MILLICOTT & MILLICOTT

FAMILY COURT OF AUSTRALIA

MILLICOTT & MILLICOTT

[2017] FamCA 826

FAMILY LAW – CHILDREN – Best Interests – Where both parties are self-represented – Where there are allegations of family violence – Where there are allegations of substance misuse – Where the child has not seen the father for a significant period of time – Where the child was previously spending supervised time with the father – Where the father has perpetrated family violence against the mother in the presence of the child – Where the father has not sought to change his behaviour – Where the father behaved inappropriately at final hearing – Where there are ongoing concerns for the safety of the mother – Where the father has not put forward a proposal to mitigate concerns about his behaviour – Orders made for the mother to have sole parental responsibility and for the father to spend no time with the child.

FAMILY LAW – PROPERTY – Just and Equitable – Where both parties are self-represented – Where there is a lack of evidence before the court – Where the husband has failed to make full disclosure – Where the only asset for distribution is the former family home – Where the husband made a significant financial contribution of $250,000 to the property – Where the wife’s financial and non-financial contributions are otherwise greater than the husband’s – Where the wife’s contributions were made more arduous by the husband’s perpetration of family violence – Where an adjustment in favour of the husband is warranted for contributions to the property – Where the husband used a significant amount of joint funds as his own following separation – Where the husband’s current financial assets and position are not clear – Where the wife will have the care of the parties’ child for the foreseeable future without assistance from the husband – Where the wife’s superannuation is likely to be much less than the husband’s – Where an adjustment in favour of the wife is warranted for section 75(2) factors – Orders made for the former family home to be sold and for the wife to be trustee for sale.

Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAC, 65Y, 79(4), 75(2)
Mental Health (Forensic Provisions) Act 1990 (NSW) s 32

AJO & GRO (2005) FLC 93-218, [2005] FamCA 195
Bevan & Bevan [2013] FamCAFC 116
Blinko & Blinko [2015] FamCAFC 146
Black & Kellner (1992) FLC 92-287;15 Fam LR 343
Kennon & Kennon [1997] FLC 92-757
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Pierce & Pierce [1998] FamCA 74
Stanford v Stanford (2012) 247 CLR 108
Williams & Williams [2007] FamCA 313

APPLICANT:

Mr Millicott

RESPONDENT:

Ms Millicott

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

2537

2014

DATE DELIVERED:

16 October 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

29, 30 & 31May 2017 & 14 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self Represented

SOLICITOR FOR THE RESPONDENT:

Self Represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Blacktown

Orders

Parenting

All previous parenting orders in respect of the child B born … 2013 (“the child”) shall be and are hereby discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with her mother.
The father shall spend no time with or have any communication with the child.
The mother shall have sole responsibility for decisions relating to the child’s international travel.
Pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother shall be at liberty to travel outside of the Commonwealth of Australia with the child.
The mother has sole responsibility for giving consent and making arrangements for the issue of a passport and travel documents for the child, B born … 2013.

Property

The wife be and is hereby appointed as trustee for sale of the property situate at and known as C Street, Suburb D … NSW.
The wife as trustee shall forthwith do all things and sign all documents necessary to proceed to sell the property at C Street, Suburb D … NSW by private treaty.
The proceeds of sale of the property be distributed as follows:
(a)       In adjustment of rates, water services fees and taxes;
(b)       In payment of the expenses of sale including real estate agent’s commission;
(c)       In payment of any money required to secure discharge of any encumbrance registered against the title to the said property; and
(d)       The balance be divided in proportions 55 per cent to the wife and 45 per cent to the husband.
In the event that the property fails to be sold by private treaty within a period of six (6) months from the date on which it is listed for sale then the trustee shall take all necessary steps and execute all necessary documents to cause the property to be sold by auction at the earliest possible date at a reserve price as agreed by the parties.
That in the event the property does not sell by public auction the property shall be resubmitted for sale by private treaty and the property shall be resubmitted for sale by public auction at six (6) monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions until the property shall be sold and upon such sale either by public auction or by private treaty. The proceeds of sale shall be distributed in accordance with Order (10).
Within 14 days after the sale of the property the parties shall do all things and sign all documents necessary to close the NAB joint bank account number ...02.
Pending the transfer or sale of the property the wife and the child have the right to occupy the property to the exclusion of the husband.
Apart from as provided otherwise herein the husband and the wife shall have the sole right, title and interest in:
(a) Any chattels, goods, furnishings and other property which are, at the date hereof in their possession respectively.
(b) Any money, shares, debentures, investments and superannuation entitlements which stand in their sole name or to their credit respectively at the date hereof.
In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders, the Registrar of the Court is appointed pursuant to section 106A of the Family Law Act 1975 (Cth) 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.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2537 of 2014

Mr Millicott

Applicant

And

Ms Millicott

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This dispute concerns the child B a little girl of three (“the child”) and her parents. The child’s mother, a 34-year-old woman from Country E (“the mother” or “the wife”) and her father a 39-year-old man who grew up in Australia (“the father” or “the husband”) met on an online dating service and subsequently married.
Throughout their relationship the mother says that the father was violent to her and his functioning was affected by drug use and poor mental health. She contends that the father for these reasons poses an unacceptable risk of harm to the child and seeks orders that she have sole parental responsibility for the child, that the child live with her and spend no time with or have any contact with the father.
The father contends that the mother has excluded him from the child’s life which is not in the child’s best interests. He proposes orders that would see both parents share parental responsibility for the child and the child live in both parent’s households in an equal shared care arrangement or that the child live with him for at least substantial and significant time.
The independent children’s lawyer (“ICL”) agrees that the mother’s proposal is in the child’s best interests. The question for me to determine is which of the proposed suite of orders are in the child’s best interest.
During their marriage relationship the parties also acquired and sold various items of property. The only asset of significance that remains is the jointly owned former family home. Both parties seek property settlement orders.

Background

The father is a 39 years old. He met the mother who is 34 and was born in Country E on an online dating service in about 2004 and began a relationship with her. The father travelled to Country E on a number of occasions during that year and in November 2005 the mother moved to Australia where she began living with the father.
The father’s assets and liabilities at the time the parties began living together are a matter in dispute between the parties. The father sets out little detail concerning this matter in his affidavit and in oral evidence gave contradictory information. The mother contends that the only property owned by him at the time the parties began living together was not an asset but a liability, a matter to which I will return.
The mother had no property interests at the beginning of the relationship.
The parties were married in 2006 and shortly thereafter moved to live in Western Australia where the father worked and the mother was also able to find work.
The parties operated as a single financial unit from the beginning of their relationship. They had a joint bank account from early 2007 and the money earned by the mother was spent on groceries and household items while the father paid the rent and utilities. The parties jointly refinanced a property purchased by the father prior to the relationship and later together bought and sold another property.
The mother says that the father was violent to her throughout their marriage and assaulted her for the first time when they were living in Western Australia. She also contends that the father began using a substance which she later understood to be amphetamine (also known as “speed”) a short time later and that he also used alcohol to excess which was associated with his violence. The father denies that he has been violent towards the mother at any stage and as this is a significant matter of dispute in the proceedings it is a matter to which I will return.
Although the father does not dispute that he used amphetamine, methamphetamine (also known as “ice”) and other illicit and prescription medications from time to time he disputes the level of his drug misuse and the suggestion that it has any adverse impact upon his parenting capacity. These matters are also dealt with later in these Reasons.
The parties relocated to New South Wales after about 12 months in Western Australia and lived in rented premises. The mother began working in administration and tuition and the father continued working in various parts of rural New South Wales.
The father has an extensive criminal history including many convictions for driving while disqualified and had been in March 2006 convicted of such an offence resulting in a lengthy disqualification. From July 2007 when the mother obtained her driver’s license she drove the father to various workplaces throughout New South Wales and the ACT so that he could continue in his occupation.
From August 2007 the father did not work for six months due to unforeseen circumstances. During this period the father received some payments by way of compensation. The father resumed work in 2008.
There is a dispute between the parties about their respective contributions throughout the relationship and in particular the father’s contention that his mother (“the paternal grandmother”) lent them a significant sum of money. This is a matter dealt with later in these Reasons.
The mother maintains that over the following years the father continued to engage in drug use and on a number of occasions physically abused her from about 2009, a matter to which I will return.
In 2009 the father was convicted of driving while disqualified and sentenced to a period of home detention for nine months.
The father was suspended from employment on a number of occasions for assaulting supervisors, taking unauthorised substances and other matters.
In 2010 the parties bought a home in Sydney which was registered in their joint names and became their family home. (“the family home”). The father was responsible for the mortgage payments when the marriage was intact. The parties are in dispute about the extent of the father’s contribution to the purchase of this property.
The parties had hoped to have children but a number of pregnancies resulted in miscarriage, so in 2011 they began IVF treatment.
In 2011 the father injured his hands in a fall which required extensive medical attention including surgery. The father was unable to work for some time but received some income support.
As a result of home detention, suspensions and injuries the father was regularly unemployed from time to time between 2009 – 2011 but the mother continued to work full time throughout this period. She contributed all of her income to the support herself and the father.
In about November 2011 the parties began a business as it appeared that the father would not be able to return to his former employment. The business, known as F Pty Ltd (“the parties’ business”) designed products associated with the husband’s former employment which were manufactured in Asia and imported and distributed throughout Australia. The business was registered in the father’s name but the mother had a significant involvement in carrying out bookkeeping and administrative duties.
In 2013 the mother became pregnant and suffered some medical complications which required her to be hospitalised.
The parties’ only child, a daughter was born in 2013. The maternal grandmother came to stay with the family to assist with their newborn child for some time.
The mother contends that when the child was a small infant the father was engaged in using and selling illicit drugs and says he became erratic and aggressive. There were a number of incidents in the first few months of the child’s life in which the father was violent including an incident in February 2014 which involved the maternal grandmother. The father was charged with assaulting the maternal grandmother and an Apprehended Domestic Violence Order (ADVO) was made for the protection of the mother and child against the father. As a result of this incident the parties separated. However, there is a significant dispute between the parties about the father’s behaviour and alleged violence at around this time including this incident which is an issue to which I will return.
Following separation the mother found over 20 mobile phones and drug paraphernalia in the father’s office.
The father bombarded the mother with text messages on the day following separation. The father also breached the ADVO on a number of occasions between February and August including attending at the mother’s workplace, 2014 some of which resulted in him being charged.
There was a particularly serious incident in August 2014 and the mother and child were required to flee their home and seek assistance to ensure their safety. The father was arrested as a result of this incident. The mother felt frightened threatened and intimidated by the father’s actions during this period. As a consequence the mother saw a psychologist through Victim Services in 2014 and 2015 and has been assisted by a family support service following incidents of violence perpetrated by the husband.
Due to the stress associated with the father’s behaviour the mother felt unable to resume work after maternity leave.
There is a dispute between the parties concerning the operation of their business and access to joint funds following separation to which I will return.
Initially the father did not spend any time with the child following separation and the ADVO was in place for the protection of the child as well as the mother.
On 1 July 2014 interim orders were made for the father to spend time with the child on a supervised basis at a children’s contact service. This time occurred for a few months from October 2014. In February 2015 the contact centre suspended its services as a result of the father’s behaviour being in breach of the contact service agreement and the father advising the centre he no longer wished to attend visits. The time at the contact centre did not ever recommence.
The father has spent no time with the child since February 2015 and the mother alone has been responsible for financial support of herself and the child.
The parties’ divorce was finalised in December 2015.
The mother has remained living with the child in the former family home and has paid the mortgage and all outgoings associated with this property.
At the time of the final hearing the child was almost four years old. The mother works part time and is undertaking further tertiary qualifications. The mother has not re-partnered.
The father began a new relationship with a Ms G in about mid-2016. At the time of the final hearing the father and Ms G lived in a rented one bedroom apartment and Ms G’s two children spent two nights per week with them and otherwise lived with their father.
The father’s employment situation at the time of the final hearing was unclear.
The father had been charged with a number of criminal offences in 2015 and 2016 and was sentenced to a prison term of 12 months with a non-parole period of nine months just prior to the hearing. This sentence was stayed as he has appealed against that conviction and sentence.

The Areas of Dispute – Parenting

The father’s violence, drug misuse and criminal history

It is the mother’s case that the father’s illicit drug use, violent conduct towards her and criminal behaviour are relevant to both the parenting orders and the property settlement. She contends that there is an unacceptable risk that the child will be exposed to the father’s criminal and violent conduct and that his drug use impairs his parenting capacity. She also fears that the father may be violent towards her if she is required to co-parent with him.
So far as the property dispute is concerned the mother contends that as a result of the father’s criminal conduct she was required to make particular contributions, such as driving the father to his workplace when he was a disqualified driver. The mother further contends that the father squandered income on drugs which would otherwise have been used to support the family. She also contends that when the father was undertaking home detention she became the sole breadwinner and that as a result of his violence her capacity to make contributions both financially and otherwise was impaired. She says his conduct caused her to lose her job and seek psychological assistance to overcome the trauma associated with his violence.
The father does not address the issue of his offending or drug use at all in his affidavit. He makes a general denial that he was violent in his affidavit but does not set out a version of events in relation to the mother’s specific allegations of family violence.
The mother alleges that the father was violent towards her from a very early stage in their relationship. She says that the first incident of physical violence occurred in about December 2006 when they were living in Western Australia and the father “became extremely aggressive and tried to suffocate [her]”. She deposes that he “threw me on the bed and put a pillow over my face and split my lips.” The mother deposes that the police were called and took the father away for 24 hours. She says that after the incident she left the father for two weeks and stayed with a friend but she and the father reconciled and the father agreed to attend counselling. The father does not set out a version of this event in his affidavit though he deposes to the parties seeking the assistance of H Group in Perth in 2007.

Under cross-examination by the ICL the mother remained firm about this incident which she said shocked and frightened her. She agreed that the police did not charge the father at her request because at that stage they had just married and she wanted the marriage to work. The father did not challenge the mother under cross-examination about this incident.
According to the mother she first became aware of the father’s illicit drug use in 2007 when she saw him smoking a substance in a “little glass pipe”. The mother was concerned and contacted the paternal grandfather for assistance. The grandfather came from Queensland to Sydney to speak to the father about the issue.
The mother deposes that from about 2009 the father began “pushing [her] around, damaging property, threatening her and punching her in the shoulder” on a few occasions when driving because she took a wrong turn. She says that at about this time the father admitted to her that he was taking amphetamines and had a problem with it and asked that she limit his access to money so that he would not spend it on drugs. The mother says that she again asked her parents-in-law to come and assist her with the father’s behaviour. The mother says that the paternal grandmother was sympathetic but did not feel able to assist her as she also was frightened of the father as he had been abusive to her previously.
The father does not address the allegations of illicit drug use, violence or the intervention of his parents with these matters in his affidavit. Neither party cross-examined the other in relation to any of this evidence.
Although the affidavit filed by the paternal grandmother on behalf of the father does not refer to the mother’s request for her help or knowledge of the father’s drug use or aggressive behaviour, she refers to visiting the mother in February 2009. Under cross-examination the paternal grandmother agreed that she knew that the parent’s relationship was not going well in 2009 and that she was requested by email from the mother to provide some assistance but did not remember telling the mother that at times she was frightened of her son. When shown emails between herself and the mother although claiming not to recognise or remember them the paternal grandmother conceded that the father “gets cranky” at times and that she visited the mother to help the parents with their relationship.
In August 2009 a number of convictions in relation to the father driving while disqualified were confirmed by the District Court and the father was sentenced to 9 months home detention subject to various conditions including a restraint on using illicit drugs.
The father makes no reference in his affidavit to any criminal offending or related court proceedings. When cross-examined the father did not agree that the records of the Department of Corrective Services indicated he used substances during his period of home detention. The records of the Corrective Services (Exhibit 8) clearly state that the father tested positive for methylamphetamine use on that day the home detention order commenced (August 2009) and that Phentermine (an appetite suppressant of the amphetamine class) was detected on 11 November 2009.When shown industry records relating to disciplinary offences which indicated he had used methylamphetamine in May 2010 the father said “I’ve never denied it [the drug use]”.
The mother says that the father suggested that they move from the city where there was too much temptation [to use drugs] to the outer suburbs and for this reason they bought a house together in that location in mid-2010. However she contends that the father continued to be involved with illicit drugs including selling them. She also maintains that she was the victim of his physical assaults after they moved including when she was pregnant.
So far as the allegation of selling illicit drugs is concerned, in her affidavit the mother deposes to an incident in November 2012 when she and the father were woken by stones being thrown at their home which caused her to call the police. Police records indicate that the parties complained in November 2012 that two people were harassing them at their home. It is recorded that police attended and when they approached the two men one of them told police that the father owed him money for drugs and he was trying to collect it and that he had purchased some amphetamine two days earlier and was there to purchase some more. The father told police he did not know the identity of either of the men who had been banging on the windows and door at the home.
The mother outlines an incident in December 2012 when the parties were arguing and the father made repeated derogatory comments to her about being “nothing” and a “loser” due to her infertility. She says that she threw a cushion at him and then he came at her. She ran into the bathroom but the father kicked the door in and threw her into the bath causing her to hit her head on the wall and her back on the bath tub. She says that the neighbours called police but she did not make a report to police because she was afraid that this would cause the father to hurt her more.
The father does not set out any alternate version of the December 2012 event other than describe it as “an argument”. He says that when police came to their home he let them in and police asked him if he wanted to have the mother charged with assault.
Police records indicate that on a date in December 2012 an unidentified person heard yelling and screaming coming from the family home and contacted police as he was concerned. When police attended and spoke to both parents the mother was seen to be upset and told police that she and the father had ongoing issues over conceiving a child. Both parties gave conflicting versions and neither would provide a statement to police. Neither party cross-examined the other in relation to these allegations.
The mother also deposes to an incident two weeks after the parties began IVF treatment when she experienced bleeding and became upset. She reported this to the father who then yelled at her saying that she had “killed [his] baby” and pushed her against the kitchen cupboard. The following day the mother says she drove herself to the IVF clinic where two haematomas were found close to the placenta placing the baby at risk.
The mother also deposes that a couple of months before the child was due to be born the father started stealing money from her purse at night and on one occasion approached her demanding her purse and yelling at her causing her to be frightened. She said she gave him cash and her [ATM] card and he left the house and did not return that night. In addition to the cash she says that he withdrew “over $250” [using the ATM card].
The mother also refers to the father’s friends spending time with the father at a shed at their home and finding multiple phones and drug paraphernalia. I understand she contends that an inference can be drawn from these matters that the husband was involved in drug dealing.
The mother had some complications which required her to spend a lot of time in hospital during her pregnancy. She says that the father did not visit her in hospital because it was too cold and while in hospital the father arranged for the installation of CCTV cameras at a shed at the home where she says the father had been spending all his time since she had become pregnant in February 2013. The mother says that the cameras were to have been installed at the home [as opposed to the shed] for the security of herself and their child as she felt worried and unsafe about a lot of people who the father referred to as mates coming to their property at night.
The father denies installing security cameras and said that he only set up one as a baby monitor. He claims that the security cameras were set up [by the mother at a different time] for the purpose of keeping him away from the home.
In his affidavit the father does not address the allegations of drug dealing or the people attending at the home or stealing money from the mother. The only incident of violence addressed by the father in his affidavit is the incident which occurred in the bathroom in December 2012.
According to the mother’s affidavit after the child was born the father continued to be violent and admitted to her that he was buying and selling methylamphetamine, known as “ice”.
The mother deposes to an incident in November 2013 when the child was three weeks old and while she was breastfeeding the father fell asleep. She said the father smacked the child on the back of the head in his sleep and when the mother pushed his hand away the father punched her in the face while the child was still attached to her breast.
The mother says that a few days prior to separation in February 2014 the father admitted to her that he was using and selling “ice”. She says he had stopped sleeping and appeared distressed and paranoid.
The mother’s version of the event in February 2014 which led to separation was that she had just settled the child to sleep when a friend of the father’s rang the doorbell and woke the child. She says the father was outside whispering with his friend and when he returned inside he was angry and aggressive with her. The maternal grandmother who was staying at home was holding the child and the father demanded that the mother retrieve the child. The mother retrieved and settled the child again and 15 minutes later the father woke the child again by bashing on the wall. When the maternal grandmother picked the child up the father yelled at the mother to take the child from the maternal grandmother and give her to him. She deposes that the following then happened:
[The father] was very aggressive and angry. He was coming towards me, closer and closer continuously yelling at me while I was holding [the child]. I called out to my mother, as I was frightened. My mother tried to open the door into the living (sic) to come in but [the father] pushed the door into her face. He grabbed my mother by her hair and punched her in the side of the head both sides. I tried to stop him by pulling him from behind but he had no shirt on. Then he threw his arm back at me and [the child] and I fell. The father then threw my mother over the front steps out the front door. He was yelling at her and then came back inside and locked the doors and I could not get out to my mother and she could not get in. I tried to call the police but he grabbed my phone while I was talking to 000. He was repeating “she is not going to hurt us now. She won’t take [the chid]. We are safe. Everything is okay”. Neighbours and passers-by called the police.
The only evidence the father gives of this incident in his affidavit is as follows:
We separated [in] February 2014 when our daughter was three months old. I was removed from the house by police following an argument with the mother of the wife. The police charged me with three charges of assault which later in court were reduced to one charge of common assault against the [maternal grandmother].
Under cross-examination the father said that in this incident he pushed his mother in law “in defence” to her attacking him and did not regard his conduct as violent.
There is no dispute that as a result of this incident the father was charged with assaulting the maternal grandmother causing her harm and assaulting the mother. He was later found guilty and convicted of assaulting the maternal grandmother and placed on a good behaviour bond. Court records indicate that the charges were defended but the findings of the magistrate are not recorded. There is also no dispute that an ADVO was made at this time for the protection of the mother and child which restrained the father from having any contact with the mother and from going within 100 metres of her home or workplace.
In her affidavit the mother deposes to numerous occasions upon which the father approached her in breach of the ADVO and some on which he was violent towards her in the five months following separation. She says that he sent her over 80 text messages on the day following separation in February 2014 the father attended at her workplace and approached her colleagues.
According to the affidavit of, the mother’s work colleague, the father attended at the mother’s work place shortly after the incident that led to their separation and complained to her about the mother’s conduct. She says that he attended the work place on another occasion and entered one of the classrooms with an angry and threatening demeanour. The father did not to cross-examine Ms J.
In the period following separation the mother says that on several occasions friends of the father came onto the property by jumping a fence and entered the shed at the rear of the property. She says that on each occasion she and the child were at home and she felt very frightened and called police.
The mother also says that on three occasions the father approached her in breach of the ADVO. On two of those occasions she says he appeared at the back door of the home demanding to come home and scaring her but she did not let him into the house.
On the third occasion, in May 2014 the mother says that when she went to pick an item up from a friend’s house and was in the driveway with the child asleep in the car the father “appeared out of nowhere” and tried to open the driver’s side door which was locked. He then punched the driver’s window and when she started to reverse the car the father ripped the mirror off the car and kept saying “I want to see my daughter”. She says the father then jumped on the bonnet of her car so she stopped driving and he ripped the windscreen wipers from the car and punched the windscreen. The mother said she thought that she and the child were going to die. She says the father then slid off the car and she drove away while the father was running alongside the car.
A video recording of this incident taken by CCT cameras at the home of the mother’s friend’s was admitted in the proceedings (Exhibit 13) and the footage shown is consistent with the allegations made by the mother.
The mother next deposes to a particularly serious incident in August 2014 when she says the father attended the home wearing gloves and a mask over his face. She says he took out the fuses, cut the Internet and phone line to the house and banged on the front door damaging the screen door and front wooden door causing a split near the lock. The mother sought assistance from a domestic violence service and a non-government agency which organised for an electrician to attend and for the installation of a new screen door and repairs to the front door The service also arranged for the mother and child to spend a night in a hotel. The mother annexes to her affidavit photographs of damage to the screen door and front door and of the fuse box with fuses removed consistent with her description of the damage.
Although the mother does not detail any other specific instances of violence in her affidavit she deposes to “the latest breaches of ADVO” and an application to extend that order being heard at a Local Court in November 2016.
The father’s criminal history reveals that the father was charged with contravening an ADVO in July 2015 and further breaches between November 2015 and January 2016 and over a period of weeks in January 2016. The criminal record also shows that the last mentioned charges were dismissed following a hearing in January 2017. Any further details in relation to those matters are unknown.
In his affidavit the father does not take issue that he made contact with the mother after separation but does not set out any version of any of these events including the serious allegations made about his conduct on dates in May and August 2014. His entire evidence concerning events following separation is as follows:
I was left homeless with nothing and I had no support. I begged and pleaded with my wife to let me come home and see our daughter to be a father. She cried and said Police called DOCS [Community Services] who threatened to take our daughter away if she let me back in.
The [mother] reported me for contacting her asking to see our child and to come home which landed me in court several times and resulting with breaches of AVO.
The father’s criminal history reveals that he was charged on numerous occasions with contravening the ADVO put in place to protect the mother following the incident in February 2014 which led to separation. Under cross-examination the father conceded that he pleaded guilty to some of the offences and accepted that the Statement of Facts [tendered to the Local Court] accurately reflected his conduct.

Discussion and Findings

I am satisfied on the balance of probabilities having regard to the matters set out in section 140(2) of the Evidence Act 1995 (Cth) (“the Evidence Act”) that the father committed a number of acts of violence against the mother as she contends throughout the relationship for the following reasons.
First, many of the specific instances of violent conduct alleged by the mother are not addressed in the father’s affidavit nor challenged under cross-examination. In particular, the mother was not challenged about the first incident of physical violence in December 2006 when the parties were living in Western Australia, that she sought the assistance of her parents-in-law in 2009, or the incident in 2011 when the mother alleges the father pushed her against the kitchen cupboard. The incident in November 2013 when the mother alleges the father punched her in the face while she was feeding the infant child and the incident in August 2014 when the mother alleges that the father attended her home wearing gloves and a mask over his face and cut the internet and phone line and damaged her doors were not put in issue by the father in his affidavit or in cross-examination of the mother.
Further, the mother’s version of a number of events concerning the father’s violence is consistent with her complaints made at the time. The mother’s allegation that the father threw her on the bed, put a pillow over her face and split her lips in December 2006 was reported to police at the time. It is also recorded in police records (Exhibit 25) that the mother refused to supply a statement to police and that a twenty four hour restraining order was issued against the father consistent with her account.
The mother’s evidence that she sought the assistance of the paternal grandmother and the paternal grandmother’s fear of the father is also supported by a copy of an email sent by the paternal grandmother to the mother in which she expresses sympathy for the mother’s position and says “I am a bit frightened of [the father] as he has been abusive to me before (not bad. Verbally and threatening) but I am not strong enough if he did try something”. This email was sent in response to the mother informing the paternal grandparents by email that the father hit her in the car when she was driving as she alleges in her affidavit.
The mother’s version of events in relation to the incident in May 2014 of the father appearing in the driveway at a friend’s home and damaging her car and causing her to feel extremely frightened is also consistent with the video recording of the incident admitted in the proceedings. The allegation of the father’s conduct in attending her home and damaging it and causing her to be sufficiently frightened to require the assistance of a domestic violence service in August 2014 is also corroborated by photographs of the damage to her home, which is consistent with her allegation. A letter dated 21 November 2016 written by the Suburb K Women’s Domestic Violence Court Advocacy Service also confirms that the mother has sought and received assistance from that agency.
The mother’s version of the incident which resulted in the parties separation including her allegation that the father was violent towards her and assaulted the maternal grandmother is consistent with the father’s conviction for that assault and an ADVO being made at this time for the protection of the mother and child with a very broad restraint against the father.

There is no dispute that the father was charged and found guilty of numerous breaches of the ADVO in the months following separation. The only available Statement of Facts tendered in the Local Court in relation to two breaches in March 2014 are consistent with the mother’s version of events.
In addition to matters specific to the mother’s allegations concerning the father’s violence towards her, overall there were many features of the father’s oral evidence which cause me to prefer the version of the mother over the father where they differ.
Overall, the mother remained consistent and unshaken under cross-examination as to the details of the events and gave her evidence in a calm and earnest manner.
The father’s demeanour was belligerent, irritable and dramatic throughout the proceedings. He stated at the commencement of the hearing “[I have] no idea what I am doing”[1] and claimed on numerous occasions to be disadvantaged and even victimised[2] throughout the proceedings and seemed unable to recognise the attempts by myself to assist him in adducing relevant evidence. The father appeared unable to control his emotions, crying at times and stating that had been unable to bring himself to read relevant material such as the family report[3]. He had numerous angry outbursts, which included engaging in heated arguments or questioning the cross-examiner, declaring he’d had enough of answering questions, swearing and leaving the courtroom on at least two occasions. The father did not attend the proceedings on the final day of the hearing though he did attend when the proceedings were adjourned for submissions.
[1] Transcript 29 May 2017 page 5
[2] Transcript 30 May 2017 page 130
[3] Transcript 29 May 2017 page 80
The father’s position throughout the hearing was that he was the victim in the proceedings, that the cause of his problems were the mother’s “lies” and that she had alienated the child against him. The father appeared to have no insight into the impact that his demeanour and court room behaviour may have on his case.
Under cross-examination concerning the alleged acts of violence the father was unable to concede even uncontroversial matters. For example although he was convicted of assaulting the maternal grandmother and did not appeal against that conviction he continued to maintain that he had at all times acted in defence of the grandmother’s violence towards him. He seemed unable to concede that he had a considerable criminal history and became highly irritated when cross-examined about it.
In my view these features of the father’s demeanour and conduct adversely affect the reliability and accuracy of this evidence.
For the foregoing reasons I am satisfied as to the mother’s allegations concerning the father’s violence throughout the relationship and in the months following separation until about the end of 2014.
I am also satisfied that the father began using illicit drugs and in particular those of the amphetamine class from around 2007. The mother was not challenged about her evidence that she first saw the father smoking a substance in a little glass pipe at this time and the email correspondence between herself and the paternal grandmother confirms that the mother sought her assistance with the father’s behaviour connected with his substance misuse. Although the father does not address the allegations of illicit drug use in his affidavit under cross-examination he conceded that he had “never denied” his drug use. Independent evidence confirms that the father tested positive for methamphetamine use in August 2009 and May 2010. A condition of the father’s term of imprisonment served by way of home detention was that he not use any prohibited drugs.
The mother was not challenged about her evidence that the father continued to misuse methamphetamine following the birth of the child in November 2014 and following separation.
As it had been considered that the father’s suspected illicit drug use may continue to be a matter of relevance in these proceedings he had been ordered by this court to comply with directions of the ICL to undergo urinalysis. A pathology report relating to a urine sample collected on 28 March 2017 (Exhibit 2) confirms that the father tested positive for methamphetamine and amphetamine on that date. He subsequently agreed under cross-examination that he “done that [used methamphetamine] stupidly” on that day because he “just got convicted to jail”. Of significance, the father also agreed under cross-examination that he did not comply with orders made for ongoing drug screening as he simply failed to participate in such testing when directed. In my view it is likely the father continues to use illicit drugs and in particular methamphetamine and amphetamine at the time of the final hearing.
I am also satisfied that the father has an extensive history of offending as his criminal record (Exhibit 1) speaks for itself. The father has a 17 year history of serious driving offences including drink driving and a number of counts of driving while disqualified. He was also convicted of assaulting the maternal grandmother on 2 February 2014 and contravening the ADVO made for the protection of the mother on two occasions in March 2014. He was found guilty of contravening the ADVO in April and May 2014, stalking or intimidating the mother with intention to cause her harm and contravening the ADVO in May 2014, and contravening the ADVO in July and August 2014 and damaging the mother’s property in August 2014. There were further offences of driving while disqualified in July 2014, a further finding of guilt for contravening the ADVO in July 2015 and various dishonesty and driving offences in November 2015 of which he was convicted.
Curiously the father’s record contains offences for which the father was found guilty which are not referred to in the mother’s affidavit including contravening the ADVO in July 2015 by contacting the mother by telephone (and verbally abusing her).
At the time of the final hearing the father had been sentenced to a nine month prison term for driving while disqualified which was stayed pending an appeal due to be heard in August 2017.

Does the father have any mental health problems that impair his parenting capacity or give rise to a risk of harm to the child?

It is the mother’s contention in the proceedings that the father suffers from difficulties with his mental health that significantly impair his parenting capacity.
It appears that the mother contends that the father’s mental health difficulties may be associated with his drug use. She describes the father first engaging in erratic behaviour in about December 2012 when she described him as “leav[ing] the house in his bathrobe and walk[ing] to the corner of the street dressed like that” and becoming “distressed and paranoid” shortly before separation when she contends that the father admitted to taking “ice”. The mother contends that the father’s “unpredictable behaviour” which she maintains began in at least December 2012 continues to pose an unacceptable risk of harm to the child as there is no evidence to suggest that the father has insight into his “mental health conditions” (as well as his substance misuse and violence) and these issues have not been addressed.
Although the mother does not set out the details of the “mental health issues” from which she contends the father suffers, she does make reference to the father having been dealt with under s32 of the Mental Health (Forensic Provisions) Act 1990 (NSW)(“s32”) which provides for a Local Court to divert a person suffering from a mental illness or condition from the criminal justice system into treatment.
In his affidavit the father does not depose to any matters relating to his mental health and in particular does not refer to being dealt with under s 32 in relation to any of his charges.
Under cross-examination the father said that he had never been diagnosed with any mental health condition.
It emerged from cross-examination that the father had been admitted to Suburb L Hospital for five days in December 2014. A letter written by a consultant psychiatrist directed to NSW Police in the hospital records certifies that the father was admitted for depression but on the day of his discharge “there is no evidence of any acute symptoms of mental illness” and “no evidence of any acute psychiatric risk issues”.
Although this hospital admission in December 2014 is consistent with the father’s contentions that he had suffered from depression associated with the breakdown of his relationship with his wife and loss of contact with his child he continued to deny that he had ever been “treated” for any mental health condition. He maintained that his diagnosis of depression was “in the past” and that at the time of the final hearing there were no concerns about his mental health.
The father claimed under cross-examination that he had never heard of a clinical psychologist Mr M and appeared to question whether a report had been obtained from another psychologist, Mr N for the purposes of a s 32 application in relation to some of his criminal charges. The father ultimately accepted that Mr N’s report of 30 July 2015 (Exhibit 9) was the psychological report tendered in support of his s 32 application. The father maintained however that he had never been “treated” for any mental condition, denied knowledge of any treatment plan or attendance upon Mr M or any awareness of the contents of Mr N’s report or the conditions upon which he was discharged by a Local Court.
In summary in his psychological report, Mr N expressed the opinion that the father’s presentation and symptoms were consistent with “persistent depressive disorder” and that he was suffering from this disorder at the time of the alleged commission of the offences [mid 2014 – mid 2015]. He also expressed the opinion that the father “is suffering from a mental condition for which treatment is available in a mental health facility” (emphasis address) and thus fell within the terms of s 32. The psychologist expressed the view that the father required ongoing psychological counselling to assist him resolve the severity of the symptoms that are characteristic of this disorder. To this end Mr N had discussed the father’s case with a colleague clinical psychologist, Mr M who was willing to accept the father as a client and “is prepared to act as his supervising practitioner for the period determined by the court and to inform the court of any significant noncompliance”.
On the basis of this report and having been satisfied as to the various matters set out in s 32 a number of the father’s offences were dealt with under that provision in August 2015. The father was discharged subject to the condition that he attend any counselling and treatment in accordance with the advice of Mr M. Mr N proposed and the Magistrate accepted that this would involve appointments every two weeks for a six month period.
There is no evidence to suggest that the father ever attended upon Mr M and he adamantly maintained under cross-examination that he did not.
Although it is not referred to in his affidavit the father said under cross-examination that he had been treated on about eight occasions after the s 32 discharge application by another psychologist, Mr O. Although the father initially suggested that he had seen Mr O in connection with his depression, he conceded that Mr O was a sports psychologist.
The parties were interviewed by a Family Consultant for the purposes of a Family Report in August and September 2016. In that report the Family Consultant expressed concern about a number of aspects of the father’s presentation including that he may have difficulties engaging with supports in order to change his problematic behaviours, family violence (depending upon the court’s findings), and substance misuse, matters which have been considered earlier and to which I will return.
In relation to the father’s mental health issues, the Family Consultant expressed the following opinion:
It would likely be of benefit to the court to have more information about [the father’s] history of mental health service engagement up and until the present, in particular whether he has adequately engaged in therapy to address his experience of depression, anger and his apparent feelings of grief and loss around his relationship breakdown and subsequent lack of time with [the child]….
In order for time [with the father] to be considered….[the father] would also need to demonstrate…that he had addressed his mental health issues, including his depression, anger and grief and loss issues related to his relationship breakdown and consequent separation from [the child]…
In order to address the above issues to allow time to be considered between [the child] and [the father] it is recommended that [the father] engage in intensive psychotherapy with a therapist trained in dealing with complex issues such as mental health, family violence and illicit drug issues. If [Mr O] is not an appropriate therapist due to his role as a sport psychologist, he may be able to recommend an appropriate person.
Under cross-examination when asked about whether he had seen anyone to assist him with his depression since receiving the report, the father initially claimed that he could not bring himself to read the report and only had read it for the first time recently. He then claimed he had been seeing someone to assist him in this regard.
When asked about the identity of this therapist the father nominated “a person in the city”. He claimed this professional assisted him significantly and then proffered that he had seen this person “probably around February [2017]” but was unable to provide any further information and became irritated when pressed for further details.
Another mental health professional that the father had consulted also came to light for the first time under cross-examination. The father agreed that he had seen a Mr P for a psychological assessment in March 2017 at the request of the industry regulator. The father later agreed that he had seen “a number of psychologists” since the Family Report had been released in September 2016 but agreed that all of those consultations were in connection with his “work place matters”.
On the basis of the foregoing evidence, I am satisfied that the father experienced depression at least from the time of separation and until August 2015 (when the s32 application was determined) and has not received treatment from an appropriately qualified health professional in respect of that mental condition. It is likely in my view given the father’s presentation and conduct in the final hearing that he has not resolved his apparent feelings of anger, grief and loss related to his relationship breakdown and separation from the child.

The Family Report

The family were assessed by a Family Consultant in August and September 2016. A Family Report dated 16 September 2016 was released a short time later.
The Family Consultant was cross-examined on the third day of the final hearing when without explanation the father did not appear. The father had left the court room on a number of occasions the preceding days stating that he no longer wished to continue with the proceedings but returned on each occasion a short time later. He was therefore specifically informed that the Family Consultant would be giving evidence on the third day and advised that he should read the report and prepare any cross-examination. He was also informed that if he was not present that the matter would proceed in his absence.
The Family Consultant’s report was admitted into evidence (Exhibit 17) and the Family Consultant was cross-examined by the ICL. The Family Consultant was informed of the father’s court room behaviour including dramatic departures from the court room, swearing, questioning the cross examiner and describing himself as a victim. She was also informed of the positive drug test in March 2017 and the contents of the psychological report tendered in the s 32 application and the requirement for treatment under his section 32 discharge. The Family Consultant was asked to consider this material in light of the opinion she had expressed in her report. The Family Consultant said that none of this information caused her to change that opinion.
The Family Consultant expressed some additional opinions on the basis of the new information provided to her which was unchallenged as the father was absent and the mother did not wish to cross-examine her.
The Family Consultant has tertiary qualifications including an Honours degree in social work. She has worked in various government agencies in NSW and the UK for 15 years including a number of positions with child protection agencies in both jurisdictions. The Family Consultant met with the parents on two occasions, observed their interactions with the child and had two other brief telephone conversations with each of them. She also had access to a wide range of documents produced on subpoena. At the time she gave evidence she had been a Family Consultant for four years and has recently taken up private practice. Given her expertise and the lack of challenge to her opinion, I accept it and attach significant weight to it.

The Law & Discussion – Parenting

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents;
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the child from harm than to the benefit to her of having a meaningful relationship with both parents. However, in a case where the proposal of one party is that I make orders that the other parent spend no time with or communicate with the child I am mindful of the decision of the Full Court in Blinko & Blinko[4] where it was said at [30]:
Whilst s 60CC(2A) demands that greater weight be given to the consideration in s 60CC(2)(b) – something entirely consistent with the approach of the Courts since the commencement of the Act – the particular facts and circumstances of each individual case nevertheless require a careful evaluation and balancing of Considerations, and all the more so when what is at stake is the potential for a child to never know their parent
[4] [2015] FamCAFC 146

Meaningful relationship with both parents

The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[5] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[6] and has also agreed with the reasoning of Bennett J in G & C[7]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[5] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[6] (2007) Fam LR 518
[7] [2006] FamCA 994
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Full Court in McCall & Clark (supra) continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The father’s proposal at all times has been that the parties share parental responsibility for the child and that she live with him in an equal time or at least substantial and significant time arrangement. This would clearly mean that the child would share a meaningful or significant relationship with each of her parents.
The last filed Response filed by the mother on 29 May 2015 sought orders that she have sole parental responsibility for the child, that the child live with her and spend time with the father as agreed between the parties subject to certain conditions. The conditions were that the mother be entitled to require the father to undergo random urinalysis drug testing up to once per month and that if he failed to comply with such testing or if such drug test were positive that his time with the child be suspended.
By the time the mother filed her trial affidavit her proposal had changed and she sought orders that she have sole parental responsibility for the child, that the child live with her and that the father spend no time with the child. However, her proposal then included a “fall-back position” that if time were to be ordered that it occur at a contact centre. She also sought an order that the father attend upon a psychiatrist.
It appears to have been accepted by the mother from the commencement of the proceedings up until and including the final hearing, that so long as her concerns about the father’s violence, substance use and mental health issues had been appropriately addressed, (which she has maintained at all times are risk factors for the child) the child could receive a benefit from having a meaningful relationship with the father. When cross examined about whether she sought that the child have no contact with the father forever the mother responded:
Not forever. Until [the father] gets professional help that he desperately needs for his drug abuse and mental health issues
However, as a result of the father’s behaviour at the final hearing and continued failure to address the risk factors, the mother maintained her final proposal that she have sole parental responsibility for the child, that the child live with her and spend no time or communicate with the father.
Although the father did not participate in the final day that evidence was taken, he did appear when the matter was adjourned to 14 July 2017 and made submissions concerning the final proposals of the parties. He submitted quite correctly that the parenting orders proposed by him would ensure that the child had a meaningful relationship with him. He submitted that he believed that the child needed a father in her life and maintained that he had not been violent towards the mother and that there were no current concerns regarding his mental health. He said that there was no basis to make the orders sought by the mother.
I am of the view that there could be a positive benefit to the child of having a significant relationship with her father so long as orders that foster her relationship with him are otherwise in the child’s best interests. However, the father’s proposed orders that the child live with he and the mother equally or spend at least substantial and significant time with him are in my view not in the child’s best interests for reasons I will come to when having regard to the other Considerations.
The father does not propose any orders that address the concerns and shortcomings with respect to his proposal nor were any such orders considered in the course of the final hearing.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

There is no evidence to suggest that the child may be harmed from being subjected to or exposed to abuse, neglect or family violence in the mother’s household.
The issue of neglect of the child by the father due to his substance misuse is in my view more correctly characterised as an issue that relates to the father’s capacity as a parent and will be addressed when considering that matter. There is no suggestion that there is a risk that the child will be subjected or exposed to abuse in the father’s care.
The need to protect the child from psychological harm from being exposed to family violence is a live issue in the proceedings. For the reasons given I am satisfied that the father physically abused or assaulted the mother on a number of occasions throughout the relationship from about December 2006 until the occasion shortly prior to separation when the father punched the mother when she was breastfeeding the infant child. I am also satisfied that he assaulted the maternal grandmother in February 2014 which led to the parties’ separation and that he stalked and intimidated the mother on numerous occasions between February and August 2014 and in July 2015, (thereby breaching an ADVO for her protection) in an effort on his part to regain control over the mother’s life and actions.
The father has not been convicted of any relevant offence since July 2015 and there is little evidence in relation to an allegation that he again breached the ADVO in November 2015 and January 2016 being matters with which he was charged and subsequently acquitted following hearing.
In my view however, there are current and future concerns about the father’s aggressive and threatening behaviour towards the mother for the following reasons.
The mother gave evidence under cross examination that “due to domestic violence and [the father] constantly stalking and harassing me, I was too afraid to go back to work” and that she subsequently lost her job because of this. The father then engaged in an ongoing pattern of stalking the mother for at least 12 months and possibly as recently as 2016.
Based on this evidence and the father’s actions at the final hearing there is cause for concern that his aggressive and threatening behaviour towards the mother has not, and will not cease in the near future.
The father was emotionally uncontrolled and belligerent throughout the final hearing and clearly feels that the mother and the court process have victimised him. He cross-examined the mother in a disrespectful and intimidating manner and while the mother was being cross-examined by the ICL or responding to questions asked by myself, the father interrupted the proceedings on many occasions using disparaging, insulting and threatening language towards her. For example when the mother was answering a question concerning the maintenance of the child’s relationship with her paternal grandparents, the father called out “that’s bullshit” followed by “she’s just lying, lying and lying”. Despite an agreement that he would not continue this conduct, the father subsequently called out when the mother was answering questions saying “but she is a liar”, “she’s a fucking liar”, “I am out of here”, “Forget about it”, “I am sick of her”. “She is just lying about everything”.
I gained the impression that the mother who represented herself was genuinely distressed and frightened of the father in the courtroom. The father’s behaviour gave the impression that he still feels aggrieved by the separation and the court process and angry towards the mother for her role in both.
Under cross examination the father did not recognise that his violent and intimidating behaviours and attitudes need to be addressed and denied that family violence existed in his relationship with the mother when asked whether such violence could have impacted the child.
The issue of family violence was also considered by the Family Consultant who opined:
Given the history of family violence, parental conflict and lack of communication between the parents, shared parental responsibility is contra-indicated and is likely to lead to [the child] being exposed to further family violence. In this situation it is recommended that orders be for [the mother] to hold sole parental responsibility for [the child].
In my view, if orders are made for equal shared parental responsibility or for a parenting arrangement which requires the mother to come into personal contact with the father there is a real risk that he will behave in an aggressive and violent manner toward her to which the child may be exposed.
The father’s proposed orders for his time with the child do not provide for any safeguards, such as changeover at a neutral place to minimise the parties coming into contact with one another. The father also proposes that the parties jointly exercise parental responsibility.

Additional considerations: s 60CC(3)

Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Nature of the child’s relationship with each parent and other significant persons

The mother has been the child’s primary caregiver throughout her life. The child is described by the Family Consultant as appearing to have a positive and established relationship with her mother.
The child has not spent any time with or seen the father since February 2015 when she was 16 months of age other than in the course of the assessment by a Family Consultant in September 2016.
Although the child has no relationship with her father, she was observed by the Family Consultant as engaging in some interaction with him when first observed. Subsequently during the observation the child started to engage verbally with the father. The Family Consultant opined that due to her age she is unlikely to have any memories of her previous time with the father.
The Family Consultant recommended that if the court determines the child would benefit from time with the father this time initially be supervised at a contact service. Given the absence of any current relationship with the father it would clearly be in the child’s best interest if such time is to occur that there be an appropriate reintroduction to him so that the relationship may be established. The father’s proposal includes no such reintroduction or gradual reinstatement of his time with the child.
Due to the child’s young age when the parties separated there was limited opportunity for the child to form a relationship with any other member of the extended paternal family.
The maternal grandmother stayed with the parties for some time when the child was born and over the child’s life there have been other occasions when she has spent periods of time with the maternal grandmother and other members of the extended maternal family both in Australia and overseas.
The child has no relationship with Ms G who has been the father’s partner for about 15 months.

Extent to which each of the parents have taken the opportunity to participate in long-term decision making and to spend time with and communicate with the child

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

Attitude to the child and responsibilities of parenthood demonstrated by each parent

Since the time the parents separated in February 2014 when the child was just over three months old, the father has played no role in any decision making concerning the child and has spent limited time with the child.
The father’s capacity to participate in decision making in relation to the child was necessarily curtailed at first by the ADVO put in place for the protection of the mother and child. However, in my view he did nothing to address the issues of concern in relation to his own behaviour which may have founded an application to vary the restraint on contacting the mother and child. Rather he persisted in attempting to see the child and involve himself in her life in a manner that contravened the ADVO and resulted in him being charged numerous times and spending some time in custody.
Although the matters of concern in relation to the father’s parenting which give rise to potential risks to the child in his care have from the outset been identified as his substance misuse, engagement in family violence and mental health difficulties he has continued to deny that these matters pose a risk to her and to accept any responsibility for his own behaviour.
Despite the concerns raised by the mother in relation to these risk factors, she consented in July 2014 to orders which were made for the father to spend time with the child on a supervised basis at a children’s contact service. This time occurred from October 2014 to February 2015 when the centre suspended its services as a result of the father’s abusive behaviour towards staff members in the presence of the child and the father took no steps to lift this suspension. Once again, rather than take responsibility for his own behaviour, the father continued to focus right up until the final hearing on maintaining that he had not behaved in any inappropriate manner and had been treated unfairly by the contact service.
The mother has been solely responsible for the child’s care following separation in February 2014 and has alone provided financial support for the child and not received any assistance from the father.
The father undoubtedly loves the child and presents three and a half years later as highly distressed by having no relationship with her. However, he has abandoned his responsibilities as a parent by not providing any form of assistance to the mother and in failing to address those concerns about his own conduct and parenting capacity which have been present from at least the time of separation.
The mother has at all times had a loving attitude towards the child and has been a responsible parent. Notwithstanding her concerns about the risks posed by the father, the mother consented to orders for the father to spend time with the child and appeared genuinely saddened that the father’s own behaviour caused the contact centre to withdraw its services and that the child currently has no relationship with the father.
The mother told the Family Consultant that she had prepared the child to see the father for the family report interviews by showing the child photos of him and discussing the visit and felt the child would recognise and respond well to the father as a result. The Family Consultant was of the view that the mother appeared to have appropriately prepared the child for her time with the father and observed that the child referred to the father as “bubba” when speaking with the mother which may support the mother’s claims of this preparation. I am satisfied that the mother did prepare the child in this manner and that the mother would support the child having a relationship with the father if the appropriate safeguards can be put in place for the protection of the child.

Likely effect of change in the child’s circumstances

Capacity of each parent and any other person to provide for the child’s needs including emotional and intellectual needs

The mother’s proposed orders will not bring about any change in the child’s circumstances. As there is currently no established relationship between the child and her father, it is unlikely that the child will feel any adverse effects from continuing to be separated from him at least in the short term.
The mother acknowledged the child will “probably” feel different to other children and at times sad if she has no contact with her father in the future. However, the mother presented as a thoughtful and capable parent who has accepted services and assistance in the past. In my view she is likely to manage any emotional difficulties that the child may experience in relation to separation from the father should they emerge in the future.
The orders proposed by the father that the child either live with him in an equal time arrangement or spend substantial and significant time with him would bring about a dramatic change in the child’s circumstances. Given that the father has no current relationship with the child and she is closely attached to her mother, it is inevitable in my view that the child would suffer significant distress and trauma at being separated from her only consistent caregiver throughout her life.
Further, the child has no relationship with the father’s partner or her children who form part of the father’s household. At the time of the final hearing there was a real risk that from August 2017 when the father’s appeal for his criminal convictions was to be heard he would be incarcerated for nine months if the appeal were dismissed.
The father superficially suggested that if he were to go to gaol that he was “quite sure [his] new partner [Ms G] would be happy to take care of [his] obligations” adding that she is “a very good mother”. When questioned further about this suggestion the father conceded that he had not actually discussed with his partner his expectation that she would care for the child if he were to go to gaol. When asked to make his partner available for cross-examination the father initially said he would do so but subsequently informed the court that she was not willing to engage in the proceedings (notwithstanding that she was present in the precincts of the court throughout the hearing).
The father’s proposal for the child to live with him in an equal time arrangement or spend substantial and significant time with him and his proposal that his current partner would take on this responsibility if he were in custody is completely devoid of any understanding of the child’s needs and in particular her emotional needs. This is consistent with, though more significant than, other settings in which the father has had difficulties prioritising the child’s needs above his own emotional needs such as when he was spending time with the child at the contact centre in late 2014 and early 2015.
The father’s capacity to care for the child in either an equal care arrangement or for substantial and significant periods is in my view also significantly affected by his substance misuse and mental health difficulties. Although the extent of the father’s current drug use is unclear, for the reasons previously given, I am satisfied that it is likely he currently misuses substances.
The following opinion with respect to drug use and in particular methamphetamine use expressed by the Family Consultant in her report and confirmed under cross-examination (which I accept) is as follows:
Children who live in households where a parent uses drugs, including methamphetamine, are more likely to be abused or neglected than other children. These children often do not have access to basic necessities such as food, water or shelter. Their supervisory and medical needs are also often neglected. Given [the child]’s age this could be particularly problematic. Users of methamphetamine also often poor judgment, confusion, irritability, paranoia and increased violence which can pose an unacceptable risk to children, particularly when they are of a young age.

While it is likely that the paternal grandmother did give the husband some money prior to the parties meeting this is not a relevant matter to the property settlement and I make no findings in that regard.

What is the father’s contribution to the parties’ property?

Although neither party refers to any other real estate in their respective affidavits it emerged under cross-examination that the first property purchased by them was a block of land at Suburb R. The husband was unable to provide any evidence concerning this purchase but he did not challenge the wife’s account that the parties purchased it in early 2008 for $250,000. It is also not in dispute that the purchase was funded entirely from the husband’s compensation payment, was registered in joint names and was unencumbered. The wife says that she believed the husband’s compensation payment was about $290,000 of which he used about $35,000 in payment of his personal GST debt.
There is no dispute that the parties purchased their family home in a Sydney suburb for $330,000 in June 2010. There is however a dispute concerning funding for this property. The husband’s affidavit in relation to this purchase is as follows
I bought [the family home] in 2010. I added the [mother]’s name in the house because we were married. I paid the mortgage of the house until the separation.
Although the wife agrees that the purchase price was $330,000 she disputes the husband’s evidence any of that sum came from his compensation award.
The wife said in oral evidence that at the time the family home was purchased she alone was the only person bringing money into the home as the husband was on home detention and accumulating debts including legal fees in relation to his criminal matters. She said that the purchase price for the family home had to be borrowed and that the loan also covered about $60,000 for other debts. A letter from the parties’ solicitors with an attachment from their lender (Exhibit 22) confirms that they borrowed the whole of the purchase price (less a deposit of $33,000) and an additional amount of almost $90,000 was transferred to their nominated account.
The wife gave evidence that when the Suburb R property was sold in 2012 for $250,000 this sum was used to pay a significant part of the mortgage loan on the family home. It is unclear from the affidavit evidence and documents tendered which had been produced on subpoena how much the parties owed on the mortgage loan at this time.
Although the husband cross-examined the wife about some employment he undertook while on home detention he did not challenge her evidence concerning the purchase of the family home and his contribution to the loan after the Suburb R property was sold. In addition, the wife’s account is consistent with the only available document in relation to the family home purchase (Exhibit 22) which in my view is a particularly reliable document having been made by the solicitor who then acted on behalf of both parties. The husband’s account which suggests that he alone purchased the home in 2010 and later added the wife’s name to the title is not consistent with this evidence. His contention that he alone contributed the entire $330,000 to the purchase price is also inconsistent with this evidence.
For these reasons I do not accept the husband’s account. I regard the wife’s evidence as more reliable as it is more consistent with the solicitor’s letter.
Accordingly, I find that the husband contributed $250,000 to the parties’ finances which was used to reduce the loan on the family home as that amount can be traced through the sale of the Suburb R property which was purchased with his compensation money.

The parties’ business

The entirety of the husband’s evidence in relation to the parties business is as follows:
I started a business [F] Pty Ltd after retiring … in November 2011. The Respondent wife did not support it in the beginning until three months before our daughter was born [… 2013] when the business started making money.
After the separation, the business was ran from the house which I am not allowed to return. The business was no more running.
I lost all the stock. I lost everything.
Any money left over from the business account, I used for the lawyers fee and day to day living expenses.
Under cross-examination the husband confirmed that the mother did play a role in the administration of the business “towards the end when there was money coming in”.
The wife also gives scant evidence concerning the parties business other than deposing to running the business together, even though it was registered in the husband’s name. The wife deposes to undertaking book keeping and administrative duties.
Further details concerning the operation of the business before and after separation emerged under cross-examination of both parties.
There is no evidence concerning the turnover, profitability or value of the parties business at any time. The husband appears to suggest that the wife conducted the business alone for some time after separation as he was not permitted to return to the family home from where the business was operated. He deposes that at some unspecified time the business ceased to operate and I take his references to having “lost all the stock” and “lost everything” to suggest that the business ceased operating and he received no money from it. However, he says that “any money left over from the business account, I used for the lawyers fee and day to day living expenses”.
Under cross-examination the father said that the reason the business “stopped running” was because “my main product got withdrawn off the market, and everything went bust.”
Under cross-examination the wife remained firm that she had been engaged in the business from the outset and also arranged for a friend to undertake some design work for the items which were manufactured which she did “for free as a friend”.
In oral evidence the mother said that the business did not become profitable until “later in 2013” and that even then the money from the business went into the business account to which the husband alone was a signatory. She said that none of the money from the business came into the household but all went “back into the business” and that this position continued until the date of separation.
Although neither party produced any documents in relation to the business, the wife was not challenged on her affidavit account which she confirmed under cross-examination that $109,000 was in the business bank account at around the time of separation. She was also not challenged on the evidence in her affidavit and confirmed under cross-examination that following separation she provided goods from the business to a customer at the request of the husband and invoiced the customer for an amount which was subsequently paid into the business account. She annexes to her affidavit the invoices issued by her on behalf of the business in connection with the goods supplied by her on 19 May 2014 totalling $46,471.70. It is her contention that after separation the husband had access to and did use $159,000 (though these amounts in fact total $155,471.70) from the business for his own purposes.
The wife also annexes to her affidavit an undated document headed “NAB internet banking” which she says is a screen shot of banking records sent to her by the husband. It shows an available balance in the company’s business account of $64,878.91. The wife contends this is the amount left in the account after the husband purchased a car for the business registered under the business name at some time following separation.
I am satisfied based on the evidence before me that the wife played an important role in the parties’ business particularly in the administration and bookkeeping.
I am satisfied that the parties business was only profitable for a few months prior to separation, but that none of these profits flowed through to benefit the household finances.
On the basis of my earlier findings as to the credit of the parties and the lack of challenge to the wife’s evidence on this issue I am satisfied that there was a significant sum of money in the parties’ business account at the time of separation. In attaching some limited weight to the undated screenshot of the banking records annexed to the wife’s affidavit I accept that there was at least just over $64,000 in the account a short time following separation and accept there may have been up to $155,000. On the husband’s evidence which I accept any money that was in the business account was used solely by him in payment of his living expenses and legal fees following separation.

The Law & Discussion – Property

The approach to the determination of an application for property settlement orders is set out in Stanford v Stanford[9], which was considered in detail by the Full Court in Bevan & Bevan.[10]
[9] (2012) 247 CLR 108.
[10] [2013] FamCAFC 116.
The starting point is a consideration of “whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property.”[11]
[11] Stanford & Stanford (2012) 247 CLR 108 at [37].
This involves identifying the existing interests and then considering whether having regard to the particular circumstances before me, it would be just and fair to make orders for the alteration of property interests.
I should next consider the matters set out in s 79(4)(a) to (c) of the Family Law Act 1975 (Cth) (“the Act”), that is the financial and non–financial contribution made by the parties to the property and to the welfare of the family constituted by the parties.
I must then consider the remainder of the matters in s 79(4) including the matters referred to in s 75(2) so far as they are relevant, and determine on this basis whether there should be a further adjustment to the parties’ contribution–based entitlements.
Finally, I must then consider the justice and equity of the proposed orders. As was said in Bevan (supra) at [86], the just and equitable requirements are “not a threshold issue, but rather one permeating the entire process”.

What are the existing interests of the parties?

The parties did not file a joint Balance Sheet and the Balance Sheet filed by each of them was amended considerably in the course of the proceedings especially in the course of various interchanges between the parties and the Court where various concessions were made.
In particular the father agreed that there was no evidence as he contended that various personal assets owned by himself and the wife were in the possession of the wife and that there was no evidence concerning their value. He also agreed that other assets such as jewellery he had given the wife and a car in her possession would not form part of the Balance Sheet. Further he accepted that various liabilities such as unpaid household bills should not be included as liabilities in the Balance Sheet or conceded that there was no evidence in relation to them.
The only exception to the concessions about liabilities made by the husband relates to the loan he contends was an advance to the parties by his mother which he argues should be treated as a joint liability of the parties. For the reasons given I am not satisfied that the paternal grandmother did make a loan to the husband or the parties jointly which should be included as a liability of either or both parties and included in the Balance Sheet.
In her Balance Sheet filed 26 May 2017 the wife includes her unpaid legal fees in the amount of $19,015 and her student loan in the amount of $15,000 as liabilities of the parties. However, in the course of the proceedings the wife did not press for these liabilities to be included in the Balance Sheet for distribution and they will not be included.
On the basis of my findings and the parties’ agreement the current interests of the parties are set out in the following table:

259. LIST OF ASSETS AND LIABILITIES
ASSET	HUSBAND	WIFE		JOINT
Matrimonial Home at C Street, Suburb D …	260.	261.		$500,000
Total Assets	$500,000
LIABILITIES	HUSBAND	WIFE	JOINT
Mortgage	262.	263.		$128,000
Total Liabilities	$128,000
Net Assets excluding Superannuation	264.	265.		$372,000
SUPERANNUATION	HUSBAND	WIFE	JOINT
HESTA	266.	$27,000		267.
NSF Super	268. Unknown	269.
Total Superannuation	$27,000
Net Assets including Superannuation	$399,000

The parties also agreed in the course of the proceedings that superannuation interests should be excluded from the Balance Sheet. It is to be noted that the husband did not dispute the wife’s contention that he had a superannuation interest in a nominated fund but the value of his interest is unknown.
Although it was ultimately agreed between the parties that the only property available for distribution is the family home the parties disagreed as to its value. The wife asserted that it is currently valued at $500,000 while the husband contends it is valued at $336,000.
The wife annexes to her affidavit a valuation dated September 2015 which was obtained by solicitors then acting on her behalf. The certified valuer assessed the then current market value of the property as $500,000. The valuer was not available for cross examination and there is no other evidence concerning valuation.
A reasonably precise value of the property is therefore unknown. However, in my view, it is likely given that a person with appropriate expertise did value the property in 2015 and that it was purchased seven years ago for $330,000, that the value of the family home is closer to the value contended for by the wife than by the husband.
The question to be determined is whether it would be just and equitable to leave the property rights intact having regard to there currently being total assets excluding superannuation to the value of about $372,000 owned equally between the parties.
As was indicated in Stanford (supra) the requirement that it would be just and equitable to make an order is in many cases readily satisfied by observing that at [42]:
… as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. … any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marriage relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the Court make a property settlement order. …
In this case the parties were in a relationship for just over eight years before separating. While neither party had any significant property at the commencement of the relationship their only substantial asset, the family home which they bought together has increased in value over time. Although the parties did not accumulate any other property, the increased equity in their home would have provided for their future life together. That arrangement came to an end on separation.
As the parties accept that there will not be common use of the property by both of them in the future and they both seek adjustment orders but are unable to agree to the adjustment,[12] I am satisfied that it is just and equitable to make orders under s 79 of the Act.
[12] The husband contends that the property should be equally shared between the parties and the wife contends for a 67 per cent/33 per cent split in her favour.

The Balance Sheet for distribution

In addition to the assets and liabilities contained in each parties’ Balance Sheet which changed in the course of the proceedings each of the parties also contended that significant sums be “added back” for various reasons.
The husband contends that $70,000 be added back as property in the hands of the wife being $50,000 that he alleges she withdrew from their joint home loan account and $20,000 representing the value of stock from the business he says is still held by the wife at the family home.
The wife contends that $159,000 (which appears should be a claim for $155,471.70) be added back as property in the hands of the husband, being $109,000 cash at hand in the parties’ business account at the time of separation and $46,471.70 received for stock distributed to a customer following separation but retained by the husband.
In a number of cases[13] the Full Court has said that, while it is ultimately a matter for the exercise of discretion of the trial judge, the use of add-backs should be exceptional.
[13] For example AJO & GRO (2005) FLC 93-218, [2005] FamCA 195.
In Bevan (supra), in her Honour’s separate judgment, Finn J says of the High Court’s judgment in Stanford (supra) at [160]:
283.These reminders that the jurisdiction under s 79 is a jurisdiction to alter individual interests in title to property and that there is no community of property in this country, might also call into some question the current practices in relation to the treatment of property which is no longer in existence but which one party has had the use of (the so called “addbacks”), … of one or both parties. It may well be that these matters should more strictly be considered in making findings under s 79(4)(e) (i.e. s 75(2)), or in an extreme case, when considering the question under s 79(2) as to whether it is just and equitable to make any order under s 79. …
In light of this line of authority I do not regard that the $70,000 as contended by the husband or the $155,000 as contended by the wife should be added back into the asset pool and should instead be dealt with in relation to the parties’ contributions and the relevant section 75(2) factors.
So far as the husband’s contentions about these “addbacks” are concerned, there is no evidence to support his assertion that the wife still retains any stock owned by the parties’ business. There is also no evidence that the wife withdrew $50,000 from their mortgage account as he contends.
However, the wife did agree under cross examination that she withdrew $29,000 in a single sum after separation which she used over a number of years to repay the same mortgage loan and which was completely exhausted about seven months prior to the final hearing. This uncontested evidence will be taken into account when assessing the parties’ contributions.
There is also no evidence other than the wife’s unchallenged assertion that the business account had $109,000 at the time of separation which was retained by the husband. As previously considered and for the reasons given I am satisfied that the husband did utilise for his own purposes whatever funds were remaining in the business account at the time of separation and shortly thereafter. I am also satisfied that he treated the $46,471.70 payment for stock provided to a customer by the wife at his request following separation as if it were his own money. This will be taken into account when considering the parties’ contributions following separation rather than including it in the Balance Sheet as an “add back”.
The only property available for distribution is the matrimonial home which I am treating as having a value of $500,000, subject to a mortgage of $128,000.

Contributions

Under s 79(4) of the Act, in considering what order should be made in property settlement proceedings, I must take into account the financial and non–financial contributions directly or indirectly made to the acquisition, conservation or improvement of any of the property of the parties and the contributions made to the welfare of the family and any children, including contributions as a homemaker or parent.

The parties’ operated as a single financial unit from the time they first lived together a few months before they married. The money earnt by each of them was used to support their day to day expenses and in payment of the mortgage over the property in Victoria which had been previously purchased by the husband. Prior to purchasing the Suburb R property in early 2008 the parties did not acquire any other property and appear to have discharged all their other liabilities.
The first property purchased by the parties was funded entirely from the remainder of the father’s compensation payment which is likely to have been $250,000 as the wife contends.
For the reasons given I am satisfied that the parties purchased the family home jointly in 2010 and that the entire purchase price of $330,000 (other than the deposit) was borrowed and secured by a mortgage. As discussed earlier I do not accept the husband’s evidence that he alone purchased the property with $330,000 from his personal injury compensation payment.
I accept the wife’s evidence concerning the acquisition of the property and am satisfied that the deposit is likely to have come from pooled resources of the parties as they had combined their financial resources throughout the relationship with each party making contributions to the extent they were able to do so. I am also satisfied that the wife made a slightly greater contribution to the family resources shortly before the purchase of this property as the husband was not receiving any income for various periods of time between 2008 and 2010 including during a period he was on home detention and some of the family resources were spent in payment of debts incurred by him including legal fees in relation to his criminal matters
I am also satisfied that in 2012 the parties sold the land at Suburb R that they had previously purchased with funds coming solely from the husband’s compensation payout of $250,000.
Although the amount outstanding on mortgage loan in 2012 is unknown, having regard to the total amount of the loan in 2010 ($388,000 according to the parties’ then solicitor) the payment of $250,000 two years later must be treated as a very significant contribution to the increased equity in this asset.
I was not assisted by submissions made by either party as to the weight to be attached to the husband’s contribution to this asset which is now valued at $500,000.
In accordance with the principles in Williams & Williams[14] the court must not simply have reference to the value of an item as at the date of commencement of cohabitation [or in this case at the date the contribution was made] without reference to its value to the parties at the time of the hearing as this may not give adequate recognition to the importance of the contribution at the time of the hearing.
[14] [2007] FamCA 313.
In Williams (supra), the Full Court considered a series of cases determined in the New South Wales Court of Appeal concerning de facto property adjustment claims. Each of the cases referred to in that judgment considered the circumstances where the increase in the value of the asset had more to do with the increase in the property market than to “joint efforts of wage earning, home making and parenting and mutual support”. The Full Court at [26] considered that:
…there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions.
The Full Court in Williams also referred to the Full Court decision in Pierce & Pierce[15] which had also dealt with the relevance to be paid to initial contributions. In Pierce the Full Court at [28] said:
[15][1998] FamCA 74.
In our opinion it is … a question of what weight is to be attached, in all the circumstances to the initial contributions. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
In these proceedings I have found that the parties equally contributed to the finances of the parties until the purchase of the family home and it is likely that the deposit came from pooled resources. Apart from the single $250,000 payment in 2012 each of the parties contributed to the household financial resources thereafter including any reduction in the mortgage loan and increase in equity in the family home. For the reasons previously given I am satisfied that other than the $250,000 single payment the wife should be regarded as making a slightly greater financial contribution than the husband until separation.
Doing the best I can on the limited available evidence I treat the husband’s payment of $250,000 to reduce the loan on the family home in 2012 when it was valued somewhere between $330,000 and $500,000 as a contribution of 62.5 per cent of an asset having a current value of $500,000. This is the mid-point between a contribution assessed at 75 per cent if the asset were at the time of the contribution worth $330,000 and 50 per cent if the asset were then worth $500,000.
The wife contends that she made greater direct and indirect non-financial contributions to the increased equity in the parties property and the welfare of the family during the relationship. The wife gave uncontested evidence that during the periods in the relationship when the husband was unable to drive she drove him to and from work which was essential to him being able to earn a living and contribute financially to the family. She also assisted in running the parties’ business.
There is also no dispute that the wife was the primary carer for the parties’ daughter during the relationship.
Following separation the wife has borne all the financial and non-financial expenses for herself and the child.
Each of these matters requires an adjustment in the wife’s favour.
While the wife alone has made payments to the interest payable on the mortgage loan since separation, she (and the child) have also had the exclusive use of the family home for the three and a half years since separation. Further, her payment of the interest on the mortgage to a large extent came from funds withdrawn from the same joint loan account following separation. All these matters are taken into account with the result that no adjustment will be made in favour of either party for these financial contributions after separation.
For the reasons discussed earlier I am satisfied that the husband used whatever funds were available in the parties’ business account for his own benefit after separation. Although this amount cannot be quantified it is at least around $50,000. His utilisation of those funds of the parties for his sole benefit warrants an adjustment in the wife’s favour.
The wife also contends that her financial and non-financial contributions during the relationship and even after the relationship had concluded, were made more difficult by the husband perpetrating family violence against her and that there should be a contributions based adjustment in her favour on this basis. In support of this argument the wife relies on the Full Court’s decision in the matter of Kennon & Kennon[16].
[16] [1997] FLC 92-757.
In Kennon (supra) Fogarty & Lindenmayer JJ said as follows:
The Court in assessing contributions can take into account that where there is a course of violent conduct by one party toward the other during the marriage, which is demonstrated to have had a significant adverse impact on that party’s contributions to the marriage or, put another way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within section 79.
While I am satisfied that the husband perpetrated family violence against the wife, much of the wife’s evidence as to family violence is not capable of being taken into account in relation to contributions to property. The wife does however depose in her affidavit and in her oral evidence at final hearing to the father’s behaviour in stalking and harassing her and attending on her place of employment on a number of occasions. She gave further evidence that the husband’s behaviour and her fear of him caused her employer to be concerned and she also felt unable to return to work as she had planned following maternity leave. I accept the tenor of the wife’s evidence that the parties’ plans for her to return to work and contribute to the family finances were unable to be fulfilled due to the husband’s conduct. In this way the husband’s behaviour directly impacted on the wife’s capacity to make financial contributions following separation.
Accordingly I make an adjustment in favour of the wife for her slightly greater financial contribution to the accumulation of assets and non-financial contribution to the welfare of the family and child before and after separation. An adjustment in her favour is also warranted due to the use by the husband of the joint assets of the parties for his sole benefit and the significant adverse impact on the mother’s capacity to earn an income as a result of his violence. In total in my view these matters justify an adjustment of five per cent in her favour.
Thus the contribution based entitlements of the parties are 57.5 per cent to the husband and 42.5 per cent to the wife.

Section 75(2) factors

The wife has the sole care and responsibility for the parties’ three year old daughter and it is highly likely that she will bear all the financial and non-financial costs of raising the child alone without any contribution from the husband for a significant period of time into the future.
The husband has not, at any time, paid child support and based on his evidence at final hearing is unlikely to pay child support in the future. This is a significant factor to be weighed in the wife’s favour.
It is difficult to determine the other section 75(2) factors that may be relevant to the parties in light of the husband’s lack of disclosure.
While it is clear that the wife is young, in good health and has the capacity to earn a living in Australia, the husband’s earning capacity and financial situation are unclear.
There is no evidence before the court as to the husband’s current capacity for gainful employment, his superannuation entitlements or his financial circumstances in general, including how the money he retained from the parties’ business account following separation has been spent.
Under cross examination it was put to the husband that documents produced on subpoena from the National Australia Bank showed he was being paid $800 per week by a person named Mr S from early 2015 until at least April 2017. The husband responded to that proposition with the following remarks:
No, I did not earn 800 a week. On average I earned 600; on average. Some weeks I earn less, some weeks I earn more. On average I earn 600 from July to March the 7^th. Since then I have been unemployed except for a couple of days here and there with the traffic people, which I – which I done training for. I paid $800 or something.
It is quite clear that despite claiming he is unemployed the father has been engaging in paid employment, demonstrating he has the capacity, on his own evidence, to earn at least up to $800 per week.
In his Balance Sheet filed 28 May 2017 the husband acknowledges that he does have some superannuation but claims that it totals less than $1,000. The husband was working at various times during the parties’ relationship and earnt between $140 and $121,000 each year between 2005 and 2012 according to his affidavit filed 9 May 2017. It is in my view inconceivable that the husband would have less than $1,000 in his superannuation account.
The case law in relation to non-disclosure is well settled. In Black & Kellner[17] the Full Court made the following remarks as to this matter:
[17] (1992) FLC 92-287;15 Fam LR 343.
… the first step in proceedings for a property settlement is for the court to ascertain the wealth of the parties and in this regard it is of interest to note the remarks of the Full Court in the case of Guinti and Giunti (1986) 11 Fam LR 160; [1986] FLC 91-759, particularly at Fam LR 165; FLC 75,555 where the court commented:
"It is obviously desirable as a general principle that the court should first of all identify the pool of assets available and evaluate it. If each party complies with his or her obligation to make a full and substantive disclosure of their financial affairs: see In the Marriage of Briese (1985) 10 Fam LR 642; [1986] FLC 91-713, affirmed by the Full Court in Oriolo v Oriolo (1985) 10 Fam LR 665; [1985] FLC 91-653, there is no problem, although there may be disputes as to valuation. "However if, as here, one party fails to fulfil that obligation, is it open to that party then to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require? It would be simple, if that were the case, to evade the jurisdiction of this court, not by outright refusal which would attract sanctions but by obfuscation and evasion."
…
In the present case a similar situation arose. The assets of the parties could not be ascertained in full because of obvious non-disclosures.
Having regard to the authorities, in circumstances where the husband has failed to disclose any information concerning his income, property or financial circumstances it must be assumed that he has access to a substantial financial resource in his superannuation entitlements.
The mother disclosed that she had, at May 2017, only $27,000 in superannuation. It is in my view likely there is a significant imbalance between the superannuation available to the wife and the superannuation available to the husband.
In these circumstances a significant adjustment in the favour of the wife is warranted for her ongoing care of the chid without any support from the husband and his likely access to financial resources which he has not disclosed. Accordingly I make a 12.5 per cent adjustment in favour of the wife on the basis of section 75(2) factors.

Conclusion

On the basis of the adjustments for the parties’ financial and non-financial contributions and the section 75(2) factors the wife is entitled to receive 55 per cent of the asset pool and the husband 45 per cent.
The husband made a significant financial contribution to the parties’ property prior to separation which must be acknowledged but the wife’s other financial and non-financial contributions both during and following separation were greater than the husband’s. The wife will have the sole care of and responsibility for the parties’ daughter for a significant amount of time and is unlikely to be assisted by the husband in this responsibility. In circumstances where there is a lack of evidence and a substantial failure on the part of the husband to disclose his financial resources and income capacity making it difficult to assess the applicable section 75(2) factors, this is a just and equitable property settlement.
The wife proposes in her property settlement orders that she have “the first option to buy the property”. She does not however set out any mechanism or orders to facilitate the exercise of this “option”. In these circumstances where there is also no prospect of the husband co-operating with the wife to have her “buy him out” of his interest there seems to be no alternative than to order that the house be sold. This prospect was raised on a number of occasions throughout the final hearing. For the same reason concerning the husband’s likely lack of co-operation with the wife in the future the wife is appointed trustee for the sale of the former family home.
For the foregoing reasons, orders are made as set out at the forefront of these Reasons.

I certify that the preceding three hundred and twenty-eight (328) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 16 October 2017.

Legal Associate:

Date: 16 October 2017

[2017] FamCA 826

16 October 2017

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness