Manson & Manson

[2021] FedCFamC1F 210

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Manson & Manson [2021] FedCFamC1F 210

File number(s):

SYC 8276 of 2018

Judgment of:

REES J

Date of judgment:

19 November 2021

Catchwords:

FAMILY LAW – PARENTING – Where the child has had minimal contact with the father for the past three years – Where the child has an enmeshed relationship with the mother and maternal grandmother – Where the child does not wish to spend time, or communicate, with the father – Where it is not practically possible to change the child’s residence – No orders regulating time the child spends with the father.
FAMILY LAW – PROPERTY – Contributions assessed as equal – 10 per cent adjustment in favour of the wife pursuant to s 75(2) of the Family Law Act 1975 (Cth) – Wife to receive 60 per cent of the net assets.

Legislation:

Child Support (Assessment) Act 1989 (Cth) s 117

Family Law Act 1975 (Cth) s 60CC(2)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.13

Cases cited:

Lesley & Lesley [2015] FamCA 894

Division:

Division 1 First Instance

Number of paragraphs:

198

Date of hearing:

8 – 9 November 2021

Place:

Sydney

Counsel for the Applicant:

Mr Harper

Solicitor for the Applicant:

John De Mestre & Co Pty Ltd

Counsel for the Respondent:

Mr Jauncey

Solicitor for the Respondent:

Jack Rigg Solicitors

ORDERS

SYC 8276 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MANSON

Applicant

AND:

MS MANSON

Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	19 NOVEMBER 2021

THE COURT ORDERS:

1.That X (“X”) born on … 2010 live with the wife who shall have sole parental responsibility.

2.That the wife, as soon as practicable, notify the husband in the event that X receives medical treatment; provide to him the contact details of the treating practitioner and authorise the treating practitioner to provide to the husband any information he seeks about X’s medical condition or treatment.

3.That the wife authorise any school which X attends to provide to the husband any information usually provided to a parent.

4.That the husband may attend any school, sport or extracurricular events which are usually attended by parents.

5.That each parent ensure that at all times the other is provided with an email address and telephone number so that each can contact the other.

6.That the wife ensure that, at all times, the husband is provided with an email address and a mobile phone number where the husband can contact X.

7.That the wife is restrained in interfering in communication between the husband and X.

8.That each parent do all things required to ensure that X has a valid Australian passport.

9.That each of the husband and the wife forthwith do all acts and things required to sell the property at E Street, Suburb D, Qld and to pay the proceeds of sale, after deduction of costs of sale, in reduction of the mortgage debt secured over the property at K Street, Suburb L, NSW (“Suburb L”).

10.That each of the husband and the wife do all things required to pay the balance of the B Bank Offset Account #...98 in reduction of the mortgage over Suburb L.

11.That if the wife elects to purchase the husband’s interest in Suburb L, she shall, within four weeks of the date of these orders, notify the husband that she wishes to purchase his interest in Suburb L and simultaneously provide him with documentary confirmation from a lending institution that finance has been approved sufficient to discharge the mortgage over Suburb L and to pay to the husband the amount referred to in Order 13.

12.That in the event that the wife elects to purchase the husband’s interest in Suburb L, she shall, within six weeks of the date of these orders, discharge the mortgage currently secured over Suburb L and pay to the husband the sum calculated in accordance with Order 13 and the husband shall sign all documents required to effect the discharge of the current mortgage and the transfer of his interest in Suburb L to the wife.

13.That the sum to be paid to the husband shall be 40 per cent of the amount calculated by deducting from the sum of $2,700,000 the balance of the current mortgage secured over Suburb L on the date of settlement, together with a further amount of $4,200.

14.That if the wife does not make the election provided in Orders 11 and 12, or fails to do so within the time limits prescribed in Orders 11 and 12, or fails to pay the sum specified in Order 13 to the husband within the time specified, then each of the husband and the wife shall do all acts required to sell the property at Suburb L and to distribute the net proceeds of sale, after payment of selling costs and discharge of the current registered mortgage, in the following manner and priority:

(a)In payment of 40 per cent to the husband.

(b)In payment of a further sum of $4,200 to the husband.

(c)In payment of the balance to the wife.

15.That other than as provided in these orders, each party shall be solely entitled to all items of property in his or her possession at the date of the orders.

IT IS NOTED

16.That pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

REES J:

1. Mr Manson (“the husband”) and Ms Manson (“the wife”), married in 2004 and separated on 29 October 2018. They have one child, X (“X”) who was born in 2010. After the separation, X lived with his mother and he has not spent time with his father since September 2019, other than a short period of supervised time on 13 September 2020.

2. The applications for determination relate both to the parenting arrangements for X and to the adjustment of their respective property interests.

3. Each parent seeks sole parental responsibility for X. I understand that it is the position of each of them that the parent with whom X lives should have sole parental responsibility for him.

4. The husband seeks a division of their property as to 60 per cent to him and an order that would provide for X to live with him and spend no time with the wife for a period of six weeks. Thereafter the husband proposes that X spend alternate weekends and half of the school holidays with the wife.

5. The wife seeks an overall apportionment of 65 per cent of the property in her favour in which she would retain K Street, Suburb L, NSW (“the Suburb L property”). In relation to parenting orders, the wife seeks that X live with her and spend time with the husband, increasing from two hours each week under professional supervision to alternate weekends, unsupervised, by August 2022 when X would also spend half of the short school holidays and two weeks of the Christmas holidays with the husband.

   THE TRIAL

6. The husband relied upon an affidavit sworn by him on 4 August 2021 and a Financial Statement sworn on 5 February 2021.

7. The wife relied upon an affidavit sworn by her on 5 August 2021. She did not rely on a Financial Statement.

8. Dr F, a child and family psychiatrist, was appointed single expert and prepared a report dated 23 April 2021. Dr F was not required by either party for cross-examination. Consequently, his evidence is accepted as unchallenged.

9. The Suburb L property was valued by a single expert valuer at $2.7 million.

10. In order to put their respective positions in context, it is necessary to provide some background.

    PARENTING

11. In this portion of the reasons, the parents will be referred to as “the father” and “the mother”.

12. At paragraph 24 of her trial affidavit, the mother deposed:

    We had a loving and happy marriage until 2018.

13. Therefore, in these reasons I will concentrate on the events which occurred after that time.

14. It appears to be uncontentious that, until the parents separated, there was a close and loving relationship between X and his father. So much was clear from X’s interview with

    
    

    Dr F where X spoke positively of his experience of his father before the parents’ separation and from the maternal grandmother’s account to Dr F.

15. In these reasons, there is little said of the father’s behaviour and parenting capacity. There are certainly aspects of the father’s parenting that can be criticised but I accept the unchallenged evidence of Dr F that the father has the capacity to attend to X’s developmental needs, the capacity to attend to X’s intellectual and emotional needs and that, as a parent:

    197.… It was likely that the father’s approach would be less organised and effective. This however should not be considered to be evidence of neglect, abuse or disorder.

16. It was the mother’s attitude and behaviour that was the focus of this determination.

17. The mother, in her trial affidavit, in her oral evidence and in her interactions with Dr F, sought to portray the father as a stalker, a perpetrator of family violence, an alcoholic, suffering from a mental illness, a pathological gambler and liar. None of those allegations was made out by admissible evidence. They were, however, vehemently maintained by the mother throughout her oral evidence.

18. After separation at the end of 2018, the father continued to spend time with X, including overnight time until the last weekend in March 2019 when he took X camping and into the first days of April 2019 while the mother attended a conference interstate. Thereafter, contact between X and his father dwindled and then ceased although the father continued to attend X’s sporting activities and coached his AFL team.

19. In September 2019, the mother told the father that any future contact with X would need to be supervised. He did not agree.

20. In 2020, the mother, knowing that the father did not consent, removed X from his school end enrolled him elsewhere. There then ensued an acrimonious quarrel between the parents about where X would attend secondary school, each proposing a different private school, which continued until the hearing when the parties agreed that he would attend an alternate school where he was awarded a scholarship.

21. In early 2020, there was an exchange of emails which illustrates the tenor of the communication between the parents and the mother’s attitude towards the father. It is clear from the emails that there was also text communication from time to time but the text messages were not in evidence.

22. On … 2020, the father sent an email to the mother saying:

    To ensure X and I get to see each other on his birthday, I would like to propose that you drop him to N Café at 12pm and you can pick him up at 2pm from the Café.

23. The mother responded:

    I’ll have to ask X because he is currently not speaking to you because of your atrocious behaviour towards both he and I on Monday and your compulsive lying to him on Wednesday, and he still says he hates you.

24. The following day the father messaged:

    I spoke with X briefly this morning about his birthday.

    Can you please confirm that you will drop X at 12pm at N Café and return to pick him up at 2pm.

25. The mother did not respond.

26. On … 2020, the father sent an email stating:

    I will be at the N Café tomorrow at 12pm to see X for his birthday.

27. The mother did not respond.

28. On 18 February 2020, the father sent an email to the mother asking to see X on Wednesday 19 February 2020 and for X to sleep over at his place on Friday 21 February 2020.

29. The father concluded:

    I also wanted to highlight that I haven’t been able to speak with X on his mobile phone since Saturday 15 February. Can you please ensure X speaks with me tomorrow. It’s in X’s best interest to have a meaningful relationship with both parents.

30. The mother responded:

    What an impaired fool you are to be telling me you’ve been text messaging me “many” times when I have very clearly put in writing (twice!) that you are blocked on my phone because you do nothing but abuse and threaten me. You clearly can’t follow this simple instruction, so how the hell could you follow any instruction about X and his care? Well we both know the answer to that question is that you can’t, and you prove that prior to Christmas with your irresponsible action. I’ve also very clearly stated in writing on two occasions that correspondence is to come by email, because as the police and women’s domestic violence service told me, then I don’t have to be exposed to your constant barrage of domestic abuse and threats whenever you get pissed off and decide to target me and blame me for your own foul actions, and that way I can control when or if I read your crap.

    And how delusional are you? You are absolutely kidding yourself if you think I will allow your stalking and abusive family members to supervise your behaviour and time with X! They are just as bad as you with their disgusting and threatening behaviour - what a sick family you all are. X hates them all for their scary stalking drive-byes, your father’s abuse of me out in public (I’m really scarred to imagine what he would have said and done if so many people weren’t around), and your bitchy mothers abuse and ridicule of X in public too. You all have no shame and all clearly need to attend an anger and aggression management program.

    I’ve already responded to your ridiculous request regarding a sleep over, and as if I would allow X to be exposed to you and your old whore whom you’ve kept hidden for years with your sordid affair and behaviour! X wants to call the police to report you for being married to me and having a girlfriend, and he has told you he will never sleep over at your place. And I will never allow X to be exposed to your ugly and dangerous excessive drinking. X hates you and has made it very clear how he feels about you with what he has told trusted teachers and adults, and in his text messages to you. So now you just try and manipulate and blackmail him in person! But I have brought him up too well to make a scene in public when he doesn’t want to spend time with you, so he now concedes for 1 min to pacify you and try to protect me and prevent you from getting aggressive at me. But it doesn’t work does it?

    X doesn’t want to spend time with you and he doesn’t want to speak to you at the moment, and I support him 100% while you are so abusive and aggressive and having manic episodes. So until your scary behaviour changes you’ll have to live with that. Once again I’m telling you to go and get help. You lack any remorse or insight to see how your behaviour has killed your relationship with your son.

    Come up with something else which is safe for X.

    (As per the original)

31. On 19 February 2020, the father responded:

    What you are saying is incorrect. It’s actually very concerning to me, because you have lost focus on what is best for X.

    My messages and interactions with you are always polite. Please keep in mind that you called me 40 times in a 15 minute period on 14 February and you text message me all the time. Please stop your games.

    X deserves to have a meaningful relationship with me. Please stop alienating him from me.

    To ensure that X and I see each other, I propose that X and I go ten pin bowling on Saturday morning between 10am - 12pm. Your mum can supervise, but please note I don’t feel this is necessary.

    Please confirm regarding seeing X on Saturday.

    (In cross-examination, the mother agreed that she had called the father 40 times as he asserted).

32. The mother responded:

    What’s incorrect, you compulsively lying ass?

33. The father replied:

    I’ve asked you many times to stop the unnecessary rudeness. Please focus on X.

    Your comments about me, my family, X etc are incorrect.

    X deserves to have a meaningful relationship with me. It’s in his best interest.

    Please confirm regarding my proposal for X and I to see each other on Saturday at bowling.

34. On 20 February 2020, the mother responded:

    I am nothing but focused on X - who is the sole parent caring and providing for him? Certainly not you, because you are the self-centred parent who is focused on nothing but yourself and your addictive compulsions of abuse, alcoholism, gambling, your anxiety and paranoia, split personality, stealing and hiding money, and your affair/s with your mistress/es. You are a domestic violence perpetrator and that label will be with you for ever. You are trying to play the innocent victim and pretend you are a good guy, but you have zero insight and lack any remorse for the fact that your wife and child have to be supported by the police domestic violence liaison officer and women’s domestic violence services against you. And you just can’t help yourself - you even threatened me at court on Monday multiple times. You need serious counselling and support. And you absolutely refuse to communicate with either X or I, and I have extensive proof of all the phone calls you’ve ignored (last week as a prime example which I did deliberately to prove how ignorant you are in relation to X and his high school and his feelings about your adulteration), text messages from X which you’ve not replied to (as a prime example you have ignored 26 text messages from X since last Friday 14/2), and all of the texts and emails I have sent over the last 15 months to both you and your incompetent lawyers which have been ignored. More cases in points are my phone calls and email regarding X’s
    high school and your psychiatric evaluation which have all been ignored. You don’t actually care at all about X and you’ve proven this time and time again this last year, particularly in regards to his schooling and health needs - you even deny he has ADHD when I have a folder full of medical proof! I say bring on court so I can prove how much of a compulsively lying ass you and your lawyer are and how false all of your affidavits are. Your prime motivation is to control me and when you don’t succeed then you don’t really give a stuff about what happens to X. You haven’t got a single link to stand on for any of this. I told you before that the bad guy, the liar, and the psychopath never wins.

    
    

    My comments about you, your abusive and stalking family, and X’s text messages are also absolutely correct - I had all the evidence in court on Monday to prove the same, and I will make sure I keep bringing the evidence of this to every hearing over the next 4 years.

    Nothing about your interactions with me are ‘polite’ and my evidence of police records, text messages, affidavits, audio recordings, Womens domestic violence records, photos and videos will prove that to the court. And again, you keep talking about the fact you’ve sent text messages to me when you have been advised multiple times that you are blocked on my phone because you are a domestic abuser! I have screen shots of proof of my test messages advising you of the same, and I had them in court with me on Monday, because I know you so well and I know how impaired you are and that you would claim shit against me just like all of your lies in every document you’ve ever provided to court. I am more than happy to provide your lawyers with copies of these text messages if you wish. You seem to forget how meticulous I am in relation to records and how impaired and careless you have been with you behaviour and communication.

    What X deserves is a safe and stable home and life with every opportunity given to him and that is what I am doing, even when his father has financially disowned him and deliberately emotionally torments him and exposes him to family domestic violence. And what X deserves and needs is to be protected from an adult who is mentally impaired, an alcoholic, a domestic abuser, who is neglectful and cannot communicate. And it doesn’t matter one bit that you are related by blood, as the
    Dept of Communities & Justice will never allow a child to be left in the unsupervised care of someone like you. And X will never have a meaningful relationship with a father who is abusive, deliberately tormentive and neglectful. So I don’t really care if you think supervision is “unnecessary” and neither do DCJ. It is my responsibility to keep X safe from harm because aside from it bring my role as his mother, it is against the law to do otherwise. But you don’t care about the law - you already broke it when you lied and threatened X’s school and didn’t allow him to be enrolled in any school at all for a week. What an f****** up parent you are!

    
    

    I’ll get back to you regarding Saturday.

    (As per the original)

1. The father emailed:

   I look forward to hearing back about X and I spending time together on Saturday.

   I’d appreciate that you stop the unnecessary rudeness in your emails and keep your responses to factual information about X please.

   As you are out tomorrow night at a surf club event:

   *Will X be attending Little A’s tomorrow night?

   *Can you confirm who is looking after X tomorrow night?

   Please note I can take X to Little A’s tomorrow night. Also as you are aware, I’ve offered many times to look after X tomorrow night when you are out.

   X and I haven’t spoken on the phone since Saturday 15 February. Can you please ensure X speaks with me on the phone each night.

2. The mother responded:

   There is nothing “rude” about stating the truth and stating “factual information” about your atrocious behaviour. Every single thing in my email is the truth, and I have evidence to prove the same, so stop being a condescending and controlling bastard and telling me what to do and start acknowledging your problems and sort your shit out. As I’ve said, I will prove to the court the truth to your lies, so bring it on. You’ll never have a relationship with a X or I ever at this rate, and X will be old enough soon to totally block you from his life. It is such a joke that you have absolutely no relationship with your family yet your job title is “relationship manager”!

   You’ve once again conveniently (or more likely deliberately) not acknowledged anything about X and high school and your psychiatric evaluation. You are gambling on X’s life and that will not be tolerated by X and I or the court.

   X is not attending Little A’s because he is unwell. When I am at the surf club event he will be cared for by my family.

   As you are very well aware, you are too sick and impaired to have X in your unsupervised care and I will never risk his safety and wellbeing with you. So stop your ridiculous requests and invest your time and effort in something more productive like seeking professional help.

   You only have yourself to blame for X refusing to speak to you. I will not force him to speak with you when he has made it very clear that he hates you and does not want to speak with you because you have betrayed him and continued to ignore his text messages. He is disgusted by your behaviour, but you are too sick and impaired to give a shit or change your behaviour.

   I will not correspond with you further on these issues - I have communicated very clearly and it is not my problem that you are too impaired to comprehend the consequences of your actions. You can get your lawyers to act on your behalf and then they can ignore my responses just as they always do and then I will have more official records to show the court. I am sick of communicating with someone who won’t read my responses and refuses to communicate about the “real issues”.

   (As per the original)

3. The father replied:

   You state below that X is unwell. Can you please confirm what is wrong with him? Is he off school sick today?

   I look forward to hearing back about X and I spending time together on Saturday.

4. The mother wrote:

   Why would you care that he is unwell now? You haven’t cared for the last year, you haven’t showed up to his medical appointments, you haven’t responded to his medical report, you haven’t paid a cent for his private health insurance or therapy or medications, and in fact you deny he has any medical issues and you constantly accuse me of doctor shopping for a fake diagnosis to increase my standing in court (but the court knows that you are the parent who has done that with a fake police report!). You’ve even lied to the court and accused me of ‘alleging’ X has ADHD. Well he has so much more than just that going on, but you don’t give a damn. And then when I got him into a school to address his needs, you lied and threatened the school and had him unenrolled! You are despicable.

   If you want to speak about X you can call me on his mobile, and I am warning you that I will hang up on you if you accuse, threaten or abuse me.

5. The father replied:

   Despite your lengthy response, you didn’t actually say why X is feeling unwell. Please confirm what is wrong with him?

6. The mother responded:

   You’ve once again refused to acknowledge anything I have communicated with you and you clearly can’t read or comprehend what I wrote because it is apparently
   ‘too lengthy’ for you - well tough shit.

   
   

   Read the email again (or don’t).

7. The next morning the father replied:

   You sent me a text message just after midnight last night saying X will be at bowling tomorrow at 10am, but only if he is feeling well enough. It’s disappointing that you still haven’t said why X is feeling unwell. Can you please confirm what is wrong with him?

   As I do every Friday, I attended X’s swimming lesson this morning. It would have been appreciated if you had confirmed that X wasn’t attending.

8. The mother replied:

   What’s your point about my text? Are you just putting it out there as another threat to me?

   I told you to ring me yesterday at 12:52pm if you wanted to discuss X being unwell and you didn’t call because you can’t communicate because of your paranoia and anxiety. It is none of your lawyers business what’s wrong with X, I’m not required to put it writing, and you’ve proved yet again you don’t give a stuff about X and are just trying to get written evidence to use against X and I, and I won’t play your fucked up game.

   You DO NOT attend his swimming every Friday and I am not your secretary and do not have to ‘confirm’ anything with you. You don’t communicate with me so how am I supposed to know your movements? You’ve been sneaking around behind my back for years and I didn’t know your movements then, so why would I know them now? You were notified X was unwell yesterday, you didn’t call, end of story.

9. At 10.12 am the father responded:

   I just called you and there was no answer.

   The fact you didn’t answer is of no surprise and is consistent with the disappointing games you are playing.

   All I’m asking is to understand what’s happening with X please. You state he’s feeling unwell and he’s now not showing up to his sporting events.

   It’s a simple request and surely its possible for you to communicate this via a short email? Please confirm.

10. The mother replied:

    FFS! For the 79th time you have been blocked on my phone which means I do not receive any texts or phone calls from you when you are blocked (see attached for evidence because you are clearly so impaired and cannot comprehend what this means - pay your lawyers some more money to explain it to you). You are blocked because you do nothing but abuse, accuse and threaten me and your email below is further proof of your false accusations.

11. In cross-examination the mother said that “FFS” meant “for fuck’s sake”.

12. The father responded, the last communication in this email chain, in the following terms:

    If I’ve been blocked on your phone, then why would you ask me to call you? And why do you call and continue to send horrible text messages to me?

    I’m really concerned about your behaviour and the fact you are using X in this way.

    Please start focusing on X as he deserves to have a meaningful relationship with me.

13. It is somewhat ironic, and indicative of the mother’s lack of awareness of her own behaviour, that one of the orders she seeks is that:

    13.3Communication must be respectful and must not include any denigration of the other parent or any member of the other parent’s family.

14. The mother was cross-examined about this email chain. She was adamant that her emails were entirely appropriate.

15. Asked whether her correspondence with the father was condescending, the mother disagreed and said:

    I was pointing out his failures and faults. If he perceives that as condescending, so be it.  I actually was saying, “You’ve got a fault here. You did this. You did that.”

16. As to the proposition that her emails were spiteful, the mother said:

    My correspondence was very assertive. I was pointing out his faults, his failures, his irresponsibility, his lack of understanding, compassion, respect… his incompetence… his incapacity to focus on X… Lack of care… Lack of regard... I could leave it at that.

17. The mother did not agree that the tenor of the father’s emails to her was respectful.

18. In relation to the appropriateness of the email which begins “FFS”, the mother said:

    Well, if you look at the string of emails and the correspondence that was happening and the lack of phone calls, the lack of responding to conversations and calls, then, yes, when you get to the 79^th time, I am very frustrated.

    All right. So you were justified in doing that?---I absolutely feel I was There was somebody who was refusing to communicate with me about X. He was refusing to answer questions, who was then putting both of us through turmoil – torment.

19. Further, in relation to the same email the mother’s evidence as to the appropriateness of that communication was:

    Absolutely, when I’m a victim of abuse and I have somebody tormenting me and you get to a point of, as you just showed, what – 13 pages of an email chain where there’s nothing being resolved, I’m at that point of frustration, absolutely. I’ve been financially abused. I’ve been socially abused. I’ve been emotionally abused. I’ve been psychologically abused.  I’m going to stand up for myself and be assertive.

20. The following passage from the transcript illustrates the contention of the father that the mother was playing games:

    HER HONOUR: Ms Manson, I’m sorry. I don’t understand. You’ve told
    [counsel for the father] earlier that you have blocked [the father] on your phone. So how were you getting phone calls from him?---So he was still attempting to – so I don’t know the exact date that I blocked him, but there was about a four-month period of absolute hell of me trying to communicate about X both with him and with his lawyers, and I was getting zero responses from either of them.  They were then coming
    ---

    
    
    

    Well – thank you?--- ---back with the fact that I was abusive by calling---

    How was he ringing you if you had blocked him?---So I don’t know what date I blocked him---

    Thank you?--- ---  but if he–if it was not the blocked period, that he was not calling me back is the problem, but I was calling him.

    I see. Right. So either he was calling you too frequently or he was not calling you back; is that your complaint?---He was not calling me at all.

21. That proposition was put to the mother:

    Now, when you were calling him 40 times on 14 February and then telling him that he couldn’t text you because you had put it in writing twice, can you see how he might have thought that was a game?---No. I believed that he had an aversion to communicating with both X and I and wouldn’t actually put anything in – sorry – say anything to us and communicate with us on the phone.

22. In relation to the email which commences “What an impaired fool you are” the mother denied that she might have lost focus on what was best for X.

23. She said that referring to the father as a compulsive liar was appropriate and justified.

24. The mother’s attitude and views have not changed, as the following passage of evidence illustrates.

    And do you think that’s still the situation?---There has been no supervised access for the last 16 months because the father ceased it twice.  So, unfortunately, we’re in a situation of a holding pattern where nothing has changed.  No matters have been addressed about his behaviour.

    At that time you held the view, did you, that my client was mentally impaired, alcoholic, a domestic abuser and neglectful and cannot communicate?---I still believe that because nothing has changed and nothing has been addressed.

    But you genuinely believed it then?---Yes.

    And you genuinely believe it now?---At the moment I don’t know what’s happening because there has been no communication for 16 months.  We know that he has breached the order about getting an appropriate psychiatric evaluation.  We know that the Court has suggested he needs urine analysis; that hasn’t been addressed.  There are too many issues that have been unaddressed over the last 16 months that we have not progressed.

    Do you think it might be that you just can’t process evidence which disagrees with you?---No. Because we don’t have actual evidence to prove against these facts.

    Do you think the analysis---We don’t have that evidence---

    by Dr F of the CDT results might give you some comfort?---Well it’s interesting that Dr F’s report is very---

    Does it give you comfort---?---different to what the medical---

    Does it---?---other medical doctors have said about that.

    All right?---So there’s a conflict of medical opinion there.

    And which witnesses would be giving evidence about that in these proceedings?---There is nobody here.

25. In relation to the email which stated “You’ve only got yourself to blame for X refusing to speak to you”, the mother said her response was appropriate then and is still appropriate now.

26. On 25 August 2020, orders were made which provided for X to have supervised contact with the father for two hours each Sunday with professional supervision. In the absence of agreement, the supervisor was to be M Contact Centre. There was no agreement.

27. There then followed an exchange of correspondence between the mother, who was representing herself and the solicitors for the father. On 28 August 2020, the mother wrote to the father’s solicitors setting out the list of X’s engagements on Sundays which clashed with Sunday contact. The father’s solicitors wrote to the mother, pointing out that the orders specified that contact be every Sunday. The mother responded “I won’t tolerate being threatened by you”. Her email concluded:

    You have been provided with months of notice ahead of time of possible clashes with X’s schedule, and if your client can’t rearrange his gambling and drinking schedule to accommodate his son on occasional days other than Sundays then that it his problem. You seem to forget that this is about what is best for X, not your clients sick addictions, catering to his lack of insight, abiding by your misguided advice, or allowing him to exert power and control over X. A loving and insightful father wouldn’t do to their child what you are proposing.

28. The first and only supervised contact session occurred on 13 September 2020.  The supervisor reported that X was initially hesitant but “appeared to become more at ease and chatted freely”. The supervision report notes a positive interaction between X and his father and, although X asked to end the session about 40 minutes early, he appeared to agree that in the next session, the following Sunday, he would go bowling with his father. The supervisor reported that, as she walked with X to meet the mother, he talked to her about going bowling next week.

29. The next scheduled visit on 20 September 2020 did not occur. M Contact Centre was unable to arrange for the same supervisor to be present until later in the day. The mother would not agree to another supervisor being present. There then followed a chain of emails between the mother and M Contact Centre culminating in an email on 24 September 2020, from the mother to

    
    

    M Contact Centre stating:

    I am informing you that I am withdrawing my consent for your organisation to provide supervision of the access visits involving my son and his father after your negligent actions and lies putting the safety of X and I at risk, and following the revealing discussions I’ve had about your organisation with the Office of Children’s Guardian and the Department of Communities and Justice, among others.

30. Thereafter, the mother did not comply with the orders which had been made on 25 August 2020 and suggested that the maternal grandmother supervise the father’s time with X.

31. Further attempts at supervised contact were made commencing in January 2021 with a different professional supervisor.

32. On 9 January 2021, the supervisor did not start the session as X said he didn’t want to see his father.

33. On 17 January 2021, the supervisor met with X and gave him gifts from the father which he appeared to enjoy but X declined to speak to or see his father.

34. On 24 January 2021, the supervisor again attempted to persuade X to talk to his father but was unsuccessful. X told the supervisor that his father had “made him change his AFL team” against his will. The mother, in cross-examination, said that she changed X’s team because X was adamant he would not play in a team which was coached by his father. In her affidavit, the mother deposed:

    422.Due to [the father’s] escalating domestic violence, threatening behaviour and stalking of X and I, X refused to play AFL if [the father] was going to be the coach. I had a confidential discussion with the Suburb L AFL club president advising her that X and I were victims of domestic violence and I requested as per X’s request, that he be placed in one of three other teams with a different coach in the same age group… X decided he did not want to play AFL at Suburb L if he had to be in [the father’s] team, and I supported X in this decision.

35. The father cancelled further sessions with the supervisor.

36. Although the mother’s application at the commencement of the trial was for orders that would have X spend unsupervised time with his father on weekends and school holidays, nothing in her evidence suggested that she had any intention of complying with such an order. Her failure to comply with the orders made on 25 August 2020 gives no comfort that she has any regard for orders which do not suit her.

37. The tenor of the mother’s affidavit was no different from that of her emails to the father. It was relentlessly critical and pejorative. For example, the mother deposed:

    263.[The father] has demonstrated impaired decision making, which is a psychological consequence of pathological gambling, in his behaviours of:

    a.Having an extra-marital affair with an older secretary from his workplace;

    b. His refusal to abstain from drinking alcohol for 24 hours in order to have X in his care;

    c. His refusal to give X antibiotics when they had been medically prescribed for X for an infection;

    d. His failure to take X to school and pick him up from school on multiple occasions, including leaving X stranded on the school playground after school;

    e. Running away from police when they were attending for a welfare check of X due to [the father’s] neglect whilst he was gambling;

    f. Breaching court rules by providing the confidential Child Dispute Conference report to his psychiatrist Dr O;

    g. Breaching court orders including obtaining property valuations from an agent he was court ordered against being able to use, and obtaining property valuations from two agents who admitted in writing that they had never seen the properties;

    h. Repeatedly pathologically lying regarding my family’s life and behaviour in his psychiatry assessments.

    264.[The father] has demonstrated impulsivity in social relations with his

    
    

    extra-marital affair, and strained interpersonal relationships with X, family, and myself. These are psychological consequences of pathological gambling.

    265. [The father’s] pathological gambling, pathological lying and alcohol abuse led to the breakdown of our marriage, and subsequent divorce. This is a physical consequence of pathological gambling.

    266. [The father’s] life mirrors his own father in their extra-marital affairs, pathological gambling, alcohol abuse, and obesity.

38. The mother deposed:

    321.[The father] is too pathologically mentally impaired and too fixated on taking out revenge on me to act in X’s best interests and ensure X is enrolled in a high school suitable to his special needs and talents.

39. The mother deposed:

    338.I have serious concerns about the following issues which have not been addressed in the past three years:

    a.        [The father’s] mental health;

    b        [The father’s] alcohol abuse;

    c.         [The father’s] refusal to communicate;

    d.        [The father’s] domestic abuse and threatening behaviour;

    e. [The father’s] irresponsibility and abandonment and failure to provide care and ensure X’s safety;

    f. [The father’s] lack of commitment to parenting X when he has demonstrated that he does not want a relationship with him and the effect of this on X’s wellbeing;

    g. [The father’s] compulsive behaviours of gambling and pathological lying, and the subsequent neglect and impact these behaviours have on X; and

    h.        [The father] lives with a woman who is a stranger to X and I.

1. That affidavit was sworn on 5 August 2021, some three months after the release of Dr F’s report and his recommendation regarding the mother’s attitude to the father.

2. It is difficult to find anything in the mother’s affidavit which is not derogatory of the father. The tenor of the mother’s oral evidence was similarly dismissive and pejorative.

3. Nowhere in the mother’s affidavit does she depose to doing anything to encourage X to spend time with his father. Neither did any of the supervisors report that the mother encouraged X to speak to his father.

4. From the start of her cross-examination, the mother made it clear that she was not committed to the scheme provided by the orders which she sought. Asked whether these were the orders that she said were in X’s best interests, the mother responded:

   This is an order that was written last week with my review. I’m not sure what other orders would be potentially better wording for what would suit X’s needs best.

5. Asked then “These are the orders that you would like her Honour to make…” the mother responded:

   They were the orders that were written last week that I looked at.

6. Directed to answer counsel’s question, the mother said:

   So these were the orders that were written, yes, but I do have concerns. So if there is a way that we can write orders that would protect X’s best interests in his high level competition, then that is what I would like…

   At the moment, are these the orders that you want her Honour to make?---They are the orders that have been written that I understand are the best ones to be made at the time…

7. The mother’s expectations and attitude in relation to future contact are demonstrated in the following passage of cross-examination:

   Would it be right to say, in fact, that you expect the same thing to happen in the future if the supervised time that has happened in the past?  In other words, X saying,
   “I’m not going”?---I don’t know what will happen. X may say that. X may be open, if the father can change his attitude and talk to him and reach out to him. As we heard today, the father has made no attempts to text message him, to call him, to give him any praise or encouragement. X has won gold medals this year. The father very clearly knew that. Another parent had told him and he made no attempts to contact X and say, “Hey, mate, you just won a gold medal. That is phenomenal.  I’m so proud of you. I love you”. Zero attempts.

   
   

   And has X spoke to you about his disappointment that his dad hasn’t done that?---Yes.

   Okay. And have you passed that onto his dad?---There’s zero communication between his father and I, because of domestic violence.

   All right. So X is hurting because he’s not hearing from his dad?---X is not hurting. X is at a point where he’s nunsurplussed about it all.

   Okay?---It’s simply a fact dad doesn’t care.

8. Later in the cross-examination, the mother said that the father needed help to rebuild his relationship with X. She said:

   I think we need to address his (the father’s) mental health issues, his alcoholism and his gambling.  His compulsions.

9. The mother did not view the father’s application as evidence that he wanted to spend time with X. She said:

   I think on the surface he says he wants to but I truly believe for the last three years he hasn’t indicated once that he actually does want to.

10. As to the importance of X’s having a relationship with his father:

    It doesn’t feature as a large issue in your thinking, does it, X having a good relationship with his dad?---I think it’s important that he has a father in his life and a father that will commit to X and give X everything that he needs.

    Right. But you don’t believe this father is that father, do you?---This father has demonstrated over the last three years that he’s not in a state to do that.  I have hope that he will be able to change his mindset and his actions and his behaviours to give X what he needs so that they can have a relationship but, unfortunately, there has been no demonstration of that.

11. The mother was unable to acknowledge that she played any part in X’s rejection of his father:

    [I]f X stays living with you, you won’t do anything to encourage his relationship with his dad, will you?---That’s incorrect.

    Right.  And can I suggest to you that it’s almost as sure as night follows day that if X remains with you he just won’t have a relationship with his dad?---That’s incorrect.  I’ve [tried] to institute supervised visits.  We started with actually the father coming to our house until his issues started escalating and I attempted everything I could to keep that relationship going.  And then I have been very proactive in trying to help support X get to those supervised visits, but there is a situation where as a child he’s absolutely in revolt to his father…

    You don’t see, do you, that you had any role in X not having a relationship with his dad at the moment?---I don’t agree that I’m the cause of the problem.

    Have you been part of the problem?---I don’t agree that I have caused the problems.

    Have you been part of the problem in any way?---I believe that I have done everything I can in the last three years to maintain a relationship to the point where the father ceased it.

    Can I suggest to you that what you mean by that is that you don’t think that you’ve had any role in the fact that X doesn’t presently have a relationship with his dad?---
    I don’t mean that.

    
    

    So what would you have done differently?---I don’t think that I was in my – as you asked yesterday, should I have forced – changed the pattern of the supervised access visits?  I was following the court orders; I was following the contact supervisor’s report.  So to put it onto me that I should have changed the way that the supervision visits should have happened, I think, is very unfair when I’m following the court orders.

    So the answer is nothing?---I’ve done everything that was required of me and I’ve encouraged X, but X is at a point where he has---

    Is the answer nothing?--- ---blocked his father.

    Is the answer that there’s nothing that you would have done differently?---At this point, no, I would not have done anything differently.

12. If there were any lingering doubt about the mother’s willingness to encourage X to have a relationship with his father, her re-examination dispelled those doubts:

    My thoughts and feelings are still the same of what was occurring and my frustrations and angers at that time. Could I have documented an email with a – with greater courtesy?  Perhaps yes. But at the situation that I was in at the time and the absolute refusal for him to communicate to address matters and in the context of X coming home distressed from visits, him ceasing supervised visits, the abuse that was escalating, the financial abuse of not paying the mortgages, not contributing to X’s expenses; it got to a point where my frustrations and anger were so extreme that – he was not listening to a thing that I said. And I am very forthright in what I say and what I think and what I do. And I am very open and honest with how I feel and that is what I documented in those emails; my frustrations, the fact that he was breaching court orders, that we should have progressed in this Family Law matter and we haven’t because of his repeated breaching, that we still hadn’t got to the bottom of his alcoholism, we hadn’t got to the bottom of his mental health issues – and we still haven’t.

    You still, in relation to what her Honour raised, believe that you would be in a position to foster a relationship between X and his father?---I will. And I have all along tried to.  But when the father removed himself---

    Thank you?--- ---from X’s life it’s very difficult.

13. Dr F, in his report, stated:

    186.…The mother had no insight into the damaging impact of her engagement of X in her unresolved hostility towards the father. There was no indication that her entrenched attitude was amenable to change.

14. I accept that evidence as being entirely consistent with the mother’s evidence before me.

    THE EVIDENCE OF DR F

15. Dr F conducted interviews in April 2021 and produced a report dated 23 April 2021. Neither parent required Dr F for cross-examination. Although the mother’s affidavit contains criticisms of the report’s accuracy and its conclusions, since none of those matters was put to Dr F, I propose to disregard them and to consider Dr F’s evidence as unchallenged.

16. Of his interview with X, Dr F reported:

    7.When asked about his family, X told me that the three of them had been living together until two or three years ago. His parents had been arguing a bit. Dad would start yelling. He would bang on his door. His Mum had had to call the Police. He explained that the arguments had occurred every couple of days. Sometimes, his Dad would swear. On one occasion, his Mum had called his grandpa and his wife to come over. He further explained that his father had been the coach of his previous AFL team. He complained that sometimes his father would fully ignore him. He would be playing Sportsbet on his phone and did not give X his full attention. Sometimes, he would tell X to go away and go to his room. He would then call his Mum. She would call the Police. By the time, the Police had attended, his father would have already returned home to his unit. When asked why his mother would call the Police, X responded that he was not sure what she wanted but understood that she wanted to make sure that he was safe. When asked why she would do this, X explained, “Because sometimes he would get very violent, swearing at both of us.” When asked if he had ever been unsafe, X responded, “I don't think that I was unsafe, but I was just feeling neglected. But I might have felt unsafe once or twice, but I can’t exactly remember.” X explained that, prior to the Court proceedings, his father had been looking after him in the family home. He had then moved out to a unit. X recalled his parents living together. He recalled that this was “a lot better than it is now. They didn’t argue. He didn’t ignore me. He didn’t stalk us, follow us everywhere or set his family to spy on us.”

17. X reported positive experiences with his father after the parents separated.

18. Dr F reported:

    18. When asked about the last time he had seen his Dad, X told me that two ladies had been trying to get him to see him. X had not seen him recently, except one time recently when his father had shouted and waved at him. X told me, “I don't want him involved in my life anymore. For the first two months, I tried to text and call him but he never answered. So I don’t want to see him. Because of that and a lot of stuff. The spying, trying to take me away, and him ignoring me. I know that he wants to see me but if he does, why is he always rude to us? He says ‘No, no. I just want to speak to you.’”

19. Dr F asked X about being interviewed with his father. In his report, he explained:

    19. X understood that a report would be prepared for the Court. When asked if he had felt okay about the interview, he confirmed that this was the case. When asked if he had experienced any problems, he confirmed that there had not been any. X was informed that the report writer wanted to arrange for him to attend to see his Dad on Thursday morning. X responded that he thought that he had swimming training in the morning and the afternoon and then he would start school. When asked whether he would attend at my request, X initially responded, “I don’t really know because I don’t want to see him. I get it would help, but after what he has done, I just don't want to see him.”

    20. X was asked whether he would feel afraid. He denied that this would be the case. When asked if he felt comfortable about coming to the report writer’s office, he agreed that he did. When given the choice as to whether the

    
    

    16-month-old Golden Retriever would be in attendance, X stated that he would prefer the Golden Retriever to be present. He was keen to come to have the opportunity to see the therapy dog. It was thus unfortunate that, following the appointment, the mother insisted that this should not occur in conversations with the report writer, receptionist, and in a follow-up email. The mother’s wishes were respected.

20. Of his interview with the mother, Dr F reported:

    61. [The mother] identified that X had coped well with the assessment, the previous day. He had responded to the questions as expected. She explained that she had told him about the assessment the week before to ensure that he was not too nervous. It was noted that she had previously repeatedly requested details regarding the assessment well in advance to ensure that she could provide him with adequate notice to enable his adjustment in advance of the assessment.

21. The maternal grandmother told Dr F of her observation of the parents during their marriage. He reported:

    102. … [the maternal grandmother] denied that there had been any problems at all. She had not observed any concerns regarding [the father] prior to the parental separation: “Until they broke up, it seemed good. It seemed like a shared arrangement.” When asked if she had ever witnessed problems with [the father] as a parent, she responded: “No. But [the mother] was the organiser of everything, which worked.” When asked if she had observed [the father] to play an active role in X’s life, she responded, “Yes. I think it was shared. He did exercises for X’s eyes. Encouraged him with Maths. He used to turn up to Nippers and surf events. He watched his AFL games and coached one year just before it all ended and came asunder.” She confirmed that she had witnessed [him] to play a normal role as a father in X’s life and that she had never witnessed any problems. She, however, added “They were private.”

22. The maternal grandmother told Dr F that X would have heard about the father stalking him from her and from his mother.

23. Dr F observed X with the father and reported:

    123. X was brought to the rescheduled appointment on Wednesday afternoon at 4pm by his mother. They arrived early for the appointment. Both mother and child were subdued in their manner. They both scaled down their interaction with the report writer. This was a marked change from X’s previous presentation two days earlier. Despite having the benefit of previously attending the report writer’s office and establishing a good rapport and agreeing to return, X left the report writer in no doubt that he was opposed to seeing his father. When the report writer apologised that the golden retriever therapy dog was unable to attend, he responded that that was okay as it was likely that the dog would have distracted him. This reflected his mother’s communication regarding this issue. In the report writer’s view, this was unfortunate as a positive engagement with the Golden Retriever would have mitigated the stress experienced by him during the assessment.

    124. X was encouraged by his mother to express his objections to seeing his father. The report writer had indicated that this was a requirement for the expert assessment. The mother encouraged X to restate his objections but nonetheless acceded to the report writer’s request to sit in the adjacent foyer while the family observation proceeded.

24. In the session with his father, X refused to establish eye contact over the entire 75 minutes allowed. He occasionally responded to his father in a manner which was contemptuous and dismissive. He refused to engage in any positive discussions about past experiences.

25. Dr F observed that the father remained positive and was reflective and gentle in his responses to X. He noted:

    125.… [The father] was consistently encouraging, reassuring and loving in his communication with his son. He expressed concern for X’s welfare and experience given X’s expressed concerns.

26. Dr F observed:

    127. After stonewalling his father for an extended period, X responded, “Why do you think I’ll talk to you now? I tried and you wouldn’t talk to me. I sent you messages for months and you never responded.” [The father] responded that he understood that X had felt frustrated. He spoke to their contact during this period. X retorted, “I don't care about you. You don’t care about me. So I don’t care about you.” In response to his father's declaration of love and care, X repeatedly referred to his father’s failure to communicate with him for months. When taken to his current sporting experiences, X retorted, “I don’t care about you. I don’t want you in my life.” When his father raised questions regarding his repeated attempts to contact X by telephone and that he had always wanted to see him and that it was not right that he had not wanted to contact his son, X retorted, “Well. I don't. And no one has told me anything.” When asked about his phone, X stated, “I turn it off because I don’t care about you. I don’t want to know anything about you.” X went on to provide an account of his paternal grandmother, Ms P, sticking out her tongue and putting up her rude finger at him. [The father] responded with disbelief. When asked whether he had received his father’s presents of a remote control and wallet with money, X responded, “Thank you. But it doesn’t show you love me. Why don’t you do that!?”

    128. In response to his father's declaration of love, X raised his voice, “This has been hell for me! And it’s your fault! …You know why. Don’t you have a brain?” When the report writer inquired how his life had been hell, X provided the anecdotes of his father calling out to him as he walked past the school. When [the father] responded that he understood that it had been hard, X responded, “So fix it!” A discussion was held about his forthcoming camping trip. [The father] referred to his own experience with Q Group as an adolescent. X asked about the location of his camping gear. This remained in his room at the father’s apartment. [The father] provided an anecdote of the last camping trip that they had shared.

    129. The interactions continued for 75 minutes prior to X, declaring, “I have had enough of this. I am leaving.”

27. Dr F returned X to his mother. He observed that X was not crying or overtly distressed. The mother repeatedly questioned X about what had caused him to be distressed. X expressed his opposition at having to attend the interview and his contempt for his father.

28. When Dr F spoke with the father after X left, the father described the interview as “heartbreaking”.

29. As to the mother’s attitude to the interview process, Dr F reported that her behaviour was consistent with the father’s descriptions of her obstructing contact. He stated:

    138.… [The mother] repeatedly made representations regarding the timing of the assessments to ensure that X’s school attendance and her work schedule were not impinged upon. This was despite having recently arranged for X to attend a Sports Carnival, which resulted in his absence from school for two days. It was evident that this had been a priority for her, unlike X’s relationship with his father. She asserted that a day off school would dramatically impinge upon his developmental progress given his underlying disability. She highlighted his ADHD, Dysgraphia and Dyscalculia. She further made representations that any contact with the father during the assessment would be tantamount to abuse. When X’s willingness to attend a further session as negotiated by the report writer was raised, she dismissed this as evidence of his compliant nature. She disputed that this would be in his best interests. Whenever the report writer indicated that the assessment should proceed as ordered, the mother made strident representations as to why this should not occur. She repeatedly threatened to take the matter back to Court…

30. Dr F noted that between the first interview with X and the second, there was a “dramatic change in his demeanor”.

31. Dr F expressed his concern at the mother and the maternal grandmother involving X in their discussions about the inappropriateness of the father’s behaviour. Dr F stated:

    140.This was not in his best interests. This had amplified his alignment with his mother and fuelled the alienation from his father and paternal extended family. Although he recalled positive experiences, any approach from his father was deemed to be evidence of stalking or harassment. He asserted that his father had made his life hell. It was striking that this followed X’s initial desire for greater contact with his father. He had experienced the father’s absence as rejection and, in a reactive fashion, decided to have further no contact. Such views had evolved in the context of his communication with his mother and maternal grandmother and lack of contact with his father.

1. Dr F reported that X’s sensitivity to his mother’s distress was identified to be a perpetuating factor in X’s avoiding contact with his father and “amplified his alignment with his mother”.

2. Dr F described X’s relationship with his mother as “enmeshed” and commented that the mother has given priority to all aspects of X’s development except his relationship with his father.

3. As to the father’s mental health, Dr F reported:

   144. Based on the mental state examination conducted, the history obtained from the father, and the review of the documents, the report writer did not identify the father to be suffering from a Psychiatric Disorder or Personality Disorder which impaired his parenting capacity. The mother disputed the report writer’s feedback and questioned the basis for such conclusions. This was reflective of her fixed view regarding the father. She remained opposed to contact visits, despite the report writer’s recommendation that this was in X’s best interests.

4. Dr F’s assessment did not validate the mother’s allegation about the father’s mental health, alcohol abuse or behaviour such as to impair his parenting capacity or to place X at risk.

5. Dr F formed the view that the mother had “consistently undermined the father/son relationship and that she had obstructed contact”. He said this behaviour should be viewed as a form of emotional abuse. Dr F said that the mother had “undermined a previously loving and engaged father-son relationship”.

6. Dr F described the mother’s behaviour in relation to the assessment in the following terms:

   146.… [The mother’s] actions had undermined a previously loving and engaged father-son relationship. The report writer’s experience of the mother’s obstructive and litigious response to the assessment process was unprecedented in his extensive experience. Even when X expressed a willingness to return to see his father, this was disputed as evidence of compliance. The mother complained the assessment conducted, even when her requirements were accommodated. This was consistent with her view of the Family Court process to date.

7. Dr F stated that the circumstances which were necessary to implement a shared care arrangement were not established. He identified the absence of respectful communication and effective problem solving although he identified that, before separation, the parents appeared to have established an effective shared parenting agenda.

8. Dr F was of the view that limited weight should be given to X’s expressed wish not to have further contact with his father because of his alignment with his mother and his “immature and contemptuous response”.

9. As to X’s relationship with each of his parents, Dr F stated:

   154. An enmeshed and loving relationship was observed with his mother and maternal grandmother. Prior to the parental separation X had enjoyed a similarly loving engagement with his father. Subsequently, he had identified with his mother. He had formed the view that his father was a neglectful and abusive figure who did not deserve a relationship with him. This was reflective of an immature response to the lack of contact and was informed by his mother’s strongly put narrative.

10. In relation to the effect of change on X, Dr F stated:

    156. It is likely that X will become distressed and oppositional should he be removed from his mother’s care. This, however, may be necessary if he is to re-establish a relationship with his father.

11. Dr F did not identify any practical difficulties and did not consider the practicalities of changing X’s living arrangements in the face of X’s and the mother’s express opposition. That issue will be discussed later in these reasons.

12. Dr F stressed the importance of X’s having a male role model in adolescence.

13. Dr F did not identify any psychological or physical ill-treatment or any need to protect X from psychological harm but he stated:

    186.…The mother had no insight into the damaging impact of her engagement of X in her unresolved hostility towards the father. There was no indication that her entrenched attitude was amenable to change.

14. Under the heading “Recommendations”, Dr F wrote:

    209.I respectfully recommend to the Court that, should the mother’s stance remain unchanged, X's best interests would be served by a transfer of parental responsibility and primary residence to the father. There was currently no indication that the mother would be willing to enable regular contact with the father. Further, her inflexible approach to X’s developmental experience, including his school and sport, would be likely to result in ongoing issues with those involved in X’s care. There was no indication that she had the capacity to adopt a collaborative approach to parenting.

    210. That said, should the mother demonstrate the capacity to change her stance, I would support the maintenance of shared parental responsibility, primary residence with the mother, and significant and substantive contact with the father.

    211. Both parties should make an undertaking not to denigrate the other parent or members of their extended family.

    212. Family therapy with an experienced family therapist at R Psychologists was indicate.

    213. X should attend a single GP. Both parents should be notified of all specialist referrals.

15. In submissions, counsel for the mother challenged Dr F’s evidence as to the weight to be given to X’s wishes on the basis, as I understand his submission, that Dr F had not provided adequate reasons for that opinion.

16. I reject that submission.

17. It is difficult to see how such a submission can be sustained in circumstances where Dr F was not required for cross-examination.

18. However, his reasoning process is adequately exposed in his written report. Firstly, Dr F’s assessment of the relationship between X and his mother as “enmeshed” was not challenged.

19. At paragraph 124, Dr F noted that X was “encouraged by his mother to express his objections to seeing his father” and to “restate his objections”.

20. At paragraph 140, Dr F noted that the mother and the maternal grandmother had involved X in discussions about the father’s inappropriate behaviour. Dr F’s opinion that this “amplified his alignment with his mother and fuelled alienation from his father” was available on that evidence.

21. Further at paragraph 141, Dr F refers to X’s reporting sensitivity to his mother’s distress in interaction with his father which Dr F identified as “a perpetuating factor for his avoidance of contact and amplified alignment with his mother”.

22. This is not an exhaustive analysis of Dr F’s reasoning process but the matters referred to above are sufficient to demonstrate that Dr F gave adequate reasons for his assessment that X’s views were influenced by his mother.

23. Having regard to Dr F’s recommendations, I propose to examine the evidence in relation to the mother’s present attitude towards the father and to X’s having a relationship with him.

24. Although the mother seeks orders that would have the effect that X would eventually spend substantial and significant time with his father, I do not accept that, if such orders were made, they would ever be put into effect.

    DISCUSSION

25. These proceedings bring into stark contrast the difficulty of balancing the competing considerations set out in the primary considerations in s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”).

26. I accept Dr F’s evidence that X would benefit from having a meaningful relationship with his father. However, as I will explain, I cannot find a way to ensure that he will be allowed that relationship while ever he lives with his mother. Further, I am unable to envisage a pathway whereby X can live peacefully with his father, freed of his mother’s remorseless negative influence and views.

27. In this instance, the need to protect X from psychological harm and to give him some stability for the balance of his school years, must be given precedence.

28. Dr F recommends that, “should the mother’s stance remain unchanged” X should live with his father.

29. I have no difficulty in finding that nothing has changed in the mother’s views since her interviews with Dr F.

30. However, I am required to weigh up a suite of considerations which lead me to conclude that it is not practically possible to change X’s residence.

31. I accept that the likely consequence of this decision is that X will have no further relationship with his father.

32. There is no doubt that X’s views have been made abundantly clear. He does not wish to spend time, or communicate, with his father. However, I accept the evidence of Dr F that X’s position “reflected his alignment with his mother”.

33. I accept Dr F’s evidence that X has an enmeshed relationship with both his mother and his maternal grandmother.

34. He appears to have rejected not only his father but the entire paternal family.

35. As to the likely effect of a change in X’s living arrangements, Dr F stated in his report:

    156.It is likely that X will become distressed and oppositional should he be removed from his mother’s care. This, however, may be necessary, if he is to re-establish a relationship with his father.

36. How, practically, that could be achieved has not been addressed by Dr F. X is almost 12 years old. He is an athlete and according to his mother he is tall and physically strong. The father’s residence is but a short walk away from the mother’s residence. Is he to be physically restrained?

37. It is highly likely that, if orders provide for him to live with his father, he will simply refuse to go or, if forced to go, will leave at the first opportunity. It is also likely that his mother will both support and encourage him to do so.

38. The mother’s attitude towards the father remains, after three years, implacably negative. There is no likelihood that there will be any change.

39. The inevitable consequence of an order for change of residence is that there will be a sequence of X returning to his mother’s home and the issue of recovery orders until the father’s resolve is exhausted. Such a situation, for X, would be intolerable and psychologically damaging.

40. Sadly, the best outcome for X would be to remain living with his mother and to be permitted by her to have a relationship with his father. That is unlikely to happen. Only she can make it so and she has no will to do so.

41. I do not propose to make any order regulating the time X spends with his father. As it has always been, that time will be dictated by the mother, most likely with the effect that X will not, while he is a child, have the opportunity to have a relationship with his father and

    
    

    paternal family.

42. The orders will not, however, restrain or limit the father’s ability to contact X as he wishes but will restrain the mother from interfering.

43. Both parties sought orders related to interstate and overseas travel with X. I was taken to no evidence in the proceedings related to this issue, nor were any submissions made. I do not propose to make the orders sought.

    CHILD SUPPORT

44. The wife sought an order relating to the payment of school fees, uniforms and extras. The husband indicated in cross-examination that he would pay half of those fees and expenses.

45. The father was not asked whether he would consent to the making of an order in those terms and no consent was proffered.

46. The wife’s response filed 25 June 2019 sought an order that the husband pay the whole of the school fees. Her current application is that he pay half. Although the application is not expressed to be a child support departure order, there is no other basis to make the order sought by the wife and I will consider her application to be an application for a

    
    

    departure order.

47. An application for a departure order is made pursuant to the provisions of s 117 of the

    
    Child Support (Assessment) Act 1989

    (Cth). Rule 1.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that the Child Support Registrar must be served with such an application and is entitled to intervene. No notice has been given to the Child Support Registrar.

48. I adopt, with respect, the reasoning of McClelland DCJ in Lesley & Lesley [2015] FamCA 894 where his Honour said:

    59.Failure to serve the Registrar in accordance with the Rules is fatal to the Court dealing with the application at this time. Requiring service to be effected is not simply insisting on ritualistic compliance with the Rules for the sake of mere compliance. Non-service on a person or entity that has a statutory right of intervention is a fundamental denial of natural justice that, in the absence of urgency, prevents the Court from dealing with that aspect of the application. In Child Support Registrar & Nixon, the Full Court said:

    …given the emphasis placed by the High Court in both Taylor and
    Allesch v Maunz on the right of a party to be heard when an order is to be made affecting that party, we accept that where a party has not been given notice of the proceedings in which the order was made, and thus not been heard on the making of the order, that that is a matter which should be given very significant weight in the exercise of the discretion to set aside the order. As his Honour did not refer to the fact that the order had been made without notice to the Registrar, it has to be assumed that he gave this fact no weight, and thus his discretion must be regarded as having miscarried on account of his failure to have regard to this important matter.

    We add that we do not accept, as we understood to be submitted by the respondents, that a distinction should be drawn between a party to the proceedings as opposed to a third party.

    (Footnotes omitted)

49. No order will be made.

    PROPERTY

50. The financial issues are uncomplicated and relatively uncontentious.

51. In 2003, before they married, the husband and the wife bought a unit in Suburb S for $335,000.

52. The wife provided $25,000 towards the deposit. The wife also contends that she paid $12,500 for their first jointly owned car.

53. It is agreed that the wife’s father gave them $15,000 which they paid off the mortgage.

54. In late 2008, they sold the unit and purchased the former matrimonial home at Suburb L for $800,000. They lived, rent free, in the granny flat attached to the wife’s mother’s home while they renovated the Suburb L property.

55. In October 2017, they purchased an investment property at E Street, Suburb D, Qld for $547,000 (“the Suburb D property”). The purchase was funded by drawing down on the Suburb L mortgage.

56. The wife asserts that the husband wasted funds gambling during the currency of their marriage. The husband denies that allegation although he does not deny that he gambled.

57. The wife provided no evidence to support her allegation in relation to gambling losses during cohabitation. She deposed that the husband gambled but also that, from 2009, she allocated to him “an allowance” for gambling and drinking and an additional amount “if he had a big social event such as attending a friend’s birthday or special horse racing meet”.

58. Absent documentary evidence establishing that the husband lost significant, or any, amounts because of his gambling activities, the wife has not established her assertion in relation to waste.

59. At the commencement of the hearing, the parties tendered a joint balance sheet which is reproduced below. I will deal with the issues arising on the balance sheet using the item numbers on the document.

Ownership		Description	Applicant’s value	Respondent’s value
ASSETS
1.	Joint	K Street Suburb L NSW	$2,700,000.00	$2,700,000.00
2.	Joint	E Street Suburb D Qld	$649,000.00	$649,000.00
3.	Joint	Household contents	$500.00	$500.00
4.	Joint	Westpac Reward Saver Acc #...54 X as at 3 November 2021	$2,696.53	NIL
5.	Joint	B Bank Offset Acc #...98 as at 3 November 2021	$3,588.94	$611.14
6.	Wife	Motor Vehicle 1	$10,000.00	$10,000.00
7.	Wife	Westpac Acc #...94 as at 21 October 2021	$502.66	$954.81
8.	Wife	Westpac Acc #...25 as at 21 October 2021	$168,000.00	NIL
9.	Husband	T Bank Acc #...43 as at 1 June 2021	$48.62	$45.91
10.	Husband	Westpac Acc #...89 as at 1 June 2021	$8.87	$8.97
Total		$3,534,345.62	$3,361,120.83

LIABILITIES
11.	Joint	B Bank Home Loan Acc #...06 as at 21 October 2021	$159,428.61	$159,428.61
12.	Joint	B Bank Home Loan Acc #...06 arrears as at 21 October 2021	$9,428.61	$9,428.61
13.	Joint	B Bank Home Loan Acc #...83 as at 21 October 2021	$463,700.40	$463,700.40
14.	Joint	B Bank Home Loan Acc #...83 arrears as at 21 October 2021	$26,100.40	$26,100.40
15.	Joint	B Bank Offset Acc #...27 as at 21 October 2021	$121,985.15	$121,985.15
16.	Joint	B Bank Offset Acc #...27 arrears as at 21 October 2021	$9,154.41	$9,154.41
17.	Joint	B Bank Interest only Investment Loan Acc #...78 as at 21 October 2021	$718,019.73	$718,019.73
18.	Joint	B Bank Interest only Investment Loan Acc #...78 arrears as at 21 October 2021	$58,994.81	$58,994.81
19.	Wife	Westpac Credit Card Acc #...96 as at 21 October 2021	NK	NIL
20.	Husband	T Bank Platinum Visa Acc #...48 as at 16 June 2021	$7,325.15	NIL
21.	Husband	Westpac Low Rate Mastercard Acc #...36 as at 16 June 2021	$7,918.26	NIL
22.	Husband	V Bank Rewards Platinum Acc #...30 as at 16 June 2021	$24,521.31	NIL
23.	Husband	American Express #...04 as at 16 June 2021	$0.00	NIL
24.	Husband	Credit cards held in the names of [the husband] and Ms U	NIL	NIL
25.	Husband	Loan for legal costs from Mx Z	$53,415.00	NIL
26.	Husband	Loan from Mx BB	$2,990.00	NIL
27.	Husband	Loan for legal costs from Mx J	$43,025.00	NIL
Total		$1,706,006.84	$1,566,812.12

SUPERANNUATION
Member		Name of Fund	Type of Interest	Applicants value	Respondents value
28.	Wife	Super Fund 1 as at 21 October 2021	Accumulation	$342,258.97	$342,258.97
29.	Husband	Super Fund 2 as at 23 June 2021	Accumulation	$298,800.09	$298,800.09
Total		$641,059.06	$641,059.06

Item 4 – joint account

1. The parties agreed that this account is in X’s name and that it be removed from the

   
   

   balance sheet.

   Item 5 – the joint offset account

2. There is no explanation for the discrepancy in the respective values. The orders will provide for these funds to be paid towards the discharge of the Suburb L property mortgage. This item will be removed from the balance sheet.

   Items 7 and 8 – wife’s post separation savings

3. There is no dispute that the wife has saved $168,000 since separation. On her behalf, it was submitted that the husband had made no contribution to the savings and that it should not be included as an asset in the balance sheet.

4. On behalf of the husband, it was contended that, since separation, the wife had the benefit of occupation of the former matrimonial home while the husband paid rent. The husband deposed that, at August 2021, he had paid $86,540 in rent.

5. The wife conceded in cross-examination that, at separation, there was some $60,000 available in an account from which mortgage payments were made. 

6. On 17 June 2020, an order was made that required the parties each to pay one half of the shortfall between the rent on the investment property and the mortgage.

7. Whilst I accept that, for some periods after the $60,000 had been exhausted, the husband contributed half of the mortgage payments, it is not possible on the available evidence to determine what was paid by each of them towards the mortgage.

8. The same considerations apply to the wife’s savings which are Item 7 which will also be removed.

9. However, I propose to remove the wife’s post-separation savings from the balance sheet and to take into account, pursuant to s 75(2) of the Act, the fact that the wife had the benefit of the occupation of the home, and has accumulated savings, and the husband has paid rent.

1. It follows that, if the wife’s post-separation savings are removed, so too must be the husband’s.

   Items 20 to 23 – husband’s credit cards

2. It was conceded that these debts were incurred after separation and they will be removed from the balance sheet.

   Items 25 to 27 – husband’s borrowings for legal fees

3. Parties are entitled to fund their legal representation but their decisions cannot be visited on the other party. These items will be removed from the balance sheet.

4. Therefore I find the assets and liabilities of the parties to be:

   Assets

Joint	K Street Suburb L NSW	$2,700,000.00
Joint	E Street Suburb D QLD	$649,000.00
Joint	Household contents	$500.00
Wife	Motor Vehicle 1	$10,000.00
Total		$3,359,500

Liabilities

Joint	B Bank Home Loan Acc #...06 as at 21 October 2021	$159,428.61
Joint	B Bank Home Loan Acc #...06 arrears as at 21 October 2021	$9,428.61
Joint	B Bank Home Loan Acc #...83 as at 21 October 2021	$463,700.40
Joint	B Bank Home Loan Acc #...83 arrears as at 21 October 2021	$26,100.40
Joint	B Bank Offset Account #...27 as at 21 October 2021	$121,985.15
Joint	B Bank Offset Account #...27 arrears as at 21 October 2021	$9,154.41
Joint	B Bank Interest only Investment Loan Acc #...78 as at 21 October 2021	$718,019.73
Joint	B Bank Interest only Investment Loan Acc #...78 arrears as at 21 October 2021	$58,994.81
Total		$1,566,812.12

Superannuation

Wife	Super Fund 1 as at 21 October 2021	Accumulation	$342,258.97
Husband	Super Fund 2 as at 23 June 2021	Accumulation	$298,800.09
Total			$641,059.06

1. The net assets, excluding superannuation, are therefore $1,792,688, of which the wife has and will retain $10,500.

2. The wife wishes to retain the Suburb L property. If the Suburb D property is sold, the net proceeds of sale after agents’ commission and selling costs of $14,000, will be in the vicinity of $635,000 which will be applied to the Suburb L mortgage, reducing the balance outstanding to about $932,000. Thus the wife would retain the house with a net value of $1,768,000 plus her additional assets of $10,500, a total of $1,778,500.

   SECTION 79(2)

3. The significant property of the parties is jointly held. They can no longer use their property for their mutual benefit and they both seek a division. It is just and equitable for their property to be divided between them.

   CONTRIBUTION

4. The wife’s initial contributions exceed those of the husband. I accept that she contributed $25,000 towards the deposit on their first property and $15,000 from her father. The parties also enjoyed 18 months of rent free occupation of the granny flat attached to the home of the wife’s mother while they renovated the Suburb L property. There is no evidence of the rental value of the granny flat.

5. Otherwise, they each worked and contributed their respective efforts to the enterprise of their family.

6. Over a marriage of 14 years, where each party worked and contributed their income and their efforts, I do not consider it appropriate to make an adjustment in favour of the wife.

   
   

   The ascertainable monetary value of her greater contribution represents 2.23 per cent of the current asset pool, not including superannuation.

7. I find their contributions to be equal.

   SECTION 75(2)

8. The husband currently earns $148,500 per annum.

9. Since the wife did not file or rely upon a Financial Statement and there is no evidence of her current earnings, I am unable to say whether his earning capacity is greater than hers.

10. The wife has a superannuation entitlement of $342,259. The husband has $298,800. There is no application for a splitting order and each will retain his or her own superannuation. They are of a similar age, both being born in 1979 and neither will be able to access superannuation for many years.

11. The wife’s present financial position is superior to that of the husband. She has savings, on her evidence, of about $168,000 and no debts other than the mortgage debt.

12. The husband has significant debts.

13. The wife has had the benefit of the occupation of the home and the husband’s contribution towards the payment of the mortgage, both by contributing his share of the $60,000 which had been accumulated at separation and was applied to the mortgage and by making some payments towards periodic mortgage payments. In addition, the husband’s share of the rent on the investment property was applied to the Suburb L mortgage and, as at August 2021, the husband had expended $86,540 on rental accommodation.

14. The wife will have the responsibility to rehouse herself and X who is entering secondary school in 2022. The husband will pay child support as assessed.

15. Whilst the wife complains that, at times after separation, the husband refused to pay for X’s support, I understand her complaint to be that he did not pay for school fees and extra-curricular activities. The husband deposed that he had always paid child support and his evidence in that regard was not challenged.

16. Taking all of those matters into account, and having regard to the concession on behalf of the husband that a 10 per cent adjustment for s 75(2) factors would be appropriate, I propose to make an adjustment of 10 per cent in favour of the wife.

    CONCLUSION

17. The wife will receive 60 per cent of the net assets.

18. In order for her to be able to retain the Suburb L property, it was an agreed position that she should pay the amount due to the husband within six weeks of the date of the orders.

    
    

    Counsel for the wife submitted that the wife should notify the husband within four weeks that she has finance approved and be allowed a further two weeks to settle.

19. The net assets are $1,792,688 of which the wife is entitled to 60 per cent or $1,075,613. She seeks to retain $1,778,500, including her chattels valued at $10,500. The husband will receive $4,200 being 40 per cent of the value of the wife’s chattels.

20. On those figures, she will need to pay the husband about $707,000 and to assume the remaining mortgage liability.

21. The orders will provide for the sale of the Suburb D property, the payment of the net proceeds after selling costs in reduction of the Suburb L mortgage and the amount to be paid to the husband will be adjusted accordingly.

22. If the wife is unable to raise funds to purchase the husband’s interest, then both the
    Suburb L property and the Suburb D property will be sold.

I certify that the preceding one hundred and ninety-eight (198) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       19 November 2021