MALBERG & MALBERG
[2020] FCCA 1564
•25 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MALBERG & MALBERG | [2020] FCCA 1564 |
| Catchwords: FAMILY LAW – Interim proceedings – property – parenting –where a superannuation flagging order is sought – where that order is granted – where there are reasonable grounds to believe that family violence has occurred – where equal shared parental responsibility presumption does not apply – where equal shared parental responsibility nevertheless the best outcome – where risks mitigated by orders – where children to spend substantial and significant time with each parent. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB 68B, 68L, 78, 79, 90XU |
| Cases cited: M & M (1988) FLC 91-973 Johnson & Page (2007) FLC 93-344 Marvel & Marvel (2010) 240 FLR 367 |
| Applicant: | MR MALBERG |
| Respondent: | MS MALBERG |
| File Number: | SYC 7900 of 2018 |
| Judgment of: | Judge Morley |
| Hearing date: | 21 June 2019 |
| Date of Last Submission: | 21 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 25 June 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Ktenas of Ktenas Solicitors & Barristers |
| Solicitors for the Respondent: | Ms Weber of Legal Aid NSW |
| Solicitors for the Independent Children's Lawyer: | Mr McGreal of Holmes Donnelly & Co Solicitors |
ORDERS
PENDING FURTHER ORDERS THE COURT ORDERS
That the parties have equal shared parental responsibility for their children X born in 2009 and Y born in 2009 (‘the children’).
That during school term time, the children live with their parents in the following arrangement:
(a)With their Father from 2.00PM Sunday until 8.00AM Tuesday;
(b)With their Mother from 8.00AM Tuesday until start of school Wednesday;
(c)With their Father from start of school Wednesday until end of school on Thursday;
(d)With their Mother from end of school on Thursday to 8.00PM on Saturday;
(e)With their Father from 8.00PM on Saturday until 8.00AM on Sunday; and
(f)With their Mother from 8.00AM until 2.00PM on Sunday.
That during the school holidays at the end of Terms 1, 2 and 3, the children spend half the school holidays with each parent, with such halves to be agreed by the parties, and in the absence of agreement:
(i) for the first half of the holidays with their Father;
(ii) for the second half of the holidays with their Mother; and
(iii)for the purpose of these orders such school holidays commence at the end of school on the last day of the Term and conclude on the resumption of school attendance by the children and include any pupil free days and changeovers in the middle are to occur at 6.00 PM.
That during the Christmas school holidays, the children spend half the school holidays with each parent, with such halves to be agreed by the parties, and in the absence of agreement:
(i)on a week about basis, with the first week being with their Mother in Christmas school holidays that start in even numbered years and with the first week being with their Father in Christmas school holidays that start in odd numbered years; and
(ii)for the purpose of these orders the Christmas school holidays commence at the end of school on the last day of the Term and conclude on the resumption of school attendance by the children and include any pupil free days and changeovers at the end of each week are to occur at 6.00 PM.
That notwithstanding any other order herein:
(a)On the children’s birthday, each parent is entitled to spend at least two and a half hours with the children as agreed;
(b)On Father’s Day the children will be in their father’s care from 6:00PM on the Saturday before Father’s Day until 6:00PM on Father’s Day;
(c)On Mother’s Day the children will be in their mother’s care from 6:00PM on the Saturday before Mother’s Day until 6:00PM on Mother’s Day;
(d)During the Christmas period:
(i)in even numbered years the children will be in their mother’s care from 12.00 noon on 24 December until 12.00 noon on 25 December and in their father’s care from 12.00 noon on 25 December until 12.00 noon on 26 December; and
(ii)in odd numbered years the children will be in their father’s care from 12.00 noon on 24 December until 12.00 noon on 25 December and in their mother’s care from 12.00 noon on 25 December until 12.00 noon on 26 December.
That on a without admissions basis the mother is restrained from driving the children in any motor vehicle.
That on a without admissions basis the mother is to attend upon her regular treating health professionals including, but not limited to, her general practitioner, her psychologist, and her psychiatrist, regularly and as recommended and/or referred, and follow all such recommendations made in relation to her treatment and medication, referrals to other health and/or medical practitioners, and generally remain compliant with her medication and treatment.
That all changeovers not occurring at the children’s school occur at the front entrance to the unit block of the parent from whose care the children are leaving.
That each party advise the other party and keep the other party advised of their current residential address and contact telephone numbers (including landline and mobile phone number if applicable) and advise the other party of any changes to these details within 24 hours of such change occurring for telephone numbers and no later than 7 days before such change occurring for residential address.
That each party shall ensure the other parent is kept informed of:
(a)Any medical problems or illnesses suffered by the children or either of them while in that parent’s care;
(b)Any medication that has been prescribed for the children or either of them;
(c)Any social, school, or religious functions which the children or either of them are to attend;
(d)Any other matter relevant to the welfare of the children or either of them.
That each of the parties is restrained from making critical or derogatory remarks in relation to the other parent, any member of the other parent’s family or a member of the other parent’s household, in the presence or within the hearing of the children or either of them.
That each of the parties is restrained from allowing the children or either of them to remain in the presence or within the children’s hearing of any other person who is making critical or derogatory remarks in relation to the other parent, any member of the other parent’s family or a member of the other parent’s household.
That each of the parties is restrained from:
(a)Discussing these proceedings in the presence or within the hearing of the children or either of them;
(b)Allowing the children or either of them to remain in the presence or within the children’s hearing of any other person discussing these proceedings;
(c)Showing the children or either of them any document filed in or associated with these proceedings; and
(d)Allowing the children or either of them to remain in the presence of any other person attempting to show the children any document filed in or associated with these proceedings.
Pursuant to the provisions of section 90XU(1)(a) of the Family Law Act 1975 (Cth) (‘the Act’), Super Fund B (‘the trustee’), its servants or agents, the trustee of the Super Fund B (‘the Super Fund B fund’):
(a)is not to make a splittable payment to Mr Malberg, member number ...69, of the interest of Mr Malberg in the Super Fund B fund without first obtaining the leave of the Court to do so; and
(b)is within 28 days to notify Mr Malberg at C1 Street, Suburb D and Ms Malberg at C2 Street, Suburb D of the next occasion when a splittable payment will become payable in respect of the interest of Mr Malberg in the Super Fund B fund.
That order 14 has the effect from the operative time and the operative time is four business days following the trustee of the fund receiving a copy of the sealed orders.
Grant liberty to the Father and the Mother to make Application to Chambers in relation to the implementation of orders 14 and 15 herein or in the event that the trustee objects to the form of these orders.
THE COURT NOTES THAT:
(A)In the event that the Father needs to access his superannuation because of the medical needs of the children or either of them, the Mother shall not unreasonable withhold consent or fail to sign consent orders to allow the Father to access the superannuation for this purpose.
IT IS NOTED that publication of this judgment under the pseudonym is Malberg & Malberg approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7900 of 2018
| MR MALBERG |
Applicant
And
| MS MALBERG |
Respondent
REASONS FOR JUDGMENT
Introduction
These are interim parenting and property settlement proceedings under the Family Law Act 1975 (Cth) (‘the Act’) between Mr Malberg, the applicant husband and father (‘the father’), and Ms Malberg, the respondent mother and wife (‘the mother’). The proceedings concern parenting arrangements for the parties’ twin children, X and Y, both born in 2009, and the adjustment of property between the parties. An Independent Children’s Lawyer (‘the ICL’) was appointed to represent the children at the hearing.
I conducted an interim hearing on 21 June 2019 on the following issues:
a)With whom the children would live;
b)What time the other parent would spend with the children; and
c)Whether or not a flagging order should be made affecting the father’s superannuation entitlements within the Super Fund B.
The father was present and represented by his solicitor advocate, Mr Ktenas. The mother was present and represented by her solicitor advocate, Ms Weber, and the ICL, Mr Holmes, was represented by solicitor advocate Mr McGreal.
Subsequent to the interim hearing, and by a letter to my Chambers dated 31 July 2019, sent with the knowledge and consent of the father and the ICL, the mother’s solicitors advised me of an alteration to the wording of the orders sought by the mother. These changes included correcting the name of the applicable fund for the superannuation flagging order, and to advise an alteration to the parenting arrangements proposed by the mother as to the particular overnight times sought by her.
The changes in regard to parenting were consequent upon an alteration of the existing voluntary care arrangements for the children between the parents due to the mother’s study timetable requirements. As indicated, that notification was made with the knowledge and consent of the other parties and therefore in compliance with the protocol for communication by parties with Chambers, and therefore I have accepted that additional information.
Too much time has elapsed since the interim hearing and I apologise to the parties, the ICL, and the children for that circumstance.
Material relied upon
The father relied upon the following trial material:
a)Amended Initiating Application filed 16 April 2019;
b)Notice of Risk filed 10 December 2018;
c)Affidavit of the father sworn or affirmed 10 December 2018;
d)Affidavit of the father affirmed 16 April 2019;
e)Affidavit of the father sworn or affirmed 19 June 2019;
f)Financial Statement of the father sworn or affirmed 16 April 2019; and
g)Case Outline document prepared by the father’s solicitor advocate, Mr Ktenas.
The following filed materials are relied upon by the mother:
a)Amended Response to Initiating Application filed 14 March 2019;
b)Notice of Risk filed 20 December 2018;
c)Affidavit of the mother affirmed 4 June 2019;
d)Affidavit of Dr F affirmed 18 June 2018;
e)Affidavit of Dr G affirmed 19 June 2019;
f)Affidavit of Ms H affirmed 6 June 2019;
g)Financial Statement of the mother sworn or affirmed 13 March 2019;
h)Case Outline prepared by the mother’s solicitor advocate, Ms Weber;
i)Minute of Proposed Orders sought by the mother (and including the corrected orders received subsequent to the interim hearing);
j)List of documents relied upon by the mother as a tender bundle from the documents produced on subpoena; and
k)Letter dated 31 July 2019 received from the solicitors for the mother subsequent to the interim hearing, as detailed above.
Both parties and the ICL relied upon a Child Dispute Conference memorandum to Court dated 4 February 2019, prepared by Family Consultant Smith following interviews with the parents on 21 January 2019.
At the hearing submissions were made on behalf of the ICL, on behalf of the mother, and on behalf of the father. During each party’s submissions, the Court was referred to documents marked with tabs. These were documents produced on subpoena in the proceedings. No documents were tendered to the Court to be formally admitted into evidence and marked as exhibits. Nevertheless, I have considered all of the said tabbed documents referred to in the ‘tender bundle – mother’ document provided to the Court on behalf of the mother and all of the tabbed documents referred to in submissions for the ICL and for the father.
I have carefully read and considered all of the materials relied upon by each of the parties and the ICL at the interim hearing, including all of the material contained in the documents produced on subpoena in the proceedings as referred to. I have listened to the audio transcript of the interim hearing so as to re-hear the submissions made on behalf of each of the parties and the ICL, shortly prior to the preparation of these reasons.
The proceedings
The proceedings were commenced by an Initiating Application filed by the father on 10 December 2018. The matter came before Judge Henderson (as her Honour then was) for its first mention on 11 December 2018, at which time interim orders were made:
a)For the parties to attend a Child Dispute Conference on 21 January 2019;
b)For the filing of a Response and supporting documents by the mother;
c)Restraining the removal of the children from the Commonwealth of Australia; and
d)For the children to be placed on the airport watchlist at all points of arrival and departure in the Commonwealth of Australia.
The mother filed her Response to an Initiating Application on 20 December 2018, and the parties attended the Child Dispute Conference on 21 January 2019.
The matter was again before the Court on 25 February 2019, at which time Judge Harper (as his Honour then was) made an order under section 68L of the Act appointing the ICL to represent the interests of X and Y in the proceedings. His Honour noted that the parties would agree upon a single Court expert to prepare an assessment in relation to the mother’s mental health, and that an order would be forwarded to Chambers for appointment of the single Court expert. No such order has been provided to Chambers.
On 14 March 2019 the mother filed an Amended Response to an Initiating Application adding property issues and seeking a final splitting order affecting the father’s superannuation entitlements. Her Amended Response also sought interim orders in relation to spouse maintenance payable by the father to the mother and a superannuation flagging order affecting the father’s superannuation entitlements in the Super Fund B superannuation fund.
On 16 April 2019 the father filed his Amended Initiating Application addressing the financial issues, seeking a declaration under section 78 of the Act that, in effect, the parties be entitled to each keep what they have. His Amended Initiating Application also sough that the mother’s interim application in relation to spouse maintenance and the flagging order be dismissed.
When the matter was before the Court on 1 May 2019 it was adjourned for an interim hearing on 21 June 2019. An interim hearing proceeded on 21 June 2019, the only other occurrence in the proceedings after that time being receipt in Chambers of the letter of 31 July 2019 from the solicitors for the mother.
The orders sought at the interim hearing
The father sought orders in his Amended Initiating Application, summarised as follows:
a)That the parties have equal shared parental responsibility for the children;
b)That the children live with their father;
c)That the children spend time with their mother as agreed between the parties, with all such times supervised by the father, or another adult or organisation acceptable to the father, until the mother can demonstrate to the father she does not pose an unacceptable risk to the children due to her mental health condition, and, failing agreement as to times:
i)Each alternate Saturday from 9.00AM to 5.00PM;
ii)Each alternate Sunday from 9.00AM to 5.00PM;
iii)Each Tuesday (or other agreed weekday) from 3.30PM to 6.30PM;
iv)On the children’s birthdays for three hours as agreed, or 3.30PM to 6.30PM if not agreed;
v)On Mother’s Day from 9.00AM to 5.00PM if the children are not otherwise with the mother;
vi)Regular telephone contact on a reasonable basis at reasonable times;
vii)On Christmas Day for three hours as agreed, or failing an agreement from 9.00AM until 12.00PM; and
viii)At other times as agreed;
d)That the mother’s time with the children be suspended if the father has any concerns about the mother’s mental health, based upon her presentation at any changeover and/or if the mother does not continue with seeking treatment on a regular basis from her general practitioner and mental health specialists;
e)That the mother’s time be suspended on Father’s Day from 9.00AM to 5.00PM if the children are otherwise with the mother on that day;
f)That changeovers occur at the father’s home or another agreed venue;
g)That the parties keep each other advised of any medical issues affecting the children, including hospitalisations, and advised of the current address and contact telephone numbers and any changes thereto;
h)That both parties be authorised to receive copies of the children’s school reports and merit cards, and any written materials relating to the children’s academic and extracurricular activities;
i)A non-denigration order;
j)That in the event the mother removes the children from the father, a recovery order issue on an ex-parte basis and the mother reimburse the father for any costs incurred by him in collecting the children pursuant to the recovery order;
k)That the mother’s interim spouse maintenance application be dismissed; and
l)That the mother’s application for interim property orders (being only the superannuation flagging order) be dismissed.
The mother sought the following orders:
a)That the children live with the mother;
b)That the children spend time with their father:
i)Each alternate weekend during school terms from after school or 3.00PM on Friday to before school or 9.00AM on Monday;
ii)During school term each Tuesday and Thursday from after school until 6.00PM;
iii)During school holidays for half of the school holidays at the end of terms 1, 2 and 3, being an agreed half, or if not agreed, for the first half;
iv)For half the Christmas school holidays, being a half as agreed, and in the absence of agreement on a week-about basis;
v)That school holidays commence for the purpose of the orders at 9.00AM on the first day after school term ends and include pupil-free days, and changeovers shall occur at 6.00PM;
vi)That if a weekend includes a Friday, then the children’s time will commence at 4.00PM on the Thursday; and
vii)Such other times as agreed between the parties;
c)That special occasions be dealt with as follows:
i)The mother and father each be entitled to spend two and a half hours with the children on “their birthday” at times agreed between the parties (presumably relating to the children’s birthday, not the parents’);
ii)That the children’s time with the father on the Mother’s Day weekend end at 6.00PM Saturday;
iii)That the children’s time with the mother on the weekend that includes Father’s Day be suspended from 6.00PM Saturday to 6.00PM Sunday;
iv)If the children are otherwise with the mother, that they spend time with the father from 12.00PM on Christmas Day until 6.00PM on Boxing Day;
v)If the children are otherwise with the father, that they spend time with the mother from 12.00PM on Christmas Day until 6.00PM on Boxing Day; and
vi)That the parents both be entitled to attend all events involving the children, including sporting fixtures, extracurricular activities that allow for parental attendance, and school functions to be attended by parents;
d)That the father’s time with the children be suspended on Saturday mornings from 8.40AM to 1.30PM and on Sunday mornings from 9.45AM to 12.00PM, so the mother can take the children to Country J school and church;
e)That any changeover that does not occur at the children’s school; occur on the street outside the mother’s residence’s driveway;
f)That the father be restrained from removing the children from the mother’s care other than in accordance with the orders;
g)That an injunctive order be made pursuant to section 68B of the Act restraining the father from entering onto any part of the premises, being the unit block in which the mother resides, without the written consent of the mother;
h)A non-denigration order;
i)An injunction restraining the parties from discussing the proceedings in the presence or hearing of the children, or allowing the children to see any document filed in or associated with the proceedings, or allowing any other person to do such;
j)That each party keep the other advised in relation to any medical issues affecting the children, and in relation to their current address and contact telephone numbers and any change to those details; and
k)That pursuant to section 90XU(1)(a) of the Act, a flagging order be made effecting the husband’s interest in the Super Fund B, with an accompanying order in relation to the operative time, being four business days following the receipt by the trustee of the fund of a sealed copy of orders.
Both parties in their moving document had sought interim watchlist orders, but as such order was made on 11 December 2018 and no application was made in the interim hearing to vacate or vary that order, it was not an issue in the interim hearing.
During submissions, the solicitor advocate for the mother indicated that if, as a result of the hearing, the Court was not minded to make the live-with order in her favour as sought by the mother, the mother sought that orders to be made that would provide that the children be:
a)In her care for six nights per fortnight; and
b)In the father’s care for eight nights per fortnight.
The schedule of those times is particularised in those submissions.
The occasions so sought by the mother were varied in the letter of 31 July 2019 that was received subsequent to the interim hearing from the mother’s solicitors, and advised as being:
a)Each week from 8.00AM on Tuesday until the start of school on Wednesday;
b)From the end of school on Thursday until 8.00PM on Saturday; and
c)From 8.00AM until 2.00PM each Sunday.
This maintained the mother’s alternate proposal of six nights per fortnight with her and eight nights per fortnight with the father – the Sunday from 8.00AM until 2.00PM having been part of the alternate arrangement proposed by her solicitor advocate in submissions.
Further, in submissions the mother indicated that she accepted the mutual notification orders in relation to:
a)Health issues affecting the children;
b)Detail of addresses and telephone numbers and any changes; and
c)Receipt by the parents of school reports and so forth.
The Court was also informed that the mother would agree to the non-denigration order as proposed by the father in his Amended Initiating Application.
In submissions the mother indicated that she was accepting of an injunctive order being made restraining her from driving any vehicle conveying the children. She further indicated that she was accepting of an order, as proposed by the ICL in submissions, that she continue her regular attendance with her general practitioner and follow all reasonable recommendations as to treatment and medication and referral to other health professionals, and that she attend upon her psychiatrist if required.
The Notices of Risk
In the Notice of Risk filed by the father he asserts that a risk to the children due to the mother’s mental health issues, and in particular the mother having “suffered from depression, anxiety and sleeping disorders”,[1] and that the children are otherwise at risk in the care of the mother in consequence of her having “driven with the children after taking tranquiliser [sic]”.[2]
[1] Notice of Risk filed by the Father on 10 December 2018, p 5.
[2] Notice of Risk filed by the Father on 10 December 2018, p 5.
In the Notice of Risk filed for the mother in the proceedings, she asserts that she has been the victim of family violence perpetrated by the father in the form of “coercive control, particularly financial control, sexual violence and verbal and emotional abuse”.[3]
[3] Notice of Risk filed by the Mother on 20 December 2018, p 4.
The evidence
The father was 47 years old at the time of the hearing and was unemployed, his usual occupation being as a professional. He had been unemployed since August 2018. The father lives in a unit in a home unit block at Suburb D, in the Region W suburbs of Sydney.[4] He was born in Country K and is an Australian citizen. He is in receipt of Newstart Allowance and the Family Tax Benefit and is in receipt of a grant of Legal Aid to assist with the proceedings.[5]
[4] Affidavit of the Father sworn or affirmed 19 June 2019, [3].
[5] Affidavit of the Father sworn or affirmed 19 June 2019, [4].
The father obtained his driver’s licence in 2019.[6]
[6] Affidavit of the Father sworn or affirmed 19 June 2019, [5].
The mother was 44 years of age at the interim hearing. She has been employed at various times as public servant and is currently a student at L TAFE and at M TAFE.[7] She was born in Country J and is a Country J citizen and a resident of Australia.
[7] Affidavit of the Mother affirmed 4 June 2019, [10].
The mother’s family all reside in Country J. The father’s family all reside in Australia, his mother and two brothers in Sydney and his father in Queensland.
The parties were married in Country J – the father says in 2005,[8] and the mother says in 2005.[9] They did not cohabit prior to their marriage. The parties came to Australia following their marriage, in 2005, and have continued to live in Australia with a few short holidays in Country J.
[8] Affidavit of the Father sworn or affirmed 10 December 2018, [4].
[9] Affidavit of the Mother affirmed 4 June 2019, [1].
The parties separated in March 2018 when the father advised the mother that he no longer wished to continue the marital relationship. The parties remained living under the same roof until the mother left and took up residence in a unit in the unit block immediately next door to the unit block occupied by the father.[10] The mother says that she left the matrimonial home unit on 15 December 2018 and took up residence in her own unit, though returning to sleep in the father’s unit on nights when she had care of the children by agreement between the parties. The father says that the mother did not move out to her own unit until 11 January 2019.
[10] Affidavit of the Father sworn or affirmed 19 June 2019, [7].
As best as I can assess from the evidence, it would seem that the mother obtained a lease of her home unit next door to the father’s home unit block in 2018, but that she continued to spend some nights each week sleeping at the father’s unit, the father also sleeping there, when she had care of the children for the night by agreement between the parties.
This arrangement ceased following some events occurring on the night of 10 January 2019 when the father locked the mother out of his unit and police attended, though nothing came of that police attendance. Certainly from 11 January 2019 the mother no longer spent nights sleeping at the father’s’ unit. At no time up until the interim hearing had the children been in the mother’s care overnight at her unit, the children spending every night sleeping at the father’s unit and being in the mother’s care by agreement on certain days.
The twins were born in 2009. The father asserts that he assisted with the care of the children from the time of their birth and that for a time the parties were assisted in that care by a nanny made available to the parties as a consequence of the mother suffering from postnatal depression and having treatment through her general practitioner, psychiatrist, counsellor, and psychologist. The documents produced on subpoena by the then Department of Family and Community Services indicate that the nanny assistance was provided for 13 weeks for a total of 50 hours per week.
The mother asserts that she was the principal carer for the children from the time of their birth until separation despite her postnatal depression difficulties. The mother asserts that the father was in full-time employment until sometime in 2010, when he took about two years off work, and that after he resumed full-time employment in 2011, he worked full-time until August 2018, and that during his employment he did not come home until about 6.30PM each evening of the working week.
The mother asserts that the father provided her with very little assistance in relation to the care of the children, even during the two years that he was not in employment in 2010 and 2011. The father asserts that during the two years that he was not in employment he provided the principal care for the children, the mother being affected by her mental health issues so as to be a secondary carer for the children.
It is not in issue that the mother has been, for many years, affected by mental health issues. She was diagnosed with depressive illnesses in her 20s, her symptoms were exacerbated following the birth of the twins by postnatal depression, and she has experienced ongoing depression continuing until the present time.
The mother admits that on occasions she has had suicidal ideation and that on three occasions she had serious thoughts of self-harm, once in 2012 and twice in 2018, but none since that time.[11] The mother asserts that particularly since she left the former matrimonial home in December 2018, her mental health has vastly improved and she had not been subject to any suicidal ideation or anxiety attacks.
[11] Affidavit of the Mother affirmed 4 June 2019, [6].
The mother is also affected by a sleep disorder, having been diagnosed with sleep apnoea.
The mother’s medical history, as set out in the evidence of both parties and in the subpoenaed documents to which I was referred, indicate that on occasions when the mother is affected by any form of escalation or crisis in relation to her mental health, she has always sought appropriate help from health professionals. In particular, the mother has been treated since 2010 by her general practitioner, Dr F. She has also been referred since 2012 to her treating psychiatrist, Dr G, and her psychologist, Ms N. Dr F and Dr G have provided evidence in the interim hearing on behalf of the mother.
The mother suffered an assault whilst she was a student at university in Country J in her youth, and while this may have been a trigger for her mental illness, there is no definitive evidence before the Court in that regard.
The father refers to a number of incidents of crisis in the mother’s mental health over the years, summarised as follows:
a)In 2010 or 2011, the mother held a knife to her wrist and said to him words to the effect of, “I cannot cope. I’m going to kill myself.”[12] The father calmed her down and took the knife from her, and the mother telephoned Beyond Blue for some counselling assistance. The mother says that she has no recollection of this incident.[13]
b)Sometime in 2011 or 2012, the mother again held a knife to her wrist and said, “I’m going to kill myself.”[14] The father again calmed her down and took the knife from her, and the mother again contacted either Beyond Blue or Lifeline for some counselling assistance by telephone. The mother says that she did not hold a knife to her wrist on this occasion, but was holding a knife and tapping it on the side of the sink in the bathroom while she thought about using that knife for self-harming.[15] The mother says that on the next day the father went to work as usual and left the children in her care.[16]
c)On 15 February 2011, persons from the then-called Department of Family and Community Services visited the parties’ home to interview the parties as some concern had been expressed to the Department about the care for the children. This may have led to the provision of the nanny assistance to the parties.
d)In 2013 or 2014, the mother suffered an anxiety attack while driving the father and the children in a motor vehicle – the father did not hold a driving licence at that time – and the father says that she drove at an excessive speed and in a dangerous manner.[17] The mother agrees that she had the anxiety attack while driving, but denies that she drove in any inappropriate manner, and says that she pulled over without being asked to do so by the father. She says that after she overcame the anxiety attack she then continued to drive home.[18]
e)In 2013, the parties and the children travelled to Country J for a holiday with the mother’s family. The father returned on his own to Australia after three weeks and left the mother and children in Country J for another few weeks.
f)In early 2017, the mother again had an anxiety attack while driving the father and the children in the car. The father says that she drove in a dangerous manner whilst having the attack, and that he insisted she pull over to the side of the road.[19] The mother agrees that she had the anxiety attack, but once again says that she did not drive in any inappropriate manner, and that she pulled over to the side of the road to recover from the anxiety attack without being spoken to by the father.[20]
g)In late 2017, the father says that the mother again held a knife to her wrist in the bathroom, and that the father again calmed her down and took the knife. The mother says that “to the best of [her] recollection”[21] this incident did not occur.
[12] Affidavit of the Father sworn or affirmed 10 December 2018, [17].
[13] Affidavit of the Mother affirmed 4 June 2019, [42].
[14] Affidavit of the Father sworn or affirmed 10 December 2018, [18].
[15] Affidavit of the Mother affirmed 4 June 2019, [40].
[16] Affidavit of the Mother affirmed 4 June 2019, [41].
[17] Affidavit of the Father sworn or affirmed 10 December 2018, [22].
[18] Affidavit of the Mother affirmed 4 June 2019, [45].
[19] Affidavit of the Father sworn or affirmed 10 December 2018, [25].
[20] Affidavit of the Mother affirmed 4 June 2019, [46].
[21] Affidavit of the Mother affirmed 4 June 2019, [42].
The father says that the mother has cycles where, “She is relatively stable and other times when she behaves in a manic fashion.”[22]
[22] Affidavit of the Father sworn or affirmed 10 December 2018, [27].
The father describes the mother’s sleep disorder as the mother screaming in her sleep “at the top of her lungs”[23] and then being excessively sleepy during daytime. He relates an occasion in 2015 when the mother was asleep at home when it was time to collect the children from school. The father rang the mother and so woke her, and she then picked the children up from school. The father refers to another such occasion in 2017 when the mother did not attend to collect the children from school, the father was contacted by the school, he rang a neighbour, who then woke the mother, and the mother collected the children from school.[24]
[23] Affidavit of the Father sworn or affirmed 10 December 2018, [28].
[24] Affidavit of the Father sworn or affirmed 10 December 2018, [31].
The mother admits that there were two occasions on which she missed picking the children up from school at the right time, because she was asleep, but says that the treatment she has had in relation to her sleep disorder, including medication, mean that such occurrences will not happen again.[25]
[25] Affidavit of the Mother affirmed 4 June 2019, [13].
As a result of the mother’s sleep disorder, she has had her licence suspended and is currently without licence and relies on public transport.
The parties and children had another holiday in Country J from December 2017 to late January 2018. Through this period and up to March 2018, the parties’ marital relationship was breaking down. From March 2018, the father indicated to the mother that he wished to separate. The mother admits that from January to May 2018 she had occasions of suicidal ideation, and that on these occasions she sought help by calling relevant helplines and by attending upon her general practitioner and, after referral, her psychiatrist, Dr G.
On 16 May 2018, the mother was assessed at the request of her general practitioner at the Region O Mental Health Acute Unit, and following the assessment she was not admitted, but was sent home.
In mid-2018, the parties attended a mediation with P Counselling Centre, at the Sydney city centre, and developed an informal parenting agreement for care of the children whilst they still resided under the same roof.[26] It was agreed that the children would be in the father’s care on Monday, Wednesday, Friday and Sunday afternoon, and that they would be in their mother’s care on Tuesday, Thursday, Saturday and Sunday morning. On the evidence, it is plain that the children were to be cared for by the relevant parent on the night of each day stated – that is, for example, by the father on Monday nights and Wednesday nights, and by the mother on Tuesday nights and Thursday nights.
[26] Affidavit of the Mother affirmed 4 June 2019, [5].
On 29 November 2018, the parties engaged in Family Dispute Resolution mediation provided by Legal Aid New South Wales, but no agreement was reached. The father commenced these proceedings by filing the Initiating Application on 10 December 2018.
The father asserts that on 30 November 2018 the mother drove the children in a motor vehicle whilst she was drowsy under the influence of a tranquiliser.[27] The mother denies this assertion, saying that she had taken a medication, which is not a tranquiliser, and that she did not recall ever feeling dizzy or drowsy after taking that medication.[28] She says that to the best of her recollection she did not take the children out that day in the car.
[27] Affidavit of the Father sworn or affirmed 19 June 2019, [52].
[28] Affidavit of the Mother affirmed 4 June 2019, [70].
The parties continue to reside in units in adjoining unit blocks – the father’s unit block being number C1 in the street and the mother’s unit block being number C2 in the street. The parties can see each other’s balconies from their units.
The mother is in receipt of Centrelink benefits and is a student.
The father ceased employment in August 2018 and is also in receipt of Centrelink benefits.
The parties have no assets of any significant value and no liabilities. The only property of the parties subject to the financial aspect of the proceedings is the mother’s application that a superannuation splitting order be made affecting the father’s interest in each of his two superannuation funds.
The orders sought by the mother are that:
a)A base amount of $46,000 be allocated to the mother in one fund;
b)A base amount of $12,000 be allocated to the mother in the other fund; and
c)That otherwise each party keep what they have.
The mother’s Financial Statement, sworn or affirmed by her on 30 March 2019, indicates that she has superannuation with Super Fund Q with a value of $6,658.
The father’s Financial Statement, sworn or affirmed by him on 16 April 2019, indicates that he has superannuation entitlements with Super Fund B with a value of $44,050 as at 30 June 2018 and entitlements with Super Fund R with a value of $11,329 at 31 December 2018.
The mother asserts that she was the subject of family violence perpetrated against her by the father in the nature of coercive and controlling conduct, particularly through financial control in insisting that he have control of all of the family’s finances, and that any money earnt by the mother be paid into an account controlled by him.[29] The mother also asserts that the father was physically violent to her.[30] The mother recounts an occasion on 25 February 2010 when she asserts the father pushed her, and she fell back on to the floor, and the father slapped her head a few times.[31] The father denies that such an incident ever occurred.[32]
[29] Notice of Risk filed by the Mother on 20 December 2018, p 4.
[30] Notice of Risk filed by the Mother on 20 December 2018, p 4.
[31] Affidavit of the Mother affirmed 4 June 2019, [18].
[32] Affidavit of the Father sworn or affirmed 19 June 2019, [16].
There is a note in the documents produced by the then-named Department of Family and Community Services of a disclosure made to them on 2 March 2010 by the mother that the father had pushed her, and she had fallen on to the floor.
The mother also asserts that in November 2017, when the parties were visiting the husband’s brother, Mr E, and his wife, Ms H, the wife was in conversation with Ms H about the father’s financial control of her when the father approached her from behind and pushed his hands heavily on to her shoulders causing the mother pain. The mother presents evidence in corroboration in the affidavit of Ms H.[33]
[33] Affidavit of Ms H affirmed 6 June 2019, [11]-[19].
The mother asserts that she was subjected to forced sexual activity by the father.[34] This is denied by the father, who asserts that all activity between them was consensual, and that the particular activity referred to by the mother was, in actuality, instigated by the mother.[35]
[34] Affidavit of the Mother affirmed 4 June 2019, [49].
[35] Affidavit of the Father sworn or affirmed 19 June 2019, [38].
The mother’s description of the father’s forcing her into the sexual activity describes the effect of the father requiring her to engage in the activity against her will, but not the application of physical force to make her engage in the activity over her physical resistance. That is said only to examine the nature of the asserted activity and is not in any way an assertion or finding that the actions of the father, as described in the mother’s evidence, will not amount to family violence, if accepted.[36]
[36] See, generally, Family Law Act 1975 (Cth) s 4AB.
The affidavit of Dr F, relied upon by the mother, attaches his report on the mother’s health dated 31 May 2019. He indicates that he has been the mother’s general practitioner since 2010, and that she suffers from major depression, triggered postnatally, but persisting since that time. He says that her depressive condition has contributed to:
…poor energy levels, poor motivation, poor self-esteem, unfortunately weight gain as a result of medication side-effects, anxiety and periodically distressing visual imagery and thoughts of self-harm. The nature of these visions have never been of self-harm or of harming anyone else, and they are also not hallucinations, but rather images that flash through her mind that she finds disturbing.[37]
[37] Affidavit of Dr F affirmed 18 June 2019, p 8.
Dr F indicates that the mother has been prescribed medication to improve her mood from the onset of her condition in 2010, and that she has always been compliant with medication and advice. He says that she attends her medical appointments regularly. He believes that depression is a life-long condition for the mother, that she is not always depressed, but that she will always be prone to depression.
Dr F says:
Her children have been a driving force for her, and it actually helped her function better during times when her condition has been worse. I have never had any concerns about her parenting ability or her ability to continue functioning during the bad times. Her children have always appeared well cared for and loved. I have never been concerned about any risk of harm to her children or others, even during the bad times. While Ms Malberg has had frequent thoughts of self-harm in the past and present, she has never actually self-harmed. Thoughts of self-harm are common in people with depression, but usually these thoughts are of a passive nature, without any actual desire or intent to self-harm.[38]
[38] Affidavit of Dr F affirmed 18 June 2019, p 9.
The mother also relies on an affidavit by her psychiatrist, Dr G. Dr G attaches a report dated 27 May 2019 and a supplementary letter dated 17 June 2019. He indicates that he had consultations with the mother every two or three months between 17 February 2012 and 13 March 2015 in relation to a postnatal relapse of her depressive illness.
He had further consultations with the mother beginning on 26 April 2017 and in August, September and October of 2018. At a consultation on 16 November 2018, he found the mother to be improving, and at a consultation on 28 December 2018, he found her even more improved in consequence of having established her own residence separate from the father. He had further consultations with the mother on 20 February, 22 May and 2 August 2019 and found her condition improved on those occasions over what he had observed throughout 2017 and 2018.
Dr G advises that he has diagnosed the mother with recurrent major depressive episodes and anxiety symptoms reactive to her circumstances, the anxiety symptoms not being a separate diagnosis, but part of her major depressive illness.[39] He indicates that the mother suffers from sleep apnoea and may suffer from hypersomnolence, those conditions being treated by specialist treaters. He indicates that he is not aware of the mother ever being non-compliant with her medication and advises his prognosis that the mother’s depression is less likely to recur in the future, and that any risk of the mother self-harming or harming others is “quite low”.[40]
[39] Affidavit of Dr G affirmed 19 June 2019, p 12.
[40] Affidavit of Dr G affirmed 19 June 2019, p 13.
The subpoena materials referred to by the parties and the ICL on submissions, are documents produced on subpoena by:
a)The then-named Department of Family and Community Services;
b)S Medical Centre, where Dr G practices,
c)T Medical Centre, where Dr F practices;
d)Region U Local Health District (in relation to O Hospital, Region O Community Mental Health and O Hospital’s department of respiratory and sleep medicine); and
e)V Psychology, where the mother’s psychologist, Ms N, practises. On 30 May 2019, Ms N expressed in a report to the mother’s GP that, in her opinion, the mother had made “extensive improvement in wellbeing since living independently of her ex-husband.”
The Child Dispute Conference Memorandum to Court
In the course of the interview with the family consultant for the Child Dispute Conference, the parents were interviewed separately. The consultant noted the issues raised by the father relating to asserted risk to the children presented by the mother’s mental health issues, and the mother’s assertions that she had been the victim of family violence perpetrated by the father.
Importantly, the family consultant noted that, “The parents commented that changeovers are mostly amicable,”[41] and “The parents said that they can communicate amicably via text message.”[42] The Memorandum notes that the parents agreed to have shared parental responsibility for the children. The consultant noted that, in consequence of the serious allegations raised by the father relating to the mother’s mental health issues, a comprehensive assessment might assist the Court in making future parenting arrangements. The Child Dispute Conference occurred prior to the filing by the mother of the affidavits by Dr F and Dr G.
[41] Child Dispute Conference Memorandum to Court dated 21 January 2019, p 4.
[42] Child Dispute Conference Memorandum to Court dated 21 January 2019, p 4.
The law
In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act. That applies to interim hearings on parenting issues.[43]
[43] MRR & GR (2010) 240 CLR 461; Goode & Goode (2006) FLC 93-286; Marvel & Marvel (2010) 240 FLR 367.
The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders.[44] That section also contains the principles behind those objects. In this matter I have considered those objects and the principles behind those objects.
[44] Family Law Act 1975 (Cth) s 60B.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper.[45] The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[46]
[45] Family Law Act 1975 (Cth) s 65D(1).
[46] Family Law Act 1975 (Cth) s 65D(2).
In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings. [47]
[47] Family Law Act 1975 (Cth) s 60CC.
Section 61DA provides that 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.[48]
[48] Family Law Act 1975 (Cth) s 61DA.
The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[49]
[49] Family Law Act 1975 (Cth) s 60B.
When the Court is considering parenting matters on the interim basis the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making the order.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DAA, the Court must consider:
a)Whether the child spending equal time with each parent would be in the best interest of the child;[50] and
b)Whether the child spending equal time with each of the parents is reasonably practicable.[51]
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[52]
[50] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[51] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[52] Family Law Act 1975 (Cth) s 65DAA(1)(c).
If the Court does not make an order for the child to spend equal time with each of the parents, then the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if the answer to both is yes, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.
What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes days that fall on weekends and holidays and days that do not fall on weekends or holidays, and the child being able to be involved in occasions and events special to the parents and the parents being able to be involved in occasions and events of particular significance to the child and in the child’s daily routine.
If the Court does not make an order for the child to spend substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child, per section 65D.
As to what is ‘proper’ and how the Court’s discretion is to be exercised I note the comments of the Full Court of the Family Court of Australia in the recent decision of Grella & Jamieson:[53]
A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[54]
[53] Grella & Jamieson [2017] FamCAFC 21.
[54] Grella & Jamieson [2017] FamCAFC 21, [18].
There is much jurisprudence on the issue of risk in parenting proceedings. The jurisprudence may be simplified by saying that where risks are asserted, the task of the Court is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, as such a finding is rarely open to the Court on the evidence and most particularly in interim parenting proceedings replete with contested evidence.
Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
a)Assess whether that risk is an acceptable risk or an unacceptable risk;
b)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
c)Decide what orders are proper in all the circumstances in the best interests of the child.
Detailed exposition of the treatment of risk in parenting matters can be found in the decision of the High Court in M & M[55] and the decisions of the Full Court of the Family Court of Australia in A & A & The Child Representative,[56] Napier & Hepburn,[57] Johnson & Page,[58] Deiter & Deiter,[59] and Eaby & Speelman.[60]
[55] M & M (1988) FLC 91-973.
[56] A & A & The Child Representative (1998) 22 FamLR 756, [3.23] to [3.25].
[57] Napier & Hepburn (2006) FLC 93-303.
[58] Johnson & Page (2007) FLC 93-344.
[59] Deiter & Deiter [2011] FamCAFC 82, [61].
[60] Eaby & Speelman [2015] FamCAFC 104.
Where there is contested evidence in an interim hearing the Court is not always able to make a finding, but must do what can be done on the basis of agreed facts and any contested evidence where there is sufficient corroboration on one side to enable a finding. This is to enable the Court to perform the function of the Court and resolve any interim issues with the best interests of the child as the paramount consideration, and make whatever orders are then considered proper.
In SS & AH,[61] in the context of discussing the obligations of the Court whilst conducting interim children’s proceedings where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned, the Court observed:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.[62]
[61] SS & AH [2010] FamCAFC 13.
[62] SS & AH [2010] FamCAFC 13, [100].
As noted by the Full Court of the Family Court of Australia in Eaby & Speelman,[63] this approach “enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.”[64]
[63] Eaby & Speelman [2015] FamCAFC 104.
[64] Eaby & Speelman [2015] FamCAFC 104, [19].
Section 60CC – the primary considerations
Section 60CC of the Act sets out the matters the Court must consider in determining what is in the children’s best interests, the children’s best interests being the paramount consideration in the making of any parenting order.[65]
[65] Family Law Act 1975 (Cth) s 60CA.
The primary considerations in section 60CC are the benefit to the children of having a meaningful relationship with both of their parents and any need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[66] Subsection (2A) mandates that the Court must give greater weight to the consideration relating to any need to protect the children over the consideration of the benefit to the children of having a meaningful relationship with both of their parents.
[66] Family Law Act 1975 (Cth) s 60CC(2).
The children currently have a meaningful relationship with both of their parents.[67] On the evidence, it is a close and loving relationship with each of their parents. Unless there is an unacceptable risk to the children that cannot be mitigated by the making of appropriate orders, it is patently in the best interests of the children to continue to enjoy and to develop their meaningful relationship with each of their parents.
[67] Family Law Act 1975 (Cth) s 60CC(2)(a).
It is asserted by the father that there is an unacceptable risk to the children in spending time with their mother in consequence of her mental health issues and her sleep disorder issues. Both those issues have led the father to assert that the children may be subject to neglect when in their mother’s care, and, that if the mother is in the grip of an acute mental health crisis through escalation of her depression, she may harm the children.
The history of the mother’s mental illness, and the incidents recounted by the father and by the mother through the period of their cohabitation that relates to the mother’s mental illness, have been outlined in the summary of evidence earlier in these reasons. What stands out from the evidence is that the mother does suffer from a recurrent major depressive illness, but that:
a)She has never self-harmed;
b)She has never harmed any other person as a consequence of that illness;
c)She has always sought appropriate help and treatment from telephone Lifeline services (including Beyond Blue), her general practitioner, her psychiatrist to whom she has been referred and/or her psychologist to whom she has been referred, including immediately seeking such help from health professionals on suffering an acute episode in her depressive illness;
d)Her attendance upon her general practitioner, so that her depressive illness can be monitored, has been very regular;
e)There is no evidence whatsoever that she has ever been other than fully compliant with her medication;
f)From the time the father resumed employment, after a two-year hiatus sometime in 2011 until he left employment in August 2018, the father was content to leave the children in the mother’s care, including in relation to collecting them from school each day; and
g)The father was content throughout the whole of their period of cohabitation to have the mother be the only motor vehicle driver and continued to be so even after she suffered two anxiety attacks while driving the father and the children.
The father proposes that the unacceptable risk that he asserts the mother presents to the children, by reason of her mental health issues and her sleep disorder, be mitigated by an order that any time the mother spends with the children not include any overnight time and that it be supervised. He seeks that such supervisions be conducted by him (or another person or organisation acceptable to him) until such time as the mother can demonstrate to him that she does not pose an unacceptable risk to the children, due to her mental health condition.
Such an order would, of course, leave the assessment of risk and the necessity for continuation of the supervision order entirely in the hands of the father. That is not an appropriate circumstance for these parents and these children.
I have carefully considered the evidence of the parties and the evidence given by the mother’s general practitioner and her treating psychiatrist, and I find that the mother does not present an unacceptable risk to the children by reason of her mental health issues or by reason of her sleep disorder.
In relation to the mother’s sleep disorder, the mother has had extensive treatment and now uses a CPAP machine during sleep. The parents live in adjoining unit blocks and, if necessary, the children will be able to summon the assistance of the father very close by in the night if needed.
I further note that there is no evidence that the mother cannot be woken by the children if needed during the night.
I find that there is no basis upon which to impose supervision upon the mother’s time with the children.
In the Child Dispute Conference memorandum, the father expresses some concern that the mother may drive the children in a motor vehicle after she has consumed alcohol to the extent where it is unsafe. The mother currently does not hold a drivers licence and does not drive. The mother indicated, in the submissions on her behalf, that she would be accepting of an order restraining her from driving the children at any time.
The mother indicated, in submissions on her behalf, that she would be accepting of an order that she attend regularly upon her general practitioner and follow all recommendations in relation to treatment and medication and in relation to referral to other health professionals, including to her psychiatrist, and that she remain compliant with her medication.
I find that it is appropriate to make orders to that effect, so as to maintain what I have found to be the current circumstance of the mother not presenting an unacceptable risk to the children.[68]
[68] Family Law Act 1975 (Cth) s 60CC(2)(b).
Section 60CC – the additional considerations
At the time of the interim hearing, the children were nine years and seven months of age, and they had not been given an opportunity to express their views in any formal manner. Their views were not expressed in submissions through the ICL, and that statement is in no way a criticism.
I am able to find, on the basis of the whole of the evidence in this matter, that the children want a relationship with both of their parents, the children love both of their parents and are loved by both of their parents, and that they are happy to spend time with both of their parents, including overnight time with their mother.[69]
[69] Family Law Act 1975 (Cth) s 60CC(3)(a).
At nine years of age, any views expressed by the children would be taken into account in the Court’s consideration of what is in the children’s best interests, but would not be a principal or determining factor.
The children are maintained by both of their parents, and I have no evidence of any child support payments in this matter.[70]
[70] Family Law Act 1975 (Cth) s 60CC(3)(ca).
A likely effect of a change in the children’s circumstances by orders being made enabling them to spend overnight occasions with their mother will be an increase in the time they spend with their mother by putting it on a more natural basis.[71] The children will be able to enjoy afternoon and evening time up to bedtime with their mother as they have been, but will then continue on to be put to bed and settled for the night by their mother and to wake up in their mother’s household the next day.
[71] Family Law Act 1975 (Cth) s 60CC(3)(d).
That finding is based on the position put by the mother as her alternate position if orders are not made that the children live with her and spend time with the father as set out in her proposed interim orders in her Amended Response. It is based on her alternate proposal that they be in her care six nights per fortnight and their father’s care eight nights per fortnight.
In the event that orders are made in accordance with the interim orders sought by the father in his Amended Initiating Application, then the time the children spend with their mother would be considerably contracted below what it has been since the parties began living separately, in either December 2018 or January 2019. The father seeks the mother’s time with the children be daytime only from 9.00AM to 5.00PM on one day of each weekend, and each Tuesday for three hours from 3.30PM to 6.30PM. Such a contraction would have a detrimental effect on the relationship between the children and their mother and, as I have found, such a contraction is not warranted, in the absence of there being an unacceptable risk to the children whilst the mother maintains her regular mental health appointments, medication, and complies with her sleep disorder treatments.
In the event that orders were made as sought by the mother in her Minute of Proposed Orders - that the children live with her and spend time with the father each alternate weekend from end of school Friday till start of school Monday, and on Tuesdays and Thursdays from after school till 6.00PM - there would be a considerable change in the children’s circumstances. This is because the children have been in the father’s care on all occasions overnight since the parents began living in separate residences. The proper living arrangements in the best interests of the children will be determined later in these reasons.
There is no practical difficulty or expense in relation to the children spending time with and communicating with their parents, as the parents live in adjoining unit blocks.[72]
[72] Family Law Act 1975 (Cth) s 60CC(3)(e).
In considering the capacity of each of the children’s parents to provide for the children’s needs, including their emotional and intellectual needs, I refer to my finding that, whilst the mother is in the present circumstance of stable mental health and compliance with a medical regime, each of the parents is capable of providing adequately for the children’s needs.[73]
[73] Family Law Act 1975 (Cth) s 60CC(3)(f).
The father’s case is based not only on the asserted unacceptable risk to the children in consequence of the mother’s health issues, but also on an assertion that, due to those health issues, she lacks capacity to properly provide for the children, and that they are at risk of being neglected. I find that in the whole of the evidence, even with much of that evidence being contested, the mother does not lack appropriate parenting capacity, and that she has done and will provide for the children’s needs.[74]
[74] Family Law Act 1975 (Cth) s 60CC(3)(f).
The parents were born into and grew up in different cultures. The children are entitled to enjoy the benefits of connection with and increasing knowledge of both of their cultures.[75] The children’s life in their community provides them with their connection to and developing understanding of their father’s culture. The children’s increased time with their mother as a consequence of these interim proceedings and their attendance at Country J school provides them with the opportunity for connection with and developing understanding of their Country J culture and heritage.
[75] Family Law Act 1975 (Cth) s 60CC(3)(g).
In the future, it may be possible for the children to enjoy further connection with that heritage by further visits to the mother’s family in Country J. In terms of the children’s connection to their Country J culture and recognising the regime that has subsisted between the parents for the children for some time up to the interim hearing, I find that it is appropriate to make orders that enable the children to continue their attendance at Country J school on Saturdays.
I find on the evidence that each of the parents has displayed an appropriate attitude to the children and the responsibilities of parenthood.[76] The father has restricted the time the children spend with their mother. He has done so, on the evidence, out of his concern arising from the mother’s history of mental health issues and sleep disorder. I have found that those issues do not present an unacceptable risk to the children, and that, therefore, orders for supervision of the mother’s time with the children and orders that do not provide for the mother to have overnight time with the children are not required. That does not mean that the father has not been acting in accordance with his own honest beliefs in relation to what risks he considers to be presented to the children and what needs to be done to address those risks.
[76] Family Law Act 1975 (Cth) s 60CC(3)(i).
The mother has given evidence of family violence, including what she asserts is controlling and coercive family violence of a financial nature perpetrated by the husband.[77] She also gives evidence of two incidents of physical violence toward her by the father, with some corroboration through the mother’s contemporaneous reports to then-named Department of Family Community Services and in the evidence of her sister-in-law, Ms H, and the father denies those occasions.
[77] Family Law Act 1975 (Cth) s 60CC(3)(j).
The father asserts, in a generalised way, that the mother hit him on occasions early in the relationship, and that, on one occasion, he shoved the mother in an attempt to stop her from hitting him, which may have been the occasion referred to by the mother as occurring in February 2010 when she was pushed by the father and she fell back on the floor.
The father denies that he was financially controlling toward the mother.
The mother asserts that she was forced by the father to engage in sexual activity against her will. This assertion is denied by the father.
Though it is not open to the Court to make findings on an interim basis on matters of contested evidence unless there is sufficient other evidence of a corroborative or other nature that makes it safe to make a finding, the assertions of family violence must not be simply disregarded by the Court on interim hearing on the basis that the evidence is contested, or that no finding is possible to the civil standard of proof.
I take notice of the assertions made by each of the parties in relation to family violence and the denials made by the parties. I find it is likely that family violence did occur on the two incidents referred to by the mother, one in February 2010 and the other in November 2017, being physical family violence by the father toward the mother. I find that the likelihood that family violence did so occur does not lead to a need for any specific orders to be made protecting the children or either of the parents from family violence.[78]
[78] Family Law Act 1975 (Cth) s 60CC(3)(j).
There is no family violence order that applies or has applied in relation to this family.[79]
[79] Family Law Act 1975 (Cth) s 60CC(3)(k).
Parental responsibility
Section 61DA of the Act mandates that there is a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for them.[80] That presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child.[81]
[80] Family Law Act 1975 (Cth) s 61DA(1).
[81] Family Law Act 1975 (Cth) s 61DA(2).
I have found that it is likely that there has been family violence perpetrated by the father and on that basis at this interim stage I find that there are reasonable grounds to believe that a parent of the child has engaged in family violence. The presumption, therefore, does not apply.
The father seeks an interim order that the parties have equal shared parental responsibility. The mother does not seek that specific order, but the family consultant notes in the Child Dispute Conference memorandum that, as at 21 January 2019, there was agreement between the parties to “have shared parental responsibility for the children”.[82]
[82] Child Dispute Conference Memorandum to Court dated 21 January 2019, p 4.
The family consultant also notes that the parents said that they can communicate amicably via text message. There is nothing in the evidence to indicate that the parents cannot communicate effectively and consult in relation to issues going to long-term care, welfare and development of the children when necessary. The next issue likely to arise will be in relation to the high school to be attended by the children.
I find that while the presumption does not apply, it is in the best interests of the children for the parents to have equal shared parental responsibility for them. Accordingly, I will make an order to that effect on the interim basis.
Section 65DAA – equal time or substantial and significant time
As I will make an interim parenting order that provides that the parents are to have equal shared parental responsibility for the children, I must now consider whether the children spending equal time with each of their parents would be in their best interests, and consider whether the children spending equal time with each of their parents is reasonably practicable. If I find that it is in the children’s best interests and reasonably practicable, I must then consider making an order for the children to spend equal time with each of their parents.[83]
[83] Family Law Act 1975 (Cth) s 65DAA.
The orders sought by the father are for the children to spend almost all of their time with him, and to spend time with the mother that falls well below what is identified as substantial and significant time in section 65DAA(3) of the Act. Similarly, the mother seeks an order that the children live with her and spend substantial and significant time with the father, and, in her alternate proposal, if the Court finds that an order that the children live with her is not appropriate, she seeks that the care of the children be shared between the parties. The arrangement she is seeking is that they spend 6 nights per fortnight with herself and the remainder of the fortnight with the father.
Until the interim hearing, the children had not been spending overnight time with their mother since the parents commenced living in separate residences. In view of the orders sought by the parties in their applications, and also taking into account the alternate proposal put by the mother in submissions on her behalf, I find that it is not in the children’s best interests to spend equal time with each of their parents. In addition, though it is certainly reasonably practicable that they do so, I will not go on to consider making an order to that effect.
Is it in the children’s best interests for them to spend substantial and significant time with each of their parents, and is it reasonably practicable for the children to spend substantial and significant time with each of their parents? If so, I must consider making an order to that effect.[84]
[84] Family Law Act 1975 (Cth) s 65DAA(2).
The care of the children has been shared for at least the 12 months up to the time of the interim hearing on the basis that they were in their father’s care in the daytime on Monday, Wednesday, Friday and Sunday afternoon, and on each night every week, and that they were in their mother’s care during the daytime on Tuesday, Thursday, Saturday and on Sunday morning. I have found that it is appropriate that the children spend overnight time with their mother, as I have found that there is no unacceptable risk and that the emergence of an unacceptable risk can be prevented by appropriate orders.
On that basis, I find that it is in the children’s best interest that they spend substantial and significant time with each of their parents.[85] Given the proximity of each of the parents’ residence to the other, it is reasonably practicable that the children spend substantial and significant time with each of their parents.[86]
[85] Family Law Act 1975 (Cth) s 65DAA(2)(c).
[86] Family Law Act 1975 (Cth) s 65DAA(2)(d).
Accordingly, the orders that I will make for the care of the children will provide that they spend substantial and significant time with each of their parents. In that regard, I find that the proposal put by the mother as an alternative to an order that they live with her and spend time with the father is the care arrangement most proper to be made in the children’s best interests. That is, that they live between their parents in the following arrangement:
a)With their father from 2.00PM Sunday until 8.00AM Tuesday;
b)With their mother from 8.00AM Tuesday until start of school Wednesday;
c)With their father from start of school Wednesday until end of school on Thursday;
d)With their mother from end of school on Thursday to 8.00PM on Saturday;
e)With their father from 8.00PM on Saturday until 8.00AM on Sunday; and
f)With their mother from 8.00AM until 2.00PM on Sunday.
That is an arrangement of three nights per week with their mother and four nights per week with their father, and provides their mother with the ability to take the children to Country J school on Saturday and to church on Sunday.
The father in his application for interim orders did not seek any extra time between the mother and the children during school holidays. The mother on her part sought that the school holidays be shared equally between the parents. I find that it is appropriate to make parenting orders as sought by the mother relating to school holidays, and that they be shared equally between the parties as agreed or if not agreed on a first half/second half basis for school holidays at the end of Terms 1, 2 and 3, and on a week-about basis for the Christmas school holidays.
In relation to special occasions, being the children’s birthdays, Mother’s Day, Father’s Day and the Christmas period, I find that it is appropriate to make specific orders to ensure that the children spend time with their parents as appropriate to the occasion.
In relation to changeovers that do not occur at school, I find, given the proximity of the parents’ places of residence, that it is appropriate that changeovers occur at the front entrance to the parties’ respective unit blocks, not at the doors of the parties’ respective units, with the parent into whose care the children are moving attending at the other parent’s unit block entrance to receive the children.
The parties agree in relation to the information orders to be made and in relation to the making of a non-denigration order.
I find on the evidence that it is not appropriate in the children’s best interests to make orders restraining each of the parents from removing the children from the other parent’s care, or to make an order restraining the father from entering any part of the premises of the unit block where the mother has the unit in which she resides.
I find that it is appropriate to make an order restraining the parties from discussing these proceedings with the children, allowing the children to see any document filed in or in association with these proceedings, and from allowing any other party to do those things.
As I have indicated earlier, it is in the children’s best interests that I make an order that the mother continue with regular attendance upon her general practitioner and follow all recommendations and treatments, including for attendance upon her psychiatrist or other health professionals as referred. The mother must also remain compliant with her medication regime prescribed from time to time. I have also found that it is appropriate to make an order that the mother not drive any motor vehicle in which the children are being conveyed.
Financial issues
I have had regard to the evidence of each of the parties in relation to the financial history of the relationship and the current financial circumstances and their assets and liabilities. The parties do not own any real property, and the savings that had accrued to the parties at the time of their separation have been expended by the husband on living expenses.
I find that the only assets of any real value that may be adjusted between the parties under section 79 of the Act are their entitlement to superannuation benefits. The mother superannuation entitlements have a value as stated in her Financial Statement of $6658, and the father’s entitlements have a value as stated in his Financial Statement of $44,050 as at 30 June 2018 for Super Fund B, and $11,329 as at 31 December 2018 for Super Fund R.
The case put by the mother for a flagging order is that it is open to the father to seek release of part of his superannuation entitlements under hardship provisions. That is particularly topical at the present time. The mother seeks final property settlement orders providing to her a superannuation split with a base amount of $46,000 from the father’s Super Fund B account, and a superannuation split to her with a base amount of $12,000 from the father’s Super Fund R.
The mother seeks a flagging order only in relation to the husband’s entitlement in the Super Fund B, the value of which would not be adequate to satisfy the superannuation splitting orders sought by the mother in relation to that fund, let alone the amount sought by the mother from the father’s Super Fund R.
Nevertheless, that is the order sought by the mother, and I find that it is appropriate to make the flagging order with a view to preserving the minimal property represented by the father’s entitlement in that superannuation fund for consideration in the property settlement matter between the parties.
The application for interim spouse maintenance order sought by the mother in her Amended Response was not pressed by the mother at the interim hearing. On the basis of the Financial Statements filed by each of the parties, that was an appropriate approach to be taken by the mother.
Conclusion
Accordingly, I make the orders set out at the start of these reasons.
I certify that the preceding one hundred and fifty three (153) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 25 June 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Remedies
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Procedural Fairness
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