McKinley and Norman (No 2)
[2011] FamCA 855
FAMILY COURT OF AUSTRALIA
| MCKINLEY & NORMAN (NO 2) | [2011] FamCA 855 |
| FAMILY LAW – CHILDREN – final orders – parental responsibility – whether the presumption for equal shared parental responsibility in s 61DA has been rebutted – where the mother suffers from delusional beliefs – where equal shared parental responsibility may be difficult to implement – where the parties and Independent Children’s Lawyer propose that orders be made for equal shared parental responsibility – best interests – orders that the parties have equal shared parental responsibility. FAMILY LAW – CHILDREN – final orders – with whom a child lives – where the mother alleges that the father has sexually and physically abused the child – where the mother suffers from delusional beliefs – where the allegations of physical and sexual abuse have not been established – where the Court is not satisfied that the father is an unacceptable risk to the child – where the mother has been the primary caregiver for the child – best interests – orders that the child live with the mother and spend substantial and significant time with the father. FAMILY LAW – PROPERTY SETTLEMENT – adjustment of property interests – where the parties agree on the assets, liabilities and superannuation except for one liability sought to be included by the wife – where the husband alleges that the liability is not legally enforceable – where the liability was minimal and made little overall difference to the outcome – where contributions were assessed at 60:40 in favour of the wife – where the wife will be the primary caregiver of the parties’ child – where the husband has a greater income – adjustment of 8 per cent in favour of the wife upon consideration of s 75(2) factors – asset pool divided 68:32 in favour of the wife |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 60K, 61DA, 65DAA, 65D(1), 69ZN, 69ZQ, 69ZT, 69ZU, 69ZV, 69ZW, 69ZX, 75(2) & 79. |
| Biltoft and Biltoft (1995) FLC 92-614 M & M (1988) 166 CLR 69 MRR v GR (2010) 263 ALR 368 N and S and the Separate Representative (1996) FLC 92-655 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 |
| APPLICANT: | Mr McKinley |
| RESPONDENT: | Ms Norman |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 8702 | of | 2007 |
| DATE DELIVERED: | 4 November 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 6-10 June 2011 & 14-16 June 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell, SC |
| SOLICITOR FOR THE APPLICANT: | Millie Whyte |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | Pigdon Norgate Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
A. Children’s Orders
All previous orders in relation to the child are discharged.
The parents have equal shared parental responsibility for J born … 1998.
Each of the parents shall do all things necessary on his/her part to ensure that the child attends the first available appointment with Dr B for the purpose of establishing a treatment plan for the child, if Dr B considers such a treatment plan appropriate, and thereafter each parent shall:
(a)authorise Dr B to provide written and/or oral reports to both of them, such treatment and reports shall be at the equal shared cost of the mother and father;
(b)follow any and all recommendations of Dr B with respect to implementation of the treatment plan, including any treatment recommended for either or both of the parents.
Unless the parents otherwise agree the child shall spend time with the father and live with the father as follows:
(a)each alternate Saturday from 10.00 am until 5.00 pm commencing Saturday 12 November 2011 until the end of December 2011;
(b)commencing on 6 January 2012 until commencement of school term each Friday from 10.00 am until 7.00 pm and each Saturday from 10.00 am until 7.00 pm;
(c)commencing in Term 1 2012 during school terms:
(i)in the first week of the two-week cycle from after school on Thursday until the commencement of school the following Monday or if Monday is a public holiday until the commencement of school on Tuesday;
(ii)in the second week of each two-week cycle from after school on Wednesday until the commencement of school the next day;
(d)during school holidays from first term school holidays in 2012 in even numbered years from 5.00 pm on the Friday that is closest to the day that is half-way between the first and last days of the school holiday period until the recommencement of school on the first day of the following term
(e)during school holidays from first term school holidays in 2013 in odd numbered years from the conclusion of school on the last day of each term until 5.00 pm on the Friday closest to the day that is half-way between the first and last days of the school holiday period;
the child shall otherwise live with the mother when he is not living with the father pursuant to the above orders.
The previous Orders shall be suspended as necessary for the child to spend time with the parents as follows:
(a)On the child’s birthday with the father:
(i)from 3.00 pm until 8.00 pm if it falls on a weekday or a Saturday; or
(ii)from 9.00 am until 2.00 pm if it falls on a Sunday;
(b)On Christmas Day in odd-numbered years from 9.00 am until 5.00 pm with the mother;
(c)On Christmas Day in even-numbered years from 9.00 am until 5.00 pm with the father;
(d)On Mother’s Day from 9.00 am until 6.00 pm with the mother;
(e)On Father’s Day from 9.00 am until 6.00 pm with the father.
All changeovers other than at the child’s school shall be at the mother’s residence unless otherwise agreed between the parties.
The parent having the care of the child from time to time pursuant to these Orders shall ensure that the child is able to have telephone communication with the other parent at any reasonable time.
In the event that the child suffers illness or injury requiring hospital admission, the parent having the care of him at that time shall immediately advise the other parent and provide the hospital with contact details for the other parent, and neither parent shall do anything to prevent the other parent form attending at the hospital subject to the directions of the treating team.
The Independent Children’s Lawyer is authorised to provide to Dr B:
(a)a copy of these Orders and Reasons of the Honourable Justice Dawe;
(b)a copy of the report of the single expert Prof Q dated 29 April 2011;
The mother shall attend upon Dr H as often as is recommended by him.
The Independent Children’s Lawyer is authorised to provide to Dr H:
(a)a copy of these Orders and Reasons of the Honourable Justice Dawe;
(b)a copy of the report of the single expert Prof Q dated 29 April 2011;
The appointment of the Independent Children’s Lawyer shall continue for 12 months from the date of these Orders.
Each parent shall advise the other of any change of his/her residential address or contact telephone number.
The Independent Children’s Lawyer is authorised to obtain reports from Dr B.
B.Property Settlement Orders
That each party indemnify the other in respect of any or all liabilities (including all personal liabilities) in their respective names.
That the husband hold and retain the four hundred [400] C Pty Ltd shares on trust for the child until he attains the age of 18 years.
That hereafter the husband and wife be solely, legally and beneficially entitled to the exclusion of the other to all real and personal property of whatsoever kind and nature in their respective ownership, possession and/or control at this date, including but not limited to, any money on deposit, shareholdings, insurance policies, superannuation entitlements, motor vehicles, real estate, furniture and personal effects.
Save as to the question of costs all applications are dismissed.
Liberty to apply for consequential orders.
IT IS NOTED that publication of this judgment under the pseudonym McKinlay & Norman (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: SYC 8702 of 2007
| Mr McKinley |
Applicant
And
| Ms Norman |
Respondent
REASONS FOR JUDGMENT
Introduction
The father Mr McKinley and the mother Ms Norman seek orders dealing with both children’s issues and financial matters. The children’s issues concern the child of the parties J who was born in 1998 and is now aged 13.
Hearing
At the final trial which commenced on 6 June 2011 in the Sydney Registry, the applicant father was represented by Mr Schonell, SC, the respondent mother by Mr Gould and the Independent Children’s Lawyer by Ms Falloon. For reasons which were given on 6 June 2011 I refused the mother’s application that the trial be adjourned.
The trial continued until 16 June 2011 when judgment was reserved.
Brief background and orders sought
The father was born in 1956 and is now aged 54. The mother was born in 1955 and is now aged 55.
In 1987 the mother was in a relationship with her first husband. In 1987 the mother purchased the farm at D Town in the E Region of NSW. The mother’s first marriage ended in approximately 1991.
The parties commenced a de facto relationship in 1995 and married in 1996.
The child was born in 1998. He turned 13 shortly after the trial.
The mother makes allegations in her affidavit and evidence in chief about observations she made which she says form the basis for her belief that the father has sexually and physically abused the child.
In approximately June or July 1999 the father and mother attended upon Mr and Ms F being persons described by the mother as “therapists”.
The mother alleges the parties separated in October 1999.
The father alleges in his chronology that the parties separated for the first time in October 2000 and separated finally in November 2002.
In 2001 the mother moved to a property at G Town with her brother. The mother and her brother had inherited this property from their parents.
In about September 2001 the mother was referred to H Hospital. She was detained for four weeks when diagnosed as suffering from delusions.
Shortly thereafter the mother was diagnosed with a brain tumour for which she underwent surgery in November 2001. During this time the father moved into the G Town property to assist in caring for the child and the mother.
Since 2002 the father has not had any unsupervised time with the child. All visits and contact have been in the wife’s presence. The child has not spent any time overnight with the father.
The parties were divorced on 17 January 2008.
In June 2009 the father filed his Initiating Application for final orders. This application sought orders providing for the child to live with the mother and for him to spend time with the father each week from 5.30 pm Friday until 6.30 pm Saturday and during school holidays.
The application of the father also sought final orders for property settlement in which he sought that the wife pay the sum of $120,000 to him and that otherwise each party retain the assets in their relative possession or control.
In August 2009 the mother filed her Response to the Initiating Application. In that Response she sought orders dismissing the father’s application for leave to commence property settlement proceedings. The mother sought final orders that she have sole parental responsibility for the child, that the child live with her and
4. That [the child] spend time with the husband as agreed between the parties.
5. That the time [the child] is to spend with the husband pursuant to Order 4 be supervised by the wife or a Children’s Contact Service Centre as agreed between the parties.
At the same time the mother filed a Notice of Child Abuse in which the mother relied upon the affidavit which set out allegations then made in relation to abuse.
Following the referral of the matter to the Magellan Programme, the Notice of Abuse was referred to the Department of Community Services. An Independent Children’s Lawyer was appointed to represent the child.
In February 2010 a consent order was made by Judicial Registrar Loughnan (as he then was) giving leave to the father to proceed with the property settlement claims.
Following the release of the Magellan Report dated 12 February 2010 the parties attended upon Dr Q who prepared the Family Report. In May 2011 Her Honour Justice Ryan released Dr Q’s report. The matter was listed for final hearing for the 5 days commencing 6 June 2011.
On 26 May 2011, Her Honour Justice Ryan refused the mother’s application to adjourn the trial.
On 30 May 2011 the father filed a further amended application (document 22) in which he sought the following final orders:
PROPERTY
1. That the wife forthwith transfer to the Husband into a bank account nominated by the Husband the sum of $120,000 such lump sum to be by way of property settlement.
2. That except as otherwise provided in these Orders, the Husband and the Wife are each entitled to be the sole legal and beneficial owners of all items of property including real property, money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
CHILDREN
3. That the parties have joint equal shared parental responsibility in consultation with each other with regard to major long term issues including but not limited to issues relating to [the child’s] education, religion, cultural upbringing and health.
4. That each party has sole responsibility for the day to day care and welfare of [the child] during periods as the child is with each party respectively.
5. That commencing immediately [the child] shall spend time with the Father as follows:
5.1 Each Saturday from 10.00 am until 7.00 pm until the commencement of the December 2011 school holiday period.
5.2 On the second Wednesday of each month from after his sports practice until 8.30 pm.
5.3 Commencing on the first weekend of the December 2011 school holiday period the child shall spend each Friday from 10.00 am to 7.00 pm and each Saturday from 10.00 am to 7.00 pm.
5.4 Commencing in Term 1 2012 [the child] shall spend each Friday from after school until 7.00 pm on Saturday and each alternate Sunday from 10.00 am to 7.00 pm.
6. Commencing from the last day of Term 1 2012 [the child] shall live with the Father.
7. Commencing Term 2 2012 [the child] shall spend time with the mother every alternate week from after school on Thursday to 6.00 pm on Sunday.
8. At any other times as agreed to between the parties.
9. Commencing in 2012 during the school holiday periods (with the exception of the March/April 2012 holiday period), the parties shall each have one half of the school holiday period.
10. In respect of Christmas Day 25 December 2011 and each alternate year thereafter and notwithstanding anything else herein contained, [the child] shall spend time with the Father from 8.00 am on Christmas Day until 5.00pm on Christmas Day and shall alternate, accordingly, each year thereafter.
11. In respect of Christmas Day 25 December 2012 and Boxing Day 26 December 2012 and each alternate year thereafter and notwithstanding anything else herein contained, [the child] shall spend time with the Father from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day and shall alternate, accordingly, each year thereafter.
12. In the event that the child is spending time with the Mother on Father’s Day the Father shall have time to spend with [the child] from 9.00 am until 6.30 pm on Father’s Day.
13. In the event that [the child] is spending time with the Father on Mother’s Day the Mother shall have time to spend with [the child] from 9.00 am until 6.30 pm on Mother’s Day.
14. In the event that [the child] is living with the Mother on the Father’s birthday then if it is a school day he shall spend time with the Father from after school until 8.00 pm and if the birthday falls on a weekend he shall spend time with the Father from 9.00 am until 6.30 pm on that day.
15. In the event that [the child] is living with the Father on the Mother’s birthday then if it is a school day he shall spend time with the Mother from after school until 8.00 pm and if the birthday falls on a weekend he shall spend time with the Mother from 9.00 am until 6.30 pm on that day.
16. That the Father be at liberty to have daily telephone and internet communication with [the child] until [the child] lives with the father.
17. That each party shall be at liberty to attend all school and extra-curricular functions involving [the child].
18. That each party undertakes to the court to forthwith notify the other in the case of an emergency.
19. That the Wife pay the Husband’s costs of, and incidental to these proceedings.”
On 1 June 2011 the mother filed her Further Amended Response to the Initiating Application. The final orders sought by the wife were:
PROPERTY
1. That from the date of any Orders, the parties each indemnify the other in respect of any and all liabilities (including all personal liabilities) in their respective means.
2. Subject to any other Order to the contrary, the husband and the wife be solely, legally and beneficially entitled to the exclusion of the other, to all real and personal property of whatsoever kind and nature in their respective ownership, possession and/or control at the date of any Orders, including but not limited to any money or deposit, shareholdings, insurance policies, superannuation entitlements, motor vehicles, real estate and furniture and personal effects.
PARENTING
3. That the wife make and attend appointments with a qualified psychiatrist as approved by this Court, such appointment to be on the frequency recommended by such psychiatrist, and the wife will follow all recommendations proposed by such psychiatrist as to treatment including the medication.
4. That subject to Order 3, the parties have joint parental responsibility in relation to the child J (“the child”) born…1998, including making decisions about the major long term issues in relation to the care, welfare and development of the child.
5. That subject to Order 3, the child live with the wife.
6. That the child spend time with the husband as ordered by this Court.
COSTS
7. That the husband pay the wife’s costs of, and incidental to these proceedings.
On 10 June 2011 the Court was provided with Minutes of Order proposed by the mother which sought that the parties have joint parental responsibility for the child, that the child live with the mother and “that the child spend such time with the father as is agreed between the parties having regard to the child’s views about spending such time”. The proposal was that that time be supervised by the mother or an independent supervisor paid for by the father. The mother also proposed that the child attend upon Dr B or another appropriately qualified professional for a period of not less than six months and that after that period:
in the event that [the child] expresses a view that he wishes to spend time with the father on an unsupervised basis, the mother not do anything to prevent him spending such time as he wishes.
The proposed orders provided for Dr B to provide the services and report at the equal shared cost of the parties.
At the conclusion of the trial the Independent Children’s Lawyer provided the Court with Minutes of Order proposed by the Independent Children’s Lawyer, which are as follows:
1. All previous orders are discharged.
2. The parents shall have equal shared parental responsibility for the child [J], born on … 1998 (“ the child”).
3. Each of the parents shall do all things necessary on his/her part to ensure that the child attends the first available appointment with [Dr B] for the purpose of establishing a treatment plan for the child, and each parent shall:
a. authorise [Dr B] to provide written and/or oral reports to both of them, and share the cost, if any, of such reports;
b. follow any and all recommendations of [Dr B] with respect to implementation of the treatment plan, including any treatment recommended for either or both of them.
4. Unless the parents otherwise agree, the child shall spend time with the father and live with the father as follows:
a. for a period of six months: on each alternate Saturday for two hours, at the [I Region] Contact Service, [K Town], New South Wales, and the father’s wife and their child may attend those visits also;
b. thereafter for a period of four months: each Saturday, from 10am until 7pm;
c. thereafter for a period of four months:
i. each Friday from after school on a school day or from 5pm on a non-school day, until 7pm the next day; and
ii. on each alternate Sunday from 10am until 7pm;
d. thereafter:
A. During school terms:
i. in the first week of each two-week cycle, from after school on Thursday until the commencement of school the following Monday;
ii. in the second week of each two-week cycle, from after school on Wednesday until the commencement of school the next day;
B. During school holidays in odd-numbered years, from the conclusion of school on the last day of each term until 5pm on the Friday closest to the day that is half way between the first and last days of the holiday period.
C. During school holidays in even-numbered years, from 5pm on the Friday that is closest to the day that is half way between the first and last days of the holiday period, until the re-commencement of school on the first day of the following term.
5. [The child] shall live with the mother when he is not living with the father pursuant to Order 4.
6. Orders 4 and 5 shall be suspended as necessary for [the child] to spend time with the parents as follows:
i. On the child’s birthday: with the father from 3pm until 8pm if it falls on a weekday or a Saturday, or from 9am until 2pm if it falls on a Sunday;
ii. On Christmas Day in odd-numbered years: from 9am until 5pm with the mother;
iii. On Christmas Day in even-numbered years: from 9am until 5pm with the father;
iv. On Mothers’ Day: from 9am until 6pm with the mother;
v. On Fathers’ Day: from 9am until 6pm with the father.
7. To facilitate Order 4a:
a. within seven days both parents shall complete an intake assessment with the [I Region] Contact Service in order that the child can begin to spend supervised time with the father at the earliest possible date;
b. the father shall pay the costs of the [I Region] Contact Service.
8. In the event that the [I Region] Contact Service is unable to supervise the child’s time with the father pursuant to Order 4a, then the parents or either of them shall advise the Independent Child’s Lawyer who shall nominate another independent supervisor.
9. All changeovers other than at the child’s school shall be at the mother’s residence, unless otherwise agreed between the parents.
10. The parent having the care of the child from time to time pursuant to these Orders shall ensure that the child is able to have telephone communication with the other parent at any reasonable time.
11. In the event that the child suffers illness or injury requiring hospital admission, the parent having the care of him at that time shall immediately advise the other parent and provide the hospital with contact details for the other parent, and neither parent shall do anything to prevent the other parent from attending at the hospital, subject to the directions of the treating team.
12. The Independent Child’s Lawyer is authorised to provide to [Dr B]:
a. a copy of these Orders;
b. a copy of the report of the single expert [Prof Q] dated 29 April 2011.13. The mother shall attend upon [Dr H] as often as is recommended by him.
14. The Independent Child’s Lawyer is authorised to provide a copy of these Orders to [Dr H].
15. The appointment of the Independent Child’s Lawyer shall continue for 12 months from the date of these Orders.
16. Each parent shall advise the other of any change of his/her address or contact telephone number.
17. The Independent Child’s Lawyer is authorised to obtain reports from [Dr B].
The Minutes of Order proposed by the father at the conclusion of the trial proposed orders in the same terms as paragraphs 2, 3, 10, 11, 12, 13, 14, 15, 16 and 17 of the Independent Children’s Lawyer proposed minutes. The final Minutes of Order proposed by the father also sought orders:
…
4.That commencing immediately [the child] shall spend time with the Father as follows:
4.1Each Saturday from 10.00 am until 7.00 pm until the commencement of the December 2011 school holiday period;
4.2On the second Wednesday of each month from after his sports practice until 8.30 pm;
4.3Commencing on the first weekend of the December 2011 school holiday period [the child] shall spend each Friday from 10.00 am to 7.00 pm and each Saturday from 10.00 am to 7.00 pm;
4.4Commencing in Term 1 2012 the child shall spend each Friday from after school until 7.00 pm on Saturday and each alternate Sunday from 10.00 am to 7.00 pm.
5Commencing from the last day of Term 1 2012 [the child] shall live with the Father.
6Commencing Term 2 2012 [the child] shall spend time with the mother every alternate week from after school on Thursday to 6.00 pm on Sunday.
7At any other times as agreed to between the parties.
8Commencing in 2012 during the school holiday periods (with the exception of the March/April 2012 holiday period), the parties shall each have one half of the school holiday period.
9In respect of Christmas Day 25 December 2011 and each alternate year thereafter and notwithstanding anything else herein contained, [the child] shall spend time with the Father from 8.00 am on Christmas Day until 5.00 pm on Christmas Day and shall alternate, accordingly, each year thereafter.
10In respect of Christmas Day 25 December 2012 and Boxing Day 26 December 2012 and each alternate year thereafter and notwithstanding anything else herein contained, [the child] shall spend time with the Father from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day and shall alternate, accordingly, each year thereafter.
11In the event that [the child] is spending time with the Mother on Father’s Day the Father shall have time to spend with the child from 9.00 am until 6.30 pm on Father’s Day.
12In the event that the child is spending time with the Father on Mother’s Day the Mother shall have time to spend with the child from 9.00 am until 6.30 pm on Mother’s Day.
13In the event that [the child] is living with the Mother on the Father’s birthday then if it is a school day he shall spend time with the Father from after school until 8.00 pm and if the birthday falls on a weekend he shall spend time with the Father from 9.00 am until 6.30 pm on that day.
14In the event that [the child] is living with the Father on the Mother’s birthday then if it is a school day he shall spend time with the Mother from after school until 8.00 pm and if the birthday falls on a weekend he shall spend time with the Mother from 9.00 am until 6.30 pm on that day.
15That each party shall be at liberty to attend all school and extra curricular functions involving [the child].
16That each party undertakes to the court to forthwith notify the other in the case of an emergency.
17That the wife pay the Husband’s costs of, and incidental to these proceedings.
In relation to property settlement proceedings the father sought the following orders:
2.That the Wife forthwith transfer to the Husband into a bank account nominated by the Husband the sum of $103,000 such lump sum to be by way of property settlement.
3.That except as otherwise provided in these Orders, the Husband and the Wife are each entitled to be the sole legal and beneficial owners of all items of property including real property, money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.”
On 16 June 2011 the Court was provided with Minutes of Order proposed by the mother which were as follows:
1.Orders in accordance with paragraphs 1, 2, 5, 7, 8, 12, 13, 14, 15 and 16 of the Minute of Order proposed by the Independent Children’s Lawyer.
2.That each of the parents do all things necessary to ensure that [the child] attend the first available appointment with an appropriately qualified psychiatrist as recommended by [Dr Q] having regard to the mother’s residence being at [G Town] for the purpose of establishing a treatment plan for [the child], and each parent shall:
(a)authorise such psychiatrist to provide written and/or oral reports to both of them, and share the cost, if any, of such reports;
(b)follow any and all recommendations of such psychiatrist with respect to the implementation of the treatment plan.
That pending further order: -
3.Order in accordance with paragraph 4(a) of the said Minutes of Order, save that the period of time at the said contact service be 12 months.
4.That at the end of the said 12 month period, the said psychiatrist prepare a report as to [the child’s] views about spending time with the father on an unsupervised basis, and cause a copy of such report to be forwarded to each party, the costs to be shared equally between them.
5.That the father attend upon such psychiatrist as is recommended by [Dr Q] as is recommended by that psychiatrist.
6.That the ICL is authorised to provide the psychiatrist referred to in Order 5 with copies of:
1. Orders made by Dawe, J
2. [Dr Q’s] report of April 2011
3. Reasons for Judgment of Dawe, J.”
Main Issues
The main issues concerning the child related to:
(i)the mother’s allegations that the father had physically and sexually abused the child;
(ii)if the father’s denials of such abuse were accepted whether the mother’s beliefs indicated she was delusional to an extent that seriously reduces her ability to provide appropriate care for the child;
(iii)the impact upon the child of any change in his care arrangements and the father’s limited experience in providing for the child were also relevant factors.
The main issue in relation to financial matters related to the assessment of the husband’s contributions to the properties owned by the wife being one property she owned prior to the commencement of cohabitation and her share of the property which she inherited during the relationship.
At the commencement of the hearing the father sought an assessment of contributions during the relationship and post separation at 40 per cent to the husband and 60 per cent to the wife. He also sought a further adjustment of 10 per cent in his favour should he be successful in obtaining orders that the child reside primarily with him.
At the commencement of the trial the mother sought orders that she retain the assets and liabilities and superannuation in her name. Upon the mother’s counsel’s calculations this meant that the mother would receive 68 per cent of the net assets, leaving the father retaining his assets and liabilities representing 32 per cent.
It was agreed by the parties that the father would hold 400 C Pty Ltd shares in his name upon trust for the child.
The witnesses and summary of their evidence
The father relied upon the affidavit of himself filed on 2 June 2011, Financial Statement filed on 23 May 2011 and his oral evidence. He also relied upon the affidavits (both filed on 2 June 2011) and the oral evidence of his sister Ms L and his present wife Ms M.
The father gave evidence and was cross-examined at length. He is an Executive at N Pty Ltd. He admitted his attendances upon brothels, massage parlours and accessing pornography in the past. He also gave detailed evidence about his compliance with the mother’s arrangements for supervision and the context in which he signed the Statutory Declarations and Will.
The father gave appropriate evidence when asked to consider the difficulties the child would experience and how he would assist the child in coping with any changes to his living arrangements.
The father acknowledged that the child’s adaptation to different living arrangements may not be trouble-free. He asserted that the positive family environment and experiences with him would assist the child.
In his oral evidence the father was not significantly challenged.
The father’s sister, Ms L was supportive of the father. She confirmed that there had been no abuse in her family. The father’s sister said that she would be available to supervise the father’s time with the child once a month.
The father’s wife, M, provided an affidavit of evidence-in-chief and was cross-examined. Ms M is aged 42. She married the father in 2009. There is one child of the marriage, O who was born in 2010. Her evidence was supportive of the father. Ms M has only met the child on approximately seven occasions at soccer matches, the mother’s home on one occasion and at the father’s sister Ms L’s home on Christmas Day in 2007 and 2008. Her evidence indicated that she would support the father in the care of the child. She was not significantly challenged in her cross-examination.
The mother relied upon her oral evidence and the affidavit filed on 2 June 2011. The mother relied upon the oral evidence and affidavits (being affidavits all filed on 2 June 2011) of the following witnesses:
(1)Mr P (mother’s nephew);
(2)Ms Q (friend);
(3)Ms R (friend);
(4)Dr P (mother’s sister);
(5)Mr T (mother’s brother);
(6)Mr U (solicitor);
(7)Ms V (friend);
(8)Ms W (mother’s sister).
The mother also relied upon the affidavit of her friend Ms X filed on 6 June 2011 and the affidavit of a former farm worker Mr Y whose affidavit was filed on 10 June 2011.
The mother was cross-examined at length.
The mother’s nephew, Mr P, is works for Z Pty Ltd. He confirmed his view that during the time he spends with the child he presents as a normal, healthy 13 year old who enjoys physical activity. He had observed the child with the father approximately six times in the last three years. Mr P said that when the child showed the billy-cart to his father, the child was excited. He was aware that the child’s mother had alleged that the child’s father had harmed him, but had not observed any incident himself.
The evidence of the mother’s friends, Ms Q and Ms R, and the mother’s sister Ms W, was supportive of the mother. They were aware of the allegations about the father abusing the child. They supported the mother.
The mother’s brother, Mr T, with whom the mother and the child have resided for many years, gave evidence and was cross-examined. He indicated that he also believed that the father was a paedophile and had physically and sexually abused the child. He relied primarily upon the allegations made by the mother. He also gave evidence about the child masturbating in his presence and things he heard Mr McKinley say.
When giving his evidence about observing the child masturbating the uncle’s evidence was that he believed the child was behaving in this way “for my benefit”.
Whilst the mother’s brother has observed bruising on the child the marks and bruising observed by the child’s uncle did not establish in any way that the bruising was as a result of abuse by the father.
In his oral evidence, Mr T, agreed that the child liked seeing his father, but said that the child was also scared of his father.
Mr U is a lawyer. His wife is a friend of the mother. He was not aware that the mother had been detained for mental health reasons in September 2001. He confirmed that when the father signed the Will and Statutory Declarations in 1999 and 2001 that the father had shown an “air of resignation”.
The mother relied upon the evidence of her sister Dr P, who is a General Practitioner. Dr P admitted that she did not disclose her sibling relationship with the mother when she wrote a letter on behalf of the mother for an insurance claim.
Dr P conceded in evidence that almost all of the allegations made by the mother (which the mother asserted proved physical and sexual abuse by the father towards the child) had the potential for another plausible explanation. She conceded that the allegations in relation to the father filing the child’s front teeth into a curve were bizarre.
The mother also relied upon evidence of the High School teacher, Ms V.
Her evidence was that her knowledge of the allegations was based entirely upon what the mother had told her. In her recent observations of the child she had seen an improvement in his previously shy behaviour. She observed him in Easter 2011 behaving with his friends in a giggly open manner “indicating the delight of adolescence”.
The Independent Children’s Lawyer relied on the report of the single expert, Dr Q, being the report dated 29 April 2011. Dr Q gave detailed oral evidence.
The Court received the Magellan Report which was information provided by the Community Services Department following the s 91B request made in November 2009. The Magellan Report is dated 12 February 2010.
Several joint balance sheets were filed. The balance sheet provided on 16 June 2011 indicated that the parties agreed all items of assets, liabilities and superannuation save and except item 22 being a liability of the mother for $4,000 in relation to “Access Brain Injury Fees” which the father asserted was not now recoverable, being a debt incurred when the parties were cohabitating.
The Law
(a) Children’s Issues
Part VII of the Family Law Act 1975 (Cth) (“the Act”) contains provisions which the Court must consider when determining parenting orders.
Section 60CA states:
Section 60CA
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61DA states:
Section 61DA
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA (1) to (5) provides:
Section 65DAA
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and (sic)
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity -- the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Section 60CC sets out matters which the Court must consider when determining what is in the child’s best interests:
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Consent orders
(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6)For the purpose of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Island child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
Section 60CG provides:
Section 60CG
Court to consider risk of family violence
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:
(a)is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Section 60K states:
Section 60K
Court to take prompt action in relation to allegations of child abuse or family violence
(1)This section applies if:
(a)an application is made to a court for a Part VII order in relation to a child; and
b)a document is filed in the court, on or after the commencement of this section, in relation to the proceedings for the order; and
(c)the document alleges, as a consideration that is relevant to whether the court should grant or refuse the application, that:
(i)there has been abuse of the child by one of the parties to the proceedings; or
(ii)there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii)there has been family violence by one of the parties to the proceedings; or
(iv)there is a risk of family violence by one of the parties to the proceedings; and
(d)the document is a document of the kind prescribed by the applicable Rules of Court for the purposes of this paragraph.
(2)The court must:
(a)consider what interim or procedural orders (if any) should be made:
(i)to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
(ii)to protect the child or any of the parties to the proceedings; and
(b)make such orders of that kind as the court considers appropriate; and
(c)deal with the issues raised by the allegation as expeditiously as possible.
(2A)The court must take the action required by paragraphs (2)(a) and (b):
(a)as soon as practicable after the document is filed; and
(b)if it is appropriate having regard to the circumstances of the case -- within 8 weeks after the document is filed.
(3)Without limiting subparagraph (2)(a)(i), the court must consider whether orders should be made under section 69ZW to obtain reports from State and Territory agencies in relation to the allegations.
(4)Without limiting paragraph (2)(a)(ii), the court must consider whether orders should be made, or an injunction granted, under section 68B.
(5)A failure to comply with a provision of this section in relation to an application does not affect the validity of any order made in the proceedings in relation to the application.
Section 65D(1) provides:
Court's power to make parenting order
(1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
Section 69ZN provides:
Principles for conducting child-related proceedings
Application of the principles
(1)The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b)in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned against family violence, child abuse and child neglect; and
(b)the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Section 69ZQ provides:
General duties
(1) In giving effect to the principles in section 69ZN, the court must:
(a)decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b)decide the order in which the issues are to be decided; and
(c)give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d)in deciding whether a particular step is to be taken--consider whether the likely benefits of taking the step justify the costs of taking it; and
(e)make appropriate use of technology; and
(f)if the court considers it appropriate--encourage the parties to use family dispute resolution or family counselling; and
(g)deal with as many aspects of the matter as it can on a single occasion; and
(h)deal with the matter, where appropriate, without requiring the parties' physical attendance at court.
(2) Subsection (1) does not limit subsection 69ZN(1).
(3) A failure to comply with subsection (1) does not invalidate an order.
Section 69ZT provides:
Rules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a)the court is satisfied that the circumstances are exceptional; and
(b)the court has taken into account (in addition to any other matters the court thinks relevant):
(i)the importance of the evidence in the proceedings; and
(ii)the nature of the subject matter of the proceedings; and
(iii)the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5)Subsection (1) does not revive the operation of:
(a)a rule of common law; or
(b)a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
Section 69ZU states:
Evidence of family consultants
The court must not, without the consent of the parties to the proceedings, take into account an opinion expressed by a family consultant, unless the consultant gave the opinion as sworn evidence.
Section 69ZV states:
Evidence of children
(1)This section applies if the court applies the law against hearsay under subsection 69ZT(2) to child-related proceedings.
(2)Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.
(3)The court may give such weight (if any) as it thinks fit to evidence admitted under subsection (2).
(4)This section applies despite any other Act or rule of law.
(5)In this section:
"child"means a person under 18.
"representation" includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.
Section 69ZW states:
Evidence relating to child abuse or family violence
(1)The court may make an order in child-related proceedings requiring a prescribed State or Territory agency to provide the court with the documents or information specified in the order.
(2)The documents or information specified in the order must be documents recording, or information about, one or more of these:
(a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;
(b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;
(c)any reports commissioned by the agency in the course of investigating a notification.
(3)Nothing in the order is to be taken to require the agency to provide the court with:
(a)documents or information not in the possession or control of the agency; or
(b)documents or information that include the identity of the person who made a notification.
(4)A law of a State or Territory has no effect to the extent that it would, apart from this subsection, hinder or prevent an agency complying with the order.
(5)The court must admit into evidence any documents or information, provided in response to the order, on which the court intends to rely.
(6)Despite subsection (5), the court must not disclose the identity of the person who made a notification, or information that could identify that person, unless:
(a) the person consents to the disclosure; or
(b)the court is satisfied that the identity or information is critically important to the proceedings and that failure to make the disclosure would prejudice the proper administration of justice.
(7)Before making a disclosure for the reasons in paragraph (6)(b), the court must ensure that the agency that provided the identity or information:
(a) is notified about the intended disclosure; and
(b) is given an opportunity to respond.Section 69ZX states:
Court's general duties and powers relating to evidence
(1)In giving effect to the principles in section 69ZN, the court may:
(a)give directions or make orders about the matters in relation to which the parties are to present evidence; and
(b)give directions or make orders about who is to give evidence in relation to each remaining issue; and
(c)give directions or make orders about how particular evidence is to be given; and
(d)if the court considers that expert evidence is required--give directions or make orders about:
(i)the matters in relation to which an expert is to provide evidence; and
(ii)the number of experts who may provide evidence in relation to a matter; and
(iii)how an expert is to provide the expert's evidence; and
(e)ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
(2)Without limiting subsection (1) or section 69ZR, the court may give directions or make orders:
(a)about the use of written submissions; or
(b)about the length of written submissions; or
(c)limiting the time for oral argument; or
(d)limiting the time for the giving of evidence; or
(e)that particular evidence is to be given orally; or
(f)that particular evidence is to be given by affidavit; or
(g)that evidence in relation to a particular matter not be presented by a party; or
(h)that evidence of a particular kind not be presented by a party; or
(i) limiting, or not allowing, cross-examination of a particular witness; or
(j)limiting the number of witnesses who are to give evidence in the proceedings.
(3)The court may, in child-related proceedings:
(a)receive into evidence the transcript of evidence in any other proceedings before:
(i)the court; or
(ii)another court; or
(iii)a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
Note:This subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.
(4)In proceedings under this Part in which the court is required to regard the best interests of the child as the paramount consideration:
(a)subsection 126H(1) of the Evidence Act 1995 does not apply in relation to information that would:
(i)reveal the identity of a journalist's source; or
(ii)enable that identity to be discovered;
if the court considers that it is in the best interests of the child for the information to be disclosed; and
(b)the court must not direct, under a law of a State or Territory relating to professional confidential relationship privilege specified in the regulations, that evidence not be adduced if the court considers that adducing the evidence would be in the best interests of the child.
Section 140 of the Evidence Act 1995 (Cth) state:
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.In M & M (1988) 166 CLR 69 the High Court of Australia discussed cases dealing with allegations of sexual abuse. At page 75 and 76 it was said:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
Following on at page 76 and 77 it is said by the High Court:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There Dixon J said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court of the Family Court of Australia said:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
Later in the judgment the Full Court in W and W (Abuse allegations: unacceptable risk) (Supra) cited with approval the following passage from the judgment of Fogarty J in N and S and the Separate Representative (1996) FLC 92-655:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
The High Court of Australia decision of MRR v GR (2010) 263 ALR 368 specifically dealt with section 65DAA:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
14. His Honour treated the answer to the firstmentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances. The Full Court acknowledged that his Honour "did not expressly address the issue of whether an equal time arrangement would be 'reasonably practicable’”. However, the Court observed, his Honour went on to consider, at length, the matters to be considered under s 60CC in determining what arrangements are in the child's best interests. But those matters could be relevant only to the question posed by par (a) of s 65DAA(1), not the question in par (b), which required consideration of other, different matters.
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
(b) Financial matters
Section 79 of the Act deals with alteration of property interests. The relevant provisions are:
Alteration of property interests
…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or 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 marriage 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 marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or 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 marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The provisions of section 75(2) are as follows:
Section 75(2)
(2)The matters to be 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 marriage 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 (3), 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;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
(3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
(4) In this section:
“party” means a party to the marriage concerned.
Allegations of sexual abuse and physical abuse
The mother has made allegations that the father has sexually and physically abused the child.
The mother maintained that she and the father separated in or around October 1999. She said that the father moved out of the D Town farm and the child and the mother continued to reside there. Previously the mother had asserted that the separation had taken place in approximately November 2000. The mother does concede however that in the period November 2001 to approximately November 2002, she and the father and the child resided together at the G Town property when the father assisted in caring for the mother and the child following the mother’s period in psychiatric hospital and brain tumour operation.
The mother sets out in her affidavit of evidence-in-chief filed on 2 June 2011 specific evidence which she asserts substantiates her claim of abuse by the father towards the child. Under the heading “Abuse against the child” the particulars are set out in paragraphs 14 to 57 inclusive. In paragraphs 58 to 93 the mother gives detailed comment and response to matters raised in the report of Dr Q.
Paragraphs 14 and 15 of the mother’s affidavit are as follows:
14.I have read the Single Expert Report of [Prof Q], Consultant Psychiatrist (“Prof Q”), dated April 2011. I understand that [Prof Q] believes that the concerns I have in respect of past sexual harm and physical violence towards the child by [Mr McKinley] are likely to be delusional in nature and characteristic of a chronic delusional illness. While I relay my concerns and describe the incidences I sincerely believe occurred below, I realise that [Prof Q] has questioned the validity of my beliefs and, therefore, I am willing to further explore the possibility that my ideas may be delusional. To this end, I made an appointment and attended with [Dr H], Psychiatrist on 25 May 2011 and 1 June 2011. I will continue to consult with him and abide by his recommendations.
15.I have been concerned that [Mr McKinley] may have assaulted the child physically and sexually. I base my belief on my own observations and the disclosures that [Mr McKinley] and the child have made to me. There have been many incidents which have led to my belief over many years. I set out these incidents below.
The first allegation relates to a red mark observed by the mother on the child’s chest when he was approximately two or three months old. Other than the mother’s speculation there is nothing in the evidence which suggests that the father was in any way responsible for the mark on the child’s chest at this time.
The next allegation relates to the father confessing to the mother that he viewed adult pornographic websites, went to brothels and massage parlours. The mother said this occurred when the child was approximately five months old.
Following the discussion between the mother and father about this behaviour and an allegation about him attending upon a prostitute, the father attended a therapist, Ms BB, for a few sessions.
Following those sessions the mother arranged for the father to attend upon Mr & Ms F (“the Fs”) whom the mother describes simply as “therapists”. The father refers to them in his affidavit as “spiritual counsellors”. The mother later told Dr Q in 2010 when she located the “counsellors” Mr & Ms F, she did not realise at the time that they were not psychiatrists or psychologists, but were “new age”. (See page 20 of [Dr Q’s] report).
The mother says that the father commenced seeing the Fs when the child was approximately 12 months old (June 1999) and continued to see them until October 2001.
The father says that both he and the mother attended sessions with the Fs and that he went at the insistence of the mother. At this time the father says that he ceased contact with members of his own family at the insistence of the Fs and the mother.
The mother asserts that the Fs informed her that the father had been sexually abused as a child.
The mother admits that she was involved in the attendances of the father upon the Fs for what was described as “therapy”.
At times prior to the mother’s admission to hospital either the father or the mother lived with the Fs. The child remained in the mother’s care.
In November 1999 the father signed a Statutory Declaration which is Annexure “D” to the mother’s affidavit of evidence-in-chief filed on 2 June 2011 and Annexure “B” to the affidavit of the father filed on 2 June 2011. In that Statutory Declaration the father refers to abrogating his rights of any guardianship of the child. He accepted and agreed that his access to the child “will be limited to supervised access as directed by the testamentary guardian of the child”.
The Statutory Declaration also referred to taking “all reasonable endeavours to ensure that no member of the father’s family will be given unsupervised access to the child henceforth”. Paragraph 6 of the Statutory Declaration is as follows:
6.I declare these things as I consider that my fitness to be a parent has been severely compromised by the realization during a course of therapy, that my upbringing and emotional well-being have been affected by long and sustained sexual, mental, emotional, physical and ritual abuse by members of my family during my childhood and thereafter. I consider and accept that these things have affected the way I feel and behave towards children and this includes the child [J] and it is for this reason that I make this declaration as I am concerned for the safety and welfare of the child [J] McKinley.
7.This declaration is to continue to have full force and effect in respect of my wishes until such time as it is considered that I am fit to resume the role of guardian of the child [J] McKinley by [the Fs], my current therapists.
The father says that he signed the Statutory Declaration because it was a condition of his therapy with the Fs. He also asserts that he was under significant duress from the mother when he signed it, it being a condition that he sign the Statutory Declaration or leave the home and the marriage would be over. (See paragraph 28 of the father’s affidavit filed on 2 June 2011).
Subsequently, when the child was again interviewed alone Dr Q reported the following on page 43:
Interview with the child alone
Asked how he felt about spending more time with his father and [Ms M] (sic) and the new baby, again [the child] was guarded. ‘Probably would be good to do that, but provided my safety could be assured’. He is interested in the new baby and would like to develop a relationship with her.
On page 67 of Dr Q’s report she states:
[The child] expresses a wish for no change in the contact arrangement and not to have any unsupervised time with his father. Assuming that the bruising is not actually occurring, it would seem that he has come to this view mostly as a result of his mother’s influence and ideas, which appear to be manifestations of mental illness but which [the child] has come to accept as reality.
In her oral evidence, Dr Q accepted the possibility as previously indicated that the child was merely reporting these matters in order to please his mother and may not actually believe the abuse occurred.
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The evidence indicates that the child has a close loving relationship with his mother and a much more distant relationship with the father.
the child has developed a relationship with his uncle Mr T, although the evidence, particularly from Dr Q, suggests that this relationship has not been a meaningful one because of the health issues suffered by Mr T.
The mother has had the assistance of her family who have all formed relationships with the child.
The child has only a very limited knowledge of the father’s current wife and has not had an opportunity to form any meaningful relationship with his half sibling due to the restricted time spent with his father since the child was born.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother has indicated that she still believes that the child is at risk in the care of the father and would be at risk in his care even if he was supervised by people who were not paid professional supervisors. She has only a very limited willingness and ability to encourage a close and continuing relationship between the child and the father.
The father has expressed a willingness to allow the child to spend alternate weekends and extended school holiday time with the mother. His view of the mother is that she suffers from delusions and that she cannot be trusted to encourage the relationship between the child and the father. This view is supported by the evidence, particularly that of Dr Q.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The child has lived primarily in the care of the mother for most of his life. He has not had an opportunity to experience normal daily routine in the care of the father. The effect of a change in his day to day care from that of the mother to primarily that of the father would be a significant change, however the likely effect of such a significant change is of necessity only based on speculation due to his strong bond with the mother.
The evidence of Dr Q, under cross-examination, supported the submissions on behalf of the father that it would benefit the child if the change to the father’s primary or any increase in spending time with the father were brought about quickly rather than risk the disruption of a delayed staged process.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
Although the parents live some distance from each other neither parent raised practical difficulty and expense as significant issues. Both parties are able to make appropriate arrangements for the child to maintain his personal relationship with each of them and to have direct contact on a regular basis.
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
and
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The evidence clearly indicates that the mother has an acceptable capacity to provide for the physical, practical, day to day, educational and intellectual needs for the child and apart from her attitude towards the father has demonstrated a responsible attitude in her role as mother. The difficulty in relation to the mother’s capacity is her delusional beliefs which have significantly impacted upon her capacity to provide for the child’s emotional and psychological needs. Her attitude towards the responsibilities of a parent to encourage the relationship between the child and the other parent, is again seriously affected by her delusional beliefs.
The father has not had an opportunity to demonstrate his capacity to provide for the child’s needs. His attitude towards his responsibilities is also restricted. In particular his willingness to comply with the mother’s request for supervision and his abrogation of his responsibilities when he signed the Statutory Declarations raised questions about his attitude and responsibilities.
The father acquiesced in the mother’s demands and restricted his time with the child from 2002 until the commencement of proceedings concerning the child in 2009.
The impact of these factors upon the decision concerning the child’s future is reduced because of the time that has past since the father signed these documents.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The child is now 13. He has for many years resided with his mother and uncle. The child is described as being polite and friendly. Until recently he was being described as reserved. His response to questioning by Dr Q did not indicate any abuse, however, he dissociated when being questioned.
The child is reported to be doing well at school and enjoying the company of school friends and his sporting activities.
Dr Q concluded in her report that the child had been raised in a “grossly abnormal situation psychologically and has dealt with this by isolating or disassociating from awareness any information which might challenge the status quo with his mother”. (Page 73 of Dr Q’s report).
In the report she referred to this as possibly a folie á deux or a a folie á famille however in her oral evidence it was conceded that the child may simply be agreeing with his mother in order not to upset her.
Subsection (h) is not relevant to these proceedings.
(j) any family violence involving the child or a member of the child’s family;
The father gave evidence that he had observed the mother smacking and hitting the child on many occasions. The mother denied this. She said that she had only hit the child once and this was in response to the child punching her. She alleged that her hand went up in response to this action due to what she described as her cerebral injury.
As previously indicated the Court is not satisfied that the child has been subjected to violence by the father, nor that there is an unacceptable risk of the same.
(k)any family violence order that applies to the child or a member of the child’s family; if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
There is no family violence order.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Litigation concerning the child has been before the Court since June 2009. The child is now 13. It would be of significant benefit to the child if litigation between the parents could cease. This factor needs to be borne in mind when considering the types of orders sought by the parties and the Independent Children’s Lawyer. Final orders which clearly directed the parties would also reduce the risk that parents or other persons might try to influence the child inappropriately.
Consideration of matters arising pursuant to s 61DA and s 65DAA
The Court is required to presume that it is in the best interests of the child for the parents to have equal shared parental responsibility unless it is rebutted by evidence that satisfies the Court that it would not be in the best interests for the child’s parents to have equal shared responsibility. Both the child’s parents and the Independent Children’s Lawyer seek orders from the Court that provide for the child’s parents to have equal shared parental responsibility for the child. The Court is therefore required to consider whether the child spending equal time with each of his parents would be in his best interests and whether such equal time is reasonably practicable. The court is also required to consider, if it does not make an order for equal time, whether the child spending substantial and significant time with each of his parents would be in his best interests and whether that would be reasonably practicable.
The provisions of subsection 65DAA(5) set out matters to which the Court must have regard when considering what is reasonably practicable. The notes to that subsection also refer to s 60CC(3)(c) and s 60CC(3)(i).
When considering what is in the best interests of the child it is necessary to again refer to the provisions of s 60CC.
As previously indicated, whilst the parents live some distance from each other, that distance does not affect the reasonable practicality of either equal time or substantial significant time. (s 65DAA(5)(a)).
The mother’s strong belief (although delusional) that the child has been sexually and physically abused by the father, limits her capacity to implement any arrangement for equal time and significantly reduces her capacity to communicate with the father to resolve difficulties that might arise in implementing such an arrangement. (s 65DAA(5)(b) and (c)).
Dr Q’s evidence suggest that an arrangement which immediately brought into place an arrangement for equal time or substantial and significant time, is likely to have a negative impact upon the child. (s 65DAA(5)(d)).
(Section 65DAA(5)(e)). These matters have already been considered under other provisions of s 60CC.
Taking into account all of the evidence and particularly the mother’s delusional beliefs and the father’s lack of experience in providing unsupervised care for the child recently, the best interests of the child indicate that it would not be appropriate to order that the child spend equal time with each of his parents.
However bringing into effect arrangements which would allow the child to spend substantial and significant time with his father is in the child’s best interests.
Summary and conclusions concerning the child’s best interests
Whilst the mother’s delusional beliefs may indicate that equal shared parental responsibility could be difficult to implement on a practical level the Independent Children’s Lawyer and both parties seek orders that the parents have such equal shared parental responsibility. If the parents are able to put into effect the order which they seek, then it would definitely be in the child’s best interests for the parents to consult and co-operate about relevant decisions concerning the child’s future welfare.
The mother has provided appropriate practical day to day care for the child for a considerable period. He is strongly bonded to the mother. The child has developed well. He enjoys his educational, sporting and social activities. The mother has provided for the child well, save and except for her delusional beliefs concerning the father’s alleged abuse of the child.
It is therefore not likely to be in the child’s best interests to immediately remove him from the care of the mother, particularly if the mother is prepared to abide by the orders of the Court and encourage the child to spend substantial and significant time with the father.
The Court has rejected the allegations concerning the father’s alleged sexual and physical abuse. It is also clear that there is no unacceptable risk to the child of any sexual or physical abuse in the care of the father.
The Independent Children’s Lawyer proposed that the child spend time with the father for a period of six months, supervised at a Contact Service each alternate Saturday for two hours. It was then proposed that the time gradually increase from each Saturday, thereafter extending to overnight and increasing to Thursday afternoon until Monday morning each alternate week and after school on Wednesday to the commencement of school the next day in the intervening week.
The Independent Children’s Lawyer also proposed extensive orders in relation to special occasions and school holidays and treatment for both the child and the mother.
The father proposed that he spend unsupervised time with the child immediately commencing each Saturday from 10.00 am until 7.00 pm and each Wednesday after sports until 8.30 pm, extending to each Friday and each Saturday and then from the commencement of Term 1 2012, each Friday after school until 7.00 pm Saturday and each alternate Saturday from 10.00 am until 7.00 pm concluding with an arrangement whereby from the last day of Term 1 in 2012 the child was to live with the father and spend alternate weekends from Thursday after school to 6.00 pm on Sunday with the mother. He proposed other school holiday and special day arrangements.
The mother proposed orders that the child attend upon a psychiatrist recommended by Dr Q and that there be 12 months of professional supervised time for the father. She proposed that the Court order that at the end of the 12 month period the psychiatrist prepare a report as to the child’s views about unsupervised time with the father.
The orders proposed by the mother, which leave the determination of the issues to a psychiatrist and the child’s views in 12 months time, are proposals which continue to place significant responsibility upon the child. This leaves the child at risk of ongoing inappropriate influence.
The father’s proposals for immediate unsupervised time with the child increasing to a complete reversal of primary care arrangements have significant benefits for the child in avoiding the psychological and emotional uncertainty of delayed arrangements, however do not give consideration to the possible risk to the child’s emotional welfare by removing him from his mother’s primary care.
The Court accepts that it is in the child’s best interests for him to be reassured that his mother’s delusional beliefs are incorrect.
The evidence does not establish any need for the father’s time with the child to be supervised. Such supervision, particularly if required to be spent at a Contact Service, would run the risk of the child concluding that such supervision was necessary to protect him. Much of the time the child spends with his father is likely to be in the presence of the father’s wife and his half-sister. On occasions the child might also spend time alone in the company of his father. Such time would provide an opportunity for the child to be reassured that he is not at risk in his father’s care.
It is therefore not necessary for the child, and indeed not in the child’s best interests, for orders to be made that provide for the child’s time with his father to be supervised. It is however in the child’s best interests for there to be a gradual introduction of the substantial and significant time he spends with his father and the father’s family.
Such a gradual introduction should commence with each alternate Saturday from 10.00 am until 5.00 pm until the end of December 2011.
Thereafter the child spending time with the father each Friday from 10.00 am until 7.00 pm and each Saturday from 10.00 am until 7.00 pm would also be appropriate and in the child’s best interests until school term starts in 2012.
Commencing from the first Thursday of Term 1 in 2012 it would be in the child’s best interests to settle into an arrangement whereby he spends time with his father from after school on Thursday until the commencement of school on Monday each alternate week during school term times and for one half of each school holiday period.
These arrangements would permit the child to have the benefit of a relationship with both of his parents, protect the child from the emotional or psychological damage which may be caused by denying him his appropriate relationship with the father and at the same time allow him to continue to enjoy the benefits that have in the past been provided by the mother.
The Independent Children’s Lawyer and the parties proposed that the child receive professional assistance.
The Independent Children’s Lawyer proposed Dr B to assist the child. The father agreed to that order. The mother proposed that the matter be referred back to Dr Q, who would be asked to recommend an appropriately qualified psychiatrist.
The evidence of Dr Q suggests that it would be of benefit to the child to have a suitably qualified person available to assist him if he needs such professional assistance following the orders of the Court.
The orders proposed by the Independent Children’s Lawyer would be a simpler arrangement than a referral back to Dr Q.
The Independent Children’s Lawyer sought an order that the mother attend upon Dr H as often as recommended by him. The Court did not receive a report from Dr H, who is currently the mother’s treating psychiatrist. It seems appropriate for the mother to continue such treatment as Dr H recommends and that Dr H be provided with a copy of these reasons and the Court’s orders.
The father and mother both supported the orders sought by the Independent Children’s Lawyer in relation to Dr H.
The mother also proposed that the father attend upon a psychiatrist recommended by Dr Q. Having heard the evidence, and notwithstanding the concerns about the father’s compliance and disturbing behaviour in signing the Statutory Declarations, accessing pornography and prostitutes, the Court is not satisfied that it is in the child’s best interests for the father to be ordered to attend upon a psychiatrist. This does not prevent the father from seeking any assistance he may decide is appropriate after reading this judgment.
Whilst it is unusual to extend the appointment of the Independent Children’s Lawyer for any lengthy period after judgment, in this particular case it would be in the child’s best interests for the Independent Children’s Lawyer to obtain reports from Dr H and Dr B, to ensure compliance with the Court’s orders and monitor the child’s progress.
Property settlement issues
The parties agreed upon the assets, liabilities and superannuation to be considered. The Court received the joint balance sheet, being the balance sheet “as at 7 June 2011”. All assets, liabilities and superannuation were agreed and the values were agreed, save and except item 22. The husband agreed the amount of $4,000, but did not concede that this amount should be brought into account as a debt now due by the wife. The debt was incurred prior to the separation of the parties (at least before 2002) and was therefore not legally enforceable.
The agreed assets, liabilities and superannuation of the parties are as follows:
| Assets | Ownership | Wife’s Values | Husband’s Values | Agreed/ Disputed | |
| 1 | D Town (NSW) | Wife | $655,000 | $655,000 | Agreed |
| 2 | G Town (NSW) | Wife (22%) | $154,000 | $154,000 | Agreed |
| 3 | 2010 Motor vehicle | Wife | $13,600 | $13,600 | Agreed |
| 4 | 2008 Motor vehicle | Husband | $20,500 | $20,500 | Agreed |
| 5 | CBA account | Wife | $424 | $424 | Agreed |
| 6 | ANZ account | Husband | $20 | $20 | Agreed |
| 7 | ANZ account | Husband | $20 | $20 | Agreed |
| 8 | II Pty Ltd Shares (2,200 shares) | Husband | $3,234 | $3,234 (FS) | Agreed |
| 9 | Jewellery | Wife | $1,000 | $1,000 | Agreed |
| 10 | Furniture and effects | Wife | $2,000 | $2,000 | Agreed |
| 11 | Furniture and effects | Husband | $5,000 | $5,000 | Agreed |
| 12 | Legal fees paid | Husband | $48,550 | $48,550 | Agreed |
| 13 | Legal fees paid | Wife | $89,271 | $89,271 | Agreed |
| Total Assets | $992,616 | $992,619 | |||
| Liabilities | |||||
| 14 | CBA (D Town Property) as at 17/05/11 | Wife | $186,850 | $186,850 | Agreed |
| 15 | Mortgage (G Town Property) | Wife (50%) | $59 | $59 | Agreed |
| 16 | CBA Visa Credit Card (as at 10/05/11) | Wife | $2,088 | $2,088 | Agreed |
| 17 | CBA Mastercard (as at 28/04/11) | Wife | $4,952 | $4,952 | Agreed |
| 18 | ANZ Visa Card | Husband | $173 | $173 | Agreed |
| 19 | ANZ Paycard | Husband | $10 | $10 | Agreed |
| 20 | JJ Pty Ltd Motor Vehicle Lease | Husband | $24,105 | $24,105 | Agreed |
| 21 | Tax liability (as at 25 May 2011) solely in relation to wife’s 2010 income | Wife | $15,888 | $15,888 | Agreed |
| 22 | Access Brain Injury Fees – Rehab | Wife | $4,000 | Not Agreed | |
| 23 | Funds owed to Mr T | Wife | $400 | $400 | Agreed |
| 24 | Funds owed to Ms X | Wife | $4,000 | $4,000 | Agreed |
| 25 | Husband’s borrowing for legal fees | Husband | $31,000 | $31,000 | Agreed |
| Total Liabilities | $273,525 | $269,525 | |||
| Superannuation | |||||
| 26 | Superannuation Fund 1(as at 26 May 2011) | Wife | $94,723 | $94,723 | Agreed |
| 27 | Superannuation Fund 2 | Wife | $94,128 | $94,128 | Agreed |
| 28 | Superannuation Fund 3 | Husband | $388,704 | $388,704 | Agreed |
| 29 | Superannuation Fund 4 | Husband | $10,100 | $10,100 (S) | Agreed |
| Total Superannuation | $587,655 | $587,655 | |||
| Total Net Assets (including superannuation) | $1,306,749 | $1,310,749 |
The wife was not challenged about her initial financial contributions.
The property known as the “D Town” farm (“D Town”) was purchased by the wife in 1987. She owned the farm at the time the parties commenced cohabitation. She did not owe any money on it at that time. It is agreed that the farm is now worth $655,000.
Both parties had other assets at the time of cohabitation, including vehicles and furniture and effects.
The husband concedes that he did not have any significant assets at the time of cohabitation.
The husband’s evidence was that he had undertaken renovations and carried out work on the farm, carrying out improvements to the property.
In mid 1998, the mother and her siblings inherited the property at, G Town (“G Town”) on the death of her mother. This 25 per cent share of the G Town home was estimated to be worth approximately $400,000 at that time. In 2000 the mother sold three per cent of her interest in the G Town home to her brother Mr T. She said that she used the $20,000 he paid her to meet day to day expenses of herself and the child, together with her medical expenses. She now retains a 22 per cent share of the G Town home and her brother Mr T holds the other 78 per cent.
It is agreed that the wife’s 22 per cent interest in the G Town home is now worth $154,000.
The wife has subsequently borrowed money for repairs and maintenance to the farm and G Town property and has further borrowed monies for living expenses and legal fees.
The wife has moved to the G Town home. D Town is now tenanted.
The wife is a qualified health care practitioner. Up until the time of the child’s birth she was working full-time. Her capacity to work full-time has been reduced by her medical condition. She is now working part-time.
The wife’s Financial Statement filed on 2 June 2011 set out her income as $400 per week as rent from the farm and $520 per week earnings as a health care practitioner. She disclosed $105 per week child support received from the husband for the child.
At the time of commencement of the marriage, the husband owned a vehicle, some cash ($10,000) and superannuation of approximately $50,000.
The husband gave evidence that from the commencement of cohabitation of the parties in about September 1995 until about January 1996 the parties lived together at his rented home at Suburb LL during the week and spent the weekend at the farm. The husband claims that he paid all expenses in relation to the rent, electricity, telephone and groceries at Suburb LL.
The husband’s evidence sets out the work he undertook on the soil and crops of the farm, during the time after January 1996 when the farm became their matrimonial home.
The husband spent some money on the stock- food and maintenance of the property between January 1996 and November 2000.
Both parties gave evidence about the contributions they have made as homemaker and parent and the role each of them played in the care of the child prior to the separation.
Since separation, which the husband refers to as October 2002, he contributed expenses including health fund, car maintenance and expenses, groceries and telephone expenses.
The husband also contributed to the child’s school fees and the child’s medical expenses.
During the time the parties resided together the husband was employed as an Executive at C Pty Ltd. He has since had other employment and is currently employed as an Executive at N Pty Ltd, earning a gross taxable income of approximately $144,000.
Consideration of section 79(4) and 75(2) factors
Section 79(4)
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or 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 marriage or either of them;
The wife has made the significant financial contribution of the D Town. It is now worth $655,000. Her 22 per cent interest in the G Town property, which she inherited, is now worth $154,000.
The husband has made a contribution to these properties by assisting the wife in maintaining and improving them. The two properties together are valued at over $800,000, which is a very large proportion of the total assets of $992,619.
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or 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 marriage or either of them;
The husband was not significantly challenged in his evidence about the indirect contribution he made to the conservation and improvement of the properties during the time of the cohabitation of the parties, and in particular, from the time of the marriage in 1996 until the end of 2002. A significant period has passed whilst the wife has been solely responsible for the maintenance and improvement of the properties.
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;
The wife has been the primary caregiver for the child since the separation of the parties. The husband commenced proceedings in June 2009. Prior to that time the husband complied with the wife’s directions about spending only supervised time with the child. His evidence, which was not contradicted, was that initially after the separation he spent considerable amount of time with the mother and the child assisting to that extent in caring for the child and his development.
(d)the effect of any proposed order upon the earning capacity of either party to the marriage;
The husband can continue in his role in his current employment. The wife’s capacity for employment is not likely to be effected by the property settlement order.
Section 75(2)
(a)the age and state of health of each of the parties;
The mother was born in 1955 and is aged 55, nearly 56. The father was born in 1956 and is aged 54, nearly 55.
The mother has continued to work part-time as a health care practitioner, notwithstanding her mental health difficulties. The father is employed full-time and has no health issues.
(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;
The father has a significant weekly income from his employment, but limited other property.
The mother retains the benefit of significant real estate.
As previously indicated, the mother has continued in her work part-time. Her capacity to continue to do so is not necessarily guaranteed considering her mental health difficulties.
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The orders in relation to the child provide for the mother to have the primary care of the child in the future, but for the father to have substantial and significant time with him. The child is now 13. There is therefore a considerable period before he attains his majority.
(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;
The mother has no-one to support other than the child. The father is now in a relationship with his wife and has a duty to support his daughter O.
(e)the responsibilities of either party to support any other person;
Not relevant.
(f)subject to subsection (3), 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;
and the rate of any such pension, allowance or benefit being paid to either party;
The superannuation is taken into account as agreed in the balance sheet. There are no other significantly relevant pensions, allowances or benefits paid to the parties.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
Not a significant issue in these proceedings.
Subsections (h), (ha), (j), (k), (l) are not relevant.
(m)if either party is cohabiting with another person -- the financial circumstances relating to the cohabitation;
The financial arrangements between the father and his present wife were not considered significant issues in this matter.
Subsections (n), (naa), (na), (o), (p) and (q) are not relevant in this matter, other than the previously mentioned ongoing liability of the husband to pay child support for the child.
The agreed balance sheet included the superannuation interests as part of the general asset pool.
Conclusion on property settlement
The wife’s counsel provided the Court with calculations indicating that the wife’s position is that she wishes to retain D Town ($655,000), her interest in the G Town property ($154,000), her motor car ($13,600), her CBA account ($424), her jewellery ($1,000), her furniture ($2,000) and the legal fees already paid ($89,271); total $915,295 for assets to be retained by the wife. Liabilities (which included the brain injury fee of $4,000 which was disputed) were a total $218,237. This left the wife net assets of $697,058. If the brain injury fee of $4,000 was ignored, then her net assets would be $701,058. The wife was also to retain superannuation interests totalling $188,851, making a total amount of $885,909 (or $889,909 if the brain injury debt was excluded). This represents either 67.79 per cent of $1,306,749 net assets and superannuation or 67.89 per cent as a percentage of $1,310,749.
In Biltoft and Biltoft (1995) FLC 92-614, the Full Court acknowledged that the general practice had been to allow the Court to disregard a liability if it was not likely to be enforced. The Court indicated that it was appropriate to either not take into account such a liability or to discount the value of an unsecured and uncertain liability. The Full Court said at 82,127:
Notwithstanding the general practice which has developed, the Court has indicated that it may properly determine not to take into account or to discount the value of an unsecured liability in certain circumstances. Such liabilities would include but are not limited to a liability which is vague or uncertain, if it is unlikely to be enforced or if it was unreasonably incurred. (Emphasis added)
The amount is minimal when considering the overall assets, liabilities and superannuation of the parties and makes very little difference to the outcome.
The husband has limited assets, being motor vehicles, savings account and furniture and effects. He has paid legal fees, but also borrowed to make those payments. The most significant figure is his superannuation expectation of approximately $400,000.
The husband has made a contribution to the improvement and maintenance of the wife’s properties and played a role as homemaker and parent for the child during the parties’ cohabitation. He has made some contribution to the care of the child following the separation of the parties, which was limited due to the wife’s attitude. The husband has however failed to establish a basis upon which his contributions, both during the relationship and since separation, should be considered as high as 40 per cent.
The orders which are proposed to be made in relation to the child will provide for the mother to be the primary caregiver, although the father will have substantial and significant time.
The husband has significant income and earning capacity which is likely to continue. This factor is offset by his obligations to provide for his present wife and daughter and for the child’s care by way of child support.
The husband’s counsel conceded that a finding of contributions representing 60 per cent to the wife and 40 per cent to the husband would not be inappropriate.
Considering the significant section 75(2) factors in this matter, namely the wife retaining the child’s primary care and the husband’s greater income an adjustment of a further eight per cent to the wife is appropriate.
Taking into account all of the factors required under s 79 and s 75(2) an adjustment which leaves the wife with approximately 68 per cent and the husband approximately 32 per cent is overall an outcome that is just and equitable in all the circumstances.
I certify that the preceding three hundred and thirteen (313) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 4 November 2011.
Associate:
Date: 4 November 2011
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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Statutory Interpretation
Legal Concepts
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Statutory Construction
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Procedural Fairness
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Expert Evidence
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