Kapicic and Bakal

FAMILY COURT OF AUSTRALIA

KAPICIC & BAKAL

[2016] FamCA 410

FAMILY LAW – CHILDREN – final orders – where the father seeks orders for sole parental responsibility and that the child live with him – where the orders are opposed by the mother – where the father is concerned as to the mother’s mental stability and considers her time with the child should be supervised – where the parties are in dispute as to the child’s health – where the Court finds that the mother’s allegations against the father are scandalous – where the ICL seeks an order that the mother undergo a course of therapy before she is permitted to spend time with the child – where the family consultant support orders in favour of the father – where it is ordered that the father have sole parental responsibility and that the child live with him and spend time with the mother each alternate weekend and during school holidays.
FAMILY LAW – PROPERTY – final orders – where the father seeks a settlement sum – where the mother seeks to retain the former matrimonial home – where it is just and equitable to make an order for property settlement – where consideration is given to contributions – where the mother is required to pay the father a settlement sum..

Family Law Act 1975 (Cth) s 4, 60CA, 60B, 60CC, 61DA, 65DAA, 69ZN, 69ZQ, 69ZR, 69ZT, 69ZW, 69ZX, 75, 79, 106A

Family Law Rules 2004 (Cth) s 15.13

Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21
MRR v GR (2010) 240 CLR 461
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Mr Kapicic

RESPONDENT:

Ms Bakal

INDEPENDENT CHILDREN’S LAWYER:

Legal Service Commission of SA

FILE NUMBER:

ADC

4291

2011

DATE DELIVERED:

26 May 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

11 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Litigant in Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms DuBarry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Service Commission of South Australia

Orders

All previous orders are discharged.
The father have sole parental responsibility for the child B (the child) born … 2005.
The said child do live with the father.
That the child spend time with the mother as follows:-
(a) From 9 am Saturday until 5 pm Sunday on each alternate weekend;
(b)From 9 am to 5 pm on Mother’s Day should the child not otherwise be in her care PROVIDED THAT her time will be suspended from 9 am to 5 pm on Father’s Day;
(c)From 3 pm Christmas Eve until 3 pm on Christmas Day on even numbered years;
(d)From 3 pm on Christmas Day until 3 pm on Boxing Day on odd numbered years; and
(e) For such other times as the parties may agree in writing.
(f)In each of the short holiday periods at the end of Terms 1, 2 and 3 as agreed and in default of agreement:
(i)for the first half in odd numbered years;
(ii)for the second half in even numbered years;
(g)During the Christmas school holidays in weeks 2 and 4 of the said holidays.
That the mother is at liberty to receive copies of the child’s school reports including school photographs at her expense.
The mother is at liberty to arrange a separate parent/teacher interview to discuss the ongoing educational development of the said child PROVIDED THAT such interviews do not coincide with that of the father nor the child’s attendance at school.
That the father do all such things as may be necessary to forthwith arrange for the referral of the child to a suitably qualified medical practitioner who has expertise in asthma conditions to arrange for an assessment of the child in relation to any asthmatic condition.
That upon receipt of the said report the father is to arrange for the mother to receive a copy of the report.
Provided that the said report indicates there is no need for the child to be prescribed asthma medication, each party is restrained from administering any asthma medication to the child.
That all handovers are to take place at the Suburb F Police Station.
That the father is to arrange for the child to have access to a mobile phone in order to communicate by telephone with the mother at any reasonable time that the child may request.
That the father will keep the mother informed of any significant or serious health issues affecting the child.
That the mother be restrained and an injunction is hereby granted restraining her from attending at the child’s school other than as provided for herein or as may be agreed between the parties in writing.
In full and final settlement of all claims arising in respect of matrimonial property:-
(a)Within six (6) calendar months of the date of this order the mother do pay to the father the sum of SEVENTY NINE THOUSAND THREE HUNDRED AND SEVENTY THREE DOLLARS ($79,373) (“settlement sum”).
That contemporaneously with the payment of the settlement sum the father shall have no further right, title or interest in the property situate at I Street, Suburb J, South Australia.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-
(a)Each party shall be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as to the date of these orders;
(b)Each party forego any claim that they may have to any superannuation benefits belonging to or earned by the other;
(c)Insurance policies remain the sole property of the beneficiary named therein;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property of which that party is entitled pursuant to these orders;
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
In default of the mother’s obligation to pay the settlement sum to the father and in circumstances where that default shall remain outstanding for a period greater than thirty (30) days THEN the parties shall do all things necessary to forthwith cause the Suburb J property to be placed on the market for sale by private treaty or public auction upon such terms and conditions and the parties may agree but in default of agreement as may be ordered by this Honourable Court and that following the sale of the Suburb J property and following the payment out of the necessary costs of sale and the discharge of the current secured mortgage, from the net balance remaining (if any) the father shall receive the said settlement sum or so much of the said settlement sum as shall remain outstanding and unpaid together with default interest at 10 per cent per annum and the mother shall be entitled to the balance remaining (if any).
A Registrar or Deputy Registrar of this Honourable Court shall have power pursuant to s 106A of the Family Law Act 1975 (Cth) to sign all such documents as may be required to give effect to these orders in circumstances where upon proof by affidavit a party has refused or neglected to sign such documents as may be presented to him or her and that such refusal or neglect has continued for a period longer than seven (7) days after the said documents were presented.
All matters be removed from the pending list of cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kapicic & Bakal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4291 of 2011

Mr Kapicic

Applicant

And

Ms Bakal

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By final order made on 27 May 2013 in the Federal Circuit Court Mr Kapicic (“the father”) and Ms Bakal (“the mother”) concluded their parenting dispute in respect of B born in 2005 (“the child”). The proceedings had commenced in January 2013.
The final orders provided that the parties have equal shared parental responsibility for the child and that the child live with the mother but spend time with the father each alternate Thursday from the conclusion of school until the commencement of school on the following Monday and that the holidays were effectively shared equally. In addition, the orders provided for the time that the child would spend with each of the parties on special occasions and for a resolution of a number of matters that had troubled the parties, namely:-
(a)An agreement between the parties that the child would recommence treatment with Dr A for his night-time urinary incontinence.
(b)Without any admission, the mother was to seek assistance to manage her alleged hoarding and to clean her house without delay and that she would seek professional clinical psychological treatment for her alleged depression and any other mental health problems.
(c)That the father would seek professional guidance to enhance his parenting practice in regards to age appropriate limits for the child.
(d)That the parties would be restrained from abusing, criticising or denigrating the other party or their respective partners in the presence of or in the hearing of the child or allowing any other person to do so.
Clearly, the orders were intended to be comprehensive of all outstanding matters.
By Amended Initiating Application filed 2 September 2013 the father sought orders that challenged the finality of the consent orders made on 27 May 2013. The mother responded initially by an Amended Response filed 26 September 2013 where she sought orders that either the husband’s Amended Initiating Application so far as it related to the children’s orders be dismissed or in the alternative that the consent order be discharged.
In his supporting affidavit the father set out the events that he alleged occurred since the consent order was made together with details of an intervention order that was served on him on 24 August 2013 that had been issued by the Adelaide Magistrates Court on the instigation of the mother. The father also annexed a detailed and lengthy family report prepared by Dr C (“the family consultant”) dated 27 April 2013 (“the first family report”).
Ultimately, the mother withdrew her challenge to the consent order but the father continued with his application to have the consent order set aside.
The matter was dealt in the Federal Circuit Court and ultimately the question of the “Rice & Asplund” threshold was listed for argument on 28 January 2014. On that occasion Judge Mead also appointed an Independent Children’s Lawyer (“ICL”) with a notation that the Court had not yet determined the progress of the father’s Amended Imitating Application and it was considered of assistance to the Court that an ICL be present.
On 28 January 2014 the matter was transferred to the Family Court of Australia on the basis that the children’s issues were “complex”.
The matter first came before me on 8 April 2014. On that occasion the father appeared as a self-represented litigant. The mother and the ICL were represented by counsel. I delivered judgment on 11 April 2014 dismissing the mother’s application seeking that the family consultant be disqualified on the basis of apprehended bias.
The matter was then heard by Dawe J on 11 July 2014 and 22 July 2014. The matter spiralled out of control, predominately as a result of the father retaining the child contrary to the orders made by consent of 27 May 2013. The father was ordered to return the child to the mother. It was further ordered that in the absence of his compliance a recovery order would issue automatically. The father’s time with the child was suspended between 22 July 2014 and 6 August 2014.
On 6 August 2014 I reinstated the operation of the consent orders of 27 May 2013. I also ordered that an update family report be prepared by the family consultant. I adjourned all outstanding matters to 6 November 2014 including an oral application made by the Minister for the Department of Education and Child Development (Families SA) (“the Minister”) to be released from the proceedings.
On 6 November 2014 leave was given for the Minister to be released.
On 5 December 2014 I listed that matter for trial commencing 1 June 2015.
On 11 December 2014 I delivered judgment following a hearing on 2 December 2014 relating to interim children’s issues. I suspended a number of the consent orders made on 27 May 2013 and made further order that the father have sole parental responsibility for the child’s health and education and for the child to live with him but spend time with the mother each alternate weekend and for equal time during school holidays. I was assisted by a Families SA report dated 4 November 2014 (“the Families SA report”), which was provided following orders made by Dawe J seeking the intervention of the Minister, and a family report prepared by the family consultant dated 28 November 2014 (“the second family report”).
On 30 April 2015 I vacated the trial listed to commence on 1 June 2015. On 7 May 2015 the matter was relisted for the week commencing 31 August 2015. However, on 4 August 2015 that trial listing was also vacated. On that occasion it was noted that the Court expected to be advised as to the success or otherwise of the mother’s application for a grant of legal aid. On 7 September the matter was again listed to trial to commence on 7 March 2016.

THE PROCEEDINGS

By Amended Initiating Application filed 8 July 2015 the father now seeks that the consent order of 27 May 2013 be discharged, that the parties maintain shared parental responsibility but that the father have sole parental responsibility for the child’s health and education, and that the child live with him and spend time with the mother each alternate weekend from 10 am on Saturday until 5 pm on Sunday. The father also seeks orders for equal holiday time.
By way of final property settlement the father seeks an order whereby he receives $150,000. In the event that the settlement sum is not paid to the father within 60 days, he seeks an order that the property at I Street, Suburb J (“the former matrimonial home”) be sold and the proceeds are distributed equally between the parties. Additionally, the father seeks an order that each party be entitled to retain all property in their possession without claim from the other.
By Amended Response to Initiating Application filed 9 December 2015 the mother also seeks discharge of the consent orders made on 27 May 2013, that she have sole parental responsibility and that the child lives with her but spend time with the father at such times as may be agreed between the parties.
By way of final property settlement the mother wishes to retain her interest in the former matrimonial home. She also seeks an order that there be equal division between the parties in relation to their respective superannuation entitlements and that each party is entitled to all other property in their possession.
Originally the ICL sought orders that the father have sole parental responsibility and that the child live with the father but spend time with the mother each alternate weekend from 9.30 am on Saturday until 6.00 pm on Sunday, together with a week during school term holidays and two weeks over the Christmas holiday period. During final submissions the ICL changed his position and now seek that the mother undergo a course of therapy and that her time with the child be suspended until the treating psychiatrist indicates in a report to the ICL that the mother does not pose a risk to the health, welfare and development of the child arising from her irrational belief that the father has abused the child and threats to kill her. I will come to the ICL’s concerns later in these reasons.
At trial the father appeared as a self-represented litigant as he had done so generally throughout the proceedings.
The ICL was represented by counsel.
The mother’s position was more complicated. At a hearing on 3 February 2016 the mother was represented by Mr L. On that occasion Mr L foreshadowed, as he had done so in the past, that his preparedness to act for the mother was conditional upon funding being obtained. On the first day of trial Mr L sought leave to withdraw from the proceedings on the basis that funding was not available. Mr L indicated that his efforts were substantial and comprehensive, but that he was left with no choice but to seek leave to withdraw. I accepted Mr L’s submission. He confirmed to the Court that the issue of his conditional engagement was well understood by the mother. The mother confirmed that the information as presented by Mr L was correct but more importantly that she understood that he had no alternative but to withdraw. I proceeded to grant leave. The mother from then on appeared as a self-represented litigant.
The proceedings were conducted pursuant to the provisions of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) and in determining and giving effect to the principles as set out therein, I advised the parties of the general duties and powers as set out in s 69ZQ and the ability that I have to make determinations, findings and an order at any stage of the proceedings if it will assist in the better management of the trial pursuant to s 69ZR.
Importantly in this case, because of the parties being self-represented, I considered that I should not deviate from the provisions of s 69ZT and accordingly the parts of the Evidence Act 1995 (Cth) (“the Evidence Act”) as set out in s 69ZT were not the subject of application.
In making that determination I considered the following matters:-
i.The importance of the evidence in the proceedings;
ii.The nature of the subject matter of the proceedings;
iii.The probative value of the evidence;
iv.The power of the court (if any) to adjourn the hearing to make another order or give directions in relation to the evidence.
Notwithstanding that evidence that may be received which in the ordinary course would otherwise be inadmissible, I explained to the parties that it is a matter of weight that I may give to the evidence rather than its exclusion either in terms of the application of any part or portion of the Evidence Act or pursuant to r 15.13 of the Family Law Rules 2004 (Cth) (“the Rules”) whereby I am entitled, irrespective of the provisions of s 69ZT, to strike out evidence if I consider it to be scandalous, irrelevant or unnecessary.
I reminded the parties of s 69ZV which relates to my ability to hear the evidence of children in matters which would ordinarily contravene the rules of hearsay and importantly s 69ZX which relates to my ability to truncate, limit and manage what might be described as the routine aspects of the trial.
The parties were provided with the decision of Re F: Litigants in Person Guidelines (2001) FLC 93-072 which I considered would be of assistance in the parties understanding in what capacity the Court could assist throughout the proceedings.

DOCUMENTS TO BE RELIED UPON

The father relied upon the following documents:-
(a)Amended Initiating Application filed 8 July 2015
(b)Affidavit of the father filed 8 July 2015
(c)Financial Statement of the father filed 8 July 2015
The mother relied upon the following documents:-
(a)Amended Response to Initiating Application filed 9 December 2015
(b)Affidavit of the mother filed 9 December 2015
(c)Affidavit of Ms K filed 9 December 2015
(d)Financial Statement of the mother filed 9 December 2015
(e)Affidavit of Mr L filed 3 March 2016
(f)Affidavit of the mother filed 4 November 2014
The ICL relied upon the following documents:-
(a)Affidavit of Mr M filed 1 December 2014 (annexing family report dated 29 April 2015)
(b)Affidavit of Mr M filed 1 May 2015 (annexing family report dated 28 November 2014)

In addition, the Court was assisted by a Case Outline document prepared by counsel for the ICL and a document outlining the orders proposed by the ICL.
At the conclusion of the evidence the ICL expressed significant concern in respect of the evidence given by the mother in relation to the father. It was submitted by counsel that the views of the mother were so extreme that they had changed the dynamics of the case. The position of the ICL at the end of trial was that there must be a suspension of time.

CHRONOLOGY

…63	Mother born.
…68	Father born.
1990	Parties commence relationship.
1991	Mother receives compensation payout for work-related injury.
...92	Parties marry. Father operating N Pty Ltd. Mother employed as a health care professional.
Oct 1992	Parties purchase the former matrimonial home.
1996	Father commences employment as a consultant.
1999	Father commences employment as manager of P Pty Ltd in Q Town. Mother remains in Adelaide. Father convicted of dishonesty offences in relation to fraudulent cheques and receives 6 month prison sentence in Q Town. Father released in January 2000.
2000	Father returns to Adelaide and commences employment with Company R as a consultant.
Nov 2000	Father says parties commence living together again.
Late 2002	Mother says parties commence living together again.
May 2004	Mother is a victim of a motor vehicle accident.
Jan 2005	Mother diagnosed with pre-eclampsia and hospitalised. Father alleges mother hoarding, cleans out house while mother in hospital.
...05	Child born.
01.04.05	Mother says parties separate.
2006	Father employed for Company S as a consultant.
2007	Father says parties separate. Father leaves former matrimonial home. Mother remains with child.
2009	Mother says the father spent 2-3 hours each Sunday with the child. Prior to this, the mother alleges the father spent no time with the child.
2011	Father met his partner.
2011	Child spending occasional overnight time with father.
10.02.12	Parties divorce.
Jun 2012	Mother receives compensation payment of approx. $100,000.
14.01.13	Father commences proceedings via Initiating Application.
28.04.13	First family report (not pursuant to any Court order).
27.05.13	Consent order of Judge Mead relating to children’s issues.
02.09.13	Father files Amended Initiating Application seeking departure from the consent order of 27 May 2013.
26.09.13	Mother files Amended Response alleging sexual abuse of the child perpetrated by the father. Mother also alleges she was sexually assaulted by the father.
02.10.13	Order of Judge Mead listing the matter for Rice & Asplund argument. ICL appointed.
20.8.13	Interim Intervention Order revoked and Police Application for Intervention Order dismissed.
03.10.13	Mother files Amended Response.
28.01.14	Order of Judge Mead transferring the matter to the Family Court of Australia.
26.03.14	Mother alleges the child is displaying disturbing sexualised behaviours, unexplained memory loss, angry and disruptive behaviour and has suffered deep burns to foot and lower leg.
04.04.14	Father raises further concern regarding mother’s hoarding habits.
11.04.14	Order of Berman J. Mother has sole parental responsibility, child lives with mother, update family report, psychiatric assessment of both parties and counselling of the child.
Jun 2014	Child retained by father.
11.07.14	Order of Dawe J inviting the Minister to intervene. Father ordered to return the child to the mother’s care.
22.07.14	Order of Dawe J ordered father to return child to mother’s care with self-executing recovery order. Time with father suspended temporarily.
06.08.14	Order of Berman J reinstating consent order of 27 May 2013 and ordering update family report.
04.11.14	Families SA report.
06.11.14	Order of Berman J granting leave for the Minister to withdraw.
10.11.14	Order of Berman J regarding procedure and injunctions.
28.11.14	Second family report.
05.12.14	Order of Berman J listing the matter for trial on 1 June 2015.
11.12.14	Order of Berman J. Father have sole parental responsibility for the child’s health and education, child live with the father but spend time with the mother each alternate weekend.
03.03.15	Father files Amended Initiating Application.
29.04.15	Third family report.
30.04.15	Order of Berman J vacating the trial listed for 1 June 2015.
07.05.15	Order of Berman J listing the trial for 31 August 2015.
08.07.15	Father files Amended Initiating Application.
04.08.15	Order of Berman J vacating the trial listed for 31 August 2015.
07.09.15	Order of Berman J listing the trial for 7 March 2016.
09.12.15	Mother files Amended Response.
03.02.16	Order of Berman J regarding joint valuation of former matrimonial home. Leave given for father to issue subpoena.
18.02.16	Former matrimonial home valued at $380,000.
07.03.16	Trial commences.

background

The parties met in August 1989, commenced a relationship in the following year and were married in 1992. There was a period of separation between 1998 and 2002, but the parties again recommenced their relationship in 2002 separating finally either in 2005 as the mother asserts or 2007 as is the father’s position.
Neither party commenced the relationship with any significant asset.
The mother worked as a healthcare professional from 1990 until about 1998 and then as a sales assistant until 2002/2003 when she resumed work as a healthcare professional until the birth of the child. She then took unpaid maternity leave, but her ability to return to employment was significantly diminished by injuries she received in May 2004 arising out of a motor vehicle accident. The parties purchased the former matrimonial home for a total purchase price of $148,000. The mother alleges that the property was purchased only as a result of the application of her savings of $35,000 and monies received by way of a workers’ compensation claim in the sum of about $50,000. At the purchase of the property there remained a mortgage of $85,000 which has been in the mother’s sole name. The implication is that from the date of separation, whether that be 2005 or 2007, the father has made little or no contribution to the property or the mortgage.
It is the mother’s contention that the relationship between the parties was marred by the family violence perpetrated by the husband. She alleges that the father had tried to kill her in full view of the child and that she remains in fear of further violent assault.
Notwithstanding the mother’s complaint that the husband’s threatening and aggressive behaviour continued after separation, it appears that in 2008 they had reconciled their differences to a sufficient degree that she was prepared to accompany him to a black tie work function interstate. The mother alleges that the father drugged her with a date rape drug and she reported the incident to both SAPOL and Victoria Police.
The mother further alleged that the husband held two firearms based upon the child’s reports.
The relationship between the parties deteriorated further with the allegation in 2011 that the child presented to her with highly sexualised behaviour and making sexually explicit and inappropriate remarks.
The father’s conduct involved stalking and the mother alleges that on very many instances the police have had to attend and remove the father from her premises.
Via a telephone call on 14 August 2013, the wife alleges that the father said “I’m gunna (sic) get you and fix you”, which she has interpreted as a threat to kill, or at the very least to cause her considerable harm. This was the subject of a subsequent SAPOL report and ultimately she obtained an intervention order from the Magistrates Court on 20 August 2013.
There are many allegations made by the mother of both sexually and physically inappropriate conduct by the father either directly to the child or in the child’s presence.
The father denies the wife’s allegations and considers that the child is at risk remaining in her care in that she does not have the ability or desire to provide a balanced view of the father and that if left unchecked, there remains the real possibility that the child’s relationship with his father would be placed under significant strain.
The parties obtained a divorce order in February 2012. In June 2012 the mother received compensation of approximately $100,000.
The father filed initiating proceedings on 14 January 2013 and following the first family report on 28 April 2013, consent orders were made on 27 May 2013 which were again the subject of Amended Initiating Application by the father on 2 September 2013 seeking to vary the orders.
The mother then filed an Amended Response supported by an Affidavit alleging that the father had sexually interfered with the child over an extended period, but also had alleged that she had been raped by him following his intentional administration of a date rape drug.
In April 2014, the father raised further concerns in respect of the mother’s hoarding behaviour.
On 11 December 2014 I ordered that the child live with the father and spend time with the mother each alternate weekend and for extended periods during mid-term and Christmas school holidays. Whilst the parties were to share the parental responsibility for the child, I ordered that the father have sole parental responsibility for the child’s health and education to reflect the inability of the parties to reach agreement and the mother’s conduct which appeared to impact adversely on the child in those areas.

evidence of the parties

The father

The father’s evidence is contained in his trial affidavit filed 8 July 2015. The affidavit is barely adequate in terms of its ability to inform the Court as to matters relevant to parenting issues and property settlement. It provides little history of the parties with the narrative commencing from the making of the order of 11 December 2014 which placed the child in the primary care of the father.
The father complains that the mother interfered with his care arrangements of the child and would attend at the child’s school unannounced.
On other occasions he alleges that the mother was not diligent in insuring that the child attended the school on time. Moreover, when the child returned to his care he observed that the clothing had been damaged, that his socks were threadbare and that the metal zip on his school jacket was broken and was not able to be closed.
More relevantly, the child complained that he was not bathing during the time that he was with her. The child allegedly reported that he was not brushing his teeth when with his mother and because his mother believed that the neighbour was stealing her water, there was either no hot water in the premises or the water had been turned off. The father’s evidence also highlights what he says is the significant contrast between the depressed and forlorn outlook of the child when he had been in the care of the mother and the child’s current happy disposition in his care.
The mother challenged the father in cross examination as to the extent to which he made a financial contribution to the household. It was put to him that all he introduced into the relationship was a significant motor vehicle debt of $12,500 attracting substantial interest. The father did not agree with the mother's contention.
In evidence he countered her complaint that he failed to contribute by setting out the history of his employment, initially as a tradesman, then employed in manufacturing, a short period of employment again as a tradesman and then a supervisor. The father had further employment as a consultant for various organisations.
The thrust of the mother’s cross examination was to demonstrate that notwithstanding the father’s purported history of employment, it was episodic, unreliable and in respect of certain employers was terminated because of his poor and unreliable conduct.
The father did not agree with the mother’s proposition and whilst accepting that his employment had varied over the years, nonetheless it could be considered as generally continuous employment and he contributed back into the family finances as much as he was able to do so.
The parties are in clear dispute as to the extent of the contribution made by the mother by way of deposit to the purchase of the Suburb J property. The father concedes that the mother contributed $25,000 from her own savings, whereas she says that she contributed $85,000. There is no dispute on the evidence that the mortgage was in the mother’s name and that she was solely responsible for the mortgage payments as and when they fell due.
The father concedes the mortgage arrangements, but counters by his broad statement that he contributed indirectly. He contributed his wages into the general household expenses which enabled the mother to focus on the mortgage.
Much was made of the father’s conviction for dishonesty offenses and fraud in 1998/1999. The father was sentenced to a term of imprisonment, returning to Adelaide in early 2000 and then reconciling with the mother either in November 2000 as he alleges or late 2002 as is alleged by the mother.
The parties engaged in IVF treatment resulting in the birth of the child. It was not without difficulty. The child was born premature and was required to remain in hospital for a number of weeks. The parties underwent training to learn the proper feeding method for the child and care had to be taken arising from the child’s reduced and compromised immunity.
The extent to which the parties engaged in the process was a clear focus of the mother. She attempted to demonstrate that the father was not initially supportive of IVF and did little to assist the mother during the initial four week period following the child’s birth. The father disagreed with the mother’s assertion and said that he had taken four weeks off work and was invested in the care and early development of the child.
I do not accept the mother’s criticism of the father and I consider that in respect of his care and involvement with the child, her assertions are without foundation.
Following separation, the mother contends that the father ceased to make any financial contribution either to her, but more particularly, in respect of support for the child. More specifically, the mother says that from September 2014 the father did not contribute anything.
The father counters that assertion and says that for a time he paid $600 per week and after 2010 any payments he made were directly to Centrelink by way of child support.
For reasons that relate to my finding as to the father’s current employment status, I am generally prepared to accept the thrust of the mother’s evidence that the father’s financial contribution after separation was minimal and that he was prepared to take whatever steps he could to avoid being assessed for child support on information that reflected his true income.
The mother is clearly of the view that the child suffers from a litany of medical and psychological problems. She alleges that he suffers from asthma, has bed wetting problems and should be seeing on an ongoing basis, a psychologist. The father adopts a more measured approach and does not agree that the child suffers from hearing loss or asthma. An issue arose as to whether the child had been vaccinated against the usual childhood viral conditions and eventually the mother agreed that the child had been vaccinated but only in January 2016.
It was put to the father that it is only since the making of the orders which provided him with the primary care of the child that the father had become interested in the child’s school. Hitherto it was the mother who had attended school functions and parent and teacher interviews. The father disagreed and gave evidence that he had spoken to the child’s teacher, although in all probability not to the level of the mother.
The father specifically denied that he held any guns notwithstanding the mother’s allegations. His home has been searched and no guns were discovered.
He denied having been arrested for any allegations of family violence. Whilst police have been involved on occasion, it was usually because the father was fearful of the child’s predicament in the mother’s care or at her instigation.
Ultimately not much turns on this evidence, but on the topic of the unnecessary involvement of police, I consider that the mother must bear the primary responsibility given her persistent allegation that she had been the subject of assault by the father and more importantly, that he had assaulted the child.
The father was on notice that the mother did not believe his employment status. Specifically, she considered that he was working, but that he had failed to disclose his employment and his income.
The Financial Statement prepared by the father and filed 8 July 2015 does not disclose any occupation, employment or employer and in respect his salary wage before tax, his clear response is “nil”.
The income he receives is by way of Newstart and Family Tax A and B. He does not disclose any other income earners, does not disclose the payment of expenses by others for his benefit or any payment he might make by way of expenses for others.
The Financial Statement sets out a rental obligation and expenses in respect of a motor vehicle purchased with finance.
The mother relied upon the evidence of Mr L who attended at a business premise to personally serve a subpoena directed towards employment records of the father.
As matters transpired, the father was at the premises and appeared in clothing that indicated he was employed at the said business premises.
At first the father sought to deny that which was clearly self-evident namely, that he was employed. As the cross examination progressed and following my involvement, ultimately the father agreed that he was employed and that his Financial Statement did not in any way reflect his current employment status.
I am in no doubt that the father’s conduct was designed to be deceptive and to keep from the mother and the Child Support Registrar his true employment position.
The father ultimately conceded that he received about $900 per week.
I find that the father is employed by T Pty Ltd, but I am not satisfied as to the extent of the father’s income other than it is at least the amount he asserts being $900 per week.
The evidence of the father on this topic was unconvincing and unimpressive.
The father was questioned as to the current development of the child, in particular whether he agreed that the child was noticeably thinner and that his health appeared compromised. The father was clear that the child was developing normally and I was impressed with the detail that he provided as to the day to day arrangements in respect of the child both before and after school. Under cross examination, the father agreed that he had been reluctant to provide a copy of the school report to the mother. His excuse was that she would not treat the report with any level of confidentiality but rather would “abuse the privilege”.
Pleasingly, the child appears to have now transitioned from his bed wetting and the last occasion that it occurred was on 17 September 2015.
The father gave evidence that from 30 November 2015 the child had a week of swimming. Apparently the mother attended and demanded to see the principal providing him with an asthma treatment plan together with Ventolin medication. The deputy principal refused to accept the plan and ultimately the mother turned up at the swimming carnival and removed the child from the water in order to administer Ventolin.
The father denies that the child has asthma and that he has been taken regularly for medical investigation. A similar event had occurred at the child’s sports day in March 2015.

The father still has concerns as to the manner in which the child is treated when in the home of the mother. His observations of the child upon his return is that he is withdrawn, he appears physically to be dirty with oily hair and body odour and when asked as to his state of happiness, the child’s response is guarded.
The father considers that the mother’s time with the child should be supervised and he is concerned as to her mental stability. He considers that she needs significant and urgent help and that over time her behaviour has become more extreme and her allegations about him more florid.
Under cross examination, he denied that he had been spoken to by the police in relation to any of the mother’s allegations, or that he engaged in stalking type behaviour.
In the father’s care, he confirmed that the child had commenced significant orthodontic treatment and had caused the child’s vaccination requirements to be brought up to date having been told that the child had not received vaccinations since he was 18 months of age.
The father clearly set out his plan for the child’s education which involved attending a well-known and highly regarded state high school.

The mother

The mother supplemented her evidence by some brief examination in chief. Whilst she agreed that the child had ceased bedwetting, she was not prepared to accept that the father had any involvement in that outcome.
She denied that she had neglected the child’s vaccinations and in particular was critical of the father for taking the child to see a psychologist against the advice of the child’s general practitioner. She complained that the father was not consulting her about medical issues affecting the child and as a result there was the real risk that the child would receive unnecessary medical attention.
She agreed that she had attended the child’s swimming carnival and had removed him from the pool. She said she did so because she observed that the child appeared distressed and that his lips were blue. She considered that the father was negligent in his refusal to accept that the child suffered significantly with asthma and needed a level of vigilance that the father was not prepared to undertake.
She would not resile from her allegation that the father had attended at her home and had committed acts of vandalism by placing rocks in the drains.
She also rejected the contention that the child was in any way fearful or reluctant to be in her presence, but rather countered by her observation that whenever the child saw her, he was affectionate and eager for the mother’s embrace and comfort.
The father cross examined the mother but with little impact. He challenged her contention that he made no effective contribution into the home and put to her that he had provided money for food and that upon moving into the matrimonial home, he had undertaken extensive landscaping work and other garden construction. He also renovated, retiled and repaired the swimming pool and assisted the mother in obtaining a car.
There remains some contention between the parties as to when the father stopped paying child support. There was clearly no agreement between them about that, but in all likelihood, relatively limited child support was paid by the father from at least 2012.
As indicated, in respect of the topic of child support and any financial assistance provided by the father to the mother directly, or by reference to his obligation to contribute to the maintenance of the child, I prefer the evidence of the mother to that of the father.
The father put to the mother that there had been a Child Support Assessment in place for the period 1 July 2012 to 31 July 2013 with support payable at the monthly rate of $591.67. The mother conceded that there was a Child Support Assessment in place.
The mother was challenged as to the number of occasions that the child had attended upon his medical practitioner. By reference to the subpoenaed notes from the U Clinic, it appears that the child had attended on 62 occasions between 2006 and 2014.
The father sought to highlight what he considered was the mother’s obsessive conduct in taking the child to various health professionals.
The father again emphasised the extent to which the child had been taken to various medical practitioners and in particular in relation to the mother’s concerns that the child suffers from asthma as yet undiagnosed. The mother did not agree with the father’s assertion and whilst she conceded that the child had attended medical practitioners on a significant number of occasions, according to her every attendance was necessary and rather than it being a criticism, she suggested that it showed parental diligence.
It was put to the mother that she had attempted to interfere with the child’s schooling. In particular, the father referred to correspondence that were tendered as “Exibit 8” in the proceedings.
By way of example, in correspondence dated 12 May 2014 the following appears:-
Two years ago, [the father] attempted to murder me and this was witnessed in its entirety by [the child]. Last year [the father] threatened to kill me or have me killed. An Intervention Order (Restraint Order) was issued last year which was to protect not only me, but also [the child], from [the father]. This Intervention Order, which [the father] breached on two occasions eventually had to be dissolved due to the fact that [the father] denied all of the assaults and domestic violence upon myself and [the child].
There is no evidence that supports the mother’s contention that she was the subject of attempted murder at the hands of the father. The correspondence sent to all of the staff at the child’s school was damaging and scandalous.
The mother’s position was further reinforced on 17 October 2014 where she alleged the following:-
During this whole time, from the beginning of term 2, [the father] continually stalked me, both day and night and intimidated me constantly. Other [V School] parents, students, my family and I, witnessed [the father] committing acts of domestic violence and intimidation upon [the child] as well.
Again, there is no basis for the assertion and the allegations are scandalous.
The correspondence reported in detail all aspects of the child’s schooling and interaction with teachers. The criticism is without substance and demonstrates a substantial level of interference that could not be said would be of any assistance to the child’s educational pursuits and may well be antithetical to the child finding his school as a place of stability and calm.
Under cross examination by counsel for the ICL, the mother rejected that the father has any relationship with the child and is convinced that the father is a paedophile. She confirmed that she had reported alleged conduct by the father to the Child Abuse Report Line, Dr A (psychologist), Mr W (psychologist), the family consultant and the Crown Solicitor. Numerous reports alleging sexual assault and abuse by the father upon the child have been made to the police. The extent to which the mother has made notification is seen against her report to the family consultant in the first family report at paragraph 22:-
[The mother] acknowledged that there is no physical evidence of child sexual abuse of [the child], and that there has been no investigation by the Child Protection Authorities. Significantly, despite her ongoing concerns over several years about [the child’s] alleged statement to her that he was afraid of his father’s penis, and his alleged sexualized behaviours, [the mother] has not reported her concerns to Child Protection authorities.
The mother’s response was that she did not know how to do this. As was noted by the family consultant, the mother’s response is questionable given the long history of reporting alleged abuse to the child protection authorities and the litany of complaints and allegations that the mother makes.
The mother alleged that during 2014/2015 Christmas period, the child was left alone for two to three weeks without adult supervision. The mother was challenged as to whether this was credible. She confirmed that she had thought about it and was satisfied that the father had left the child unattended for the alleged period.
The mother’s evidence was not credible. She did not make a direct observation, nor could she explain how the child survived in terms of food and other basic needs. She does not allege that the child rang her and cannot explain why the child simply did not open the front door of the father’s home and seek help.
The allegation is without substance and I consider that it’s only basis is one of malicious intent.
The mother repeated her concerns that she had been the subject of rape by the father during the trip to Melbourne and whilst not being able to give any direct evidence, considered that it had occurred whilst the father had placed her into a drug induced state in a manner that she said had occurred during a time that they were together.
In the first family report, the mother repeated her fear that she would be shot and killed by the father, thereby leaving the child without his mother. It was put to her that there was no basis for these concerns and indeed there had been no evidence presented that would indicate that the father had sexually abused the child. The mother was not able to accept that the child was not at risk.
The state of the mother’s home has become a live issue. The allegation was that the mother was a hoarder and that she had been reluctant to allow child protection authorities to enter her home to inspect its suitability.
At paragraph 25 of the first family report, the following observation is made:-
Observed interactions between [the mother] and [the child] occurred at the mother’s home. The home environment was very cluttered and unclean with extreme restricted space for [the child] to move between rooms, many of which were inaccessible. Even [the child’s] bedroom had very restricted space to sit, move around, or play. [The child] was observed to carefully navigate through the house, and at times to walk over piles of rubbish, including that which had spilled over the narrow walkway. [The mother] encouraged [the child] to stop walking over a pile of rubbish and [the child] complied with her directions. [The child] impressed as being frustrated from having such restricted space in the house to move around and to play.
The mother was given several opportunities to reflect upon her statement in paragraph 15 of her Affidavit filed 4 November 2014 that:-
It is my firm conviction that [the father] wants [the child] to die in what will seem to be an ‘unfortunate accident’.
It was her position that her fears were well-founded and she would not resile from the allegation.
At paragraph 54 of the first family report, the family consultant records the following:-
[The child] had a number of friends but expressed his sadness that his friends can’t visit his mother’s house as “there are lots of things lying around the house…no room to play”. [The child] was clearly agitated and upset when he described his mother’s home environment. He expressed feeling quite “sad” about the lack of interests and activities that he has there and what he is unable to do at his mother’s home. [The child] could only identify engaging in solitary play using the Wii game at this home, and stated that he is “bored…don’t usually do anything”. [The child] expressed that he is angry that he “can’t run around back yard” because of the “sticks everywhere in the backyard” and that the house is always a “mess”.
The allegation was put to the mother but she considered that it had been concocted and was a fabrication. She did not consider that the house had ever been in the state as described by the child and that if the child had been accurately reported, then it was clearly said under the influence of the father. The mother’s primary position was that it was a fabrication by the family consultant.
The child and his step-sister were interviewed by the family consultant for the third report dated 29 April 2015 (“the third family report”). At paragraph 30, their observations of the curious behaviour of the mother where she is observed to shout at the father at times of handover words to the effect of “get off my property” and then “my ex-husband’s trying to kill me”. The allegations were made in circumstances where the father had not come into close proximity of the mother and the reaction of the children was that the mother’s behaviour was ridiculous and the statements without any foundation.
Again the mother was given an opportunity to reflect upon her view of the father. The concern was that in respect of this topic she was not capable of rational thought.
Notwithstanding the mother’s denials that the child had been late when attending school from her care, correspondence was put to her from the school noting that in first and second term 2011 the child had been late on many occasions.
The mother denied that this was the case and again repeated that there were various reasons, usually to do with the poor state of the child’s health, which often resulted in him attending at school late or not at all.
The mother’s evidence was clearly troubling. It could not be said that she is anything other than a high functioning adult. Notwithstanding that observation, she was unable to accept that her allegations had no foundation in fact and had not been supported by observations and involvement of health professionals, medical practitioners and child protection authorities.
As indicated, in respect of matters relating to settlement of property, it is difficult to place any weight on the father’s evidence. He was prepared to allow the Court to be misled as to his employment status.
In respect of parenting considerations, the Court has the advantage of evidence from the family consultant, school reports and other information collected by her which corroborates the father’s assertion that the child is now thriving in his care.
The mother did not present as exhibiting rational thought and the concern of the ICL is whether the mother’s conduct and presentation in Court would suggest that the child may be at risk in her care.

Family consultant

The family consultant has been involved in the proceedings since February 2013 at which time she received instructions from both parties to undertake a family assessment report. Reports have been prepared on 11 February 2013 (“the first family report”), 28 November 2014 (“the second family report”) and 29 April 2015 (“the third family report”).
It is fair to say that the involvement of the family consultant has been controversial. The father has taken no objection, whilst the mother has continued to oppose the family consultant’s involvement notwithstanding her initial consent. The extent of the mother’s objection is reflected in an earlier judgment of mine where I was required to consider whether the conduct of the family consultant was such that she should be the subject of disqualification. I found against the mother.
On the third day of trial, counsel for the ICL made a formal oral application for the child to be interviewed by the family consultant. The application was made on the basis that nearly 11 months had elapsed since the second family report was prepared. The family consultant had placed significant weight on the wishes and perceptions of the child in terms of the circumstances of his relationship with each of his parents. She was satisfied that the child had attained a level of maturity where substantial weight should be attributed to his views.
The application was not opposed by the father. However, the mother did not consent to the process. At the commencement of the proceedings I made it known that there had not been a more recent assessment or update of the child’s wishes and perceptions. A year in the life of a 10 year old is a significant period for development, reflection and intuition to take place. Matters had also been raised in evidence that suggested the child was not happy in the care of the father and was keen to return to spending longer periods in the care of the mother.
Noting the strong and considered opposition of the mother to further involvement of the family consultant, I rejected the mother’s opposition and made orders that the parties facilitate the attendance of the child upon the family consultant for the purposes of ascertaining his current views, wishes and perceptions of his relationship with each of his parents and his current circumstances following orders made by me on 5 December 2014. The child’s interview occurred on 10 March 2016 in the precincts of the Family Court, Adelaide Registry.
The issues under consideration at the time of the first family report concerned the father’s application seeking that the child spend equal time with each of the parties. Up until that point there had been a gradual process whereby the father’s time with the child increased, but it was always with rancour, required negotiation with the mother and at times involved ascertaining the child’s wishes.
As was recorded by the family consultant:-
Time spent with [the father] had been quite variable and the unpredictability is a continuing issue.
The father was concerned that when in the mother’s care the child was not attending school on a regular basis and getting to school on time and there were also issues as to the state of the mother’s home. It was the father’s perception that the mother is a hoarder.
For her part, the mother continued to express her fear of the father and held the view that he was an unsafe and incompetent parent, had sexually abused the child, had personality disorders and sexual addiction and was associated with a “bikie gang”.
The mother was distressed, but notwithstanding she had reported the allegations to child protection authorities, there had either been no investigation or it did not corroborate the allegations made.
The observations of the family consultant was that the mother clearly had a hoarding problem. It is recorded that the mother admitted that the house was not a healthy environment and that she had difficulties and would in all probability need help to remedy the disorder in her home.
It is clear that notwithstanding what was obviously a chaotic and cluttered environment, the mother lacked insight into her personal circumstances by continuing to assert that she was diligent in respect to the preparation of healthy meals for the child and prepared an adequate breakfast for him. This was contradicted by the child.
The child was experiencing a number of difficult personal issues. The mother reported a history of faecal and urinary incontinence, less severe during the day, more so at night. The child was referred to a psychologist to assist in a bedwetting program. The mother became disillusioned with the advice of the expert, did not follow it up and was ultimately disparaging of his assistance and advice. It seems that the mother’s concern was that she had linked the child’s incontinence with her belief that he had been the subject of sexual abuse at the hands of the father. Accordingly, the incontinence should be seen according to the mother as “sexualised behaviours”.
The mother then sought further assistance from a second psychologist. She determined after the initial session that this psychologist would not be able to provide useful assistance.
The mother then reported that the child had serious hearing loss and he was taken to an ENT specialist in December 2012. It was the mother’s contention that the hearing loss was due to loud music played in the father’s home.
Whilst an allegation repeated in her evidence at trial, it was her belief in 2013 that the father would kill her notwithstanding that she was not able to detail any threats which would cause her to form this belief. Her regard and view of the father was entirely negative. She referred to him as “an absolute liar, a psychopath, a narcissist and a sex addict”.

She considered that the father was incompetent, neglectful and abusive towards the child. She also advised the family consultant that she had informed the police that the father held guns and notwithstanding a search which did not find any weapons in his possession, it is still her view that he either has guns or has access to them and accordingly both she and the child are at risk.
The mother’s allegation as to the father’s alleged gun ownership and her continued belief as to same has extended across the three reports and into her evidence at trial.
Significant detail was provided by the mother as to the basis for her belief that the child displayed a range of sexualised behaviours. She had observed that the child had performed “oral sex on a teddy bear and a plastic toy wand”. She described how the child had pushed her onto the bed and was “humping” her and that he pushed his bottom into her face. Again, consistent with her current evidence, she described to the family consultant her belief that the child had been drugged by the father using a sedative medication known as GHB. The importance of the mother’s belief that the child had been drugged was that a side effect of the drug is to “remove memory”. Accordingly, it provides an explanation as to why the child did not recall the sexual abuse perpetrated by the father. In corroboration for her belief, the mother referred to an incident where she considered that she had been administered GHB and then had been the subject of sexual assault.
Consistent with the current state of evidence, the mother acknowledged in the first family report that there was no physical evidence of sexual abuse, nor was there any evidence that would corroborate her allegation other than what she perceived as the child’s sexualised behaviour when interacting with her and as an explanation for his continued incontinence. Her view was not supported by child protection authorities, police or any other health or social welfare professional that had been engaged with the child. The mother did however concede that there was never difficulty in the child attending with the father and he showed no resistance and fear.
When the family consultant challenged the mother to consider that there were no indicators of the child having been the subject of sexual abuse, the mother’s response is recorded as follows:-
She became highly reactive and emotional and stated in a loud angry voice, ‘I’m [the mother] gonna (sic) have to be locked up if my son is with his father’. [The mother] immediately perceived that she would be ‘shot and killed’ by [the father] and this ‘would leave [the child] without a mother’.
The family consultant observed the interaction between the mother and the child in the mother’s home. She observed that the house was cluttered and unclean and:
…with extremely restricted space for [the child] to move between rooms, many of which were inaccessible. Even [the child’s] bedroom had very restricted space to sit, move around, or play. [The child] was observed to carefully navigate his way through the house, and at times to walk over piles over of rubbish, including that which spilled over the narrow walkway.
The interaction between the child and the mother was observed with significant care. The child did not maintain a close proximity with the mother, was confused by the mother’s direction and demonstrated a strong sense of him being a solitary and reclusive child.
It was during the interview with the father that he apparently learnt of the allegation that he had sexually abused the child. The father and his partner attended and neither made any observation that the child had displayed sexualised behaviour. They appeared concerned to deal effectively with the child’s urinary incontinence but the father considered that it was the distressing circumstances of the mother’s home and her obsessional beliefs which had placed the child in the state of continuing anxiety.
The opinion of the family consultant was that the father impressed as having a high degree of attunement to the child’s needs and showed a willingness to accept assistance in dealing with the child’s obvious behavioural difficulties.
As distinct from the observations of the mother with the child, the child’s interaction with the father was positive, showed age appropriate proximity and indicated a positive bond and a trusting relationship with the father and his partner. In his interview with the family consultant, the child expressed sadness that he was not able to have friends over to his home. He was clearly embarrassed by the state of the home and sad that he could only engage in solitary play.
He corroborated the assertion of the father that he is often late in getting to school and his history of the morning routine speaks strongly against the mother’s assertion. It is the child who gets himself out of bed, makes his own breakfast and prepares himself for school with little or no assistance from the mother.
There was no hesitation in the child’s desire to spend more time with his father. He referred to the time as “happy” and that there is age appropriate affection and interaction between the child and the members of the father’s household.
The recommendation of the family consultant contained in the first family report is that both parties continue to have equal shared parental responsibility and that the child’s time is effectively shared between them. The family consultant did not consider that there was any basis at all in the mother’s allegation that the father was abusive to the child either sexually or physically.
The clear concern of the family consultant was not directed to the ability of the father to care for the child, but rather, the mother’s ability to satisfy the physical, emotional and psychological needs of the child.
The second family report was as a result of an order made on 10 November 2014.
The parties presented to the family consultant as continuing the “entrenched conflict between them”. The mother’s view of the father had not changed. She considered that he was a serious risk to her and the child.
The concern was the mother’s refusal to cooperate with attempts by Families SA to intervene in the matter as per orders made on 6 August 2014. The mother was reluctant and resistive to any attempt by Families SA to gain access to her home, to inspect same and to attempt to assist in how the mother might provide a more child appropriate environment.
There was clear and evident hostility by the mother and the maternal grandmother who was present at the time of the assessment to the continuing involvement of the family consultant.
The mother alleged that she considered the father was a paedophile and that the child’s behaviour, which she perceived as sexualised in nature, had not changed. In addition, she now considered that the father was likely to kidnap the child as a repeat of earlier behaviour when the child was three years of age.
The mother considered that the child had developed aggressive behaviour over time and that he was now oppositional to her parenting direction. He refused to do his homework and brush his teeth when asked and was now deceptive and would tell lies. The mother also advised that the child had a referral under a Mental Health Care Plan to see a psychologist for stress. Consistent with the earlier history of engagement with health professionals, the mother ceased the therapy after one session. Again it appeared that the mother’s concern was that the psychologist would not take on board her concern that the child had been sexually abused as an underlying cause for his behavioural difficulties and anxiety and stress.
Unfortunately the mother also exhibited challenging behaviour in respect of the child’s school and teaching staff. Her behaviour was such that the teacher involved had submitted an incident report to the Education Department.
The family consultant made observations of the mother’s home. It was clearly more tidy and ordered than at the time of the first family report.
Some areas have been cleaned up but others still remained cluttered and made access difficult. The backyard was not safe and piles of rubbish were clearly evident.
There were issues in respect of the child’s ability to bathe himself in his mother’s home. At the time of the first family report, the bathtub had fish living in it. The fish had gone and the bath had obviously been cleaned, but the child was clearly anxious given his recollection of fish, mould and dirt in the bathtub.
Of greater importance was at the time of the second family report the child still displayed reservation and avoidance behaviour in respect of his mother. It was recorded by the family consultant that:
…flat effect, weak tone of voice, agitation and withdrawn body posture all indicate emotional detachment from [the mother].
The family consultant noted that there was now little or no trust between the child and his mother, nor “any sign of secure attachment”.
The father again impressed as being far more focussed on the child’s needs. The routine in the father’s household was clearly more ordered and the child appeared to be thriving. The father had returned to the original psychologist seen by the child to deal with his incontinence. The father appeared committed to working through the problem until a resolution had been achieved.
Enquiries made at the school revealed that the interaction between the father and the school was positive and that he presented as being “calm, stable and involved”.
It was reported that there was a positive bond between the child upon the observed interaction. The family consultant’s assessment was that:
[The child] clearly felt comfortable and happy living in this home environment with his father, step-mother and step-sibling.
The observations of the family consultant upon interaction with the child is that in the mother’s home the child was sad.
He was clearly aware of the state of the home and was still not able to play in the backyard or feel confident to invite friends over. He was reluctant to wash in his mother’s home as “the water is not working”. The mother’s position was that the neighbours were using their water. When at his father’s home he enjoys daily showers.
The child expressed a clear position that he wished to spend more time in his father’s home. He said that he was happier in his father’s home environment than in his mother’s home.
There was no suggestion that he had been the subject of sexual abuse at the hands of his father and there was nothing in either his verbal or non-verbal responses which indicated that he had been the subject of any inappropriate touching.
The family consultant was clearly impressed by the child’s presentation and was prepared to place significant weight on his insight into the relationship that he has with his mother at her home and the father at his home.
The child however demonstrated a range of difficulties that needed consistent and ongoing attention. That was not available to the child in the circumstances of a shared care arrangement. The family consultant was also concerned as to the mother’s refusal to involve the father in the various treatments and therapies that she considered was necessary to resolve the child’s ongoing difficulties.
The recommendations of the family consultant at the conclusion of the second family report is that the father should have sole parental responsibility until the mother can demonstrate that she is competent, reliable and prepared to be cooperative. The child was to live primarily with the father and spend time with the mother on one overnight each alternate week and for extended periods during school holidays.
The third family report was ordered on 5 December 2014. The mother refused to participate and accordingly the basis for the report arises from the interview with the father and the observed interaction between the child, the father and his partner.
The family consultant reported that the home environment continued to impress “as being child appropriate and safe”.
The child was clearly happy, had relaxed body posture and was comfortable in the father’s home.
When interviewed, the child denied feeling any sadness about not living with his mother or spending more time with her. His clear statement was that he did not want to see his mother, although on reflection, considered that he did want to spend some time with her, but certainly not any more than is the present situation.
Again, communication with the child’s teachers showed a significant improvement in his educational advancement. He was assessed as now being “academically capable”. He always participated in his learning and class activities and completion of homework. That had not been the observation of the child’s teachers in the past.
He was not pleasingly part of a stronger and larger circle of friends and there were no adverse observations or behaviours exhibited by the child.
The child was assessed by the family consultant to have:
…improved self-confidence which has enhanced his verbal expression of his views and needs; closer and more emotionally secure family relationships with his father, step mother and step sister; more meaningful relationships with a wide range of friends, and with the father’s and step mother’s extended families; more organization ability and much improved adherence to daily routine; physical growth; and increased energy.
The father also impressed as a competent parent who was attuned to the child’s needs and responsive and reliable as required.
The family consultant spent 45 minutes with the child and her evidence was that he presented as remaining happy and content. He engaged without hesitation. He was not concerned about being out of school for the interview and was happy to talk about how he was going. His overall assessment was that it was good at present and he was able to go into significant detail. He no longer had sleeping issues. He was able to transition between the two households well and pleasingly, there was now no issue in respect of incontinence. He remained a part of a wide circle of friends at school and he was able to invite them to his father’s home.
He reported that he had now taken up a leadership role at school and the family consultant considered that this was a major transformation for the child who had previously been insecure. The child was clearly proud of himself and he was very happy in his father’s home.
He was however more complimentary of the conditions in his mother’s home. He said that everything was clean and that the house was tidier. Even the backyard was being cleaned up and he now had a living space both in terms of his bedroom, but also his ability to play in the backyard.
He now has good meals prepared by his mother and whilst he is still bored with the limited range of activities in his mother’s home, nonetheless, when he watches television his mother sits next to him. They go shopping together and there have been outings to Town X, Town Y and to see friends. He has not yet felt sufficiently confident to invite friends back to his mother’s home, but he has spoken to the mother and she appears to be receptive to friends staying over.
His assessment was that things were going well at the moment and he did not wish there to be any change.
There remained a concern for the family consultant that the mother’s view of the father had not changed. She appeared to be making the same allegations at the time of trial as made by her in the first family report in 2013. There was no basis for the mother’s allegations but it was a worrying aspect of the mother’s presentation that she was not able to accept that the complete lack of corroboration for her concerns may well cast doubt upon their voracity.
During her cross examination the mother was clearly hostile towards the family consultant. She was not prepared to accept the opinion of the family consultant and was keen to reinforce her own position namely, that the father represented an ongoing danger to both her and the child. It was the mother’s position ultimately that in some way the family consultant had become invested with the matter and was part of an overall conspiracy to protect the father notwithstanding that he was a paedophile and exhibited deviant behaviour.
The family consultant responded to the mother’s questions by highlighting that her evaluation of the child’s presentation was based upon her clear observations. When with the mother, the child was reticent and removed. When with the father, the child was clearly engaged and closely attached.
It was put to the family consultant that she had lied as to her observations of the mother’s home. The response was that the house was “absolutely hideous”. It was so serious that the family consultant considered that it was a child protection issue.
The family consultant was unmoved and unchanged in respect of the observations set out with clarity and consistency across the three reports.
At the conclusion of her evidence, I was impressed with the evidence of the family consultant. She had provided significant opportunity to both parties to engage with her. She had made efforts to contact other persons involved in the care of the child and the reports of the child’s pleasing improvement following his transition into the primary care of the father was corroborative of her own observations.
Importantly, the child showed significant insight into his predicament and was able to give clear consideration to the issues that confronted him whilst in the care of his mother and his father.
The issue that confronts the Court at the conclusion of the evidence of the family consultant is not any risk in the father’s household but whether the mother’s continued refusal to accept that the father does not present a risk to the child is in and of itself a risk and if unacceptable, whether this lends support for the position of the ICL which is that the mother’s time should be suspended until such time as the mother can demonstrate that she has obtained psychiatric assistance to dispel her belief that the father killed his own father, that he will arrange for the child and/or the mother’s death, that he has sexually abused the child and that he has drugged and sexually abused both the child and the mother.

principles relevant to parenting orders

The father and the ICL promote an order for the father to have sole parental responsibility for the child.
It is also supported that the child live with the father and spend each alternate weekend with the mother from 10 am Saturday until 5 pm Sunday and for one week during mid-term school holidays and for two weeks during the Christmas school holidays. The proposal of the ICL is more restrictive. He seeks that the mother’s time should be suspended until she has undergone psychiatric intervention and upon a report being prepared confirming that the mother has attended six sessions with her appointed psychiatric, then there should be a reintroduction of time over a period of six months and thereafter the child will spend time with the mother each alternate weekend.
For her part, the mother seeks that the child return to her care and that she shall have sole parental responsibility. She does not consider that the child should spend any time with his father other than as may be agreed between the parties and in any event that such time to be the subject of supervision.
The family consultant clearly appears to support the continuation of the current arrangement which is that the child live primarily with the father.
There is clear and evident hostility by the mother towards the father. Whilst he is also not complimentary of her, it is clearly the mother who is not able to reconcile that the father should not have any involvement with the child other than under the most limited circumstances.
The parties are clearly not able to agree that there should be equal shared parental responsibility and each assert that they should have sole parental responsibility for the child.

Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests of the child are met by the application of the objects of s 60B(1). I am cognisant of the primary considerations and the additional considerations in respect of the matters as set out in s 60CC(2) and (3). I am mindful of the direction contained in s 60CC(2A) and have regard to the allegations of the mother that in making orders I should consider whether the child needs to be protected from psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
It is seriously contended by the mother that her concerns in respect of the father’s behaviour should be a consideration under s 60CC(2A). The mother’s concerns are the basis for the orders that she seeks.
The ICL considers that there are risk factors in this case but that they are related to the mother’s irrational belief of the risk that the father poses to her and the child.
Section 65DAA(1) provides:
Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child the court must:
(a)consider whether the child spending equal time with each of the parents would be in the interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides:
Subject to subsection (6) if:
(a)a parenting order provides (or is to provide) that child’s parents are to have equal share parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the Court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
I am required to bring to account the provisions of s 65DAA(3) in my consideration of the appropriate orders to be made. I am obliged to consider circumstances where I make an order for equal shared parental responsibility, whether the proposals for each of the parties are reasonably practicable for the purposes of 65DAA(2)(c). The Act provides assistance in the determination of “reasonable practicality”.
In terms of provisions of s 65DAA(5) namely, that the Court must have regard to:-
(a)how far apart the parents live from each other; and
(b)the parents current and future capacity to implement an arrangement for the child spending equal time, or spending substantial and significant time, with each of the parents; and
(c)the parents current and future capacity to communicate with each other and resolve difficulties that may arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Accordingly, I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2);
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;
(4)Have regard to primary considerations under s 60CC(2) namely, the benefit of the child having a meaningful relationship with both the child’s parents and the need to protect the child or children from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3);
(6)That the evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.
Section 61DA requires a Court to consider whether to apply the presumption of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.
If the presumption is rebutted the Court can proceed to make parenting orders having regard to the provisions of the Act, but based on findings pursuant to s 60CC. If the presumption applies (and in any event the parties seek an order of equal shared parental responsibility) and it is not rebutted, then s 65DAA requires a Court to consider whether there should be an order for equal time. If not, then substantial and significant time. The test is whether the orders would be in the best interest of the child and reasonably practicable. As was said in MRR v GR (2010) 240 CLR 461, the consideration of whether equal time is feasible “requires a practical assessment”.
Section 60CC is to be utilised in order to determine the question about best interests and whether the issue of an order for equal time and/or substantial and significant time would be reasonably practicable is to be determined by reference of the provisions of s 65DAA(5).
I have regard to the remarks of Finn J in Blanding & Blanding [2016] FamCAFC 21 where her Honour considered that following the Full Court decision in Beckham & Desprez [2015] FamCAFC 247 there is now no requirement to consider s 65DAA (1)(a) and s 65DAA (1)(b) in any particular order.
Moreover, in terms of the application of appropriate principles to parenting cases and the application of what has often been described as “the legislative pathway”, the remarks of Finn J at [27] are apposite:-
Notwithstanding the imperative language used in decisions such as Goode & Goode (2006) FLC 93-286, it does seem to me, that as a matter of pure practicality and in the interests of the efficient disposition of parenting cases, a court need only concern itself with the actual proposals that each party puts before it and which, it can be assumed are “reasonably practicable” from that parties point of view. In so saying, I do not overlook the fact that in U & U (2002) 211 CLR 238 the High Court made clear that subject to procedural fairness considerations, a court in a parenting case is not bound by the parties proposals.
The importance of her Honour’s remarks is to focus judicial attention upon the practical reality of each of the parties proposals and the consideration of the primary and additional considerations as are appropriately applicable.

Meaningful relationship

The child clearly has a meaningful relationship with both parties. The child resides primarily in the father’s household and spends regular time in the mother’s household. The family consultant supports a retention of the current arrangements. That position is not immediately supported by the ICL who seeks that the current arrangements are conditional upon the mother undertaking detailed psychiatric assessment to assist in dispelling her view of the father and his potential for harm both to her and the child. It is not part of the father’s case or that of the ICL that there is not a meaningful relationship between the child and the mother. The difficulty is that the relationship is potentially damaging because of the mother’s conduct and her inability to think rationally about her view of the father.
Nonetheless, it is important that this child maintain a relationship with each of his parents. Moreover, it appears that he strongly considers it is important for him to maintain a relationship, but in a manner that enables his primary care to be clearly undertaken by his father and in his home.

Risk to the child

There is no evidence that would support the contention that there is a risk to the child in the father’s home. The family consultant did not consider that there was any basis for the florid and somewhat hysterical allegations of the mother. That is not to suggest that she does not believe them, it is to highlight a clear finding that there is no evidence at all which would cause any concern that the child is at risk when with the father.
On the contrary, the evidence is that the child is thriving in the father’s care and has a close attachment both to the father, his partner and step-sibling. If corroboration is required, the evidence from the child’s teachers show a clear and dramatic improvement in the child’s presentation entirely consistent with the child’s placement in his father’s home.
The concern for the ICL is whether there is a risk in the mother’s home. Clearly and by reference to the orders sought, that is the view.
There has however been some significant advances that the mother has made in terms of her physical environment. The child has recognised the substantial improvements and noted that the house was much tidier than before and he was happier in her home. His evidence to the family consultant of recent outings with his mother was also a pleasing development.
What has not changed and has possibly become more exaggerated in her presentation is the mother’s entrenched belief that the father has sexually abused the child, has used drugs in order to avoid detection and will kill the child and the mother. She appears to be unshakeable in that belief.
Clearly, it would be better if the mother did not harbour the strong views regarding the father. The child however appears to be unaffected by the mother’s perceptions of the father and it is reasonable to assume that whatever view the mother holds it is not one that she expresses freely to the child.
It seems to me that provided the mother’s ability to interfere in the child’s education and health management is limited and there is little opportunity for the parties to come into contact with each other, the child is at less risk now than was hitherto the case when the mother presented a domestic environment that was clearly a risk for the child and had the ability to interfere in the proper medical attention required in order to treat the child’s behavioural issues.
The mother’s attitude towards the father has not changed. I suspect that it is unlikely to do so.
Nonetheless, the mother’s home is now a suitable environment for the child and the change has been such that he is more comfortable remaining in the mother’s home. He is now able to bathe with confidence and his interaction with the mother now features some aspects of normality.

The child’s wishes

The child is clearly intelligent and now well-adjusted. He is in a leadership position at school and is part of a wide friendship circle.
I am entitled to place significant weight on the wishes and perceptions of the child. The family consultant was clearly impressed and I am satisfied that her long engagement over a period of now more than three years entitles her to be uniquely insightful in respect to the extent that the child’s wishes should be followed.
He is unwavering in his desire to remain in the father’s household, but recognises that it is important he maintain a relationship with his mother. Whilst he does not wish that to be extended beyond its current parameters, nonetheless and by implication, he does not want it to be extinguished in its entirety.
The child is now more resilient and has gained significant confidence and esteem by his settled environment. He is now free from his embarrassment arising from his incontinence and his development is both noted and notable by his teachers.
I propose to place significant weight on the views expressed by the child.

Involvement of each of the parties with the child

It is not possible in this case for both parties to be involved in all facets of the child’s parenting. The belief by the mother that the father represents a risk and danger to the child, whilst without foundation, is unlikely to dissipate.
They are not able to discuss matters between them and the mother’s involvement with the child in terms of health and education have been to the detriment of the child’s development. The mother is convinced that the child suffers from various medical conditions, in particular asthma.
That belief is irrational. There is no evidence to support the contention and it is but one of a number of areas where the mother has interfered with the child’s health management inappropriately and without foundation.
There is no doubt that the father is significantly better equipped to guide the direction for the child’s proper development.

Parental responsibility

Neither party seeks equal shared parental responsibility.
I am satisfied from the evidence presented and taking into account the provisions of s 60CC, that equal shared parental responsibility should be rebutted and that the father should have sole parental responsibility for the child. It is important that there be no interference by the mother in respect of the child’s health and education.
There is however no ability for the parties to communicate with each other at any level. That prohibition arises from the mother’s conduct as opposed to that of the father. If he were free of the mother’s persistent and trenchant allegations, I suspect that he would be prepared to engage with the mother, at least as may be required to keep her informed of developments in respect of the child. In this case that is not possible.
Any form of communication with the mother is likely to result in an exacerbation of her negative view of the father and would inevitably form part of unnecessary, damaging and scandalous communication to various authorities including the child’s school.

Conclusion

I propose to accede to the recommendations of the family consultant and the orders that the father and in part the ICL seeks namely, that the child continue to reside with him, that he shall have sole parental responsibility and that the child should spend time with the mother each alternate weekend from Saturday morning until Sunday afternoon, with some further time during the school holidays.
I have given careful consideration to the proposal of the ICL namely, that the mother’s time should be suspended until such time that she has sought and obtained psychiatric assistance.
Whilst it has an initial attraction, I am not satisfied that the mother would easily engage in the process, nor would she do so from any position that acknowledges that therapy is necessary.
The likely hiatus in the relationship between the child and his mother may well be fatal and whilst I acknowledge that the child does not want more time with his mother, it is clear that he recognises there is importance to the relationship that he currently has with her. He does not want that diminished. There is much wisdom in the child’s position.
I am also concerned that the orders sought by the ICL may well lead to further litigation.
It is important for this child that he be free of the ongoing conflict and dispute, noting that he has been the subject of assessment on a regular basis over a period of three years.
Accordingly, I propose to make orders by way of an amalgam of those sought by the father and the ICL, but without the pre-condition of therapeutic intervention for the mother.

PROPERTY SETTLEMENT

Financial Background

The parties met in 1989, commenced their relationship in the following year and were married in 1992. At the commencement of their relationship neither party had significant asset or liability.
The father contends that during the course of the relationship the parties contributed to their financial wellbeing and also as to non-financial contribution by each of them fulfilling the role of homemaker.
The parties purchased the former matrimonial home at Suburb J for a total purchase price of $148,000.
The purchase took place by the application of substantial savings of the mother and monies received by way of a workers’ compensation claim.
The property remains in the mother’s sole name.
The parties separated in or about 2005 according to the mother, or 2007 according to the father.
It is a matter of contention as to the extent of the contributions made by the father both before and after separation.
There is a dispute as to the extent of the contributions made by the mother. He says that he contributed his wages generally into the household. This enabled the mother to focus her resources in terms of the mortgage.
As indicated, I am not able to place any reliance upon the evidence of the father in respect to his version of the parties financial history. The father was deceptive both in respect of the preparation of a financial statement and in his evidence as to the status of his current employment. It was only under further cross examination of the father following the evidence of the mother’s solicitor as to his attendance upon the father’s workplace that he conceded that he was employed and had not told the truth. The father had determined to withhold his employment status from the mother and the Court.
It is difficult to assess the father’s current financial position. I am satisfied that he is in employment and that his income is not less than as stated by him namely, the sum of $50,000 per annum.
Unless there is evidence that corroborates the father’s evidence in respect of their financial history, I prefer the evidence of the mother to that of the father.
It is unfortunate that the father determined to embark upon a course of conduct designed to withhold relevant information in respect of his employment status.
For her part, the mother has an uncertain work future. Notwithstanding that she has qualifications as a health professional, she has been out of the workforce now for a number of years and her presentation during the course of the proceedings would lend little confidence to any realistic capacity for meaningful future employment.
Whilst it is true that following separation the father has contributed little by way of child support and assistance to the mother, nonetheless, as a result of orders made and to continue into the future, the primary care and therefore the financial responsibility for the child will fall to the father.
The father has re-partnered. The financial circumstances in respect of his partner and her daughter are not the subject of disclosure. Part E of his financial statement is left blank and I find deliberately so. The affidavit of the father and his financial statement filed 8 July 2015 are of no value or assistance to the Court.
The mother has not re-partnered and remains living in the former matrimonial home.

Legal principles to be applied

Section 79 of the Family Law Act 1975 (Cth) (“the Act”) provides:-
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in a case of proceedings with respect to the property of the parties to the marriage or either of them – altering the interests of the parties to the marriage and the property; or
(b)…
including:
(c)an order for settlement of property in substitution for any interests in property; and
(d)an order requiring:
(i)either or both of the parties to the marriage; or
(ii)the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
Section 79(2) provides the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
“Property” is defined in s (4)(i) of the Act as meaning:-
…property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion…

In Stanford v Stanford (2012) 247 CLR 108 the majority held:-
[35]It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account when considering what order (if any) should be made under the section. The requirements of the two subsections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court, in all the circumstances, it is just and equitable to make the order.
[36]The expression “just and equitable” is a qualitative prescription of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
It is therefore not to be assumed that a party to a marriage has a right to an interest in property by reference to matters arising under s 79(4). In effect, a party cannot put themselves up by their own boot straps by asserting contribution under s 79(4) and then using that position to satisfy the obligation created by s 79(2). To do so would be to conflate the relevant sections.
The High Court in Stanford (supra) sought to define its likely application to cases in the following manner:-
[42]In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
Both parties seek that there should be an alteration of their respective property interests. The mother would seek to retain the former matrimonial home without adjustment to the father. He seeks a settlement sum of $150,000.
I am satisfied that it is just and equitable to embark upon a consideration of an adjustment of the property interests of each of the parties.

Assets and liabilities of the parties

It is difficult to assess from the evidence what represents the property of the parties. However, doing the best that I can, the following list represents their respective legal and equitable interests:-
Assets

I Street, Suburb J (mother)

380,000

Motor vehicle (mother)

3,000

Household contents (mother)

3,000

Commonwealth Bank savings (father)

2,000

Motor vehicle (father)

30,000

Household contents (father)

10,000

Total

$428,000

Liabilities

Suburb J property mortgage

94,406

Coles Mastercard liability (mother)

6,948

Merlin Visacard (mother)

7,442

Bank SA credit card (mother)

7,113

Commonwealth Bank loan (father)

18,800

Commonwealth Mastercard (father)

9,000

Company R Finance (father)

40,000

Total

$183,709

I propose to remove the father’s motor vehicle both as to its value but also the liability attached.
No evidence was provided by the father in respect of the purchase of the vehicle or the arrangements in respect of the finance. I do not consider it appropriate to bring to account the value of the motor vehicle based upon the assertion of the father in circumstances where to do so would have the liability exceed the purported value by $10,000.
Accordingly, the net value is $254,291.

Contributions

I accept the mother’s evidence that in order to purchase the former matrimonial home she contributed the sum of $85,000.
I am also satisfied that she was entirely responsible for the payment of the mortgage, but that for a number of years the father was employed and did contribute.
It is noted however that there were extensive periods of separation and in particular the period in which the father was incarcerated.
Following separation, whether that be 2005 or 2007, I am satisfied that he did as little as was possible to assist the mother and the child financially. His child support was paid at the lowest rate and in any event, given his deceptive conduct, it is a moot point for the Court to have any confidence as to his income status during the relevant years that have passed.
Accordingly, the financial obligation of the care of the child and the payment of the mortgage and fixed outgoings has fallen to the mother entirely and up to the date of the proceedings.
The overwhelming contribution must fall in favour of the mother, noting that the period since separation has been almost 10 years.
I propose to adjust the contributions as between the parties to reflect an 85 per cent/15 per cent adjustment in favour of the mother.

Section 75(2) factors

The principal issues in respect of s 75(2) will be the care of the child which will remain predominantly with the father and he will have the continuing financial obligation without likely assistance from the mother.
It is also relevant that the father is in employment, the details of which are not known to the Court, but on his evidence will be not less than $50,000 per annum.
Little is known of the financial circumstances of his partner, or indeed of the obligations that he has, if any, in respect of that person and her child.
The mother is unlikely to have any realistic capacity for employment. She has clear psychological difficulties self-evident in respect of the history of the proceedings, the irrational belief as to the behaviour of the father and the early history of the unsatisfactory and unsavoury state of her home.
There is no evidence to suggest that she will readily or easily find employment. The issue was not pressed by the father.
The child is currently 11 years of age and accordingly, there is seven child support years during which I find it is unlikely the father will receive any financial assistance from the mother.
This alone would warrant an adjustment in favour of the father, but this must be tempered by the uncertainty of his employment status and the income that he receives.
Doing the best that I can, I propose to order an adjustment of 10 per cent in favour of the father to reflect that the child will continue to live primarily with him.
An adjustment must not only focus on the quantum of the percentage, but rather to have regard to whether the adjustment produces a meaningful outcome, thereby reflecting the appropriate weight that is to be given to s 75(2) factors.
In a pool of approximately $254,291, a 10 percent adjustment would create a differential in favour of the father of $50,852.
Accordingly, the adjustment between the parties should reflect a division of 75 per cent in favour of the mother and 25 per cent to the father.
The total nett property of the parties is $254,291 and accordingly an adjustment of 75 per cent in favour of the mother would see her with a net outcome of $190,718.
On the basis that the mother retains the following net property of $270,091

Suburb J property

380,000

Motor vehicle

3,000

Household contents

3,000

Total

386,000

Less

Suburb J mortgage

94,406

Mastercard

6,948

Visa Card

7,442

Bank SA Card

7,113

Total

115,909

Net property

$270,091

She is required to pay to the father the settlement sum of $79,373.

CONCLUSION

I propose to make orders that would require the mother to pay the settlement sum of $79,373 to the father within a period of six (6) calendar months from the date of the order and in default of which the former matrimonial home will be sold in order to enforce compliance with the order.
I make orders as appear at the commencement of these reasons.

I certify that the preceding three hundred and six (306) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 26 May 2016.

Associate:

Date: 26 May 2016

[2016] FamCA 410

26 May 2016

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Commercial Law

Legal Concepts

Injunction

Remedies

Costs

Jurisdiction

I Street, Suburb J (mother)	380,000
Motor vehicle (mother)	3,000
Household contents (mother)	3,000
Commonwealth Bank savings (father)	2,000
Motor vehicle (father)	30,000
Household contents (father)	10,000
Total	$428,000

Suburb J property mortgage	94,406
Coles Mastercard liability (mother)	6,948
Merlin Visacard (mother)	7,442
Bank SA credit card (mother)	7,113
Commonwealth Bank loan (father)	18,800
Commonwealth Mastercard (father)	9,000
Company R Finance (father)	40,000
Total	$183,709

Suburb J property	380,000
Motor vehicle	3,000
Household contents	3,000
Total	386,000
Less
Suburb J mortgage	94,406
Mastercard	6,948
Visa Card	7,442
Bank SA Card	7,113
Total	115,909
Net property	$270,091