MADEROS & SADLIER
[2019] FCCA 3425
•10 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MADEROS & SADLIER | [2019] FCCA 3425 |
| Catchwords: PARENTING – Best interests of 5 year old child – father having primary care because of mother’s mental health difficulties and associated itinerant lifestyle – whether mother adequately addressing her mental health – risk to child in event of mother relapsing – child to live with the father and spend time with the mother as recommended by the Independent Children’s Lawyer. PROPERTY – Short relationship of 4 years – father owning matrimonial home before relationship – no other assets – mother’s future needs – just and equitable mother receive return of $26,000 plus interest. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: Goode v Goode [2006] FamCA 1346 SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158 |
| Applicant: | MR MADEROS |
| Respondent: | MS SADLIER |
| File Number: | DGC 847 of 2018 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 3 & 4 October 2019 |
| Date of Last Submission: | 18 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 10 December 2019 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Ms Elleray |
| Solicitors for the Independent Children’s Lawyer: | Dandenong Family Lawyers |
THE COURT ORDERS THAT:
PARENTING
That all previous parenting orders in relation to the child X born on … 2014 be discharged.
That the Father have sole parental responsibility for the child in relation to all major long-term issues for the child’s education (both current and future) and for major medical decisions concerning the child’s health.
The parents to have equal shared parental responsibility for the remaining major long-term issues.
The exercise by the Father of his sole parental responsibility referred to above is on the conditions that:
(a)The Father will contact the Mother in writing and provide his views about any such issue;
(b)The Father shall consult with the Mother with regard to any such issue;
(c)The Father and Mother will make a genuine effort to come to a joint decision about any such issue; and
(d)If no agreement is reached between the parents, then within 7 days the Father shall make the final decision and advise the Mother in writing of the decision about any such issue.
That the child live with the Father.
That each parent be entitled to receive notice of any early learning centre and school events, notices, reports, parent/teacher interviews and or any matters concerning the child’s education.
That the parents are at liberty to attend the Suburb D Primary School orientation days, prep introduction days and the like and the Father is to name the Mother as the second contact parent on any school enrolment documents.
The parents ensure that the child's time at his place of learning is uninterrupted by either of them, by telephone calls or visits unless invited by the child's teacher.
The parents keep each other informed of any extracurricular activities to be arranged by either parent.
That the Father be at liberty to provide a copy of these Orders to the child's place of learning.
That both parents keep the other informed at all times as to his or her residential address/landline/mobile telephone number and email addresses and notify the other parent within 24 hours of any changes to those contact details.
That the parents communicate with each other in relation to matters concerning the child via email or SMS text message with such communication relating only to the child and to be polite and respectful.
That the parents be and are hereby restrained from discussing any issues in dispute between the parents in the presence or hearing of the child and from allowing any other person to do so.
That each parent immediately inform the other in the event that the child is involved in any serious accident or suffers from any serious illness and inform the other of any medical practitioner with whom the child is scheduled to consult with or has consulted, and authorise each other to make all reasonable inquiries of such medical practitioner in respect of matters concerning the child's health.
The child spend time and communicate with the Mother as follows:
(a)Each Monday from 8:30am until 8:30am Tuesday;
(b)By Facetime on Thursdays, Fridays and Sundays;
(c)Upon the Mother producing to the Father a written report from Suburb C Mental Health (or similar organisation) evincing the Mother's clear compliance with anti-psychotic medication and the opinion of the Suburb C Mental Health Team (or similar organisation) that the Mother is in remission, then the time referred to in subparagraph 15(a) extends to two consecutive overnights as agreed between the parents in writing and failing agreement from 8:30am on the Monday to 8:30am on the Wednesday each week.
(d)From 5:30pm on the day preceding Mother's Day each year until 5:30pm on the Mother's Day with the child's time with the Mother to be suspended from 5:30pm on the day preceding Father's Day until 5:30pm on the Father's Day each year;
(e)On the child's birthday … at times to be agreed in writing between the parents and failing agreement, for five hours if a non-school day from 9:00am to 2:00pm and for two hours if on a school day from the conclusion of school;
(f)For five hours at Christmas, Easter and any other special religious festivals at times to be agreed between the parents in writing, and failing agreement between 10:00am and 3:00pm, provided the Mother gives the Father fourteen days prior written notice of her preferred times and the Father shall not unreasonably refuse the Mother's request as long as the frequency of the special religious festivals are not excessive;
(g)By telephone at any reasonable hour with both parents facilitating the child speaking to the other parent;
(h)At such further and other times as agreed between the parents in writing including but not limited to school term holidays and long summer holidays provided that the Mother is mentally well, with the parents to ensure so far as is possible that the time spent by the child with his Father during such holidays coincides with the time the child's siblings GG born … 2002, HH born … 2004, and JJ born … 2006 are spending with the Father, on a week on/off basis.
The Mother follow all reasonable directions of her treating medical practitioners as to:
(a)The taking of prescribed medication; and
(b)Her engagement with any mental health service providing her with treatment.
The Mother keep the Father informed at all times of the identity of her general medical practitioner and specialist health professionals and she is to provide her medical and health professionals with her unqualified consent to those persons liaising with the Father as to her ongoing engagement or otherwise with them and this Order is to act as an irrevocable authority from the Mother to the Mother's medical and health professionals to so liaise with the Father.
That the parents be at liberty to provide a copy of the Family Report of Family Consultant Ms F dated 6 August 2019 to the Mother’s treating medical and health professionals.
That unless otherwise agreed between the parents in writing, when the child is spending overnight time with the Mother, the child is to be provided with his own bed and bedroom.
That the Order for the appointment of the Independent Children’s Lawyers be discharged.
THE COURT ORDERS BY CONSENT THAT:
When changeover does not occur at the child’s childcare, holiday program or school, the mother will collect the child from the Father’s home at the commencement of time and the Father will collect the child from the Mother’s home at the conclusion of time.
THE COURT ORDERS THAT:
PROPERTY
The Father pay the Mother $35,000 (“the payment”) within 60 days.
In default of compliance with Order 21, the Mother have liberty to apply.
That, unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent Orders;
(a)The Applicant and Respondent each be declared to be the sole legal and beneficial owner of all other items of property presently in the possession, custody or control of each of them respectively including, but not limited to,
(i)money, motor vehicles, furniture, furnishings, appliances, jewellery, equities, choses-in-action and personal effects;
(ii)Each party hereby forgoes any claim they may have to any Superannuation benefits belonging to or earned by the other;
(iii)All insurance policies to become the sole property of the owner named thereon;
(iv)Monies standing to the credit of either party in any bank account are to become the property of that party;
(v)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(vi)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Maderos & Sadlier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 847 of 2018
| MR MADEROS |
Applicant
And
| MS SADLIER |
Respondent
REASONS FOR JUDGMENT
Introductory
All parenting cases are sad but this one is particularly so. It concerns the best interests of a young boy, X, born on … 2014. Both his parents love him but, unfortunately, the state of his mother’s health is extremely uncertain. That issue and the things that flow from it have really been what this case is all about.
The applicant father seeks that X live with him and spend time with his mother from Monday to Tuesday. He hopes that the mother would have further time increasing to alternate weekends of time in the future provided that X is safe from any sequelae of his mother’s health. He further seeks, and this matter was added on only at the last moment and in a very incomplete way, that there be no financial adjustments made in respect of the parties’ property.
The respondent mother, whose case has changed from time to time, seeks that X live with her 50 per cent of time but structured in effect on one day with each parent sequential (i.e. a change of residence every day). She further seeks $26,000 together with interest from the date that that money was advanced (this facing the significant difficulty that there is no clear date as to when any funds were advanced) as a property settlement.
The Independent Children’s Lawyer supports the recommendations in the report of Ms F. Those recommendations provide for gradually increasing time for the mother with X conditional upon the provision of appropriate proof that she has a suitable accommodation. It is the Independent Children’s Lawyer’s position that at present the mother does not have such accommodation.
For the reasons that follow I propose to continue the current time regime.
Agreed or Uncontroversial Matters
The father was born on … 1976 and although he has changed jobs relatively recently he earns well in excess of $150,000 a year in what appears to be relatively secure employment. He has three children from a previous relationship who are half-siblings to X. They are GG born … 2002, HH born … 2004 and JJ born … 2006. These children live with their parents on an equal shared care basis.
The mother was born on … 1977. The circumstances of her employment are by no means clear but she appears to work part time in factory work and may have some incipient work as a professional, a profession for which she is qualified. She is estranged from her mother and brother but has informed the court that her father has recently come back into her life.
The parents married on … 2012 and, of course, the three step-siblings lived with them from time to time. From remarks made by the half-siblings to the family report writer, Ms F, it would appear that the relationship between Ms Sadlier and these children was by no means entirely smooth sailing.
The parties separated on 29 September 2016 and X remained in the primary care of his mother, albeit spending time with his father. On any view of the matter in March 2018 X transitioned into his father’s care and although various dates are given it seems clear that the mother was detained in a psychiatric unit from about the beginning of March until about 20 April 2018. Her medical health is a major factor in this case. Putting the matter in the round, the mother maintains that she has Hashimoto’s Disease, being a form of thyroid malfunction and that is all that she really has. The father’s position, which is supported by the medical records, suggests that the mother’s condition is more complex than that.
Various orders have been made from time to time in an endeavour to progress the matter to trial, but it should be noted that the most recent order and applicable spend-time regime is contained in the orders made on 22 February 2019 pursuant to which X lives with his father and spends time and communicates with his mother from 8.30 am Monday to 8.30 am Tuesday and by Face Time on Thursdays, Fridays and Sundays.
The Family Report of Ms F
Ms F set out the background to the matter and the current arrangements together with relevant family background. I note that at paragraph 11 Ms F traversed a report dated 3 July 2018 by Dr G, Senior Psychiatric Registrar, Region A Mental Health Service which described the mother’s psychiatric history commencing in 2006 until her presentation in March 2018 and a later transfer to the Suburb B Mental Health Service in June 2018 when the mother relocated to that area. I note that in paragraphs 11-12 Ms F described:
“11. Dr G became her treating doctor who reviewed her on 27 April 2018. Ms Sadlier was described as not accepting that she had a mental health condition at that time or ever in the past, despite a history since 2006. Ms Sadlier reported to the doctor that she was admitted because her mother was fearful when Ms Sadlier advised that she planned to stop taking thyroxine and to use a natural supplement instead.
12. Ms Sadlier reported at the family report interview, that her condition when she was hospitalised was caused by her thyroid condition (Hashimoto’s Thyroiditis) and that the psychosis was the result of stopping the thyroxine. Dr G’s reports does not support Ms Sadlier’s advice. Dr G made a provisional diagnosis for a possible bipolar affective disorder, manic phase with psychotic features. Ms Sadlier had a previous admission about 10 years prior in which she has reported precipitating factors were a relationship breakdown and cocaine use and she had two reported psychotic episodes at that time.”
Having proceeded to describe the history of the matter in various hearings before the court and recorded the proposals of the parties, Ms F noted at paragraphs 28-29 relevantly that:
“28. At interview Ms Sadlier denied a history of mental health issues contrary to the report from her treating psychiatrist post her admission.
29. Ms Sadlier reported that she currently takes Abilify prescribed by the psychiatrist at the hospital, but reported she is not required to take it. Ms Sadlier also reported the treating doctors had advised her that they know she is well. Ms Sadlier reported that she was taken off the thyroid medication when she was hospitalised and that she considered that was unreasonable and it caused her mental confusion. This was also in contrast to the report by the psychiatrist treating her post her discharge from the Region A hospital. Ms Sadlier reported that she had been attending Suburb E community mental health and that she had been advised not to continue because she did not require any further assistance.
Although I have regard to the entirety of the report including the descriptions of Ms F’s interview with both of the parents, Ms F noted at paragraph 54:
“It was apparent that she had a history of mental ill health, all of which she currently denies suggesting a lack of insight. There also seemed to be escalating verbal conflicts at times which may be associated with mental ill health. Ms Sadlier demonstrated a need to control people prior to the Family Report interview which tends to lend support to Mr M.’s concerns about communication with her and difficulties in co-operating about X’s needs.”
I note that X’s speech was such that it was contraindicated for an interview. GG, HH and JJ were interviewed and to the extent that they recalled Ms Sadlier these did not appear to be indicative of a good relationship. I note that the father demonstrated strong parenting skills (paragraph 61) and that X was pleased to see his mother who was warm and affectionate with him (paragraph 62). At paragraph 63 Ms F observed and this does not seem to be the subject of controversy:
“X has a strong relationship with his half siblings and appears to be relaxed and comfortable with both parties, at least at observation. He has connections with the paternal grandparents regularly and his father facilitates him to remain in contact with the maternal extended family.”
Ms F assessed the father as being an attuned parent with good skills in assessing and meeting X’s needs (paragraph 65) and of being supportive of X’s relationship with his mother but concerned if the mother relapsed into mental illness (paragraph 66). At paragraphs 68-72 Ms F opined:
“68. Ms Sadlier impressed as having little insight about her mental health. While she reported being compliant with her treating practitioner’s prescriptions for medication and treatment, she also continued to deny any mental health history, despite the information in the reports from her treating practitioners. Ms Sadlier in fact blamed her family from whom she is now estranged, for reporting her as having a mental illness. The report from Dr J at Suburb E Continuing Care Team indicated Ms Sadlier had been mentally stable from 11 October 2018 until the date of the report on 1 February 2018 (sic), a period of five months. Ms Sadlier indicated at interview she had not attended the service for some months. There are some concerns that Ms Sadlier may self-manage off her medication again and be at risk of further psychoses due to the stress of housing and employment issues and current lack of family support.
69. There are concerns about Ms Sadlier’s housing stability and income. It is understood that she has been in unstable accommodation post her discharge from the Region R hospital save for a period when she lived with the maternal grandparents, she appears to have been unable to maintain accommodation for more than a few months. Ms Sadler was vague about her hours of work and although it is understood that she aspires to return into her profession as her income seems derived primarily from casual factory employment. While Ms Sadlier’s accommodation and income is uncertain, it would not benefit X to live in her primary care or in an equal shared care arrangement.
70. Ms Sadlier appears to have experienced at least three periods of psychosis and to have self-managed off medication when she had been responding well to the medication, and it appears she ceased medication when not being medically monitored. Given she lacked insight about her mental health history at the Family Report interviews there are concerns about her capacity to identify when her mental health is deteriorating and to obtain assistance voluntarily.
71. X has significant speech deficits and although he can make himself understood to his parents, it is unclear how well he would be able to report to others, such as professionals, if he is at risk in his mother’s care should she relapse into psychosis while he is in the her care.
72. Consideration could be given to increasing X’s time with his mother to include a second night per week, however, in my opinion that should only occur when and if Ms Sadlier can demonstrate that she has suitable accommodation, which includes a separate bed and bedroom for him in September 2019 when her current lease expires. If she is not able to provide evidence of suitable accommodation, then X’s time with her needs to be reduced to daytime only and FaceTime.”
Ms F went on to note the grief that the mother would feel being separated from her child, something that might trigger a relapse for
Ms Sadlier, and having referred to possible inappropriate conduct of the mother at the Early Learning Centre, Ms F opined that there might be an enmeshed relationship between X and his mother (paragraph 74).
Ms F went on to recommend, provided the mother met the qualifications she had set out, a gradually increasing period of time, with the father to have sole parental responsibility for education and major medical issues.
The Submissions Made and Evidence Given At Court
I have, of course, read the parties’ affidavits carefully and have due regard to their material. Nonetheless, and given the way this case has progressed, it is more profitable, in my view, to concentrate on what everyone said during the Court hearing itself. It should be noted that the matter was complicated by the self-representation of both of the parents, who understandably struggled to formulate meaningful questions for one another and to articulate their positions with clarity.
What follows is taken from my notes. Self-evidently, it is not a transcript, but it records matters that I found of note.
The Submissions and Evidence of the Father
The father opened his case and said he wanted to be sure that X was safe and well and to maintain his relationship with his mother. There were difficult mental health issues. It was a very short marriage, and he came into it with both property and other assets. The mother may need support, but he has had two marriages and has four children to look after.
Having adopted his affidavits and Financial Statement, and confirmed that he is now employed by Employer K, the father was cross-examined by counsel for the Independent Children’s Lawyer. The father agreed with Ms F’s recommendation that he have sole parental responsibility for X’s education and major medical decisions but that otherwise the parties have equal shared parental responsibility. He was happy with shared parental care for religion. The mother is from a Religion family but is now Religion (the mother objected that this should be referred to as Religion). He did not object to X going to church.
The father confirmed that X lives with him and spends from 8.30 Monday to 8.30 Tuesday each week with the mother. They try FaceTime each day, but it can be difficult. Three days are nominated in the current orders. It was in X’s best interests to have a good relationship with his mother, and he was trying very hard to keep that up. X is in child care from 8.30 am to 5.30 pm.
The father’s job is with Employer K in Suburb KK and is 25 minutes to the Early Learning Centre. The mother lives in Suburb LL. He had received an SMS to this effect on Monday but had not been to the address. X has said he had been to a new house on Tuesday evening and was quite excited.
The father confirmed that his three children GG, HH and JJ live in a fifty-fifty arrangement between himself and their mother Ms MM. He denied that his sons were abusive to X, and he denied hitting or shaking X. He said he is a very loving father to his children. He said he has never hit X. He does not hit any of his children. The two boys are sometimes rowdy. X has a fantastic relationship with his siblings. X has a slight speech delay. He is suffocated by his mother who has an enmeshed relationship with him. X will be undertaking ongoing speech pathology for 12 months and will go to Suburb D next year. He has put the mother on as a contact on the schools forms.
Counsel admitted into evidence through the father ICL1 and ICL2 pertaining to X’s speech pathology at L Speech Pathology. The father confirmed that the mother thinks the therapy should speed up. He had recently enrolled in the National Disability Insurance Scheme to get more assistance for X. The school will offer support in 2020 in preschool. The therapist is happy with X’s progress. His teacher at the Early Learning Centre has said X was progressing satisfactorily. There will not be an aid in preschool. He seeks final orders. He disagreed that there should be shared parental responsibility as the mother was argumentative.
The mother proposes equal time, but X struggles in his 24 hours with his mother. His behaviour when he returns from his mother includes chewing his sleeve. The mother has been transient since separation, and he has not yet seen the Suburb LL house. The mother had assaulted him in the past, but there is no current Intervention Order. Seven/seven would be too much for X, and stability is important. They could progress to every second weekend in the long term. As long as the mother is stable and X is doing well, he would have no problems with time and accepting the family report recommendations. These would need to be tweaked so that X sees his other siblings. Sunday morning handover would be difficult. It would preferable to have from kinder Friday till kinder on Monday or from prep Friday to Monday each alternate weekend with possibly another night during the week.
Counsel tendered exhibit ICL3 through Mr M., being a memorandum made by the Independent Children’s Lawyer from the subpoenaed documents from Suburb C Mental Health. The father did not want to increase time now. Further material, exhibits ICL4 and ICL5 were tendered which I will return to. I note that in relation to ICL5, being the Suburb C Community Mental Health DC Summary eNotes, the father had rung the Suburb E CCT and been informed that the mother had no current case manager. The father confirmed that the mother’s medical records, including her admission in 2019, caused him concern. He was concerned the mother was non-compliant with her drugs. And X was handling one night per week. If this was extended, it might be detrimental to him although he is a resilient child. Time as agreed would not work.
The Father under Cross-Examination by the Mother
The mother put it to the father that he was aware that she had been submitted into hospital in 2006 by her mother because her mother disagreed with her changing her religion. The father denied being aware of this. Ms Sadlier put it to Mr M. that when the relationship started, he was seeing a doctor for severe depression and loneliness. The father responded that this was not the case. He saw a psychologist regarding the break up with his first wife, but he was not depressed.
The only awareness he had of the mother’s mental health when the proceedings started was that she had been in a psychiatric hospital. He was not aware that the mother was taking Abilify. He had taken X to see the mother in hospital after two weeks. Her parents had admitted her. It came as a shock to him. The nurse had told the father that she had seen the mother years before and this was the first time he knew this.
The father denied saying he was depressed to the mother. He further denied having a drinking problem and said his children had never seen him drunk. He repeated his denial of ever having assaulted X. He denied having picked up X and shouted at him to stop crying. He denied ever attacking his son HH.
The mother put it to Mr M. that he had been diagnosed with Asperger’s himself, but the father denied this. He said none of his family members have been diagnosed with Asperger’s. He had, himself, had speech issues when he was young.
The Submissions and Evidence of the Mother
It should be noted that the mother, who had the greatest difficulty in formulating questions that I could properly ask Mr M. to answer, made an opening that was incoherent and at times really very difficult to understand. Firstly, she addressed the issue of property and said that she should receive $110,000 based on her input into the family home. She had become ill because of lack of communications and stress which took a lot out of her. She overdosed on medication painkillers after the birth of X. She would like 70 per cent of the time in one week. She would like Sunday, Tuesday, Thursday and Saturday and when the father was not available, the child should be available to her. At this point, the Court clarified with the father that he has some interstate travel and his parents look after X when he is away, not child care.
The mother went on to say that the father was a very good father but does not want to talk. This led to her becoming unwell. The evidence of this is that when she finally left and lived with her mother she could suddenly walk and never got sick. Her excessive bleeding and period pain ceased. She is seeking recompense for hurt and distress through the father’s non-communication which caused her great suffering. She does not consider herself much of a stepmother but made a vow to treat the father’s children as her own.
The mother was called and indicated that she is an on call professional who is beginning her own business. She adopted her affidavits as true and correct.
The Mother under Cross-Examination by Counsel for the Independent Children’s Lawyer
The mother was asked what medication she was taking and says she was taking thyroxine and Risperidone. She takes two micrograms of Risperidone per day which is on prescription form Dr O. Dr O is her GP at the P Medical Clinic in Suburb B. She takes it in the evening after work every evening and has not stopped recently.
Counsel put paragraph 29 of Ms F’s report which indicated that she was taking Abilify. The mother said she was taking Risperidone at the time, not Abilify. Her doctor had told her since she left hospital she was not required to see doctors or take any drugs. She chose to continue seeing a psychiatrist or treating team because of the risk it posed in these parenting proceedings. She was put in the Region R Hospital because she did not take her thyroxine. When cross-examined about ICL4, subparagraph (b), being a joint report from Dr S and Dr J, dated 1 February 2019, the mother said Dr J lowered her dose from three mg to two mg, after she was given this letter. When asked why she had been to the doctor in April 2019, the mother said she called them up because she wanted to do something for court. Then a case worker rang her up. This was not Ms T. Ms Sadlier said she has been non-compliant with medication in the past but now is compliant.
When taxed with ICL5, showing a date of admission at Region N Hospital at 26 June 2019, the mother said this was not a date of admission. This was just notes.
Counsel cross-examined on exhibit ICL3 and in particular, the case note suggesting that she was discharged from hospital on 1 July 2019. She was asked if she had told Ms F this. The mother denied this and said she told Ms F she was discharged in July 2019. The diagnosis of schizophrenia was outdated. The thyroid is always the answer. She did not dispute the diagnosis of schizophrenia but is not being treated for schizophrenia. The mother said she had a care plan. If she has any difficulties with lack of sleep, she checks into her GP for a blood test for a thyroid. When asked if she accepted that she would need treatment for 24 months, as indicated by Drs S and Dr J, the mother said she does what the doctors tell her. She is taking Risperidone for Mr Maderos, not for him, for X. She is not required to take Risperidone. When asked what she would do if she was ordered to take drugs, the mother said she would do what the doctor orders. It would be okay for the father to have access to her medical reports.
The mother confirmed that her address is now U Street, Suburb V, which is a two bedroom house. The mother said that Doctors J and S did not accept to write a report for her.
In re-examination, the mother said there had been a misunderstanding. Her previous lawyers were unable to give sufficient evidence about her health. She would not be here if she was a risk to X; she would be in hospital. She had been understood and diagnosed with something she does not have a long time.
I should say that this evidence was given in a disordered and chaotic fashion.
The Evidence of Ms F
Ms F was called and adopted her report as exhibit C1.
When questioned by counsel for the Independent Children’s Lawyer, Ms F confirmed that she had brought her contemporaneous file notes. She had had problems getting the mother to interview. Ms F confirmed the report at paragraph 28, where the mother denied having mental health issues. Ms F had asked if there was a diagnosis, and the mother said she was at hospital overnight and released. She was a bit chaotic while telling her story. She was saying her parents took her to hospital, but that there were no mental health problems. The mother’s information at paragraphs 28 and 29 of the family report concerned her. She would be concerned if the Risperidone had been reduced from three to two. The mother seemed very reluctant to take medication, if she was taking it at all. She was saying that her problems were caused her thyroid difficulties, not a mental issue. Ms F said that there were three previous psychoses, and the mother must take her drugs. The mother had referred to her case worker, Ms T, as being an administrator or nurse that she had never met.
When asked if two nights with X was advisable, Ms F said that this was based on the mother having stable housing. There would be stresses if this was not the case. The mother would need a few months stability, and she did not recommend two nights at this stage. She would want to see 12 months of no psychosis before there were two nights. X’s problematic behaviour after seeing his mother might relate to the time that he spends with her. X is not very frustrated by his speech difficulties. Ms F could not understand his expressive language, but his parents could.
Under cross-examination by the mother, Ms F confirmed that the diagnosis was psychosis and then a differential thyroid dysfunction. Differential means possible. There are three psychoses revealed by the materials.
The mother, who was prone to making speeches, rather than questions, put it to Ms F whether Ms F thought that the diagnosis for thyroid-related psychosis meant that she was a risk to her son. Ms F said the medical materials and the treatment plan included management leading to two days sequentially based on whether the mother’s accommodation was stable and she was compliant with her medications. Psychosis is being out of touch with reality. It has a number of negative symptoms, including poor hygiene and housing instability.
The father did not put any questions to Ms F.
The Further Conduct of the Proceeding
At this point, the matter was adjourned overnight. The mother had filed an affidavit, affirmed 3 October 2010, which made references to a number of annexures. Counsel for the Independent Children’s Lawyer expressly sought that the mother produce either a copy of the lease she had told the court she had entered into or, at the very least, emails that otherwise confirmed that a lease had been executed. The mother undertook to attend court with such documentation the following day, together with copies of any prescriptions and more particularly the drugs she is now taking.
When the matter returned to court on the following day, the only materials the mother produced were tendered as a bundle as exhibit ICL6. The only new materials produced were a letter dated
24 September 2019 from Dr O “to whom it may concern”, confirming that the mother had recently had slightly reduced doses of thyroxine prescribed and a further certificate showing that she had attended for a consultation on 27 August 2019.
The third relevant document forming part of the bundle was an emergency department note from Dr W of the Region R Hospital, dated March 10, 2018, recording the mother to be of no fixed address, which relevantly asserted:
After assessment in ED, it was deemed that patient had capacity and did not currently present a risk to herself or others.
The Father’s Submissions to Counsel and the Independent Children’s Lawyer
Counsel confirmed that the documents produced by the mother were limited to those in the ICL6. She had produced no prescriptions and two boxes of Rixadone, dated 26 September 2018. One, prescribed by a Dr Y, was due to expire in 2020, and the other, prescribed by Dr Z, was dated 17 September 2018 and had likewise had a 2020 expiry. The mother also had a prescription from a Dr AA, dated 12 February 2018, which is not relevant. The mother had not produced her current prescriptions.
Counsel for the Independent Children’s Lawyer’s closing submissions traversed the father’s evidence. He had denied violence and denied hurting the child, denied Asperger’s syndrome and denied being suicidal. Counsel submitted that the father was a truthful, measured and considered witness who was doing his best. The mother’s mental health and functioning capacity was the focus at the trial. The mother’s case was shambolic. She was legally represented until 28 August 2019 and had legal aid.
Counsel submitted that there was a concern that the mother had not produced enough evidence maintaining her mental health, as foreshadowed in exhibit ICL4, the joint report of Dr BB and Dr J. That indicated 24 months treatment was required. The Independent Children’s Lawyer was not confident the mother was taking her medication, and there was nothing from Dr O to suggest that she is. The boxes of drugs were one year old, and only seven out of the 63 milligrams tablets had been used. This smacked of not taking the drugs at all. It would have been easy to ask Dr O to produce an appropriate letter. Under cross-examination, the mother said that she did not use the Abilify, but Ms F said that she did use this phrase. The mother says that she is not required to take drugs, because she is not on a treatment order. She has said:
I chose to continue seeing the psychiatrist and treatment.
There are clear recommendations from Suburb C Mental Health. The mother says that Dr J lowered her dose to 2 micrograms, but there was no proof of this. It is only referred to in ICL5. The mother denied ever meeting Ms T, but it is clear from ICL3 that she has. The mother has failed to produce her prescriptions and said she has a current prescription but did not produce it. There ought be an authority to the father to inquire as to the mother’s medical treating with her practitioners, and the mother was under a duty to provide him with the names of those treaters.
Counsel emphasised section 60CC(3)(f), namely the mother’s capacity. The mother’s capacity to provide for X’s intellectual needs is undoubted. The mother is highly intelligent. She is compromised regarding emotional needs if her own emotional health is compromised. Counsel also referred briefly to section 60CC(3)(g) and (m). Counsel accepted that the mother works part-time. The relevant matter under section 60CC(3)(m) is the way in which the mother has run her case. It was shambolic. The annexures have not been produced. The disorganisation may mirror the mother’s mental health problems, according to Ms F. When asked why she took Rixadone, the mother says that she does what the doctor says. She then said she took it for Mr Maderos and then that she took it for X.
Counsel was not confident the mother takes her drugs. Ms F confirmed the use of Abilify. Ms F had seen exhibit ICL4. Accommodation was important for there to be an increase to two nights. Ms F was concerned that there was no evidence the mother was taking her drugs and that she had had three previous psychoses. Ms F saw exhibit ICL5 and changed her position. There needs to be 12 to 18 months of stability for X, and two nights is too much now. If the mother’s health was satisfactory for 12 months, this would change matters, but the mother has had a pattern of inconsistent attendance upon doctors. The father says the child chews his sleeve when he returns from his mother, and Ms F said this was likely to relate to the time with the mother because X is not frustrated by his speech difficulties. The mother had not even brought the family report to Court, and her assertion that she had a 10-year lease beggared belief. The lease and the email were not produced.
There should be an order for sole parental responsibility and the father should contact the mother for her views and consult and make a genuine effort to agree, but he should make the final decision. Education was likely to be a source of conflict although religion might be satisfactory. Counsel sought the graduated increase as recommended by Ms F.
The Final Submissions of the Father
The father said he was a loving and caring father with four bright children. The mother became argumentative and disconnected once she was pregnant. After separation, the mother refused him to spend time with X. In April 2018, the mother was in the Region R Hospital for nine weeks. He had taken X to the hospital twice. It was then that he learnt about the mother’s earlier mental history. His goal is that X have a relationship with his mother as long as is safe. X loves his mother, and the father hopes there will be further time and, indeed, each alternate weekend in the future.
The father then addressed financial issues, noting that the mother had not filed a Financial Statement although ordered to do so. She had refused mediation. The mother had no assets at the start of the relationship, but he admitted that he received a cash payment from the mother of about $26,000 which was placed into his mortgage. Quite a lot had been withdrawn for living expenses. He is in touch with the mother’s parents, and X spends overnight with them every six to eight weeks. They were married only from 2013 to 2016. The relationship started on … 2012. There should be no financial adjustment.
Final Submissions by the Mother
Once again, I regret to say that the mother’s submissions were somewhat chaotic and unstructured, and more particularly at times appeared rambling and incoherent.
The mother said that she was abused. She was kicked out of the home. She fled. She stumbled and fell, and everyone has shunned her. She had no money when she left home and fled from her mother’s home without government income. For the next 10 years, she has a house with only her name on it. There is clear evidence that states she has posed no risk and not harmed or offended anyone. She can communicate what she needs. There was no need to hire a lawyer. She left the husband’s house in August 2016. She said her father now supports her and has offered her a house (no elaboration of this assertion took place).
She was hospitalised in … 2006 when she was admitted for changing her religion because her mother did not believe her. She had two weeks in hospital which was standard and was given the all clear. After that, she married and had her son. She told the father she was on antipsychotics. Medicines do not make her feel good, but the thyroxine is still going. She has four in the fridge. She is not a doctor and not an associate. She is a human being. She just calls them her pills. She is supporting her son.
The father says she was unwell when she was pregnant and she did experience some degree of difficulty. When he left, she had no support. She did the right thing for X. She worked in the United Kingdom. She had put money into new furniture in the father’s house. The father was a very good husband and dad. She does reserve judgment about his ability to care for X. She was given leave from the hospital in 2018. Her mother locked her in. The rest is history. The police came, and she was sectioned under section 351 but sent home after an initial assessment.
The records show that she is no risk. X has a meaningful relationship with both parents. There was a good relationship with the father before she became unwell with pregnancy. X has a speech problem, but the father can understand him. She can always understand him. She has never posed a risk physically or psychologically. She referred to the report of Dr W.
Thyroid deficiency causes psychosis (the mother offered generalised criticisms of medical practitioners). The mother says she is undertaking a business now and suggested she has employment prospects. She can commit to a stable space and a loving environment for her son. She does not know Ms T. She was not given her name because she already had a dismissal from them. She was not in hospital this year. She left hospital in March 2018 and was not required to return. She seeks equal shared parental responsibility.
So far as property is concerned, the mother just wants to afford looking after X. She seeks $26,000 plus interest from the date of input in July 2013. She went on to say she also paid $10,000 but proffered no evidence in support of this. She left without taking much although the father sent over the marital bed when her mother requested it. She has not been in hospital since March 2018. The Suburb E Community Clinic has a mental health clinic unit. There is no difficulty with the team including Dr S and Dr J. They left her to her own business. Her GP is the senior GP at the clinic. Her condition is solved with one tablet every evening.
When questioned by the Court as to exactly where she was living, the mother said she was still in two houses. Her answers were, I regret to say, very difficult to understand.
The Exhibited Material
Exhibit ICL3 is a memorandum prepared by the Independent Children’s Lawyer from the subpoenaed documents relating to the mother. I have regard to the entirety of this report. I note that on
11 October 2018 there was a diagnosis of schizophrenia, and from the Mental Health C Assess E Notes, there was relevantly:
“Medium risk of absconding: although she is willing to engage currently, she has a past history of poor engagement with services and poor adherence to medication in the past. Does not want family involved in her care. Physical illness medium - Hashimoto’s. Social/Environmental related harm - low risk. Unstable housing situation as previously moving around a lot.”
The Mental Health Community Progress ENote March 19 2009 Suburb B AMHS Community Service states:
“Phone call to Ms Sadlier to touch base and introduce self as new mental health clinician as her previous mental health clinician is no longer with the team. Discuss NIL contact with team since last seen in January for 2019. Ms Sadlier reported that she had been advised by her lawyer to be in “frequent contact”. She confirmed that she had had an appointment with a consultant psychiatrist scheduled for February, however the appointment was cancelled by the consultant psychiatrist as he was unwell. Ms Sadlier is agreeable to schedule an appointment for 10 April 2019 with mental health clinician to review mental health state and risks. Author Ms T, Registered Psychiatric Nurse. Date: 19/03/2019.”
A further extract is headed Screening Register Detail. Date referred 13 September 2018. Telephone triage service Region Q Hospital. Phone call received from Ms Sadlier’s mother Ms FF.
The report relevantly states:
“I spoke with her former case manager Ms EE from Region R AMHS clinic. Ms EE stated that Ms Sadlier was typically guarded and evasive when dealing with mental health services. Had been non-compliant with medication as soon as she had been discharged off the CTO.”
Admission Form to Region N on 4 October 2018
The report relevantly notes:
“She states that she is worried that her mental health may deteriorate and hence the reason for the call. She claims to be compliant with her medications but is worried that due to living in a new area, that her mental health may deteriorate again.”
Admission 4 October 2018 - Region N Hospital
The notes record:
“Diagnosis and treatment - Paranoid SCZ. Treatment and progress – Ms Sadlier was reviewed by Consultant Psychiatrist Dr CC and recommended for supervision of medication at link to Region N CCT for on-going support.”
On the final page of the exhibit “From the Printout” - Triage Information the following was recorded:
“Received 15 August 2019. Phone call from ex-partner of client wanting to speak to case manager. As per SMR, client was discharged from hospital on 1 July 2019. Referrer states he has custody of their 5-year-old and wanted to know how to best initiate visitation and what to do if she becomes non-compliant and is unwell. Suggested he involve DHHS and discuss the situation with them. No further role for PTS.
Past psychiatric history:
Suburb E CCT - discharged 1 July 2019. Schizophrenia. Open to Ms EE at Region M CCT, Region R AMHS.”
ICL4 is the joint letter from Drs S and Dr J, dated 1 February 2019. Although it is a lengthy extract, the relevant parts of the report read as follows:
“(a) Her mental health status at the time of the report.
Ms Sadlier has remained stable in mental state throughout her episode of care with Suburb E Continuing Care Team (CCT), which started on 11/10/2018. She has presented neatly kempt and easy to engage with the clinician. Her mood has been stable and her affect appropriate and reactive. There has been no evidence of thought disorder, delusional thought content or suicidal/homicidal thoughts. There has been no evidence of psychotic symptoms. Her insight has been satisfactory – in that, she has accepted on-going treatment, remained engaged with the treating team and expressed appropriate goals to move forward in her life.
(b)Her compliance or otherwise with the taking of medication and treatment regimes.
Ms Sadlier reports adherence to prescribed medications of risperidone oral tablets 3 mg at night. She has been adherent to the treatment plan of attending appointment at CCT and engaging well in regular reviews with mental health clinicians, medical officers and psychiatrist. She is available for contact.
(c) The plan for her on-going treatment.
The plan for Ms Sadlier is to continue engaging with the treating team for case management in order to regularly review her mental state and perform a risk assessment. If her mental state remains stable, there are no significant issues with her prescribed medications and she is able to demonstrate an understanding of a reasonable relapse prevention plan as well as her early warning signs, her care may be transferred to a General Practitioner in the future.
(d) Her diagnosis and prognosis.
Ms Sadlier has a diagnosis of psychosis, with a differential diagnosis of organic psychosis due to thyroid dysfunction. It is anticipated that with sustained antipsychotic treatment for a period of 24 months, abstinence from any illicit substance use and appropriate management of psychological stressors, she will be in remission.”
ICL5 is Community Mental Health DC Summary, E notes from Suburb C Mental Health. These notes on the first page an admission date of
26 June 2019 and an address in Suburb LL different from that that the mother asserted in Court. The Brief Summary of Presentation on page 1 notes:
“Ms Sadlier is 41yo divorced mother of a 4yo son X. Pt has dx of paranoid SCZ and multiple admissions to IPU in Hospital and Region DD MHS due to her itinerant lifestyle. Hx of Hashimoto’s thyroiditis on thyroxine. She was referred by Region DD CATT to Region N CATT/HITH as had moved to Suburb LL 3days prior. Subsequently referred to hospital for Case Management.”
The Clinical State at Commencement of Episode relevantly states:
“Thought stream normal, nil thought disorder.
Denies all psychotic Sx and nil evidence of same.
Denies all risks of harm to herself and others.
Limited insight into her mental state.
States she is grateful to be referred to community services and her main goal is to see her son again.
Ms Sadlier has not given consent for health services to disclose any information to her mother or other family.
Recently moved to Suburb LL and finding her way around which she states is stressful.
Eating and sleeping well.”
Under the subheading, “Brief Summary of Treatment and Progress”, the report continues:
“Initially compliant and wanting input with our service. Primary goal was to regain more custody of her child, which required a Psychiatrist report. Upset about ongoing custody battle with Ex. Ms Sadlier had been working on improving her life and became involved with her church and was seeking employment as a professional. She felt her situation was improving and was maintaining a healthy lifestyle by eating and sleeping well, socializing and focusing on the positive things in her life.
Gradually began missing appointments and became avoidant of staff and follow up.”
I note that Ms Sadlier had last been seen on 18 April 2019.
At this point, it is appropriate to turn to the statutory pathways illuminated by the decision of the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 at [65].
Parental Responsibility
There is no meaningful suggestion of family violence of any note in this case. The father, whose evidence I should make it clear that I accept, has denied any family violence on his part. As the Independent Children’s Lawyer counsel submitted, and in my view correctly, the father was a measured, fair and sensible witness who was clearly telling the truth. He has never hit any of his children. The allegations of family violence raised by the father against the mother were only faintly pressed, in any event.
Thus, while it is clear that the presumption of equal shared parental responsibility is not rebutted by family violence, there is still a very serious issue to be addressed. In circumstances where each of the parents, albeit in differing ways, complains that they are unable meaningfully to communicate with the other, and indeed each of them complain about the other in any event, any order for equal shared parental responsibility would be extremely vexed.
Furthermore, and there is no way now of avoiding this issue, the mother’s mental health remains a sufficient cause for concern to suggest that equal shared parental responsibility is not in X’s best interest. It is quite clear from the materials taken as a whole that the mother has had three episodes of psychoses in the past. Ms F is correct. Contrary to her own perception, the mother does not merely have a thyroid-related problem that is easily addressed. The most recent medical advice from Drs S and Dr J suggests that the mother has ongoing psychosis that requires at least 24 months of treatment before she could be said to be in remission.
The Independent Children’s Lawyer has voiced concerns that I would entirely share as to what, if any, medication the mother is, in fact, taking and the medical evidence provided from her general practitioner, Dr O, is really wholly uninformative. What is of particular concern is the mother’s ongoing denial of mental ill health, both now and, more importantly, historically, when it is so clearly established. Indeed, and without in any sense elevating myself to the position of a medical practitioner, it was apparent as a matter of ordinary human experience, when listening to the mother’s evidence and submissions, that her mental health is not, at any rate, presenting as normal.
In my view, the orders sought by the Independent Children’s Lawyer are appropriate. There should be an order for the father to discuss any major long-term issues about X’s future with the mother and to pay appropriate and careful regard to her contributions, but he should have the final say.
The next issue is whom should X live and spend time?
Section 60CC(2), the primary considerations.
Everybody agrees that it is in X’s best interest to have a meaningful relationship with each of his parents. The difficulty in this case is essentially that arising from the mother’s health. As Ms F, in my view, correctly opined, if the mother were to have a relapse while X was in her care, then X, who has not got sufficient speech to articulate matters to a third party, would be likely to be devastated. This is an important and very significant consideration. The need to protect X from the risk of being exposed to psychological harm is a very significant one, even though I should make it clear that I fully accept that the mother adores X and would not, if in good health, ever do anything to harm him.
The Additional Considerations, section 60CC3(a)
X has expressed no views and, indeed, was not interviewed by Ms F.
Section 60CC3(b)
Both parents agree that X loves the other and this is Ms F’s observation, also. The nature of X’s relationship with his father is a straightforward and simple one. The relationship with the mother is more complex and troubling. It seems from the evidence taken as a whole that the mother is enmeshed with X. I note that she has, on occasions, attended the early learning centre to such a point as to cause difficulty. She has been unable to, effectively, let go.
There is no reason to doubt that X has anything other than an excellent and very loving relationship with his half-siblings, and it appears that he has a good relationship not only with the paternal family but with that of the mother, with whom the father, unlike the mother, has a good relationship.
Section 60CC3(c)
Both of these parents have endeavoured to participate in making decisions about major long-term issues in relation to X. Both of them have sought at all times to spend time and communicate with him. The father was initially inhibited by the mother following separation, and more recently the mother has been inhibited by the father and/or Court orders. Nonetheless, both parents love this child and indeed both of them would, in truth, like to have him living with them and to be the primary carer.
Section 60CC3(c)(a)
It can be said shortly that both of these parents have done their best. Obviously, the mother’s capacity to maintain X is limited by her parlous financial situation.
Section 60CC3(d)
It is clear from the father’s case that he would like X to spend more time with his mother, if he was satisfied that this would be safe for X. In truth, that is also the position of the Independent Children’s Lawyer. The difficulty with additional time at the present moment arises from a number of factors relating to the mother’s personality and lifestyle.
I accept Ms F’s evidence that a period of stability is necessary for X before a time should be extended. The mother has, I regret to say, completely failed to prove that she has secure accommodation. She initially told the Court that she had executed a lease but when questioned as to why she had not got a copy of it, she gave no convincing answer. She then said that there were emails which would show that the lease was executed, which she would bring on the second day of the trial. She produced no such documents. She then said that she was living in two houses, which was in part an explanation for her non-production of documents.
She had also intimated that she has a 10-year lease. I find that utterly implausible. It is her case that this is rental accommodation, and standard rental accommodation does not give rise to 10-year leases. I do not know quite what her accommodation situation is, but I can say with certainty that I am not satisfied that it is stable and secure. This is important, as Ms F pointed out. Furthermore, as ICL6 shows, the mother appears to be moving to new accommodation (assuming that she is, in fact, doing so), and this is a historical stressor for her in any event.
Furthermore, X apparently is unsettled by the one night per week he does spend with his mother. Indeed, once again, I accept the evidence of Ms F that his disturbed behaviours upon return more probably than otherwise arise out of stress at being with his mother. Having heard and seen the mother give her evidence, I suspect that the mother’s behaviour when X is with her is very highly concentrated as a result of her genuinely held love and affection for him. The description of the mother from the Early Learning Centre only goes to suggest the intensity of her emotions. These must be difficult and confronting for X.
Added to all these difficulties, the current uncertainty as to the mother’s taking of her medication and the uncertainty of her medical treatment (Dr O has provided no meaningful evidence) is an ongoing concern. Whatever else one can say, it is clear that the mother has not undertaken the 24-month period of treatment envisaged by Dr S and Dr J as the timetable they set is nowhere near completed.
All of these matters taken together militate very strongly against any present increase in time for X with the mother.
Section 60CC(3)(e)
There is nothing to suggest that extra time with the mother would involve difficulties in terms of expense or simple matters of practicality other, of course, than the risk factors to which I have referred immediately above.
Section 60CC(3)(f)
Counsel for the Independent Children’s Lawyer was right to lay stress upon this subsection. The father has a well developed and mature capacity to care for all of X’s needs. The mother, who I repeat yet again clearly loves and adores him, may well be able to cope with X when she is in stable accommodation and in stable mental health. Unfortunately, at the moment, she has simply not proved that this is the case. On the contrary, the risks of relapse and associated trauma for X can simply not be put to one side.
Section 60CC(3)(g)
This, again, is an important section, but much of the relevant matters have already been traversed. It appears that the mother only moved into accommodation in Suburb LL in about April of this year, and she is already contemplating moving again. She was itinerant when she was admitted in 2018. Her employment is, at best, a work in progress.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
The father’s attitude to the child is one of a responsible parent. The mother, as already indicated, has a somewhat enmeshed relationship with X in which X in which time with X is as much necessary to meet the mother’s own emotional needs as any benefit that it would give to X himself.
Section 60CC(3)(j)
As already indicated, this is irrelevant.
Section 60CC(3)(k)
This is irrelevant.
Section 60CC(3)(l)
Everyone in this case needs finality. The parents do not need the strain of litigation which is considerable. It will be possible to make orders which provide a path forward for the mother and to bring this matter to a conclusion.
Section 60CC(3)(m)
It is sufficient to note that the Independent Children’s Lawyer’s position is correct. The mother’s presentation of her case has been chaotic, and her assertion that she did not need lawyers when they were, in fact, available to her speaks for itself.
Conclusion on the Parenting Issues
Bearing in mind all of the above matters, it is clear that the orders proposed by the Independent Children’s Lawyer are appropriate. I have drawn draft orders to reflect these conclusions but will hear further from the parties to ensure that they accurately reflect what the parties want.
Property Issues
These parties were only in a relationship for some four or so years. The father seeks that there be no property adjustment and that each party retain what they presently have. The mother, if I understand the matter correctly, seeks the return of her $26,000 advanced, as she puts it, very early in the relationship together with interest thereon.
Stanford & Stanford
In my view, this is a case in which the parties’ conduct of their finances has radically altered since separation. It would not be just and equitable not to consider a property adjustment.
The Property Pool
The identified property pool essentially consists of the former matrimonial home, which the father already owned prior to the commencement of the relationship. It has an estimated value of $805,000 and a mortgage of $256,000. It also consists of the father’s superannuation, the vast bulk of which must have accrued outside the relationship also. There are no other noteworthy chattels or matters of that kind.
Contribution Issues
It is immediately apparent that the father made the vast bulk of the financial contributions. Not only did he already own the substantive assets of the relationship prior to its commencement, but he always earned far more than the mother and must have contributed far more to the family’s living expenses. The mother worked until X was born and thereafter was a housewife for about two years until separation.
Future Needs
The father has a vastly superior earning capacity to the mother. He earns in excess of $150,000 a year, and she is, on any view of the matter, on a very low income. I do not have the benefit of a Financial Statement from her, but whether she works part time in factories and/or is in receipt of statutory benefits and/or has a nascent business, her earnings, on any view, are low. One hopes that with time and better mental health, the mother’s career as a professional may be resuscitated.
The mother says that she contributed $26,000 in January 2013, and this appears to be accepted by the father. This sum was applied to the then extant mortgage. Although the father says that some of these moneys were redrawn, he has given no details of that, and, on any view, the $26,000 must have represented a real benefit to the parties at that time.
The father will continue to have the primary care and responsibility for the costs of X for the foreseeable future. He will also have his own other three children for 50 per cent of the time, and this will be a further significant impost.
The father’s health is unexceptionable, but the mother’s mental health is certainly a matter of ongoing concern.
Conclusion on the Property Issues
In my view, a resolution of this matter that gives the wife her $26,000 back together with interest, is in the unfortunate and regrettable circumstances of the matter an appropriate, a just and equitable outcome. Given that the funds were advanced almost 7 years ago, I have assessed interest at a point in between the penalty interest rate and bank rates, rounding the total off at $35,000. It is not appropriate to adjust the parties’ superannuation where almost all of it must have accrued outside the relationship. I have not made formal percentage findings on the issues or contribution of future needs. Given the brevity of the relationship and the matters referred to above it is neither necessary or appropriate to do so. I have likewise drawn draft orders to reflect this conclusion and will hear from the parties before making them final.
Postscript
On 11 October 2019, a week after judgment was reserved Ms Sadlier forwarded a draft submission to chambers. It was forwarded without leave being sought or granted. Consistent with authority, I have not read it see SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158 at [67].
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 10 December 2019
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