Kalant & Jordain
[2021] FedCFamC1F 319
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kalant & Jordain [2021] FedCFamC1F 319
File number(s): PAC 2727 of 2015 Judgment of: GILL J Date of judgment: 17 December 2021 Catchwords: FAMILY LAW – PARENTING – Application by the father for sole parental responsibility of the child – Parties involved in previous parenting proceedings in the Federal Circuit Court – Where the mother made allegations about the child being abused by the father in the previous proceedings – Where the mother has previously been in breach of court orders to provide the child to the father – Where the mother makes allegations about the child being physically and sexually abused by the father in the current proceeding – Where the mother has made various reports of abuse to the police and child protective services – Whether the mother has encouraged the child to make reports of abuse to third-parties – Whether the child is at risk of harm in the care of the father – Whether the father poses an unacceptable risk of harm to the child – Unacceptable risk not established – Where the child is at risk of psychological and emotional harm in the care of the mother – Enmeshed psychologically and emotionally abusive relationship – Father to have sole parental responsibility of the child – Child to live with the father – Mother to spend supervised time with the child transitioning to unsupervised time – Father to engage a therapist for the child.
FAMILY LAW – PROPERTY – Property adjustment – Property adjustment to be just and equitable – Where the husband purchased a house prior to the commencement of the relationship – Where the husband accrued superannuation and savings prior to the commencement of the relationship – Where the wife asserts she made improvements to the house during the relationship – Where the house was sold prior to the commencement of the trial in these proceedings – Where the parties have accrued unpaid legal fees arising from the proceedings – Husband asserts he supported the wife and her children during the relationship – Where wife made no financial contributions during the relationship – Where the wife has had primary care of the child since separation – Where the husband asserts he has paid child support – Where husband seeks no adjustment of the property – Consideration of the wife’s non-compliance with orders – Where wife seeks an adjustment – Adjustment made in favour of the husband.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 69ZX, 75, 79
Family Law Rules 2004 (Cth) r 11.07
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.01
Cases cited: B & J (2009) FamCAFC 103
Bevan v Bevan (2013) FLC 93-545
Carl Zeis Stiftung v Rayner and Keeler Ltd (No 2) (1967) 1 AC 853
Dickons v Dickons (2012) 50 Fam LR 244
Elmi & Munro (2019) FLC 93-912
Farnell & Farnell (1996) FLC 92-681
In the Marriage of Aleksovski (1996) FLC 92-705
Johnson & Page (2007) 93-344
M v M (1988) 166 CLR 69
Marsden & Winch (No 3) [2007] FamCA 1364
Mazorski v Albright (2007) 37 Fam LR 518
N and S and the Separate Representative (1996) FLC 92-655
Phillips & Hansford (2019) FLC 93-917
Re B (minors) (care proceedings: evidence) [1997] 2 All ER 29
Rice v Asplund (1979) FLC 90-725
Sahrawi & Hadrami [2018] FamCAFC 170
Schorel v Schorel (1990) FLC 92-144
Stanford v Stanford (2012) 247 CLR 108
Division: Division 1 First Instance Number of paragraphs: 422 Date of hearing: 29 November 2021 – 2 December 2021 Place: Canberra Solicitor for the Applicant: Bainbridge Legal Counsel for the Respondent: Mr G Stagg Solicitor for the Respondent: Legal Aid, ACT Solicitor for the Independent Children's Lawyer: Mary Burgess ORDERS
PAC 2727 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KALANT
Applicant
AND: MS JORDAIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
17 DECEMBER 2021
THE COURT ORDERS THAT:
1.All previous orders regarding X born … 2013 (“X”) are discharged.
2.Mr Kalant, the father, shall have sole parental responsibility for X and shall:
(a)keep the mother informed as to with respect to X’s general schooling arrangements, including authorising her to obtain information from X’s school as to her progress and general welfare;
(b)keep the mother informed of the names of all treating GPs, paediatricians or other specialists, and psychologists/counsellors for X; and
(c)keep the mother informed of any significant or chronic health problems affecting X.
3.That the child live with the father.
4.That the child spend time with Ms Jordain (the mother) as follows:
(a)Commencing three months after the date of these Orders for two hours each alternate week, with such time to be supervised at a supervised contact centre at such time and day of the week as may be nominated by the manager of the contact centre;
(b)Commencing 6 months after the date of the first supervised visit pursuant to order 4(a), the child shall spend unsupervised time with the mother from 10:00 am to 5:00 pm each alternate Saturday;
(c)Commencing 12 months after the date of the first supervised visit pursuant to order 4(a), the child shall spend time with the mother:
(i)During gazetted NSW public school terms in the third, sixth and ninth weekends in each school term from 4.00 pm Friday until 5.00 pm Sunday with the mother to collect X from Suburb K McDonalds and the father to collect X at the Suburb L McDonalds at the conclusion of time.
(ii)for the second half of the term gazetted NSW public school holiday period in even numbered years, commencing at 12pm on the middle Saturday and ending at 12 pm on the final Sunday, and the first half of the school holiday period in odd numbered years, commencing at 12 pm on the first Saturday and ending at 12 pm on the middle Sunday, with the mother to collect X from Suburb K McDonalds at the commencement of time and the father to collect X from Suburb L McDonalds at the conclusion of time;
(iii)during the Christmas, summer school holiday period for the first half of the gazetted NSW public school holiday period in even numbered years, commencing at 12 pm on the first Saturday and ending at 12 pm on the 4th Sunday of the holidays, and the second half of the school holiday period in odd numbered years, commencing at 12 pm on the 4th Sunday and ending at 12 pm on the final Sunday of the holidays, with the mother to collect X from Suburb K McDonald’s at the commencement of time and the father to collect X from Suburb L McDonalds at the conclusion of time;
(iv)On the Mother’s Day weekend from 6:00 pm on Saturday until 6:00 pm on Sunday with the mother to collect X from Suburb K McDonald’s at the commencement of time and the father to collect X from Suburb L McDonalds at the conclusion of time.
(d)The parties are at liberty to vary these arrangements by agreement in writing.
5.That the mother shall ensure the father is notified as soon as practicable if, while in her care:
(a)the child is admitted to hospital; and
(b)the child is involved in a medical emergency.
6.That the father and mother notify each other of any change in telephone contact numbers, such notification to be made in writing and within three (3) days of any change.
7.That the father and mother notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.
8.Both parents are restrained from:
(a)physically disciplining X and/or permitting any other person to physically discipline X;
(b)discussing these proceedings with X or in the hearing or presence of X;
(c)speaking about the other parent, member of that parent’s family or household in a denigrating, offensive, or insulting manner in the presence or hearing of X;
(d)both parents shall take all reasonable steps to prevent any other person from speaking in a denigrating, insulting or offensive manner about the other parent, members of the other parent’s family or household or discussing these proceedings in the presence or hearing of X.
9.The father shall nominate in writing to the mother a supervision centre for the purpose of order 4(a) within 14 days of the making of these orders and the mother and father shall thereafter take all necessary steps to complete intake processes to allow the supervised time to commence in accordance with that order.
10.The father shall forthwith engage a psychologist who has experience of high conflict families where there may be issues of abuse and/or alienation for the purpose of obtaining advice as to appropriate therapy for X.
11.A copy of these Orders, the accompanying judgment, and a copy of the report of Dr Q dated 28 June 2021 shall be provided to the psychologist engaged by the father pursuant to Order 10 and the parties are at liberty to also provide such to any therapist engaged by them or for X.
PROPERTY
12.Except as otherwise provided for by these Orders the father shall retain all property in his possession and under his control and the mother shall retain all property in her possession and under her control.
13.The father shall be liable for any debt owed by him including but not limited to credit card liabilities, personal loans, leases and, or, guarantees in his name and he shall indemnify the mother in respect of all such liabilities.
14.The mother shall be liable for any debt owed by her including but not limited to credit card liabilities, personal loans, leases and, or, guarantees in her name and she shall indemnify the father in respect of all such liabilities.
15.The net proceeds of the sale of the Suburb A property held in the trust account of Bainbridge Legal are to be released on the direction of the parties in the following manner:
(a)$111,000 to the mother save that such sum is not released on her direction until:
(i)Any costs application made by the father within 28 days of this judgment is finalised;
(ii)Any application made by the father in relation to the manner of satisfaction of a costs award in his favour from the proceeds of this judgment made by the father within 28 days of this judgment is finalised;
(b)The balance forthwith to the father.
16.The father shall forthwith cause to be served upon TT Lawyers and VV Lawyers a copy of these orders and reasons for judgment, and on the making of any application referred to in Order 15 above, the same.
IT IS NOTED THAT
17.In the event that either TT Lawyers or VV Lawyers seek to be heard in relation to an application made by the father in accordance with Order 15 above then it will be incumbent upon them to file any application in a timely manner.
18.Subject to any order to the contrary the Independent Children's Lawyer is discharged on the expiration of the relevant appeal period in relation to these orders or in relation to any orders relating to Order 15 above, whichever is the later.
IT IS FURTHER ORDERED THAT
19.Within 28 days of the date of these Orders, the parties are to identify what, if any, outstanding applications are to be pressed by providing notice to chambers and in default of such notice being given all outstanding applications are dismissed.
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 a Kalant & Jordain has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
INTRODUCTION
The parties met in 2010, commenced their relationship and then cohabiting in 2011, marrying in 2012. Prior to their relationship the mother had a child, Y, born in 2008, for whom she had and has sole care. X, the child of the parties’ relationship, was born in 2013. The parties separated on 17 February 2015.
The previous proceedings
A contested final hearing took place in 2018 before Judge Tonkin, with judgment being handed down on 5 October 2018.[1]
[1] Kalant & Jordain & Anor [2018] FCCA 2791.
These proceedings concern the property proceedings that were remitted for redetermination and the revisiting of the child-related orders made by Judge Tonkin that were not disturbed by the Full Court.
In general terms, insofar as it concerned the child of the relationship, that judgment provided for the mother to exercise sole parental responsibility subject to a number of conditions regarding consultation with the father about schooling and medical decisions. The father was to spend alternate weekends and time during the school holidays with X, with weekend time during the school term to be reduced to every third weekend in 2020 due to practical considerations regarding travelling to handover.
Since those orders were made, further allegations against the father of harming X, along with repeated instances of the mother’s non-compliance with orders requiring her to facilitate X’s time with the father mean that this case meets the requirements for the conduct of further proceedings as set out in Rice v Asplund (1979) FLC 90-725 and as distilled in Elmi & Munro (2019) FLC 93-912 where the Full Court explained that:
38. The essence of the issue to be determined is whether there has been a material change in circumstances which indicate that it would be in the best interests of the child for there to be a reconsideration of the parenting orders.
The allegations and contraventions are of such significant nature that on their face they are suggestive that the current orders no longer serve X’s best interests and justify this further hearing of the matter.
Evidence and findings from the previous proceedings
In relation to the child-related proceedings the parties sought support for their positions by drawing upon either transcript from the previous trial, or findings made in the previous trial, each admitted pursuant to s 69ZX(3) of the Family Law Act 1975 (Cth) (“the Act”). They did not rely upon the whole of the transcript but rather relied upon portions identified by highlighting the evidence of the parties, as identified at Exhibit C2. While the parties relied upon the highlighted portions only, they accepted that the transcript surrounding such portions was also available to place those aspects in context.
At Exhibit F15 the father identified which of the factual findings of Judge Tonkin that he seeks to rely upon in this hearing. In considering the use of such findings in the current proceedings, it is necessary to identify the legal framework within which they may be used.
Firstly, the admission of the findings into evidence does not involve the application of the principles governing issue estoppel. In B & J (2009) FamCAFC 103, a case where as here a trial court was called upon to determine issues of unacceptable risk following the previous determination of such matters, the Full Court at [93] cited with approval a previous Full Court case of Schorel v Schorel (1990) FLC 92-144 where it had said (at 78,004):
Issue estoppel has at best a very limited application in family law proceedings, for reasons referred to in the above cases. Public policy, upon which estoppel is based, does not support the use of that doctrine within this jurisdiction – at least in its jurisdiction in relation to the custody of children. The Court has a clear obligation to concern itself with the welfare and interests of the child or children concerned and may not allow that duty to be circumscribed by what are basically technical rules of evidence.
Identifying (at [94]) from Carl Zeis Stiftung v Rayner and Keeler Ltd (No 2) (1967) 1 AC 853 that the overriding consideration in the application of an issue estoppel is that it be applied to work justice, the Full Court, however, did not reject the notion that the parties may be considered bound by a previous finding:
95. However, we would also emphasise that it should not be thought that every inconvenient finding of fact can be avoided in later proceedings. We can envisage cases where findings of fact from a previous trial become incontrovertible – apart, perhaps, from an appeal with those findings based on the admission of further evidence on appeal.
The Full Court then at [103] approved comments made by Hale J in the English case Re B (minors) (care proceedings: evidence) [1997] 2 All ER 29, where her Honour identified that although there is no strict rule of issue estoppel binding parties in children’s cases, the Court “undoubtedly has a discretion as to how the inquiry before it is to be conducted” which extends to declining a full hearing on matters even where they may not be covered by the strict rules of issue estoppel. Hale J identified that reliance on previous findings may be justified where a party may concede that a challenge to the findings would be futile, or dependent upon the identification of the evidence on which the findings were based, or where such a course is justified by the systemic and personal burden of rehearing, or due to the delay that would be caused. The discretion was identified by Hale J to conform to the same principle that governs an issue estoppel, that is it “must be applied to work justice and not injustice”. Accordingly, it should also be recognised that the welfare of a child is “unlikely to be served by relying upon determinations of fact which turn out to have been erroneous”, and the importance of the findings within the proceedings should be considered, such that if they are pivotal there is a greater reason to revisit them. Hale J identified as most important that the Court consider “whether there is any reason to think that a rehearing of the issue will result in any different finding”.
Accordingly, while the parties are not bound by an issue estoppel, as a matter of discretion in a child-related case a court may adopt prior findings. This conclusion is consistent with the terms of s 69ZX(3) which provide:
(3) The court may, in child‑related proceedings:
(a) receive into evidence the transcript of evidence in any other proceedings before:
(i)the court; or
(ii)another court; or
(iii)a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
The Act is silent as to the manner in which a subsequent court may use or adopt previous findings. It should be considered that the observations of Hale J provide some useful guidance.
Here there are some further specific features that point to the adoption of findings made by Judge Tonkin. The father has identified at Exhibit F15 the factual findings that he seeks be adopted. On notice of that intention, the parties did not address the conclusions reached by Judge Tonkin either by submissions or by further evidence directed to those findings (save for limited examples set out below from the mother’s case outline document where the mother sought to establish particular factual matters that were rejected in the judgment). To the extent that the mother has led specific evidence about those matters, it can be observed that the evidence led by her did not rise to a higher level than that presented previously to Judge Tonkin and analysed by her in her judgment. A perusal of that judgment makes it plain that of the issues now prosecuted by the mother that were live at the original trial, Judge Tonkin was equipped with more comprehensive evidence than that led at this trial. In a careful factual analysis, Judge Tonkin identified, in a manner that has not been impeached, why the mother should not be accepted in relation to her underlying factual assertions of incidents of abuse, and why those claims should be rejected in favour of the father’s denials of abuse.
In adopting factual findings from that previous judgment a sharp distinction should be drawn between the finding of underlying primary facts, such as whether instances of abuse occurred, and tertiary conclusions being the application of discretion to those factual conclusions. Here much has occurred since the making of the first judgment and while the primary factual findings are of assistance in determining what orders should not be made, previous discretionary determinations about what is best for X are not, they having been superseded by the intervening events.
Where, as here:
(a)the original trial judge demonstrably weighed and assessed the evidence;
(b)reached rational conclusions for which the process of reasoning was disclosed;
(c)there was no effective challenge to the underlying findings by
(i)further cross-examination;
(ii)the introduction of further salient evidence;
(iii)further evidence adding substance to what was considered by the previous judge; or
(iv)the making of submissions to throw a different light on the matters relied upon to reach those findings,
there is good reason to accord such findings full weight.
It might also be observed that the observations of Judge Tonkin as to the mother’s approach to giving evidence resonated with what was seen of the mother in the current trial, giving further reason to adopt the primary findings made by her Honour.
MATERIAL RELIED UPON
The father relied upon the following material[2]:
[2] Father’s case outline document 22 November 2021
(a)Amended Initiating Application filed 20 August 2021;
(b)Financial Statement filed 20 August 2021;
(c)Affidavit of Mr Kalant filed 20 August 2021;
(d)Exhibit K-13;
(e)Affidavit of Ms U filed 23 December 2020;
(f)Affidavit of Ms T filed 22 December 2020;
(g)Affidavit of Dr Q filed 29 June 2021; and
(h)Notice to Admit Facts filed 23 December 2012 (exhibited to Affidavit of Ms V filed 22 November 2021).
The mother relied upon the following material:
(a)Amended response filed 25 October 2021;
(b)Affidavit of Ms Jordain filed 2 August 2021;
(c)Affidavit of Mr W filed 3 August 2021; and
(d)Affidavit of Dr Q filed 29 June 2021.
The Independent Children’s Lawyer (the ICL) relied upon the following material:
(a)Affidavit of Dr Q filed 29 June 2021.
ORDERS SOUGHT
The orders sought by the parties are annexed in full at the conclusion of these reasons. In brief the mother seeks parental responsibility, that X live with her and that X spends regular time with the father. The father seeks parental responsibility subject to some restrictions, that X live with him and that after a hiatus in her time with the mother, that her time gradually move to unsupervised regular time. The ICL seeks that X live with the father, that he have parental responsibility, that there be a hiatus in the time X spends with the mother followed by a graduated move to regular unsupervised time with the mother, the timing of which would be contingent upon the father’s agreement.
PRINCIPLES
The paramount consideration in determining what order should be made is, pursuant to s 60CA of the Act, the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act, and in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.
The objects and principles contained at s 60B provide that:
(1)The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(e) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(f) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(g) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(h) parents should agree about the future parenting of their children; and
(i) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It may be readily recognised that the objects and principles do not all necessarily point in the same direction.
In the light of the objects and principles, in order to determine what is in a child’s best interests, the Court is required to consider the two primary considerations and the additional considerations, to the extent that they arise in a case, as set out at s 60CC. In Phillips & Hansford (2019) FLC 93-917, Strickland, Ainslie-Wallace and Aldridge JJ explained that the considerations in s 60CC are “not a mantra to be recited in every case” (at [43]). Rather, their Honours said that “[o]nly those that are in issue in the proceedings require detailed consideration” (at [43]).
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from being subjected to abuse, neglect or family violence. Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations, that is, protecting the children from abuse, neglect or family violence.
In Marsden & Winch (No 3) [2007] FamCA 1364, Warnick and Thackray JJ observed (at [78]) in relation to both the interplay between the considerations, that a primary judge is:
… of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.
However, they also noted that:
77. … It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
The primary considerations, described as the “twin pillars” upon which the considerations rest by Brown J in Mazorski v Albright (2007) 37 Fam LR 518 at [3], frequently subsume a number of the additional considerations. For example, the additional consideration at s 60CC(3)(j) which concerns family violence involving a child or member of the child’s family will often form a part of the primary consideration relating to the need to protect a child from family violence.
Similarly, and noting Warnick and Thackray JJ’s analysis in Marsden & Winch (No. 3), that the Act places focus, not on meaningful relationship as an end in itself, but rather in terms of the benefits to a particular child of meaningful relationship with a particular parent, the nature of the child’s relationships (s 60CC(3)(b)) and parenting capacity (s 60CC(3)(f)) will often comprise a part of this consideration.
Here the central considerations identified by the parties relate to the issues of risk of harm flowing from each parent, the benefits of meaningful relationship with each parent, the nature of the relationships X has with her father and mother and their capacity to care for her, in particularly emotionally, other important relationships for X, for example with her brother Y, the mother’s partner Mr W and the father's partner, Ms T, family violence, the consequence of a change in X’s circumstances, and the desirability of avoiding future litigation. Any other consideration is of lesser import than these which were in turn absorbed in large part into the analyses of risk of harm and the benefits meaningful relationship.
Of all of the considerations that bear upon a child’s best interests, the statute recognises the relative importance of the protection of children from such harm, and gives emphasis to this as a consideration.
Issues of the consideration of risk arise on the making of assertions or allegations.
The general approach in dealing with allegations is that set out by the Full Court in Sahrawi & Hadrami [2018] FamCAFC 170 where Ryan and Aldridge JJ stated as follows:
39. It is a fundamental principle that a party who asserts facts bears the evidentiary onus or burden of proving them to the requisite standard. It is apparent that the mother failed to do so to the satisfaction of the primary judge. As the evidence adduced in support of the allegations was not accepted, it could not, therefore continue to have a role to play in the fact-finding process.
This reflects the approach generally applied in litigation, but is subject, in cases involving assessing whether a child is at unacceptable risk of harm, to the approach taken by the High Court in the seminal case of M v M (1988) 166 CLR 69 where it was said at 76:
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression … the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.
(Emphasis added, citations removed)
Noting that the objective of the judicial process is to make orders that best promote and protect the interests of the child, the High Court went on to observe (at 75–76) that:
The basic flaw in the appellant’s argument is to identify the allegation of sexual abuse as the paramount issue for determination by the court. In proceedings under Pt VII … the court is enjoined to “regard the welfare of the child as the paramount consideration”… The consequence is that the ultimate and paramount issue to be decided in proceedings for the custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.
The consequence of this was said by the High Court (at 76) to justify a deviation from the usual approach in litigation:
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child … The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
This approach was further explained by the Full Court in Johnson & Page (2007) 93-344 at 81,889:
the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
Further, in Johnson & Page, the Full Court emphasised the non-binary approach, in terms of fact finding, to the question of unacceptable risk, saying at 81,886:
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
(Emphasis added)
In resolving the wider issue, the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.
In N and S and the Separate Representative (1996) FLC 92-655 (“N & S”), Fogarty J observed (as approved in Johnson & Page at 81,888) that the assessment of unacceptable risk is a qualitative analysis, not merely evaluating the risk of the abuse occurring, but also involving assessment of the magnitude of harm to which the risk relates.
The question of unacceptable risk is not resolved by the mere conclusion that the allegations as to the underlying facts pointing to risk have not been established on the balance of probabilities. In Johnson & Page, the Full Court approved (at 81,890) the extra curial writing of the Honourable John Fogarty AM, where he (in part) said:
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
In N & S, consistently with the article quoted above, Fogarty J explained (at 82,715):
There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.
That is, it is the overarching conclusion of unacceptable risk that is to be established on the balance of probabilities.
The approach to assessing such a risk in the absence of positive findings of abuse was addressed in N & S (at 82,713), again as confirmed by Johnson & Page (at 81,888), adopting and expanding upon comments made by the New Zealand Court of Appeal:
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“…
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.”
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
The question remains whether, on the evidence as a whole, there is an unacceptable risk, a question that incorporates both the risk of an event occurring, and the risk of harm associated with such an occurrence. That analysis involves an examination of the factual matters put forward as salient to those questions.
Introduction to the events and matters said to go to risk
The mother says that she is one hundred per cent certain that the father has abused X. Given that, despite the orders pursued by her, the mother asserts that the father presents a risk of harm to X, she was directed to identify in advance of the trial the factual matters that she relies upon in relation to this aspect of her case. Adopting a chronology earlier compiled by the ICL, she identified a number of matters in her case outline document, primarily arising out of the material produced by various agencies, as to the salient matters going to risk.
The mother maintained through the trial that she relied upon the matters listed in her case outline document, although by the end of the trial she added a number of matters flowing from subpoenaed material (either from before the relationship involving the father’s interactions with third parties or before separation involving the father’s interactions with the mother) that she said were demonstrative of the proposition that the father is aggressive.
Where the mother identified an incident or report as part of her case against the father it has been identified below, along with the evidence that was led to support it.
This identification of incidents and reports occurred within a broader context that the mother maintained that the best evidence of risk comes from what X has reported to third parties rather than to the mother. The mother explained that she does not seek details from X when X makes disclosures to her, and that given that the mother was injuncted from making reports herself, she advises X that she should do so by telling trusted people of the matters that she has raised with the mother. That is, the mother has actively encouraged X to make reports to third parties. The mother says that the information given by X to third parties is of greater detail than what she has obtained from X.
In any event, it may be observed that the mother’s accounts of what she has been told by X, or seen in X’s behaviour are opaque and lacking in particularity, depriving her account of probative value in supporting the notion that X has been abused. Similarly, what the mother has said to X when X has spoken of the father, or purportedly alleged abuse, or what the mother has actually said to X to have her make reports to third parties is likewise undisclosed by the mother. The opacity of what has passed between X and the mother is a matter that is to be taken into account in considering the probative worth of what X has said to third parties.
It will be seen that many of the matters identified by the mother where she has purported to rely on a report to a third party as lending cogency to her claims as to risk lacked evidence capable of giving it any probative support.
The events are set out below are generally sequenced in order of the reports being made rather than in the order of the underlying incidents. Much of what is alleged by the mother in her case outline document, and set out below, was merely a repetition of entries in a chronology produced by Children and Youth Protection Services (CYPS) and produced by the father annexed to his affidavit. The chronology and accompanying report is referred to throughout these reasons as the “CYPS Assessment dated 30 April 2020”. This document was annexed to the father’s affidavit at pp. 248–255.
Before descending into the detail of the matters alleged by the mother it is timely to observe that where an incident is merely reliant upon an entry in welfare records, what will lend it probative weight, or deny it probative weight, is the extent to which the record identifies the manner in which the authority became aware of the matter asserted. For example, does the record show that a child has made a representation to a departmental officer, or does someone who knows the child make a representation of what the child has said to that person to a departmental officer? It is information of this nature that may allow a court to place reliance upon a report. Where the report is denuded of such information, and contains a mere description or assertion without any identification of where the information comes from, it is difficult to identify any circumstances that would permit a court to rely upon such, unless it was supported by evidence external to the welfare records.
Relying on records that do not identify how the information recorded has been gleaned is tantamount to inviting the court to engage in a purely speculative exercise. The result, identified below, is that for many of the matters identified by the mother in her case outline document as relied upon to establish risk no weight can be given as those entries are lacking any appreciable probative value.
The ICL, ultimately eschewing the notion that the father presents an unacceptable risk to X, added further matters to those that the mother identified as did the father. In considering those matters it should not be thought that the issues raised by the mother point in just one direction. They, in combination with the mother’s non-compliance with orders, and her conduct in respect of the allegations that she makes, inform the question of whether the mother poses an emotional or psychological risk to X and her development. Hence other matters such as the mother’s non-compliance are also included in the chronology.
The analysis of the various factual matters relied upon by the parties are divided into those from prior to the relationship, during the relationship, after the relationship but prior to the previous judgment by Judge Tonkin, from post that judgment until the mother’s incarceration by this Court in relation to her non-compliance and lastly from then until the trial of the matter.
Allegations regarding the father prior to the relationship
In support of the assertion that the father is aggressive the mother pointed to material produced on subpoena evidencing instances of aggression by the father predating their relationship. The father addressed these in his affidavit and was the subject of cross-examination on these issues, particularly as to inconsistencies in his accounts.
New South Wales (NSW) Police records at Exhibit M2 record an incident between the father and his sister in January 2004 (when the father was seventeen years old) where he assaulted the sister, pulling her hair and threatening to give her a hiding. The paternal grandmother is recorded as having been concerned that the father was then on drugs. The father addressed the incident in his affidavit, admitting the assault upon his sister. He did not excuse his conduct.
NSW Police records at Exhibit M3 record:
(a)In January 2008 the father and a former girlfriend arguing over the breakdown of their relationship, and the father calling the ex-girlfriend names;
(b)In April 2008 a previous girlfriend calling the police as the father prevented her entry to the home (he explained that he would not allow her to re-enter the home as she was drunk). There was no history of violence. The police attended at which point the father denied and then admitted to her presence in the home. They had apparently reconciled; and
(c)The father making annoying and rude, but non-threatening, phone calls to an ex-girlfriend in November 2009, along with undescribed aggression to the girlfriend's parents in relation to the return of a dog.
Little of significance can be gleaned from these records, particularly in the light of the father’s explanations. They do not form a good foundation to establish that the father is by nature aggressive, this being the identified reason for their admission into evidence.
Allegations of conduct during the relationship
Little attention was given during the trial to allegations arising during the relationship, with limited cross-examination being directed to such. Reliance was also placed upon the father’s Notice to Admit Facts, extracts from subpoenaed material, transcript from the proceedings before Judge Tonkin, and findings made by Judge Tonkin.
By her case outline document, the mother relies upon a report on 9 April 2017 of an incident occurring in mid-2013 where she reports “Father changes X’s nappy – X screaming – blood on nappy and vagina – tear between vagina and anus”. This incident is referenced in the chronology to the 30 April 2020 CYPS Assessment where it is recorded that:
when X was 9-months old Mr Kalant changed her nappy alone and there was blood on her nappy and vagina after this and she was heard screaming. Mr Kalant has been observed putting his hand on X’s vulva and thumb between her buttock to hold her.[3]
[3] Annexures to the affidavit of the father filed 20 August 2021, p. 248.
The other references identified by the mother as in support of this incident were not placed into evidence.
Supporting this allegation, in her trial affidavit at [27] the mother asserted that in March 2014 she observed X to be bleeding around her vagina. She said that she had thought that perhaps the father had caused the injury by wiping X a bit roughly, and did not think that the father would deliberately hurt X. On raising it with the father she alleged that he said “fine I won’t change her fucking nappy then.” Some limited cross-examination of the mother from the hearing before Judge Tonkin was also relied upon[4] where the mother explained that she had not reported it as she did not want to believe that it was true, but that she had spoken to forensic psychologists who explained that there was no explanation other than sexual abuse. The evidence of discussions with and opinions from such experts was not produced to the court.
[4] Exhibit C2, p. 204.
As can be seen from the CYPS entry above the bleeding incident was contained in a report not made until 9 April 2017, where it was recorded alongside a report that the father has placed his hand on X’s vulva and his thumb between her buttocks to hold her.
The mother does not include any direct evidence in her affidavit about observing this second aspect, and asserts through her case outline that it was a separate incident reported later on 16 August 2017.
The father was not asked about this in the current proceedings.
These, and the other sexual abuse allegations predating judgment, were dealt with comprehensively in the previous trial before Judge Tonkin. In the context of the concession then made, (and repeated in these proceedings) that no positive finding of sexual abuse was available on the evidence, her Honour went further and characterised the allegations as fabrications, as her Honour dealt with each of the sexual abuse allegations made by the mother.
In relation to the allegation that the father had been observed by the maternal grandmother putting his hand on X’s vulva and thumb between her buttocks, Judge Tonkin found (at [202]) that:
If the above is an allegation of inappropriate sexual contact I reject that evidence in its entirety. Had the maternal grandmother been concerned about the father I have no doubt that she would have raised the matter with the mother or the authorities. The first time the allegation was raised was in her affidavit in family law proceedings. It is apparent from this evidence that the mother and maternal grandmother have discussed the father’s conduct. I formed the view that the mother and maternal grandmother were aligned in their view that X should not spend any time with the father and if they were required to facilitate time, then time should be supervised. I put little weight on this evidence.
Judge Tonkin later reiterated (at [231]):
The mother alleged that the paternal grandmother had observed some inappropriate conduct on the father’s part. This was not put to the paternal grandmother in cross examination. I reject the mother’s assertion that the paternal grandmother observed any untoward behaviour.
Following discussion of further allegations made by the mother in 2017, Judge Tonkin stated (at [216]):
I do not accept the mother’s evidence. I formed a view that the reports of inappropriate sexual touching were yet another attempt by the mother to prevent X spending overnight time with her father.
Judge Tonkin made the following global assessment of the mother’s allegations regarding sexual assault of X:
229. I formed a view that a clear pattern emerged from the mother’s evidence. Allegations of sexual abuse involving X wre raised by the mother just prior to an increase in the father’s time or when the child was due to spend overnight time with the father. The child made no disclosures. She was subjected to a number of investigations by JIRT, CYPS and YYC. I formed the view that the mother was fabricating the allegations.
[…]
233. I find that at no time did the father act in an inappropriate sexual manner towards X nor did he sexually abuse X. I find that the mother fabricated allegations that the father sexually abused the child in an attempt to prevent the father from spending time with the child.
That characterisation was relied upon by the father, and the underlying findings and basis relied upon by her Honour for coming to that conclusion were not traversed in any significant manner, if at all in the current trial. Where, as here, the original trial judge demonstrably weighed and assessed the evidence, reached rational conclusions for which the process of reasoning was disclosed, and where there was no challenge to the underlying findings by further cross-examination or the introduction of further salient evidence, or the making of submissions to throw a different light on the matters relied upon to reach those findings, there is good reason to accord such findings full weight. Where, as here, the original trial judge undertook this task equipped with a broader scope of evidence before her than was placed before me there is added reason to give full weight to those findings. I do so in respect of the sexual abuse allegations arising from the time of the cohabitation.
The mother also pursued allegations of family violence during the relationship being perpetrated upon her by the father.
Exhibit M2 contains notes from a hospital admission of the mother on 27 June 2014, where the mother was “agitated and upset that her husband was going to take her baby from her if she was staying” overnight in the hospital. The mother expressed concern that the father might become angry. A mandatory reporting questionnaire was completed, where the mother asserted that she already had access to “DV services”. A further file note from the hospital records on 28 June 2014 where nursing staff reported to the author that the mother has described the father as very controlling and abusive, mainly verbally. She was recorded as saying that the father had never physically abused anyone at home. On 4 July 2014 the notes record a mandatory report being completed and it was determined to inform the mother’s GP of risk (in relation to the relationship). The GP was called and advised that she would follow up urgently
Exhibit M3 shows the hospital contact with the GP on 4 July 2014 indicating concerns that the father had been observed to be “very abusive towards her” when the mother had to stay overnight, trying to remove the breast-feeding baby from her. This observation was not apparent on the previous hospital notes, as rather it was the mother’s comments that had been recorded, and which had not included a description of the father being very abusive. The GP noted that she would follow up with the mother, observing that the mother had not raised such concerns with her. The GP arranged an appointment with the mother. The mother is recorded on 9 July 2014 to have described the father as having a controlling personality, but being improved since the admission.
More specifically the mother asserts that in December 2014 the father snatched X from her, and grabbed and hurt the mother’s arm, threatening to break it. She refers to Exhibit M3 medical records wherein she asserted that the injury was the result of a fall, but notes that she had previously raised concerns regarding abuse to her GP.
This was the subject of cross-examination in the previous proceedings where it was established that the mother’s description to the court of the incident was inconsistent with the arm that was the subject of examination by x-ray. Her description identified the wrong arm as the subject of injury.[5] The mother had, at the time, described to her GP that the injury as the product of a fall, inconsistently with what is now asserted.
[5] Exhibit C2, p. 192.
The mother also described that the father was financially controlling during the relationship. She accepted that she had access to the account that the father’s pay was deposited into. She however asserted that she was too afraid to withdraw funds from that account and that the father had destroyed her access card, the day after he allegedly injured her arm.[6] The mother was still able to withdraw $10,000 from the account at separation.
[6] Exhibit C2, p. 203–204.
In Exhibit M3 the mother is recorded as telling her GP on 27 January 2015 that the father was emotionally and psychologically abusing the mother, with such being observed by Y. The content or nature of such was not described. The mother was recorded as saying that there was no physical abuse.
At Exhibit M3 the mother is recorded as describing to her GP on 30 January 2015 that she thought the father had bipolar, and that he forced her to say everything was her fault and recorded her doing so, corrected X from calling the mother “mum” rather than “Ms Jordain”. However, the father was not asked about these allegations. The mother is also recorded as expressing that she was worried about the children witnessing the “verbal/physical abuse”.
At Exhibit M3 the mother is recorded as telling her GP on 2 February 2015 that the:
Husband is very controlling, abusive. Unsure, at this stage, if husband can be violent.
The mother explained this (lack of description of violence) was the result of English not being the doctor’s first language.[7] The mother was also recorded as saying that the husband was “trying to forcefully get her to say things and record” but that the mother was planning to leave.
[7] Exhibit C2, p. 195.
The mother says that in about February 2015 the father threatened her that he would do what was necessary to ensure that she never saw the children again if she left him, including causing the children to become wards of the State.[8]
[8] Affidavit of the mother filed 2 August 2021, paragraph 33.
On 17 February 2015 the mother left the home with the children, without notice to the father, removing a significant portion of the household goods. She gave a statement to the police.[9] That statement did not record that the father had been violent to Y,[10] despite the mother’s evidence in the first trial that he had been violent to Y from before their marriage.[11] The statement also conflicted with the mother’s representations to doctors that the father had never been violent to the children, which the mother sought to explain by the children having been present when she spoke with the doctor.[12] Nor did the police statement contain the mother’s subsequent allegation that she had been pushed on many occasions during the relationship by the father. Similarly that allegation was also not made in the mother’s first affidavit, nor in her Notice of Risk document.[13]
[9] Annexures to the affidavit of the mother filed 2 August 2021, Exhibit B.
[10] Exhibit C2, p. 196.
[11] Exhibit C2, pp. 144–145.
[12] Exhibit C2, p. 139.
[13] Exhibit C2, p. 189.
The mother left no contact details with the father, and obtained a provisional Apprehended Violence Order at the Suburb Z Local Court, which was ultimately dismissed at a defended hearing. The mother took the children firstly to BB Town and then the ACT.
Judge Tonkin found in relation to allegations of violence against the mother that
180. I am not satisfied that the father physically abused the mother on 20 December 2014 as alleged by her or that he assaulted her in October 2014 injuring her hip. I am not satisfied that the father physically assaulted the mother at any time prior to 17 February 2015. I have considered whether it is likely that the mother may not have reported her concerns about the father’s violence due to alleged fear of repercussions. I am not satisfied on the evidence that there is any basis for finding that the mother was too afraid to report violence perpetrated by the father. I am satisfied that she had a significant amount of support in the form of her family such that had the father been violent and abusive towards her she would have reported that immediately to her G.P.
Like Judge Tonkin, I do not accept that the father engaged in physical abuse of the mother, nor financial control of the mother. Without doubting that theirs was a difficult relationship I do not accept that the father behaved in a controlling manner toward the father.
Post separation
The father applied to the Federal Circuit Court on 10 June 2015, seeking to spend time with X. At that stage he had spent no time with X since separation.
Orders were subsequently made in April 2016 for supervised time to take place in Suburb AA. By this time the father had not spent time with X for approximately fourteen months.
The mother however said to the father that she could not afford the travel associated with that arrangement and so further orders were then made on 23 August 2016 for supervised time to occur in Canberra, closer to the mother’s home.
It is from the contact between X and the father post separation that the bulk of the allegations of risk are made, however it is also post separation that other allegations were made by the mother about the father from during the relationship, including the allegation that he had sexually assaulted her during the relationship.
The various claims that emerged following separation, as relied upon by the mother in her case outline document are set out below, generally in the order in which the allegations were received and recorded.
The mother firstly relied upon what she described in her case outline as her report of “X withdrawn and uncommunicative after supervised contact”. The mother identified this as having been reported on 10 October 2016. It is evidenced in the 30 April 2020 CYPS Assessment chronology. It is in the following terms:
A Child Concern Report was received in respect of X and Y. The report raised concerns X was withdrawn and non-communicative after returning from supervised contact with her father.[14]
[14] Annexures to the affidavit of the father filed 20 August 2021, p. 248.
This incident was not included in the mother’s affidavit of 2 August 2021 or the annexures to her affidavit. Accordingly it is produced absent any evidence supporting the chronology entry, and does not even identify who might have observed what was reported. The mother is not identified as the observer.
The mere production of a comment or observation that is contained in a child concern report, particularly absent the identification of a source, and reduced to a summary factual assertion, does not lend probative weight to the notion that the father presents a risk to X. The general nature of the assertion, the ambiguity inherent in such an observation, and the inability to discern who has observed or reported such means that it is inadequate to permit the reasonable drawing of any inference. This, it will be seen, was a pattern repeated in respect of many of the matters relied upon by the mother.
The father filed a Contravention Applications alleging the mother failed to allow X to spend time with him on 11 October 2016, 25 October 2016 and 8 November 2016. These were dismissed.
The mother next relied upon her claimed report on 17 October 2016 of “X distressed and mute after contact”. The mother identified this as reported in the chronology of the 30 April 2020 CYPS Assessment in the following terms:
Mr Kalant was having contact with X supervised by the paternal grandmother. It was alleged 3-year old X was very distressed and “mute” after spending time with the father and very frightened and crying about having to go. It was alleged Mr Kalant had been following Ms Jordain in his car and had threatened “you’ll never get X back”.[15]
[15] Annexures to the affidavit of the father filed 20 August 2021, p. 248.
This incident was not included in the mother’s affidavit of 2 August 2021 or the annexures to her affidavit. Again it is absent evidential material capable of supporting what is asserted in that chronology.
The mother relied upon her claimed report of 31 October 2016 that “X regresses to nappies after contact”. The mother identified this as evidenced in the chronology to the 30 April 2020 CYPS Assessment in the following terms:
X has regressed to wearing nappies after spending time with Mr Kalant.[16]
[16] Annexures to the affidavit of the father filed 20 August 2021, p. 249.
This incident was not included in the mother’s affidavit of 2 August 2021 or the annexures to her affidavit. Again it is absent any supportive evidential material capable of giving it any probative value, and should be characterised as an unsourced assertion.
The mother relied upon her claimed report of 31 October 2016 that the father was “sexually abused as a child”, which was referenced in the chronology for the 30 April 2020 CYPS Assessment where it is said that:
Mr Kalant was sexually abused by his father as a child.[17]
[17] Annexures to the affidavit of the father filed 20 August 2021, p. 249.
No evidence was led to support this assertion. This incident was not included in the mother’s affidavit of 2 August 2021 or the annexures to her affidavit.
The mother relied upon her claimed report of 31 October 2016 that the “Father sexually assaulted mother during relationship”, which is referenced in the chronology for the 30 April 2020 CYPS Assessment where it is said that:
Mr Kalant regularly sexually assaulted Ms Jordain during their relationship.[18]
[18] Annexures to the affidavit of the father filed 20 August 2021, p. 249.
Although not included in the mother’s affidavit of 2 August 2021 or the annexures to her affidavit, under cross-examination, the mother said the father raped her. It may be seen to be inconsistent with representations made by the mother to her general practitioner during the relationship, even where the mother was making complaints about the father to her. It was not an allegation made by the mother in her initial statement to police on separation.
The father was not cross-examined in the current proceedings about this matter, but in the previous proceedings denied any non-consensual sexual interactions.
It was, however, an assertion made by the mother in the earlier proceedings before Judge Tonkin, and was dealt with by her Honour at [181]–[188] of her judgment, where she traversed the far more comprehensive evidence that was before her than was placed before this court. Her Honour’s conclusion at [188] was that she was not satisfied that the father at any time sexually assaulted the mother, nor satisfied that he acted in a sexually inappropriate manner toward the mother.
Given the treatment of this issue by her Honour, the scope of evidence before her, and that the evidence in this trial did not effectively undermine her Honour’s reasoning, it is appropriate to adopt her Honour’s conclusion in relation to this issue.
In late 2016 the mother applied for a Family Violence Order in the ACT Magistrates Court against the father. The matter was resolved in mid-2018 by the father giving undertakings on a without admissions basis.[19]
[19] Affidavit of the father filed 20 August 2021, paragraph 51.
The mother relies upon a report recorded on 9 January 2017 of an incident occurring in January 2017 where Mr W’s ex-partner reported “sexualised behaviour by X and Y” towards Mr W’s son, CC. The mother says the incident did not happen. Mr W was questioned about the incident, saying that he was present when the incident occurred, and that what occurred was not sexualised. The incident is referenced in the chronology of the 30 April 2020 CYPS Assessment, and in Dr Q’s report at [187] and [284]. The chronology records that:
X had shown a 3-year old boy (CC) how to masturbate “like an adult” and watched him do it. It was also reported Y had grabbed CC in the crotch and pushed him on the bed and CC said it “felt good” but Y had made him do it.[20]
[20] Annexures to the affidavit of the father filed 20 August 2021, p. 249.
At [187], Dr Q writes that:
According to Ms Jordain, after X returns from time spent with her father, she refuses to ‘go anywhere’, such that X will not leave the house and X aparent [sic] gets undressed so that she cannot be taken out of the house. Ms Jordain is unsure if this behaviour is sexual. I asked Ms Jordain specifically about the allegations that X engaged in sexualised behaviour with Mr W’s son CC. Ms Jordain stated that this allegation is untrue and this behaviour never occurred.
This is not an incident that has any bearing on the current proceedings, particularly given the lack of support for the notion that X behaved in a sexualised manner.
The mother identifies an incident reported on 28 April 2017 (but alleged to have occurred pre-separation) where the “father made threat to kill X – during relationship”. The chronology merely recorded that there were “allegations the father had made threats to kill X”.[21] Although also referenced by the mother, the body of the report does not specifically mention any incident of the father threatening to kill X.
[21] Annexures to the affidavit of the father filed 20 August 2021, p. 250.
At [303] of her report, Dr Q writes “I note the report dated 17 October 2016. This report makes reference to concerns that Mr Kalant will kill X, in addition to referring to four women having made allegations that Mr Kalant was violent and abusive towards them”.
In her affidavit of 2 August 2021 at [32]–[33], the mother said after she returned from a trip to BB Town in January/February 2015 with X and Y, the father said
“You can take this as a direct threat you will never see your kids again if you leave me. I will make sure you never see your children again. I will take X off you and if I don’t get her my family will. I will make sure they are wards of state before your family gets them”.
However, the mother’s affidavit does not reference the father directly threatening to kill X.
There is no evidence to support the proposition that the father threatened to kill X.
The mother alleges that the father “had a sexual relationship with a 15yo when he was 24 yo” reported on 9 April 2017. The allegation is referenced in the chronology for the 30 April 2020 CYPS Assessment,[22] and in Dr Q’s report.
[22] Annexures to the affidavit of the father filed 20 August 2021, p. 249.
At [303], Dr Q writes:
Further to this, the reporter allegedly stated that Mr. Kalant had “locked his 15 year old girlfriend in a cupboard when he was 28”, which was allegedly two weeks before the parties were married. Comment: In other words, Mr. Kalant and Ms. Jordain were already in a relationship at the time this alleged offence occurred. However, a subsequent report received 9 April 2017, refers to Mr. Kalant as being 24 years of age when this alleged incident occurred. The report suggests that police were called to intervene but there is no supporting information from police about this.
This incident was not included in the mother’s affidavit of 2 August 2021 or the annexures to her affidavit.
There is no evidence capable of sustaining this allegation.
By her case outline document, the mother alleges an incident on 6 May 2017 and reported on the same date when she took “X to ED because she is having difficulty passing urine. Mother alleges that she told staff she was concerned the child has been sexually abused and when staff asked X if anything bad happened – X said ‘yes’ and when asked why said it was ‘boring’”. The allegation is referenced in the 30 April 2020 CYPS Assessment at the chronology and in the body of the report.
In the chronology it is recorded that the:
reported concerns were X was unable to pass urine and this may be due to X being sexually abused by her father. The report noted contact occurs between X and her father supervised by the paternal grandmother.[23]
[23] Annexures to the affidavit of the father filed 20 August 2021, p. 250.
It further records that the
report proceeded to appraisal (started 10/11/2017) for further assessment. The risks to be assessed as part of this appraisal were sexual abuse of X and emotional abuse if X is subjected to ongoing medical examinations, noting these examinations can be traumatic for a child and can represent abuse if done unnecessarily.[24]
[24] Annexures to the affidavit of the father filed 20 August 2021, p. 250.
In the body of the 30 April 2020 CYPS report it is recorded that:
Following a contact visit with Mr Kalant on 6 May 2017, X presented to the Emergency Department with a presenting problem of “unwell”. During this visit, concerns were raised X was having difficulty passing urine and this may be due to sexual abuse from her father. When asked if anything bad had happened to her that day, X answered “yes”, when asked how it had been bad, X responded it had been “boring”. When asked if it had been bad in any other way X replied “no”. X was described to be a bright and very active three-year-old during this examination.[25]
[25] Annexures to the affidavit of the father filed 20 August 2021, p. 257.
This incident was not included in the mother’s affidavit of 2 August 2021 or the annexures to her affidavit.
Even if taken at face value the report does not support sexual abuse. However, it remains unclear, and unsupported by evidence, as to who observed the interaction with X at the hospital. Absent supporting evidence (particularly from the mother who in her allegation but not in her evidence asserts that she was there), the allegation is unsupported.
On 10 June 2017, the mother withheld X and did not allow her to spend time with the father.[26]
[26] Notice to Admit Facts filed 22 November 2021, paragraph 30.
On 24 June 2017, overnight time between the father and X was due to commence but the mother withheld X.[27]
[27] Notice to Admit Facts filed 22 November 2021, paragraph 32.
The mother alleged on 24 July 2017 that the father had breached the interim FVO that was then in place by intimidating the mother in the foyer of the Court. The father successfully defended the charge, and observes that at all times he was in view of the CCTV coverage.
By her case outline document the mother alleges an incident occurring in August 2017 and reported on 16 August 2017 where the reporter “says X was asked how her visit with father went on the Saturday. X is said to have replied “Mr Kalant touched me on my rude bottom. I don’t think daddy’s are supposed to do that”.
The incident is referenced in the 30 April 2020 CYPS Assessment chronology, which records a Child Concern Report about X in relation Mr Kalant allegedly touching X on her “rude bum”, which is what the mother says that X calls her vulva. Information within this report indicates X was subsequently seen by a medical professional and there were no signs of distress for X or bruising on her bottom.[28]
[28] Annexures to the affidavit of the father filed 20 August 2021, p. 250.
Further it says the “report was referred to JIRT as the alleged offense occurred in NSW. This report did not proceed for further assessment. On 02/11/2017 CYPS were informed this referral was closed on 27/10/2017”.[29]
[29] Annexures to the affidavit of the father filed 20 August 2021, p. 250.
This incident was not included in the mother’s affidavit of 2 August 2021 or the annexures to her affidavit. No evidence is called to support the assertion that X made such an assertion, such as when it was said, or who heard it said. The chronology entry is not probative of X making such a statement.
By her case outline the mother alleges an incident reported on 25 October 2017 of “X pooing every five minutes and saying dad is touching her every contact”. The incident is identified by the mother as referenced in the chronology of the 30 April 2020 CYPS Assessment at p. 9 and CYPS Material on 8 May 2020 (Part 2) at p. 143 which represents the Intake Form on 8 November 2017.
The chronology records:
the reported concerns were Y was threatening to kill himself and X is “pooing every 5 minutes” and stating her “dad is touching her every contact”.
…
This report proceeded to appraisal (started 10/11/2017) in respect of X. It was noted the report from 06/05/2017 proceeding to appraisal has yet to be allocated”.[30]
[30] Annexures to the affidavit of the father filed 20 August 2021, p. 251.
It is not apparent where the information for this entry came from.
The 8 November 2017 Intake Form is referred to as Exhibit ICL 3 at [209]–[216] in Judge Tonkin’s 2018 judgment. In relation to the 8 November 2017 Child Concern Report, her Honour does not discuss X “pooing every 5 minutes”, but at [215] discussed the mother’s report to the CYPS officer that “X had returned from contact on a number of occasions stating “Mr Kalant/my dad touched my bum and didn’t ask.” When asked “which bum” X indicated “my rude bum” referring to her vagina”.
That X was “pooing every 5 minutes” was not identified in the mother’s affidavit on 2 August 2021 or in the annexures to her affidavit.
The evidence is not sufficient to support this allegation insofar as it relates to X “pooing every 5 minutes”.
However, as to the other aspect of the report, being the father touching every contact, appears to overlap with a later report where the mother identifies in her case outline document an incident on 15 October 2017 and reported on 8 November 2017 where the reporter says “X touching her vagina, told to leave it alone, says it is sore that her father ‘touched it and didn’t ask’”.
The is said by the mother to be referenced in the 30 April 2020 CYPS Assessment, in her affidavit on 2 August 2021 at paragraph 39, and in CYPS Material on 17 July 2018 at p. 12.
The 30 April 2020 CYPS chronology reports concerns:
in relation to X due to have an overnight contact visit with her father the coming weekend. This information was reported in the context of ongoing concerns of sexual abuse allegations regarding Mr Kalant towards X. The report included information about an incident on 16/10/2017 where X had been touching herself (vagina) in public and when told to leave it alone, she stated it was sore and later added Mr Kalant had “touched it and didn’t ask”.[31]
[31] Annexures to the affidavit of the father filed 20 August 2021, p. 251.
This incident appears connected to subsequent related reports set out below.
By her case outline document the mother identifies an incident occurring on 29 October 2017 and reported on the same date where it was recorded that the:
Mother’s friend reports X saying she was allowed to sit on father’s lap while driving on highway.
The incident is referenced in the 30 April 2020 CYPS Assessment. It reports concerns “in relation to X reportedly sitting on Mr Kalant’s lap in the car while driving on the highway”.[32] It records the outcome of the report as being “concerns were noted to be negligent and illegal; however, were a matter for police. This report did not proceed for further assessment”.[33]
[32] Annexures to the affidavit of the father filed 20 August 2021, p. 251.
[33] Annexures to the affidavit of the father filed 20 August 2021, p. 251.
This incident was not included in the mother’s affidavit of 2 August 2021 or the annexures to her affidavit. No source of the information is provided and the evidence is insufficient to support this allegation.
Overnight time was due to commence on 11 November 2017. Between 16 October and November 2017, the mother says that she was in contact with a child protection agency who told her that she should not comply with orders if she thought that X was being sexually abused.[34]
[34] Affidavit of the mother filed 2 August 2021, paragraph 41.
A child concern report was made to CYPS on 21 November 2017 that the father had digitally penetrated X.[35]
[35] Affidavit of the father filed 20 August 2021, paragraph 45(k).
By her case outline document the mother alleges an incident occurring on 11–12 November 2017 and reported on 21 November 2017 and 2 December 2017 where “X had a sore bleeding bottom and vulva. When asked why it was sore – says father “stuck his fingers in there”. Subsequently X tells doctor grandmother Ms U touched her”. The incident is referenced as being from the chronology to the 30 April 2020 CYPS Assessment and in the body of the report.
The chronology identifies a Child Concern Report on 21 November 2017 recording concerns:
in relation to X’s bottom and vulva being sore and disclosures this was because Mr Kalant “stuck his fingers in there”. Information within this report included X had been interviewed by JIRT and did not disclose any abuse. The information within this reported stated X’s lack of disclosures were due to Mr Kalant threatening X, stating she would be put in jail if she said anything.[36]
[36] Annexures to the affidavit of the father filed 20 August 2021, p. 251.
The mother says that she effected improvements to the Suburb A house, although there was challenge to that assertion.
During the relationship the father was involved in the care of both X and Y, and in the household work.
The father supported the mother and children with his income (see the Notice, paragraph 8).
The father relied upon a historical valuation of the Suburb A property established that it was worth approximately $490,000 at the start of the relationship. It is at present unclear what the debt was in respect of the property, which means that the net equity position at that point is unidentified. It is somewhat troubling that this matter was not addressed in the evidence, in particular as the same deficit confronted the original trial judge and formed the basis, in the absence of her Honour addressing that deficit, for the property matter to be remitted.
Accordingly, there are limitations in the precision that can be accorded to the identification of the parties’ initial contributions.
At the commencement of the relationship the mother was unemployed and receiving means tested benefits, remaining in government housing until August 2012 and the father was employed and earning about $90,000 per annum (see the Notice, paragraph 2).
In about August 2012 the parties commenced cohabitation which involved the mother's child, Y, also residing at the property and hence, in that respect receiving practical and financial support at the very least by the provision of accommodation by the father.
The parties married in 2012, with X being born in 2013.
The mother made no financial contributions during the relationship (see the Notice, paragraph 9).
The parties separated on 17 February 2015, at which point the Suburb A value, by means of a historical valuation, was worth approximately $590,000. It had an associated debt of just over $400,000. The father's superannuation had risen in value to $47,000.
Given the limited evidence, and in particular an absence of evidence as to an increase or decrease in indebtedness across the short relationship of the parties, I will take it that the level of indebtedness was reasonably static during the relationship, without variation of significance. This means that the father brought into the relationship assets of the equity in the home of about $90,000, and superannuation of about $40,000, along with savings of about $15,000.
By the end of the relationship the Suburb A equity was about $190,000, and the superannuation about $47,000. Although there was no direct evidence of savings, at the time of separation the mother removed $10,000 from an account operated by the parties, along with approximately $10,000 in chattels.
Since separation the mother has had the primary care of X with the father spending intermittent time with X, which may be observed to be a product of the mother's resistance to him spending time with X. The father says that he has paid Child Support post separation.
In November 2021, shortly before the trial, the Suburb A property sold for $870,000. Costs associated with the sale were approximately $26,000 with a mortgage of approximately $384,000 leaving a net balance of $460,695. As at the trial the father’s superannuation had risen again in value to approximately $111,000.
Leaving aside the Suburb A proceeds, at the time of trial the husband held assets of approximately $62,000 which included the Motor Vehicle 1 with an associated debt of $45,000, leaving a net value of chattels held by him of $17,000. The mother held assets of approximately $9,000.
Additionally each of the parties has accumulated unpaid legal fees which, on the part of the father total approximately $280,000 and on the part of the mother also total approximately $280,000. By virtue of a deed entered into between the mother and her previous representation,[100] those legal fees are subject to an agreement whereby any proceeds that the mother receives from the property settlement will be paid to those lawyers.
[100] Exhibit M1.
It is against this reasonably uncontroversial factual background that the father seeks that there be no adjustment for property. His primary position is that is not just or equitable to make any adjustment of the property. However, if there is to be an adjustment he seeks that the payment of any sum on behalf of the mother be stayed pending further costs applications being made by him, as he will seek to have any such costs (associated with contravention proceedings that he has taken against the mother) receive priority over the payment of the proceeds of any property settlement to the mother's previous legal representatives. He accepts that this will require the involvement of the mother’s previous legal representatives in the proceedings as such an approach would encroach upon their recovery of outstanding fees pursuant to the deed.
The mother seeks an adjustment of the property such as would allow her to receive 40 per cent of the net current assets, along with the allocation of a base amount of superannuation of $33,374 of the husband’s superannuation which she says equates to an equalisation of the accumulation of superannuation interests during the relationship.
The father asserted that the contribution made by the mother post separation by her primary care of X ought to be given reduced weight by virtue of the mother’s contraventions of orders and resistance to the father’s time with X having increased her care of X and correspondingly decreasing the father’s care of X, and thereby his contributions based upon the care of X.
In support of this proposition the father asserted that Parliament could not have intended a party to profit (in the sense that the mother makes a contribution claim based upon the extent of her post separation care of X) from such wrongdoing. No authority was identified in support of such a proposition and, in pursuing such an argument the father gave no clarity to the extent to which the mother’s non-compliance impacted upon the contributions made by each, or the degree to which such impact might be considered to be material.
Without determining that it cannot be the case that non-compliance may impact upon the assessment of contributions, in the circumstances as identified, and in the absence of authority, no discount should be applied to the mother’s post separation contributions by virtue of her non-compliance.
The strength of the father’s contributions come from his introduction of the Suburb A property and superannuation into what was a relationship of short duration. To this contribution the mother made no financial contributions, while he provided support for Y, who is not his child.
The mother made various non-financial contributions, providing some minor improvement to the home, but more importantly providing the primary care of the children. As against that primary care, the father also contributed in a non-financial sense in providing care to the children around his work arrangements.
Since the end of the relationship it is the mother who has had almost the sole care of X, while the father has still contributed in maintaining the ownership of the Suburb A property until recently, and in contributing to the accumulation of his superannuation.
It may be seen however, from the transcript before Judge Tonkin that the father increased the indebtedness in relation to the Suburb A property by approximately $30,000.[101]
[101] Exhibit C2, p. 30.
As at the end of the short relationship, the father’s financial and non-financial contributions far outweighed the non-financial contributions made by the mother to what was then a rather small pool of property. Since that time the mother’s non-financial contributions in her care of X have significantly outweighed the non-financial contributions made by the father.
Although each has taken from the pool of property post separation, the father with added borrowings and the mother with the cash and chattel removal, the sparse detail provided leaves little option to place weight upon either of those occurrences, other than to observe that they appear reasonably equivalent in a sense that balances each other out.
I assess their contributions, at the start of, during and since the end of the relationship as favouring the father in a ratio to the mother of 75/25, the mother’s contribution being primarily sourced in the post separation care for X.
Section 75(2) matters
Each of the parties has compromised financial circumstances as a result of the various proceedings involving them. The father has accrued a debt for legal fees for proceedings in the Federal Circuit Court, Family Court including appeal, NSW Local Court and ACT Magistrates Courts in the order of $280,000.[102] Similarly the mother has accrued legal debts to a similar level.
[102] Affidavit of the father filed 20 August 2021, paragraph 131.
I was not directed to authority to assist as to the manner in which such costs debts may be weighed pursuant to s 75(2)(o).
Acknowledging that not all of those debts are referrable to proceedings under the Act, a cautious approach should be taken in relation to factoring in such a matter as, to the degree to which those costs are related to proceedings under the Act, they are dealt with in a primary sense by s 117.[103] Factoring in the debts pursuant to s 75(2)(o) should not be permitted to undermine the statutory approach to costs seen in s 117 and, to give the debts weight in these proceedings would be to do so. Accordingly the legal fee debts are not matters that will be given weight in the determination of any adjustment.
[103] See Farnell & Farnell (1996) FLC 92-681.
More importantly, as a result of the child-related orders the father will have the full-time care of X. There is little reason to expect that he will receive significant financial support in that responsibility form the mother who has been a long-term recipient of welfare payments. He, however, unlike the mother, has secured employment with reasonable remuneration that, he attests, is sympathetic to the demands that he faces as a parent. Given X’s age, in the light of the relative income earning positions of the parties points to an adjustment of five percent in favour of the father in respect of the s 75(2) factors.
Conclusion
This leads to a division in favour of the father of 80/20. Whilst the father resisted any division of the property, the period the parties lived together, their various cooperative roles in respect of the care of X and the provision of financial support ending on separation, points to it being just and equitable to make an adjustment. Recognising their contributions and the s 75(2) factors points to it being just and equitable to divide the property in a ratio of 80/20.
While the mother sought an adjustment of the superannuation interests along with a cash payment, there was no notice of the trustee of the superannuation fund being provided procedural fairness. Acknowledging that a cash payment and adjustment of superannuation are very different in character, nonetheless the appropriate manner of dealing with the inability to adjust the superannuation is to further adjust the cash payment to the mother.
Accordingly, taking the total pool inclusive of superannuation to be approximately $600,000, a twenty percent division to the mother equates to a total of $120,000, of which the mother currently holds approximately $9,000 in cash, chattels and superannuation. A further adjustment of $111,000 ought to therefore be made to the mother.
A remaining question persists as to whether to accede to the father’s oral application in the event that an adjustment was made in favour of the mother to stay such payment pending a costs application to be made by the father, on the basis that he will seek that any costs award receive priority over the mother’s other creditors. This is a matter that he conceded will require those creditors to be placed on notice of such an attempt.
Rather than simply directing a stay, which would provide little certainty as to the pathway the matter may take, I will order that the payment to the mother be contingent upon the resolution of such costs application, provided that application is made within 28 days of this judgment. Failure to do so will see the funds being paid out, undoubtedly in accordance with the deed that the mother has entered into with her creditors, whilst the making of the application will be on terms that will place those creditors on notice. Should the father not succeed in his priority claim then he may be at risk of costs being awarded in favour of the third-party creditors.
I certify that the preceding four hundred and twenty-two (422) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 17 December 2021
ORDERS SOUGHT BY THE PARTIES
Orders sought by the father in his amended application for final orders filed 20 August 2021
Parenting Orders
1.That Mr Kalant ("the Father") have sole parental responsibility for the child X (born … 2013) (“the child”).
2.That the Father:
2.1 Notify Ms Jordain ("the Mother") of any proposed decision relating to the long term care and welfare of the child and the reasons for the proposal, such notification to be given in writing at least six (6) weeks prior to his making a final decision; and
2.2 Take into consideration any views expressed by the mother about the proposed decision.
3.That the child live with the Father.
4.That the child spend time with the Mother as follows:
4.1 For three calendar months from the date of the orders, the child shall not spend time with the Mother;
4.2 Commencing three calendar months after the date of these Orders, the child shall spend time with the Mother for two hours each alternate week, with such time to be supervised at a supervised contact centre at such time and day of the week as may be nominated by the manager of the contact centre;
4.3 Commencing 6 calendar months after the date of the first supervised visit pursuant to order 4.2, the child shall spend time with the Mother from 2:00pm until 4:00pm each alternate Saturday;
4.4 Commencing 12 calendar months after the date of the first supervised visit pursuant to order 4.2, the child shall spend time with the Mother from 10:00am to 5:00pm each alternate Saturday;
4.5 Commencing 24 months after the date of the first supervised visit pursuant to order 4.2, the child shall spend time with the Mother:
4.5.1 Each alternate weekend from 10:00am Saturday until 5:00pm Sunday.
4.5.2 During the short school holiday periods as gazetted for NSW public schools:
(a) in years ending with an even number from 10:00am on the first Saturday of the holiday period until 6:00pm on the second Saturday of the holiday period;
(b) in years ending with an odd number from 6:00pm on the second Saturday of the holiday period until 6:00pm on the final day of the holiday period.
4.5.3 During the Christmas school holidays:
(a) Where the school holiday period commences in a year ending in an even number:
(i) From 6:00pm on 23 December until 6:00pm on 24 December; and
(ii) From 6:00pm on 10 January until 6:00pm on 26 January;
(b) Where the school holiday period commences in a year ending in an odd number:
(i) From 6:00pm on 24 December until 6:00pm on 10 January.
4.5.4 On the Mother’s Day weekend from 6:00pm on Saturday until 6:00pm on Sunday.
4.6 That for the purpose of these Orders, unless otherwise agreed between the parties, changeover shall occur at McDonalds restaurant at Location QQ.
5.That the Father shall:
5.1 Keep the Mother advised of the names and addresses of the child’s treating healthcare professionals;
5.2 Inform the Mother in writing as soon as practicable of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist (“specialist medical consultant”) in relation to the child; and
5.3 Ensure the Mother is provided with a copy of any report by any such specialist medical consultant in relation to the child, within 14 days of the Father’s receipt of the report.
6.That the Mother shall ensure the Father is notified as soon as practicable if, while in her care:
6.1 The child is admitted to hospital;
6.2 The child is involved in a medical emergency; and
6.3 The child will be required to take medication when they return to the Father’s care, in which case the Mother shall advise the Father of the details of the medication required to be taken and shall provide the Father with sufficient medication to cover the first 72 hours following the children’s return to the Father.
7.That the Father and Mother notify each other of any change in telephone contact numbers, such notification to be made in writing and within three (3) days of any change.
8.That the Father and Mother notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.
9.That the Father and Mother shall:
9.1 Be restrained from:
9.1.1 Discussing these proceedings in the hearing of or in the presence of the child;
9.1.2 Speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive or insulting fashion in the presence or hearing of the child;
9.2 Take all reasonable steps to prevent any other person:
9.2.1 Discussing these proceeding in hearing of or the presence of the child;
9.2.2 Speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive or insulting fashion in the presence or hearing of the child.
Property Orders
10.That each party be declared the sole owner in law and equity of all items of personality, chattels and financial resources in their name, possession or control not otherwise dealt with in these Orders including but not limited to bank accounts, any choses in action and superannuation benefits.
Orders sought by the mother in her amended response to final orders filed 25 October 2021
Parenting Orders
1.That the Respondent Mother shall have sole parental responsibility for the child X born … 2013 (X).
2.That X shall live with her Mother.
3.X shall spend time with her Father as follows:
(a) For one half of the all of the school holidays being the first half in even numbered years and the second half in odd numbered years.
(b) The school holiday period is deemed to commence at 4pm on the last day of school and conclude at 4pm on the day prior to the return to school for the new school Term. The mid point is the Saturday of the middle weekend of the school holidays.
(c) The weekend time that X spends with her Father is suspended during the school holiday period.
(d) During the school term for the .fourth and eighth weekends in each school term from 6:00pm Friday until 6:00pm Sunday. The Father shall collect X from the Mother or her agent from McDonalds Suburb K and the Father shall return X to her Mother or her agent from McDonalds at Suburb L. Provided the Father gives the Mother prior notice of not less than 24 hours the paternal grandmother may collect and or return X to her Mother.
(e) X shall spend Mother’s Day with her Mother if this day falls on a weekend that X would not be spending time with her as per these Orders and X shall spend Father’s Day with her Father if this day falls on a day that X would not be spending time with him as per these Orders unless otherwise agreed between the parents.
4.X shall communicate with her parents unless otherwise agreed in writing between the parents as follows:
(a) During school holiday time X to communicate with the parent that she is not spending time with between 6pm and 7pm each Tuesday and Friday.
(b) During school term time X to communicate with her Father between 6pm and 7pm each Tuesday and Friday unless she is spending time with him on these days.
(c) On Christmas Day X to communicate with the parent that she is not currently with between 4pm and 5pm.
(d) On X’s birthday X is to communicate with the parent that she is not with between 6pm and 7pm.
(e) Unless otherwise agreed X shall spend the weekend of her birthday with each parent in alternate years being with the Father in even years and the Mother in odd years.
(f) Each parent shall facilitate any reasonable request from X to contact the parent that she is not with when X is in their respective care including that X has access to her Mobile phone.
5.Should any further investigation of any Risk of Harm Reports to child Care and Protection Services substantiate that the Father is a risk to X, the Orders providing for X to spend time with her Father shall be immediately suspended.
6.These Orders authorise any school or educational facility that X shall attend to provide a parent with any relevant information regarding X that a parent would be at liberty to receive upon that parent’s request.
7.These Orders authorise any health professional that X shall attend upon to provide to a parent any relevant information regarding X that a parent would be at liberty to receive on the request of that parent. For the purpose of this Order the Mothe [sic] is to provide to the father details of the health professionals that X attends upon.
8.The Mother is at liberty to take X to a counsellor if recommended by X’s treating health professionals. For the Purpose of this Order the Mother is to advise the Father of who the counsellor is prior to the first appointment taking place. If the Father does not consent to X attending upon the counsellor the Mother is at liberty to take X to the counsellor without the Father’s consent.
9.Should X require emergency medical treatment or is admitted to hospital while in her respective parents care the parent that X is with is to advise the other parent as soon as practicable.
10.Both parents are physically restrained from:
(a) Physically disciplining X and/or permitting any other person to physically discipline X.
(b) Discussing these proceedings with X or in the hearing or presence of X.
(c) Speaking about the other parent, member of that parent’s family or household in a denigrating, offensive, or insulting manner in the presence or hearing of X.
11.Both parents shall take all reasonable steps to prevent any other person from speaking in a denigrating, insulting or offensive manner about the other parent, members of the other parent’s family or household or discussing these proceedings in the presence or hearing of X.
Property Orders
12.Except as otherwise provided for by these Orders the Applicant shall retain all property in his possession and under his control and the Respondent shall retain all property in her possession and under her control.
13.The Applicant shall be liable for any debt owed by him including but not limited to credit card liabilities, personal loans, leases and, or, guarantees in his name and he shall indemnify the Respondent in respect of all such liabilities.
14.The Respondent shall be liable for any debt owed by her including but not limited to credit card liabilities, personal loans, leases and, or, guarantees in her name and she shall indemnify the Respondent in respect of all such liabilities.
15.The property at PP Street Suburb A NSW (The Property) shall be sold by private treaty.
AND IT IS NOTED THAT THE PROPERTY IS CURRENTLY LISTED FOR SALE BY THE APPLICANT
16.Upon agreement being reached for the sale of the property the Applicant shall execute a contract of sale and all other documentation necessary to complete the sale of the property including all transfer documents upon its submission to him by the agent or the Applicant’s solicitor.
17.Upon the sale of the property the proceeds of sale shall be applied as follows;
(a) In repayment and discharge of the outstanding mortgage.
(b) In payment of the agent’s commission and advertising expenses and conveyancing expenses of the sale.
(c) In payment to the Respondent of 40% of the proceeds of sale minus the amounts subject to 16A) and b).
18.Pursuant to section 90MT (1) (a) of the Family Law Act 1975 whenever a splitable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Kalant from his interest in the Super Fund 1, the Respondent Ms Jordain is entitled to be paid by RR Ltd in its capacity as Trustee of the Fund the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $33,374 and there is a corresponding reduction in the entitlement the applicant would have but for these Orders.
Orders sought by the Independent Children’s Lawyer - Exhibit ICL12
1.All previous orders are hereby discharged.
2.A copy of these Orders and accompanying judgement shall be provided to the child protection authorities and police in the ACT and in NSW.
3.The father shall have sole parental responsibility for Kalant born … 2013 (“X”) and shall:
(a)keep the mother informed as to with respect to X’s schooling including authorising her to obtain information from X’s school as to her progress and general welfare.
(b)keep the mother informed of the names of all treating GPs, paediatricians or other specialists, and psychologists/counsellors for X
(c)keep the mother informed of any significant or chronic health problems affecting X.
4.The father shall forthwith engage a therapist for X who has experience of high conflict families where there may be issues of abuse and/or alienation. That therapist shall be authorised to speak with any psychologist working with the mother;
5.The mother shall engage in therapy with a psychologist who is experienced working with difficult personalities and high conflict families. The mother shall provide the father with the details of that psychologist. The father shall authorise X’s treating therapist to communicate with the mother’s psychologist.
6.A copy of these Orders, the accompanying judgement, and a copy of the report of Dr Q dated 28 June 2021 shall be provided to the psychologist engaged by the mother and to the therapist engaged for X.
7.X shall live with her father and spend time with her mother as follows:
(a)Supervised at the Suburb AA contact and changeover service for such periods and at such intervals as that organisation can accommodate.
(b)Unsupervised time shall be at the discretion of the father in consultation with X’s therapist on the basis of whether or not X has the emotional and cognitive ability and maturity to differentiate her views and experiences from those of her mother.
(c)Upon the commencement of unsupervised time it will increase gradually (in consultation with X’s therapist) to become:
(i)during school terms in the third, sixth and ninth weekends in each school term from 4.00 p.m. Friday until 5.00 p.m. Sunday with the mother to collect X from Suburb K McDonalds and the father to collect X at the Suburb L McDonalds.
(ii)for the second half of the term school holiday period in even numbered years and the first half of the school holiday period in odd numbered years with the mother to collect X from Suburb K McDonalds at the commencement of time and the father to collect X from Suburb L McDonalds at the conclusion of time;
(iii)during the Christmas, summer school holiday period for the first half of the school holiday period in even numbered years and the second half of the school holiday period in odd numbered years with the mother to collect X from Suburb K McDonald’s at the commencement of time and the father to collect X from Suburb L McDonalds at the conclusion of time;
8.Either parent is at liberty to communicate with X by phone or video on Saturday mornings by 11am each week. Each of the parents is at liberty to record that phone call but, in the event that he or she does so, must record the entirely of the call.
9.The parent who has the care of X on the relevant days shall ensure that she calls the other parent on her birthday; mother’s day or father’s day; and Christmas Day each year.
10.Both parents are hereby restrained from:
(a)Physically disciplining X and/or permitting any other person to physically discipline X;
(b)Discussing these proceedings in the hearing of or in the presence of X;
(c)Speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive or insulting fashion in the presence or hearing of X or permitting any other person to do so;
(d)Actively encouraging X to speak to authorities;
In the event the Court determines X should remain living with her mother she will spend time with her father as follows:
(e)during school terms in the third, sixth and ninth weekends in each school term from 4.00 p.m. Friday until 5.00 p.m. Sunday with the mother to deliver X to the Suburb K McDonalds and the father to return X to the Suburb L McDonalds.
(f)for the first half of the term school holiday period in even numbered years and the second half of the school holiday period in odd numbered years with the father to collect X from McDonald’s Suburb L A.C.T. at the commencement of time and the mother (or her agent) to collect X from McDonald’s Suburb K at the conclusion of time;
(g)during the Christmas, summer school holiday period for the first half of the school holiday period in even numbered years and the second half of the school holiday period in odd numbered years with the father to collect X from McDonald’s Suburb L A.C.T. at the commencement of time and the mother (or her agent) to collect X from McDonald’s Suburb K at the conclusion of time.
3
0