Mickelson & Mickelson (No 2)
[2023] FedCFamC2F 1162
•6 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mickelson & Mickelson (No 2) [2023] FedCFamC2F 1162
File number(s): NCC 2335 of 2018 Judgment of: JUDGE KEARNEY Date of judgment: 6 September 2023 Catchwords: FAMILY LAW – PARENTING – children aged nearly 14, 11, 9 & 6 – second round of litigation in 5 years – no contact with father since April 2021 when previous orders suspended pending further final determination – where the Court is satisfied the father poses a material possibility of risk of psychological and emotional harm to the children – coercive and controlling behaviour imposed on the family – inability to identify anything positive as to the mother’s contributions or parental relationship as primary caregiver – history of non-compliance with Court orders – no time or communication with father - restraints for personal protection appropriate – appropriate ongoing supports for children required - best interests of children
FAMILY LAW – PROPERTY – 10-year relationship – insufficient disclosure and evidence from the husband for an asset-by-asset approach - global approach taken – overall adjustment of 65%-35% in favour of wife – just and equitable
Legislation: Family Law Act 1975 (Cth) ss 68B, 68C, 60CC, 79, 105
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases cited: AJO & GRO [2005] FamCA 195; (2005) FLC 93-219
Berys & Berys [2022] FedCFamC2F 1162
Best & Best [1993] FamCA 107
Bielen & Kozma [2022] FedCFamC1A 221
Black & Kellner [1992] FamCA 2; [1992] FLC 92-287
Blandford & Esmore [2022] FedCFamC1A 67
Blinko & Blinko [2015] FamCAFC 146
C & C [1998] FamCA 143
Cabbell & Cabbell [2009] FAMCAFC 205
Dickons & Dickons (2012) 50 Fam LR 24
Eastley & Eastley [2021] FedCFamC1F 212
Fields & Smith [2015] FamCAFC 57
Gadhavi & Gadhavi [2023] FedCFamC1A 117
Grier & Malphas [2016] FamCAFC 84
Hobson & Hobson [2020] FamCAFC 251
Horvat & Juric (No 3) [2022] FedCFamC1F 733
In the Marriage of Gill (1984) 9 Fam LR 969 at 981
In the Marriage of Kowaliw [1981] FamCA 70
In the Marriage of Townsend [1994] FamCA 144 at 81,654; (1994) 18 Fam LR 505
Isles & Nelissen [2022] FedCFamC1A 97
Jabour & Jabour [2019] FamCAFC 78
Knight & Ellington [2019] FamCA 488
Lovine & Connor and Anor [2012] FamCAFC 168
Martell & Martell [2023] FedCFamC1A 71
Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554; (2019) 368 ALR 583
Mazorski & Albright [2007] FamCA 520
Mezzacappa & Mezzacappa [1987] FamCA 20; (1987) FLC 91-853
Mickelson & Mickelson [2020] FCCA 2986
Napier & Hepburn [2006] FamCA 1316
NHC & RCH [2004] FamCA 633
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17; 10 Fam LR 819
Petruski & Balewa [2013] FamCAFC 15
Pierce v Pierce [1998] FamCA 74; (1999) FLC 92-844
Prantage & Prantage [2015] FamCAFC 145
Russell & Close [1993] FamCA 62
Sedgley and Sedgley [1995] FamCA 154
Stanford & Stanford [2012] HCA 52; [2012] 247 CLR 108
Sweet & Sweet [2022] FedCFamC2F 676
Trevi & Trevi [2018] FamCAFC 173
Watson & Ling [2013] FamCA 57; (2013) FLC 93-527
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 2 Family Law Number of paragraphs: 251 Date of last submission/s: 1 September 2023 Date of hearing: 7-10 August 2023 & 1 September 2023 Place: Newcastle Counsel for the Applicant: Adam Mooney Solicitor for the Applicant: Ashby Family Solicitors Solicitor for the Respondent: Self-represented litigant in person Counsel for the Independent Children's Lawyer: Molly Willoughby Solicitor for the Independent Children's Lawyer: Legal Aid NSW (Domestic Violence Unit) ORDERS
NCC 2335 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MICKELSON
Applicant
AND: MR MICKELSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
6 SEPTEMBER 2023
THE COURT ORDERS THAT:
PARENTING
1.All previous parenting orders be discharged.
Parental Responsibility
2.The applicant, MS MICKELSON (‘the mother’) shall have sole parental responsibility for the children:
(a)W born 2009,
(b)X born 2012,
(c)Y born 2014 and
(d)Z born 2016
(‘the children’).
Live With /Spend Time With
3.The children shall live with the mother.
4.The children shall spend no time and have no communication with the respondent, MR MICKELSON (‘the father’).
Injunctive restraints
5.Pursuant to s 68B of the Family Law Act 1975 (Cth) (‘the Act’) and for the personal protection of the mother and children, the father is restrained from:
(a)Contacting the mother or the child/ren in any way or form whatsoever, except through a lawyer;
(b)Approaching or remaining within 100 metres of the mother and/or the child/ren;
(c)Attending, approaching or remaining within 100 metres of the home of the
(d)mother and the child/ren;
(e)Contacting, attending, approaching, or remaining within 100 metres of:
(i)Any school the child/ren may attend from time to time;
(ii)Any sporting or other activities the child/ren may attend or participate in;
(iii)Any counsellor, support service or other services that the child/ren may be engaged with, including but not limited to EE Service and FF Organisation;
(iv)Contacting or interfering with or disturbing the occupation of the mother;
(v)Attending any function to which the mother and the children are attending or any venue they attend and if he sees them he shall immediately remove himself from the said venue or event.
(vi)Removing the children from the care of the mother, or care of any person or organisation with whom the mother has placed the child or children
(vii)Getting another person to do what he is precluded from doing under this order.
6.The above order is an order made for the personal protection of the mother and the children, and is an order to which the power of arrest without warrant attaches pursuant to s 68C of the Act.
7.The s 68B order is made for the personal protection of the mother and the children will remain in place and in force until each respective child turns 18 years at which time the order shall have no further effect in protecting that child/children.
Passports
8.Pursuant to s 11 of the Australian Passports Act2005 (Cth) the Minister may issue an Australian passport in the name of W born 2009, X born 2012, Y born 2014 and Z born 2016 without the necessity of obtaining the consent of the children’s father for that purpose.
9.All officers of the Australian Passport Office and any other Regulatory body responsible for the issue of Australian passports are authorised and directed to issue any new passports for the named children upon the application by the children’s mother MS MICKELSON, without the necessity for the children’s father MR MICKELSON to provide his written consent to the issue of such passports.
10.Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the children shall be issued with an Australian Travel document and may travel internationally with the mother, without the need for the mother to obtain the father’s consent.
Miscellaneous - parenting
11.The mother be a liberty to provide a copy of these Orders to any school the children may attend, any organisation the children may be involved with or any person the mother may have placed the children in the care of.
12.By 4.00pm on 20 September 2023, Mx GG (‘the family consultant’) is to meet with the children (either face-to-face or audio-visually) to explain the effect of these Orders to them AND to give effect to this Order, IF the family consultant requires the mother to travel with the children for this purpose, then the mother shall comply with any reasonable request to do so.
13.Pursuant to s 117(4)(a) of the Act, the oral application for costs made by the ICL against the father is withdrawn and dismissed.
14.The Independent Children’s Lawyer (‘the ICL’) is discharged.
15.Pursuant to ss 65DA(2) and 62B of the Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
PROPERTY ADJUSTMENT
Trust Account
16.By 4.00pm 13 September 2023, the parties are to cause for and do all acts necessary to authorise the payment of $317,704 to the applicant, MS MICKELSON (‘the wife’) from the trust account held for the parties’ benefit with Ashby Family Solicitors (‘the trust account’) in a manner directed in writing by the wife.
17.Contemporaneous with Order 16 above, the parties are to cause for and do all acts necessary to authorise from the remaining balance of the trust account –
(a)the payment of $6,740 to the wife as directed in writing by the wife in satisfaction of three costs orders made 25 June 2021, 22 February 2022 and 27 June 2022; and
(b)the balance to the respondent, MR MICKELSON (‘the husband’) in a manner directed in writing by the husband.
Miscellaneous – property adjustment
18.Except as specifically provided for in these Orders, each party shall:
(a)Be declared to be the sole owner and beneficiary to the exclusion of the other of all annuities, retirement pensions, life insurance policies and the like of whatsoever nature and wheresoever located held in each of their respective names.
(b)Be solely liable for all debts and liabilities held in his or her name as at these Orders including but not limited to credit cards personal loans or motor vehicle leases, taxation liabilities and the like.
(c)Do all acts and things and sign all documents necessary to close and/or discharge whatever the case may be, all joint credit cards, bank accounts, investments, utilities and any and all joint liabilities.
(d)Be declared the sole legal and beneficial owner of all other items of property presently in their respective possession or control including but not limited to all money, shares, motor vehicles, furniture, furnishings and personal effects.
(e)Do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.
19.From the date of these Orders and unless otherwise specified in these Orders and except for the purposes of enforcing payment of any money due under these or any subsequent Orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles;
(b)Moneys standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held;
(c)Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other; and
(d)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order.
20.In the event that either party refuses to execute any deed or instrument necessary to give effect to these Orders, within seven (7) days of being requested so to do, the Registrar of the Court be appointed pursuant to s 106A of the Act to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
UNTIL FURTHER ORDER OF THE COURT IT IS ORDERED THAT:
Superannuation
21.Pursuant to s 114 of the Act, the husband is restrained and an injunction shall issue prohibiting him from withdrawing, drawing down, transferring or changing his interest in relation to his interest in Superannuation Fund 1, including by instructing, authorising or permitting any third party to do so.
22.The Orders proposed by the Court to be made to give effect to a superannuation split of part of the husband’s interest in Superannuation Fund 1 to the wife are marked exhibit “G” and attached to these Orders.
23.By 4.00pm 7 September 2023, the wife is to serve the trustee of Superannuation Fund 1 (‘the trustee’) with a sealed copy of these Orders together with a copy of exhibit “G” PROVIDED THAT the wife shall beforehand redact all Orders and Notations save for Orders 21 to 25 and Notation B because the balance of the Orders and Notations are extraneous to the giving of procedural fairness to the trustee.
24.By 4.00pm 5 October 2023, the wife is to file and serve on the husband only, an affidavit proving compliance with Order 23 and deposing (and annexing) any further correspondence (including any attachments to such correspondence) that may have been exchanged between the wife (or her solicitor) and the trustee.
25.The outstanding superannuation splitting aspect of the proceedings is adjourned for chambers hearing at 9.30am on 10 October 2023 to consider whether a superannuation splitting order can be made PROVIDED THAT if in the meantime, the Court is satisfied that the trustee has been given procedural fairness of a form of Order that accords with the court’s intention as to the quantum of the superannuation split THEN this hearing may be vacated without notice and final orders made in chambers in relation to a superannuation splitting order in the sum of $266,897 from the husband’s Superannuation Fund 1 to the wife’s nominated superannuation account in order to finalise the financial aspect of the proceedings.
IT IS FURTHER ORDERED THAT:
26.Save for the outstanding aspect pertaining to the splitting of the husband’s superannuation interest and any prospective costs application/s, all outstanding applications in relation to the financial proceedings are otherwise dismissed.
27.By 4.00pm on 5 October 2023, any party seeking an order for costs shall file and serve an Application in a Proceeding and supporting affidavit(s) and financial statement (if applicable).
28.By 4.00pm on 19 October 2023, the other party shall file and serve a Response to an Application in a Proceeding, with supporting affidavit(s) and financial statement (if applicable).
29.In the event that an application for costs is received, THEN pursuant to rr 5.02(2)(c) and 5.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the application will be listed for hearing before Judge Kearney for two (2) hours with no cross-examination.
THE COURT NOTES THAT:
A.During cross-examination of the family consultant, the Court heard that the children would benefit from family therapy involving just the four children (not the parents) that would look like each child being separately assessed and then all four of them being brought together to have an opportunity to explore issues including their experiences of the litigation, the parental conflict and the outcome from the making of final orders as well as their feelings (including of grief). Through that prism, rather than make an Order that would impinge on the allocation of sole parental responsibility, the Court has an expectation that the mother will attempt to find someone able to facilitate such therapy albeit that if the therapy does not commence and/or proceed as expected, the Court will not be critical of that outcome given it has every confidence in the mother’s capacity to do her best to meet the children’s needs and/or there may be unexpected impediments such as no one being able to facilitate the therapy, the cost being beyond the mother’s means and/or one or more of the children being unwilling to engage and/or remain connected to the process.
B.It was acknowledged that there is no current evidence of the trustee having been accorded procedural fairness
C.In the event, that a party fails to comply with the orders made regarding the costs hearing and/or fails to appear at such hearing; THEN consideration will be given to the hearing proceeding on an undefended basis.
D.Pursuant to s 117(4)(a) of the Act, the Independent Children’s Lawyer withdrew her oral application for costs against the parties.
Exhibit G
1.A base amount of $266,897 is allocated, as required by s 90XT (4) of the Family Law Act 1975 (Cth), to MS MICKELSON out of MR MICKELSON’S interest in Superannuation Fund 1.
2.In accordance with paragraph 90XT (1 ) (a) of the Family Law Act 1975 (Cth):
(a)MS MICKELSON is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 ; and
(b)MR MICKELSON’S entitlement to payments out of his interest in Superannuation Fund 1, and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this order.
3.The trustee of Superannuation Fund 1 ("the Trustee") shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for Ms Mickelson by clause 1 of this order and
(b)Pay the entitlement whenever the Trustee makes a splittable payment out of Mr Mickelson's interest in Superannuation Fund 1.
4.These orders shall take effect from the operative time and the operative time for this order is the 4th business day the Final Certified orders are served on Superannuation Fund 1.
5.This order binds the trustee of Superannuation Fund 1.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
INTRODUCTION
Excluding a five month hiatus, four children have been involved in five (5) years of litigation between their parents. At this, the second trial, I am asked to choose between giving the children an opportunity to spend time with their father or not. I am also asked whether the father should retain any superannuation and receive any cash from funds held in trust for both parents. Should the children see their dad and what should their dad receive by way of property?
Out of respect for each person’s gender and social status, other than parties and the children, persons will be identified by their surnames and where applicable there will be an avoidance of the use of gendered pronouns.
These proceedings involve a parenting and financial dispute invoking Parts VII and Part VIII of the Family Law Act 1975[1] (Cth) between the applicant, MS MICKELSON (‘the wife/mother’) and the respondent, MR MICKELSON (‘the husband/father’).
[1] Unless otherwise specified any reference to legislation shall be a reference to the Family Law Act 1975 (Cth)
The main issues in the case were:-
(a)Does the father pose such a high psychological and emotional risk to the children’s current meaningful relationship with the mother that the only way to keep them safe is to quarantine him from their lives or, can those risks be ameliorated so the children can have contact with their father?
(b)When did the parties separate?
(c)How do I treat legal fees incurred by both parties which were satisfied from the sale proceeds of the family home?
(d)How do I treat the husband’s 33% legal interest in real estate (with a brother and sister each holding a one-third interest) and which he says he brought into the relationship and for which little (if any) contribution was made by the wife?
(e)How do I treat the husband’s receipt of sale proceeds from two Tasmanian properties which again he says the wife made no contribution towards because he had them before the relationship commenced and he paid all the outgoings (along with his brother) to the extent that he says any sale proceeds he subsequently received still reflected “a loss” (overall)?
(f)How do I treat a significant redundancy payment received by the husband over four (4) years ago and which he says he has now dissipated?
(g)How do I assess the parties’ myriad of contributions through the prism of them being together for 10 years and separated for almost six (6) years;
(h)How do I assess the parties’ future needs in circumstances where the husband is employed, the wife will have 100% care of the children and there may be other relevant matters including the husband’s conduct around his duty of disclosure and conservation of the family home?
(i)What is a just and equitable adjustment of the parties’ property interests?
There are four subject children:-
(a)W, aged 13 years;
(b)X, aged 11 years;
(c)Y, aged 9 years; and
(d)Z, aged 6 years;
collectively described as ‘the children’.
The children were represented by Melanie Alexander (‘the ICL’).
In broad compass:-
(a)the mother and the ICL wanted the Court to excise the father from the children’s lives. So high was the risk posed by the father that they sought an extension of the injunctive prohibitions so that in the absence of family law proceedings and up until each child turned 18 years of age, the father could be arrested if a police officer had reasonable grounds to suspect that the father had breached the injunction made by the Court as it related either to the mother or the subject child/ren;
(b)The father sought (at the very least) a return to the “spends time” regime ordered at the conclusion of the previous trial (‘the 2020 final orders’);
(c)Insofar as property adjustment relief, both parties wanted me to make an order adjusting their interests with –
(i)the wife asking for 100% of the nett trust account funds (derived from the sale of the family home) (‘the sale money’) and all of the parties’ combined superannuation; and
(ii)the husband asking for 25% of the sale money and 75% of his superannuation interest (‘Superannuation Fund 1’) with the wife to receive the rest of the sale money, 25% of Superannuation Fund 1 and 100% of her superannuation interest.
I have read all the evidence relied upon in the proceedings but do not propose to repeat it here. As the High Court reminds me in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]:
62A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Statements of facts as set out below should constitute findings of fact unless otherwise expressed.
The evidence from the court child expert, Mx GG (‘the family consultant’) consisted of two s 62G reports and their oral testimony. In exercising my discretion as to the weight I should otherwise give to the child impact report[2], the family report[3] prepared by the family consultant and/or their oral evidence, I was satisfied that the family consultant was open to persuasion about different scenarios that were put in cross-examination. Where there were conflicts between what the family consultant recorded the father saying during the family report process and the father’s evidence, I prefer the family consultant’s evidence as being independent and contemporaneously prepared. The family consultant gave thoughtful and consistent evidence with their analysis being clear from the identified facts/propositions put to them and there being a clear and logical pathway to the conclusion/s formed and/or expressed.
[2] References to the contents of the child impact report dated 13 May 2022 shall be identified with ‘CIR’ followed by the relevant paragraph number/s.
[3] References to the contents of the family report dated 13 April 2023 shall be identified with ‘FR’ followed by the relevant paragraph number/s.
Where calculations have been conducted, at times I may have rounded up or down to the nearest AUD$100.
For the reasons that follow, in summary, orders will be made for
(a)The children to live with the mother and spend no time with the father;
(b)The wife to receive 65% of the total property interests of the parties which means:-
(i)Receiving 95% of the sale money ($317,704);
(ii)Retaining 100% of her Superannuation Fund 2 ($35,302);
(iii)Receiving a superannuation split from the husband’s Superannuation Fund 1 of $266,897;
(iv)Receiving payment in satisfaction of the outstanding costs orders ($6,740); and otherwise
(c)Each of the parties to retain their remaining existing interests in all other property held in their name or in their power, possession or control, including property added-back in favour of the husband and the wife.
THE ISSUES - PARENTING
It was common ground that the children have a meaningful relationship with the mother[4] and that the children have not had any contact with the father since an interlocutory order was made on 9 April 2021.
[4] This must be the case given all parties agreed that the children should remain living with her.
On that background, the parties each contributed to the preparation of a list of parenting issues[5] in this matter, with the father/husband given latitude to give oral commentary and additional submissions due to his unrepresented status.
[5] Exhibit ‘F’
With those issues in mind, as well as the oral submissions, below is a list of what I consider to be the issues relevant to the determination of the parenting dispute:-
·Does the father pose a psychological and emotional risk to the children’s current meaningful relationship with the mother?
·Will the children benefit from having a meaningful relationship with the father?
·What weight should I give to the views and/or expressions of the children?
·If I change the children’s circumstances so that they once again spend time and communicate with the father, what is the impact?
·Has the mother appropriately met the needs of the X and Y?
·Have the parties engaged in a parenting after separation course?
·Does there need to be a restraint on the use of physical discipline?
·Is it preferable for me to make an order that will least likely lead to further litigation?
·What is the outcome for the children if either I order contact between the three younger children and the father, but not W OR I order no contact at all?
·What (if any) practical considerations are there with a retention of the status quo (so to speak) or the children once again spending time with the father?
·Having made a finding of unacceptable risk, can the risk can be mitigated by appropriate orders or not?
Does the father pose a psychological and emotional risk to the children’s current meaningful relationship with the mother?
The mother and the ICL submitted that the father presented an ‘unacceptable risk of psychological harm’ to the children because of his persistent and negative views about the mother and the important role she plays in the children’s lives. It was clear that their agreed position[6] (‘the collective proposal’) was informed by this concern.
[6] Exhibit ‘ICL3’ which was adopted by the mother in closing submissions.
The father accepted some responsibility for his past behaviours but not to the extent contended by the other parties.
It was submitted and/or was open for me to find that this risk can best be described as an ongoing tsunami of negativity about the mother and her parenting capacity, with a non‑exhaustive list of consequential examples set out below:-
(a)A pattern of withholding the child/ren from the mother or not supporting the return of one or more of the children to the mother - aimed at seeking to influence the children to reject the mother, thereby exposing the subject child/children to emotional distress and psychological harm;
(b)The father’s relentless negativity about the mother’s ability to parent and/or the value of her relationships with the children as opposed to his capacity and relationships with them;
(c)The father being unable or unwilling to regulate his emotions;
(d)The father engaging in coercive and controlling family violence.
At this juncture it is important to reflect on the legislative pathway and in particular the primary considerations; one of which the parties all agree, that is – the children would benefit from having a meaningful relationship with the father: s 60CC(2)(a).
So with that background, I was asked to find whether the father posed an unacceptable risk of psychological and/or emotional harm to the children and if so, what that looks like for the children and the father given that I must prioritise keeping the children safe: s 60CC(2)(b) & 60CC(2A).
In reflecting on the Court’s role when matters of risk are raised, Judge Morley in Berys & Berys [2022] FedCFamC2F 1162 (‘Berys’) said this at [177] –
177. Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
(1) Assess whether that risk is an acceptable risk or an unacceptable risk;
(2) If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
(3) Decide what orders are proper in all the circumstances in the best interests of the child.
In the decision of McClelland DCJ in Sweet & Sweet [2022] FedCFamC2F 676 (‘Sweet’), His Honour neatly summarised the issues and unacceptable risk. At [55] His Honour said this:
55.The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists is assisted by having regard to the following principles:
•In devising tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access: see M v M (1988) 166 CLR 69 (“M v M”) at 78; B and B (1993) FLC 92-357 at 79,778.
•It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996[7]; M v M at 77.
•Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 at [146]–[148] (‘DFCS v the Colt Children’).[8]
•The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at 81,890-81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
[7] Referred to as ‘A v A’
[8] Referred to as ‘DFCS v the Colt Children’
A finding of unacceptable risk need not be demonstrated according to the civil standard of proof: see Isles & Nelissen [2022] FedCFamC1A 97 (‘Isles & Nelissen’) at [6], [7], [46]-[51] and [81]. Isles & Nelissen was followed in the decision of Eastley & Eastley [2021] FedCFamC1F 212 (‘Eastley’) at [45] where the Full Court observed that a finding of unacceptable risk was open on the available evidence because the evidence demonstrated a material possibility of risk, which need not have been demonstrated according to the civil standard of proof.
As enunciated by the Full Court in Bielen & Kozma [2022] FedCFamC1A 221 (‘Bielen & Kozma’) at [29]‑[30], s 43(1)(c) requires me to have regard to ‘the need to protect the rights of children and to promote their welfare’ which invites me, when considering matters impacting upon the welfare of the child, to focus on the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being.
If the Court identifies the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83] (‘Blinko’) referring to Russell & Close [1993] FamCA 62 (‘Russell & Close’).
In Napier & Hepburn [2006] FamCA 1316 (‘Napier & Hepburn’), the Full Court emphasised that it is not for the Court to find a solution which eradicates the chance of serious harm. Rather, the Court must balance the magnitude of the harm that will follow if the risk is not minimised or removed, as against a normal, healthy parent-child relationship not being permitted to flourish.
Taking each of the behaviours identified previously, the evidence was troubling.
A pattern of withholding the child/ren from the mother or not supporting the return of one or more of the children to the mother - aimed at seeking to influence the children to reject the mother, thereby exposing the subject child/children to emotional distress and psychological harm.
In the judgment Mickelson & Mickelson [2020] FCCA 2986 pronounced on 20 November 2020[9] (‘the 2020 judgment’), Judge Terry found that:-
(a)the father was seeking to influence the children to reject the mother and is continuing to behave in an abusive and controlling manner toward her;
(b)the father engaged in bullying, non-child focused behaviour when in 2018 the father entered a venue where the mother was with three of the children and without the mother’s consent, walked off with W and Y whilst the mother had Z in her arms. The father then subsequently refused to allow the mother any contact with W and Y. Even after a consent order was made on 7 August 2018, only Y was returned with W not returning to the mother until the following day;
(c)on Christmas Day 2018, the father was unable to get W to go with the mother, saying in front of W and the mother that he had spoken to the police and there was nothing the police could do because it was a federal matter;
(d)at Christmas 2019 the father blocked the mother spending time with W;
(e)despite existing interlocutory orders at the time; to the contrary on 7 April 2020 and until another interlocutory order was made as part of the trial in June 2020, the father was unable to ensure that W returned to live with the mother after spending time with him;
(f)any reluctance or refusal on the part of the children to return to the mother was directly attributable to the father having systematically undermined their trust and confidence in the mother and his desire for them to reject her which leads to him taking pleasure in seeing the children act out against the mother and doing nothing to help when they act out or refuse to go with her;
(g)in the context of W not spending any time with the mother since April 2020, the father could facilitate W spending time with the mother if he chose to do so but he chose not to;
(h)the father had alienated W from the mother and was seeking to alienate the other children from the mother and that he was abusing the children by causing them serious psychological harm.
[9] Exhibit ‘B’
The 2020 final orders provided for the children to live with the mother and spend no time with the father for a period of three (3) months before prescribing regularised time between the children and the father. On the second of these visits, the father retained W and took her to a police station. When cross-examined about what happened, a summary of the father’s evidence was that W complained to him about being smacked by the mother and not wanting to go home. Exhibit ‘W15’ is a police record of what occurred at the police station. Whilst some aspects of the record were disputed by the father, other aspects were not. Where there is a conflict I prefer the police record because it was contemporaneously made and had no reason to be self-serving (a finding which I am satisfied could describe the father’s recollections of the same event).
In any event, what the police records demonstrate is that:-
(a)The father appeared belligerent towards the police and agitated stating that police never action his complaints;
(b)The father said that W had made numerous allegations of being smacked and yelled at by the mother for certain incidents;
(c)W would not elaborate on the allegations and when asked questions the father would interject and answer for W;
(d)W initially refused to make an electronic statement and go to court but then after the father pressed W, W changed their mind and agreed to provide a statement at a later date but couldn’t provide any clarifying information about the alleged assault;
(e)Following the return of W to the mother, W disclosed to the police that when W was misbehaving the mother had smacked them on the shoulder some months ago and that the mother often yelled at them. The mother said that in the past she had smacked the children proportionate to the misbehaviour but that since the 2020 final orders she had stopped.
The expert evidence identified within the 2020 judgment and the expert evidence before me was consistent with the pattern of behaviour identified above. For example at paragraph 143 of the 2020 judgment, the Court found there was a strong foundation for the family report writer’s opinion, part of which I set out below –
The father has not shown an ability to facilitate and encourage a close continuing relationship between the children and the mother. The father claims he wishes to support an ongoing relationship for the children with their mother; however, the father appeared to have no qualms about making negative statements about the mother in the presence of the children…
(footnote removed)
Fast forward to April 2021, when in front of the police, the father is observed to press W to make an electronic statement that was negative of the mother. Then at interview in March 2023, in the context of the father withholding W from the mother, W told the family consultant that –
“I refused to go back because that’s what dad would tell me to do, and I wanted him to be proud of me”. [W] then went on to say that the father would then blame [W] for the breach of the Court orders and “tell me that I would be getting him in trouble by not going back”. [W] said that the father would then force [W] to hide if anyone came over (sic) the house looking for [W], and would then be proud of them for doing as he asked. [W] stated that this whole time has been very confusing and that over time they have thought about many inconsistencies in the father’s narrative about the mother and feels hurt and disappointed in themselves that they believed the father so readily ..
In my observation of the father as a witness, he did not resile from his actions in any meaningful and/or persuasive way and failed to demonstrate any insight into the impact of his behaviours upon W, the mother and the other children.
The father’s relentless negativity about the mother’s ability to parent and/or the value of her relationships with the children as opposed to his capacity and relationships with them.
On 27 June 2022, the father filed an affidavit which he relied upon at trial. I have read all of the affidavit but for the purposes of this issue, only the following excerpts have been included although I read them in the context of the entire affidavit and the period of time when it was sworn –
…As a man it is not an easy place to be heard, let alone listened to and to be taken seriously in the Family Court. The odds of men being given primary custody over the mother are on average over 66% stacked in the mother’s favour. I came into this court in the naïve belief that I would be listened to by the Court and that my testimony would be heard. I was not only my voice but also the voice of my four children [W], [X], [Y] and [Z]. When this case first started my children were very young and unable to adequately express their opinion and to tell their truth, to be able to truly tell the Court of the ongoing and unrelenting continued abuse that they, and myself have endured over the years from my ex-wife and their mother.
…As I have stated the mother has physically, emotionally and financially abused me. …… We all now know that the mother’s continued, ongoing and unrelenting abuse has continued unhindered since my time with the children was suspended. The mother has had five long years to change her behaviour and it is beyond clear that she cannot change and will not change.
…It is beyond clear that the mother continues to try and turn the children against me. The mother has clearly been doing this with my eldest daughter [W]. [W] and I always had an incredibly close and loving bond, now all she says is that she doesn’t want to be forced to see me…I don’t believe that [W] won’t see a counsellor. I suspect that the mother has been sending the children or at least [W] to a “re-education counsellor”…
The mother by the looks of it attempted to destroy my relationships with all the children. The mother has blamed me the entire time for her failure to maintain a loving relationship with all of the children… The mother is and will continue to abuse the children…She will not stop abusing the children, the mother has had five incredibly long years to change and she has refused to change and I expect that she has only gotten worse…
(I have altered the text to remove the syntax errors so that the content can be more easily read)
Despite this written evidence, at the trial last month, the father conceded that the mother retain sole parental responsibility and that the children continue to live primarily with her. So, one would think that logically, a lot of the father’s previous concerns and complaints about the mother would fall away when making those concessions. Tragically, they did not and to coin a phrase – the father then proceeded to behave at the trial in a manner that can only be described as “to cut off your nose to spite your face”.
Having had the benefit of reading the family report, during his cross-examination the overall impression formed by me of the father was that despite the children’s most recent expressions to the family consultant about no longer being physically disciplined, the father refused to discount this as an ongoing possibility if not probability. He perseverated over what the mother’s evidence was at the earlier trial and at an earlier forensic interview in these proceedings. It appeared to matter little to him (despite explanation) that I could not “go behind” the lack of adverse findings made by the first trial judge about the mother. However, I note that the father did not make overt closing submissions about this point. Whether that was by accident rather than a deliberate strategy remains unclear given complaints made by him to me that at times I was reading more (or perhaps less) into what he was saying than was his intent.
Having been precluded from cross-examining the mother pursuant to an earlier finding by me[10], the father was left to cross-examine the only other witness, being the family consultant. During this process, there were many instances where I had to deal with either objections from the mother as to a question being improper because of a false premise and/or my own concerns about the relevance of the line of questioning that the father was embarking upon. Ultimately, some of the observations and/or inferences I made about the overall tenor of the father’s questioning included –
(a)The father wanting the family consultant to comment on whether the mother’s depression (historical or otherwise) and the mother’s behaviours (which presumably were drawn from either the father’s own experiences and/or statements made by the children to the family consultant and/or within exhibits) have affected W’s self‑esteem, sense of self and W over-compensating for the loss of their father‑figure;
(b)The father seeking a finding that prospectively he can offer the children an environment where they feel safe, secure and “just happy” and that currently the children are not in such an environment;
(c)The father wanting the family consultant to comment on the reason for the children not wanting to go back to the mother “at times” being because the mother had physically disciplined the children and her being verbally abusive towards the children;
(d)The father conceding that whilst he didn’t always encourage the children to have a relationship with the mother, he didn’t discourage it and there was more than one factor going on other than just himself;
(e)The father being openly unaware that the framing of his questions could be interpreted as being negative of the mother, even after I had warned him that was one possible interpretation open to the Court to make;
(f)The father putting to the family consultant that the mother possibly influenced W against the father (which the family consultant rejected), despite evidence that supported W being realistically estranged from their father and the three younger children not holding negative views of the father even though they had lived full-time with the mother for over two (2) years;
(g)The father wanting to ask the family consultant questions directed at supporting a submission to me that the mother allegedly behaved fraudulently when the Court had already put the father on notice that any such allegations had been considered by the trial judge in the first hearing and that I could not “go behind” those findings now.
[10] See Order 29 made 27 June 2022 pursuant to s 102NA
More than once the father remonstrated the Court about “reading more” into his expressions than it should. What worries me is if I am “reading more” into the father’s expressions or questions than is the father’s intent, how are these children (already exposed to years of parental conflict and loyalty demands) going to navigate their way through whatever the father may say to them about the mother whether purposefully negative or unintentionally so?
The father being unable or unwilling to regulate his emotions.
During closing submissions on the third day, I informed the Court that there would be a 15‑minute adjournment. This adjournment was not unusual - it was at about the time of morning tea (which I had taken in previous days) and frankly, was also meant to assist the father gather his thoughts (and notes) after he had heard the submissions of the ICL and the mother. The father’s spontaneous reaction was to throw his pen down, shake his head and roll his eyes.
Whilst the father apologised to the Court at resumption, if this was how the father demonstrated his unhappiness with an innocuous procedural decision by a judge, one wonders how he can possibly contain himself upon being confronted with an adverse event involving any or all of the children and/or the mother? The lack of restraint in a Court setting does not, in my estimation, bode well for his ability to better self-regulate in a more private setting without the watchful eye of the Court looking on.
Then, when making his closing submissions and despite not changing his position that the children should live with the mother and for her to exercise sole parental responsibility; not once did the father say anything directly positive about the mother and her role with the children.
Instead there were either overt and covert references to him being more capable than the mother such as –
(a)In relation to what the family consultant said about W’s current presentation – the father acknowledged he had breached court orders and had made mistakes, but that there was more to W’s anger and hurt than had been said by the family consultant (whose family report identified all the material read and the interviews conducted with the parents and W). After challenging the basis for the family consultant’s views, the father went on to say “I think I know [W] even better than the mother.”
(b)In relation to the younger children’s expressions about seeing their father – the father submitted this –
“I bring so much joy and stimulation and love to their lives. Children are able to get out of the house. They get to exercise. They get much more when they have time with me. When the children are with me, they know they are, above all else, loved and cherished and yes, I do spoil them.”
In my view, whilst these submissions were quite properly supportive of his case, combined with the absence of anything positive about the mother, they also had an undertone of minimisation about the experiences the children have when living with the mother, which may find overt expression to the children should the father be unable to regulate his emotions in the future.
The father engaging in coercive and controlling family violence.
Section 4AB of the Act sets out a definition of ‘family violence’, followed by examples of what it looks like. I accept the unchallenged evidence of the mother that she has experienced (at least) threatening behaviour by the father which coerced or controlled her.
I accept that W too has had the same experience. How else can I interpret the father unilaterally withholding W (then 11 years of age) and taking them to a police station where the police record the father then pressed W to make a statement against their mother? Despite the father contending that W has been aligned by the mother against him, I accept what W told the family consultant[11] because it was internally consistent and came from an almost fourteen year old child whose perception of the litigation was consistent with their age and exposure.[12] In summary W felt compelled to –
(a)stay with the father because they were told to;
(b)agree to an electronic statement because they were told to; and
(c)hide if anyone came over because they were told to and because the father was proud of them for doing as they were asked;
all on a background of past adverse findings against the father made months earlier within the 2020 judgment to which I have already addressed.
[11] FR-73
[12] FR-71
The emotional trauma that W was exposed to by the father’s actions is writ large when W informed the family consultant that they were confused at the time and now (upon reflection) feel hurt and disappointed in themselves because they so readily believed the father’s narrative.[13]
[13] FR-73
There are no current family violence orders and where there were, the 2020 judgment deals with those orders and any inferences that could have been drawn - such that I am loathe to “go behind” them now and indeed sensibly no one submitted that I should.
Conclusion
At least in closing submissions, the father appeared to accept some responsibility for the children’s experience of parental conflict (something he appeared unwilling to do when speaking with the family consultant). Overall, my sense of the father’s evidence and submissions was that he denied engaging in coercive and controlling family violence.
In the context of his written and oral evidence at trial, his (at times) poor self-regulation in front of me and his line of questioning and closing submissions (examples of which I have set out earlier); I am satisfied that the father poses a material possibility of risk of psychological and emotional harm to the children. In summary this is because:
(a)(to quote the family consultant) the father’s purposeful or unintentional negative sentiments about the mother could continue to have detrimental impacts on the children’s emotional wellbeing, educational engagement, social engagement, understanding of health relationships and (possibly) the quality of any or all future relationships[14];
(b)there is real potential for the children to be exposed to future parental conflict (loyalty demands and aligning behaviour against the mother) and future litigation if exposed to the father because of his inability to regulate his emotions at times of anxiety and his palpable mistrust of the mother’s parental capacity which has already had psychological impacts for the children that the family consultant says may require the children to engage in future psychological support[15] and/or family therapy so that they can process (with each other) their exposure to the extended litigation and the father’s behaviours; and
(c)the father has engaged in coercive and controlling behaviour in the way he coerced W and his engagement with the mother at least in the early stages of this second round of litigation.
[14] FR-103
[15] FR-81
The next stage of my deliberations involves assessing whether there are ways to mitigate this unacceptable risk and I will consider that issue after I have addressed other issues.
Will the children benefit from having a meaningful relationship with the father?
W does not have a relationship with the father that they view as important, significant and valuable: see Mazorski & Albright [2007] FamCA 520.
The expressions of the three younger children to the family consultant suggest that they do.
I explored with the family consultant their opinion on the benefits for children in the promotion of a meaningful relationship with the father as well as the downsides if that relationship is lost. For reasons already given, I accept their evidence.
Section 60CC(2A) says that I have to give greater weight to (ostensibly) keeping the children safe over the promotion of a meaningful relationship. As part of my reflection on the legislative pathway I have considered the objects and principles of Part VII. The High Court observed that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” (bold emphasis added): see Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 at [8] (‘Masson v Parsons’).
I will return to this balancing act later in my decision.
What weight should I give to the views and/or expressions of the children?
I have already referred to some of W’s expressions. They are almost fourteen years of age and they have (in my view) borne the full brunt of five (5) years of litigation and parental conflict (as well as the father’s coercive and controlling behaviours). W’s strong views about not wanting to be part of any formal “spends time with” orders was internally consistent with their lived experience and not coloured by any aligning behaviours of the mother. I totally accept the family consultant’s views at paragraph 77 of the family report.
The three younger children all miss their dad. At face value, their expressions were self‑evidently not the subject of aligning behaviours by the mother against their relationship with the father (despite what the father may think). However, given some of their identified developmental vulnerabilities and/or their young age and limited cognitive capacity to make informed assessments, not all of them were asked for their views about the parties’ proposals. I accept the family consultant’s views that there is a risk that at least one of the children will feel sad and unheard by me if orders are made contrary to their wishes.[16]
[16] FR-67
I accept that the younger children’s expressions are demonstrative of the mother not engaging in aligning behaviour against the father, that they truly did enjoy the time they spent with their father and that they miss him and want to see him again. Beyond those findings, no weight is placed on their expressions and views for the reasons already set out above.
If I change the children’s circumstances so that they once again spend time and communicate with the father, what is the impact?
I acknowledge the father wants (at the very least) for the existing “no contact” regime to change so that he can spend time with all of the children in accordance with the final 2020 orders which in summary would see time occurring:
(a)each alternate weekend (Friday to Monday);
(b)for half of the school holidays; and
(c)on various special occasions.
When the father asked the family consultant about the ‘positives’, the expert agreed that there would be positive aspects to the children having a safe relationship with him. There was other more fulsome expert evidence on this topic that I have also reflected on.
Rather than repeat myself, but in order to give clarity to the father, I have considered his proposal and the evidence about the impacts of changing the children’s circumstances.
In my view, this additional consideration (s 60CC(3(d)) flows into how I address the finding of unacceptable risk already made by me and whether I can change the children’s circumstances in a way that would ameliorate the risks and overall be in their best interests.
Has the mother appropriately met the needs of X and Y?
Within exhibit ‘F’, the ICL raised as issues the mother’s ability to:
(a)Ensure X has been attending appointments with EE Service; and
(b)Ensure Y has been attending appointments with FF Organisation; and
(c)Ensure Y is being provided with appropriate medical equipment; and
(d)Engage the child/ren with any support services recommended to her?
The father explored some of these issues with the family consultant in cross-examination. I heard (and have already referred to) that the children will need ongoing psychological support which might look like family therapy just for them.
There was no contest that the mother would be afforded sole parental responsibility for making decisions about major long-term issues involving the children: see s 4 definition of major long‑term issues and s 64B(2)(c). Through that prism, ultimately no one proposed any mandatory or prohibitory restraints against the mother that would seem to address this issue: s 64B(3).
Although it is likely extraneous to my decision, I will record that having considered the evidence I am satisfied that the mother is meeting the children’s needs. Given the oral evidence of the family consultant about family therapy and my earlier findings about the tsunami of negativity held by the father against the mother - it may be useful to make a notation about what family therapy might look like but canvassed in such a way that the father cannot possibly criticise the mother either about implementation or a lack thereof.
Have the parties engaged in a parenting after separation course?
Irrespective of the evidence, in my view five (5) years of high conflict parenting and ongoing litigation cannot be ameliorated by any aspirational epiphany (my language) that may flow from the parties’ participation in a parenting after separation course. It is simply too late for this family to derive any benefits from such a program with those resources better spent on other families who have only just experienced turmoil.
Does there need to be a restraint on the use of physical discipline?
Ultimately, in submissions, this issue was not pressed by the protagonists being the father and/or the ICL.
Having made that observation, I still considered the issue. I accept the expressions from the children and the evidence more generally, insofar as the children are no longer exposed to such behaviours and there is no physical or emotional concerns for their welfare either arising from physical discipline and/or (for the sake of completeness) verbal abuse whilst in the care of the mother.
I don’t recall the father being pressed about any risk he posed from these issues, but even if he was, at best, the last time he had any of the children in his care was over two (2) years ago, and there are far weightier issues of risk for me to assess than this one.
Is it preferable for me to make an order that will least likely lead to further litigation?
All parties were in furious agreement that the answer to this issue is “YES!”. The father submitted that –
I fully intend that you never see me in these courtrooms again…I’ve no desire to be here again. I wouldn’t do anything to jeopardise the chance to see and spend time with my children again.
The problem with that submission is that even before me, the father said and behaved in ways that reflected disrespect to the Court’s process and/or the mother and further that even after acknowledging that he breached the final 2020 orders (by retaining W in April 2021 because they had allegedly complained of adverse events such as being repeatedly smacked) - he had great difficulty in accepting that he should take the children’s expressions at face value and the family consultant’s opinion that as late as April 2023, the children are not being physically disciplined by their mother.
What that means is that I am concerned that even with particularised orders in place to regulate contact between the child/ren and the father, if the father hears or sees something distressing he will act spontaneously and without putting the children’s emotional and psychological needs first. This may mean (as it has in the past) that he disregards the terms of any parenting orders I may make because he perceives the child/ren are at immediate risk of serious harm if they are returned to the mother. I only have to look back at W’s experience in 2021 to see the damage that this caused.
What is the outcome for the children if either I order contact between the three younger children and the father, but not W OR I order no contact at all?
Informed by ss 60CC(3)(d) and 60CC(3)(m) I listened carefully to the oral evidence of the family consultant about two propositions –
(a)What if I ordered contact between the three younger children and their dad, but not between W and the father?; and
(b)What if I ordered no contact between any of the children and their dad?
I have carefully considered the parties’ submissions and in summary my reasoning about those propositions is set out below.
What if I ordered contact between the three younger children and their dad, but not between W and the father?
The father wants to have contact with all of the children. He tells me that if he does not comply with any parenting order to that effect then he would agree that he should be arrested by police pursuant to s 68C. This submission was made after I explored with the ICL the reasoning behind their proposal for the prohibitory injunctions to be subject to s 68C.
The family consultant stood by her family report that W has strong and internally consistent views about not wanting to be the subject of an order to have contact with the father and for the reasons already identified above, I accept that expert opinion as being supportive of W’s welfare. But what happens if the other three children have contact with their dad, given what the father’s submissions were and those children’s expressions of loss and/or grief at not seeing him?
The family consultant was asked about the impact on the sibling relationship if only the younger children spent time with the father and W knew about this. In summary, the family consultant said they had asked W about this prospect and whilst W had not been very specific, W expressed concerns about possibly feeling excluded or worrying about the younger children being at risk. In other words, W was worried that the younger children were vulnerable and no one would be there to look out for them.
I am satisfied that given the overall evidence of the family consultant (which included records of how W felt then and now about their exposure to the father and the conflict more generally), W’s anxiety would be heightened (to the detriment of their emotional welfare) if the younger children were ordered to spend time with the father.
What if I ordered no contact between any of the children and their dad?
There was no persuasive evidence about any negative impacts for W. Undoubtedly, the three younger children would initially feel distress and grief - so much was clear from the family consultant’s evidence. To support them, the family consultant agreed that they should explain the Orders to all the children so that, for example, Y’s feelings could be supported given his statement about the Court not ‘hearing’ him.[17] This is the short term impact. As for the medium and long-term impacts, the family consultant explained (and I accept) that there are ‘downsides’ to a no-contact order which in summary were that there was the potential for:-
(a)At least the younger children to have issues in their relationship with the mother because they may blame her and this resentment may undermine their relationship with the mother;
(b)W having a limited understanding of where they come from and a connection to the father and the paternal family;
(c)X and Y to initially struggle with understanding the loss of the relationship with their father and this may impact on their identity because they would lose the connection to the father and the paternal family;
(d)Z to miss out on the opportunity to develop an understanding of the father and where she has come from in terms of the paternal family. But that this impact would not be so great as for the other children because those older children have memories of the father whereas Z has no working memory of the parties living together and limited memory of the time she has spent with the father following separation.
What (if any) practical considerations are there with a retention of the status quo (so to speak) or the children once again spending time with the father?
[17] FR-67
All parties agreed that the children should remain living with the mother and that she exercise sole parental responsibility. There was no compelling evidence that any practical issues have arisen as a consequence of that status quo being retained.
The father’s proposal
Otherwise, whilst no one specifically addressed this issue, to be clear to the father, I have. It was not clear whether geography would play a part in the children resuming time with the father as he proposes. However, assuming (based on the lack of submissions) that this is not an issue, when I look at the balance of s 65DAA(5):-
(a)these parties (in particular the father) have already failed once to implement time as per the final 2020 orders; and
(b)there is no communication whatsoever between the parties which is entirely consistent with the finding already made by me about the father perpetrating coercive and controlling behaviour such that the power imbalance felt by the mother would make it virtually impossible for her to negotiate with him for fear that he will simply either ignore what she says and/or the content of any orders that may be in place that he no longer agrees with.
The collective proposal
As for the collective proposal, I am satisfied that a no-contact order coupled with the various injunctive restraints as sought would be entirely practical because it enables the mother and the children to live as they have done for a couple of years now (largely without incident); but with an added ‘safety net’.
It was contended that this ‘safety net’ would protect the mother and the children from further litigation and parental conflict because, if (for example) the father does spontaneously attempt some act contrary to any orders sought by the mother, the mother can immediately and without delay seek assistance from the police.
Given the father’s past pattern of behaviour, and the findings made within the 2020 judgment and by me, this approach makes some sense because it will usually be far quicker for the police to take steps to mitigate the father’s behaviour rather than having to wait for firstly, the Court to consider any interlocutory application and then (most likely), having to rely on a third party authority (such as a member of the police force) to implement an order, particularly if, in the meantime, a child is withheld as was the case for W in 2021 – with the residual intense feelings they described in April 2023.
Having made a finding of unacceptable risk, can the risk be mitigated by appropriate orders or not?
The father’s proposal simply did not sufficiently ameliorate the risks posed by him because what he was inviting the Court to be satisfied of from his submissions and his oral (not written) evidence was that he had gained insight into the previous emotional and psychological harm he had caused to the children to such an extent as to make it in the best interests of the children to once again have contact with him.
Although I listened carefully to the father’s submissions, even if accept them at face-value, they were just one piece of the material upon which I have to base my decision. Counterbalancing that background, I have:-
(a)The father’s inability to comply with the final 2020 orders which ultimately led to the retention of W away from the mother and their siblings, their exposure to a police interview, and W now expressing intense feelings about the whole episode;
(b)The real risk that if the father forms a view (for whatever reason) contrary to what may be unfolding in front of him – he will act spontaneously as he did when he threw a pen onto the bar table in a Courtroom, withholding a child without any thought about the impact for the mother and the children, overtly perseverating (either unintentionally or purposely) over past hurts or misdeeds of the mother that he says were not fairly considered by the first trial judge and engaging in further coercive and controlling family violence to get his way;
(c)The father being unwilling to promote a meaningful relationship between the children and the mother because he is incapable of recognising the positive and significant role the mother plays in the children’s welfare.
So, what does that mean? It means that I am satisfied that no order (no matter how prescriptive, injunctive or coercive it may be) will ameliorate the emotional and psychological damage that the father could wreak on one or more of the children if they have any exposure to him. The father could not restrain himself in his evidence, in his submissions or in his behaviour towards the Court, so what hope is there if the children are with him in a private space away from public view?
Demonstrably, the evidence of the father’s impact is writ large in the experience of W who, years on from their experience in April 2021, –
(a)believes that the father lied to all the children about the mother;
(b)was confused about the mixed messages the father sent to them by either being proud of them for hiding but then blaming them for getting the father into trouble because they wouldn’t go back (to the mother);
(c)feels hurt and disappointed in themselves for so readily accepting what the father said.[18]
[18] FR-73
Whilst there was evidence about professionally supervised time, the view I formed from the family consultant was that unless the supervisor was very experienced and the setting constrained, the children’s emotional safety could not be appropriately supported. On top of that, the father said that it would be “cruel” to order supervised time so even if the evidence did support a long-term supervision order, I am satisfied that even the father did not think it was viable and therefore I won’t take that issue any further.
I have no confidence that the father will comply with an order that he feels (at any future moment in time) does not accord with his world view of either what the mother does or doesn’t do for the children and/or any risk he perceives to his own relationships with them. He will act first and think later, when in my view, it will be too late for the child/ren exposed to his actions.
I acknowledge that a decision to sever the relationship between a parent and a child is one which the Court would ordinarily make only with considerable hesitation: Sedgley and Sedgley [1995] FamCA 154. Section s 60CC(2A) says I should give greater weight to keeping the children safe from harm over the promotion of a meaningful relationship and in my view, the only way I can do that is to preclude the father from having any contact with the children at all.
That said, I am satisfied that the collective proposal has the best interests of the children at the forefront because:
(a)It secured their meaningful relationship with the mother - through them living with her;
(b)The mother has the capacity to meet the children’s emotional and psychological needs arising from the excision of the father from their lives because she has not sought to align them against the father and she will be able to exercise parental responsibility knowing that the father cannot interfere or otherwise try to coerce her towards another course of action (such as having to re-open substantive parenting proceedings); and
(c)There is no evidence that the mother would do anything but comply with orders.
To support the mother’s role and ensure the emotional and psychological safety of the children (particularly as they process any sense of loss and grief that the younger children may feel when informed of my decision), mandatory and prohibitory injunctions will be made by me for the welfare of the children that otherwise affects the parties: s 68B.
The collective proposal seeks to extend the effect of these injunctions such that, pursuant to s 68C, a member of the police force, on reasonable grounds, can arrest the father without a warrant if the police officer finds that certain circumstances are made out when the person has breached an injunction made pursuant to s 68B for the personal protection of another person.
When I explained the consequences of the s 68C order as sought, the father countered by submitting that he would consent to that type of order being a consequence of him failing to return the children to the mother at the end of time spent with him. For the reasons already provided, in my view, that would be too late to quarantine these vulnerable children from the risk of harm posed by the father and I discount that proposition.
Having carefully considered the evidence and the submissions of the parties, I intend to make an order for a power to arrest. This decision is not made lightly by me[19] but because it is proper and in the best interests of the children that I do so. This is because a timely rectification of the status quo needs to be enforced to stop the mother and the children being exposed to the father’s negative, insightless and coercive behaviours which in my view are all aimed at aligning the children away from the mother and undermining their meaningful relationship with her.
[19] See Prantage & Prantage [2015] FamCAFC 145 at [79]
To wait for the Court to ‘catch up’ would be (in the words of the father) a “long time” and hopefully the father will see the benefit in complying with orders that frankly should not be too hard to follow given it is really an extension of the status quo, does not involve exposure by him to either the mother and/or the children (from which he may act adversely because he considers it justified) and particularly if he accepts that to do otherwise will likely imperil his freedom of movement.
To ensure any affected third parties to the injunctive orders are aware of the parties’ obligations, I will permit the mother to provide a copy of the Orders to those organisations.
To avoid any possible conflict between the parties and the risk of the mother experiencing coercive and controlling family violence perpetrated by the father, for example him threatening to make it difficult for her to go on an overseas holiday with the children - if the mother seeks to travel overseas with the children, orders will be made allowing for her to obtain passports and travel without any involvement required from the father.
Finally, in recognition of the evidence from the family consultant, I have ordered that they inform the children of the effect of these Orders and that a notation be made providing a guideline for what family therapy might look like, if this is reasonably practical for the mother to secure. To be clear, it is a notation only and a failure to follow-through will not necessarily draw any criticism of the mother.
CONCLUSION – PARENTING ORDERS
For the above reasons, I have largely adopted the terms of exhibit ‘ICL3’.
My assessment of the unacceptable risk posed by the father (which cannot be sufficiently ameliorated by orders of the Court) outweighs any benefit the children might have in the promotion of a meaningful relationship with the father. Reflecting on Masson v Parsons, these children will get no benefit from the father having a meaningful involvement in their lives because any contact at all would not be consistent with their best interests.
Sadly, the father had his chance when the final 2020 orders were made and he paid scant regard to the opportunity; even now complaining about the lack of adverse findings made against the mother that should have been made back then, but were not.
If I did not make an order as sought by any of the parties, it is because the evidence was not there to support it.
For the reasons above, I am satisfied that the Orders I have made are in the bests interests of the children.
THE ISSUES - FINANCIAL
It was unchallenged that the husband and wife were married in 2007 and separated about 10 years later.
Only the wife prepared a list of property issues[20], and for the same reasons as noted earlier in my decision, the husband was given latitude to give oral commentary and additional submissions.
[20] Exhibit ‘E’
With those issues in mind, as well as the oral submissions, below is a list of what I consider to be the issues relevant to the determination of the property adjustment dispute:-
·What approach should I take to consider the parties’ property interests?
·When did the parties separate?
·What does the balance sheet look like?
·Why do the parties want me to make a property adjustment order?
·How should I assess and weigh the parties’ contributions?
·Are there any relevant ‘future needs’ factors?
·Is the order just and equitable?
What approach should I take to consider the parties’ property interests?
The wife sought that I adopt a global approach to the consideration of all of the parties’ property interests: see Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17; 10 Fam LR 819.
It was difficult to discern exactly what the husband’s view of this issue was. Doing the best I can, the husband contended for an ‘asset-by-asset approach’ which found expression in his relief which was ostensibly that-
(a)The wife made no contribution to Town HH and the proceeds arising from the sale of the two Tasmanian properties and therefore no adjustment was needed to be made and rather the husband should retain the full benefit of those interests;
(b)The contributions of the parties’ to the rest of their non-superannuation property interests meant that the wife should receive 75% of the sale money; and
(c)The contributions of the parties’ to their superannuation interests meant that the wife should retain her superannuation and 25% of the husband’s superannuation with Superannuation Fund 1.
In reviewing exhibit ‘E’, the wife says the husband has not disclosed –
(a)payslips or records of earnings in the two months between December 2021 and February 2022;
(b)personal income tax returns and assessments for two financial years ending 30 June 2019 and 2020;
(c)transaction statements for financial accounts for 12 months between February 2021 and February 2022.
The wife’s evidence is that she only became aware of the redundancy benefit because she caused a subpoena to Employer L to be issued and not because of any disclosure by the husband.
The wife contends that once again I should not be unduly cautious about making findings in the wife’s favour, having regard to the husband’s non-disclosure: see Black & Kellner and Mezzacappa.
At this point, it is appropriate that I set out the comments of the Full Court in Grier & Malphas [2016] FamCAFC 84 (‘Grier & Malphas’) at [129], where Murphy and Kent JJ said:
As the Chief Justice points out, with those principles in mind, the trial judge adopted a broad-brush approach to the parties’ respective expenditure. Nowhere error is established by reason alone of that approach; authority eschews “overly pernickety analysis” and section 79 demands neither an audit nor an exercise in accounting. However, when significant sums of money are said by one party or the other to have been “wasted” or to amount to a unilateral “premature distribution of property” and the evidence is suggestive of either or both, an analysis of the relevant sums and their use is needed.
While I acknowledge the flexibility that cases such as Black & Kellner and Mezzacappa afford to me in the exercise of my discretion in making findings I have had regard to the wife’s contentions, I have also once again reflected on Trevi.
In my view, the husband is entitled to reasonably conduct his affairs post-separation in a manner that is consistent with properly getting on with his life and there was nothing to suggest that he had been living an extravagant lifestyle: see Cerini & Cerini sub nom C & C [1998] FamCA 143 (‘Cerini’) at [46]. I am satisfied that the asserted dissipation of funds does not involve an affront to justice and equity: Watson & Ling [2013] FamCA 57; (2013) FLC 93-527 (‘Watson & Ling’) at [35]
While acknowledging the substance of Black & Kellner and Mezzacappa, I am not satisfied that the circumstances of this case are exceptional so as to find that justice and equity require me to add-back the Employer L redundancy which the husband received years ago. This is because of –
(a)The limited scope of the outstanding disclosure asserted within the wife’s typed list of issues[25] and the lack of more recent correspondence (perhaps following the issue of the Employer L subpoena) which would have put the unrepresented husband on notice of the wife’s intention to seek an add-back due to his lack of disclosure;
(b)The duration of time (over four (4) years) that has transpired between when the husband received the benefit of the payment and now;
(c)The father’s evidence that at least in May 2021 the husband was unemployed and so logically may have expended some of the redundancy on supporting himself;
(d)The likelihood that the quantum of the redundancy may be reflective of his longstanding employment with Employer L (part of which only he would have made a contribution towards);
(e)The husband’s oral testimony that he spent the funds on meeting his daily needs; and
(f)The lack of persuasive evidence that the husband has wasted the redundancy, notwithstanding that I acknowledge that it may be that within the same time period that he had the benefit of the redundancy, the mortgage over the former family home fell into arrears which (if there had been evidence of it) could have demonstrated that the husband should have redirected the redundancy towards meeting those payments.
[25] Exhibit ‘E’
However, this exercise of discretion does not preclude me from re-visiting the issue when turning to s 75 (2).
The husband’s sale proceeds of Tasmanian properties
The only written evidence from the husband is contained at item 59 of his financial statement filed 24 May 2021.
The husband contended in submissions that despite what the line item records, I should read into the recorded amounts received by him of $40,300 and $43,000 that he in fact only received half of each of those amounts while his brother received the other half.
Exhibit ‘E’ records an issue of non-disclosure being about the husband’s failure to comply with an existing order for disclosure by not disclosing a vendor statement for one of the Tasmanian properties and how the Court should then treat the husband’s interests in both parcels of Tasmanian real estate because of this failure to disclose. Exhibit ‘W18’ is the vendor statement for the sale of MM Street, Town NN (‘MM Street’) which has a reference of Re: [Mickelson & Mickelson] Sale […] (my emphasis).
The vendor statement was accepted into evidence upon the re-opening of the trial on Friday 1 September 2023. Despite the husband being on notice about the re-opening he did not appear and it was submitted that despite exhibit ‘E’ disclosing the disclosure of one vendor statement (being about MM Street) and the opportunity to tender the other vendor statement, the husband failed to make disclosure of the second vendor statement.
If I accept the husband’s basic proposition that he and his brother received half of the sale proceeds from each of the two Tasmanian properties, exhibit ‘W18’ would suggest that the husband received about $42,449 from the sale of MM Street. One of the monetary figures in the husband’s financial statement says he received $43,000. The vacuum and/or inconsistency in the evidence is due solely to the husband and relying on decisions such as Black & Kellner, I will not be unduly cautions and I find that the husband received half of the sale proceeds from both Tasmanian properties equating to at least $42,449[26] from MM Street and $40,300[27] from the other property.
[26] See exhibit ‘W18’
[27] See item 59 of the husband’s financial statement.
On that background, the husband then said that 18 or 19 years on, when the properties were sold in 2021, the he and his brother “lost a boatload of money on them” because despite paying the mortgage and outgoings on the properties, they sold for what they were purchased for and that he used his half-share to live on.
As I understand the wife’s case, she argues that either there has been a premature distribution of property that would otherwise be available for adjustment or that the husband has wasted the proceeds.
At trial, the husband’s attitude towards the dissipation of these funds was unequivocal. His view was that he and his brother owned the Tasmanian properties before the relationship, he and his brother made all the financial contributions towards (at least) the conservation of those properties (by paying for the statutory utilities and the mortgage) and as a result - he and his brother were entitled to do what they liked with the settlement proceeds they received post‑separation.
One plank of the wife’s add-back claim of the $83,300 in favour of the husband was that the husband has ‘wasted’ these funds by embarking on a course of conduct designed to reduce or minimise the value of the parties’ property or acting recklessly, negligently or wantonly with the parties’ property which has reduced or minimised the value of such property: In the Marriage of Kowaliw [1981] FamCA 70 (‘Kowaliw’) at 76,644.
The other plank was that there has been a premature distribution of property: AJO & GRO [2005] FamCA 195; (2005) FLC 93-219 and In the Marriage of Townsend [1994] FamCA 144 at 81,654; (1994) 18 Fam LR 505.
In reflecting on add-backs, the Full Court in Trevi laid out what was described as “guidelines”. If I adopt either approach as asserted by the wife I am concerned that I am taking an ‘unduly simplistic’ approach[28] to transactions that occurred years ago at a time when the husband was unemployed and having just concluded toxic parenting litigation with the wife.
[28] Trevi at [28]
In addition I have also wondered about the risk of me expecting the parties to go into ‘a state of suspended economic animation’.[29]
[29] Trevi at [29]
Weighing all these circumstances, I do not accept that ‘justice and equity’ require recognition of the premature distribution in the way agitated for by the wife: see for example Murphy J in Watson & Ling [2013] FamCA 57; (2013) FLC 93-527 at [32].
In my view, and despite being able to cross-examine the husband robustly about his attitude and intentions, I was not satisfied that the joint decision of two brothers to sell the Tasmanian properties was a course of conduct (on the part of the husband) such that there was intent and disregard as contemplated by Kowaliw. Two persons decided to sell, not one. The husband has a very concrete view of the contributions made by the wife which belongs in the dark ages but does it reach the bar of Kowaliw? The answer is “no”.
Having reflected on the circumstances of the parties I have exercised my discretion against adding back because those circumstances are not exceptional and do not involve an affront to justice and equity: Watson & Ling at [35].
However, I will return to this decision by the husband (as well as others) as a factor under s 75(2) - which was the wife’s alternate argument.
The husband’s exposure to three costs orders
The husband has not complied with three Orders made by the Court between June 2021 and June 2022 and totalling $6,740 (‘the costs orders’). There is no evidence that the balance sheet reflects the wife’s dissipation of matrimonial assets to pay those costs, which is corroborated by the wife’s costs notice[30] which says that as at the trial the wife has not paid any legal costs to her lawyer.
[30] Exhibit ‘W2’
Given the case law already cited, in exercising my discretion I am not satisfied that it is appropriate to ‘add-back’ the quantum of the costs orders that remain unsatisfied. There has been no legal costs deducted from matrimonial property, no persuasive evidence of waste and no evidence of premature distribution. Instead what I have is a recalcitrant party.
In those circumstances, I am of the view that the wide discretion afforded to me pursuant to s 105 permits me to consider incorporating into the final orders, an enforcement order (so to speak) to preserve the sanctity of the costs orders and avoid future stand-alone enforcement proceedings: see Knight & Ellington [2019] FamCA 488 (Knight & Ellington) at [88], [105], [109] – [111]. If I adopt this approach, it also means that I satisfy my obligations to the overarching purpose (s 190 Federal Circuit and Family Court of Australia Act 2021 (Cth)) and allows these parties to financially move on with their lives which by all accounts they both desperately want to do.
Why do the parties want me to make a property adjustment order?
There was no dispute between the parties that the property between them needed to be adjusted.
In broad terms the wife asks me to transfer to her 100% of the sale money and all of the husband’s Superannuation Fund 1 and that each party otherwise retain what they have (which would mean that the wife keeps her superannuation too). On the wife’s submissions this amounted to about a 70% division of the property pool (as calculated by her and which includes contested add‑back items). When laid bare, the wife’s proposal was that all tangible cash and superannuation interests would be held by her with the husband retaining notional property (add-backs) and his 33% interest in Town HH.
The husband’s position changed during the course of the trial so that by submissions he proposed that the wife should retain everything she currently has (including her superannuation interest) and in addition, 75% of the sale money and 25% of his Superannuation Fund 1.
The parties’ circumstances include that they no longer live together, there is a significant lump of cash accruing no interest in a solicitor’s trust account and by all accounts neither of them have any other significant cash sums readily available to them. They appear to live ‘hand to mouth’ from their own sources of income or government benefits and there has not been a common use of their property for years.
The undertakings and assumptions that governed the use of their property ended with separation in October 2017.
In acceding to the parties’ joint position, I find that it is just and equitable that an order be made to adjust the parties’ interests in their property: see Stanford at [35].
How should I assess and weigh the parties’ contributions?
It was common ground that the husband made the greater direct financial contributions. This was evidenced by a number of circumstances including –
(a)At the start of the relationship (2007) the husband had an interest in Town HH, more than likely a half-share in two parcels of real estate in Tasmania (which may have been subject to a mortgage) and accrued entitlements and superannuation interests from his employment with Employer L;
(b)During the relationship the husband worked full-time for Employer L and said that he continued to make contributions towards the conservation of the Tasmanian properties;
(c)Post-separation, in about 2018, the husband received $120,326.75 via a redundancy and in about 2019, the husband’s interests in the Tasmanian properties crystallised and he received $41,650. No specific documents were disclosed by the husband that could satisfy the wife about how these lump sums were dissipated and in the witness box, the husband said that the funds were spent on day-to-day living expenses;
(d)The wife initially worked as an educator but withdrew from the workforce to support the household and provide the primary care to the parties’ four children;
(e)The wife has accumulated a modest superannuation interest arising from her employment.
The wife’s unchallenged evidence was that both parties saved up around $50,000 for the deposit on the former family home which was purchased about three (3) years into the relationship and after W was born. The husband said he brought in $55,000 for the deposit but there has been no disclosure and the wife’s evidence was not challenged in cross‑examination by the husband.
It was the wife’s unchallenged evidence that the wife returned to casual work as an educator when W was about 18 months of age and at times she continued to work during the pregnancies of X and Y. I accept the wife’s unchallenged evidence that the parties agreed that the wife would not return to work after it became apparent to the young family that meeting the ongoing treatment needs of X and Y was becoming increasingly difficult to fit around being an educator. It was uncontroversial that X was diagnosed with Autism Spectrum Disorder at age four (4) and Y was born with a medical condition. The children have had ongoing appointments with medical and allied health professionals including EE Service and the FF Organisation.
Because the husband was precluded from cross-examining the wife due to his failure to secure s 102NA legal aid representation pursuant to an order of the Court made over a year ago; I accept the wife’s evidence that she attended to all the housework, shopping, cleaning, cooking and caring for the children and most of their attendances at various appointments.
That said, the husband was scathing of the wife during cross-examination and/or submissions insofar as her not contributing to the household and care of the children as she asserted she did because –
(a)she refused to go to work when asked;
(b)she didn’t look after the children because there were in day care (five days a week); and
(c)she didn’t clean the house to an acceptable standard.
To a large extent there is little weight I can place upon some of the husband’s submissions because the detail of some of those submissions veered into him attempting to give evidence from the bar table which I instructed him not to do. I am not being critical, he was a litigant in person, but the husband should be under no illusions about the limitations upon me in dealing with some of his statements.
In my view, each party has made significant contributions. Undoubtedly the husband was responsible for paying the mortgage and probably for a lot of the other expenses of the household but he could only do that because of the wife being willing and able to take on the household and parenting duties for four children.
I entirely reject the husband’s blatant self-serving and minimising evidence and submissions about the value of those contributions. They served only to reinforce how bitter the parties’ separation has been and the imperative for a separation of their financial relationships to happen sooner rather than later so they can both move on free of having to deal with each other.
The husband said that the wife kept bringing debt into the household including running up thousands of dollars’ worth of toll notices but the wife was not cross-examined about this contention.
To her credit the wife described the husband as working very hard long hours whilst the parties were together and that he was in charge of the family finances. This evidence was consistent with the husband’s evidence and submissions.
Through that prism I accept the wife’s unchallenged evidence that she had the primary care of the children and the running of the household. To do otherwise, as the husband submitted I should, is illogical. In cross-examination the husband did not easily (if at all) concede the value of the wife’s indirect financial contributions reflected in her efforts on the home front which enabled him to work the long hours, earn the money that he did and acquire the entitlements and superannuation benefits that flowed from such employment. Despite this, I am satisfied that the only way that the husband could receive the benefits of his employment and earn the money he could; and pay for (it seems) not only the family’s outgoings but also the outgoing on the Tasmanian properties was because someone was at home.
Even in relation to non-financial contributions, the husband remained overly critical of the wife’s role in managing the household (including what I would describe as superficial complaints about not cleaning the house to a satisfactory standard, incurring various toll notices and refusing to return to work – none of which were the subject of cross-examination of the wife).
Over the husband’s criticisms and based on her evidence, I accept that the wife’s role extended not only to providing an appropriate standard of domestic duties but also providing care for the children (including when the husband worked long hours) which included getting the children to and from their various commitments whether those were medical, allied health or early education childhood facilities and the education system more broadly.
The parties have been separated for many years. The mother has retained her primary caregiving role and for (it seems) some years, the husband was unemployed. As a result of the husband’s actions and/or circumstances (intended or otherwise), I am satisfied that the husband did not conserve nor maintain the former family home as he should have. The mortgage fell into arrears some years after separation and eventually I had to make orders in February 2022 (against the strident objections of the husband) for the husband to vacate the premises so that the wife (as sole trustee) could sell the property.
To his discredit, the husband quit the premises and left no keys by which the wife could access it, causing her to go to the expense of engaging a locksmith. His poor conduct continued when the wife discovered the state of the property. Having assessed the wife’s evidence versus the husband’s (both written and oral), I prefer the wife’s as being an unvarnished account of what she and her associates had to contend with in trying to get the home ready for sale. Even the husband conceded that the property was not left in the best of states when he vacated - but he deferred blame upon either the weather or the wife and took little if any responsibility himself. In any event, through the efforts of the wife and her associates, the former family home was sold and now there remains over $330,000 in a trust account awaiting distribution.
Whilst recognising that the husband could not cross-examine the wife about his contention that the wife refused to return to work and (in essence) did very little towards supporting his role as primary income earner; for the reasons already set out above - the evidence is clear and I reject the husband’s (frankly) outdated approach to the value of the contributions that both parties made during the relationship and after separation.
I am mindful of the long line of cases that have considered how to assess and weigh initial financial contributions through the prism of a lengthy marriage and the rubric of the other financial and non-financial contributions made by parties that flow from that circumstance: see Jabour & Jabour [2019] FamCAFC 78 at [55].
In light of the comments of the Full Court in Pierce v Pierce [1998] FamCA 74; (1999) FLC 92-844 (‘Pierce’) at [28], there was no evidence that the wife used or had any benefit from the Tasmanian sale proceeds which were dissipated solely by the husband. The same observation could be made about the lack of benefit to the wife from the Employer L redundancy – again only the husband had access and it seems all of the funds were spent by him and not necessarily on the acquisition, conservation or improvement of the parties’ property. As for Town HH, the husband has and will retain use of that interest, albeit he asks me to accept his use will be limited.
Having regard to Pierce and Cabbell & Cabbell [2009] FAMCAFC 205, when I considered all these contributions (all of which – to varying degrees – involve an element of initial contributions by the husband), I have not only traced the use of those interests but have also considered the foundation that they laid for the subsequent accumulation of property by the parties.
In evaluating the parties’ myriad of contributions, it is necessary for me to have regard to the context of the husband’s initial contributions and specifically, to the opportunity those initial contributions created and the impact of those initial contributions on the subsequent accumulated property of the parties as at the date of the hearing: see Gadhavi & Gadhavi [2023] FedCFamC1A 117 at [33].
I am required to make a holistic value judgement when exercising my discretion pursuant to the Act and in doing so, I should not engage in an accounting exercise. I must consider all of the parties’ contributions as made clear in the decision of the Full Court in Dickons & Dickons (2012) 50 Fam LR 24 (‘Dickons’) at [24]-[26] and in particular at [26] where the Full Court said this –
26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
In Fields & Smith [2015] FamCAFC 57, Bryant CJ and Ainslie-Wallace J said at [168]:
...the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial, and the analysis requires the Court to weigh all of the contributions of all types prescribed by section 79(4) made by both parties across the entirety of the relationship until the time of Hearing, including the post‑separation period.
Evaluations as to contributions inevitably involve value judgments and matters of impression and accordingly the evaluation of contributions cannot be treated as a mathematical exercise: see Lovine & Connor and Anor [2012] FamCAFC 168 (‘Lovine & Connor’) at [40] & [41], Petruski & Balewa [2013] FamCAFC 15 at [49] and Blandford & Esmore [2022] FedC1A 67 at [14].
Without conflating ss 79(2) and 79(4)(a)-(c), when I weigh up and assess the myriad of contributions towards their non-superannuation and superannuation interests that these parties have made within the partnership that was their marriage before, during and after separation years ago, I assess the husband’s contribution at 55% and the wife’s contribution at 45%. In summary the main issues that influenced my discretion were:-
(a)The unquantified but nonetheless agreed initial financial contributions made by the husband, most of which either the husband retains the benefit of it now including Town HH, Superannuation Fund 1and the sale proceeds from the Tasmanian properties;
(b)The post-separation non-financial contributions the wife has made towards the ongoing care of the children.
Are there any relevant future needs?
Sections 79(4) and 75(2) set out the legislative framework which informs my consideration of what I explained to the husband was the Court looking prospectively at the future needs of the parties.
There was no evidence to suggest that the age or state of health of one or other of the parties should feature prominently in the exercise of my discretion.
Both parties are working, albeit their evidence enables me to find that the husband has the greater income earning capacity because he currently receives roughly $1,100 “in the hand” whereas the wife deposes in her financial statement to receiving a gross weekly salary or wage of $650, less about $10.00 for income tax. Both parties have modest income earning capacities but the husband’s is greater given he will not have to juggle his work commitments with caring for the children. This finding is informed by what has occurred historically both during the relationship and afterwards.
I have had regard to the parties’ property interests as set out earlier in these reasons.
The mother will be 100% responsible for the care of the children.
The parties’ financial statements speak for themselves about their commitments to support themselves and the children. The husband told the Court that his current child support liability looks like just over $110 per week[31]. The wife says there is a current outstanding child support liability owed by the father for the children amounting to about $4,700[32].
[31] Exhibit ‘W12’
[32] Exhibit ‘W11’
The mother deposes to working as a casual during mainly school hours (about 14 hours per week). I accept the wife’s unchallenged evidence that she is concentrating on keeping the children safe and making sure they all attend their various appointments. It is clear from her evidence that the children, particularly W, X and Y have ongoing appointments with various service providers which may involve her taking them to and from appointments and that she would like to continue supporting the children in that way.
There was no evidence of the parties having to support other persons.
The wife also says that she receives a combined family tax benefit and pension of $750 per week.
Section 75(2)(o) enables me to consider any fact or circumstance which in my opinion, the justice of the case requires to be taken into account.
In this matter, and in my view, informed in part by his outdated attitudes - I have a husband who has acted disrespectfully towards the wife insofar as he has:-
(a)paid lip-service to his obligations to make full and frank disclosure (including not fully complying with orders for disclosure);
(b)dissipated over $200,000 since at least 2018 when he first received his Employer L redundancy, followed by the sale proceeds from the Tasmanian properties;
(c)failed to conserve the former family home by falling into arrears of the mortgage (which may or may not have impacted on the parties’ credit ratings and/or the nett sale proceeds available for distribution at trial) and then leaving the home in a dishevelled state including by causing the wife to firstly engage a locksmith so she could gain access and then causing her and her associates to have the place tidied up so it was ready for sale.
Other than the above observations and findings, there was insufficient evidence upon which I could make any other findings pursuant to s 75(2). My exercise of discretion is informed by the reflections made by the Full Court in Hobson & Hobson [2020] FamCAFC 251 that the purpose of a s 75(2) adjustment –
is not to achieve equality in the financial strengths of the parties, nonetheless the overarching obligation is to achieve a just and equitable division of the property.[33]
[33] Hobson & Hobson [2020] FamCAFC 251 at [32]
For the reasons set out above, the s 75(2) factors warrant a further adjustment of 20% in the wife’s favour. In summary this is because:-
(a)The husband has double the income-earning capacity of the wife;
(b)The wife will have the full-time care of the children;
(c)The husband has expended over $200,000 in the past four to five years and did not make full disclosure of how those funds were spent;
(d)The husband’s poor conduct around appropriately conserving the former family home.
Is the outcome just and equitable?
Presently, my assessment of how the parties’ property should be adjusted means the wife receives 65% of their combined property interests with the balance of 35% to the husband, resulting in $623,525 to the wife and $335,745 to the husband.
Currently the wife has non-superannuation and superannuation interests totalling $206,137 or 21% of the property pool. Conversely the husband has 79%, the majority of which consists of superannuation.
There was no evidence that either party has a desire or capacity to try to access their superannuation. They are both relatively young and ordinarily would not be able to access their superannuation for years to come. Both want cash, although the reality is that the husband has already received the benefit of over $100,000 for legal services whereas the wife only $3,600. So if I adhere to the propositions inherent in the above reflections it means that I should adjust the non-superannuation property pool 65:35 in favour of the wife and do the same for the superannuation pool.
Breaking that down further, it means that from the non-superannuation property (which totals $643,233[34]), the wife should get about $418,101 and the husband about $225,132. As for superannuation, there would be a superannuation splitting order from the Superannuation Fund 1 interest to the wife’s superannuation account of $170,121 - because the wife already has $35,302 in Superannuation Fund 2, meaning she would receive/retain a total of $205,423 (or 65% of the total of the parties’ combined superannuation interests of $316,036) and the husband $110,613 or 35% of the same total.
[34] See para 128 of this judgment.
The problem with that form of division is that the only way the wife can easily obtain non‑superannuation property is via the sale money of $334,426 meaning a shortfall of $83,675.
The husband gave no evidence that he had access to financial resources or other tangible cash reserves from which to pay that shortfall. His only other non-superannuation property interest was a one-third share in Town HH and neither of the other registered owners were on notice about the making of an order (for example the sale of Town HH) that might affect their interests so that I could not even entertain that notion because of lack of procedural fairness and therefore it being impracticable and inappropriate to make a direct order: see Best & Best.
Weighing on the exercise of my discretion is also the flow-on beneficial effect for the children if as much cash as possible flows into their household, firstly because in any event, so far they have not (and may never due to the husband’s conduct) have the benefit of the child support liability currently owed by the husband and any significant lump sum will further secure a standard of living which will only benefit their current lived experience of the mother having a modest income and not much else.
In my estimation of the husband’s conduct to-date (which includes multiple events of non‑compliance with Court orders including the satisfaction of the costs orders); from funds he might otherwise receive as a result of my determination I have no confidence that the husband would voluntarily satisfy the costs orders totalling $6,740.
In reflecting on my jurisdictional capacity to make such an order, I observe that if I don’t make an allowance for the payment of the outstanding costs orders part of my judgment, the wife will be forced into enforcement proceedings which will cost more time and money (neither of which she should have to endure given the family has been exposed to litigation for about five years already and the wife is of modest means).
The husband was aware that the outstanding costs issue was a live issue. Pursuant to s 105, I am satisfied that the husband has received procedural fairness and given the circumstances of this case including the time that has transpired since the costs orders were made, it is not inequitable to enforce those orders. Rather I am satisfied that with five (5) years of litigation behind them and only a modest property pool to disburse, principles of general fairness would suggest that I determine as many of the issues between these parties now: see Knight & Ellington.
The exercise of my discretion would also see me conducting the practice and procedure of these proceedings in accordance with the overarching purpose: s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
This is because, given my concerns about the husband’s conduct, the alternative is to delay at least the husband receiving his share of any cash proceeds until after another hearing occurs to resolve any prospective enforcement proceedings that the wife would have to bring (and the consequential costs she would be bear in doing so).
Also weighing on my mind is the husband’s contention that it would be unfair to leave him with no cash. As part of his property adjustment relief, he offered the wife 75% of the sale money so by all accounts that means he was prepared to accept less than $84,000 from those funds. I need to reflect on his circumstances too which have seen him receive/retain the sole benefit/use of real property he brought into the relationship or were generated (at least in part) from his pre-relationship employment as well as a notional sum of over $100,000 in legal costs.
Weighing up the competing propositions and reflecting on the parties’ circumstances, I intend to make orders that overall reflect a 65:35 adjustment of the property pool in favour of the wife amounting to $623,525 with the husband receiving the balance.
Because of the practical difficulties in achieving an “across the board” 65:35 division of the parties’ non-superannuation and superannuation interests as illuminated above, it is just and equitable that the property adjustment orders are framed in the following manner:-
(a)From the sale money –
(i)the wife shall receive $317,704 or about 95%;
(ii)before the husband receives the balance 5% - $6,740 will be deducted in satisfaction of the outstanding costs orders and paid as directed by the wife with the husband to receive the rest as directed by him;
(b)From Superannuation Fund 1, a splitting order will be made amounting to $266,897, although the making of the Order will be deferred to enable procedural fairness to be given to the relevant trustee;
(c)The parties will retain all other property interests that are in their power, possession or control.
To explain the quantum of the superannuation splitting order, the wife is supposed to receive a total of $623,525 from the property pool. If she keeps what she already has the benefit of, being the paid legal costs of $3,622 and her Superannuation Fund 2 of $35,302 and I add-in the $317,704 from the sale money then another $266,897 needs to be found.
As part of this process, it is important that I reflect on the effect of the orders for both parties and having considered the wife’s position, I now reflect on what my proposed orders will mean for the husband. I acknowledge that the orders I intend to make will mean that the husband receives or retains his 33% legal interest in Town HH ($200,000), close to $10,000 in cash from the sale money, about $13,900 in Superannuation Fund 1 and the benefit of over $105,000 in legal fees expended by him voluntarily. In addition, and despite the contentions of the wife, I have not notionally added-back over $200,000 in other cash that the husband has had the use of since separation. I recognise that the quantum of the husband’s share of the sale money identified above is less than it otherwise would be because of the making of an enforcement order for the costs orders.
As part of my assessment about whether the proposed orders are just and equitable I have carefully weighed up the effect of my orders upon the husband (as well as the wife). I have carefully considered the husband’s proposition that it would be unfair for him to be left with nothing. Although I acknowledge that submission, I am satisfied that the husband has voluntarily had the benefit/use of large sums of equity or cash since separation. He will not be left with nothing.
Procedural fairness has regrettably not been afforded to the trustee of Superannuation Fund 1 (‘the trustee’). So, whilst I intend to make a splitting order amounting to $266,897 – it will be deferred for at least 28 days so that the wife can give procedural fairness to the trustee in accordance with the Act, with any consequences that flow including as to the refinement of the Orders I propose to make in order to satisfy the trustee.
Again because of my concerns about the father’s past conduct, I will make a s 114 injunctive order restraining the husband from attempting to access his superannuation interests until the splitting order has come into effect. I acknowledge that this is not a flagging order but nonetheless there may be some merit in the wife serving the trustee with the Orders so that authorised staff from the trustee may be able to advise the husband if he has any queries and otherwise be made aware of the proposed Orders.
CONCLUSION – FINANCIAL ORDERS
Accordingly, the orders set out at the commencement of these reasons, in the form as prescribed, will achieve an alteration of the parties’ proprietary interests which is just and equitable.
In the event that a costs application arises from this judgment I have also made some procedural orders to promote efficient case management.
I certify that the preceding two hundred and fifty-one (251) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney. Associate:
Dated: 6 September 2023
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