Kanavas & Vardakas
[2007] FamCA 206
•8 March 2007
FAMILY COURT OF AUSTRALIA
| KANAVAS & VARDAKAS | [2007] FamCA 206 |
| FAMILY LAW - CHILDREN - Parenting - – father long standing mental illness – schizophrenic disorder with anxiety and obsessional traits – controlled by medication and compliant with treatment – mother with psychiatric history but records destroyed by her – mother’s allegation father incapable of caring for child and opposing continuation of overnight visits – order made providing for substantial and significant time with the father FAMILY LAW - PROPERTY – no proper disclosure by mother of financial circumstances in the short marriage FAMILY LAW - SPOUSAL MAINTENANCE - CHILD SUPPORT - dismissal of spouse maintenance claim and child support departure application. |
| Family Law Act 1975 (Cth) |
Nelson v Nelson (1995) 184 CLR 538;
Elias and Elias (1977) FLC 90-267;
Dawes and Dawes (1990) FLC 92-108;
Black and Kellner (1992) FLC 92-287;
Weir and Weir (1993) FLC 92-338;
| APPLICANT: | MR KANAVAS |
| RESPONDENT: | MS VARDAKAS |
| FILE NUMBER: | MLF | 2979 | of | 2005 |
| DATE DELIVERED: | 8 March 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Moore J |
| HEARING DATE: | 23, 26, 27, 28 February & 1 March 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Mawson |
| SOLICITOR FOR THE APPLICANT: | Kenna Teasdale Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Spicer |
| SOLICITOR FOR THE RESPONDENT: | Kennedy Guy |
| COUNSEL FOR THE INDEPENDENT CHILD’S LAWYER: | Ms Dellidis |
| SOLICITOR FOR THE INDEPENDENT CHILD’S LAWYER: | Marshalls & Dent |
Orders
1.All previous parenting orders are discharged.
2.The father and mother are to have equal shared parental responsibility regarding the care, welfare and development of their daughter born in June 2005.
3.Each parent is to be responsible for the day to day care, welfare and development of the child when she is in their respective care according to these orders.
4.The child is to live with her mother and spend time with and communicate with her father as follows:
Until she commences school:
(a)each alternate week from 5pm Thursday until 10am Friday commencing 15 March 2007 or if not Thursday then another night of the week as agreed;
(b)from 10am Saturday until 10am Sunday each week, commencing Saturday 10 March 2007 and concluding Sunday 1 July 2007;
(c)from 10am Saturday until 6pm Sunday each alternate week, commencing 14 July 2007 until the last Sunday of the alternate weekend cycle in December 2007;
(d)from 5pm Friday until 6pm Sunday each alternate week, commencing on the first alternate weekend in the same cycle in 2008 and concluding on the last alternate weekend of the same cycle prior to the commencement of the first term school year when the child commences school;
Upon the child commencing school
(e)during school terms, from the conclusion of school each Thursday until the commencement of school Friday each alternate week thereafter commencing in the first week of the school term;
(f)during school terms, from after school Friday or 3.30pm, until the commencement of school on Monday or 9am and extending to 9am Tuesday if Monday is a public holiday or curriculum day each alternate weekend thereafter commencing on the second weekend of the first term of the school year;
(g)during school holidays, for one half of all school holidays at the end of terms 1, 2 and 3 at times to be agreed and failing agreement from 10am on the first Saturday of the holidays until 6pm on the second Saturday in even numbered years and from 10am on the second Saturday of the holidays until 6pm on the third Saturday in odd numbered years;
(h)during school holidays at the end of the first year of school, for two weeks during the long summer holidays at times to be agreed and failing agreement from 10am on the first Saturday of the holidays until 6pm on the second Saturday, and then a further week from 10am on New Year’s day until 6pm on 8 January;
(i)during school holidays at the end of the second year of school, for one half of the long summer holidays at times to be agreed and failing agreement from the conclusion of the last day of school term until 12 noon on the midpoint day of the school holidays in even numbered years and in odd numbered years from 12 noon on the midpoint day of the school holidays until 12 noon on the last day of the school holiday period;
otherwise
(j)on the child’s birthday from 3.30pm until 6.30pm if a weekday, and if a weekend day from 2.30pm until 6.30pm and the father’s weekend time with the child shall be suspended from 2.30pm until 6.30pm should the child’s birthday fall on such a weekend;
(k)on the father’s birthday from 3.30pm until 6.30pm if a weekday, and if a weekend day from 2.30pm until 6.30pm and the father’s weekend time with the child shall be suspended from 2.30pm until 6.30pm should the wife’s birthday fall on such a weekend;
(l)on the father’s Greek Orthodox Name Day from 2pm until 6pm and the husband’s time with the child shall be suspended from 2pm until 6pm should it coincide with the wife’s Greek Orthodox Name Day;
(m)during Greek Orthodox Easter, from 5pm Good Friday until 6pm Easter Sunday in 2008 and each alternate year thereafter and the husband’s time with the child shall be suspended during Greek Orthodox Easter from 5pm Good Friday until 6pm Easter Sunday in 2009 and each alternate year thereafter;
(n)from 10am 24 December until 10am 25 December in 2007 and each alternate year thereafter and the father’s time with the child shall be suspended from 10am 25 December until 10am 26 December in 2007 and each alternate year thereafter;
(o)from 10am 25 December until 10am 26 December in 2008 and each alternate year thereafter and the father’s time with the child shall be suspended from 10am 24 December until 10am 25 December in 2008 and each alternate year thereafter;
(p)on Father’s Day from 10am to 6pm and the husband’s time with the child shall be suspended from 10am until 6pm on Mother’s Day should Mother’s Day fall during the husband’s weekend time with the child;
(q)at such other times as the parties may agree upon from time to time.
5.For the purposes of the father’s time with the child pursuant to these Orders, changeover is to take place at the child’s school (upon the child commencing school) when it commences or concludes on a school day, and otherwise the father or his nominee is to collect the child from the mother’s residence at the commencement of the time provided and the mother or her nominee is to collect the child from the father’s residence at the conclusion of the time provided.
6.The father is to -
(a)notify the mother in writing no later than 48 hours prior to the scheduled time to be spent with the child if he is unable to spend time with the child as provided by orders;
(b)advise the mother directly or through his nominee if he suffers a relapse in his mental health and authorise his treating psychiatrist to provide the mother with a medical report within 7 days of any relapse;
(c)be at liberty to arrange directly with the child’s school or kindergarten to receive copies of all school reports, school or kindergarten notices, bulletins and other information regarding the child’s education as is normally sent to parents.
7.The mother is to -
(a)provide the father with notice in writing of her intention to enrol the child in any kindergarten or school and with particulars of the name and address of the kindergarten or school one (1) month before enrolling the child.
8.Each parent is to -
(a)forthwith advise the other if the child suffers any significant medical condition or medical emergency while the child is in the care of that parent and inform the other parent of the name of the treating doctor, details of any prescribed medication and authorise any medical professional treating the child to discuss with the other parent the child’s condition, treatment and prognosis;
(b)provide to the other 21 days’ notice of any intention to change residence and the details of the proposed living arrangements;
(c)forthwith notify the other of any change to their contact telephone number;
(d)be at liberty to attend at the child’s kindergarten or school for the purposes of parent/teacher interviews, school plays, concerts, sports days, and all events to which parents are normally invited;
(e) restrained from:
(i)denigrating the other, their partners or families, to the child or in her presence or within her hearing;
(ii)discussing these Court proceedings or any proposed changes to these Orders with the child or in her presence or within her hearing;
(iii)discussing in a derogatory way the other parent’s medical/psychiatric history with the child or in her presence or within her hearing.
9.The operation of these orders is to be supervised on a reportable basis by a Family Consultant pursuant to s.65L of the Family Law Act for a period of 12 months, and the parents may attend upon such Consultant nominated by the Director of Child and Mediation Services to assist them in respect of these orders and their ongoing parenting responsibilities.
10.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
11.On or before one (1) month from this date the husband pay to the wife the sum of $35,000 by way of property settlement.
12.Subject to paragraph 11, each party is entitled to retain absolutely all property of whatsoever kind owned by that party at the date of these orders and each are entitled to retain absolutely any entitlement in any superannuation fund of which they are a member.
13.The wife’s application for spouse maintenance is dismissed.
14.The wife’s application for departure from child support is dismissed.
15.Certify for Counsel.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF2979 of 2005
| MR KANAVAS |
Applicant
And
| MS VARDAKAS |
Respondent
REASONS FOR JUDGMENT
To be determined are the future arrangements for the care of the parties’ young daughter, settlement of property, spouse maintenance, and departure from child support assessment.
Background
The father (37) [dob [June 1969]] and the mother (38) [dob [September 1968]] are both of Greek parentage, each with strong connections to their own family of origin. They married in a civil ceremony in November 2003 followed by a religious marriage ceremony in February 2004. Their daughter was born in June 2005. They separated in July 2005 when the father withdrew from the mother’s home where they had been living. They were divorced in September 2006.
Orders sought
The orders sought by the father are set out in exhibit 1 as later amended. So far as the parenting orders are concerned, he proposes shared parental responsibility and that the child live with him at these times:
(a)For a period of six (6) months from the date of these Orders as follows:
(i) From 10:00 am Saturday until 6:00 pm Sunday;
(ii) From 5:00 pm Wednesday until 10:00 am Thursday.
(b) For a period of three (3) months thereafter as follows:
(i) From 5:30 pm Friday until 6:00 pm Sunday;
(ii)From 5:00 pm Wednesday until 10:00 am Thursday;
(iii)For a period of one (1) week in January of each year from the first Saturday in January.
(c)Upon [the daughter] commencing kindergarten [2008] and schooling [2009] as follows:
(i)from Friday after kindergarten and/or school until Monday before kindergarten and/or school;
(ii)while at kindergarten for a period of one (1) week in January of each year from the first Saturday in January;
(iii)from the time she commences her schooling for one half of all school term and long summer holidays and in default of agreement in the first half in 2008 and in the second half in 2009 and alternating each year thereafter;
(d)Each Greek Easter from 5:00 pm Thursday until 6:00 pm Sunday commencing 2007 and each alternate year thereafter.
(e)From 10:00 am Christmas Eve 2007 to 10:00 am Christmas Day 2007 and each alternate year thereafter.
(f)From 10:00 am Christmas Day 2008 to 10:00 am Boxing Day 2008 and each alternate year thereafter.
(g)From 10:00 am New Years Eve 2007 until 6:00 pm New Years Day 2008 and each alternate year thereafter.
Amongst his other proposals are these:
4.That at the commencement of all time that [the daughter] lives with the husband [the daughter] be collected by the husband and/or his nominee from the wife’s residence and at the conclusion of all time that [the daughter] lives with the husband the wife and/or her nominee collect the [the daughter] from the husband’s residence.
5.That the husband and the wife keep the other informed in relation to any medical issues including emergencies affecting [the daughter].
6.That the husband and the wife jointly enrol [the daughter] in any kindergarten and/or school in which [the daughter] is to attend after consultation with each other either directly or through an independent counsellor/mediator after having jointly attended upon such counsellor/mediator.
The orders sought by the mother were at no point particularised. So far as the parenting arrangements are concerned, by her amended response filed 12 October 2006 she seeks sole parental responsibility and that the daughter’s time with her father be determined by the Court subject to certain conditions: any time spent with her father be in the presence of one of his family members at his home; he not drive the vehicle in which the child is transported to and from visits; he adhere to all ‘lawful directions’ of his medical practitioners and take all medications prescribed; and there be ‘comprehensive orders’ about his spending time with the child on certain nominated special occasions. She also proposes he arrange a report to be provided to her from his psychiatrist every six months, she be advised by his relatives of any relapse that impacts upon his ability to spend time with the child, and each parent advise the other of any medical condition or health matters affecting the child.
As for financial matters, her formal application for property settlement is merely that there be an alteration of property interests pursuant to s 79, her claim for spouse maintenance is for payment of a sum the Court deems appropriate, and child support is also proposed to be at a level the Court deems appropriate. Her counsel’s submissions, not put on instructions but to assist the Court, propose that all of her financial claims be satisfied by a lump sum payment of $150,000 though there is no indication of how that would be apportioned between the three claims.
Certain parenting orders were proposed by counsel for the independent children’s lawyer at the beginning of the hearing [exhibit 3] but changes proposed in closing [exhibit 13] ultimately put the position in these terms:
‘1. That all previous parenting Orders be discharged.
2. That the husband and the wife have equal shared parental responsibility for the major long term issues regarding the care, welfare and development of the child of the marriage, namely [a daughter] born [in] June 2005.
3. That each party be responsible for the day to day care, welfare and development of the child, whilst she is in their respective care, pursuant to these Orders.
4. That the child live with the wife.
5. That the child spend time and communicate with the husband as follows:
Until the child commences school:
(a)each alternate week from 5pm Wednesday until 10am Thursday commencing …………
(b)from 10am Saturday until 10am Sunday each week, commencing Saturday 3 March 2007 and concluding Sunday 1 July 2007;
(c)from 10am Saturday until 6pm Sunday each alternate week, commencing 14 July 2007 until the last Sunday of the alternate weekend cycle in December 2007;
(d)from 5pm Friday until 6pm Sunday each alternate week, commencing on the first alternate weekend in the same cycle in 2008 and concluding on the last alternate weekend of the same cycle prior to the commencement of the first term school year when the child commences school.
Upon the child commencing school
(e)from the conclusion of school each Wednesday until the commencement of school Thursday each alternate week during school terms, commencing in the first week of the school term;
(f)commencing on the second weekend of the first term of the school year, from after school Friday or 3.30pm, until the commencement of school on Monday or 9am and each alternate weekend thereafter, extending to 9am Tuesday if Monday is a public holiday or curriculum day;
(g)for one half of all Terms 1, 2 and 3 school holiday periods, at times to be agreed and failing agreement, from 10am on the first Saturday of the holidays until 6pm on the second Saturday in even numbered years, and from 10am on the second Saturday of the holidays until 6pm on the third Saturday in odd numbered years;
(h)commencing in the child’s first year of school, for two weeks during the long summer holidays at times to be agreed and failing agreement, from 10am on the fist Saturday of the holidays until 6pm on the second Saturday, and then a further of seven days from 10am on New Year’s day until 6pm on 8 January;
(i)commencing in the child’s second year of school, for one half of the long summer holidays at times to be agreed and failing agreement from the conclusion of the last day of school term until 12 noon on the midpoint day of the school holidays in even numbered years, and in odd numbered years from 12 noon on the midpoint day of the school holidays until 12 noon on the last day of the school holiday period;
And otherwise
(j)on the child’s birthday from 3.30pm until 6.30pm if a weekday, and if a weekend day from 2.30pm until 6.30pm and the husband’s weekend time with the child shall be suspended from 2.30pm until 6.30pm should the child’s birthday fall on such a weekend;
(k)on the husband’s birthday from 3.30pm until 6.30pm if a weekday, and if a weekend day from 2.30pm until 6.30pm and the husband’s weekend time with the child shall be suspended from 2.30pm until 6.30pm should the wife’s birthday fall on such a weekend;
(l)on the husband’s Greek Orthodox Name Day from 2pm until 6pm and the husband’s time with the child shall be suspended from 2pm until 6pm should it coincide with the wife’s Greek Orthodox Name Day;
(m)during Greek Orthodox Easter, from 5pm Good Friday until 6pm Easter Sunday in 2008 and each alternate year thereafter and the husband’s time with the child shall be suspended during Greek Orthodox Easter from 5pm Good Friday until 6pm Easter Sunday in 2009 and each alternate year thereafter;
(n)from 10am 24 December until 10am 25 December in 2007 and each alternate year thereafter and the husband’s time with the child shall be suspended from 10am 25 December until 10am 26 December in 2007 and each alternate year thereafter;
(o)from 10am 25 December until 10am 26 December in 2008 and each alternate year thereafter and the husband’s time with the child shall be suspended from 10am 24 December until 10am 25 December in 2008 and each alternate year thereafter;
(p)on Father’s Day from 10am to 6pm and the husband’s time with the child shall be suspended from 10am until 6pm on Mother’s Day should Mother’s Day fall during the husband’s weekend time with the child;
(q)at such other times as the parties may agree upon from time to time.
6.That for the purposes of the husband’s time with the child pursuant to these Orders, changeover shall take place at the child’s school (upon the child commencing school) where it commences or concludes on a school day, and otherwise, the husband or his nominee shall collect the child from the wife’s residence at the commencement of such time and the wife or her nominee shall collect the child from the husband’s residence at the conclusion of such time.
7.That in the event the husband is unable to spend time with the child pursuant to these Orders, he shall notify the wife in writing no later than 48 hours prior to the scheduled time to be spent with the child.
8.That in the event that the husband suffers a relapse regarding his mental health, the husband or his nominee shall forthwith advise the wife of same and provide to the wife a medical report from his treating psychiatrist and/or medical practitioner within 7 days of such relapse.
9.That in the event the child suffers any significant medical condition or medical emergency whilst the child is in the care of either parent, that parent shall forthwith advise the other of same, and inform the other parent of the name of the treating doctor, details of any prescribed medication and shall authorise any medical professional treating the child to discuss with the other party the child’s condition, treatment and prognosis;
10.That each party shall provide to the other 21 days’ notice of any proposed change of residence.
11.That each party shall forthwith notify the other of any change to their contact telephone number.
12.That the wife provide to the husband 28 days written notice of the name and details of any kindergarten or school at which she intends to enrol the child.
13.That each party be at liberty to attend at the child’s school or kindergarten for the purposes of parent/teacher interviews, school plays, concerts, sports days, and all events to which parents are normally invited.
14.The husband be at liberty to arrange with the child’s school or kindergarten to receive copies of all school reports, school or kindergarten notices, bulletins and other information regarding the child’s education, which is normally sent to parents.
15.Each party, their servants or agents, be and hereby restrained from:
(a)Denigrating the other, their partners or families, to the child or in her presence or within her hearing;
(b)Discussing these Court proceedings or any proposed changes to these Orders, with the child or in her presence or within her hearing.
(c)Discussing the other party’s medical/psychiatric history with the child or in her presence or within her hearing.
16.That the operation of these orders be supervised on a reportable basis by a Family Consultant pursuant to s.65L of the Family Law Act for a period of 12 months, and the parties may attend upon such consultant nominated by the Director of Child and Mediation Services to assist them in respect of these orders and their ongoing parenting responsibilities.
17.That all extant applications be otherwise dismissed and removed from the list of cases awaiting determination.
18. Certify for Counsel.
19.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Evidence
Apart from his evidence, the father relied on evidence from his sister, Ms K and from his treating psychiatrist, Dr C. The mother called evidence from her brother, Mr V.
There was further evidence from two appointed experts. Dr K, consultant psychiatrist, saw both parents for individual psychiatric assessment in January 2006 and he subsequently issued reports. He gave some further brief evidence at the hearing to elaborate on one aspect of his reports. There was also a report from a psychologist, Ms M, whose appointment arose from an order of 16 March 2006 and she conducted interviews in June and August 2006. Arrangements were made for her to prepare an updated report by further interviews in January 2007. The father attended with the daughter and was interviewed and observed by Ms M for 1½ hours. The mother did not attend, citing ‘financial hardship’ as her reason in a letter of 4 January directed to Ms M and forwarded on her behalf by her solicitor. The hardship was said to be related to the cost of the updated report, but neither she nor her solicitors at any time put a suggestion to the father that he pay her share of the cost. It is regrettable she did not participate because at the time of the earlier interviews the daughter’s overnight visits to her father had not begun and as she raised concerns about that development in her letter it would have been an opportunity to ventilate them and have them considered by the reporter.
There was no submission challenging the expertise or competence of either expert - nor of Dr C, it should be added – and, in the absence of anything inherently questionable about it, the evidence of these three professionals can be accepted though of course it is to be weighed and considered alongside all of the other evidence. Nor was there any submission inviting an adverse view to be taken of anything said by the father’s sister and there was no challenge to the evidence of the mother’s brother. Similarly, their evidence can be accepted as given.
There is dispute about some of the history and so it will be necessary to express a view about the confidence that can be placed in the reliability of what each has said. But I shall come to that after noting the more central aspects of the evidence of Dr C and Dr K because that serves to indicate the setting in which the evidence must be evaluated.
Evidence – psychiatrists
Father
As his treating psychiatrist, Dr C reports the father had been receiving psychiatric treatment since he was 21 years of age when he had been hospitalised for a time with psychiatric illness. Dr C had taken over his treatment in 2000 and the father had been voluntarily regularly consulting him since on a three weekly basis. He is treated for schizophrenic disorder with anxiety and some obsessional features. Dr C prescribes and monitors anti-psychotic medication and other medication is prescribed and taken as required for anxiety. The substance of Dr C’s evidence is that the father is compliant with treatment, the medication controls his condition, he is currently free of any psychotic symptoms and his obsessional qualities are markedly reduced, he has some insight into his illness, he is diligent about making and keeping appointments, and his history so far indicates his compliance and voluntary regular treatment will continue.
Dr K had Dr C’s report of November 2005 available to him when he saw the father. Dr K set out the background and early history as related to him by the father along with an account of his treatment. In his comments on the father’s mental state during interview Dr K said he was ‘fairly softly spoken, quite a pleasant and quite an emotionally responsive fellow…no abnormality of his thought processes….certainly not thought-disordered…memory and concentration appeared to be good…his flow of speech was normal and he did not admit to any hallucinatory experiences or ideas of reference.’ This is not dissimilar to Ms M’s report of his presentation and it fits with his presentation generally at the hearing.
Dr K’s opinion includes these observations:
(a)[The father] is ‘clearly a man who has quite marked psychiatric psychological difficulties’.
(b)He is obviously intelligent and gives the impression of being quite a gentle person and quite thoughtful.
(c)He does not give evidence of psychotic symptoms at this stage.
(d)His diagnosis is ‘most likely a paranoid schizophrenic illness that he has which fortunately is well controlled with the medication he has with regular contact with the psychiatrist and he seems to (fortunately) have a reasonable degree of insight into his difficulties. But we have to keep in mind too that he is obviously a man with a high level of anxiety and some panic from time to time…He does appear to have several phobias, for example about flying, germs et cetera and it seems he does have some obsessional/checking rituals.’
(e)‘I would have no doubt that within the setting of a deteriorating marital relationship that [the father’s] behaviour and psychological disturbance may have become somewhat more marked. But at present he presents really quite well. He is back in the bosom of his family where he feels comfortable…..He is quite happy to continue having psychiatric treatment ……It is noteworthy that despite his severe psychiatric/psychological problems over the years, he has usually managed to work and usually at quite a high level in the area of information technology.’
(f)If his presentation were to be cast in diagnostic terms he would use the labels of paranoid schizophrenia (well treated and controlled), chronic generalised anxiety disorder with panic, and in many ways he would be described as an immature person.
(g)‘So while …he has a clear and serious psychiatric disturbance, he also has considerable strengths in that he is obviously an intelligent fellow and in general terms has good interpersonal skills. He also presents as a gentle and thoughtful fellow.’
(h)‘….I don’t have any significant concerns relevant to his ability to care for a small child in his care. Of course I have not seen him actually handling the child, but I don’t see him being a significant risk to the child. I think while he is well supported by his family and having psychiatric treatment he is perfectly capable of making a significant contribution to the child. And I wouldn’t see him as warranting supervision for limited periods of access.’
(i)Dr K in his brief oral evidence explained that he had not expressed himself in this last passage as he intended. As he explained his view, while the father is living with his family and having regular psychiatric treatment, he does not see any need for his care of his child to be supervised.
Mother
The mother also has a psychiatric history. As the evidence developed, it emerged that she had consulted a psychiatrist when she was in Greece in the mid-1990’s when she was prescribed Risperdal, usually prescribed for psychosis though it does have other uses. On return to Australia she consulted a psychiatrist, Dr W, for about 10 years until she withdrew from those consultations in early 2005. It was then that she ceased taking Risperdal and she has taken no similar medication or consulted a treating psychiatrist since. She obtained her file from Dr W and destroyed it and so there is no record of her history from that source and nor is there any evidence from Dr W about his recollection of her history.
Dr K’s report again records matters of background and history and he raised with her the earlier consultations with a psychiatrist. Her explanation for seeing him was ‘I didn’t have a condition – it was just to get advice’ and it was for ‘stress related to work’. Later he said of her medical and psychiatric history ‘She insisted that there wasn’t anything wrong with her, she was just sensitive, she wanted advice.’ She repeated that at the hearing when asked about the history.
In giving a description of her presentation, Dr K said, amongst other things, that she was ‘quite labile in mood, cheerful some of the time, smiling other times. She had a furrowed brow and an intense manner but looked fit and healthy. I found her quite a difficult lady to interview as she spoke very quickly and she tended to talk around and around the issues until she eventually got the answer. On other occasions she was really quite dismissive, for example she dismissed her psychiatric problems as “just getting advice”, work related stress and insisted that she didn’t have a psychiatric problem. I could not ascertain from her why she was given Risperdal.’ Some of this was reflected in her presentation at the hearing.
Dr K’s opinion included these observations:
(a)He reiterated he had not seen any information from the treating psychiatrist she had seen intermittently for ten years. Noting it would have been ‘extremely useful’ to have such information, the destruction of the file had left him ‘somewhat in the dark about the reason for the treatment she was having and what diagnosis had been considered’.
(b)He described her as obviously intelligent, well educated and with a good work record.
(c)After commenting on aspects of the histories given, he said she is ‘immature in some ways, has obviously had sexual difficulties and these appear to have contributed at the very least to the problems in the marriage. I see her as a very sensitive person with a high level of anxiety and some obsessional traits.’ However, he added, ‘in view of her presentation I would be reluctant to make a formal psychiatric diagnosis here…..The dispute associated with these legal matters, of course accentuates the problems she has. But I do not consider in general terms that she demonstrates psychiatric problems that might significantly interfere with her parenting. It seems that she is very tied to her parents, but she sees them as very supportive at this stage. As indicated I am not sure why her treating Psychiatrist gave her Risperdal – that’s a medication usually used for psychosis – but I certainly wouldn’t see her as being psychotic at this stage and don’t believe that she ever has been. I suspect that the medication has been used as a major tranquilliser rather than for its anti-psychotic function – a use for which can be appropriate.’
(d)‘…She does have some adverse personality traits. I’m referring to her obvious immaturity and difficulties in terms of intimacy and sexual relationship, her obsessional traits and her intents (sic), her high level of anxiety and her susceptibility to distress. As indicated I would not like to make a formal psychiatric diagnosis and don’t believe she has significant psychiatric disturbance in her own right or significant personality dysfunction, which would significantly interfere with her parenting of a child. Of course I have not seen her with the child and can only speculate then as I have done above. He thought she was honest and well intentioned and was attempting to give a good account of herself.
(e)His overall view from a psychiatric perspective, as portrayed in interview, was that the mother would be an adequate parent.
Commenting generally, Dr K described both parents as having ‘significant psychological problems, are both sexually naïve, inexperienced, immature and both would appear to be somewhat dependent upon their respective families.’ He further commented that both have had psychiatric treatment over a long period of time ‘he for a psychotic condition - paranoid schizophrenia, she presumably for anxiety and stress-related problems (but I have not seen any documentation yet about her psychiatric status).’ He added: ‘It is not surprising in light of the difficulties that these two people have that they would have run into difficulties in their relationship and that this resulted in separation soon after the birth of the child.’ He reiterated he had not seen how they actually handle their young child but both appear to be well supported by family, the father has regular psychiatric treatment and takes prescribed medication appropriately. He commented that while both are living in their supportive environments he had no serious concerns about the child’s welfare with either parent. Unless there is clear evidence the father is unable to handle a small child, he did not believe his contact needed to be supervised.
Credit
Disputed facts in this Court are resolved on the balance of probabilities rather than a higher standard of satisfaction, but the task is never an easy one, particularly when objectivity has been blunted by strong emotions and convictions about the rectitude of one’s own point of view have become fixed, all the more so when impaired health may be interfering with more balanced functioning. And seldom is it easy to record adverse findings about reliability, yet there is no avoiding the fact finding obligation when credit is raised as an issue and this case is no exception.
Ultimately I formed the view that the evidence given by the father should be preferred wherever there is a conflict with the account given by the mother that is not able to be resolved or corroborated by reference to some other independent piece of evidence. The father presented as rather softly spoken but nonetheless quietly assertive, his affect was consistent with discussion, he was focussed on the task of presenting facts to the Court at least as he saw them, he was responsive to questions asked of him, there was no abnormality of thought process apparent, and he impressed as being quite child focussed in his discussion of issues rather than advocating some other unrelated agenda. That is not to say his evidence was without obvious error. He gave an improbable response to a question I asked in an attempt to clarify an inconsistency about the amount paid each week to his parents for board - his sister’s evidence demonstrated that - but the point is insufficient to displace the confidence his evidence otherwise generated.
The evidence of the mother, on the other hand, stands in contrast to this. Her manner was intense, which of course is quite understandable in an unfamiliar courtroom environment, but she was generally unresponsive to questions, she often spoke rapidly and without focus on the topic at hand, and on many occasions she became combative by interrogating the examiner rather than providing the information asked of her. She conveyed the impression overall that she was preoccupied with ventilating her palpable animosity towards the father rather than giving a considered and thoughtful response to the information asked of her and this did not inspire confidence in her as an accurate reporter of past events, nor in the soundness of many of the issues raised as motivating her position in these proceedings.
Further background
When their relationship began they had each been living at home with their own family. This was a first marriage for each. After their religious marriage, they established a household together in the mother’s unit located next door to her parents and brother. This meant the father’s family was some distance away and, as things developed, difficulties arose between them about their families. They only lived together for about 17 months until the father withdrew and returned to his family’s home, but it appears to have been mostly an unhappy and vexed time for each of them. Differences about their daughter arose right from her birth, apparent from an incident at a City Hotel a few days later, and there was a further discord about the blessing 40 days after her birth, which was followed by the father’s departure and return to his family. The period since separation has not seen any improvement in their ability to communicate effectively.
The father has qualifications and experience in information technology. Prior to the marriage he had been employed for some years with Telstra or its predecessor but his position was made redundant in 2002 and he was not in paid work when they married. In May 2004 he started work with another communications company on a short term contract and then in September of that year he began a 12 month contract with the Commonwealth Public Service earning $42,000 per annum. This was where he was working when they separated. After that contract was completed he had a couple of weeks work until April/May 2006 when he obtained two months work with a bank followed by some weeks working for a superannuation fund. Then in September he returned to the Commonwealth Public Service for three months. That contract has now been renewed for a further six months to expire on 30 June 2007. He presently has no certainty of work beyond that.
At the time of their marriage the mother was employed on a permanent part time basis as an officer in the Commonwealth Public Service earning $22,000 per annum. She took maternity leave in April 2005 when she took half salary for an extended leave period until November 2005. She resigned and has not been in paid work since. She sees her future as staying home and looking after the daughter until she attends primary school which, as I apprehend it, will be in 2009.
As for their property at the time they married, the father owned a number of real properties. In 1993 he had purchased a property at D, funded partly with money borrowed from a bank. The construction of a dwelling was completed at the rear of the property in early 2003. It is his unchallenged estimate that both properties were worth in the vicinity of $700,000 in February 2004. Both dwellings are rented and the current gross rental is $2,210 per month. They now have an agreed value of $320,000 and $415,000 respectively. He also had a unit at G which he had purchased in 1997 for $74,500, also partly funded with money borrowed from a bank. His estimate of its value in February 2004 is $190,000. The unit has been rented and the current income is $715 per month. It now has an agreed value of $200,000. He owned another unit at N purchased in 1999, again partly funded by money borrowed from a bank. He estimates its value in February 2004 at $170,000 and it has an agreed current value of $180,000. It too is rented and the rental income is $650 per month.
At the same time his debts consisted of two bank loans and he owed a little over $205,000 and $39,600. As well as making regular loan repayments during the marriage, he deposited to those loan accounts some money he received from several sources: the sale proceeds of his motor vehicle of $26,300; tax refund for the 2002/03 year of almost $7,000; and $10,000 overpayment refunded by the builder who had constructed the dwelling at D. By the time they separated the small loan had been discharged and the balance of the other had been reduced to $178,395. At separation he had a credit card debt of $1,237.
For her part, the mother owned an unencumbered unit at B, located next door to the unit occupied by her parents and brother. It has an agreed value of $350,000.
At that time she operated a bank account in her own name [exhibit 10]. There was a deal of activity on that account around the time of the marriage which complicates her initial position. In November 2003 the credit balance was a little over $4,000 but there were other deposits apart from her salary between then and early March 2004: there was a deposit of $6,600 which she identified as wedding money and two deposits totalling over $18,000 which she identified as coming from relatives overseas. But there were also significant withdrawals from the account in February – a total of $10,000 in $1,000 lots – and in March – a total of $13,000 in $1,000 lots. At the end of March there was a little over $10,400 in the account. Her evidence about what she did with the money withdrawn, a total of $23,000 in a matter of weeks, is that she bought furniture and household items and it was spent on living expenses but there was no elaboration. It may very well be that some chattels were bought and some of the money was directed towards living expenses, but she was rather dismissive about it and did not satisfactorily explain where it had gone. There is little activity on the account, which continued to receive her salary, until late February 2005 by which time the balance had increased to $21,441. She then transferred $20,000 from the account to a term deposit.
At the same time she operated a bank account jointly with her brother [exhibit 10]. The joint account had a credit balance of over $8,700 in November 2003 and there was some activity, including deposits and a withdrawal of $10,000, before February 2004 when the balance was a little over $8,000. Again, in late February 2005 there was a transfer to a term deposit from this account for $7,000.
There is no satisfactory explanation for what happened to either of the term deposits.
At the time they married the mother was, and remains, a beneficiary of a discretionary family Trust, the V Family Trust, whose trustee is V Nominees Pty Limited. She and her brother are directors and shareholders of the trustee company. There were tendered copies of the Trust’s taxation returns for the four years ended 30 June 2002 – 2005 inclusive and they demonstrate that over those years the mother and three other family members maintained loan accounts with the Trust whose assets consisted mostly of cash at bank and some non-current assets. The marriage, of course, was during the 2003/04 financial year and the financial accounts show the credit balance in her loan account with the Trust as at 30 June 2003 was $70,779 [when the cash held at bank was $237,766] and at 30 June 2004 was $98,824 [when the cash at bank had increased to $357,436]. This amounted to an increase of just over $28,000 although the source of that increase in what she was owed is not apparent. It would be mere speculation to point to the withdrawals from her own bank account in February/March 2004 as at least part of the explanation.
The financial accounts as at 30 June 2005 show all members loan accounts were significantly reduced in that financial year, including her loan account which went from $98,824 at the beginning of the period to $15,761 by 30 June, a reduction of $83,063 [cash at bank reduced to $20,216]. Assuming, as one may on the face of it, that the cash was used to reduce the amounts owing to members through their loan accounts, there is no explanation for what the mother did with any repayment/reduction she received. By 30 June 2005 there had been no separation and so no legal fees would have been incurred in that period and that can be ruled out as an explanation. Furthermore, the transfer to the term deposit of $20,000 from her own account occurred in February 2005 and so that amount could not be rolled up into the figures just discussed. If the $20,000 was advanced to the Trust for deposit with other monies to increase the interest rate it would attract, that would only increase the amount unexplained from $83,063 to $103,063.
The mother gave evidence that her loan account balance is now nil – there are no accounts available after 30 June 2005 - so on that evidence she has received the balance as at 30 June 2005 at some later point.
It has been said that Trust money was used to purchase a property in the name of another entity and not in the name of the trustee. But sufficient information relevant to this was not provided and so it is impossible to know what occurred. Certainly the financial accounts show a significant reduction in the cash at bank and the members loan accounts in the 2004/05 year and it may well have been that cash was used to pay the members some of what was owing to them and they used what they received to invest in property through a company. But again, that is to speculate. Ultimately, this is all information that is for the mother to present, relating as it does to her financial circumstances and there is no apparent reason why the information could not have been presented properly and disclosed fully.
It should be noted that in the course of her evidence the mother appeared keen to say that her father is the appointor under the Trust Deed. The Deed was not produced, but I have no reason to doubt it, and yet all that means [assuming it is a usual discretion family trust] is that he holds the power to replace the trustee with another. Unless and until he does so, V Nominees Pty Limited, a company in the control of her and her brother, presumably performs its function as trustee by exercising its discretion as to the distribution of both income and capital. It should also be noted that the mother stated in her affidavit that the Trust was established to enable her father to operate as a subcontractor and later he needed an ‘incorporated entity’ to operate a minibus business. Nor is there any reason to doubt the origins of its establishment. But if this and other comments endeavouring to press her father’s position was meant to distance herself from any entitlement to balances in her loan account in the years for which accounts are available, or to suggest in some way that what is reflected in the Trust’s financial accounts had or have no bearing on her circumstances but are referable only to her father’s, then it cannot be accepted.
That is because there is simply no evidence which would justify seeing the financial accounts of the Trust in any way other than as presented to the Commissioner of Taxation. This is no place to discuss whether after the decision of the High Court in Nelson v. Nelson (1995) 184 CLR 538 there is any enduring relevance attaching to the decision of Goldstein J in Elias and Elias (1977) FLC 90-267, later approved by the Full Court in Dawes and Dawes (1990) FLC 92-108. Probably it has been rendered irrelevant, but nonetheless no support from that so called principle is necessary to observe there is no credible evidence here that would cause the accounts to be seen in any light other than their face value and that reflects the mother having a relatively significant entitlement at a time relevant to the assessment of entitlements here.
Regrettably, the absence of satisfactory evidence from the mother about her financial circumstances, including an explanation for monies that on the face of it were available to her, has important consequences for the financial matters to be decided here. It must be concluded that she has failed to make a proper disclosure of her financial circumstances and the approach to such circumstances is indicated by Full Court decisions such as Black and Kellner (1992) FLC 92-287 and Weir and Weir (1993) FLC 92-338 which made it clear that parties have a duty in financial proceedings to make a full disclosure of their financial affairs. In Weir at 79,593 the Full Court said:
“It seems to us that once it has been established that there has been a vivid non-disclosure, which follows from his Honour’s findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.”
That is not to suggest for a moment that last observation applies here; it is very likely that the lack of proper information about financial dealings put in the mother’s case finds its source elsewhere in other, even understandable, explanations, as her presentation at the hearing demonstrated. It remains the fact, nonetheless, that lack of disclosure about matters relevant to the Court’s task – including assessing the claim of the other party who has made full disclosure - cannot be condoned and it certainly does not warrant findings against the disclosing party when those findings depend on a view being taken of the non-discloser’s finances.
In the time they were together they did not establish a joint account or merge their finances and there is a dispute about who paid for their common expenditure during this time. The mother says she used her income to pay household bills and living expenses while the father used his money to reduce his loans and therefore improve his financial position. Yet the documentary evidence does not support this and the father’s account of it is likely to be the more accurate; that is to say, he provided a weekly allowance of $200 per week and $250 per week after their daughter was born and he paid the expenses related to the running of the household from his funds. He did reduce the debt by payment of mortgage instalments and by the injection of capital previously mentioned, but he did provide financial support for the family while the mother’s income from her salary largely accumulated in her account from which she transferred $20,000 in early 2005 into a term deposit.
Post separation - property
Developments in their finances since separation are not elaborate. The father has continued to live with his parents at their home in E and his work arrangements have been mentioned already. His assets and liabilities will be set out later. As for his income, his current contract is for a little over $39,000 per annum. Apart from that, he receives rent and dividends totalling $851 per week. He pays tax of $151 per week and he has other expenses related to the properties he owns such as mortgage instalments and operating expenditure as well as his own living expenses. Contrary to his financial statement, it is more probable that he pays $100 per week board to his parents and not $200. He also pays child support as assessed.
There has been a good deal of activity with the Child Support Agency but the current assessment is for $295.17 per month for the period from 1 November 2006 to 31 January 2008.
The mother’s current assets and liabilities in so far as they are apparent are also set out below. She has continued to live in her unit next door to her family. She has not been in paid work since prior to the daughter’s birth. Her current income is from government benefits of $92 per week and child support. She says she receives financial support from her parents and brother who routinely provide her with money for herself and the daughter, which she estimates at $724 per week.
Post-separation - parenting
The developments related to the daughter’s care arrangements have been more complicated. There was no contact between the daughter and her father from the time he left the home on 18 July 2005 until after orders were made on 24 November. During that time there were discussions but no agreement about her arrangements and the father instituted proceedings by an application filed 5 October 2005.
It was during those first few months after separation that the daughter was christened. This was arranged by the mother to take place at the Greek Orthodox Church at Y but without any consultation, involvement or notification to the father who learned of it from the Court proceedings.
While the case has awaited final hearing, there have been several interim orders reflecting arrangements for the daughter’s care, including the time spent with her father and the circumstances in which that has occurred:
(a)The orders of 25 November 2005 appointed the independent children’s lawyer, directed Dr K’s psychiatric assessments and provided for contact as follows:
‘3(a)From 6:00 pm until 7:00 pm each Wednesday and 12:00 pm until 2:00 pm each Sunday (save and except for the weekend of Christmas Day when contact occur 12:00 pm to 2:00 pm Saturday, 24 December 2005) commencing Sunday, 27 November 2005.
(b)All such contact occur at the home of the wife’s brother at [A].
(c)During periods of contact the wife’s brother and one member of the husband’s family be present but no other persons.’
(b)Orders of 18 January 2006 were made by consent and included these arrangements:
‘2. Husband have contact with [the daughter] as follows:
(a)From 5:00 pm until 8:00 pm each Wednesday commencing 18 January 2006.
(b)From 10:00 am until 1:00 pm each Saturday commencing on 21 January 2006.
(c)During periods of contact [the husband’s sister] be present on Saturday and the husband’s brother, […] be present on Wednesday provided that [the husband’s] or [brother] may substitute for the other if either is unavailable due to work commitments.
(d)For the purposes of contact, the child be collected from and returned to the wife’s residence provided that the husband’s brother or sister does the driving and the child is properly restrained in an approved child restraint.’
(c)On 16 March 2006 there were further orders related to contact and other matters:
‘(a)Each Wednesday and Saturday from 10:00 am until 4:00 pm commencing Saturday, 18 March 2006 and [the husband’s sister] or [brother] be present on these occasions or either of the paternal grandparents.
(b)For the purpose of contact of contact the husband collect the child from the wife’s home at the commencement of contact and the wife collect the child from the husband’s home at the conclusion of contact.
(c)From 2 September 2006 the Saturday contact change as follows:
(i)Each weekend from 10:00 am Saturday until 10:00 am Sunday.
(ii)Otherwise the Wednesday [as amended later under slip rule] contact continue.
2.Further Orders made by consent requiring parties and child to attend upon a psychologist nominated by the Independent Children’s Lawyer and both parties do all acts and things to abide by lawful direction of their medical practitioners.
3.That until further order, the husband remain living at his current place of residence.
4.All extant interim Applications, including wife’s Application for spousal maintenance be dismissed.
(d) On 18 September 2006 these orders were made:
‘2.That in the event that the husband cannot attend on a Wednesday then he will advise the wife no later than 10:00 am the preceding Sunday.
3.That the husband spend time with the child on Christmas Day 2006 from 10:00 am to 4:00 pm.
4.That the wife be entitle to nominate another person to transport the child [a daughter] born [in] June 2005 pursuant to paragraph 1(b) of the Order dated 16 March 2006.
….
6.That the husband forthwith undertake a parenting course as a matter of urgency as nominated by the Independent Children’s Lawyer and show proof of enrolment and satisfactory completion of the course.’
Not long afterwards, there was litigation in the local Magistrates Court and they have not yet concluded. On 25 October 2006 the mother applied for and was granted an interim intervention order against the father, it was not extended when the matter returned to Court in early November 2006 and he gave an undertaking to the Court, and it has now been set for a contested hearing on 15 March.
Issues – disputed facts
The evidence, from affidavits and at the hearing, reveals a variety of disputes about facts. In my view some are peripheral and others irrelevant, but to the extent that findings might be thought necessary, that follows:
(a)The mother alleges the father did not tell her of his psychiatric problems before their marriage and her view seems to be that she was duped into the marriage by some collusion of silence about it from him and from his family. But the father denies this and in my assessment he gave an entirely plausible and convincing explanation of the circumstances in which he did tell her of it early in the relationship.
(b)The mother also raised difficulties in consummating the marriage, not only in her affidavit but in her discussions with professionals involved, when she persisted with the view that this was entirely due to the father being impotent, a matter of bitter disappointment to her. I saw the issue as irrelevant to what has to be decided here but when raised with Mr Spicer he made the submission that its relevance is related to establishing the reasonableness of actions taken by the mother. This did not give it any more merit, with respect, but the issue was fully ventilated. It is obvious enough there were difficulties in sexual functioning for the father, evident from the change in his prescribed medication to address it and Dr C’s evidence, but he maintains the difficulties were not his alone; they each had issues in that area of functioning that needed to be addressed. That perspective is more probably the reality, particularly when regard is had to Dr K’s assessments.
(c)An area of discord that developed early on was the attitude of each to the other’s family, but apart from noting it was, and apparently remains, a source of dispute there is nothing to be made of it here.
(d)After the daughter’s birth the mother left hospital and went with her family to a City Hotel, for reasons not apparent, before returning home. A dispute arose at the hotel and different perspectives have been given about what happened and who was responsible for it. However, I accept the more reliable account has come from the father who explained there were difficulties in his family seeing the baby, the mother had called his mother a ‘low gene pool from Greece’, he was upset and he expressed himself rather strongly to the mother’s brother about it.
(e)The event which precipitated the separation and his return to his family was the blessing of the daughter 40 days after her birth, a significant time for family from religious and cultural perspectives. Driving to the church for the event, the parents stopped at a shopping centre to allow the father to go to the toilet and the mother drove off without him while he was absent. When he arrived at the church the blessing was underway. She had also thrown his mobile phone into a rubbish bin. As he saw it, it was an issue of respect and he made the decision to leave. Somewhat paradoxically in light of what could only be described as her disdainful attitude towards him at the time, the mother maintains she was shocked at his departure and she remains angry at him for leaving – he simply ‘packed up and left’ and, as she put it at one stage, ‘abandoned’ his newborn daughter.
(f)Since the separation she has not informed the father of decisions she has taken about the daughter. The arrangements she made to his exclusion about the christening is an example. Another is that she arranged for the daughter to be immunised but did not relay this information to the father who inferred it from the tape he saw over the mark left by the injection when changing her nappy.
(g)There have been occasions the father did not have contact with the daughter on Wednesdays, despite the orders providing for it, and that was because of his work commitments. The mother alleges he failed to notify her he would be unable to attend on the Wednesday, in breach of the orders obliging him to do so. But the father explained, and I accept, that he had on most occasions provided a note to this effect and on a couple of occasions when he had overlooked it he had advised his solicitor about it on the Monday.
(h)There is an allegation that the father or his family has harassed her through unwelcome telephone calls and that seems to be the subject of the intervention proceedings still pending in the Magistrates Court. Annexed to her affidavit are some documents from her telephone service provider including a record of some calls over a period from October 2005 to 16 September 2006, which includes a number of calls made from overseas. The relevance of the document to her complaint against the father is not apparent. There was a call to her home from the father’s family in September 2006, it is conceded, to inquire about the daughter’s well-being after she had chicken pox. But there is nothing from anything presented to implicate the father or any member of his family in any wrongdoing of the kind suggested. No doubt if the hearing proceeds later this month in the Magistrates Court the issue may be presented in a clearer light, but on what has been presented here the allegation is without substance.
I come now to letter of 4 January sent to Ms M and to related matters. Some matters raised in the letter had been discussed with Ms M in interview but, as noted earlier, it was written after the overnight visits had begun and so it is important to examine her concerns at that point.
One matter she raised was the daughter’s presentation when collected by her father and on her return to her mother’s care:
‘Overall the child returns unhappy, withdrawn, disoriented, not well fed, non-responsive and finds it difficult to settle quickly to her home environment upon return. She does not smile, communicate and her look is fixed. There is a long time delay before she begins smiling, brightens up and is back to her normal playful self. Upon leaving my residence she becomes resistant to leave her stable and happy environment in order to spend time with her father. When she is collected by her father and upon seeing him, she turns her head towards the mother’s grandfather and grabs on to him. She becomes tearful, cries out aloud and does not want to leave him. She has to be torn away from her grandfather and given to the father.’
This paints a disturbing picture but in rather general terms and the mother was rightly asked to describe the behaviour behind it and that failed to match what had been conveyed in the letter. For example, asked to say what led to her describing the daughter as ‘withdrawn’ on return, she answered by saying the child needed time to settle and be comforted: ‘she came home and ran inside the house, she just could not wait to be in there and let loose’. Asked about the child crying, only one occasion was identified. Asked about the circumstances at the beginning of visits, the mother was reluctant to say where she is in the house when the daughter is handed over to her father, ultimately saying she is nearby in the kitchen. But the whole impression gained from her evidence about this was of a rather tense atmosphere in her home on those occasions. On the other side of the issue, the father gave a description of the way in which the daughter is handed over to him by her grandfather, which could hardly be seen as encouraging and the description of the daughter’s temperament while in his care [see also photographs] is wholly contrary to what is described in the letter. At the end of it, there was nothing to warrant the descriptions given in the letter of the child’s behaviour and nor, it has to be said, was there any acknowledgement that to the extent the child did display some behaviour worthy of remark, there just may be an explanation not so much related to the spectre of a visit to her father but arising from her mother’s own presentation.
The letter also raised the Wednesday visits and Saturday overnight stays as being in some way related to weight loss by the daughter:
‘The weekly Wednesday day contacts and overnight Saturday stays have not been the most appropriate arrangements decided for the child’s welfare. The child has suffered loss of weight to a critical point raising concern by the maternal health care nurse. When the father has not exercised his Wednesday contacts the child returns to an acceptable weight and height range.’
This is unsubstantiated by any credible evidence, either as to the fact of the weight loss or as to cause.
The mother also expressed concern about whether the father would be capable of seeing to the daughter’s needs during the night, not only because of a generally alleged incapacity to care for her but also because of the effect of the medication he takes:
‘I am equally concerned that her needs to be nursed and comforted appropriately at night during her teething, immunisations and broken sleep are not being met accordingly as would from her mother. At night the father takes Rivotril tablets and is heavily sedated.’
Those in the father’s household say the daughter does not wake at night but the proposition that the father would be unable to wake to see to her needs is denied in any event. Dr C’s evidence tends to support this. As he explained it, the anti-psychotic medication [Solian] he now takes in low dosage tends to be energising rather than sedating and the anti-anxiety medication [Rivotril], being a benzodiazepine, can induce a sedated or sleepy effect though the father does not use it frequently. In short, there are potential side effects from the medication prescribed but dosages are kept as low as possible. The mother’s concerns about the father’s alleged use of taking Panadol and vitamins was taken up with Dr C but there was nothing to validate those concerns.
She has maintained throughout her strong opposition to any overnight visits and, as she had not put any concrete proposal in her case, her counsel asked her at the hearing what she saw as an appropriate outcome for the daughter spending time with her father. The mother nominated, obviously reluctantly, every second Saturday from 10am to 4pm as well as some special occasion visits, excluding overnight visits. When explored by counsel for the father, she agreed her outline, if adopted, would mean the daughter would spend about 30 days a year with her father.
Taken to the topic of overnight visits by counsel for the independent children’s lawyer, the mother agreed it had been her preference for a long time for the daughter not to spend overnight with her father, she thought it would be appropriate when she is about 12 years of age, because that would be when the daughter would be able to protect herself. Asked what she would be protected from, she nominated ‘advances’ and went on to identify advances from the paternal grandfather and to refer to the father as ‘sexually abusive’. She added she is ‘beginning to wonder what sort of people they are’. Asked if she considers the daughter is at risk of sexual abuse in her father’s household, she said she ‘does not know but (she) wants to find out’.
Nowhere had she flagged any such concern and nor, it should be said, is there the slightest indication from anywhere that the child is at such risk in the care of her father or in his household. That this sort of allegation would be raised out of the blue with no substance to support it is a worrying indicator of the future for this child’s prospects of achieving settled arrangements between her parents.
In the 4 January letter the mother alleged she had been exposed to abuse from the father and his family - presumably this is based on the allegation about harassment from telephone calls which has already been mentioned - and she goes on to express concerns about the daughter’s safety while with her father and being exposed to risk of abuse:
‘I have been concerned with the child being exposed to the risk of abuse and am unable to know if she is OK in the presence of her father and his supervisors. This concerns me gravely. However, neither do I wish for her to be institutionalised at a contact centre. My preference is for a family oriented approach that is practicable and safe for her with analogous supervision.
The concern about the father’s ability to care for the daughter and the prospect of risk to her safety and well-being had been discussed some months earlier with Ms M who reported the mother describing herself as ‘not a no-contact mother’ but adamant she did not want overnight visits to occur, she would consider overnight stays when the daughter is older, and she had no problems with day visits as long as there is supervision by his brother or sister but not by his parents, and as long as the day visits were not on Sunday because she wishes to take the daughter to church on Sundays. She also discussed the risk to the daughter if either of the paternal grandparents were supervisors, saying the paternal grandfather is ‘old, with health issues’ and the paternal grandmother had been ‘on Valium’ and is ‘elderly’.
Her discussion with Ms M of her concerns about the father’s functioning in one way or another, allegedly rendering him unable to properly care for a child, included reference to his psychiatric condition [at the hearing she said ‘you cannot erase his schizophrenia or the temper tantrums or the panic attacks or the unsettled nerves’], his adverse response to stress [she reported: ‘(his) nerves often could not handle looking after [the daughter] much, although she acknowledged that he had helped to feed their daughter’], his ‘temper tantrums’, panic/anxiety states, and ‘obsessions’ with hygiene and a number of other things.
The mother was unable to concede, despite the evidence of Dr C and Dr K, that there had been no return of his psychotic symptoms. Allied to her suggestion he was incapable of caring for the daughter, she suggested he was incapable even of formulating the proposals he put to the Court about the daughter’s future care: she does not know who had done that on his behalf ‘his lawyer or family – I was not there’. And she was unable to agree that the daughter was happy in her father’s care, despite reading Ms M’s account of her observations, because she (Ms M) ‘had only seen them on two occasions’. She was also unable to readily acknowledge the father loves the daughter or that members of his family love her: ‘I assume he does – I do not know if it is true – actions speak louder than words – I can’t comment.’ And asked what he had to offer the daughter, she referred to him being her father, but she went on to talk of him ‘abandoning’ the daughter at such a young age while she was ‘left to pick up the pieces’ and of the need to inform the daughter about his reason for doing so in the future.
In her letter of 4 January she repeated earlier concerns about the father doing the driving to collect and return the daughter:
‘The driving should not have been allowed to be done by the father, whilst the child is in his care. He is on anti-psychotic medication, suffers from panic attacks and is aggressive in his driving. During the marriage he was down to one demerit point. In the interest of the child’s safety, the driving should only be done by his supervisors and not by the father as has been the case….’
It is conceded that the father was down to one demerit point at one stage. As he explained it, this happened after he had bought a new car and had been driving over the speed limit. On his account of it, that was some time ago and it has not been a recurring issue.
The letter also raised shared driving as an issue; that is to say, the mother does not want to do any of the driving for reasons she relayed at the time:
‘Shared driving is an issue, since I do not have a car and am afraid of collecting my child from him and his family. He has sworn affidavits that he has access to cars and the support of his family to assist him in collecting and returning the child.’
The emphasis she had given earlier to Ms M for the need to take the daughter to church on Sundays was repeated in the 4 January letter, but this emerged in a different light when explored at the hearing. It turns out the mother does not attend one church consistently, she goes to a local church as well as others, and she had not attended any church recently. Her explanation for that related to being ‘harassed’ at church by relatives of the father – ie. his sister in law and niece had driven by the church in a red car on a specific date in October 2005 – though this was not amongst any of the history related in her affidavits.
Parenting
Current circumstances & proposals
The parents’ present living and work arrangements have been noted already and their proposals about the daughter’s care are apparent from what has already been said of the orders sought. To that may be added the observation that neither makes any mention of moving and establishing themselves away from their own family and therefore it can be taken that each will remain closely involved with and supported by their own family in the foreseeable future.
Legal principles
The concept of best interests of the child, the paramount consideration in making a parenting order [s 60CA], is the cornerstone of the Act and there are a number of provisions related to it.
The stated objects are about ensuring children’s best interests are met: by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests, by protecting children from exposure to physical or psychological harm, by ensuring they receive adequate and proper parenting to help them achieve their potential, and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s60B(1)]. These objects are supported by a number of underlying principles which, except when it would be contrary to a child’s best interests, acknowledge a child’s right to know and be cared for by both parents, a right to spend time on a regular basis and communicate regularly with both parents and significant others, a right to enjoy their culture, and parents jointly share parental duties and responsibilities and should agree about future parenting [s60B(2)].
Determination of best interests requires regard to be had to two ‘primary considerations’ which reflect in part the objects just mentioned: the first is the benefit to a child of having a meaningful relationship with both parents and the second is the need to protect the child from physical and psychological harm [s60CC(2)]. It also requires regard to be had to a number of ‘additional considerations’ which are wide ranging and in some instances their meaning elaborated upon in other sub-sections [s 60CC(3)(4)].
There is a presumption to be applied, in making a parenting order, that it is in the best interests of a child for parents to have ‘equal shared parental responsibility’ [s61DA] which is about parental decision making and not about the time a child spends with a parent. However, the presumption will not apply where there are reasonable grounds to believe a parent has engaged in child abuse or family violence and it may be rebutted if satisfied equal shared parental responsibility would not be in the best interests of the child [s 61DA].
If the presumption applies and there is to be an order for equal shared parental responsibility, there is an obligation to consider whether it would be in the best interests of a child to spend equal time with each parent and whether that would be reasonably practicable [s 65DAA(1)]. If that order is not made, there is an obligation to consider whether it would be in the best interests of the child to spend substantial and significant time, as further defined, with each parent and whether that would be reasonably practicable [s 65DAA(2)]. Where neither of these considerations leads to an outcome consistent with best interests or the presumption does not apply for permissible reason, then best interests are determined by primary and additional considerations already mentioned.
Best interests
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child's parents…
This is a matter of significance in this case. If the outline of the future sketched by the mother were adopted, there would be no real opportunity for the child to develop a meaningful relationship with her father. Of course, if consideration of all relevant factors led to the conclusion such an arrangement would be consistent with her best interests, then that would prevail. But as discussion should have made apparent by now, that is not so here. As I find, there is likely to be considerable benefit to the child in having a meaningful relationship with her father but her mother’s view of her future would not allow that to be developed. As I also find, the child would benefit from having a meaningful relationship with her mother and her father’s proposal if implemented does not undermine her opportunity to take advantage of that benefit.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is risk of harm factors to be considered here, though they do not necessarily arise from ‘abuse, neglect or family violence’. The daughter is a very young child, not yet capable of looking after herself or protecting herself from situations that may pose a risk to her well-being from any number of sources, and that means a cautious and considered approach has to be taken to evaluating any risk factors that may be part of her day to day environment. In this case, though different in their nature, those factors are to be found in her circumstances with each parent.
Risk arises from her father’s care by reason of his long standing illness which has psychosis as part of its symptoms. Plainly there would be a need to protect her from the unforseen if he were to decompensate or attain a florid state while caring for her. Of course it is not possible to rule out the prospect of this occurring, but when all of the evidence about the father is sifted and considered, not only from what has been said already but from assessments yet to be recorded, it can be comfortably concluded that while he is living with his family and compliant with medication and treatment from his psychiatrist, then the level of risk could not be seen as unacceptable. There are solid indicators that he will continue to live with his family and he will continue to be compliant and conscientious about his treatment. The evidence of both Dr C and Dr K support that finding and the assessments made by Ms M of his relationships and capabilities, though from a different professional perspective, also support it. It follows that I reject the contrary submission about unacceptable risk put for the mother in closing address.
The father’s mental health history and current treatment has all been laid out for consideration and evaluation and I am satisfied the disclosure has allowed a proper examination of his condition and therefore bolsters a degree of confidence in the assessments that have to be made about him in the daughter’s interests. Regrettably, there is not the same degree of confidence about the mother’s history and what it might mean for the future. True it is that Dr K undertook an assessment of her mental state and he made some observations about anxiety and personality factors amongst others though he did not diagnose mental illness. Nonetheless, it is clear he had reservations arising from the absence of objective history by reason of the fact that she had destroyed her patient records. Noting his reservation does not mean it is being stretched into a conclusion the mother has some untreated mental illness. No finding to that effect could be or is made here and Dr K’s assessment, which includes his expressed reservation, prevails on that topic. It is merely to say there was a gap in the history, it is a shortcoming about an important issue for a child, and it means there was not available as full a picture of the mother’s history of mental health as the father’s. This inevitably creates a measure of disquiet about whether perhaps there is more to the situation than meets the eye or whether a less reserved assessment from Dr K, with all the information at his disposal, might have been more enlightening.
But even putting aside that disquiet, the evidence demonstrates a risk to the daughter’s well-being in her mother’s care, though of a different sort, and that arises from her attitude towards the daughter’s father and the significant shortcomings in her willingness [or perhaps ability] to facilitate and foster a relationship between the daughter and her father. It remains a matter of concern that the end of these proceedings will almost certainly not bring about any change in her attitude, or at least there is nothing apparent to indicate change or any insight into the need for it. To the contrary, there is the shadow of unsubstantiated allegations being further elaborated.
It is said the mother’s concerns and fears about the potential risk of harm to the daughter from her father’s mental health and other behaviour as she experienced it [eg temper, panic, anxiety] are genuinely held. That is a difficult question, made the more problematic by the absence of a full examination of her history as might otherwise have been possible. But I do think it ought to be resolved in her favour and therefore the assessments necessary to arrive at a view about what is in the daughter’s best interests are undertaken on the basis that her beliefs are genuinely held.
Additional considerations
(a)child’s views
This is not relevant in this case.
(b) nature of the child’s relationships…
Central to this is Ms M’s assessment from her observations of the father with the daughter on two occasions. The father has a good relationship with The daughter and this is reciprocated by her. He was described as well organized and prepared, attentive, loving and gentle as well as very watchful for potential dangers. She was relaxed and comfortable with him, she behaved in an appropriate manner, and she played happily close by and was responsive to being cuddled by him.
There was tendered a considerable number of photographs taken in the father’s household over time and, while I am yet to see a photograph tendered depicting a distressed child on a visit to that parent, they do reflect in a substantive way a loving father/child relationship and a close extended family environment. I do not doubt that the daughter is very much loved by her paternal family and I have no reason to doubt that she has good relationships with members of the family including young cousins.
I am also satisfied that she has a close relationship with her mother. As Ms M assessed it when she saw them together last year, the daughter seemed happy to be in her mother’s company, she played close by and she sought her mother’s attention at times. There were no concerns about their relationship.
The daughter lives right next to some of her extended maternal family and, similarly, there is no reason to doubt that she is loved and is an important part of that family environment or to doubt that she has anything other than good relationships with her extended family.
(c)willingness and ability facilitate the parent/child relationship..
(i)attitude to parental responsibilities…
(f)capacity ….to provide for the child’s needs, including emotional and intellectual needs
These factors, as elaborated in the legislation, can be conveniently considered together. Taking the father first, the mother’s concerns about his impaired capabilities has been referred to already and need not be repeated here. Suffice to say the matters she has raised go not only to the impact of his mental health but also to his capacity to provide responsible day to day care in more routine ways. Yet there is no support for this view. That comes not just from what the father or his sister had to say about it, but from the independent assessments made by the experts involved. Neither Dr K nor Dr C have seen him at any stage with the daughter, as they readily acknowledge, and so their opinions came from the perspective of their particular expertise. But neither flagged any concern about his ability to care for a child, subject to the caveats noted earlier.
Ms M, on the other hand, did see him on two occasions with the daughter, the second time for 1½ hours, and therefore she had a reasonably good opportunity to observe him with his daughter. She assessed him as quite capable, as well organised and prepared with all the things necessary to see to a young child, and she described him as attentive to the daughter’s needs and watchful and he handled her gently, appropriately and with affection. She was relaxed and happy in his company and when she became restless he was observed to check her appropriately, to hold and sooth and reassure her, and she was responsive. This gives a reassuring picture, borne out by the father’s general presentation.
I am satisfied that while living in his family’s home, compliant with prescribed medication, and with regular treatment by his psychiatrist he is well able to care for the daughter’s needs, including her physical and emotional needs.
I am also satisfied that since regular visits began some months after separation the father has not conducted himself in any way to attract criticism. He has done a share of the travelling necessary for the visits to occur and there has never been an issue about the daughter’s return to her mother at the appointed time. He has paid child support as assessed from time to time and thus contributed to the daughter’s support while in her mother’s care as well as providing for her when she is in his household. For a time he did not have the daughter for Wednesday visits permitted in the interim orders but that was related to his work commitments and is no reflection on his commitment to his daughter. I am satisfied he has demonstrated a proper attitude towards his parental responsibilities and I have no concerns about his willingness or ability to facilitate and foster the relationship between the daughter and her mother or maternal family. On the whole I assess the father as a loving parent who is genuinely motivated to participate in the upbringing of his daughter and to play his role as her father and I further assess him as having a genuine appreciation and respect for the complementary role her mother fulfils.
Turning to the mother, Ms M observed in her report that when she brought the daughter to the interview the child was appropriately dressed and appeared well cared for and healthy. As she also observed, the mother presented as a loving parent who was responsive to the daughter and knowledgeable about her needs. Ms M had no concerns about her management of the child though she observed the daughter may have been affected to some degree by her mother’s anxiety or stress in the assessment context. I am satisfied she is well able to provide for the daughter’s physical well being and that she is a loving parent in her manner of dealing with her daughter.
Regrettably, she has consistently demonstrated an unwillingness to support the relationship between the daughter and her father in any meaningful way. It is of concern that she has taken important decisions about the daughter without any consultation or involvement of her father and she has not taken proper steps to inform him of developments he ought to know about. But the concern is heightened by her apparent inability to appreciate why this would attract any criticism. In her discussion with Ms M about the christening, for example, her view of it is that she had made the arrangements she understood she could do legally and she did so in a way that did not acknowledge the possible impact on the father of her unilateral decision not to inform him or invite him to participate with his family.
It is apparent not only from her discussions with Ms M but from her evidence at the hearing that she does not see the father as having any real role as a father, though she does acknowledge he is the daughter’s father and she should know him. Nor does she think he has anything much to offer the daughter. Indeed, she questioned at one point in discussion with Ms M whether these proceedings were part of an attempt on the part of the father’s family to ‘prove he is normal and can look after a child’ adding ‘although he is not and can’t’, thereby questioning his motives in bringing the proceedings to secure time with his daughter outside what she is prepared to permit. In other discussion with Ms M about his incapacity to care for the daughter, she cited his departure 40 days after her birth as giving ‘priority to members of his family over his child’ and referring to his ‘abandonment’ of his newborn child. It follows from what has been said already of the father that this is a perspective entirely unsupported by the credible evidence.
The mother’s proposals, such as were reluctantly extracted, lacked an appreciation of the medical evidence, demonstrated no insight into what the relationship with her father obviously means to the daughter, and instilled no confidence that she would support any outcome to these proceedings other than her own view of it. These attitudes are inconsistent with her parental responsibilities, including her responsibility to facilitate a relationship for the daughter with her father. The prospect of change is bleak. While the father indicated to Ms M a clear wish to work cooperatively together, acknowledging the importance of their separate roles, plainly the father has not yet developed the ability to contemplate taking any step that might improve their communication or diminish the bitter attitude she so palpably demonstrates towards him.
(d) ..likely effect of changes in the child's circumstances..
Both parents’ proposals represent a change from the current arrangements: the father would have the time spent with the daughter extended now and be increased later after she commences school. The mother would have the time spent now scaled back to withdraw the overnight visits established some months ago and reduce the time the daughter spends with her father significantly.
The likely effect on the daughter of adoption of her father’s proposal or something akin to it will be to give her the opportunity to develop a meaningful relationship with him by spending relatively significant periods of time in his company and around members of her extended paternal family. The converse applies if her mother’s view of the future arrangements were to be implemented. On the other hand, as the mother is the child’s carer for most of the time, adoption of her position as an outcome could be seen as less stressful for her and therefore indirectly less stressful for the child. This is a consideration to weigh in the balance, but it is not one to which any great weight ought be attached when all relevant factors are considered.
(e)practical difficulty and expense of spending time..
Living a distance apart as they do, there are some practical difficulties in the daughter spending time between each of her parents, but it is manageable. The father’s work commitments during the week have imposed some difficulties in the past and account has to be taken of his employment which at the moment is not certain past June but it is quite possible it will remain a factor to be accommodated in any arrangements for the daughter.
(g)maturity, sex, lifestyle and background..
The daughter is a very young girl with extensive family on both sides and while there may well be differences in the backgrounds of each family, they share a common Greek heritage. She will therefore have the opportunity to know her history and learn about her inherited culture, customs and language whether she is in the care of her mother or of her father.
(l)whether…preferable to make the order …least likely to lead to the institution of further proceedings…
Ideally orders at the end of a final hearing aim to bring an end to proceedings rather than have them prolonged by a form of order that would have the matter return to the Court or remain pending. In some cases, for one reason or another, provision is made for that to occur or the possibility of it occurring because that course is consistent with a child’s best interests. In this case, there is a suggestion from counsel for the independent children’s lawyer that there be a supervision order pursuant to s 65L of the Act for a period of 12 months. Having considered the pros and cons of adopting that course, I have concluded on balance it would be preferable.
I should mention there was a recommendation from Ms M in her written report for the parents to undergo therapeutic counselling to improve their parental relationship. Quite apart from whether such an order can be made on a final basis and issues related to the form of order in any event, I do not propose ordering any arrangement along those lines. It is contra-indicated by the overwhelming weight of the evidence because, as I see it, a forced march is hardly likely to be productive and any success in that quarter is only likely if undertaken voluntarily. The parents are free to tackle the issues by taking steps in that direction, of their own volition, and need no orders to do so.
Conclusion – best interests
Turning now to the question of equal shared parental responsibility, I am satisfied the presumption that it is in the child’s best interests applies in this case. It is not displaced by allegations of abuse or violence and nor is it rebutted by any other factor. An order for equal shared parental responsibility is entirely appropriate to the circumstances here. It follows that it is necessary to consider whether it would be in the daughter’s best interests and reasonably practicable for her to spend equal time with each parent. That is not an outcome proposed by the father and having regard to her very young age and history of care to this point, I could not say it would be in the daughter’s best interests to make such an order. However, I do conclude it would be in her best interests and is reasonably practicable for her to spend substantial and significant time, as defined in the Act, with each parent.
In determining what that time should be, there is much to weigh in the balance. But I have no difficulty in concluding that the daughter’s best interests require an outcome consistent with the material aspects of her father’s proposal, which is supported by counsel for the independent children’s lawyer who provided a final form of order proposing much the same regime for the daughter’s time with him, amongst other orders. In coming to that view, it is recognised that the daughter is still a very young child and the conventional thinking about care arrangements for children in her age group would more usually lead to visits at regular and frequent intervals but for relatively short periods. The adoption of these proposals means the daughter will spend longer periods of time in her father’s care than would fit that more conventional age/development model. But in my judgment that outcome is necessary to see that her relationship with her father is supported and she is given a realistic opportunity to develop a meaningful relationship with him, he is a loving parent keen to participate appropriately in her upbringing, he is capable and has an appropriate attitude to his responsibilities as a parent, she has a close and loving relationship with him, and I am satisfied she will benefit from being in the ambit of his care.
There are a good many factors to be found on the other side of the scales, not the least but not exclusively being her mother’s genuinely held anxiety about the daughter’s safety and well-being from such an arrangement. But if the daughter is not given the opportunity to spend this extended time with her father, despite her young age, and to experience him and his family for herself, there is a real concern that she will be vulnerable to the clear attitude of her mother about her father’s lack of interest, capability, and importance in her life. That would be to her significant detriment, in the short and long term, and undermine her chance for a healthy and balanced development by having both parents involved in her upbringing.
Form of orders
The orders set out earlier are a slightly revised version of the proposed orders put by counsel for the independent child’s lawyer and represents what I regard as appropriate to the circumstances, but some brief comments need to be made about the orders as drafted:
(a)I have changed the overnight visit between weekends to Thursdays rather than Wednesdays to position it more towards the middle and apportion a little less steeply the period the daughter would be absent from each parent. Mr Spicer made a brief submission about suspension of visits to the father for a period to allow holiday time by the mother with the daughter. But if some holiday time is required in the lead up to school and holiday periods being available then, it could be raised for discussion and decision between the parents. The general order for arrangements to be as agreed would allow for that.
(b)It will be apparent I have not made provision for the daughter to be returned to her mother so she could be taken to church on Sunday mornings; her father is able to see to her religious observance if he deems it appropriate while she is in his care.
(c)I have adopted the proposal about the venue for collection and return at her school on Friday and Mondays when that phase begins. It is appreciated that in some instances this can create problems for children; for example, by the need to take belongings to school for the coming weekend, but the advantage here will be that changeover can occur in a neutral environment where the daughter will not be exposed to the immediate concerns of her mother at the time of transition.
(d)Provision has also been made for the travel necessary to be shared between the parents or their respective nominees. This is consistent with the more usual view that it benefits a child to observe that each parent is participating in the arrangements necessary for them to spend time between their parents’ households, which outweighs other considerations here. Allied with this, the mother’s application for the father to not be the driver has not been adopted. While her concern and his history is not without weight, the father discussed the issue satisfactorily and I am satisfied similar problems are highly unlikely to recur in the future.
(e)Finally, as noted already, I have adopted the suggestion of reportable supervision pursuant to s 65L by a Family Consultant for a period of 12 months. That is to support the implementation of the orders by providing such assistance as might be necessary to ensure the ordered arrangements for the daughter are put in place and any difficulties are addressed, preferably, by discussion, but if that fails, then by further report.
property settlement
The parties’ current assets and liabilities in so far as findings can be made are set out below:
The father’s assets
1. D property 320,000
2. L property 415,000
3. G property 200,000
4. N property 180,000
5. Shares - Telstra 20,128
Telstra3 6,000
6. Commonwealth Bank 596
7. Commonwealth Bank 8,017
8. Telstra Superannuation 95,600
1,245,341
Less liabilities
9. Mortgage Commonwealth Bank 199,183
10. Master Card debt 8,692 207,875
NET 1,037,466
The mother’s assets
A property 350,000
National Bank Shares 2,925
Household contents 2,000
Superannuation (estimate) – valuation pending 56,000
410,925
Evaluation of contributions
The assets have been organised according to what each party owns. This arrangement into two categories of ownership is more appropriate to the assessment of their contributions than taking a global approach.
This is a very short marriage. Each brought assets to the relationship, as discussed, and each retained what they brought with them on separation. In the meantime, while they were together they lived in the mother’s unit. Over that period the father reduced his bank debt but that was due in part to the injection of capital from sources available to him as well as the usual loan repayments. He contributed towards the family’s living expenses and day to day needs from his available funds, including employment after he started work. The mother’s banking arrangements and her entitlements through her loan account with the Trust discussed earlier are insufficiently clear and so it is not possible to form a view about her circumstances with any confidence. On the face of the documents tendered, it would appear she was able to accumulate funds during the marriage and use considerable funds standing to her credit with the Trust, but there is no way of knowing what she did with that money.
Their daughter was born just over a month prior to the separation and in that time it is probable they were both involved in her care but her mother was more closely involved with the day to day arrangements for the baby.
In the period since separation the daughter has spent the overwhelming majority of her time in her mother’s care and the mother has taken most of the responsibility for her day to day care as a result. The daughter has been with her father regularly, mostly according to the interim orders, and he has provided for her when she has been in his care and otherwise has paid child support as assessed from time to time.
In my opinion, their contributions to date ought to be seen as entitling them to retain their own property and there is nothing about their respective contributions to justify an alteration of the interests of either in favour of the other. On one view of it, the father’s position might be seen as having been effected by the fact that she provided her home as their residence while the father was able to continue receiving rental income from his properties, by her departure from paid work after her pregnancy, and by her need to attend to their daughter after June 2005 rather than return to work. But if so, it would be counter-balanced by the father’s financial contribution to the family expenditure while her income was allowed to accumulate to the extent of permitting her to invest $20,000 in a term deposit, not to mention the uncertainty of her position from inadequate disclosure about her dealings with her entitlement from the Trust.
Section 75(2) factors
The parties are of similar ages, in their late 30’s, and while each has a history of impaired health, they have been able in the past to engage in paid work and support themselves from earnings.
The father’s work has been patchy for some time and his current arrangement is scheduled to cease in June. But he has been successful in positioning himself in the workforce despite periods of unemployment and there is every reason to be optimistic that will continue. It can be anticipated, therefore, that he will have a capacity to earn an income and support himself in the future. His income is relatively modest but he lives with his family and manages not only to maintain himself but also maintain his property investments which are not insubstantial. Seen together, his capital and income earning capacity put him on a relatively secure financial footing.
The mother’s work has been interrupted by the daughter’s birth and the need to attend to her care. She wishes to continue in that role for the short term future the daughter starts school. That is some time off yet but she can be seen in the longer term therefore as re-positioned back in the paid workforce. As for her capital, she has an unencumbered unit in which she lives and it is anticipated that will continue to be her residence. The list above suggests she has only modest assets apart from her unit and otherwise she has superannuation worth around $56,000 though it will be some time yet before she is able to access that.
The parenting orders will mean that the daughter will spend more time than previously contemplated in the care of her father who will be responsible for her needs during that time. Nonetheless, present indications are that she will continue to spend most of her time in her mother’s care and there are many years to go yet before her dependency comes to an end. This is a factor of the father’s application is to pay the mother $35,000 by way of adjustment for s 75(2) factors. In normal circumstances, this would have to be seen as rather light on given the disparity in future responsibility for their daughter’s care as best can be forecast here [favouring an adjustment to her] and given the apparent disparity in their overall financial circumstances, both as to current income and capital [on the face of it, also favouring an adjustment to her]. But there is a difficulty in assessing the father’s circumstances and the problem is the same as discussed before; without proper disclosure of her financial dealings with bank deposits and her interest in the loan account of the Trust, there is no way of assessing her circumstances in the same way it is possible to stand back and look at the financial position and future prospects of the father who has fully disclosed his position and laid it all out to view.
One option is to adopt the $35,000 adjustment on offer from the father and it would be hard to allow room for valid grievance if that were done. But another option might be thought to at least have some regard for the magnitude or extent of money to which she had an entitlement but did not properly disclose its destination or use; namely, the term deposit and the bulk of the loan account credit. However, in my view the latter option should be discarded because ultimately, drawing on Weir, it is inequitable to lean in this way towards a party who has not assisted in the adjudication process by proper disclosure when the other has done all that is required.
I propose therefore to adopt the payment of $35,000 as an appropriate adjustment by way of property settlement.
Just and equitable
An order entitling each to retain the property they own and for the father to pay $35,000 within a month from the date of orders will bring about a just and equitable settlement of property in the circumstances discussed. Orders will be made accordingly.
spouse maintenance
The provisions of s 72 of the Act impose a liability on a spouse to maintain the other to the extent of their reasonable ability if the other spouse is unable to support themselves adequately whether by reason of having the care of a dependent child, in capacity for appropriate gainful or employment or any other adequate reason having regard to any relevant matter referred to in s 75(2).
That raises a threshold question and here that is whether the mother is unable to support herself adequately. Her expenses are to be found in her financial statement. The estimate given in Part N is weekly needs totalling $470 but a number of items there have been marked ‘anticipate’ and it is not clear what is meant by this. For example, education fees for her of $50 per week are not now being incurred and so it must represent some estimate about plans for the future. In any event, if the ‘anticipate’ expenses totalling $210 are deducted, there remain weekly expenses of $260. Added to that there is the expenditure noted in Part G totalling $124, making a total of $384 per week. Her income apart from minimal dividend and interest is child support and government benefits which have to be ignored in assessing her capacity to adequately support herself.
Again, on the face of it with a young child in her care and the father’s apparently superior income and capital position, it might be thought she has established a case of need. But that would be to ignore the inadequate disclosure of her financial circumstances because without proper information about the destination of funds discussed earlier it cannot be concluded that she does not have income or capital elsewhere. Her maintenance application has to turn on that finding. It will be dismissed.
child support departure
A departure order may only be made pursuant to s 117 Child Support (Assessment Act) 1989 if the Court is satisfied a ground for departure exists [s117(2) elaborated in ss (3)(3A)(3B)] and it would be just and equitable [s117(4) elaborated in ss (6)(7)(7A)(7B)(8)(9)] and otherwise proper [s117(5)] to make the order.
The orders sought by the mother for child support were noted at the outset and the father seeks its dismissal. The effect of dismissal would be to permit the current child support assessment of $295.17 to operate until its expiration on 31 January 2008, a period of around 11 months.
First it has to be considered whether a ground for departure exists. No ground was identified by the mother’s response and nor was any identified in submissions on her behalf. However, if one turns to the grounds in s 117(2) it can be said that no ground could arise under paragraphs (a) or (b) or parts of (c). In this case, it could only possibly be established under paragraph (c):
(c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
….
(ia)because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or…’
On one view of it, the husband’s position might justify a finding that the ground is established, particularly where the administrative assessment of $68 per week represents in the order of 9% of his total gross weekly salary or a little over 11% of his salary net after tax - at least for the duration of his current contract - and then regard has to be had to his capital.
But of course finding a ground is not sufficient of itself; there must also be findings that it would be just and equitable and otherwise proper to make a departure order. As to whether it would be just and equitable, a number of matters set out in ss (4) have to be considered and they include not only the needs of the child but also the income, property and financial resources of each parent, amongst a range of other factors. It becomes apparent at that stage, therefore, that again the mother’s application must founder on the disclosure issue. In the circumstances, I could not find that it would be just and equitable to make a departure order and that is sufficient to dispose of the application.
I should say, however, that the application for a lump sum [unspecified as to amount or duration] could not succeed in any event. That is because this is a very young child with many dependent years ahead of her, there could be no safe prediction made of the financial circumstances of the parents over such a long period, nor could there be any confident prediction about her arrangements for the whole of that time, and there is no history of non-compliance by her father with any assessment issued to date to warrant the out of the ordinary step of making an order for lump sum child support. It is proper that circumstances be reviewed by the usual process of an assessment followed by such objections within the Child Support Agency as each parent may be advised and any departure application to follow accordingly.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore
Associate:
Date:
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as KANAVAS & VARDAKIS
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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