Martin & Buller (No 2)
[2016] FamCA 1096
•13 December 2016
FAMILY COURT OF AUSTRALIA
| MARTIN & BULLER (NO 2) | [2016] FamCA 1096 |
| FAMILY LAW – CHILDREN - Best interests – Whether the children should spend time or communicate with the respondent – Where the respondent did not file material or appear at trial - Where the children are at risk of harm in the respondent’s care - Where the respondent has perpetrated family violence against the children – Where the presumption of equal shared parental responsibility is rebutted – Where the applicant has sole parental responsibility for the children – Where the children are to spend no time nor communicate with the respondent FAMILY LAW – PROPERTY – De facto relationship – Where the property pool is minimal – Where contributions to date of separation were equal – Where no adjustment is made for contributions post-separation – Where the applicant has the ongoing care of the children – Where the applicant has considerable debt – Where there is a superannuation split of 75 per cent to the applicant – Where the applicant is appointed trustee for sale – Where the respondent is required to vacate the property within 28 days |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 65DAC, 75(2), 79 |
| Baghti & Baghti [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Bevan & Bevan (2013) FLC 93-545 De Winter & De Winter (1979) FLC 90-605 Goode & Goode (2006) FLC 93-286 Norbis v Norbis (1986) FLC 91-712 SCVG & KLD Error! Hyperlink reference not valid. Stanfordv Stanford (2012) FLC 93-518 The Marriage of N & S (1996) FLC 92-655 |
| APPLICANT: | Ms Martin |
| RESPONDENT: | Mr Buller |
| INDEPENDENT CHILDREN’S LAWYER: | Joanne Boughton |
| FILE NUMBER: | BRC | 8647 | of | 2014 |
| DATE DELIVERED: | 13 December 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 13 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms K. Oakley |
| SOLICITOR FOR THE APPLICANT: | Fox Taylor Mildwaters |
| COUNSEL FOR THE RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms P. Sweetapple |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Boughton Legal |
Orders
Parenting Orders
That the applicant has sole parental responsibility for the children, B born … 2008 and C born … 2010 (“the children”).
That the children live with the applicant.
That the respondent not have any time or communication with the children.
That the Independent Children’s Lawyer be discharged.
Property
That the applicant be appointed as Trustee for Sale to effect a sale of the property situated at I Street, J Town in the State of Queensland more particularly described as Lot … on RP …, County K, Parish L, Title Reference … (“the property”).
That within 28 days the respondent vacate the property and upon vacating the respondent will ensure the property is left in a clean and orderly manner.
Pending the sale of the property, the applicant shall have sole use and occupancy of the property.
The proceeds of sale of the property shall be paid in the following manner and priority:
(a) To discharge the mortgage.
(b) Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale.
(c) Payment of the legal costs and outlays relating to the sale.
(d) The balance to be paid to the applicant (or her nominee).
That in accordance with s 90MT(1)(b) of the Family Law Act 1975 (Cth):
(a) The applicant (or the applicant’s administrators, executors, beneficiaries, heirs or assigns) to the extent permitted by law is entitled to be paid the specified percentage out of the respondent’s interest in the Sunsuper Superannuation Fund;
(b) The respondent’s entitlement (or the entitlement of such other person to whom a payment may be made out of the respondent’s interest) in Sunsuper Superannuation Fund is correspondingly reduced by force of this Order; and
(c) the percentage specified for the purposes of this Order is 75 per cent.
That the trustee of the Sunsuper Superannuation Fund do all such acts and things and sign all such documents as may be necessary to:
(a) calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the applicant in the immediately preceding clause of this Order;
(b) pay the entitlement whenever the trustee makes a splittable payment from the respondent’s interest in the Sunsuper Superannuation Fund.
That this Order has effect from the operative time and the operative time is the fourth business day after service of the Order on the trustee.
That after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”) the respondent shall do all such things and sign all such documents as may be necessary including but not limited to exercising the applicant’s request in accordance with the SIS Regulations for the transfer or rollover of the non-member spouse interest in the applicant’s name in the Sunsuper Superannuation Fund.
That the Court notes:
(a) the value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(b) any payments from the respondent’s superannuation interest in the Sunsuper Superannuation Fund made after the trustee has created a new interest in the applicant’s name in the Sunsuper Superannuation Fund are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
That in accordance with s 90MT(1)(b) of the Family Law Act 1975 (Cth):
(a) The applicant (or the applicant’s administrators, executors, beneficiaries, heirs or assigns) to the extent permitted by law is entitled to be paid the specified percentage out of the respondent’s interest in the MLC Super Fund;
(b) The respondent’s entitlement (or the entitlement of such other person to whom a payment may be made out of the respondent’s interest) in MLC Super Fund is correspondingly reduced by force of this Order; and
(c) the percentage specified for the purposes of this Order is 75 per cent.
That the trustee of the MLC Super Fund do all such acts and things and sign all such documents as may be necessary to:
(a) calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the applicant in the immediately preceding clause of this Order;
(b) pay the entitlement whenever the trustee makes a splittable payment from the respondent’s interest in the MLC Super Fund.
That this Order has effect from the operative time and the operative time is the fourth business day after service of the Order on the trustee.
That after service of the payment split notice in accordance with the SIS Regulations the respondent shall do all such things and sign all such documents as may be necessary including but not limited to exercising the applicant’s request in accordance with the SIS Regulations for the transfer or rollover of the non-member spouse interest in the applicant’s name in the MLC Super Fund.
That the Court notes:
(a) the value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(b) any payments from the respondent’s superannuation interest in the MLC Super Fund made after the trustee has created a new interest in the applicant’s name in the MLC Super Fund are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
That unless otherwise specified in this Order except for the purposes of enforcing payment of any money due under these or any subsequent Orders:
(a) Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles.
(b) Monies standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held.
(c) Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.
(d) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order.
(e) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
That should a party refuse or neglect within 14 days of a written request to do so to sign all documents to implement the above Orders, the Registrar of the Brisbane Registry of this Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to sign such document or documents on behalf of the defaulting party and to do all acts and things to give validity thereto.
For the Registrar to act on the powers provided herein it will be sufficient proof that there has been non-compliance by the defaulting party that the requesting party provide to the Registrar an affidavit deposing to the non-compliance of the other party, such affidavit having been served upon the defaulting party not less than 7 days prior to the requesting party’s intended reliance thereon.
That all pending Applications be dismissed.
That either party have liberty to apply as to implementation or enforcement of these Orders upon the giving of 7 days written notice to the other.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Buller (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 8647 of 2014
| Ms Martin |
Applicant
And
| Mr Buller |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Ms Martin (“the applicant”) is seeking a parenting order and property settlement order in these proceedings against Mr Buller (“the respondent”). The respondent did not appear in court and took no part in the proceedings. Given the history of the respondent’s failure to file material and engage in the Court processes this was not really a surprise. The trial proceeded in his absence.
Brief background facts
The parties commenced cohabitation in 2004 and separated finally in or about April 2014. The applicant initially left the former matrimonial home in January 2014 with the children but it seems returned on a number of occasions before finally leaving.
On 4 April 2014 a Protection Order was made in favour of the mother which remained in force until 4 April 2016. Another Protection Order was made on 9 May 2016 including the children as aggrieved persons. That Order is to remain in force for two years.
The parties have two children together, B born in 2008 and C born in 2010 (“the children”).
The applicant has another child, N, born in 2015 with a man by the name of Mr O but she and Mr O broke up in August 2015 and her current partner is Mr P. She and Mr P apparently do not live together on a permanent basis although he will in some weeks spend three or four nights with the applicant. The applicant has had a number of physical health issues of late including undergoing surgery and Mr P and the applicant’s mother have provided support to her in the care of the children and N.
The current proceedings were commenced on 24 September 2014 and were transferred to this Court on 20 May 2015. The delay in hearing this matter has occurred to a significant degree it seems because of the continued failure of the respondent to engage in the proceedings and file material. This has resulted in numerous adjournments. Exhibit 1 provides a history of that failure and consequent delay and I accept that summary.
The respondent continues to live at the former matrimonial home at I Street, J Town in the State of Queensland (“the property”). An Order was made on 18 March 2016 for the sale of the property. The highest offer received was for $275,000 but this offer was rejected by the respondent. I note that in the respondent’s Financial Statement he estimates the value of the property at $250,000. The only other offer received was for $225,000.
The respondent isolated the children for a period commencing about mid-April 2014. They did not attend school for almost a term and had no contact at all with the applicant for about two months but thereafter were permitted to have some telephone contact. An Order was made in October 2014 for the children to continue to live with the respondent and spend time with the applicant five nights per fortnight.
The respondent made very serious allegations against the applicant and members of her family that she and they had involved the children in sexual practices and threatened B with a knife not to disclose what was happening to him.
The mother continues to make very serious allegations against the father of a long term abusive and violent relationship involving repeated rapes and threats with harm involving holding a knife to her throat.
Allegations that each party has made against the other and as notified by others to the Department of Communities, Child Safety and Disability Services (“the Department”) in respect of the parties’ respective treatment of the children have been investigated by the Department.
The children were removed from the respondent by Order dated 20 May 2015 and the respondent’s time with the children was suspended.
The respondent has spent no time with the children since then.
The parties have few assets of any value. The respondent continues to live in the property but depending upon its sale price, there may or may not be any net proceeds of sale. The respondent is unemployed as far as is known and receives a Newstart allowance according to his Financial Statement filed 9 September 2015, which was received into evidence before me and marked as an exhibit. He pays no child support.
The applicant is unemployed and in receipt of a parenting payment of approximately $1200 per fortnight. I assume she also receives Family Tax Benefits A and B. The applicant is hopeful of returning to some form of part time employment in the next few months.
Order sought by applicant
The applicant seeks a parenting order providing her with sole parental responsibility for the children and for them to live with her and spend no time with the respondent. The precise form of order is as set out in exhibit 14.
She seeks a property settlement order appointing her as trustee for sale of the property; sole use and occupation of the home pending sale; the net proceeds of sale to be paid to her and a seventy-five percent superannuation split of the respondent’s superannuation.
Order sought by the respondent
Despite numerous Orders and directions being made for the respondent to file material he has failed to do so. Despite that, I have received into evidence as an exhibit his Response filed 9 September 2015 and a Financial Statement filed 9 September 2015. The final orders sought in that Response were as follows:
1. That the applicant be required to produce such records as exist or in their absence an accurate account of all monies taken out of the relationship with the intent of being kept for the sole use of the applicant after she left the relationship.
2. That the neither the applicant nor any agent acting on her behalf enter or interact with the property at [I Street, J Town], Queensland (hereafter referred to as “the family home”) without the express written permission of the father.
3. That the father have exclusive rights to use and occupancy of the family home until such time as he can refinance the property exclusive of the applicant, but no later than two years from the date such an order is made.
4. That as soon as practical upon request from the father, the applicant complete all necessary acts required to facilitate the refinancing of the family home and to transfer in full her rights and interests in the family home and contents to the father.
[errors in original]
Despite being ordered to file an Amended Response particularising the final orders sought, the respondent has failed to do so.
How parenting applications are determined
Part VII of the Family Law Act 1975 (Cth)(as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[1]
[1] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637
The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]
[2] Baghti & Baghti [2015] FamCAFC 71
Section 60B(1) provides that the objects of the Act are to ensure that the best interests of children are met by:
a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
‘Abuse’ in relation to a child, is defined in s 4 of the Act and means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
Family violence is defined in s 4AB of the Act:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
(emphasis in original)
Section 61DA provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[3]
[3] Banks & Banks (2015) FLC 93-637
In considering the ‘unacceptable risk’ questions Fogarty J observed in The Marriage of N & S:[4]
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.
[4] (1996) FLC 92-655, at 82713-4
Family report
There were two family reports prepared in this matter by Ms G who is a psychologist in private practice. Her first report is dated 15 May 2015. It of course outlines the allegations and counter allegations of the parties but there are particular paragraphs of that report which I will mention:
44. [The respondent] failed to attend the first scheduled appointment saying he had to attend Court on another matter. He later told the Report Writer that he had not wanted the children to come into contact with the mother and agreed to attend on alternate date with the children. As the father’s interview commenced in the afternoon and consumed some 4/5 hours the children were observed but not interviewed. The father arrived late and offered apologies. He had arranged for his father to arrive with the children after two hours.
45. As the father provided such voluminous, complex and convoluted information the report writer has attempted to capture the main issues. He admitted that he is not currently coping well saying “I am a mess” and is not sleeping. He attributed his present struggle to the high stress of the situation and because he is consumed by the need to protect the children and no one will listen. The father’s presentation, mannerism and tone became increasingly concerning as the interview progressed. He rambled in an obsessive fashion and seemed overly consumer and overwhelmed by his concerns and allegations. His insight was at time fair and at other times absent.
46. [The respondent] knew that others (including Police and child safety staff) he had tried to speak to had assumed he was mentally unwell. He clearly developed trust in the report writer (he moved his chair to sit very close) as time passed and became increasingly more candid and disturbing in his report. At times he was clearly disturbed by his own thoughts and feelings relating to that which he alleged and disclosed.
…
56. In essence the father alleged that [C] had been exhibiting expert sexualised behaviour and this “trying to seduce me” since returning from time spent exclusively with the mother and maternal family in the initial months of separation. He had a few suspects but ultimately conveyed that the children must have been coached to engage in sexual ways to know how to behave so adult towards him.
57. [The respondent] reported that [C] had spread her vagina wide, whilst locking eyes on him with a sly grin and began licking as if to gesture oral sex. He reported that [C] had at various times either sat on his face or attempted to. He reported that [C] had twice expertly and disturbingly mouthed his ear saying she had used “lips, tongue, intent”. He added that [C] in nuzzling his ear [C] had “done as good a job as anybody has ever done to me”. He added that the children sleep in his big bed with him…
58. [The respondent] explained how [C] had once tickled his scrotum with her hand and then jabbed him in the lower back with both pointer fingers when he said “[C]” to her touch. He said [C’s] touch “was so incredibly fucking creepy from my four year old daughter”. He added “it would’ve been so good” if it was not her. He stated that “[C] is a massive exhibitionist”. He stated that “[C] showed me how to have a swinger’s party”…
59. Whilst describing his horror associated with [C’s] presumed seductive behaviour [the respondent] stated that he could tell the children were missing sexual contact. He then admitted at times he is tempted to just give the children what they seem to be looking for (returned sexual acts) to make them “happy”. He rambled about paedophiles not necessarily having characteristic dark appearance. He denied having any sexual interest in children saying “even if I did, I wouldn’t do it to my own children”. However he added that he had come to “the realization that children love sex if it’s presented in a loving” way. At the same time he recognised “that’s fucked up” because “their brains are still developing”. He added that [C] had said something along the lines of “he pulled the rope to make a rock for my bits” during one of his interviews with her which he had conducted to determine what had happened to her.
…
65. The father reported that as a symptom of his diagnosed Attention Deficit Disorder he does tell lies… He remembered saying that hypothetically he would “probably kill everyone on the planet to safe them”. He began “recording everything” to protect himself…
…
68. The father alleged that his mother wrote a disparaging letter about him to his Psychiatrist [Dr Q] after the mother had been “in her ear” during these three weeks. He reported that he has now had a falling out with [Dr Q] after having consulted him for some years since perhaps 2012. He recalled his mother had also begun trying to keep him away from the mother. He reported he is not on good terms with his mother as a result of her unwelcomed interference. He believed the mother had also written to [Dr Q] to report he is mentally unstable.
…
72. The father described an event where he left the children alone in the locked car in a darkened underground car park at the shops to run in to collect Christmas presents on Christmas Eve 2014. He was gone some 30 minutes and when he got back the children were really upset. He stated that the children would normally be happy to sit in the car while he ducks into the IGA and so on.
…
Observations
77. Observations of the children indicated that they appeared tired, fragile and drawn. Both children complained little despite waiting some hours with the paternal grandfather and without food or drink whilst the father’s interview continued. Both children had dark circles under their eyes. The father volunteered that they had all three had very little sleep the night prior.
…
Evaluation
...
82. The audio and visual recordings of the father interviewing the children about his concerns are in my view highly inappropriate and manipulative of the children. There is in my opinion considerable risk of corrupting information provided by children, if not a risk of implanting information into children’s minds when children are questioned by unskilled persons in the manner which is evident in the recordings by the father … I observed the children to be squirming during the recordings and it appeared they provided answers merely to placate the father at times. It appeared that the father was perhaps using his own distorted assumptions to fill in the many gaps left in the children’s accounts. It is likely that children questioned in such a way would feel pressured to respond in a way that would be accepted by the interviewer.
…
84. … It is my view probable that the father has been all consumed by trying to reprogram the children.
85. In prioritising my concerns in this rather complex and convoluted case I highlight my opinion that these children face probable risk of sexual abuse whilst in the father’s care given he is tempted to act if he has not already done so. It may be that the father has provided a confession of sorts herein. I consider these children at risk of serious psychological and emotional abuse given the father’s apparently unstable mental health. I am of the view that the father may well act drastically to ‘protect’ these children if the present concerns were revealed to him prior to the children being secured in a safe environment outside of his care…
…
87. I highlight that the father’s mental instability became increasingly more obvious as he relaxed in my company. Over time he became more disturbed in his view and presentation. It is therefore possible that his account and allegations are not based on absolute reality. His account had themes of paranoia, delusions and conspiracy theories…
…
[errors in orginal]
Ms G made recommendations that the children be immediately removed from the father’s care and placed either with the mother or in foster care as deemed appropriate by the Court.
In her updated report dated 30 October 2015 she notes the applicant’s concession that the children are missing their father although the applicant remained concerned that the children may be at risk of harm in the respondent’s care. Ms G noted that the children appeared happy and healthy. In her recommendations in her updated report, Ms G recommended that the mother have sole parental responsibility and that the children reside with the mother. As to what time the children should spend with the father she said:
105. If the father shows evidence that he is engaging regularly with a Psychiatrist and Psychologist and that he is adhering to any recommendations in this regard I suggest that he commence supervised time with the children at [R Group] for at least six months prior to a further considered review.
Dr F
Dr F is a consultant psychiatrist who undertook a psychiatric assessment initially of both the applicant and respondent in February 2015. The applicant was pregnant at the time and under the care of her GP, Dr Q. The applicant was diagnosed by Dr F that she had suffered from “a constellation of symptomatology sufficient to warrant the DSM 5 diagnosis of Adjustment Disorder with depressed and anxious mood”. From a treatment perspective, Dr F opined that the applicant “should continue her low-dose medication under the care of [Dr Q] who is also monitoring her pregnancy progress”. It was his view that the applicant was currently stable and well.
In his assessment of the respondent, he opined:
The themes within the interview consisted of [the respondent’s] distress at the behaviour of [the applicant] and his concerns regarding her sexual behaviour with regard to the children. I felt that his insight was marginal and his judgment poor.
He further opined that from a DSM 5 perspective:
I believe that [the respondent] suffers from a degree of anxiety and depression although it does not appear he meets DSM 5 criteria for a major axis 1 disorder. [The respondent] is significantly preoccupied with [the applicant] and her behaviour and at times became quite agitated about this within the interview.
In relation to a recommendation for ongoing treatment, Dr F recommended that the respondent continue his medication and follow up through his psychiatrist, Dr Q.
In his updated assessment of the respondent on 14 September 2015, Dr F opined that the respondent’s insight was poor and his judgment fair. He diagnosed the respondent as suffering from an “Adjustment Disorder with depressed mood and said he should continue to see his psychiatrist in terms of his AADD (sic) diagnosis but believed that he should also be seeing a psychologist on a regular basis to help him work through his current concerns with regard to the children and his grief and his sense of loss at not seeing them and his particular preoccupations with their wellbeing given his anxieties about them being with the applicant.”
magellan reports
There have been two Magellan reports provided to the Court by the Department and in particular I note in the first report completed on 22 June 2015 that there was a comprehensive assessment completed in August 2014 in relation to numerous allegations reported to the Department with an unsubstantiated outcome and no child protection concerns identified with either parent.
In the updated Magellan report information is provided from May 2015 and there are some particular sections I will include in these reasons:
Assessment of harm
… [B] … was observably anxious in father’s presence, in particular when father has interjected himself into the interview process and when we began talking to him about his drawing, he struggled to speak at times and his words became unintelligible as he held back tears, he also struggled with tears during general conversations. He was reluctant to explain his drawing and would only state “see the knife”. Although officers were initially concerned by this drawing which aligned with notified concerns; The dynamic observed and in particular the way in which [the respondent] was trying to influence and illicit a particular response from [B’s] lessened Officers initial concern. However this provide some evidence to the alleged behaviour that [the respondent] was attempting to influence the children’s disclosures given that he insistently and frantically pushed [B] too “remember what they had talked about and that he had to tell us about the knife”.
…
[The respondent] although scattered and erratic in his presentation advised that he had withheld the children from school and contact with their mother and he stated that he had interviewed and filmed both children to gain evidence that their maternal family had sexually abused them.
Viewing videos of [the respondent] “interviewing” [B], and reading the interview transcripts and the Family Report of [Ms G]… Upon viewing these video’s it was evident that these interviews were not only inappropriate but were leading with direct questioning, coercive, unrelenting and [B] was observed to be physically uncomfortable with this process.
[The respondent’s] acknowledgment that he had been losing sleep over the whole situation whilst trying to find ‘evidence’ (videos/reviewing files/gathering evidence), as well as the children presenting as very tired, highlighted the dangers of [the respondent’s] obsession and inability to manage his own emotions. His fears of the children being ‘taken’ from the school by [the applicant] and his subsequent withdrawal of the children from society is extreme in its response. It is considered that [the respondent] has not been able to regulate is anxieties and that these anxieties have impacted the children’s emotional wellbeing, their basic care and social interaction.
…
Throughout this assessment there has been limited information to suggest that either child has been harmed whilst in their mothers care. The children’s presentation whilst with their father was in stark contrast to that of when they were observed whilst with their mother. Both children presented as well rested, cheerful and happy to talk about their baby brother and school when in her care.
…It was determined as part of this assessment that ‘from discussions held with [the respondent], [C’s] alleged disclosures in her replies to [the respondent] during the ‘interview’ were incongruent. In fact details of the ‘bed incident’ described by [the respondent] carried out inconsistencies when told to the Police, Child Safety or Mediation. The alleged sexualised behaviours have not been observed by the paternal grandmother (if so, she did not disclose anything of the like), the doctor of the child’s day-care who see her regularly and have not observed any such behaviour’.
…
Assessment of Risk of Harm
…
It is my assessment that [B] and [C] are not currently at risk of suffering future harm of a significant and detrimental nature whilst in the care of their mother…However they are considered to be at risk of suffering future harm of such a nature if they were to return to the care of their father…at the very least until he has undergone a comprehensive psychiatric assessment and engages in ongoing psychological support with directions/recommendations as to how to best address [the respondent’s] anxieties…
The Departments current assessment appears congruent with recent Family Court decisions and it appears that the children’s care and protection needs are currently best met with their mother assuming primary care at this point in time. [The respondent] having any contact with the children which is unsupported at this time is worrying as this could place the children at a reasonable risk of harm.
[errors in original]
school reports
Annexed to the applicant’s most recent affidavit are the children’s school reports and they indicate that the children are performing very well at school and that there are no causes for concern in relation to their presentation or performance at school.
discussion relating to parenting matters
The most significant issue in this case concerns the risk to the children of harm if spending any time with the respondent. The candid comments made by the respondent to the family report writer are, as she says, akin to an admission of sexual impropriety, at least in regards to C. His repeated interrogation of the children, which appears to have involved them being kept awake and badgered, is most certainly abusive in nature. The impact on B in particular has been observed by both Ms G and child safety officers and I accept their evidence.
Dr F’s opinion that the respondent lacks insight and judgment demonstrates the respondent is unable to temper his behaviour even when it is clearly impacting on the children. It has been recommended that he continue to see his treating doctor but I have no evidence that he has done so, nor that he acted on Dr F’s recommendation that he undergo therapy with a psychologist.
The respondent appears to hold unrelenting views that the children are in the midst of a paedophile ring when living with the applicant yet there is no evidence upon which I could be satisfied that there is any truth in any such allegation. The father has said that he would kill everybody to protect his children. I hold grave concerns for the safety of the children and indeed others were the father to spend time with the children even on a supervised basis.
The respondent has made significant allegations of the most heinous kind against the applicant but has not provided any evidence at all to substantiate such allegations. The applicant denies the allegations.
While it is a very big step to deny the children the right to have a meaningful or indeed any relationship or contact with their father I cannot be satisfied that the children would be protected from probable emotional or psychological if not physical harm if they spend any time with the respondent.
Lest it be in any doubt, I make the finding that there is an unacceptable risk of the children being exposed to emotional, psychological and/or physical harm if they have time with their father. I particularly base this finding on the observations and opinions of Ms G, Dr F and Child Safety Officers as outlined above. I accept their evidence.
I accept the submissions of counsel for the applicant and the Independent Children’s Lawyer that even cards or presents to the children at special times is not in their best interests. It is likely to be confusing for the children and given Ms G’s opinion that the children have no understanding that the behaviour of the respondent may in fact be grooming behaviour it would place them at risk to even receive that limited form of communication.
The objective evidence from Ms G and the children’s school shows that the children are functioning well in the applicant’s household and Ms G’s description of the presentation of the children with the applicant compared to when the children were with the respondent are quite remarkable, as are the observations of the child safety officers.
The children have expressed to the mother and to Ms G that they miss the respondent and I have no doubt that they do but for the reasons articulated I cannot be satisfied that spending any time or communicating with their father could occur in a safe environment.
The applicant appears to be managing the care of the children well. She no longer requires medication to treat her depression and anxiety. She has significant physical and emotional support from her mother and Mr P.
The respondent has not spent any time with the children since May 2015. He rejected any prospect of seeing the children in a supervised setting. He pays no child support for them. He has not been involved in any decisions involving their care since early 2015.
There is an existing Protection Order in place where the applicant and children are named as aggrieved persons.
The presumption that it is in the best interests of the children for the parties to have equal shared parental responsibility does not apply because there are, as I have found, reasonable grounds to believe a parent has engaged in abuse of a child, in particular, B and there are reasonable grounds to believe the respondent has engaged in family violence as defined in the Act.
Accordingly, I propose to make the parenting order sought by the applicant and supported by the Independent Children’s Lawyer.
property
As held by the High Court the discretion exercised pursuant to s 79 (s90SM in relation to de facto couples) of the Act is extraordinarily wide.[5] That said it must be exercised in accordance with legal principle.[6]
[5] De Winter & De Winter (1979) FLC 90-605; Norbis v Norbis (1986) FLC 91-712; Stanfordv Stanford (2012) FLC 93-518.
[6] Ibid.
The starting point is to consider whether it is just and equitable to make an Order at all, by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. Secondly, in exercising the discretion conferred by s 90SM it should be borne in mind that there is no presumption that the parties’ rights to or interests in property are or should be different from those that currently exist. Thirdly, the consideration of whether it is just and equitable to make an Order should not be considered by reference only to the matters in s 90SM(4).[7]
[7] Stanford (supra); Bevan & Bevan (2013) FLC 93-545.
The Full Court in Bevan observed that while the High Court did not disapprove of the ‘four step process’ neither did it approve of it. The Full Court noted:
71. Stanford will also serve as a reminder that the four step process “merely illuminates the path to the ultimate result”. Any future restatement of that process should incorporate acceptance of the fact that the power to make any order adjusting property interests is conditioned upon the court finding that it is just and equitable to make an order.
Is it just and equitable to make an order?
The assets and liabilities of the parties are minimal.
Asset/liability
Owned
Estimated value
I Street, J Town
Jointly
275,000
Mortgage
Jointly
(218,171)
Net
56,829
Motor vehicle (purchased after separation)
Applicant
5,000
MLC Super
Respondent
14,885
Sunsuper Superannuation Fund
Respondent
7,246
Loan to S Finance (car repossessed)
Applicant
(24,768)
Legal Aid Queensland
Applicant
(20,937)
Legal Aid Queensland
Applicant
(11,599)
I am satisfied given the only asset is in joint names that it is in the just and equitable to make an Order.
Having determined that an Order is appropriate, I then turn to consider the contributions each party has made under s 90SM(4) and any relevant matters under s 90SF(3).
Section 90SM(4) relevantly provides:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, …:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, …:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
…
(e) the matters referred to in subsection 90SF(3) so far as they are relevant; and
…
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
Section 90SF(3) relevantly provides:
The matters to be so taken into account are:
(a)the age and state of health of each of the parties … and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
(iii)and the rate of any such pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all the circumstances is reasonable; and
(iv)…
(q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and …
The applicant submits that contributions up to the date of separation should be regarded as largely equal. I accept that submission.
After separation the children have lived primarily with the applicant and certainly since May 2015. The applicant has provided for the children since that time. The respondent has largely paid the mortgage repayments although he alone has had the benefit of living in the property. I note that the mortgage repayments are currently in arrears. I make no adjustment to the contribution assessment post separation.
If there are any net proceeds from the sale of the home the applicant argues that she should receive them as she will have the ongoing support of the two children and is unlikely to receive any contribution from the respondent. She is currently unemployed but caring for three children at this time. She is not currently living with Mr P although I note he is self employed and is self-sufficient.
The respondent will have considerable debt in the nature of the car loan and contribution to Legal Aid Queensland should that be called upon. If those sums are all to be repaid and the home sells for the estimated $275,000 there will be insufficient funds even to pay out these debts. Even if the applicant is not ultimately required to pay all of the debt to Legal Aid Queensland there is likely to be very little left from the proceeds of sale.
There is very little by way of superannuation, only about $22,000. The applicant seeks a superannuation split of seventy-five percent of each policy.
I note that I have already referred to the only evidence before me from the respondent in relation to his financial circumstances and although dated, it would indicate that he is unemployed.
Having regard to the relevant s 90SF (3) matters as identified and the very modest pool of net assets, I consider the order sought by the applicant to be just and equitable and I am satisfied that procedural fairness has been afforded to the trustees of the superannuation funds.
The order sought by the applicants includes that she be appointed as trustee for sale of the property. I note that earlier this year, an Order was made for the sale of the property and that the respondent appealed against that Order. The appeal was deemed abandoned when the respondent took no action to progress it. I also note from the annexures to the applicant’s affidavit that there were considerable difficulties arranging the appointment of an agent, having the property presented in an appropriate way for inspection and in dealing with the respondent when offers were made. I am satisfied that it is appropriate in these circumstances to appoint the applicant as trustee for sale of the property. I am also satisfied, given the difficulties to which I have already referred, that the applicant should have sole use and occupation of the property and that 28 days from the date of this Order is an appropriate time to allow the respondent to vacate the premises.
For those reasons I make the orders set out above.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 13 December 2016.
Associate:
Date: 16 December 2016
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