LANTOS & LANTOS

[2019] FCCA 3588

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANTOS & LANTOS [2019] FCCA 3588

Catchwords:
FAMILY LAW – Final parenting hearing – best interests of child-orders made –final property hearing-orders made.

Legislation:

Family Law Act 1975 (Cth), Div.4 Pt.XI, ss.102NA, 60B, 60CA,

60CC, 61DA, 65D, 65DAA.

Cases cited:

Lotta & Lotta [2017] FamCA 50

Applicant: MS LANTOS

Respondent: MR LANTOS

File Number: PAC 1000 of 2016

Judgment of: Judge Newbrun

Hearing date: 21 and 22 October 2019

Date of Last Submission: 22 October 2019

Delivered at: Parramatta

Delivered on: 20 December 2019

REPRESENTATION

Solicitors for the Applicant: Mr Bainbridge

The Respondent appeared in person

Counsel for the Independent Children's Lawyer: Mr Cook

Solicitors for the Independent Children's Lawyer: Mr Wilkins

ORDERS

Parenting

1. That the mother have sole parental responsibility for any major long-term issues relating to the care, welfare and development of the child [X] born … 2014 (the child).

2. That the child live with the mother.

3. That the child be permitted to travel internationally, without the need for the consent of the father, Mr Lantos to be provided to the issue of a passport to the child. The Mother shall be the only person with parental responsibility of the child for the purposes of applying for and being issued with an Australian passport for the child.

4. That the mother shall forthwith notify the father of any and all schools which the child may ordinarily attend.

5. That the mother shall do all acts and things necessary to authorise the father to obtain copies of all of the child’s school reports, photographs, notifications of school events and these orders shall be sufficient authority for him to do so.

6. That the mother shall forthwith notify the father of the child’s General Practitioner and any other medical specialists and associated health practitioners that the child may attend upon from time to time.

7. That the mother shall do all acts and things necessary to authorise the father to contact the child’s General Practitioner and any other medical specialists and associated health practitioners the child may attend upon from time to time to discuss the child’s condition or treatments if any, and these orders shall be sufficient authority for him to do so.

8. The father shall be permitted to send the child letters, cards and/or presents, no greater than three times per annum. To facilitate this Order the mother shall within 28 days inform the father of a postal address to which such material can be sent. 

Property

1. That within 28 days of the making of these orders, the Respondent do all such acts and things and sign all necessary documents so as to transfer to the Applicant all his right title and interest in the former matrimonial home situate at B Street Town A NSW  and more specifically described as folio …86.

2. That contemporaneously with the transfer set out above the parties do all such acts and things and sign all necessary documents so as to discharge the mortgage on the subject property and replace it with a mortgage to the party acquiring the property alone.

3. That the Applicant be declared the sole owner in law and equity of the C motor vehicle, Registration Number ….

4. That within 28 days of the making of these orders, the parties do all such  acts and things and sign all necessary documents so as to close the Westpac bank account (…59) and to pay the balance remaining, if any, to the Applicant.

5. That each party be declared the sole order in law and equity of all items of personalty, chattels and financial resources in their name, possession or control not otherwise dealt with in these Orders including but not limited to bank accounts, any choses in action and superannuation benefits.

6. That the parties do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.

7. That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court in which these Orders are made be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.

8. That each party has liberty to apply in relation the implementation or enforcement of these Orders upon seven days’ notice.

IT IS NOTED that publication of this judgment under the pseudonym Lantos & Lantos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1000 of 2016

MS LANTOS

Applicant

And

MR LANTOSMR LANTOS

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This was the final hearing of property and parenting proceedings between the parties. The parenting proceedings relate to the child [X] born … 2014 (the child).

2. On 4 March 2016, on application by the mother, the Court made interim parenting orders that the child live with the mother; that the mother have sole parental responsibility for the child; and that a recovery order issue for the child (with the child, once recovered, to be delivered to the mother).

3. On 18 July 2016, the Court made interim parenting orders by consent that upon a position coming available, the father spend supervised time with the child at the Suburb D Children’s Contact service at such times and days as provided by the Contact Service.

4. On 14 February 2019, this Court listed the proceedings for a two day final hearing on 21 and 22 October 2019.

5. On 9 May 2019, this Court wrote to the parties and the ICL, referring, inter alia, to the recent introduction of Division 4 to Part XI of the Family Law Act 1975 (Cth) (the Act), which included section 102NA of the said Act, and stating that from 10 September 2019, in particular cases involving allegations of family violence, unrepresented parties will not be permitted to personally cross-examine another party. The letter stated that any party who was not permitted to personally cross-examine another party may retain private legal representation or apply to the Commonwealth Family Violence and Cross Examination of Parties Scheme.

6. Shortly before 17 September 2019, the father voluntarily returned to the United States. 

7. On that date, 17 September 2019, the father appeared at Court by telephone from the United States. At this mention, the Court raised the issue of section 102NA of the Act. The father informed the Court that he did not need to cross-examine the mother in view of his filed evidence, including the evidence of lay witnesses.  The Court adjourned the proceedings for mention to 23 September 2019, with the father being given permission to appear by telephone.

8. On 23 September 2019, a mention of the proceedings was held and there was no appearance by the father.  The proceedings were adjourned for mention to 14 October 2019, with again the father being given permission to appear by telephone from the United States.  The Court made a notation that the final hearing of the proceedings was set down for 21 and 22 October 2019 and which was in relation to both parenting and property final orders.  The notation stated that the father should ensure that he is ready to proceed with both parenting and property matters, from an evidential perspective, at the final hearing.

9. On 14 October 2019, a mention of the proceedings was held and there was no appearance by the father.  The Court confirmed the final hearing of the parenting and property proceedings to commence on 21 October 2019.

10. At the outset of the hearing, the father, following discussion between the Court and the parties and ICL in relation to section 102NA of the Act, again informed the Court that he did not need to ask the mother any questions in cross examination as long as he could refer the Court to the parties’ relevant (documentary) evidence.

11. There was no application by the mother to cross-examine the father, with the Court noting that the father appeared at the trial by telephone from the United States.

12. Accordingly, the final hearing of these proceedings proceeded without there being any oral evidence of the parties (or the family report writer), with the Court effectively being required to determine the parties’ competing proposals, both parenting and property, based on the documentary evidence before the Court and hearing submissions. 

Proposals: parenting

1. The mother’s proposals were set out in her Amended Initiating Application filed 15 November 2018 and in her Case Outline; inter alia, the mother sought orders that she have sole parental responsibility for the child, that the child lives with her, and that there be no orders for the child to spend time with or communicate with the father.

2. The father had filed an Amended Response on 5 September 2018 seeking “joint parental responsibility” of the child; regular visitation with the child; telephone or video chat time with the child; and “seeking to be promptly and readily informed about the welfare of the child i.e. schooling, medical, updates etc”.

3. At the outset of the hearing, the father informed the Court that he sought the following final parenting orders:

   a)orders enabling the father to communicate with the child by way of telephone and video means;

   b)orders enabling the father to send to the child particular items, such as clothes or anything the child might need;

   c)orders enabling the father to be made aware of health or other concerns arising in respect to the child;

   d)orders enabling the father to be informed of any overseas travel that the child might take;

   e)orders enabling the father to receive updates about the child’s upkeep, well-being and care;

   f)orders providing for the mother to update the father on the child’s schooling, for example, the provision of progress reports;

   g)that the child spend time with the father, in alternative years, in the United States, for a block period of 2 weeks at Christmas and on the child’s birthday.  Further, that the child spend time with the father for a two-week block period in the United States, during the child’s NSW school holidays;

   h)orders that the parties communicate by email in respect to the child, and that all telephone calls be respectful and civil;

   i)an order that the parties have equal shared parental responsibility for the child.

4. The ICL sought parenting orders in accordance with Exhibit D; such orders essentially supported the mother’s proposed final parenting orders, and sought other ancillary related parenting orders.

Material relied upon

1. The mother relied upon the following documents:

   a)Amended Initiating Application filed 15 November 2018;

   b)Affidavit of mother filed 30 September 2019;

   c)Affidavit of valuer, Ms E, filed 30 September 2019.

2. The father relied upon the following documents:

   a)Amended Response filed 5 September 2018

   b)Affidavits of the father filed 14 November 2016 (3 Affidavits filed on this date), 5 September 2018, and 24 September 2018.

   c)Financial Statement of the father filed 14 November 2016.

3. The following Exhibits were relied upon:

   a)Exhibit A: Family Report of 11 September 2019 and the Child Dispute Conference Memorandum of 23 June 2016;

   b)Exhibit B: a file from Town F Local Court (sleeve 7 of the subpoena material);

   c)Exhibit C: International Health and Medical Services documents regarding the father’s mental health;

   d)Exhibit D: The ICL’s Minute of Order.

Evidence: parenting

1. Throughout these Reasons the Court will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. The Court does not propose to set out the entirety of the contents of the parties’ material.

2. The mother is aged 36 years.  The father is aged 34 years.

3. The father is a United States citizen.  The mother is an Australian citizen.

4. In about September 2013 the father travelled to Australia and the parties commenced cohabitation.

5. The parties married in November 2013.

6. The parties separated on about 23 July 2015.

7. The child spent supervised time with the father at a Contact Centre on three occasions; on two occasions in January 2017, and on one occasion in February 2017, which was the child’s last time spent with the father.

8. In about March 2017, the father pleaded guilty to assault charges brought against him by the NSW Police in respect to Ms G.  Thereafter the father was incarcerated at a correctional centre in NSW for about one year.

9. Following the father’s release from the correctional centre, he was then held at H Immigration Detention Centre. Again, shortly before 17 September 2019, the father voluntarily returned to the United States. 

10. In Australia, the father had employment for certain periods, inter alia, as a manager. 

11. The mother works as a salesperson.

12. The parties commenced cohabitation in about September 2013.

13. The parties separated on about 23 July 2015. The mother left the family home situated at Town A.

14. Thereafter, the child remained in the mother’ s primary care, spending limited supervised daytime periods with the father as agreed between the parties.

15. The father retained the child on about 2 March 2016, and refused to return the child to the mother’s primary care.  The mother commenced urgent parenting proceedings in this Court seeking a recovery order.  Again, the Court made an order on 4 March 2016, ordering that the child be recovered and returned to the mother’s primary care.(The incident relating to the child being retained by the father without the mother’s permission is set out in paragraph 8 of the mother’s Trial Affidavit and the Court accepts that evidence).

16. Following the above incident, the child has only spent supervised time with the father on three occasions at a contact centre in January and February 2017.

17. The father had a relationship with Ms G after the conclusion of the parties’ relationship.  Ms G gave birth to a child as a result of her relationship with the father.

18. The mother has been the child’s primary carer since birth.

Exhibit B: the subpoenaed records from the Town F Local Court file

1. The Court has considered the father’s Record of Interview with the police dated 25 July 2015, forming part of Exhibit B.

2. In that interview, the father was questioned by the police about various allegations of assault made by the mother against the father to the police.  In that interview, the father expressly denied ever physically having assaulted the mother.  He refers to having yelled at the mother during the relationship, for example in the context of the mother allegedly lying to the father.  He admits to having sworn at the mother.  He admits to having become very upset about things with the mother.  He admits that jealousy was an issue between the parties and did not deny being jealous or a jealous person.  He admitted to getting angry and frustrated and upset with the mother.  He admitted to heated arguments with the mother with the parties swearing at each other.

3. In Exhibit B, there is a copy of Exhibit 4 in the Local Court Police proceedings against the father held on … 2015.  This exhibit appears on its face to be a lengthy text message from the mother to the father.  The date of the message is not clearly given.  In part it states,

   I’m scared to tell the police I lied about everything in fear of what consequences I will face.

   I know that through all this you’ve been patient and understanding and you’ve been trying to make it work.

   With the pressure of everyone telling me they’ll take away our son if I tell them I lied, my parents saying they’ll call immigration, everything else happening and then it will destroy what we have built together.  Words can’t even describe the amount of sadness and guilt that I feel during this time was spent apart.  I’m hoping that our marriage and our vows are more important than any troubles that we face together.  I hope you will forgive me for taking your son away and putting you through this because hurting you was never my intention.

   I never wanted you to go to jail or for you to be away from us, I just wanted the chaos in our life to stop.  We have had it rough since you came here with only me working in the beginning which started our financial issues and my family didn’t make it easier by questioning everything we did.  I thought that having a new home would be a fresh start but it made (things) worse with all the new pressure just caused me to break.  All I ever wanted was you by my side.  I need a new to listen to me and it felt like you didn’t.  I would have stood by you through everything that the idea of you wanting a divorce and leave after me standing by you made me feel like you didn’t take our marriage seriously and I couldn’t deal with that.  Now I need on by my side more than ever and it hurts that you can’t be there even though I know you want to be.

   I hope you can forgive me over time.  I know our love is strong and we can be better people after all this.  I love you.

4. Exhibit B refers to a provisional ADVO made on 24 July 2015, and interim ADVOs made on 30 July 2015, and 10 September 2015, all against the father for the protection of the mother.

5. From Exhibit B, it appears that on … 2016, in the Town F Local Court, all criminal charges against the father, relating to alleged offences in 2013 and 2015, being assault, assault occasioning actual bodily harm, and stalk/intimidate, by the father against the mother, were dismissed.

Family report

1. The Family Report writer was Ms I.  The Family Report was dated 11 September 2019.  She conducted interviews with the parties and the children on 20 August 2019.  She was not cross-examined.

2. The parties told the Family Report writer that no final family violence order was made against the father.

3. The father told the Family Report writer that while a family violence order was made against him in the United States, this was because the father of his then partner was discriminatory towards him on the basis of his age and cultural background.

4. Under the heading “Family violence and abuse”, the Family Report writer notes that the parties each alleged that the other was controlling and abusive towards them during their relationship.

5. The father told the Family Report writer that he would not be able to return to Australia because his visa was cancelled “on character grounds”.

6. The mother told the Family Report writer that the child is curious to know who his father is.  The mother stated that she has informed the child that the father was naughty and that they therefore had to say goodbye to him.

7. Under the heading “Family violence”, the Family Report writer records the father as stating that various adverse behaviours exhibited by Ms G during their relationship triggered all “his psychological difficulties”.  In this context, the father stated that, when his child to Ms G was an infant, he saw Ms G give that child vodka to get him to sleep and, “I just seen red, I snapped.”

8. The father reported to the Family Report writer that the mother was controlling and physically and psychologically abusive towards him during their relationship.  However, the Family Report writer noted, the father tended to provide vague or unrelated information when asked about this.

9. The mother told the Family Report writer, under the heading “child safety and well-being”, that the thought of the child spending unsupervised time with the father terrified her because the father was really violent.  She stated that she would be stressed and worried the whole time the child were to spend time with the father.  She reported that she could not eat, sleep, or function during the period that the father retained the child and said that, “I just felt terrified the whole time.”

1. The mother told the Family Report writer that the child was a typical four-year-old boy who was active and engages in attention seeking behaviour at times (for example drawing on walls) and that the father did not have that kind of patience to cope with the child.  The mother stated that the father could not handle the child when he was an infant and either gave him to someone else to care for or, despite the mother, would leave the child in a dirty nappy while she was at work.

2. The father reported to the Family Report writer that he was diagnosed with post-traumatic stress disorder in the United States because of childhood abuse and trauma. He identified that he currently experiences symptoms, due to being in detention “and I don’t feel safe”, but denied that he typically experienced symptoms when not in detention.  However, the father also reported that Ms G abusing their child triggered the father and he said that he had seen his doctor regarding anxiety prior to the assault on Ms G.  The father also stated that he experienced depression, and had suicidal ideation, around the time that the mother took the child and he identified that he accessed support regarding this.

3. The mother reported to the Family Report writer that there was no communication between herself and the father.  She stated she would hate having to communicate with the father and would not feel safe if she were to come into contact with him.

4. The child was interviewed by the Family Report writer.  Inter alia, he stated that the father had done naughty things like speeding, shooting and stealing money.

5. The child stated that he has no recollection of the father and does not know what he looks like.  He stated that the mother never, ever, wants to take the child to see the father.

6. Under the heading “Evaluation”, the Family Report writer stated, inter alia, that the child was observed to engage in challenging behaviour, including physical aggression, towards the conclusion of the observation session with the mother.  The Family Report writer stated that the reason(s) for the child’s challenging behaviour was not clear and his behaviour was not, in isolation, of significant concern.  However, she stated that if the child were to regularly exhibit similar challenging behaviour in other contexts, for example daycare, it would be recommended that the mother attend upon the child’s GP seeking a referral to a paediatrician or clinical psychologist, as deemed appropriate, for further assessment of the factors contributing to the behavioural difficulties.

7. The Family Report writer stated that the information provided by the child to the Family Report writer is suggestive that he has been exposed to the mother’s negative views regarding the father.  This raised concerns regarding the mother’s capacity to facilitate the child building and maintaining a meaningful relationship with the father.

8. The Family Report writer stated that given that an observation session of the child with the father was not conducted, the nature and quality of the father’s interactions with the child were unable to be observed for the purposes of the assessment.  The Family Report writer stated that during interview, the father presented as self-focused at times but also demonstrated an understanding of some appropriate child focused strategies that may facilitate the child building a relationship with him if they were to have contact.  She stated, however, that the child’s ability to build a meaningful relationship with the father is likely to be determined by additional factors, including opportunities to build a relationship, the mother’s capacity to tolerate the child having a relationship with the father, and the child’s experiences of the father.

9. The Family Report writer stated that in order for the child to build and maintain a positive relationship with the father, he would likely have to experience him as a safe, predictable, and reasonably child focused carer.  If the child were to experience the father as self-focused, unsafe, or an unpredictable carer, irrespective of whether such behaviour is directed towards him, it is likely to undermine his ability to build a relationship with the father and could have a detrimental impact on the child’s psychosocial well-being.  It was also likely, given that the child does not have an established relationship with the father, that he would resist or refuse to have contact with the father, face-to-face or electronic, if he does not experience his interactions with the father positively.

10. The Family Report writer stated that the accounts of family violence provided by each of the parties appeared most consistent with coercive controlling type family violence, with each alleging that the other was the perpetrator.

11. The Family Report writer stated that exposure to family violence, including hearing violent incidents, being cared for by a parent whose parenting is impaired as a result of family violence, and seeing injuries or property damage resulting from family violence, is known to have a detrimental impact on children, irrespective of their age at the time the violence occurred.

12. The Family Report writer stated that there can also be ongoing risks, post separation, if the children spend time with a perpetrator of family violence additional to the risk of exposure to future incidents of family violence.  She stated that if it was determined that there is veracity to the mother’s account that the father perpetrated coercive controlling family violence against the mother, it would be recommended that the child spend no time with him and have no contact with him. This recommendation was made with regard to the current assessed nature of the child’s relationship with the father and to the relative potency, and therefore associated risk, of each of the parties’ allegations of family violence. This recommendation was also made with regard to the father’s account of the incident of family violence perpetrated against Ms G, with the father appearing to assume little responsibility for the incident and presenting as believing that his behaviour was justified.  The Family Report writer stated that this was suggestive of a limited capacity to make significant and sustained changes in order to protect the child from the detrimental impacts associated with exposure to family violence.

13. It was recommended by the Family Report writer that the mother have sole parental responsibility for the child irrespective of the veracity of the allegations regarding family violence.  This recommendation was made having regard to the father’s account that he would be returning to the United States with no prospect of returning to Australia and the poor parenting relationship between the parties raising a concern that the parties would not be able to effectively exercise shared parental responsibility.

14. The Family Report writer stated that the child’s account of the father to the Family Report writer suggested that he has been exposed to parental conflict and that this has had a detrimental impact on his relationship with the father.  She stated that the child being exposed to information regarding the father was, inter alia, highly likely to have a detrimental impact on his ability to build a relationship with the father and result in the child experiencing a resumption of contact with the father as difficult.  This may result in the child experiencing emotional or behavioural difficulties.

15. The Family Report writer stated that if the mother were to have experienced coercive controlling family violence perpetrated by the father, it was likely to be a mitigating factor in her willingness to communicate with, and to support the child having a relationship with the father.

16. The Family Report writer stated that the most practical avenue of the child building a relationship with the father would be via electronic communication such as video calls.  However, she stated that the nature of such communication would result in limited opportunities for the child and the father to interact and, therefore, to build a meaningful relationship.  Furthermore, electronic communication was likely to require involvement from the mother given the child’s age and, therefore, increase the likelihood that the child would be exposed to parental conflict.  The Family Report writer stated that exposure to parental conflict was highly likely to undermine the child’s ability to build a meaningful relationship with the father and may increase the child’s resistance to contact with the father in addition to potentially having a detrimental impact on the child’s psychosocial development and academic performance.

17. The Family Report writer stated that if it was determined that there was no veracity to the allegations that the father perpetrated family violence against the mother, it would be recommended that the father be permitted to send the child letters, cards, and/or presents at a frequency of no greater than once per month. It would also be recommended that the father be permitted to access the child’s school reports and relevant correspondence from the child’s school and other relevant agencies, with the mother to keep the father updated regarding the child’s school enrolment and any significant life events relating to the child.  The Family Report writer stated that the father maintaining such contact, and having some knowledge of the child’s progress to facilitate correspondence, may assist the child in developing an alternative narrative regarding the father to the one he currently holds.  The father maintaining written contact with the child may also provide the child with an avenue to contact the father if he wishes to return correspondence and have a relationship with the father in the future, given that the mother was unlikely to maintain an avenue of contact.

18. The Court accepts the evidence of the Family Report writer, subject to its discussions below under s60CC of the Family Law Act.

Report of Mr J, psychologist dated 5 February 2016

1. This report is attached to the father’s Affidavit filed 5 September 2018.

2. Inter alia, the report states that the father was seen for assessment on 27 January 2016, with three follow-up treatment sessions thereafter concluding on 5 February 2016.

3. The report states that the father presents with adjustment disorder with mixed depressive/anxious mood of moderate severity.

4. The report states that perpetuating factors which increase the ongoing likelihood of continued adjustment disorder include the uncertainty of the father’s visa status in Australia and his experience of “continuing threats and antagonism from (the mother) that indicate her unwillingness to enter into relationship mediation for the sake of your having a continuing relationship with your two year old son.”

5. The report states that, “Psychological intervention has focused on supporting your stress management using cognitive behavioural strategies.  It is expected that I will continue to provide you psychological treatment to assist with your continued adjustment and management of anxious/depressive symptomatology that is to be conducted on a regular basis.”

Report of Mr K, psychologist, dated 29 May 2017

1. This report was prepared at the request of the father’s former solicitors engaged to represent the father in relation to the criminal law proceedings regarding the father’s admitted assault upon Ms G.

2. The father had been assessed for the purposes of the report by Ms K on 27 May 2017.

3. The report states, inter alia, that the results of the assessment “are consistent with Ms Lantos suffering a long-term depressive disorder co-morbid with unresolved symptoms of post-traumatic stress.”

4. The report states that in terms of formal diagnoses, the father is suffering from Persistent Depressive Disorder (Dysthymia), of moderate severity, and Post-Traumatic Stress Disorder.

5. The report states that the father informed the psychologist that his relationship with Ms G was very toxic.

6. The report states that in about February 2017 the father had psychological treatment with a psychologist (it would appear for a brief period) until the father’s arrest by police and subsequent incarceration.

7. The report stated that evidence indicates the presence of a prominent anxiety disorder in the father.  It states that the father can display a number of symptoms of intense anxiety, and that, “Other signs of distress include difficulty falling asleep, outbursts of anger, panic attacks and a subjective sense of numbing and detachment.”

8. The report states that to manage and decrease the father’s risk of recidivism it is believed it would be in his interests to obtain certain treatment, including therapy and medication.  In the report’s concluding comments, it is stated that the father is in need of further psychological treatment in order to address his history of sexual abuse with his current symptoms of depression in order to minimise the risk of recidivism.  The report states that if the father was fortunate enough not to receive a custodial sentence, it would be recommended that he be required to undergo therapy until such time as the treating psychologist/psychiatrist believes appropriate.  The report posits that such therapy may extend, at a minimum, for a period of 9 to 12 months. 

Exhibit C, records of the International Health and Medical Services

1. The above records in Exhibit C relate to the father’s, inter alia, mental health consultations within the H Immigration Detention Centre.  The records span the period from 26 April 2018 to 16 May 2019. The Court does not propose to set out the entirety of such records in Exhibit C.

2. The clinical record of a GP consultation on 26 April 2018 states, inter alia, that the father stated that he has a strong history of torture and trauma since he was a child.  He states that he was physically and sexually abused by his mother for many years (his mother has just been released from jail after 15 years).  “He got into abusive relationships one after each other in Australia and he has one son from each partner.”  He has been on Avanza for the last 7 to 8 months from PTSD and anxiety and sleep problems.  He previously had thought of suicide but he is not suicidal at the moment.…”  On examination, it is stated that the father “looks fine.  Stressed and crying.  No obvious signs of psychosis”.

3. The clinical record of 5 July 2018, relating to a mental health consultation by a psychiatrist, states, inter alia, that the father’s mother was abusive, emotionally, physically and sexually.  The progress notes also state:

   Also brought people into her house that participated in the abuse.  Reports his mother spent 15 years in prison for child sex offences.  (The father) spent time in and out (of) boys homes.  Reports he suffered abuse in this setting as well. 

   As a result, (the father) states he has grown up distrustful with a sense of insecurity.  States he is always on edge and hypervigilant… It affects me every day… Describes nightmares… Daydreams…where he recalls abuse… Came to Australia partly to escape his mother and the memories in the USA.  Describes his mind as always being busy with negative thoughts.

   Has had long-term treatment.  States he first saw a therapist when age 2.  Reports he has been on medication since the age of 11.  Tried various antidepressants, mood stabilisers and antipsychotics in the USA and in Australia….  Since moving to Australia reports he has had three courses psychological therapy.

   In terms of current symptoms he describes being depressed for the last 6 weeks.  However, (the father) also comments that his mood is very changeable….  Has had suicidal ideation in past but children protective against him acting on thoughts.  No current suicidal ideation….

   Imp:

   Complex PTSD from extensive developmental trauma.  Main symptoms are hyper vigilance and distrust.  Adjustment symptoms from detention and uncertainty of future aggravated by transference of previous institutional trauma and his trauma based difficulties being in close proximity to people.  Stressed about possible return to USA as it reactivates traumatic memories from that country.  Risk to self low.

   Plan:

   Extensive discussion about medication options.  Ultimately agreed to begin Escitalopram..to address PTSD symptoms.  Explained this would not cure all symptoms…but may help reduce his hypervigilance…

   Encouraged further psychological therapy both in VIDC and post release.

   Psychiatrist review 4 – 6 weeks.”

4. The clinical records of 9 July 2018 refer to a mental health consultation with a primary health nurse.  The progress notes state, inter alia, that the father had an awful childhood, “and the amount of discrimination he has to go through as (omitted) in America is too much.”

5. The clinical records of 12 July 2018 refer to a mental health consultation with a mental health nurse.  The progress notes state, inter alia, “MH referral request; by ABF before client appeared before Federal Court.  Fears and frustrations that negative news would trigger; DSH or suicide behaviour…..Client reports that he has been driven on the verge of taking his own life….Currently denies DSH suicide or homicide ideation…”

6. The clinical records of 7 August 2018 refer to a mental health consultation with a psychologist.  The progress notes state, inter alia, “.. Previous Tx.  Reported he was Dx with PTSD by a doctor in the USA.  Reported he also saw a counsellor when in Aus, however stated he has not received tx for PTSD.  Was unable to see psychologist regularly whilst in prison due to lack of psychologist availability… Reported he does not want to return to the US as he does not have contact with his family, and as such the only family he has is in Aus..”

7. The clinical records of 10 January 2019 refer to a mental health consultation with a counsellor. The progress notes state, inter alia, “.. One evening (the father) caught her giving alcohol to their 2 month old child and he became very angry, lost control and hit her..”

8. The clinical records of 28 February 2019 refer to a mental health consultation with a counsellor. The progress notes state, inter alia, “Reported he’s been non-compliant with his medication the past week..”

9. The clinical records of 23 April 2019 refer to a mental health consultation with a counsellor.  The progress notes refer, inter alia, to the father expressing remorse for the assault upon Ms G.  The father reports that on the evening of that assault, he had received a call from a friend in the USA informing him that his mother was being released from prison. The father reported that seeing his partner give their child alcohol was the breaking point for him as this resurfaced memories of his mother abusing alcohol and drugs throughout his childhood.

10. The clinical records of 3 May 2019 refer to a mental health consultation with a counsellor.  The progress notes state, inter alia, “Just overall the uncertainty of his future is stressing him out.  Finding it hard to cope with same.  Finds therapy helping with same….  (The father) reported he’s had 2 years to reflect on the incident that brought him here and reported he is very remorseful for his actions.  Reported hitting a woman goes against his core beliefs, yet he did exactly that.  He states the toxicity of the relationship turned him into a man he’s always tried hard to not to be.  Now he is able to see how hurtful and toxic both his relationships were…”

Legal principles

1. Section 60B of the sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

2. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration:  section 60CA of the Act.

3. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

4. When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act.  When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).

1. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

2. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

3. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration

1. The child has a meaningful relationship with the mother and would benefit from a continuance of that relationship.

2. The child has spent very limited time with the father since the parties’ separation in July 2015.  He has no present relationship with the child. It would appear that at the time of the parties’ separation he had a meaningful relationship with the child.

3. There is no evidence before the Court as to the father’s legal ability, prospectively, to gain entry into Australia.

4. The child, prospectively, may benefit from having a meaningful relationship with the father provided it is safe for the child to do so.

5. As discussed below, under the need to protect primary consideration, presently there exists an unacceptable risk of harm posed to the child in spending time with the father by reason of his untreated mental health conditions.

6. Should the Court make orders providing that the father be permitted to send the child letters, cards, and/or presents (see below), and make the ICL’s proposed orders relating to the father being able to access the child’s school reports and other documents as well as health professional material relating to the child, there is a significant prospect that the child may be assisted in developing an alternative narrative regarding the father to the one he currently holds (see the Family Report).  Further, as discussed by the Family Report writer, should the father maintain written contact with the child, this may also provide the child with an avenue to contact the father if he wishes to return correspondence and have a relationship with the father in the future. 

7. The evidence of the Family Report writer is consistent with the above views.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The Court is unable to determine, on the balance of probabilities, whether the father perpetrated family violence upon the mother during the parties’ relationship.

2. The Court is unable to determine, on the balance of probabilities, whether the mother perpetrated family violence against the father during their relationship.

3. The father has a significant history of adverse mental health. He has been diagnosed with significant mental health conditions. His mental health conditions remain inadequately treated. In these circumstances, and on the material before the Court, were the child to presently spend unsupervised time with the father, he would be exposed to a significant risk of psychological and/or physical harm.

4. In this context of the father’s inadequately treated mental health, it is not without relevance that the father informed the Family Report writer that the conduct of a third party, namely Ms G, had triggered “his psychological difficulties” and had caused him to “snap” and which led to his assaults upon Ms G. Further, in this context, it is not without relevance that the child’s behaviour has been observed to be challenging.

5. Were the child to have telephone calls with the father, or electronic communication with the father, such as video calls, there is a significant risk that the child would be exposed to parental conflict with consequential adverse effects upon his emotional well-being.  Further, there is a significant risk that the child would be exposed to psychological harm in speaking with the father in circumstances where the father’s mental health conditions remain inadequately treated; the father, for example, may verbally communicate in an inappropriate manner with the child.

6. The evidence of the Family Report writer is consistent with the above views.

7. The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. By reason of the tender age of the child, the Court does not place any weight on his statements to the mother or the Family Report writer. 

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The child may well have a positive relationship with the maternal grandparents.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. The mother has taken such opportunities.  Despite his wishes, the father has spent limited time with the child post separation, by reason of, inter alia, his incarceration at a correction centre and later detention at the H Immigration Detention Centre.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The mother financially supports the child.  The father has provided limited financial support to the child post separation, substantially by reason of his above incarceration and detention.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. On the material before the Court, the child would likely experience adverse effects upon his emotional well-being were he to spend time with the father in the United States.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. There is a practical difficulty with the child spending time with the father in the United States.  The child is aged five years.  The child would need to be accompanied by the mother in any air travel to the United States.  The father makes no relevant proposal as to how such airfares would be paid. Nor does he make any proposal as to how the mother and child’s accommodation in the United States would be paid.

(f)  The capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. The mother has the capacity to provide for such needs. 

2. Subject to the Court’s discussion above under the need to protect primary consideration in relation to the father, the father would appear to have the capacity to provide for such needs of the child.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

1. The Family Report writer referred to the child’s challenging behaviour at the Family Report interview.  This issue heightens the Court’s concerns in relation to the child presently spending time with the father in circumstances where the father’s mental health conditions remain inadequately treated.  In this context, the Court refers to its discussion above under the need to protect primary consideration.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

1. Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The mother’s attitude towards the child and to her responsibilities of parenthood have been satisfactory.  Subject to the Court’s discussion above under the need to protect primary consideration, in relation to the father, the father’s attitude towards the child and to his responsibilities of parenthood appears to have been satisfactory.

(j) Any family violence involving the child or a member of the child's family

1. The Court refers to its discussions above, in particular under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter

1. The Court refers to its previous reference to family violence orders made in relation to this family.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. The final parenting orders sought by the ICL would be the least likely to lead to the institution of further proceedings in relation to the child, as opposed to the father’s proposed orders.

m) Any other fact or circumstance that the Court thinks is relevant

1. As to the father being permitted to send the child letters, cards and/or presents, it will be in the best interests of the child that the father be restricted to sending such material to the child no greater than three times per annum.  Whilst the family report writer opined that the father should be permitted to send such material to the child no greater than once per month, the court has a concern that the child’s receipt of monthly material from the father may well lead to the mother experiencing significant anxiety with consequential detrimental impact upon her parenting capacity of the child. Such proposed frequency (no greater than three times annually) should enable the child to maintain an avenue to contact the father if he wishes to return correspondence and have a relationship with the father in the future.

Parental responsibility

1. Again, the father seeks an order for equal shared parental responsibility for the child. The mother seeks an order for sole parental responsibility.

2. The mother has been the child’s primary carer from birth. The parties have not had any meaningful communication for some considerable time now and the mother wants to have nothing to do with the father. The Court would assess that the parties’ future ability to communicate effectively, without conflict, and in a timely fashion, in relation to major decisions affecting the child to be poor. The father has returned to the United States and it is unknown when, if at all, he could return to Australia.  He told the Family Report writer that he would not be able to return to Australia because his visa was cancelled on character grounds. 

3. The evidence of the Family Report writer is consistent with the above assessment.

4. It will be in the best interests of the child for the mother to have sole parental responsibility for major decisions relating to the child.

5. There does not exist between the parties a sufficient level of parental communication, cooperation, trust and respect, such as would support an equal time arrangement; such an arrangement would not be in the best interests of the child.  Further, it would not be reasonably practicable for such an arrangement to exist. 

6. The Court refers to its discussion above under the need to protect primary consideration, in relation to the father, particularly in relation to his mental health conditions which remain inadequately treated.  In these circumstances it would not be in the best interests of the child for him to spend substantial and significant time with the father, and in any event, such time would not be reasonably practicable.

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:

   (1)    That the mother have sole parental responsibility for any major long-term issues relating to the care, welfare and development of the child [X] born … 2014 (the child).

   (2)    That the child live with the mother.

   (3)    That the child be permitted to travel internationally, without the need for the consent of the father, Mr Lantos to be provided to the issue of a passport to the child. The Mother shall be the only person with parental responsibility of the child for the purposes of applying for and being issued with an Australian passport for the child.

   (4)    That the mother shall forthwith notify the father of any and all schools which the child may ordinarily attend.

   (5)    That the mother shall do all acts and things necessary to authorise the father to obtain copies of all of the child’s school reports, photographs, notifications of school events and these orders shall be sufficient authority for him to do so.

   (6)    That the mother shall forthwith notify the father of the child’s General Practitioner and any other medical specialists and associated health practitioners that the child may attend upon from time to time.

   (7)    That the mother shall do all acts and things necessary to authorise the father to contact the child’s General Practitioner and any other medical specialists and associated health practitioners the child may attend upon from time to time to discuss the child’s condition or treatments if any, and these orders shall be sufficient authority for him to do so.

   (8)    The father shall be permitted to send the child letters, cards and/or presents, no greater than three times per annum. To facilitate this Order the mother shall within 28 days inform the father of a postal address to which such material can be sent. 

Property adjustment

The parties’ proposals and material

1. The parties’ jointly owned real estate property is at B Street, Town A, NSW (the property).

2. The father’s initial property proposals were set out in his Amended Response filed 5 September 2018.

3. The father had sought “50% of all assets (the parties) share i.e. the house, car and other monetary assets.”  He stated, “Due to (the mother) having (the child) I am willing to take 40%.”  He then sought a Court order for the sale of the property and the net proceeds of sale split “60/40”, however ultimately, and during oral submissions, the father sought a 30/70% division in favour of the mother.

4. The mother’s property proposals were set out in her Case Outline.

5. The mother sought orders, inter alia, that the father transfer his interest in the property to her and that the mother refinance the current joint mortgage into her sole name.  The mother sought an order that the parties are to otherwise retain the assets in their names and be responsible for liabilities in their names.

6. The parties’ material is contained within the material of the parties, referred to above, under Parenting.

Property

1. Throughout these reasons the Court will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.

Legal principles

1. In Lotta & Lotta [2017] FamCA 50 Foster J stated:

   The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.

   The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.

   Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.

   There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.

   In many cases this requirement is readily satisfied where the parties are no longer in a marital or defacto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.

   In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.

   It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.

   In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties present property rights without a consideration of s 79 (4) matters.

   Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).

   The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.

Parties’ property and liabilities

1. The existing property of the parties is (by reference to their respective Financial Statements):

   - the property (at Town A) with  a value of $600,000.  It was agreed that the mortgage loan balance is presently $405,318;

   - the wife’s superannuation ($60,893)

   - the wife’s Westpac bank account ($243), household contents ($10,000), jewellery clothing and mobile ($2,000), and C motor vehicle ($10,000);

   - the husband’s Westpac bank account ($100), clothing and mobile ($3,000).

   Apart from the property (at Town A), and superannuation (the court would infer that the mother was likely receiving superannuation contributions during her employment in the relationship) there is no evidence that the above assets were accumulated during the parties’ relationship. The Court will only have regard to the property (at Town A) and superannuation for the purposes of property adjustment.

   Accordingly, the parties’ net non-superannuation property is $194,682, and the mother’s superannuation entitlement is $60,893.

Section 79 (2) of the Act

1. The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of the property and the fact that the continuance of the current legal ownership of the property would not afford them justice and equity.  The parties join in seeking Orders for property adjustment.

Evidence including contributions

1. The parties’ relationship spanned the period from about September 2013 to about July 2015.

2. The father was initially unable to work in paid employment due to visa restrictions.  He ultimately obtained employment.  It is clear that he was in paid employment with Company L by at least January 2015.

3. The parties purchased the property in about March 2015. The purchase price of the property was $525,000. On settlement, in May 2015, the parties moved into the property. 

4. The mother had a half share interest in an investment property with her sister prior to the parties’ relationship, with this investment property realising $360,000 in about late 2014; the mother’s share was about $180,000.

5. The mother contributed the above sum of $180,000 towards the purchase of the property (including stamp duty and purchase of household furniture). 

6. A mortgage loan was obtained for the balance of purchase monies of the property.  The father did not make any financial contribution towards the purchase of the property.

7. During the parties’ short relationship, on the balance of probabilities, the parties contributed approximately equal monies to the property’s mortgage loan repayments and household expenses. (The Court observes that in the mother’s Financial Statement filed 15 July 2016, the weekly mortgage loan repayments are stated to be $500.  Again, as at trial date, the mother pays $400 per week for mortgage loan repayments).

8. During the relationship, the father contributed about $4,000 towards fencing, turfing and timber for the property.

9. On balance, the mother probably made superior contributions as homemaker and parent during the parties’ short relationship. Post separation, the mother has been the child’s sole carer, without significant child support from the father. 

10. When the parties separated in July 2015, the mother vacated the property with the child, and the father remained living in the property.  The mother and child moved back in with the maternal grandparents.

11. Post separation in July 2015, on the balance of probabilities, the parties continued to make approximately equal financial contributions towards the property’s mortgage loan repayments and other outgoings until about late 2016 when the mother commenced making sole contributions in this regard. She has continued making such mortgage loan repayments to date.

12. The mother pays about $400 per week by way of mortgage repayments.  She pays on average $3,600 per year towards council rates, and $1,900 per year to insure the property. Post separation, she has further decreased the mortgage loan owing on the property by close to $10,000.

13. When the mother returned to live in the property in about mid May 2016, she observed that the property had been damaged and was filthy.  The mother spent over a month cleaning up the property and borrowed $40,000 from the maternal grandparents to engage a builder to return the house to its original state.  She also incurred close to $12,000 to install new security cameras, alarms, screens and locks. 

14. From these borrowed moneys of $40,000, the mother paid $15,120 to a builder (see his tax invoice dated 23 May 2016) in relation to, inter alia, replacement and repair of damaged items at the property, cleaning at the property, paintwork, and removal of waste.

15. Further, from these borrowed moneys of $40,000, the mother paid $24,750 to a builder (see his tax invoice dated 30 May 2016) for the painting of the entire exterior of the property, cleaning gutters, pressure washing of roof and balcony areas, and the painting of the remainder of the internal rooms not damaged and all ceilings.

16. During the relationship, the mother purchased a car for the father valued at $7,500.  When he got into an accident, she paid the excess and purchased another car for him.

17. Again, the father sought a property adjustment order, in relation to the net value of the property, as to 30% to the father and 70% to the mother.

18. The mother contended that the Court’s contribution assessment at trial date should be assessed as favouring the wife 100%, with the mother contending, inter alia, in this context, that the current net value of the property is $194,682 and she had contributed about $180,000 towards the purchase of the property and had decreased the mortgage loan by about $10,000.

19. The Court rejects the mother’s Kennon contention (she having contended that her contributions were made more arduous by reason of alleged family violence perpetrated by the father) in light of the Court not being satisfied on the balance of probabilities that family violence was perpetrated.

20. There is no significant evidence that the father made any relevant contribution towards the mother’s superannuation entitlement.

21. Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to the net value of the property as at trial date as 92% to the mother, and 8% to the father.  By reference to the net value of the property being $194,682, this results in a disparity between the parties of some $163,533.

Section 75 (2) of the Act

1. The father is aged 34 years and the mother 36 years.

2. The mother’s health appears to be satisfactory. 

3. The father has untreated mental health conditions but otherwise his health appears to be satisfactory.

4. The mother works as a salesperson.  The father has only just returned to the United States.  He previously worked as a manager in Sydney, both during and after the parties’ short relationship. In his Financial Statement filed 14 November 2016, the father stated his weekly salary, after income tax, to be about $656. In the mother’s Financial Statement filed 15 July 2016, she stated she worked part-time as a salesperson earning a weekly salary, after income tax, of $700 per week.

5. The Court finds that the parties’ earning capacities are approximately equal, although the father may experience difficulties maintaining regular employment whilst his mental health remains untreated. 

6. The Court takes into account that pursuant to the Court’s proposed parenting orders, the mother will have the sole care of the child, now aged only 5 years. The mother thus has another 13 years of caring and supporting the child. The mother receives no financial assistance from the father presently towards childcare. There is a significant doubt as to whether the father will pay child support.

7. The father’s superannuation entitlements from Australia are unknown and the Court infers from the material before it that they would not be a significant sum.

8. The mother has a superannuation entitlement of $60,893 according to her Financial Statement (but again, there is no significant evidence that the father made any relevant contribution towards this entitlement). 

9. The mother asserts liabilities of about $25,854 in her Financial Statement (separate to the mortgage loan liability) which were not relevant in respect to the parties’ relationship.  The father asserted liabilities of about $2,600 in his Financial Statement (separate to the mortgage loan liability) which appear to be unrelated to the parties’ relationship.

10. The mother contended, if the Court does not accept that the mother’s contributions amounted to 100%, that there should be a s75(2) adjustment of not less than 15% in her favour (taking into account, in particular, her sole care and financial support of the child).

11. The father made no express submission in relation to s75(2).

12. Taking into account the above matters, and observing that the net value of the property is only $194,682, there should an adjustment under section 75(2) of the Act of 8% in favour of the mother, resulting in an adjusted contributions assessment of 100% in her favour.

Justice and equity

1. Pursuant to the Court’s contribution assessment, the mother will receive the total balance of net proceeds of the property, being the sum of $194,682. She will retain her superannuation entitlements.

2. Again, the mother will have the sole care of the child for another 13 years and there is a significant doubt as to whether the father will pay child support. The net value of the property is modest. The mother will be able to retain the property to house herself and the child.

3. The father has only recently returned to the United States. Again, the father has a work capacity, although he may well need to adequately treat his mental health conditions with a view to maintaining regular employment.

4. The Court is of the view that its proposed property adjustment Orders represents a just and equitable property settlement between the parties.

I certify that the preceding one hundred and eighty two (182) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 20 December 2019