Keighley & Keighley (No 2)
[2023] FedCFamC1F 42
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Keighley & Keighley (No 2) [2023] FedCFamC1F 42
File number(s): SYC 6003 of 2016 Judgment of: CHRISTIE J Date of judgment: 8 February 2023 Catchwords: FAMILY LAW – PARENTING – where the mother alleges the father presents an unacceptable risk and seeks orders for no time and sole parental responsibility – where the father seeks time with the children and orders relating to parental responsibility – where the independent children’s lawyer proposes limited supervised time – where the evidence establishes the father presents a psychological risk to the children – where children have a right to a meaningful relationship with both parents – where supervised reports establish a good relationship between the children and father in a supervised setting – where risk is mitigated by supervised time – where the best interests of the children are met by minimal supervised time indefinitely with the father.
FAMILY LAW - PROPERTY – where the mother seeks lump sum spouse maintenance – where the financial position of the parties do not make an order for spouse maintenance proper – where the parties seek a property adjustment order under s 79 of the Family Law Act 1975 (Cth) – where the father submits that notional assets should be included in the pool for adjustment – where the father made significant initial contributions – where the mother will have caring responsibilities for two young children - where the mother established family violence in the relationship – where an adjustment is made for the mother pursuant to Kennon – where property division is 55/45 in favour of the mother.
FAMILY LAW - INJUNCTIONS – where the mother seeks a s 102QB order – where the mother has not established the father’s applications have been vexatious.
Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 4AB(2), 74, 75(2), 79, Part VII, 60B, 60CC, 68C, 90XT(4), 102QB, 102Q, 106A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.06, 7.06
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Cases cited: B and B (1993) FLC 92-357; 16 FamLR 353
Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Bielen & Kozman (2022) FLC 94-123; [2022] FedCFamC1A 221
C & C [1998] FamCA 143
Cabadas & Cabadas [2019] FamCAFC 179
Clauson & Clauson (1995) FLC 92-595; [1995] FamCA 10
Godfrey & Sanders (2007) 208 Fam LR 287
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27
NHC & RCH (2004) FLC 94-204
Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96
AJO & GRO (2005) FLC 93-218; [2005] FamCA 195
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Division: Division 1 First Instance Number of paragraphs: 299 Date of last submissions: 20 December 2022 Date of hearing: 9 – 10, 14 –16, 20 – 21 June 2022;
21 – 22 July 2022;
9 August – 10 August 2022;
28 October 2022; and
2 November 2022Place: Sydney Counsel for the Applicant: Mr Longworth Solicitor for the Applicant: Hotop Family Lawyers Counsel for the Respondent: Mr Dura Solicitor for the Respondent: Karras Partners Lawyers Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 6003 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KEIGHLEY
Applicant
AND: MR KEIGHLEY
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
8 Feburary 2023
THE COURT ORDERS THAT:
Parenting
1.All previous parenting orders are discharged.
2.X, born … 2011, and Y, born … 2015, (“the children”) live with Ms Keighley (“the mother”).
3.The mother have sole parental responsibility for the children.
4.The children spend time with Mr Keighley (“the father”), supervised by G Contact Centre or, if unavailable, such other professional supervision service (“the supervision service”) selected by the mother, as follows:
(a)For a period of six months from the date of these orders, and commencing on the first Saturday after the making of these orders – for three hours on Saturday each alternate weekend at times nominated by the supervision service;
(b)Thereafter – for six hours on the first Sunday of each calendar month (subject to Order 5 below).
5.For the purposes of Order 4(b):
(a)The children’s time with the father in April each year will take place on the weekend that falls during Passover, and if there are two weekends during Passover then the Sunday of the first weekend;
(b)The children’s time with the father mid-year will take place on the Sunday immediately prior to X’s birthday;
(c)The children’s time with the father in September each year will take place on father’s day;
(d)The children will spend time with the father on the weekend in between Rosh Hashanah and Yom Kippur each year, and in the event this weekend falls during September, then it will be in addition to the children’s time with the Father on father’s day that year;
(e)The children’s time with the father in December each year will take place on the second Sunday of the month (noting that Hanukkah generally falls over an eight day period during December);
(f)The father may be accompanied by his parents, Ms R and Mr J Keighley, during any periods of time with the children in accordance with Order 4;
(g)In the event that the children’s time with the father pursuant to Order 4 does not proceed on any occasion due to the father being unavailable and the father has given at least 48 hours advance notice, then provided a supervisor can be available and provided the father has paid the necessary supervision fees:
i.the time the children would have spent with the father shall occur as “make-up time” on the weekend immediately following (and not otherwise); and
ii.the “make-up time” shall occur on either Saturday or Sunday and between such times as nominated by the mother and subject to the availability of the supervisor from the supervision service.
(h)In the event that the children’s time with the father pursuant to Order 4 does not proceed on any occasion due to illness of a child, then provided a supervisor can be available and provided the father has paid the necessary supervision fees:
(i)the time the children would have spent with the father shall occur as “make-up time” on either of the two weekends immediately following (and at the mother’s sole discretion as to whether time occurs in the first or second of those weekends); and
(ii)the “make-up time” shall occur on either Saturday or Sunday and between such times as the mother nominates and subject to the availability of the supervisor.
(i)All costs of the supervisor are to be borne by the father.
6.The father is at liberty to obtain from the children’s school, copies of the children’s school reports and school photograph order forms, and to request a meeting with the school Principal on no more than two occasions each year to discuss the children’s progress (noting that this order does not create any obligation on the school Principal to facilitate such meetings); the father is otherwise restrained from communicating with the staff of any school at which the children are enrolled unless such communication is initiated by school staff.
7.The mother is to notify the father as soon as practicable in the event either of the children suffers a significant illness or injury, or is admitted to hospital by email to …@....
8.In the event either child is assessed or treated by a specialist medical practitioner, the mother is to ensure that a copy of any written report from the specialist is sent directly to the father, but the father is otherwise restrained from communicating with the medical practitioner unless such communication is initiated by the medical practitioner.
9.Each party has leave to provide a sealed copy of these orders, a copy of Justice Christie’s judgment and a copy of Dr C’s reports (dated 24 November 2016, 4 April 2019 and 6 May 2022) to any psychologist or psychiatrist they attend upon for treatment in the future.
10.Pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”):
(a)The father is restrained from communicating with the mother in any way, manner or form.
(b)The father is restrained from following or observing the mother on any social media platform or engaging any third party to do so on his behalf.
(c)The father is restrained from communicating with any medical or other treating practitioners in respect of either the mother and/or the children, other than as provided in these orders.
11.Pursuant to s 68C(2) of the Act, the injunctions granted in Order 10 hereof, are injunctions for the personal protection of Ms Keighley, born … 1978.
12.The mother shall be permitted by these orders to do all acts and things and sign all documents necessary to apply for a passport for the children pursuant to s 11 of the Australian Passports Act 2005 (Cth), including any subsequent renewal of a passport for each of the children and the father’s consent to the issue of the said passport shall be dispensed with.
13.The mother shall be entitled to retain the children’s passports.
14.Within 28 days of final property orders being made, each party is to pay to Legal Aid NSW the sum of $15,526 being their share of the costs of the independent children’s lawyer in these proceedings.
Property
Superannuation Splitting Order
15.A base amount of $174,799 is allocated, as required by s 90XT(4) of the Act to the mother out of the father’s interest in Super Fund 1 (“the Super Fund”).
16.In accordance with s 90XT(1)(a) of the Act:
(a)The mother is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the FLS Regulations”); and
(b)The father’s entitlement and the entitlement of such other person to whom a splittable payment may be made out of, or would have had an interest in the father’s interest in the Super Fund, is correspondingly reduced.
17.Whenever the Trustee of the Super Fund, being S Limited (“the Trustee”) makes a splittable payment out of the father’s interest in the Super Fund, the Super Fund shall do all acts and things and sign all such documents as may be necessary to pay the entitlement created in Order 16(a) in accordance with the requirements of the Act and the FLS Regulations.
18.Orders 15 to 17 (inclusive) herein, have effect from the operative time and the operative time is four business days after the service of a copy of these orders on the Trustee.
19.Having been afforded procedural fairness, these orders bind the Trustee of the Super Fund to observe the Trustee obligations set out in the Act and the FLS Regulations.
Other Property
20.The father and mother do all acts and things and sign all documents necessary to close the NAB controlled monies account in their joint names ending in #...85 and apply the balance as follows:
(a)$185,258.25 to the mother;
(b)$133,442.75 to the father; and
(c)Any balance be divided 58 per cent to the mother and 42 per cent to the father.
21.Except as otherwise provided in these orders, the mother is declared the sole legal and beneficial owner of her right, title and interest in and to:
(a)All cash in banks and money invested in the mother’s sole name;
(b)All furniture and personal effects in the mother’s possession;
(c)All superannuation entitlements in the mother’s name;
(d)The trade-in amount of $1,000 received by the mother in respect of her Motor Vehicle 1; and
(e)The interim property settlement of $30,000 received by the mother.
22.Except as otherwise provided by these orders, the father is declared the sole legal and beneficial owner of his right, title and interest in and to:
(a)All cash in banks and money invested in the father’s sole name;
(b)All furniture and personal effects in the father’s possession;
(c)Subject to these orders any superannuation entitlements in the father’s name;
(d)His Motor Vehicle 2; and
(e)The interim property settlement of $6,500 received by the father.
23.The father and the mother shall each solely be entitled to the exclusion of the other to all other property and resources, not already referred to in these orders, in the possession of that party at this date.
24.Except as otherwise provided by these orders:
(a)each of the parties shall, by this order, mutually release the other from all debts owing from one to the other; and
(b)each party, as against the other, be solely liable for all and any costs, debts, expenses or liabilities of any nature (including taxes of any nature) whatsoever attaching to or associated with any asset or financial resource to which that party is entitled to, receives or retains pursuant to these orders and that the liable party indemnify and keep indemnified the other party in respect of all and any such costs, debts, expenses, taxes or liabilities.
25.The mother shall pay to the father simultaneously with her receipt of funds from the controlled monies account the sum of $12,677.50.
26.In the event that either party refuses, neglects or otherwise defaults in their obligations to do any act or thing necessary to give effect to these orders, the Registrar of a Court of competent jurisdiction is appointed pursuant to s 106A of the Act, to do any act or thing necessary to give effect to these orders in subsitution for the defaulting party.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keighley & Keighley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This matter was listed for final hearing with both parties seeking parenting and property orders.
The parenting matter relates to two children, X and Y. While the proceedings were both financial in nature and in respect of care arrangements for the parties’ children, the main focus was on the parenting aspect of the case and, without any disrespect to the parties, I will refer to them in this judgment as the mother and the father.
BACKGROUND
Mr Keighley (“the father”) was born in 1976. At the time of trial he was 46 years of age.
Ms Keighley (“the mother”) was born in 1978. At the time of trial she was 44 years of age.
There are two children of the marriage: X (born in 2011) (“X”) and Y (born in 2015) (“Y”) (“the children”).
X is 11 years old and Y is seven years old.
The parties married in 2008. They briefly separated in July 2016 and separated on a final basis on 1 September 2016, but remained living under the same roof. On 16 September 2016, the mother moved out of the former marital home with X. Y remained with the father until orders were made on 23 September 2016 that provided that both children live with the mother and spend time with the father. At the time of separation X was aged five and Y was under one year old. The parties divorced on 30 October 2017.
On 20 May 2019, interim parenting orders were made, which remain in place today. Those orders provide for the children to live with the mother and spend supervised time with the father three weekends out of four for up to four hours. F Contact Centre was the original contact service the parties engaged, however they withdrew their services from the family in early 2021. On 7 March 2021, H Contact Centre became the contact service utilised by the parties.
From 8 December 2019 to 8 March 2020, the children did not spend any time with their father.
The matter was set down for final hearing commencing 14 April 2020 but due to COVID-19 related disruptions, the matter was adjourned to 26 August 2020. On 26 August the matter was tentatively stood over to January 2021. The hearing dates were set for 22 February to 1 March 2021. Those dates were then vacated and the final hearing was set down for 11 days before me, commencing 9 June 2022.
The hearing ran over 13 days and the date for final submissions was 23 December 2022.
Balance sheet
The parties’ assets and liabilities (according to the final Joint Balance Sheet – exhibit VVVVV) are as follows:
PROPERTY OWNERSHIP WIFE’S VALUE HUSBAND’S VALUE ASSETS NAB bank account ending #...85 J 345,437 345,437 Wife’s sole trader business W NIL NIL Motor Vehicle 1 trade-in amount W 1,000 1,000 Motor Vehicle 2 H 16,125 16,125 Engagement ring W N/A 8,250 Jewellery W N/A 900 Antiques, artwork and collections H 2,370 2,370 NAB bank account ending #...85 J NIL NIL NAB bank account ending #...60 (X) H 8,995 NIL NAB bank account ending #...55 (Y) H 4,699 NIL NAB bank account ending #...35 H NIL NIL T Bank account ending #...11 H NIL NIL Shares H 679 679 CBA bank account ending #...74 H 467 467 NAB bank account ending #...91 W 6,239 6,239 NAB bank account ending #...75 W 3,126 3,126 Rental Bond (Suburb U) H 4,500 4,500 Rental Bond (Suburb V) W 3,120 3,120 W Bank account ending #...13 H 885 885 Total: $397,645 $393,098 SUPERANNUATION Super Fund 1 W 122,906 122,906 Super Fund 1 H 418,376 418,376 Total: $541,282 $541,282 LIABILITIES Personal loan for motor vehicle H N/A 30,850 Westpac MasterCard H 944 1,045 Tax liability H 2,839 1,441 Unpaid superannuation H N/A 10,131 W Bank personal loan H N/A 54,204 NAB visa W 235 235 Tax liability for FYE 30 June 2021 W 1,280 NIL Total: $541,282 $541,282 ADD-BACKS Superannuation utilised by the wife for health costs including surgery W N/A 27,551 Sale of shares held at separation by the husband for payment of legal fees H 98,000 40,000 Interim property settlement to Husband H 6,500 6,500 Interim property settlement to the Wife W 30,000 30,000 Interim property settlement to Wife to meet half cost of X’s attendance at Z Psychology W N/A 5,000 Total: $134,500 $109,051 THE EVIDENCE
The mother commenced proceedings in the Federal Circuit Court (as it then was) on 19 September 2016. The matter was transferred to the Family Court of Australia (as it then was) on 20 March 2017. The mother filed an Amended Initiating Application on 8 April 2022. By way of this application, the mother sought the following orders:
Parenting
(a)The mother have sole parental responsibility for the children;
(b)The children live with the mother and have no contact with the father;
(c)The father be permitted to write to the children biannually;
(d)Injunctions preventing the father from communicating with or approaching the mother or children;
Property
(e)A superannuation splitting order in favour of the mother;
(f)Each party to retain property and liabilities in his or her own name;
(g)Overall property adjustment with a division 70/30 in the mother’s favour;
(h)Costs to be paid by the father;
Child Support
(i)A departure from the administrative assessment of child support;
(j)The father pay child support to the mother at a higher rate than provided by the administrative assessment;
Spouse Maintenance
(k)The father pay the mother a lump sum by way of spouse maintenance.
At final hearing, the mother relied on the following documents:
(a)An Amended Initiating Application filed 8 April 2022;
(b)Affidavits of Ms Keighley filed 24 December 2020 and 30 May 2022;
(c)Affidavits of Ms AA (the maternal grandmother) (“Ms AA”) filed 23 March 2020 and 30 May 2022;
(d)Affidavits of Ms BB, psychologist, (“Ms BB”), filed 23 March 2020 and 30 May 2022; and
(e)A financial statement filed 30 May 2022.
The father filed an Amended Response to Final Orders on 22 April 2022. In that application, the father sought the following orders:
Parenting
(a)Equal shared parental responsibility;
(b)The children live with the mother and spend day time with the father, graduating to overnight time;
(c)The facilitation of the children’s involvement in Jewish Religious holidays and traditions including the organisation of the children’s Bar and Bat Mitzvahs;
Property
(d)Overall property adjustment with a division 60/40 in the father’s favour;
(e)Each party to retain property and liabilities in their own names; and
(f)A superannuation splitting order in favour of the mother.
At final hearing the father relied on the following documents:
(a)Minute of Orders Sought (exhibit E);
(b)Affidavit of Mr Keighley filed 30 May 2022;
(c)Affidavit of Mr J Keighley filed 30 May 2022;
(d)Affidavit of Dr B (“Dr B”) filed 30 May 2022;
(e)Affidavit of Ms D (“Ms D”) filed 30 May 2022;
(f)Affidavit of Ms R filed 30 May 2022; and
(g)A financial statement filed 30 May 2022.
An independent children’s lawyer (“the ICL”) was appointed on 19 December 2017 to represent X only. On 8 June 2018 an order was made extending the ICL’s appointment to include Y.
Dr C (“Dr C”) was appointed as the single expert psychiatrist in the parenting matter. Dr C prepared a single expert report on 24 November 2016, an updated report on 4 April 2019 and a further updated report on 6 May 2022. Dr C gave evidence and was cross-examined at the final hearing.
The parties resolved the issues which related to child support and consent terms were made orders of the Court on 9 June 2022.
Each of the parties filed a lengthy trial affidavit. The matter was listed for final hearing in June 2022 with the parties indicating that five days would be sufficient to put on their respective cases. When the matter finished and directions were made for final submissions it had been before the Court for 13 days.
On 11 October 2022, the mother filed an Application in a Proceeding that was procedural in nature. Each of the parties had already given evidence and been cross-examined and the Court had allocated two further days during which it was due to hear from the father’s psychiatrist and the single expert before closing submissions.
The mother’s Application sought to adduce further evidence. Pursuant to s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) and r 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules (Cth) (“the Rules”) I am required to have regard to the overarching purpose to facilitate the just, quick, inexpensive and efficient resolution of these proceedings. To ensure that proper time was given to the complex issues in this case, I had already allocated additional dates for trial.
The mother filed her Initiating Application on 20 March 2017. Doing the best I could, in balancing the need for a just resolution and the importance and complexity of the matters in dispute, the mother’s Application in a Proceeding was heard on 28 October 2022 in accordance with r 1.06 of the Rules and allowed in part.
Following submissions from all parties I limited the evidence and the cross-examination arising out of the application to reopen.
Before I turn to consider my findings and how the law should be applied to the facts in this case, I observe this is not a case about credit. Each of these parties sees the facts in the case through that lens of their own experiences and vulnerabilities and in the case of the father, through serious and often debilitating mental health challenges.
To the extent that the mother submits I should find the father’s references to having to check his diary as indicative of deception or manipulation, I am not certain that is the case. It is not unusual for parties to keep a record of events after separation and use that record to give instructions to their lawyers or draft affidavit evidence. The parties in this case were separated for more than six years by the time the trial ended.
The fact that the father (and various of his witnesses) had made amendments to affidavit evidence in an effort to better comply with the rules of evidence was the subject of considerable cross-examination and submission in the mother’s case. I was not concerned that the changes which were noted in any way impacted on the central findings I was required to make or the major issues in the case, except in so far as the issues of mental health and family violence were concerned. I did conclude that the paternal grandparents’ respective amended affidavits sought to underplay the difficulties their son had experienced.
These observations do not mean that I have not, as appears below, determined that one party’s evidence should be preferred over another in respect of certain key events and, where I have done so, it is apparent from my assessment of the evidence.
THE LAW
Property adjustment proceedings
It is not to be assumed that the property of the parties shall be divided in a particular way or at all. The Court shall not make an order under s 79 of the Family Law Act 1975 (“the Act”) unless it is satisfied that, in all the circumstances, it is just and equitable to do so: s 79(2) of the Act.
In approaching the consideration of the justice and equity involved in each of the parties’ competing proposed orders it is necessary to consider the relevant matters in ss 79(4) and 75(2) of the Act.
The task is usually best undertaken by considering what assets, liabilities, superannuation and financial resources are held by the parties as at the date of trial. Sometimes in order to do justice and equity as between the parties it is necessary to take into account notional assets, that is, assets which were in the names of one or other of the parties but are no longer held by them at the time of trial. The principles which apply to such consideration are well summarised in NHC & RCH (2004) FLC 94-204 (“NHC”) and Trevi & Trevi (2018) FLC 93-858 (“Trevi”).
Spouse maintenance
A party to a marriage is liable to maintain the other party, to the extent that they are reasonably able to do so, if the other party is unable to support themselves adequately for any proper reason. The Court may make orders as it considers proper for the provision of maintenance: s 74 of the Act.
When exercising the power afforded to the Court under s 74 of the Act, the Court must take into account the matters listed in s 75(2) of the Act.
Parenting matters
Parenting proceedings are governed by Part VII of the Act. In making a parenting order the Court must apply the “best interests” principle, that is, whatever parenting orders are to be made must operate in the best interests of the subject children: ss 60B(1) & (2) of the Act. In determining what orders will be in the best interests of the children the Court must consider all relevant evidence and in particular, the matters listed in s 60CC of the Act.
The types of parenting orders contemplated by the applications in this case include orders in respect of parental responsibility, orders in respect of the time to be spent with each parent and orders concerning specific issues and special occasions.
CONSIDERATION: PARENTING
Some matters are not in dispute. The father accepts that the children will continue to live with the mother with whom they have a good relationship and who provides them with appropriate care.
This is not a case which turns, in any significant way, on the expressed views of the children. X (aged 11) and Y (aged seven) have been the subject of litigation between their parents since shortly after Y’s birth. Significantly, Dr C in his 2022 report did not seek the children’s views. When he interviewed X in 2019 he was acutely conscious of the litigation history and approached the task of ascertaining her views with that in mind. He concluded that she was concerned about her father’s dislike and distrust of the maternal grandparents but noted “there was enough spontaneous warmth and engagement with her father” such that he concluded “she wants more harmony between her parents and she wants to have an uncomplicated relationship with her father because she loves him”.
The issues which arise on the cases of each parent are as follows:
(a)What is the nature of the children’s relationship with the father?
(b)Does time between the children and the father pose a risk to the children?
(c)If so, can the risk be ameliorated?
(d)What is the capacity of the parents to communicate?
(e)What is the effect (if any) of the father’s actions on the mother’s functioning?
Because of the issues in this case as framed by the parties and the ICL the evidence of the lay witnesses (other than the parties themselves) was not central to the determination of what orders were in the best interests of the subject children.
Nature of the children’s relationships with their parents
The mother
There was no suggestion that the children would live with anyone other than their mother with whom, overall, it was uncontested they had a good relationship. When the children were first assessed by the single expert in 2016, Dr C expressed the view that X exhibited an anxious attachment to her mother, while Y appeared to be securely attached.
When Dr C next assessed the family in 2019 he noted the mother’s “warm and intuitive” nature in her interactions with the children.
Most significantly, the single expert observed both in his second (2019) and third (2022) reports that difficulties in the interaction between the children and their mother were likely caused by the tension in the relationship between the parents.
The father
The parental separation occurred when Y was a young baby and the parents assumed separate residences when he was under one year old; X was five. The age and stage of development of each child and the age they were at the time of separation have both impacted upon the development of their individual relationships with their father.
Dr C’s assessment of the relationship between X and her father in 2016 was of a “somewhat anxious attachment” whereas he concluded that Y’s attachment to the father was “quite secure”.
On further assessment in his second report, Dr C noted quite good interaction between the children and their father but observed the father’s interactions were affected by his obsessional traits to the extent that he was unable to follow the children’s lead in play for sustained periods and was “over-inclusive” in his play.
The most significant concern raised by Dr C in his second report about the parent/child relationships was the father’s failure to perceive “the warmth, spontaneity and intimacy” in his relationship with X that Dr C himself observed (exhibit J p.36). This observation is important because it demonstrates the difficulty experienced by the father in responding in a proportionate manner to issues as they arise in a parenting context.
In the final report released in 2022 Dr C commented on the development of both of the children’s relationships with their father. According to the single expert, the relationship is “reasonably stable” but is “not a very deep relationship” (exhibit K p.36).
The children’s relationship with their father has been impacted by three main factors: the amount of time they have spent with him, the supervision and the father’s personality style. It remains a positive relationship according to Dr C (exhibit K p.23). I have had access to the supervised contact reports which chronicle the parent child interactions. They are overwhelmingly positive in nature. The mother was unable to accept the reports as representative of the true position of the visits and sought to dismiss records of positive interactions as a product of appeasing behaviour, predominantly by X. I accept that X may from time to time behave in ways which are designed to appease but I am unable to dismiss the overwhelming number of accounts of positive interaction as the result only of such efforts on her part. This is even more so when it comes to assessing the nature of Y’s relationship with his father.
In evidence before me were a large number of supervised contact reports detailing the children’s interactions with their father during supervised visits between 2019 and 2022. The mother and the father do not agree about how those reports should be interpreted. The father submits that the reports demonstrate the appropriateness of his interaction with the children and the children’s demonstrable affection for him. The mother submits that the reports cannot capture the nuance of X’s affection being offered to the father, on her case, to meet his needs and appease him (as opposed to being a sign of natural affection). She says the reports also demonstrate the father’s tendency to infantilise the children by doing such acts and carrying them when they have long passed the developmental stage where this would be necessary.
In evidence is a supervised contact report from 7 March 2021 (exhibit NNNNN). Following an upset, the father lifted X up to hug her. X was nine. The report records “[X] seemed upset and embarrassed”. It is not plain from the text whether the upset and embarrassment were a consequence of her having been disciplined or the father’s affection. The report goes on to note that “the Father put [X] on his lap”.
Another report, this one from 23 May 2021 records “[t]he children spotted the father and began to run towards him. The children hugged the father” (exhibit NNNNN). This, on its face, seems to be a clear example of the children’s natural desire to see the father and demonstrate affection. Similar observations appear in the report from 27 February 2022.
Exhibit L is a supervised contact report from 9 January 2022. X was 10 and Y six. The report writer records the children running to the father at the commencement of time. After an ordinary playtime incident, which the report writer describes the father as having resolved, the report states “[t]he father picked [X] and [Y] up and gave them a cuddle”. The report mentions affection between the father and children and hugs appear on this occasion (as reported) to be initiated by the father.
The supervised contact report observations are of a similar nature to the observations of the single expert – that is that the interactions between the father and the children are warm and largely positive.
Dr C reviewed the supervised contact reports in his final report from 6 May 2022. I agree with his assessment of those reports as a whole. I accept that the time the children spend with the father appears by report to be objectively enjoyable and enjoyed by both children and father. Does it follow then that the mother’s concerns have no validity or relevance? No, because I formed the view that her concerns were not entirely without foundation and genuinely held and unlikely to be amendable to change. When I say not without foundation, I mean that her concern that the father’s actions may not be developmentally appropriate was shared by the single expert. I accept that children may show affection to their parents because they understand their parents seek or want affection. By themselves these matters would not constitute risk. By that I mean, a lack of attunement such that the father is overly affectionate or does not read cues from the children would not automatically lead to the finding that time between the children and the father would place them at risk. Assessment of risk requires an appreciation of the entirety of the children’s circumstances as opposed to an assessment of one factor in isolation.
As to the genuineness of the mother’s expressed views, her treating psychologist, in cross-examination, was taken to the supervised contact reports and asked to reflect on how different the observations of the supervisors were from the picture her client had painted in sessions. Ms BB understood what was being put to her but reiterated her opinion that the mother’s expressions of concern were nonetheless genuine (Transcript of 10 August 2022, pp.893 – 894, line 45).
I find that the mother’s evidence about the children’s apprehension about visits and joy when visits do not proceed is so at odds with their presentation at supervised time (as recorded in the reports).
In that sense, the mother’s views appear rigid and seemingly incapable of change having regard to objective evidence. It does not necessarily follow that the Court can ignore her position. In fact, given its inflexibility, it is important that I have in mind this evidence when I consider what time between the children and the father is appropriate - not, as the mother may submit, because it would naturally lead to orders for no time or very limited time, but for the more complicated reason that I have to anticipate that this dynamic - the children expressing such views to the mother and the mother accepting that they represent the children’s reality - will continue if time is to continue.
One need only look at the evidence about X and how easily she learned to tell her father exactly what he wanted or expected to hear about the maternal grandparents to understand that X may present in her mother’s household in a manner which echoes her mother’s implicit and explicit concerns. The mother’s evidence is that X seeks reassurance that she is safe - and no doubt the mother provides that reassurance - the continuation of that pattern ironically reinforcing the message that she has reason to feel afraid.
Children have a right to know and be cared for by both their parents except where it would be contrary to their best interests. In this case, the positive nature of the interactions between the children and their father make it desirable that the Court explore all options to determine whether orders can be made which protect this relationship while at the same time understand the complex interplay between the other factors which point towards a cautious approach to time between the children and their father.
The Act obliges me to consider, in making parenting orders which are in the best interests of these children, the objects and principles which underlie the making of all parenting orders. Perhaps most significantly, in the circumstances of this case, ensuring that X and Y have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests. Charting the boundaries of what is the maximum amount of time in a case like this is challenging because it requires analysing the extent to which an uncontested carer can tolerate and facilitate time, assessing the impact of orders for time on the children and the primary carer and importantly using the evidence about what has occurred to date to predict how the parent exercising time, in this case the father, will conduct himself during the periods of time which are to be ordered.
Does time between the children and the father pose a risk to the children?
It is important to understand the nature of the asserted risk. The ICL and the mother focused fairly squarely on the risk of psychological harm, although the mother, somewhat faintly, asserted a risk of physical harm. I find, for the reasons discussed below, that time between the children and the father does pose a risk of psychological harm to the children.
In conceptualising the issues for the single expert psychiatrist, the ICL posed three questions:
(a)Whether the father has changed in respect of his obsessive thinking, and if so, what is the extent of change and the possibility of relapse?
(b)Does the mother have the capacity to facilitate time supervised or unsupervised?
(c)What orders are least likely to lead to further court proceedings?
It is the first of those questions that falls to be answered in relation to the assessment of risk.
The father has, during the course of the proceedings, had the assistance of the following people:
(a)His treating psychiatrist, Dr B;
(b)His treating psychologist, Ms D; and
(c)Another psychologist, focused on parenting issues, Ms CC (“Ms CC”).
The father relied on a report by Dr B who had commenced his treatment of the father in 2015 and remained the father’s treating psychiatrist at the time of the hearing. The father had reported to Dr B “…emotional dysregulation and having a very short fuse. He said that controlling his anger had always been a problem”. Dr B formed the view that the father met DSM criteria for Attention Deficit Hyperactivity Disorder (“ADHD”) Combined Type, had a recurrent Major Depressive Disorder (in remission in 2015) and some features of Social Anxiety Disorder. In time, Dr B formed the view that the father had attachment issues and features of a Preoccupied (Anxious) Attachment. The significance of the last diagnosis was in its manifestation in the father’s parenting. Dr B set out in his report at paragraph 1.12 some features which may be present in a person with a Preoccupied or Anxious Attachment:
A person with a Preoccupied or Anxious Attachment may be:
•Insecure in intimate relationships; constantly worried about rejection and abandonment; preoccupied with relationship; “hyperactivates” attachment needs and behaviour.
•Needy; requires ongoing reassurance; want to “merge” with partner, which scares partner away.
•Prone to ruminate about unresolved past issues from family-of-origin, which intrudes into present perceptions and relationships (fear, hurt, anger, rejection).
•Overly sensitive to partner’s actions and moods; takes partners behaviour too personally.
•Highly emotional; can be argumentative, combative, angry and controlling; poor personal boundaries.
•Prone to communication that is not collaborative; unware of own responsibility in relationship issues; blames others.
•Unpredictable and moody; connects through conflict, “stirs the pot.”
•Inconsistent in attunement with own children, who are likely to be anxiously attached.
(As per the original)
Dr B’s opinion in this regard was not the subject of challenge and I accept his evidence.
The single expert (writing about the father’s presentation in 2019) said “[f]ollowing assessment, I am more strongly of the view that [the father] does not meet the recognised criteria for an Attention Deficit Hyperactivity Disorder, or if present that this is not his primary mental health problem…I think he has a serious personality dysfunction with strong obsessional, paranoid and depressive components” (exhibit J p.41). Dr C maintained that evidence at trial and I accept it.
The diagnosis itself, while relevant, is not the key issue but rather the manner in which the conduct which grounded the expression of the single expert opinion manifests in the father’s life and with what consequences for his parenting capacity. The evidence demonstrated the father’s behaviour, in particular his response to intrusive obsessive ideas led to a series of disproportionate responses to issues which arose for the children.
There are two distinct areas of the evidence which it is necessary to discuss in the context of assessment of risk. The first is about the father’s interactions with the children themselves. The second is the father’s interactions with others (including the mother) which have implications for the children.
Both in his written report at paragraph 6.1 and in his oral evidence Dr B confirmed:
[Dr C’s] description of [Mr Keighley] being quite anxious and insecure and suspicious and dependent man who has acquired a number of very obsessional traits, fits the description of Preoccupied or Anxious Attachment in 1.12. When [Mr Keighley] gets anxious he can become quite belligerent, and overbearing so, in regards to [Mr Keighley’s] primary problems in relation to parenting issues, I agree with [Dr C] that ADHD is not the main issue. However, over time, I feel [Mr Keighley] has worked hard to overcome this pattern of behaviour.
I accept Dr B’s assessment that the father has “worked hard” to overcome the pattern. The evidence suggests that the work undertaken by the father has ameliorated some of the worst excesses but has not resolved the underlying obsessional and pedantic nature of his approach. As Dr B commented in his oral evidence: the father “by nature, is very obsessional…” (Transcript of 28 October 2022 p.1005, lines 42-43) and in a similar vein “…he can be a bit black and white and perhaps lacking in ability to reflect” (Transcript of 28 October 2022, p.1006, line 25).
Reflecting on the father’s use of a body camera to record his time with the children Dr B said:
I have a memory, for example, of him describing to me… wearing a camera …to video… in his mind, I think he was wanting to be sure that, …there was evidence... I guess there were … patterns in his behaviour where again there was that …perhaps lack of ability to sort of step back a bit and …think, “Okay …how might this look …to other people, to the children … to the family?” I think that’s where he sometimes does have problems thinking about what he’s doing and how he’s ….interacting.
(Transcript of 28 October 2022, p.1011, lines 1-11)
In his final report Dr C said:
“While I am of the overall view that [the father] has made significant progress, the question is how far that has gone and what is the risk of relapse. In that respect, it is my view that additional information about his underlying motivations may come to light in the course of the Hearing, both in terms of the quantity and depths of querulousness reflected in [the father’s] legal and other correspondence with [the mother] over the years, as well as the manifestations of grievances towards professionals involved in the matter, and secondly in the focus of his legal representatives and his evidence during the Hearing itself. That is, while I think that the reports of his progress in the records of [Dr B] and [Ms D] can be relied on to a significant extent, the question is how far that progress has gone.
(Exhibit K p. 27)
Both the single expert and the father’s treating psychiatrist confirmed that the father’s obsessive thinking patterns would continue. Dr B (and to a lesser extent Dr C) concluded that the therapeutic interventions which the father has pursued since 2015 may equip the father to better manage the tendency to obsessive thinking but that there remained a risk of relapse to the same level as was present between 2017 and 2019, which could be triggered by loss e.g. job, relationship.
Dr C based his conclusions about the behaviour recurring in the future on the father’s functioning to date, noting the change in his fixation from Y’s health to whether or not X had been coached by her grandparents. His conclusion was that the area of fixation may shift but the tendency to fixate would remain present (Transcript of 28 October 2022, pp. 1036-1037).
It is those opinions about future risk, when read with the findings about the past conduct, that ground the predictive exercise about unacceptable risk: Isles & Nelissen (2022) FLC 94-092 at [82].
Father’s interactions with the children
In the period after separation the father’s obsessional thinking was focused significantly on the idea that the maternal grandparents and the mother were coaching the children, in particular X, to engage in conduct which would have the effect of limiting his relationship with the children.
The matters which the father documented included: X reporting frequently between May and November 2017 that the maternal grandparents had instructed her to urinate or defecate in her bed, X reporting she had been told not to eat or drink while in her father’s care and X reporting she had been instructed by the maternal grandparents to run across the road without holding her father’s hand. The father also gave evidence that X reported being told to “touch my vagina at your house”.
The father began to question X about his concerns. It became plain to X that, in conversations with her father, she would do well to attribute any bad behaviour on her part to having been instructed by the maternal grandparents. Accordingly, when she closed the door on her brother’s fingers she explained her conduct as the product of her maternal grandparents urging her to do so.
It is not necessary for me to traverse all of this evidence. There is no evidence to suggest that the maternal grandparents coached X as the father feared. At the time of trial it was not plain to the Court whether he had truly abandoned his concern that the maternal grandparents may have coached X to misbehave in his care. The father’s affidavit was lengthy, running to 726 paragraphs and 113 pages. It was accompanied by 411 pages of annexures. It dealt with the issue of the allegations concerning the maternal grandparents in some detail under the headings “bed wetting”, “restraints placed on X”, “dangerous activities”, “denigration of me by [Ms Keighley] and her parents”, “inappropriate behaviour” and “other concerning behaviours”.
The father took to extensively documenting his concerns in a diary and by setting up cameras which recorded his interactions with the children (but effectively focused on X) in his home and wearing a body camera which recorded the children. One of the videos which showed him questioning X became exhibit BB. In this recording the father asks X to tell him “who taught you to eat a banana like that?” X responded “Granny and Grandpa”. The father saw X sucking on the banana as a sexualised behaviour and concluded that she must have been instructed to do so. The video is more than a minute and half long and in it the father seems insistent on gathering details. It is not clear when the recording was taken.
The father produced another recording (exhibit AA) during which he can be seen and heard repeatedly asking X about her maternal grandparents’ actions and representations. Seemingly out of the blue the father asks X “have they hurt you, Granny and Grandpa?” Again, it is not plain when the recording was taken but it is marked as “video shown to police”. It is concerning that the father apparently believed this recording was evidence to be shown to the police (presumably because he believed a crime had occurred) when what is depicted was a father inappropriately and insistently seeking specific answers from his child in a manner which lacked insight to the impact of his conduct on X.
The father took his concerns to the Department of Family and Community Services (as it then was) in late 2018. On 24 September 2018, the father took X to the Joint Investigation Response Team (“JIRT”) to be interviewed. At some point that day, X accompanied her father to move his car. He made a recording of X during that period. The recording lasts for over an hour but clearly takes place in two parts. The first 45 minutes consists of the father asking X about what she had discussed in the interview. Having listened to the interview, notwithstanding the fact that the audio is not particularly clear, it presents as the father interrogating X. Even where the words are indistinct the father’s tone is clear. He is anxious, his speech seems pressured and he returns to the same subject matter repeatedly. I drew the conclusion that the interaction between father and daughter on this occasion presents as an interrogation because the father repeatedly uses the same phrases to X and seeks that she answer the same question on numerous different occasions. He returns to the same question and does so notwithstanding the fact that X becomes increasingly distressed. There were periods during the recording where she is audibly sobbing. In contrast to X’s presentation on the video, the father’s affect is insistent and cold and determined. It lacks any apparent empathy for the position he has placed his daughter in. He provides her with no comfort, no reassurance but continues to question her about whether or not she has told the truth. To the extent that his questions can be understood, it is plain that he is asking X questions of a leading fashion and he persistently asks her why it is that she has not told the truth. The father tries, during this recording, to determine what she may have said to the police about him.
Most concerningly, he seeks to make her responsible for the predicament he says that the two of them find themselves in. He repeatedly says words to the effect “[X] what are we going to do?” At the time the father made this audio recording, X was 7 years old. Although it is not clear, it seems that for a large period of time when the father is taking the recording, he is carrying X as one might an infant. After about 45 minutes, X and the father return to the police station. It is not plain whether or not there is a gap in the recording but in any event, the recording continues after they leave the interview on the second occasion and the father continues to ask X questions in a similar vein.
The father gave evidence and was cross-examined about his conduct on that day. In his affidavit he describes himself on that day as in a “heightened and wound up state”. He was able to acknowledge his conduct as inappropriate, lacking in child focus, productive of considerable distress to X and obsessive in nature. His counsel asks that the Court find that the father’s capacity to acknowledge this past failing provides comfort that the conduct will not be repeated. Unfortunately, such conclusion is unavailable. The father may not repeat identical conduct but the expert evidence supports a conclusion that the father’s obsessional personality style will likely result in similar conduct in the future. That conduct poses a risk of unacceptable psychological harm to the children: ss 60B(1) and 60CC(2) of the Act.
Another example of the father’s thinking impacting in a negative fashion on the children was his perception that X was ignoring him. Rather than accepting that this may be a normal presentation for a child of her age, the father seemed to pathologise her conduct. Fear of being ignored appears to be a recurring theme for the father. In March 2022 the father raised with his psychologist his concern that his then fiancé’s adolescent daughter “M” was ignoring him. Ms D recorded:
Nightmares…
Thought it was triggered by legal stuff
But thinks triggered by [M] – she would ignore him,
Parallels with [Ms Keighley] and her parents
Vs [M] and [Ms K]
Flashbacks of what was happening
Things were becoming too similar
(Exhibit Y)
Another example of the father’s interactions involving the children which is relevant to my assessment of his capacity to shield the children from conflict is the parties’ failed changeover at the DD Shopping Centre on 14 July 2018. The security log from the DD Shopping Centre for that day records that a security officer:
Spoke with Father [Mr Keighley] who was holding his son and that he got into a heated discussion with his ex-wife after she wanting there son in her care before the 1830 hrs arrange drop off time which was arrange by the courts.
(As per the original)
The CCTV footage (exhibit R) shows the father effectively running away from the mother with Y on his shoulders. The mother is pursuing the father up the travelators and through the shopping centre. At one point the father runs into a bystander in his efforts to avoid the mother. The security staff intervened.
In 2018 X’s birthday fell on a Saturday. That was a weekend where X was due to spend time with her father under the orders of 20 March 2018. The orders in place at the time of the incident at the DD Shopping Centre provided that the father spend time with Y “each Saturday that [X] is spending with her father from 9am to 6:30pm”.
The mother’s time with X on that day was between 4.00 pm to 6.00 pm (pursuant to Order 11). Accordingly, the father provided X to the mother at 4.00 pm. When that two hour window was up, the mother attended at the changeover location. The father expected to have X returned to his care at 6.00 pm in accordance with the orders, which would also have required the mother to collect Y half an hour later at 6.30 pm. When the father could not see X at the changeover time, he would not provide Y. The father’s interpretation of the orders is arguably correct but the actions he took were focused on asserting his rights rather than understanding the consequences of exposing Y to the parental dispute.
I accept that both parties must bear some responsibility for this incident but it would not have occurred (certainly not in the manner that it did) if the father had not in effect fled when he saw the mother approach without X.
The mother also raises in her evidence a concern that the father’s parenting capacity is compromised by a tendency to walk away if he is angry or frustrated. She provided an example where she contended that X was abandoned in Suburb U by the father and was forced to enter a shop to use the telephone to seek help. The father says he thought X was behind him. It is not possible to determine whether the father’s version is accurate. At best however, he was sufficiently distracted that his daughter sought assistance from strangers.
The mother obliquely raised a concern that the father’s conduct may be sexually inappropriate. At its heart her concern arose from the fact that the father was discussing with X matters of a sexual nature (in the context of a suggestion that she had been encouraged by the maternal grandparents to touch her vagina while in the father’s care). The mother saw this as indicative of exposure to potential sexual harm through use of inappropriate sexual language. The mother also raised related issues about the father providing unwanted or excessive affection to X or having her sit on his lap. It was plain from the cross-examination of the maternal grandmother that she shares the same concerns. The evidence does not support a conclusion that X is at risk of sexual harm in the care of the father. As discussed elsewhere, some of the father’s actions in seeking affection or carrying the children, speak more to his lack of parental attunement or failure to treat the children in a manner which is developmentally appropriate than they do to any risk of sexual harm. The mother’s concerns in this regard are perhaps best explained by what the single expert referred to as her hyper vigilance in respect of matters relating to the children.
It is necessary to record that most of the mother’s concerns, as contained in her affidavit material, related to the father’s interactions with X rather than Y. This does not mean that I can comfortably conclude that the same issues of psychological risk do not arise in respect of the father’s proposed care of Y. Y was certainly directly involved in the conflict which arose when his parents could not agree on changeover. Y’s time with his father has been supervised since he was less than one year old. The opportunity for him to become embroiled in debate about his father’s perceptions has not arisen and given the history, I could have no confidence that Y’s experience would be different from that of his sister.
On 20 May 2019 orders were made which included an order that the father consult with Ms CC, a child psychologist. The explicit focus of these sessions, which occurred fortnightly for about six months, was to assist the father to challenge his obsessional thinking around the children and the maternal grandparents. The order arose from Dr C’s second report which suggested Mr Keighley receive “assistance in becoming attuned to his children, exercising sound judgment in his parenting, and acquiring and implementing an array of sound parenting practices” (exhibit J p.39).
Ms CC reported that the father made progress in the sessions with her including moving away from the “intense intrusive and obsessional thoughts around the theme of injustice, unfairness, and a desire to find evidence to prove his case…” (exhibit CC p.3) and also being able to identify triggers around his parenting confidence.
I accept that the father now appreciates that his thinking was obsessional and that this manifested in repeated questioning of X. I am less confident that he is able to avoid obsessional thinking as the manner in which he approached the final hearing did not demonstrate a capacity to fully abandon his concerns.
In his trial affidavit, the father had not abandoned his concerns. He recorded at [275] “[Ms Keighley’s] description and analysis of events that occurred did not correlate with the factual events which took place. This is a quality that I have also noticed in [Ms Keighley’s] parents.” Instead of demonstrating the lessons he had learned from Ms CC, the father’s affidavit evidence focused on the mother’s wrongdoing and that of her family. His affidavit at [567] went as far as to suggest that the mother may have been the cause of his adverse mental health: “I now understand that my marriage with [Ms Keighley] had significant adverse effects on my mental health”. This externalisation of the father’s difficulties does not provide a foundation to conclude that he has the tools necessary to avoid the repetition of similar conduct.
The father indicated that he had obtained a referral to another psychologist from Ms CC in his trial affidavit but there is no evidence of his having engaged with the new psychologist other than an initial meeting.
The Court can comfortably find that the father has been prepared to engage with therapists but, in assessing ongoing risk, it is important to understand the impact of that engagement on the risk the father poses to the children moving forward – that is, is his preparedness to seek assistance sufficient to mitigate risk and make orders for unsupervised time? At the conclusion of the evidence, having regard in particular to the evidence of Dr C, Dr B and Ms D, I could not be confident that the father’s past engagement provides a sufficient indicator that unsupervised time will not pose a psychological risk to the children. There are a number of reasons for that conclusion. The first relates to the father’s failure to provide his psychiatrist with all relevant information. Dr C was very concerned about the significant omissions in the history provided by the father to Dr B. I reject the submission on behalf of the father that the information would not have changed the treatment. The evidence of Dr B does not sustain that submission. Dr B was asked about the father’s failure to share what must have been, highly traumatic childhood experiences:
ICL Counsel: Did you ask [Mr Keighley] or his parents either in this consultation or at any other time whether he had experienced any traumatic or distressing events during his childhood?
[Dr B]: yes
ICL Counsel: And I take it you asked them because it would’ve been relevant for you to know if there had been any traumatic or distressing experiences in childhood
[Dr B]: yes
ICL Counsel: in what way might that have been relevant?
[Dr B]: …if somebody has experienced trauma in childhood that can impact upon their development and …their attachment and… may make them more vulnerable to anxiety and depression.
ICL Counsel: In your communications with [Ms D], did she ever tell you about any information that she had obtained from [Mr Keighley] about traumatic experiences in his childhood
[Dr B]: It is possible she did, but… I can’t recall …her talking about… the childhood traumas.
ICL Counsel: If you accept from me… [Ms D] had a session with [Mr Keighley] during which they explored memories and his… developmental history and childhood. And during that session, [Ms D’s] notes record these things, and it begins with significant experiences in the family:
A few years after I was born, Dad was jailed for […]. He may have had an affair with [an employee]. Can recall visiting him in jail. […]. Brought much disruption to the family.
…Did [Ms D] tell you …about those things?
[Dr B]: …I don’t think [Mr Keighley] talked to me about them… I honestly can’t remember whether that was conveyed to me by [X] or whether I read it in a report.
…
ICL Counsel: …the notes continue and refer to [Mr Keighley’s sibling] having been sexually abused by a teacher at school, and then […] trying to commit suicide by […] while [Mr Keighley] himself was [present] and he was seven years old at the time. Do you recall being told about either of those things by either [Ms D] or [Mr Keighley] or [Mr Keighley’s] parents.
[Dr B]: No I don’t.
ICL Counsel: would it have been relevant for you, [Dr B], to know about those things?
[Dr B]: …yes it would… but it – it may… add more or give more understanding, I suppose to his developmental history, and, you know, would certainly contribute to ..his …development and attachment issues. You know those are pretty…awful.
(Transcript of 28 October 2022, pp. 1015 – 1016, lines 35 - 40)
As is plain, Dr B did not indicate that his treatment of the father would have remained the same had he known information which Dr B agreed was relevant to his treatment and would have aided his understanding.
Father’s interactions with others
There was evidence that the father’s interactions with third parties, arising out of his obsessional personality style, functioned in a way which either did disadvantage or had the potential to disadvantage the children. The most significant problematic interactions (from the perspective of the children) were those between their parents since they had the most likelihood of impacting directly on the children’s stability. It is in this context that it is appropriate to consider the parties’ competing applications for parental responsibility orders.
When the case opened, the father sought equal shared parental responsibility. At the conclusion of the case the father agreed that the mother should have sole parental responsibility but as part of the exercise of that responsibility he sought that she “communicate any decision she makes in relation to the major long term issues to the Husband in writing within seven days of making such a decision”. Orders 17-22 of the father’s Minute of Order which relate to the children’s Bar Mitzvah and Bat Mitzvah, may also be characterised a orders relating to parental responsibility and would, if made, impinge upon the order for sole parental responsibility. Accordingly, it remains relevant to consider the impact of the parties’ interactions – their capacity to communicate and cooperate – both because of the competing positions regarding allocation of parental responsibility and also because of the relevance to the time which might reasonably be considered in the best interests of the children.
Father’s interaction with the mother and consequences for parental responsibility and orders for time
The mother seeks an order for sole parental responsibility. No part of the evidence supported a conclusion that an order for shared parental responsibility would operate in the best interests of the children.
The father sought an order that the mother communicate her decisions to him in writing within seven days of making a decision. I decline to make that order. As discussed in detail below, the parties’ communication has been a cause of anxiety for the mother. I find that the requirement for the mother to notify the father is likely, on past conduct, to produce correspondence which questions her decisions. The exception is that I will make an order requiring that the father be notified if the children (or either of them) is hospitalised. The mother consented to the order.
The father also sought specific orders relating to Y’s Bar Mitzvah and X’s Bat Mitzvah. These were very detailed proposed orders and are properly characterised as orders concerning parental responsibility. The orders required the parties to reach agreement about all the religious, social, cultural, financial, educational and practical aspects of the religious celebration. Consistent with my concerns about the way in which such an order would impact on the children, I do not intend to make the orders the father sought.
I recognise that this decision may seem unfair to the father and be a cause of considerable sadness and disappointment to him and his family. The requirement to make orders which are in the best interests of the children dictates that I make that order which the evidence supports. The evidence that the father’s involvement in decision making about these very important events would involve stress, anxiety, impasse and indecision, is overwhelming. Even the very detailed nature of the orders sought themselves is a signpost to the obsessional manner in which the issue would be approached. Where the interests of a parent, understandable as they are, are in contest with the interests of the children, the parent’s needs and desires must give way and so it is here.
I will now turn to consider some of the evidence about the nature of the interactions between the parents which has grounded my decision that the mother should not have to communicate her decision making to the father and informed my decision that the time the children spend with the father should be subject to conditions designed to ameliorate risk.
The mother gave extensive evidence in her December 2020 affidavit of incidents of family violence which she says the father engaged in over the course of the parties’ relationship and after separation. Elsewhere in these reasons I discuss this evidence and my conclusion that, without evaluating each individual claim, I am able to conclude that there is sufficient evidence that the father did engage in family violence.
The mother gave evidence that the language the father uses in his communications with her is a source of anxiety for her. She provided examples of the correspondence as an exhibit to her trial affidavit. The correspondence is voluminous and detailed and appears to question the mother’s judgment on issues relating both to the children and finances. It is not unusual for recently separated parents to find communication in respect of parenting and financial issues challenging but the tone and volume of the father’s correspondence and its impact on the mother in this case make it material to the decision about parental responsibility and time. The individual emails are not necessarily overtly hostile but the tone of them becomes increasingly distrustful. An example from one of the emails early in the parties’ separation reads:
“…the question (I think), is, how would a court consider your unwillingness to deliver [X] to the Concierge, so she can be walked to orientation, in preparation for school, which is for her benefit, and recommended by the School and literature. It is reasonable or unreasonable. Is it trivial/minor or significant?”
(Annexure MS16 to the mother’s affidavit pp.83-84)
As the single expert observed “…despite the surface politeness of much of his correspondence, there is an intrusive, passive-aggressive and irresistible component” to the father’s correspondence with the mother (exhibit J p.37).
One of the factual disputes in this case which bears on the decision to be made is the parenting arrangements in the period immediately following separation.
On 16 September 2018 the parties ceased to reside under the same roof. X was in the care of her mother. Y was in the care of his father. Both parties agree that at that point, Y was being breastfed by the mother. The mother requested Y be returned to her. The father declined. The mother filed an Application which came before Judge Boyle in the Federal Circuit Court (as it was then) on 23 September 2016. On that day her Honour made an order which provided for return of Y to the mother.
In September 2016 the father gave evidence, on affidavit, that the mother had:
… provided expressed breast milk for [Y] while he has been in my care. I have not used that milk and [Y] is thriving…
I spoke to my father who is a [health professional] on 19 September 2016 and asked him “if we are all lactose intolerant, do you think [Y] might be, given his symptoms of coughing and a clear running nose?” My father replied “yes he could be, try him off the breast milk and see how he goes.” Since then, [Y’s] coughing and his running nose have both greatly reduced.
In the same affidavit the father gave evidence of his view “[Ms Keighley] is prolonging [Y’s] breast-feeding to exclude me as one of [Y’s] carers”.
The father complained to the mother that she had attended his home without authorisation to deliver the breast milk.
The father gave evidence at the hearing before me that “I always gave him the expressed milk, always” and later “there was always breast milk that she had been providing, and I was always giving it to him, apart from that one occasion”.
This evidence was at odds with other evidence, including a previous affidavit where the father had adopted on oath that the mother had provided breast milk but he chose not to use it as he was concerned Y was lactose intolerant and wanted to trial a period where he was not having breast milk, to see how he would react.
I was left unable to determine what version was accurate but that did not dispose of the issue since the decision of the father to retain the breast feeding infant and withhold expressed breast milk (for any period) on the advice of his father (a health professional) could not be seen as child focused on any version.
The evidence about the parents’ capacity (or lack of capacity) to communicate and cooperate in the interests of their children has implications in this case not just for the issue of how parental responsibility should be allocated but also for the amount of time that the children should spend with each parent. Axiomatically, the greater the time in each household the greater the requirement for cooperation and the more opportunities for the children to be effected by the incapacity of the parents to agree on matters relating to the children.
The mother’s surgery
An issue arose in the financial proceedings between the parties which shed light on the nature of the interaction between the mother and father. It is one of the examples which supports a conclusion that the father is suspicious and distrustful when it comes to matters involving the mother.
In December 2020 the mother filed an affidavit in the proceedings which said that she had been diagnosed with a medical condition and she underwent surgery in early 2020.
There followed a number of letters from the father’s solicitors to the mother’s solicitors requesting details of the diagnosis and procedure which the mother instructed her lawyers to answer. When the mother provided the answers sought by the father he did not accept the truth of what he was being told.
When this matter was before his Honour Justice Watts in August 2020, the father requested that the Court make an order for the mother to provide a report from her doctor. The mother provided a report. The father remained unsatisfied with the information provided.
In cross-examination the father said he was concerned about the mother’s capacity to parent the children in the future but was not reassured by letters from her treating specialists giving her a clean bill of health. In the father’s trial affidavit at [621] he described the mother as “incredibly secretive” about her medical treatment. This is notwithstanding the mother provided information including reports from her treating doctors.
On 3 May 2021, the father requested that the court issue a number of subpoenae which were directed to the mother’s diagnosis and treatment for her medical condition. He sought the issue of a further five subpoenae in relation to this topic on 26 November 2021 and two further updated subpoenae on 18 May 2022.
In the notes of Ms D, she made a record of her session with the father on 10 December 2020. Those notes include reference to the father raising with the therapist that the mother has been “hiding” her medical condition.
The mother accessed $21,288.15 from her superannuation entitlements to meet the out of pocket expenses for her surgery. The father asks the Court for an order that those funds be treated by the Court as notional property for the purpose of determining a just and equitable property settlement. That is, he asks the Court to treat those funds as though they were an asset of the mother even though she has expended them on a medical procedure. Inferentially, he must consider that only through the inclusion of those funds as a notional asset is it possible to make an order which is just and equitable. His reasoning is not plain. Each of the parties has spent money since separation. I accept that if she had not drawn down on her superannuation those funds would ordinarily have been included as an asset for distribution but that is not enough (by itself) to persuade a court that an asset which no longer exists should be treated as a notional asset in the hands of the mother.
The father’s focus on this issue, to no apparent end, was a further example of the difficulties that the parties would encounter if the orders this Court made required them to communicate and cooperate. He either failed to appreciate the intrusiveness and obsessiveness of his inquiries and their likely effect on the mother or he appreciated the impact this conduct may have and undertook it anyway. Either option creates difficulties for the parties in their capacity to parent together in the future.
These reasons for judgment have not dealt with all of the evidence which makes the concept of equal shared parental responsibility untenable. Other examples include: the father’s complaint to the Health Care Complaints Commission (“the HCCC”) about the mother herself and emails by the father to the Law Society Professional Standards Department about the mother’s previous solicitors. The father has devoted considerable time since separation to gathering evidence and writing perceived wrongs. He has taken issue with the professional support provided to his family by supervisors and doctors. The father threatened to sue the mother for defamation. The father has written to the children’s school, child care and family friends about the ADVO proceedings and his concerns regarding “parental alienation”. Each of these relatively uncontroversial facts has informed my decisions about parental responsibility, communication, time (and its limits and conditions) and injunctions.
The mother’s car
Earlier in this judgment I referred to the mother’s application to reopen the evidence. In the main she sought this leave in order to provide evidence of the difficulties she said she had encountered in negotiating with the father (through solicitors) for release of joint funds to buy a new car. Her application was allowed in part and, for reasons which follow, I accept her contention that the negotiations shed light on the notorious difficulty the parties have experienced and will experience if they are required to reach any joint decision.
It is necessary to understand some financial background to make sense of the financial negotiations and their relevance to the parenting matter. In August 2022 the parties had $381,240 in a controlled monies account in their joint names. By way of final adjustment the father sought that those funds be divided so that he would receive 60 per cent ($228,744) and the mother would receive 40 per cent ($152,496). By email on 5 August 2022, the mother by letter from her solicitors to the father’s solicitors sought release of $30,000 to her as “partial property settlement”. It is immediately plain that such a release, characterised as a partial property settlement, would not prejudice the relief sought by either party.
The letter explained that the mother was concerned her current car would not pass registration inspection and she wanted a safe roadworthy car to transport the children.
By email on 16 August 2022 the father’s lawyers replied to the request for release of funds. He indicated a “potential…willing[ness]” to release funds subject to provision of evidence about the car’s roadworthiness and evidence of the mother’s incapacity to raise a loan to buy a car.
It is necessary to review the evidence of the parties in light of the principles established by the Full Court decisions in Kennon & Kennon (1997) FLC 92-757 (“Kennon”); Benson and Drury (2020) FLC 93-998 and Keating & Keating (2019) FLC 93-894.
There must be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions.
I have elsewhere in these reasons explored the impact of the father’s conduct on the mother’s functioning. In the context of the Kennon argument it is necessary to evaluate whether the conduct can be characterised as family violence.
Section 4AB(2) of the Act sets out a non-exhaustive list of conduct which may constitute family violence including:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying financial autonomy that the spouse would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of your spouse or the children at a time when your spouse is entirely or predominantly dependent upon the perpetrator for financial support; or
(i) preventing your spouse from making or keeping connections with their family friends or culture; or
(j) unlawfully depriving your spouse or any member of their family of his or her liberty.
The mother gave evidence that the father would stomp on her feet. In her affidavit, the mother said “[f]or as long as I can recall, [Mr Keighley] would stomp on my feet as a way to literally stop me in my tracks or from saying something that he didn’t like or didn’t want me to say”.
The father did not engage with this evidence until the trial when he said:
In particular, [Ms Keighley] suggests that during our marriage I stomped on her feet including doing such in front of the children. I deny that I stomped but say that occasionally as a way of subtlety obtaining [Ms Keighley's] attention, I would press my foot on hers. It was not done with the intention or with enough force to hurt her.
Even on the father’s version his conduct is an assault. In his oral evidence he said he did this at social events, for example if he wanted to leave a party. If he wished to leave a social event one approach would be to have a conversation with his spouse. His actions, unwanted by the mother, are in the nature of physical violence.
The mother also led evidence that the father’s actions had caused her to become estranged from her family. The father says that the mother’s relationship with her family was more ambivalent than she now concedes and he is not responsible for the temporary estrangement. I accept that during her relationship with the father she became more estranged from her parents which represented a change in her position from the beginning of the relationship and after the relationship. The father did play a role in isolating her from her family. This is what is captured by sub-paragraph (i) of s 4AB when it says “preventing your spouse from making or keeping connections with their family…” The mother’s affidavit included evidence about the father’s role in preventing her from communicating the fact of her pregnancy or Y’s birth to her parents. They were not invited to Y’s bris. The mother was not cross-examined about her contention that the father did not permit her to inform her parents about these matters. It seems plain that the father’s animus towards the maternal grandparents did see the mother become estranged from her parents. I consider that the father’s conduct in isolating the mother from connection with her family removed a significant source of support to the mother making the circumstances in which she made her non-financial contributions more difficult.
The mother also gave evidence that the father would pressure her to have sexual intercourse when she did not want to and become angry if she declined, banging a pillow on the bed or throwing it at her. The father denied this. I am unable, on the evidence, to make a finding about this serious allegation.
The mother said the father was physically abusive during her pregnancy with Y including pushing, grabbing, kicking, stomping, pinching, hitting and punching.
The father denies most of the mother’s allegations although he accepts that he yelled and that he told her she should dress in more “appropriate” clothing.
On behalf of the father it was submitted that the mother’s evidence about family violence should be rejected because it was not corroborated by her parents (with whom the parties lived for a time). It is now notoriously well accepted that family violence is frequently perpetrated in circumstances which do not permit corroboration and this fact alone ought not impact upon the acceptance or otherwise of the evidence. It was also suggested that the mother’s account should be rejected because she was prone to exaggeration or overstatement. I accept that the mother interprets the father’s conduct negatively where a more objective observer (for example an independent contact supervisor) may not share the same concerns but that does not allow me to reject wholesale her account of the father’s actions where they are supported by some concessions on his part and contemporaneous complaint by the mother.
The father’s written closing submissions at [149] are to the effect that he denies the severity of the violence as alleged by the mother but concedes some of the matters set out above. In the written submissions filed in support of the father’s case, counsel sets out the comments by the Full Court in Kennon at 84-294 “it is essential to bear in mind that the relatively narrow band of cases to which these considerations apply”. I accept that not every incident of family violence will be relevant to assessment of contribution. The Full Court in S and S (2003) FamCA 905 (“S and S”) adopted the trial judge’s comments that:
…the references to ‘exceptional cases’ and ‘narrow band of cases’ occurs in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. My reading of these passages, therefore, is that it is not necessarily correct that only cases of exceptional violence or a narrow band of domestic violence cases fall within the principles. It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are ‘significant adverse impact’ and ‘discernable impact’. That reading of the passage is, I think, given some additional force by the actual decision in the Doherty case and the judgments of Baker J in both Doherty and Kennon.
The Full Court in S and S said they did not want the reference to “exceptional” to be understood to mean “rare”.
The way in which the case was run does not allow me to make findings about all of the allegations of family violence but I am able to find that the father did engage in acts which meet the definition of family violence (including what the mother described as stomping on her foot and isolating her from her family) and did so over the course of the relationship and after separation.
This conduct by itself does not establish that the mother’s contributions would have been made more arduous either directly or by inference. However, the expert evidence of Dr C and Ms BB about the impact of the father’s conduct on the mother’s functioning was not undermined by cross-examination.
In Benson and Drury (2020) FLC 93-998 (“Benson and Drury”) the Full Court said at [37]:
Although the use of the short-hand descriptor of a “Kennon claim” is not of itself erroneous, it is liable to induce error because the issue is not a stand-alone claim, but is rather integral to the entire process (Paysen & Laukien (2020) FLC 93-960 at [48]–[50]). Nor is it helpful to refer to the issue as a “Kennon adjustment” because that epithet invites treatment of the issue as an isolated claim for an additional share of the available property.
Further, In Benson and Drury the Full Court at [35] said:
The central question raised by this appeal is how a judge takes into account the contributions of one party, found to have been made significantly more arduous by the conduct of the other, when assessing contributions under ss 79(4)(a)–(c) or ss 90SM(4)(a)–(c) of the Act. The answer is the primary judge must take a holistic approach. The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder (Jabour & Jabour (2019) 59 Fam LR 475; (2019) FLC 93-898; [2019] FamCAFC 78 at [73]–[87] (“Jabour”); Horrigan & Horrigan [2020] FamCAFC 25 at [42]–[48] ).
Accordingly, in this case I find that the circumstances in which the mother made her contributions is one of the matters to which I have had regard in my holistic approach to contribution.
I must weigh the initial contributions (which I find substantially favour the father) against the parties’ contributions during the relationship which I assess as approximately equivalent save that the mother’s contributions were made in difficult circumstances, as discussed above, and then consider the weight to be attached to the mother’s post separation parenting contributions. I find that overall the contribution based entitlements of the parties favour the father 57.5 per cent.
I must now consider what if any adjustment should be made to the contributions based entitlements of the parties to take into account their respective future financial needs as set out in ss 79(4)(d)-(g) and 75(2) of the Act.
The parties are about the same age. Each of them has faced health challenges. The mother has the children in her full-time care and will do so for more than ten years. The father has a greater income and earning capacity based on the unchallenged history of his employment and remuneration as set out in his affidavit material. The mother has had time out of the work force to care for the children of the marriage.
The father will have expenses for child support and for supervision of his time with the children.
Balancing all of the factors discussed above I find there should be an adjustment in favour of the mother of 12.5 per cent. This percentage adjustment also takes into account the modest pool available for division. The overall division of the assets will of consequence be 55 per cent to the mother and 45 per cent to the father.
Each of the parties has sought an order which would have the effect of splitting the father’s superannuation entitlements. I will make an order splitting his superannuation entitlements such that the mother will have 55 per cent of the superannuation assets of the parties.
The superannuation entitlements of the parties total $541,282. The mother’s own superannuation entitlements are valued at $122,906. Accordingly, the father’s superannuation entitlements will need to be reduced by $174,799.
The mother otherwise has the following assets:
Motor Vehicle 1 trade-in amount W 1,000 Engagement ring W 8,250 Jewellery W 900 NAB bank account ending #...91 W 6,239 NAB bank account ending #...75 W 3,126 Rental Bond (Suburb V) W 3,120 Interim property settlement to the Wife W 30,000 Total: 52,635
If the mother is to receive superannuation of $297,705 and has assets of $52,635 she will need to receive $185,258.25 from the funds held in the controlled monies account.
The father has the following net assets:
Antiques, artwork and collections H 2,370 Shares H 679 CBA bank account ending #...74 H 467 Rental Bond (Suburb U) H 4,500 W Bank account ending #...13 H 885 Sale of shares held at separation by the husband for payment of legal fees H 100,000 Interim property settlement to Husband H 6,500 Liabilities W Bank personal loan H 54,204 Total: 61,197
If the father is to receive 45 per cent of the overall assets then taking into account his $61,197 and superannuation in the sum of $243,577 he will receive $133,442.75 from the controlled monies account.
Any interest earned on the controlled monies account since the close of the evidence should be divided between the parties in the same proportion as the capital, such that the mother receives 58 per cent and the father 42 per cent.
CONSIDERATION: SPOUSE MAINTENACE
At the conclusion of the trial the mother sought an order as follows:
28. that in the event the nab joint account is distributed such that the wife receives from that account less than $300,000.00, then the husband pay lump sum spousal maintenance to the wife in the sum of $50,700.00 within 14 days of the date of these orders, to such account as nominated by the wife in writing and that this payment is made pursuant to section 77a of the act, the amount attributable to the maintenance of the wife being $50,700.00.
(As per the original)
This seems to be at odds with paragraph 231 of the written submissions filed on her behalf which reads:
231. The Orders sought by the Wife are, in essence that the Husband pay to the Wife Spousal maintenance either by lump sum of $50,700 or $325 per week for 36 months.
(As per the original)
It is necessary to consider the spouse maintenance application after I have determined how the parties’ interests in property should be adjusted. Accordingly, I take into account the capital that each party is to receive.
The mother disclosed her occupation at the time of trial as being that of a self-employed consultant. She gave evidence that the average weekly income from that source was $50. She was otherwise reliant upon parenting payments, family tax benefits and child support to meet the expenses of the family.
Mother’s position
In assessing whether she is able to support herself adequately I must disregard the income tested pensions and benefits and must regard the child support received as support for the children and not money for the support of the mother. Accordingly her relevant income, as per her financial statement is $50.
Two issues arise. The first is whether this adequately represents the mother’s income and the second is whether it adequately represents her earning capacity.
The mother gave evidence of the following expenses personal to her:
PERSONAL EXPENDITURE
Part N expenses
$383
Rent
$780
Tax
$50
Insurance
$96
Credit card
$25
TOTAL
$1,334
As against those expenses the mother deposes to $50 a week in income. There is plainly a shortfall between her expenses and her income.
The above analysis supports the mother’s submission that she cannot support herself adequately without access to an income tested pension or benefit.
It is necessary to examine the evidence about why her income is so low. The mother’s most recent tax return is in evidence and shows taxable income of $41,675 (exhibit N).
The submissions made on behalf of the father focus on the mother’s lack of disclosure about her income position. They submit the fact that she says she has $50 by way of income yet is required to pay $50 per week in tax makes no sense – that anomaly is explained by the evidence she gave about a payment plan for past taxation arrears. The father asks the Court to find (by inference) that the mother has more income than she has disclosed. The father submits that this finding is further supported by the evidence the mother gave about not having had her expenses paid by others and not having borrowed money to fund her shortfall.
It is not plain why the mother used the figure of $50 per week as her average income when her Notice of Assessment for 30 June 2021 shows income more in the vicinity of $801 per week. I assume she may have taken less work in the tax year ended 30 June 2022, but the evidence left it unexplained.
Doing the best I can I find that the mother’s income should be approximately $801 per week and her expenses total $1,334 (potentially slightly higher as more tax would be payable on income of $801 per week). Even allowing that the $25 per week paid to credit cards may be a double count I find that the mother has a shortfall and I find at present that she cannot adequately support herself. I accept that her parenting obligations, this trial and her health as described by Ms BB have placed limits on her earning capacity post-separation.
I must also take into account the property settlement orders which will provide her with a lump sum.
Father’s position
I now need to turn to consider the father’s capacity to meet any order. In determining his capacity both counsel said I could properly regard the amount said to be applied to credit card payments as a double count ($100) and could also deduct the amount in respect of child support arrears as having been retired ($200). Taking the father’s income at $4,560 per week as per his financial statement (including his phone allowance). His expenses are as follows:
PERSONAL EXPENDITURE
Part N expenses (less supervision)
$715
Rent
$1,125
Tax
$1,580
Insurance
$185
Credit card
$25
Registration
$19
Personal loan
$191
Tax arrears
$110
Child support (as per exhibit A)
$683
TOTAL
$4,608
While I have deducted all supervision costs from the weekly total expenses for the reasons discussed above, there will continue to be supervision costs and so I find that the father has no capacity to pay periodic maintenance from income. The father’s affidavit indicated that the supervision cost is $418 per session. That includes $88 for a report. It is not necessary for there to be a report, in my view, but should either parent desire one then they should be at liberty to pay for it. Accordingly, having regard to the parenting orders I propose to make, in the short term the father will have supervision expenses of $330 per fortnight for six months, which average $165 per week. In addition the father gave evidence of likely ongoing medical and dental expenses. Both of these expenses further support the conclusion that the father lacks the capacity to meet an order for spouse maintenance from income.
I have considered the mother’s application that a sum be made available from the parties’ capital to be attributable to lump sum spouse maintenance from the father to the mother. I intend to dismiss the mother’s application for lump sum spouse maintenance because an allocation of capital towards lump sum maintenance out of this modest pool would not be proper and appropriate in the circumstances.
In Clauson & Clauson (1995) FLC 92-595 their Honours observed at p.81, 908:
Periodic maintenance should be considered before lump sum maintenance. The central power is to order maintenance; that power may be exercised in different ways. A claim for lump sum maintenance is not a claim to the exercise of a separate head of power; it is a claim for maintenance which may be satisfied by a periodic order or by a lump sum order.
This type of lump sum maintenances is not a separate entity. It is the capitalising over a period of time of what is considered to be appropriate periodic maintenance for that period, usually with a discount because of immediate payment. The power to capitalise periodic spousal maintenance is a power to be exercised cautiously for reasons referred to by his Honour in the passage cited above. In particular, uncertainty about future events explains this approach, and capitalisation of maintenance would rarely be justified where there was no genuine concern about the capacity and preparedness of the payer to comply regularly with a periodic order.
(Citations omitted)
Taking into account the financial positions of the father and the mother as regards both income and property (following the making of these orders) no orders for spouse maintenance would be proper in this case.
APPLICATION UNDER S 102QB
The mother sought, by her amended minute filed at the conclusion of the evidence, that the Court make an order pursuant to s 102QB(2)(b) of the Act which would have the effect of requiring the father to obtain leave before instituting further proceedings. The father resisted the making of that order.
It should be noted that the father (and those who represented him) were not given any notice of the order being sought until the evidence had closed. The effect of that was that the father gave no evidence touching on the issue (in any direct sense) and his lawyers were not in a position to cross-examine any witness about that relief or issues relating to it.
The making of an order requiring a person to obtain leave before commencing proceedings is a curtailment of his or her access to the courts and not undertaken lightly. It would be unusual to adopt such a course without according procedural fairness to the respondent to such an application.
The mother submits that the Court would find that the father has “frequently instituted or conducted vexatious proceedings”. The term vexatious proceedings is defined in s 102Q(1) of the Act and includes:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
I accept that the mother has found the proceedings in the Family Court of Australia (now Federal Circuit and Family Court of Australia (Division 1)) and the Administrative Appeals Tribunal (“the AAT”) difficult but the definition squarely focuses on the conduct of the person sought to be restrained as significantly less on the subjective experience of the respondent to the application.
The parties are only completing their first final hearing before this Court. The issues in the parenting aspect of the case are complicated by the mental health of both the applicant and the respondent.
I accept that the father has brought interim applications during the currency of the pending final applications which have not been successful but I do not find that those applications were an abuse of the court process. It is important that care be taken to distinguish between proceedings which are unsuccessful and proceedings which are vexatious in nature.
There is no evidence that the actions of the father have been undertaken to deliberately cause delay or for a wrongful purpose. The father made some concessions during cross-examination that he was aware of the effect his conduct may have on the mother but undertook the course anyway. Those concessions do not render his actions in pursuing orders through the Court vexatious without more. I accept that in instructing his lawyers to pursue orders that he see and spend time with his children the father was acting in good faith to try to achieve that end.
If the mother’s submissions at [260] were to the effect that I should consider proceedings in the Family Court of Australia, Federal Circuit Court and Federal Circuit and Family Court of Australia (Division 1) as separate proceedings for the purpose of assessing whether the father’s actions in pursuing proceedings in those courts ought attract the provisions of s 102QB of the Act, then I reject the submission. The proceedings for financial relief and parenting orders are the one proceeding. I accept the father has also filed proceedings in the AAT dealing with child support and instituted but abandoned an appeal to the then Federal Circuit Court.
As I understand the evidence there were two separate applications to the AAT. The information in the mother’s affidavit about those proceedings does not allow me to conclude that they were vexatious in nature.
The submissions deal specifically with the filing of the father’s interim application for parenting orders in July 2021. The final hearing dates allocated for this matter were vacated on 4 February 2021 in circumstances where the Court was told that the hearing could not be contained in the allocated dates. On 4 February 2021 the Court noted that the 20 May 2019 interim orders provide:
…supervised contact to the father. Counsel for the husband accepted that if the trial dates were vacated, the husband would be confined to those orders pending final hearing.
The father filed an application for interim parenting orders in July 2021. The application was heard in December 2021 and dismissed in January 2022. The mother seeks her costs of that interim application.
The mother points to this application as meeting the definition of a vexatious application. In aid of the submission the mother points to the father’s acknowledgment that he knew the mother would find the application productive of stress and anxiety. I accept that the father’s interim application was unsuccessful and always likely to be unsuccessful since there was no significant change of circumstances and the evidence could not be tested at an interim hearing.
The father submits that Dr C’s recommendation in his report of 4 April 2019 that supervision be reviewed after six months provided at least an arguable basis for the father to prosecute his interim application. The report reads:
After six months the supervision could be reviewed, based on satisfactory reports of his progress from his mental health treaters and the parenting counsellor (the latter who should also have been provided with the supervision reports as they are produced).
I accept that the father must have known his interim application faced difficulties but I cannot find, given this recommendation, that his decision to prosecute it was itself vexatious.
COSTS
Costs of family Report
The father sought an order that the mother pay him $12,677.50 being half of the third report by Dr C.
Rule 7.06 of the Rules provide:
Unless the parties agree otherwise or the court otherwise orders, the parties (but not an independent children’s lawyer) are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report.
There is no reason to depart from the usual rule in the context of this case. The mother will have the funds available to her from her entitlements as outlined above.
Costs of the interim parenting application: July 2021
The usual rule is that each party bear his or her own costs. If there are justifying circumstances the Court may depart from the usual rule: s 117(1) of the Act. The mother says that the father was wholly unsuccessful. Further she contends the father, properly advised, ought to have known that his application would be unsuccessful.
On this application I take into account the financial positions of each of the parties, as found above.
The mother does not provide a sum in her minute of order and seeks that that sum be advised at some later stage.
I decline the application to adjourn this costs aspect. The parties have had significant time and court resources devoted to the determination of this case and further hearing time cannot be considered proportional to the funds involved in the claim. Consistent with the principles in s 67 of the FCFCOA Act, I will deal with the mother’s application in these reasons and decline the request to adjourn the matter.
I am determining the application on the material before the Court. I decline to make an order for costs of the interim application. I accept that the father was not successful but as discussed above he was (at least in part) pursuing the recommendation of the single expert and his failure to achieve that is not, in the circumstances of this case, sufficient justifying circumstance. The parties’ respective financial positions do not persuade me to make an order.
ICL costs application
The ICL has made an application for costs. The costs of the ICL (in the context of the legal fees of the parties) are modest.
The ICL seeks that each party pay $15,526.
The mother (through final written submissions) sought leave to defer this issue until after the final determination of financial matters was known to the parties. I decline that application. As already discussed, the proceedings need to be finalised. The costs of returning whether in person or via written submissions, involving the mother, father, the Court and ICL well exceed in terms of proportionality the quantum. I take into account in making the orders as against the mother the fact that her financial circumstances are modest.
The parties will receive capital such that they are in a financial position to pay the costs of the ICL and I will so order.
I certify that the preceding two hundred and ninety-nine (299) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 8 February 2023
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