Mendes & Oliveira
[2024] FedCFamC2F 1151
•27 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mendes & Oliveira [2024] FedCFamC2F 1151
File number(s): PAC 5388 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 27 August 2024 Catchwords: FAMILY LAW – PARENTING – Benefit of meaningful relationship to the child – Need for self-awareness and impact of behaviours – Risks capable of being minimised – time to incrementally increasing
FAMLY LAW – PROPERTY – Small property pool – Greater overall financial contributions by one party – Future needs adjustment
Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CG, 61D, 90SM, 90SF
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15
Cases cited: Australian Securities and Investment Commission v Hellicar [2012] HCA 17
Bain v Bain (2017) 319 FLR 119
Beckham & Quarrington (No 3) [2024] FedCFamC2F 74
Bevan & Bevan [2013] FamCAFC 116
Blandford & Esmore [2022] FedCFamC1A 67
Dickons & Dickins [2012] FamCAFC 154
Peters & Walker [2015] FamCA 732
Russell & Russell (1999) FLC 92-877
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Division: Division 2 Family Law Number of paragraphs: 152 Date of hearing: 14-16 August 2024 Place: Parramatta Appearing for the Applicant: In person Solicitor for the Respondent: Ms Escobar of Clayhills Escobar Solicitors Counsel for the Independent Children's Lawyer: Ms Ryan Solicitor for the Independent Children's Lawyer: Farah Lawyers, Solicitors & Barristers ORDERS
PAC 5388 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MENDES
Applicant
AND: MS OLIVEIRA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
27 AUGUST 2024
THE COURT ORDERS:
1.That the respondent shall have sole decision-making responsibility in relation to all major long-term issues for the child X born in 2018 (‘child’).
2.That the child live with the respondent.
3.That the child spend time with the applicant as follows:
(a)Commencing 31 August 2024, and each alternate Saturday thereafter from 12 noon to 2pm;
(b)Commencing 26 October 2024, and each alternate Saturday thereafter from 10am to 2pm;
(c)Commencing 21 December 2024, and each alternate Saturday thereafter from 10am to 4pm;
(d)Commencing 15 February 2025, and each alternate Saturday thereafter from 10am to 6pm; and
(e)At all other times as agreed to by the parties in writing.
4.Changeover shall occur at McDonald’s Suburb B or such other place as nominated by the respondent 3 days prior to the child’s time with the applicant.
5.The applicant is restrained by injunction from using any illicit substance for at least 24 hours prior to the child spending time with him and for the duration of the time the child spends time with him.
6.The parties are each restrained from:
(a)Denigrating the other party within the presence or hearing of the child, or causing or permitting any third party from doing so; and
(b)Discussing with the child, or any other person within the presence or hearing of the child, or causing or permitting any third party from doing so, any details of these proceedings.
7.Each party is to keep the other party advised in writing of any change of address, email, or telephone contact number no later than 7 days after any change including the details of their new residential address, new email, or new telephone number (including by email or text message).
8.The funds in the Westpac Bank Account, with account number …95 in the joint names of Ms Oliveira and Mr Mendes (‘the Westpac Bank Account’), be distributed as follows:
(a)$108,282.62 to the respondent;
(b)A payment of $2,700 to the respondent in accordance with Order 2 of the orders dated 2 November 2023;
(c)A payment of $294.03 to the respondent in accordance with Order 12 of the orders dated 13 March 2024; and
(d)The balance to the applicant.
9.Within 14 days of the date of these orders and in accordance with Order 8, the parties shall do all acts and things to cause the funds in the Westpac Bank Account to be distributed in the following manner:
(a)To the applicant at his discretion the amount of $34,513.25; and
(b)To the respondent at her discretion the amount of $111,276.65.
10.Unless otherwise specified in these orders each party shall be entitled to the exclusion of the other to all other property and financial resources of any nature and kind in the possession of such party as at the date of these orders.
11.Unless otherwise specified in these orders each party shall be solely liable for and indemnify the other against any personal liabilities and any liability encumbering any item of property to which that party is entitled pursuant to these orders.
12.Pursuant to section 106A of the Family Law Act 1975 (Cth) a Registrar of the Federal Circuit and Family Court of Australia is authorised to execute any document or do any such thing as is required to give effect to these orders in the event of a default of a party to execute such document or do such things as is necessary under these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are the Reasons for Judgment in respect of competing parenting and property adjustment applications of the applicant Mr Mendes (‘applicant’), and the respondent Ms Oliveira (‘respondent’).
The parties have one child together, X, who was born in 2018. By the time these Reasons for Judgment are published, X will be 6 years old.
The parties were in a relationship between mid-2007 and early 2019. The parties were never married.
X lives with the respondent and has done so since the parties’ separation. The last time X spent time with the applicant was in late 2023/early 2024, with such time being supervised. X has not spent any time with the applicant for about 8 months.
The applicant moves the Court for orders that he and the respondent have joint decision making in respect of X. The Initiating Application sealed 11 October 2021 contains a proposal for the child’s time with the applicant to be incrementally increased to an equal time arrangement by the time X turns 6 years old.
The respondent moves the Court for orders that X live with her. Her position in respect of X spending time with the applicant is put in the alternative: that there be an order for no time, or that X spend time with the applicant, subject to the applicant completing named courses and providing clear drug tests, firstly supervised and then unsupervised for four hours once a month.
The Independent Children’s Lawyer (‘ICL’) had a position different to each of the parents, namely that X spend time with the applicant as agreed to between the parties (subject to certain conditions relating to parenting courses and drug testing).
The property pool of the parties primarily consists of the proceeds of sale of the property at C Street, Suburb D (‘Suburb D Property’) being in the amount of $145,789.90, and some superannuation. In summary, the applicant sought a 50/50 split of the proceeds of sale and the respondent a 70/30 split. No superannuation splitting orders are sought.
LEGAL PRINCIPLES
The primary task of a judge is to apply the law, not to recite it.[1] However, to assist the parties in understanding the Court’s orders, it may be helpful to include a brief summary of the law as applied.
[1] Beckham & Quarrington (No 3) [2024] FedCFamC2F 74 at [50].
Parenting
These proceedings were heard and determined after the commencement of the Family Law Amendment Act 2023 (Cth). The child’s best interest remains the paramount consideration in respect of any parenting orders the Court makes.
In determining what is in the child’s best interest, the Court must consider the matters set out in s.60CC(2) Family Law Act 1975 (Cth) (‘Act’) and if the child is an Aboriginal or Torres Strait Islander child, the matters set out in s.60CC(3) of the Act.
Specifically, in respect of a child who is Aboriginal or Torres Strait Islander, the Court must consider the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture and the likely impact any proposed parenting order will have on that right.[2]
[2] See s.60CC(3).
Otherwise, s.60CC(2) of the Act specifies the non-hierarchical criteria which must be considered in all cases when arriving at a conclusion as to what is in the child’s best interests:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
In considering what arrangements would promote the safety of the child and of each person who has the care of the child, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that current or has previously applied to a child, or a member of the child’s family.[3]
[3] s.60CC(2A).
Section 60CG of the Act further requires the Court to ensure that any parenting order it makes is consistent with any family violence order and that it does not expose a person to an unacceptable risk of family violence, but only to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration.
Division 2 of Part VII of the Act deals with parental responsibility.
Property
The overall approach to the determination of an application for property adjustment orders was set out by the High Court in Stanford v Stanford[4]and subsequently considered by the Full Court of the Federal Circuit and Family Court of Australia (Division 1).[5] Such an approach is also applicable to proceedings pursuant to the de facto relationship provisions of the Act, namely Part VIIIAB.[6]
[4] [2012] HCA 52, see in particular [37] to [42].
[5] Previously known as the Family Court of Australia.
[6] See for example Peters & Walker [2015] FamCA 732.
In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not, and will not thereafter, be the joint use of property by the parties. It is so in these proceedings.
Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.90SM(4)(a) to (c), the matters set out in s.90SM(4)(d) to (g) and, in particular, the subjective considerations as to the parties by having regard to the provisions of s.90SF(3) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made in the context of the Court’s obligations to make appropriate orders as provided for in s.90SM(1) of the Act.[7]
[7] See generally Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, but in the context of s.79.
It is necessary to make a holistic assessment of the relevant matters and the parties’ contributions, and not to undertake an accounting of scoring exercise.[8] ‘The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship’.[9]
[8] Blandford & Esmore [2022] FedCFamC1A 67 (Aldridge, Harper & Riethmuller JJ) at [14].
[9] Dickons & Dickons [2012] FamCAFC 154 at [24].
The just and equitable requirement is ‘one permeating the entire process’.[10]
[10] Bevan & Bevan [2013] FamCAFC 116 at [86].
EVIDENCE
The Court notes r.8.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) that an annexure to an affidavit must not be accepted as evidence in the proceeding unless and until it is tendered in evidence at the hearing of the application and is accepted into evidence by the Court.
The applicant relied on the following documents:
(a)Initiating Application filed 11 October 2021;
(b)Financial Statement filed 30 May 2022
(c)Affidavit of the applicant filed 11 October 2021 (sans the annexures unless separately tendered);
(d)Affidavit of the applicant filed 11 May 2023 (sans the annexures unless separately tendered);
(e)Affidavit of the applicant filed 30 June 2023 (sans the annexures unless separately tendered); and
(f)Affidavit of the applicant filed 11 March 2024 (sans the annexures unless separately tendered).
The respondent relied on the following documents:
(a)Outline of Case Document filed 8 August 2024;
(b)Amended Response to Initiating Application filed 7 March 2024;
(c)Financial Statement filed 10 November 2021; and
(d)Affidavit of the respondent filed 1 July 2024 (sans the annexures unless separately tendered).
The ICL relied on the following documents:
(a)Outline of Case Document filed 13 August 2024;
(b)Child Impact Report prepared by Ms E dated 2 June 2022; and
(c)Single Expert Report prepared by Mr F dated 7 December 2023.
The following documents were exhibits in the proceedings:
·Exhibit 1 being a series of correspondence from the ICL to the applicant at …@... dated 18 October 2022, 16 May 2023, 20 March 2024, 2 May 2024, 12 June 2024, and 7 August 2024.
·Exhibit 2 being annexures to the Affidavit of the respondent filed 1 July 2024, identified as commencing from page 20 of the affidavit.
·Exhibit 3 being pages from the ICL’s tender bundle, namely: an extract of documents produced under subpoena by NSW Police; a document produced under subpoena from Communities & Justice; and a document produced under subpoena by G Centre.
·Exhibit 4 being the Child Impact Report of Ms E dated 2 June 2022.
·Exhibit 5 being the Single Expert Report of Mr F dated 7 December 2023.
·Exhibit 6 being the provisional Apprehended Domestic Violence Order of the applicant dated late 2023 for protected person Ms H.
·Exhibit 7 being Westpac bank account ending in #...95 in the joint names of the parties.
The evidence of the parties
Much of the evidence of the applicant was irrelevant and unhelpful with respect to the issues the Court needed to determine. In addition, his oral evidence was given in a combative and argumentative manner. He was not focused on the issues, but rather on himself, his feelings, and the slights he felt had befallen him at the hands of the mother, at the hands of the mother’s solicitor, and in general by those who offered a view which was contrary to his own, such as for example the Single Expert.
In contrast, the evidence of the respondent was in large part relevant albeit at times wanting, and her demeanour in the witness box was one of co-operation and a willingness to assist the Court in reaching a determination. The respondent’s evidence in respect of X was child focused, and her evidence in respect of the property matters was measured and factual.
The cross-examination of the respondent by the applicant was very limited and failed to address relevant issues. It was, like much of the applicant’s case, unnecessarily focused on the applicant and the perceived slights against him. An example of this is the applicant’s attempt at cross‑examining the respondent about his assertion that during their relationship she led him to believe that she could not have children (which he notes was not true), which then led to ‘unprotected sex’ between the parties (and ultimately X being conceived), and that ‘this made him feel very trapped’.[11] Such cross-examination was not permitted.
[11] Affidavit of applicant sealed 11 March 2023, at [2].
Not only was such attempted cross-examination of the respondent irrelevant and without any legitimate or forensic purpose, but it was highly offensive to the respondent and to X. It spoke volumes about the applicant’s lack of parenting capacity, his lack of insight into his actions, and his focus.
The applicant’s case was reflective of the way he presented to the Single Expert.
The Court must weigh the evidence according to the proof which was in the power of one party to produce and in the power of the other to contradict.[12]
[12] Australian Securities and Investment Commission v Hellicar [2012] HCA 17 at [164]-[170].
It is well accepted that where evidence is uncontradicted and is not otherwise inherently improbable or inherently incredible, and where the other party has not elicited in cross‑examination or led in evidence some material to overcome it, either by proving the contrary or throwing the matter into doubt, it should be accepted.[13]
[13] Bain v Bain (2017) 319 FLR 119 at [112].
In respect of matters where the applicant’s evidence is silent, the Court accepts the evidence of the respondent. In addition, where the two are in conflict, the Court prefers the evidence of the respondent to that of the applicant.
Expert Evidence
A Single Expert Report was ordered and prepared in this matter. It was released to the parties on or about 7 December 2023.
The report was tendered into evidence without the Single Expert being required for cross‑examination.
Also tendered into evidence was the Child Impact Report dated 2 June 2022, without any requirement for cross-examination of the author of that report.
FINDINGS AND DETERMINATION
Background
The father was born in 1979 and is currently 44 years old.
The mother was born in 1983 and is currently 41 years old.
The parties commenced cohabitation in about May 2007. At the time, the respondent moved in with the applicant into a rental property.
In late 2011, the parties purchased the Suburb D Property for $430,000. The respondent’s parents gave her $10,000 which was used as a deposit for the purchase of the Suburb D Property. In addition, the respondent’s parents acted as guarantors for $80,000 in respect of the home loan which the parties took out to purchase the property. As such, the parties did not need to pay mortgage insurance.
After the purchase of the Suburb D Property and before the applicant lost his job in 2013, the parties deposited money into an offset account associated with the Suburb D Property home loan. Such moneys were afterwards used for the parties’ living expenses.
The applicant was not in stable employment after 2013, and worked sporadically. He has been unemployed since early 2021. During the periods of time the applicant was working, the parties contributed equally to their living expenses.
The respondent was made redundant from her position in early 2014. She received a termination payment of approximately $40,000. Such moneys were used by the parties for living expenses.
While the parties were in a relationship, the respondent was responsible for most of the homemaker duties.
In 2018, X was born and is currently 6 years old.
The parties separated in early 2019, at the time X was six months old.
At the time of separation, the respondent moved with X to her parents’ home in Suburb J and the applicant remained living in the Suburb D Property.
The respondent has at all times been the child’s primary carer.
X has spent limited and sporadic time with the applicant after her parents’ separation. Initially, the time was in the presence of the respondent, but after interim orders were made time was supervised at a contact centre, although not without difficulties. X has not spent any time with the applicant for approximately 8 months.
Following the parties’ separation and while he remained living in the Suburb D Property, the applicant did not pay the strata levies resulting in proceedings being commenced against the parties. Furthermore, the applicant while living in the Suburb D Property post separation made limited repayments on the parties’ home loan, and sought a financial hardship payment package. The home loan was not paid for a period of approximately two years, from October 2021 to September 2023. The arrears were over $22,000 as at mid-2022, shortly after which time the parties agreed to orders to sell the property.
Noting the procedural history later in the reasons, and following the respondent obtaining orders for the sale of the Suburb D Property and subsequently orders for exclusive occupation, the Suburb D Property was sold in late 2023 for $655,000.
The respondent spent over $7,600 in readying the property for sale.
At the time of settlement, the following outstanding amounts were paid:
(a)$6,202 for council rates;
(b)$1,175 for water rates;
(c)$13,817 for strata levies; and
(d)$404,077 for the home loan.
Each of the parties has received a partial property distribution of $25,000 from the net proceeds of sale of the Suburb D Property.
In addition, the parties each received $7,700 for the purposes of the payment of the Single Expert Report. However, the applicant did not pay the entirety of a half share and ultimately orders were made for the respondent to be repaid $2,700 from the proceeds of sale, being moneys held in trust on behalf of the parties. Furthermore, orders have been made for the applicant to reimburse the respondent a further $294 in respect of additional costs owing to the Single Expert. These matters will be reflected in the orders made. The partial property distributions have been notionally added back into the pool for the purposes of orders made.
There is presently $145,789.90 held in a joint account on behalf of the parties.
Following the parties’ separation, the respondent applied for and was granted access to $152,814 from her superannuation fund, such amount being inclusive of taxation. These funds as released from the respondent’s superannuation fund were utilised by the respondent for a medical procedure. There does not appear to be any basis for money to be notionally added back, or for a finding that this money was in any way wasted.
The applicant has $59,575.80 in superannuation with Super Fund 1.[14]
[14] Financial Statement of applicant filed 30 May 2022.
The respondent has $53,692.01 in superannuation with Super Fund 2.[15]
[15] Case Outline Document filed 8 August 2024.
Procedural History
The proceedings commenced by the filing an Initiating Application on 11 October 2021 in which the applicant sought parenting orders on both a final and interim basis.
On 10 November 2021, the respondent filed a Response to Initiating Application seeking parenting orders as well as property adjustment orders. In her response, the respondent also sought interim parenting orders, and an interim order for the sale of the Suburb D property.
On 11 November 2021, the Court directed the applicant to file certain documents within 28 days and listed the matter for further case management. The Court noted the parties had reached an interim in principle agreement in relation to both parenting and property matters.
On 9 February 2022, the matter came before the Court for case management. The applicant had not complied with previous orders and the time for the applicant to file documents was extended to 23 February 2022. The Court ordered a Child Impact Report.
On 16 May 2022, orders were made listing the matter for interim hearing in relation to both parenting and financial matters, a request for documents to be produced by the NSW Police, and an order further extending the time for the applicant’s filing of documents originally ordered on 11 November 2021 to 30 May 2022. A notation was also made that the applicant had been informed that, if he did not file his financial material, the interim hearing may proceed on an undefended basis in so far as it related to the financial matters.
On 27 May 2022, the Court made orders in chambers releasing material produced by the Police.
On 30 May 2022, the applicant filed his Financial Statement and a Reply in which he sought property adjustment orders, and an order for the parties to participate in alternative dispute resolution.
On 3 June 2022, the Child Impact Report was released to the parties.
On 8 June 2022, the Court made orders for the sale of the Suburb D property and distribution of proceeds in which, after payment of fees and the mortgage, each party was to receive $25,000 with the balance to be held in a joint account requiring the authorisation of both parties. Orders were also made for the parties to attend a conciliation conference, and further orders were made in respect of parenting matters including the appointment of an ICL, and interim parenting orders. The interim parenting orders provided that: X live with the respondent, that X spend supervised time with the applicant; that the applicant participate and complete courses relating to managing emotions and parenting; and that the parties submit to drug testing at the request of the ICL.
On 8 August 2022, the Court made orders listing the matter for further case management and notations that the matter was listed for a conciliation conference on 19 October 2022, and that X had been spending time with the applicant in accordance with the interim parenting orders.
On 15 September 2022, the respondent filed an Application in a Proceeding seeking the applicant vacate the Suburb D property.
On 17 October 2022, the Court made orders for the filing of documents and listing the matter for further case management.
On 7 November 2022, the Court made orders for the parties to attend mediation in respect of parenting matters, another order for the parties to attend a conciliation conference in relation to property matters with the ICL being excused, and listing the matter for interim hearing in relation to property.
On 10 November 2022, the Court made orders in chambers amending the orders of 7 November 2022 to require all parties on the record to attend a conciliation conference.
On 7 December 2022, order were made discharging the interim property orders made on 8 June 2022 and orders were made for the applicant to vacate the Suburb D property, for the respondent to be appointed as Trustee for the sale of the Suburb D property, and for the proceeds of sale be distributed such that, after payment of fees and the mortgage, each party receive $25,000 with the balance to be held in a joint account requiring the authorisation of both parties.
On 6 February 2023, orders were made extending the time for the parties to attend mediation in respect of parenting matters and for the progression of the matter.
On 17 February 2023, the respondent filed an Application in a Proceeding seeking possession of the Suburb D property.
On 20 February 2023, orders were made in chambers listing the respondent’s interim application for hearing, for service, and filing of a response.
On 14 March 2023, the respondent’s application seeking possession of the Suburb D property was heard and orders were made for the respondent to have exclusive occupation of the Suburb D property. A notation to the orders stated that the applicant had advised the Court that he had not been at the property for 5 weeks and there was no reason for him to return.
On 26 April 2023, the applicant filed an Application in a Proceeding seeking the respondent execute documents for the sale of the Suburb D property, and if she failed to do so that a registrar be appointed to cause the sale of the Suburb D property.
On 15 May 2023, the Court made orders for filing and listing the proceedings for interim hearing.
On 29 May 2023, the mother filed a Response to an Application in a Proceeding seeking the applicant’s application filed in April 2023 be dismissed.
On 5 July 2023, orders were made dismissing the application filed on 26 April 2023 and reserving the respondent’s costs.
On 17 July 2023, interim orders were made amending the interim parenting orders in respect of the supervision service for the child to spend time with the applicant and for the preparation of an expert report.
On 6 September 2023, orders were made for the filing of trial material.
On 27 October 2023, the matter was relisted for directions at the request of the ICL. The matter came before the Court on 2 November 2023 and orders were made for the respondent to pay the applicant’s costs for the expert report, and for the respondent to be repaid $2,700 from the applicant’s share of the property settlement.
On 7 March 2024, the respondent filed an Amended Response to Initiating Application.
On 13 March 2024, the Court made orders for the parties to file material and listing the matter for final hearing on 14, 15, and 16 August 2024.
On 20 March 2024, the Single Expert Report prepared by Mr F was released to the parties and the ICL.
The final hearing occurred on 14 August 2024.
PARENTING
Safety and family violence considerations
Each of the parties asserts that the other engaged in family violence, and each denies the allegations of the other. Neither party was cross-examined as to such allegations.
In addition, the applicant asserts that he was assaulted by X during supervised time. Such assaults are said to have included kicks of sufficient force as to cause him to throw up (in his mouth) and hitting. The applicant says that such behaviour was observed by contact centre staff but never noted in the centre records, and that X was not spoken to by the staff in respect of her apparent violent behaviours. The applicant further asserts that X told him that she was directed by her mother to assault him.
The respondent denies that she ever directed or counselled X to attack or assault her father. The respondent explains that X was undertaking sports and that she may have kicked the applicant while demonstrating her newly acquired skills. The respondent says that she told X not to kick or hit people.
Following the alleged assaults of the applicant by X, he made complaints to the contact centre about the lack of intervention by centre staff. At final hearing the applicant continued to feel slighted by the perceived lack of intervention by centre staff. The applicant maintained at final hearing that he was assaulted by his then 5-year-old daughter, and maintained his assertions that it was the respondent who caused the child to act in this manner. The applicant did not accept that it was kicking or hitting by X while she was demonstrating what she learnt at sports.
The applicant is the subject of a provisional apprehended domestic violence order in respect of his recent partner, with whom he was in a relationship with for over 4 years. The provisional order is dated late 2023. That matter is listed before Local Court in late 2024. The applicant is contesting the application and says that the allegations against him are false. The violent behaviour alleged by the Police is similar to the allegations the respondent makes against the applicant during their relationship.
The Single Expert has assessed that the applicant has a strong sense of entitlement and difficulty dealing with criticism and feedback, that he is prone to verbal aggression in pursuit of an outcome he believes to be rightfully due to him, and that he has difficulty acknowledging any wrongdoing. The Court accepts such opinion, which corresponds with the Court’s assessment of the applicant arising out of its observations of the applicant during the proceedings and when giving evidence.
Views expressed by the child
The Single Expert opines that X’s understanding of her parents’ current relationship is an influence to her, she knows that her parents are not friends and that they never see each other:[16]
[X] has accepted what her mother has told her ‘on lots of days’ that her parents separated because her father was being silly to the mother which she understood included ‘saying bad stuff’… [X] has the belief that it was her father and not her mother who was at fault.
[16] Exhibit 5 at [106].
Furthermore, in the opinion of the Single Expert, X is likely to hold a view which is at least partially negative of her father, including that there is some safety issue or other problem preventing her spending time with the applicant.
Developmental, psychological, emotional and cultural needs of the child
X is now 6 years old. She does not yet have the maturity to comprehend the issues before the Court. According to the Single Expert there is a possibility that X sees the applicant as a provider of gifts and a weekly play partner.
Capacity to provide for child’s developmental, psychological, emotional and cultural needs
The Single Expert describes the parents as follows:[17]
[T]he mother’s perception of the father’s parenting capacity is based upon her beliefs that the father struggles with authority, does not like being told what to do and does not like feedback. The mother was, and remains, concerned that the father is prone to behaving in a manner which is emotionally manipulative and controlling, and that he may use verbal and physical violence in pursuit of meeting his own needs without regard for the negative impact on others. The mother believes that the father is unable or unwilling to recognise and meet the emotional and physical needs of [X], and is blind or dismissive to his failings and either unable our unwilling to seek and accept help with these issues.
The father wants to be an active parent and to contribute in a meaningful way to his daughter’s upbringing. He has experienced the mother’s ongoing insistence that he be supervised when [X] is in his care as an unjustified, unfair and selfish attack on his character. He believes the mother is attempting to marginalise his role in [X]’s life in order to furnish her own interests. The father feels this is unfair…
[17] Exhibit 5 at [149]-[150].
There is little positive evidence as to the capacity of the applicant to provide for the child’s developmental, psychological, emotional and cultural needs.
It is the opinion of the Single Expert that the applicant’s ability to prioritise the needs of X over his own needs are untested. The conduct of the applicant during the hearing and his focus on himself, do not support any finding that the applicant has an ability to prioritise X’s needs above his own. Indeed, such conduct and focus are indicative of an inability to do so.
This is particularly concerning noting the evidence of the Single Expert, that the applicant has a high opinion of his own ability and that he places a high value on satisfying his own expectations, even when to do so places others at disadvantage.
If the applicant is unable to prioritise X’s needs above his own, then the risks to X are significantly increased.
To date, the applicant has had very little involvement in respect of decision making for X and there is no evidence of any steps he has taken to remedy the situation. According to the Single Expert, the applicant is experiencing a form of ‘learned helplessness’. The applicant has provided minimal financial support to the respondent in respect of X’s needs and he has not engaged with her pre-school, including making no attempt to discuss X’s progress with her early-learning education providers.
The respondent has avoided engaging with the applicant and has made decisions with respect to X without input from the applicant.
The respondent has a proven capacity to meet X’s needs. X is thriving in the respondent’s care, she is meeting all of her milestones, and she appears to be a happy and well-adjusted child.
Benefit of relationships
X has strong attachments to her primary carer, the respondent. She has strong attachments to the extended maternal family.
X has seen very little of her father and the extended paternal family. X knows the applicant and has an established relationship with him, however, such relationship has been curtailed by not only the limited time X has spent with him but also the circumstances of such time being spent in a contact centre. The Single Expert anticipated that if X was to spend unsupervised time with the applicant that she would quickly develop a strong positive attachment with him.
Other relevant matters
The parties’ lack of ability to communicate effectively has the potential to negatively impact on the overall functioning and parenting capacity of each of the parties.
The applicant admits to using illicit substances regularly both during the parties’ relationship and afterwards, with his use increasing after the parties’ separation.
The Court made orders on 8 June 2022 for the parties to undertake drug urinalysis testing at the request of the ICL. The applicant has not complied with the ICL’s requests, and he says that such requests were never received by him. The requests were sent to the applicant to his email address. The Court does not accept the applicant’s evidence that such requests were not received by him. The Court finds that the applicant was indifferent to whether or not the ICL made the requests in circumstances where he knew that his drug use was an issue in the proceedings.
One of the recommendations by the Single Expert was for the applicant to undertake ‘Tuning Into Kids’ and supportive counselling. Initially the applicant’s evidence was that he had not received the Single Expert Report after it was released by the Court, once again notwithstanding that it was emailed to him. Following the conclusion of the cross-examination of the applicant, it became apparent that such report was sent to him by email and that it was in his email inbox.
Conclusion as to time
All things being equal, X would benefit from a meaningful relationship with the applicant.
The Court is however concerned that the applicant does not have the capacity to develop and foster such a meaningful relationship with X, or that the respondent has the capacity to assist X in developing such a relationship with the applicant nor herself of fostering such a relationship.
The parties’ distrust of each other is high, not only in terms of what each say about the other but more importantly in terms of what they believe the other party capable or incapable of. X needs to be shielded by each of the parties from their negative views and beliefs of the other.
At present X has a limited relationship with the applicant. There are a number of risks to her if she is to spend time with the applicant which have been identified and discussed earlier in these Reasons for Judgment. Such risks are capable of being ameliorated and minimised. However, the Court is not satisfied given the findings it makes of the applicant, that the applicant will take the necessary steps to minimise these risks to X such that time between X and him should be significant and substantial.
As noted by the Single Expert, the applicant would have benefited from an increased self‑awareness and an enhanced understanding of how his behaviour is interpreted by others, including X, and the likely response such behaviour will illicit such as a reluctance to engage with him as displayed by the respondent. Unfortunately for X, the applicant has not taken any steps to increase such self-awareness or increase his understanding of the impact of his behaviours.
X has spent time with the applicant in a supervised setting over a period of more than two years. Even in that setting, the applicant has made accusations of violence by the child towards him. While on the evidence his reaction at the time to X was appropriate, his reaction to the contact centre and continued insistence that X’s actions caused him such significant discomfort and pain, and that they were done at the instigation of the respondent, pose significant risks to X if the applicant is to make similar allegations again.
Ongoing supervision of the applicant’s time with X is not going to ameliorate these risks.
The risks will be minimised by limiting X’s time with the applicant and, as such, her exposure to such behaviours and beliefs by the applicant. They are risks, which albeit significant, are not unacceptable and are outweighed by the potential benefit to X of spending time with the applicant.
This is not a no time case.
Ongoing supervision of the applicant’s time with X is not supported by the expert evidence or by other evidence in these proceedings.
The ICL’s proposal for time to occur as agreed between the parties is not supported by the evidence, given that the parties have not been able to agree on very much to date, and given that there is no evidence that they will be able to agree to X spending time with the applicant in the future. This is particularly so in light of the respondent’s no time application.
Neither the applicant’s nor the respondent’s applications in respect of time between X and the applicant are supported by the evidence.
What is supported by the evidence is an order for X to spend time with the applicant, which is limited in time, but incrementally increasing. Such limited but increasing time will curb the opportunity for her to be exposed to the risks which have been identified. This will give X the opportunity to have a meaningful relationship with the applicant, and it will ensure she knows her father in a way which will be safe for her to do so. The evidence does not support any time during school holidays which is for extended periods, unless the parties are able to come to such an agreement in the future.
It is for those reasons that orders as set out at the forefront of these Reasons for Judgment will be made.
Parental Responsibility
To the extent that an order is not otherwise made, s.61C of the Act provides that each of the parents of a child has parental responsibility for the child.
A parenting order that deals with the allocation of parental responsibility for making decisions about major long-term issues in relation to the child, may provide for joint or sole decision making in relation to all or specified major long-term issues.[18]
[18] s. 61D of the Act.
The parties have very little capacity to effectively communicate. There is no evidence that either party has taken steps to improve his/her communication with the other party. To date, the respondent has made all of the major long-term decisions in respect of X, and the applicant has neither been consulted nor has he taken any steps to actively involve himself in such decision making.
The evidence supports an order for the respondent to have sole decision making in relation to all major long-term issues for X.
ICL’s Costs
The ICL seeks that the parties pay her costs of $4774 each, less any contributions made by that party. No party sought to address the Court in respect of why such orders should or should not be made.
The Court is not satisfied that such order for costs be made.
PROPERTY
Pool
The property pool at hearing consisted of:
Ownership Description Value Joint Proceeds of sale of Suburb D Property $145,789.90 Joint Notional Addback – Partial Property Distribution ($25,000 to each pursuant to orders of 7 December 2022, and $7,700 to each pursuant to orders of 2 November 2023). $65,400 Applicant Superannuation $59,575.80 Respondent Superannuation $53,692.01 Total $324,457.71 Determination
While the parties were at times both employed and made financial contributions, the contributions by the respondent were overall greater than those of the applicant. This is not only due to the respondent’s parents’ assistance in the gift of $10,000 at the time of the purchase of the Suburb D Property, but also their provision of a guarantee for the parties’ home loan. The respondent was at all times during the parties’ relationship the primary homemaker and parent.
Post separation, the applicant had the benefit of residing in the Suburb D Property but did not ensure that the home loan and other expenses associated with the property were regularly and properly met. This resulted in the payment of outstanding strata levies, council and water rates from the proceeds of sale, and it also resulted in arrears in the home loan repayments over the years the applicant lived in the property without the respondent. Once again, such arrears were paid out of the proceeds of sale.
Post separation, the respondent has been the sole carer for the parties’ child, who has spent very limited time with the applicant.
The respondent has already had the benefit of over $152,000 from her superannuation fund.
As such, the Court assesses the parties’ contributions as 55% to the respondent and 45% to the applicant.
In respect of the parties’ future needs, there is no evidence that either party has ongoing health issues. The parties are of similar age.
The respondent is employed, while the applicant remains unemployed. He does not appear to be motivated to find gainful employment despite what he considers to be impressive qualifications.
The respondent has the care of the parties’ only child and the child will continue to live with her. The child is only 6 years old.
Any child support paid by the applicant is negligible.
It is appropriate that there be an adjustment of 5% in favour of the respondent in respect of future needs.
Conclusion as to Adjustment
Neither party is seeking a superannuation splitting order.
The overall property adjustment is assessed as 40% to the applicant and 60% to the respondent. As such, the applicant will receive $129,783.08 and the respondent will receive $194,674.62.
To the applicant:
Ownership Description Value Joint Proceeds of sale of Suburb D Property $37,507.28 Joint Notional Addback – Partial Property Distribution ($25,000 to each pursuant to orders of 7 December 2022, and $7,700 to each pursuant to orders of 2 November 2023). $32,700 Applicant Superannuation $59,575.80 Total $129,783.08
To the respondent:
Ownership Description Value Joint Proceeds of sale of Suburb D Property $108,282.62 Joint Notional Addback – Partial Property Distribution ($25,000 to each pursuant to orders of 7 December 2022, and $7,700 to each pursuant to orders of 2 November 2023). $32,700 Respondent Superannuation $53,692 Total $194,674.62
The applicant is to make good the balance of the costs of the Single Expert from his share of the proceeds of sale of the Suburb D Property.[19]
[19] See [57] and [85] above.
In all of the circumstances, the adjustment of property interests is just and equitable.
The Court so orders.
I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 27 August 2024
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