as property within his possession, he said he did not know what happened to the vehicle and that he had to buy a 2019 model to replace it. His position was that whatever amount he was required to pay to the mother should be calculated on the basis that she has the value of the 2018 vehicle.
The mother said the 2018 vehicle remained in the father’s possession. Whilst she initially contended that a value should be attributed to it, Ms Dart’s submissions included that, as there was no evidence that the vehicle was still in existence, no value should be attributed to it for the purpose of calculating the nett value of the property of the parents.
Ms OO’s evidence included that, following separation, the mother brought a number of items, including Farm Vehicle 1, to where she was living.[52] Whilst she said that the mother later collected some of these items in the company of other people, she also said that, after she contacted the father and told him what had happened, she thought he contacted those people to collect “the gear”. Unfortunately, her evidence did not particularise the property the mother collected from her residence or her understanding of what exactly “the gear” she understood the father to have collected encompassed.
[52] Affidavit of Ms OO filed 27 August 2021, paragraph 64(c).
The 2021 Financial Statements relating to the father personally, AG Pty Ltd (the entity through which the father operates his business) and the partnership between the father and AG Pty Ltd do not contain any mention of Farm Vehicle 2. This absence causes me some doubt about the father’s evidence that he purchased a 2019 Farm Vehicle 2 to replace the 2018 vehicle as I think it highly unlikely, given the nature of the vehicle, that it would not be included somewhere in these books of account so that it could be depreciated and this appropriately recorded.
The combination of this doubt and Ms OO’s evidence – which seems to me to be to the effect that each of the parents collected some property that she had been asked by the mother to store – and her evidence that her mother sent her a text in late January 2020 which included the statement “if you were behind [Mr AJ] getting a call from the father you better leave”[53] and that I think it highly unlikely that the father – who has worked long and hard to accumulate the property that he has and who clearly is a person who retains vehicles irrespective of their age – would not try to recover a vehicle like Farm Vehicle 1, has left me to conclude that the father has not discharged the burden of proving that the mother retained the vehicle after separation.
[53] Long form version of the abbreviated text.
Similarly, whilst having the doubts I have expressed, I am not prepared to positively find that the father currently has the vehicle. Consequently, and whilst others may well disagree, I decline to include this vehicle in list of the property of the parents for the purpose of these proceedings.
Item 10 – the father’s household contents (not otherwise included elsewhere and including items belonging to the mother which remain at the property); Item 11 – the mother’s household contents
The household contents at the property have not been the subject of expert valuation. The household contents in the mother’s possession have not been the subject of expert valuation.
The mother attributed a value of an estimated $50,000 to the household contents of the two bedroom house on the property (noting that this value included chattels which she sought the father return to her), whilst the father attributed them a value of an estimated $3,000. She attributed a value of $500 to the value of her household contents, whilst the father attributed a value of $3,200 to the same.
Given that the mother seeks the return of certain chattels (about which more is said later) and that, if some items are returned to her it will be impossible to determine the value of those that are left with the father – and the value of those that she receives – and that there is no expert evidence to establish the value of the household contents under the control of each of the parents, I consider the most appropriate and just course is that I adopt the figures suggested by each party as representing the value of their household items: that is, I value the household contents in the mother’s possession at $500 and the household contents in the father’s possession at $3,000.
Item 33 – the mother’s unsecured personal loans from friends
Ms Dart conceded during her submissions that there was no evidence before the Court about the amounts the mother said she had borrowed from friends. Given the absence of evidence and that whatever funds were borrowed by the mother were borrowed after the parental separation and applied by her for her own purposes, I am not persuaded that it is appropriate to regard the same as liabilities of the parents for the purpose of calculating the nett value of their property.
Item 34 – the mother’s unpaid legal fees
As noted elsewhere, Mr Trevino QC submitted that the amounts paid to meet the parents’ legal fees should not be notionally added back for the purpose of determining the nett value of the property of the parents. Consistent with this approach, he also submitted that any amounts outstanding in relation to unpaid legal fees should not be regarded as a liability for the purpose of determining the nett value of the property of the parties. In addition, Ms Dart conceded that the amounts which her client owes by way of unpaid legal fees relate to proceedings in the criminal jurisdiction as well as in this jurisdiction; there is no evidence by which any apportionment could be made.
In the circumstances, I decline to include the mother’s unpaid legal fees for the purpose of determining the nett value of the property of the parties.
Comments about bank accounts, credit cards and the Super Fund 1 Policy
I note that, during her submissions, Ms Dart advised that the mother accepted the figures advanced by the father for various bank accounts held by him (being items 18, 23 and 24 on the joint Balance Sheet filed on 8 October 2021).
Whilst the joint Balance Sheet recorded a difference of 14 cents in the value each parent contended should be attributed to one of the father’s bank accounts (Item 19), this difference was resolved by my decision to exclude cents from my valuation of the property of the parents.
The parents differ in the value each contends should be attributed to the father’s Super Fund 1 Policy (Item 15): the mother contends that the cash surrender value is about $21,367 whilst the father contends that it is about $20,918.[54] Whilst there is no evidence to explain this difference, I think it appropriate and just to adopt the value asserted by the father because, given the value of his property and entitlement to superannuation, it seems highly unlikely that he will ever in fact surrender the policy.
[54] Which accords with the value ascribed to the same in the father’s Financial Statement filed 19 September 2021.
Given that it seems to me to be more likely than not that the balance on the father’s credit card (Item 37) has been incurred by him after the parental separation, I am not persuaded that it is appropriate or just that the same be included as a liability for the purposes of determining the nett value of the property of the parents.
Conclusions about the property of the parties and its value
The effect of the various concessions made, agreements reached and the findings I have expressed above finds expression in the table below. Consequently, the existing interests of the parties in existing property and the value of the same as at the date of trial is as follows:
| Item | Ownership | Description | Value | |
| ASSETS | ||||
| 1. | Father | B Property | $3,000,000.00 | |
| 2. | Father | Plant and Equipment: Tractor, Truck 1, Truck 2, Motor Vehicle 1 (unregistered) (nil) – unregistered, farm equipment, Farm Vehicle 2 (purchased post separation) | $58,000 | |
| 3. | Father | Aircraft | E$240,000.00 | |
| 4. | Father | Livestock | $1,567,169.85 | |
| 5. | Father | Motor Vehicle 1 | $4,500.00 | |
| 6. | Father | Motor Vehicle 2 | E$9,750.00 | |
| 7. | Father | Motor Vehicle 4 | $11,500 | |
| 8. | Mother | Motor Vehicle 3 | NIL | |
| 9. | Not agreed | Farm Vehicle 1 | NIL | |
| 10. | Father | Household Contents not otherwise included elsewhere (including mother’s items remaining at B Property) | $3,000.00 | |
| 11. | Mother | Household Contents | $500.00 | |
| 12. | Mother | Cash Payment to mother by father | $20,000.00 | |
| 13. | Mother | Further interim Cash Payment to mother by father | $17,000.00 | |
| 14. | Father | Shares in AK Pty Ltd | E$4,550.00 | |
| 15. | Father | Super Fund 1 Policy | E$20,918.00 | |
| 16. | Father | Heavy duty Tandem Trailer | $6,450 | |
| 17. | Father | ANZ Access Advantage Ac ending …36 | NIL | |
| 18. | Father | ANZ account …22 | $5,926.09 | |
| 19. | Father | ANZ Progress Saver Ac ending …86 | $495 | |
| 20. | Father | ANZ Online Saver Ac ending …37 | $2,685.12 | |
| 21. | Father | ANZ Agri Finance Ac ending …99 | $61.35 | |
| 22. | Father | ANZ Agri Finance Ac ending …95 | NIL | |
| 23. | Father | ANZ Business Extra w Overdraft Ac ending …51 | ($96,208.25) | |
| 24. | Father | ANZ Farm Management Term Deposit …48 | NIL | |
| 25. | Father | ANZ Farm Management Term Deposit (29 June 2022) …95 | $100,000.00 | |
| 26. | Father | FMD Term Deposit …19 | $100,000.00 | |
| 27. | Mother | AP Bank Ac ending …60 | E$233.36 | |
| 28. | Mother | AP Bank Ac ending …04 | E$0.76 | |
| 29. | Sale proceeds from livestock sales (not otherwise incl in bank a/c) | NK | ||
| Total assets | $5,076,531.28 | |||
| LIABILITIES | ||||
| 32. | Father | Agri Finance Loan ending …67 | $664,156.00 | |
| 33. | Mother | Unsecured personal loans from friends | NIL | |
| 34. | Mother | Unpaid legal fees (AR Lawyers/AV Lawyers) | NIL | |
| 35. | Father | Tax payable as at 30.06.2021 (23,804.04 - 2,277.31) | $21,033.00 | |
| 36. | Est tax on sales since 30.06.21 (120,000 x.30) | $36,000.00 | ||
| 37. | Father | Westpac Black Card ending …11 | NIL | |
| 38. | Father | Business creditors | NIL | |
| Total liabilities | E$721,189.00 | |||
| SUPERANNUATION | ||||
| Member | Name of Fund | Type of Interest | Value | |
| 39. | Father | Super Fund 1 | Accumulation | $33,151.00 |
| 40. | Mother | Super Fund 2 | Accumulation | $0 |
| Total superannuation | $33,151.00 | |||
| TOTAL NETT NON SUPERANNUATION ASSETS | $4,355,342.28 | |||
| TOTAL NETT ASSETS (INCLUDING SUPERANNUATION) | $4,388,493.28 | |||
The s 79(4) considerations
In considering the relevant matters mandated by s 79 of the Act, it must be remembered that:
(c)“community of ownership arising from marriage has no place in the common law”;[55] and
(d)there is no presumption of equality of contribution between parties to a marriage, irrespective of the length of their union;[56] and
(e)the exercise of the discretion conferred must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity.[57]
[55]Stanford v Stanford (2012) 247 CLR 108, [39] citing Hepworth v Hepworth (1963) 110 CLR 309, 317 per Windeyer J.
[56] Mallet v Mallet (1984) 156 CLR 605.
[57] Bevan & Bevan (2013) FLC 93-545 at [73].
The parents’ contributions: initial, during cohabitation and after their separation
It is clear that the father’s initial financial contributions to the property of the parents is overwhelming. The mother’s evidence that, when the parties started to live together, she owned real property located at AQ Town was definitively refuted by the evidence given by Ms F Joyce (the maternal grandmother) that she and her husband (the maternal grandfather) owned the property, were responsible for meeting the loan repayments in relation to it and had rented it to the mother. Consequently, the mother’s property at the time the parties started to live together was a 2004 motor vehicle, five horses, some furniture and whitegoods, jewellery (which she estimated was valued at $20,000) and asserted savings of $10,000.
Mr Trevino QC submitted that the Court would be persuaded that, whatever the nature of the same, the contributions made by the parents during their cohabitation was equal. He also submitted that, whatever the nature of the same, their contributions from their separation until trial were also equal. His submission was that, having regard to this, the Court would be persuaded to assess the mother’s contributions at 7.5 per cent to 10 per cent and the father’s correspondingly.
Ms Dart submitted that, having regard to the evidence about the respective contributions made by the parents, the Court would be persuaded to assess the mother’s contributions at 30 per cent and the father’s at 70 per cent.
Conclusions about contributions
In assessing the contributions made by the parties to a marriage, the Court embarks upon a process involving the exercise of a broad discretion in respect of which reasonable minds may differ. Whilst this process is neither an accounting or mathematical exercise, it does involve a movement from “a qualitative evaluation of contributions to a quantitative reflection of such evaluation” – that is, a “leap” from words to figures.[58]
[58] Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234] per Coleman J.
The appropriate concession as to equality of contributions during the cohabitation and to trial makes it unnecessary, in my view, to descend into particular detail in expressing the conclusions I have reached about the respective contributions of the parties or the manner in which they should be assessed.
Given the duration of the cohabitation as I have found it to be, accepting that it is a leap from “words” to “figures”, noting the relative paucity of the submissions about this issue and accepting that any assessment of contributions in any case is an issue about which minds may reasonably differ, I consider it appropriate to assess contributions as to 12.5 per cent in the mother’s favour and 87.5 per cent in the father’s favour.
The assessment of contributions in this manner would see the father have property valued at $3,839,931.62 and the mother have property valued at $548,561.66 – a disparity of $3,291,369.96.
None of the orders proposed by either party will have any effect on the earning capacity of either party.
Relevant s 75(2) matters
The mother is currently 43 years of age; she is studying a course which will take her about six years to complete and is currently supported by Centrelink payments. The father is currently 59 years of age; he continues to work on the property as he has done for all of his life and has been assessed to pay, currently, $167.76 per week by way of child support.
Whilst the mother asserts that she suffers from a number of health issues which adversely affect her capacity to engage in remunerative employment, her decision to study appears intended to remedy this position. I also accept though, as the father did, that she lives in a fairly remote place which has a relatively small population and therefore affords her very limited employment opportunities, especially given that the same would be required to fit around her care of X and Y.
Whilst the father will, as a consequence of the parenting orders to be made, be required to care for X on about three weekends each school Term and for the majority of the school holiday periods, the mother be left to discharge the day-to-day responsibilities of parenting a 10-year-old during all of the school weeks: a matter which, it seems to me, will likely further impact upon her ability to exercise her income earning capacity. Whilst father will, as a consequence of the terms of the parenting orders, be required to undertake the vast majority of the travel associated with X spending time with him during school Terms, the mother will be required to bear the cost of her participation in that for the changeovers associated with school holidays. In addition, if, as seems more likely than not given his overall approach to matters of finance, the father takes up the issue of the costs associated with his travel to spend time with X in any future child support assessment that may issue, it seems to me to more likely than not that the child support he will be assessed to pay will decrease in amount rather than increase.
Whilst the father has ailments, they seem to me to be of the nature to be expected in a person who has engaged in fairly heavy manual work over a long period of time. Whilst he is clearly closer to the notional retirement age of 65 years than the mother is, I am not necessarily persuaded that it is more likely than not that he will cease working on the property in the immediate future or at any time that can confidently be predicted. I also note his evidence to the effect that his intention is to employ a farm hand to assist him to complete some of the work needed to continue to run the property into the future.
Even noting the significant age difference between the parents and the consequence that the father is closer to the notional retirement age than the mother, I consider that it is much more likely than not that his future financial position (including his income) will be significantly superior to hers; he has available to him the income from the property (however the same is now challenged for tax minimisation purposes) as well as the income he obtains from operating his business; even accepting as I do that he may well be required to cease his business activities before he is incapable – especially with the assistance of an employed farm hand – to continue to work the property, his future financial position seems to me to be more likely than not to be significantly better – and certainly more secure – than the financial position which awaits the mother into the foreseeable future. In addition, whilst the value of his entitlement to superannuation is modest, the mother has no superannuation and her prospects of addressing this through paid employment in the future seem relatively limited for the reasons outlined above.
Conclusions as to s 75(2) factors
Mr Trevino QC submitted that, having balanced all of the relevant s 75(2) considerations, the Court would be persuaded that an adjustment in the mother’s favour of about 2.5 per cent would properly and appropriately reflect the same. Ms Dart submitted that an appropriate adjustment in the mothers favour would be 5 per cent (albeit that that must, of course, be considered in the context of her earlier submission that contributions would be assessed 30 per cent to her client).
My conclusions as to the respective contributions of the parties will result in a 75 per cent per cent differential between the parties: the father will receive property and superannuation entitlements valued at $3,291,369.96 more than the property and superannuation entitlements received by the mother.
Given the matters considered pursuant to s 75(2) of the Act, I have concluded that an adjustment of 10 per cent in the mother’s favour is required to do justice and equity in all the circumstances of this case.
Justice and equity of the proposed orders
The consequence of the conclusions outlined above is that, having regard to the parties’ respective contributions to trial and the relevant s 75(2) matters, at the conclusion of a ten year cohabitation that was productive of a now ten year old child, to which he father made overwhelming initial financial contributions and during which each contributed equally (albeit differently) and from which the mother will undertake the discharge of the primary parenting obligations for their child and the father will retain a significantly superior earning capacity and significantly more secure financial future, the mother shall be entitled to the property necessary to see her receive property valued at 22.5 per cent of the total value of the property of the parties ($987,410.99), whilst the father shall be entitled to property valued at 77.5 per cent of the property of the parties ($3,401,082.29).
Given that the mother has property valued at $37,734.12, the father will be required to pay her $949,676.87.
The chattels sought by the mother
As noted earlier, the mother sought that an order be made to require the father to provide her with the chattels particularised under the heading “Delivery of Items” in the Amended Initiating Application filed 20 September 2021.
The father’s evidence when cross-examined about these items was, in essence, as follows:
(a)he agreed to the mother having those items particularised at: item 5.1 (her grandparents paintings); item 5.5 (her father’s brands); item 5.7 (her bridles and other tack equipment); item 5.8 (her mother’s photographs); item 5.9 (her mother’s cookbook); 5.10 (cookbooks gifted to her by her mother); 5.21 (pink antique kitchen hutch); item 5.24 (19 year old mare); item 5.25 (one colt branded GG, green broken); item 5.27 (one Welsh pony); item 5.3 (large antique cream bear and other toys); and
(b)whilst the mother sought, in item 5.23, the return of five purebred Jersey cows, one of them had died and he would return three cows and a heifer; and
(c)he did not know whether the following items were at the property or not (because either he was not familiar with the items, was not sure he could identify them or did not recall coming across them) but, if they are, he agreed that they should be returned to the mother: items 5.2 and 5.3 (sharpening stone and timber block); item 5.4 (her great-grandmother’s heirlooms including a glass urn filled with peacock feathers); item 5.11 (items gifted by deceased grandparents); items 5.14, 5.15 and 5.16 (antique dinner set and cutlery sets); 5.18 (jewellery); items 5.29 and 5.32; and
(d)he did not agree that the mother receive: item 5.13 (a massive tub of Y’s Lego); item 5.2 (one firearm) because he said he had bought it; item 5.26 (one TB bay gelding, bucks).
In addition, the father said that he was unfamiliar with item 5.6 (mother’s father’s saddle); item 5.22 (mother’s great grandmother’s watch) and item 5.28 (mother’s toolbox).
The orders to be made will require the father to return the items listed in paragraph 257(a) and (b) above. He will be required to return those items listed in paragraph 257(c) above and items 5.6, 5.22 and 5.28 if they are located by him on the property. I am not persuaded that it is just and equitable or proper that he be required to provide items 5.13, 5.2 or 5.26 to the mother.
Given the incident in September 2019 at the property and its relative remoteness, it seems to me to be proper that the return of the items by the father to the mother occur on the basis that he make arrangements for the same to be delivered to her residence at EE Street, Suburb FF in the State of Queensland. Further, I consider that it is also appropriate and proper that he be required to pay any costs assisted with the return of these items to that residence.
For the reasons expressed, I am satisfied that, in the circumstances of this case, orders to give effect to these conclusions and as set out at the commencement of these Reasons are just and equitable and that it is appropriate that orders be made adjusting the existing interests of the parents in property in the manner particularised therein.
I certify that the preceding two hundred and sixty-one (261) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 12 August 2022
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