Molenaar & Molenaar
[2021] FCCA 390
•5 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Molenaar & Molenaar [2021] FCCA 390
File number(s): MLC 14377 of 2018 Judgment of: JUDGE MCNAB Date of judgment: 5 February 2021 Catchwords: FAMILY LAW – parenting – father sustained pre-frontal cortex injury prior to the commencement of relationship – father was to undergo neuropsychological assessment to determine effect of injury on his capacity to provide appropriate and adequate care for children – father had not undergone assessment at time of final hearing – mother to have sole parental responsibility – children to live with mother – father to have supervised time with children – orders allow father to revisit parenting orders upon undertaking and receiving results from assessment.
FAMILY LAW – property – division of asset pool – equal contributions by parties – matrimonial home to be sold – mother has ongoing financial needs due to care of children – just and equitable division of assets.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 75(2), 79(4). Cases cited: Bevan & Bevan [2013] FamCAFC 116
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Stanford & Stanford [2012] HCA 52
Number of paragraphs: 101 Date of last submission/s: 3 February 2021 Date of hearing: 27 – 29 January 2021 Place: Melbourne Counsel for the Applicant: Ms Bowen Solicitor for the Applicant: City J Lawyers Counsel for the Respondent: Mr Peters Solicitor for the Respondent: Bosanquet Solicitors Counsel for the Independent Children's Lawyer: Ms Agresta Solicitor for the Independent Children's Lawyer: Kordell Lawyers ORDERS
MLC 14377 of 2018 BETWEEN: MS MOLENAAR
Applicant
AND: MR MOLENAAR
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
5 FEBRUARY 2021
THE COURT ORDERS THAT:
Parenting
1.All previous parenting Orders in respect to the children X born in 2013 (“X”) and Y born in 2015 (“Y” (together, “the children”) be discharged.
2.The Mother have sole parental responsibility for the children subject to:
(a)the Mother advising the Father in writing of any intended decision to be made and inviting any input from him in writing;
(b)considering any written input from the Father; and
(c)upon making any decision advising the Father in writing of the decision made.
3.Notwithstanding that the Mother has sole parental responsibility the children:
(a)the Father is permitted by this Order to seek information directly from any medical, dental or allied health professional who is providing services or treatment to the children or either of them at his expense if any and this order will stand as authority to any medical specialist for this purpose;
(b)in the event that the children or either of them attend upon a counsellor or psychologist the Father is permitted to be involved in that therapeutic process as may be directed by the counsellor or psychologist and subject always to the discretion of that counsellor or psychologist; and
(c)the Father is permitted by this Order to attend all school events to which parents are invited in the usual course of the school year including attending parent teacher interviews (separately to the Mother) concerts sports days carnivals fetes and family days.
(d)the Father is permitted by this Order to liaise directly with the children’s school to obtain newsletters, school reports, order forms for school photographs and other information generally about the children’s educational and social progress at school.
4.The children live with their Mother.
5.The children spend time and communicate with their Father as follows:
(a)each alternate weekend during school term from the conclusion of school on Friday until 6.00pm on Sunday save that if Friday or Monday on the Father’s weekend is a public holiday or student free day the time commence at 3.30pm on the Thursday or conclude at 6pm on the Monday as the case may be;
(b)from 3.30pm on Friday until 6.00pm on Monday on the first and middle weekend of each school term holiday;
(c)from 9.00am on Friday until 6.00pm on Monday on each alternate weekend during the long summer school holiday;
(d)from 5.00pm on the Saturday prior to Father’s Day until 5.00pm on Father’s Day each year (and the Father’s time with the children shall be suspended each year from 5.00pm on the Saturday immediately prior to Mother’s Day)
(e)in even numbered years from 3.30pm on Christmas Day until 3.30pm on Boxing Day (and the children will spend time with their Mother from 3.30pm on Christmas Eve until 3.30pm on Christmas Day);
(f)in odd numbered years from 3.30pm on Christmas Eve until 3.30pm on Christmas Day (and the children will spend time with their Mother from 3.30pm on Christmas Day until 3.30pm on Boxing Day);
(g)on each of the children’s birthdays and the Father’s birthday from 3.30pm until 6.00pm when such time occasions fall on a school day and from 10.00am until 3.00pm when those days fall on a weekend or non-school day unless otherwise agreed between the parties in writing (and the children will spend the same amount of time with the Mother on their birthdays and the Mother’s birthday if they are otherwise in the weekend care of the Father;
(h)by FaceTime or video call each Wednesday between 4.30 and 5.00pm with the Mother to initiate the FaceTime or video call to the Father; and
(i)as may be otherwise agreed between the parties from time to time.
6.The Father’s time pursuant to these Orders shall take place with the substantial supervision of the paternal grandmother Ms B or the paternal aunt Ms C or another adult person agreed to between the parents (which supervisor is to be in substantial attendance during the children’s time with the Father.
7.In the event that the paternal grandmother, paternal aunt or other agreed person is unavailable to supervise the Children’s time with their Father pursuant to Orders 5 & 6 hereof such time shall be suspended and the Father will spend time with the children:
(a)for up to 4 hours as agreed on the between the parents on the first Sunday of each month with supervision by a professional supervisor at the expense of the Father;
(b)by FaceTime on video call Monday and Friday between 4.30pm and 5.00pm, in addition to the time referred to in order 5(h) above; and
(c)at such other times as agreed between the parties.
8.Each parent is restrained by injunction from:
(a)abusing insulting belittling or otherwise denigrating the other parent; and
(b)discussing these proceedings with or in the presence of the children or permitting any other person to do so.
9.The Father shall ensure that during his time with the children:
(a)the children do not co-sleep with him and each have a separate bed; and
(b)The children do not use pacifiers and ensure that he explores strategies to wean the children form the use of pacifiers.
10.The Mother and Father shall keep each other advised at all times of a current residential address, mobile telephone number and email address.
11.The Mother and Father shall advise the other as soon as practicable in the event that the children suffer a significant illness or injury whist in their respective care.
12.The Father have liberty to apply to the court to revisit the time spent Orders herein upon the Father attending for a neuropsychological assessment and obtaining a written report that addresses the matters raised by Ms D, Psychologist, in her report dated 17 June 2020 and the Father shall ensure that in obtaining the assessment he do provide the assessor engaged by him with a copy of Ms D’s report.
13.The order appointing the Independent Children’s Lawyer be discharged.
Property
14.Within 30 days the Father vacate the property at E Street, Town F (“the property”) and leave the property in clean and tidy condition and will return all keys to the property to the Mother’s solicitor.
15.The Father will leave the following items at the property on his vacating:
(a)the Mother’s personal clothing and footwear;
(b)handbags;
(c)the Mother’s jewellery;
(d)the Mother’s cosmetics and toiletries;
(e)the Mother’s childhood keepsakes, dolls and toys (china tea set, wall teddy, porcelain dolls etc.);
(f)Formula One car bed;
(g)the children’s clothing and shoes;
(h)the children’s baby books, birth certificates and maternal health books;
(i)one half of the children’s toys;
(j)one half of the children’s books;
(k)the children’s white table and chair set in bay window;
(l)the children’s personal keepsakes;
(m)photo albums and picture frames;
(n)baby hand and feet framed x2;
(o)outdoor 4-seater wicker table and chairs;
(p)grey Kmart chair;
(q)white jewellery stand;
(r)glass coffee table;
(s)the Freedom beech TV unit in front room;
(t)office printer;
(u)Fisher and Paykel dryer;
(v)LG Washing machine;
(w)steam mop;
(x)half linen press;
(y)half of pots and pans;
(z)half of dinner plates, bowls, glasses, mugs, etc.;
(aa)half of Tupperware;
(bb)Breville red cake mixer;
(cc)Breville food processor;
(dd)sandwich press;
(ee)ice cream maker; and
(ff)Breville smoothie maker.
16.Within 30 days the parties do all things necessary and sign all such documents that are required of them to sell the property situated and known as E Street, Town F, in the state of Victoria, being the land more particularly described in Certificate of Title Volume …, Folio … (“the real property”) on the following terms:
(a)the real property will be listed on a non-exclusive listing agreement for sale by private treaty at a price as determined by the Mother on advice from the real estate agent;
(b)the form of Contract for Sale will be that approved by the Law Institute of Victoria with completion to take place within a period agreed between the parties and if there is no such agreement, then within not more than 60 days of the date of the contract;
(c)the real property will be listed for sale with a licensed real estate agent (“the agent”) as determined by the Mother;
(d)in the event the real property is not sold within 120 days of listing the property for private sale, the parties will forthwith do all things necessary and sign all such documents that are required to procure the sale of the real property by public auction on the following terms:
(i)on a date nominated by the agent, and
(ii)at a reserve price determined by the agent.
(e)in the event that the real property is not sold by auction or by private negotiation within 14 days after the said auction, then the parties will do all things necessary and sign all such documents required to procure a second auction upon the same terms and conditions as applied to the first auction;
(f)in the event that the real property is not sold at or within 14 days of the second auction, either party has liberty to apply to the Court for further orders;
(g)the Mother will co-operate in any way with the agent in relation to the sale, including making the key available, allowing inspection of the real property at times requested by the agent, and ensuring that the property is in a neat and clean condition at the time of inspection by prospective purchasers, and comply with any request of the agent to maintain the property as requested by the agent; and
(h)the Father be restrained from returning to the property for any reason, including but not limited to attendance at open inspections, auctions and/or private inspections.
17.The proceeds of the sale of the real property are to be distributed at settlement as follows:
(a)firstly, in payment of all expenses of and incidental to the sale, including real estate agent commissions, advertising, legal fees and any necessary disbursements;
(b)secondly, in discharge of the mortgage registered against the title to the real property;
(c)thirdly, in payment of any outstanding rates and taxes and other outgoings on the property;
(d)fourthly, in payment of preparation for sale including but not limited to skip bins, cleaning, garden maintenance, lock smith, tree removal steam cleaning carpets, new carpet, general repairs; and
(e)finally, as to the balance, to be divided:
(i)70% to the Mother plus $1,867; and
(ii)30% minus $1,867 to the Father.
18.Liberty be reserved to either party to apply at short notice with respect to the terms and conditions and execution of the sale.
19.Unless otherwise specified saved for the purpose of enforcing any monies due under any subsequent Orders:
(a)each party be solely entitled to the exclusion of the other to all property including choses in action, in the possession of such party as of the date of these Orders;
(b)money standing to the credit of the parties in any jointly owned bank accounts is to be deemed in the possession of the Father, and the parties will do all things necessary and sign all such documents as are required to close the accounts within 28 days of these Orders;
(c)each party foregoes any claim he or she may have to any superannuation or work related benefits belonging to or earned by the other;
(d)insurance policies remain the sole property of the owner named therein;
(e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
20.In the event that either party refuses to execute a Deed or instrument necessary to give effect to these orders the Registrar or Deputy Registrar of the Federal Circuit Court of Australia is appointed pursuant to Section 106A to execute all Deeds and documents in the name of the parties and do all acts and things necessary to give validity and operation to the Deed or instrument.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Molenaar & Molenaar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Judgment delivered Ex Tempore – Revised From Transcript)Judge McNab:
BACKGROUND
In this matter, the Father is 44 years old and is currently on WorkCover. The Mother is 39 years old and works as a health care worker.
In 1996, the Father was involved in car accident, where he sustained a significant head injury to his prefrontal cortex, an area of the brain commonly associated with executive functioning. He was in a coma for two weeks, and required emergency surgery where metal plates were inserted into his skull and jaw.
The Father has a child, Mr G who is 19 years old, from a previous relationship with Ms H. That relationship commenced in 1999 and concluded with final separation in 2002.
In or around February 2004, the parties in these proceedings commenced cohabitation in City J. In 2011, the parties were married.
In 2013, the first child of the marriage, X was born. In 2015, the second child of the marriage, Y was born.
On 2 August 2017, the parties separated for the first time, with the Mother leaving the family home with the children. On 4 September 2017, the Father moved out of the family home, and the Mother returned to the family home with the children. On 1 October 2017, the parties reconciled.
On 16 July 2018, the parties separated for the final time when the Mother left the family home with the children. Since separation both parties have remained living in City J, with the Father living in the family home. The Mother has since re-partnered although she does not reside with the new partner, who lives nearby to her residence. Her partner has a child from a previous relationship who is nine years old. As far as the Court is aware, the Father has not re-partnered.
PROCEDURAL BACKGROUND
This matter has a long procedural history before the Court.
The Mother filed her originating application on 12 December 2018, seeking a recovery order of the children, after the Father allegedly withheld the children from the mother from 6 November 2018 onwards. The Father allegedly did not allow the Mother to see the children, but allowed her to speak to them over the phone. The mother also raised a number of instances of family violence or risks of family violence in her application.
On 18 February 2019, interim consent orders were made by the Court, effectively for the parties to have equal shared parental responsibility for the children, for the children to spend time with the father for 7 days of the two-week cycle and for the children to spend time with the mother for the remaining 7 days. The matter was also listed for Final Hearing in the Ballarat Circuit of this Court on 2 October 2019.
On 1 October 2019, the Mother filed an amended initiating application seeking final parenting orders for the children to live with her and to spend time with the Father alternate weekends, with the Father’s time to be supervised. On 2 October 2019, the Final Hearing was adjourned to 19 November 2019.
On 21 November 2019, the Final Hearing was adjourned to 10 February 2020, and a Conciliation Conference was listed for 24 February 2020. Interim parenting orders were made in line with the mother’s amended application, varying the Father’s time with the children to alternate weekends from after school Friday to the commencement of school on Monday, with such time to be supervised by the paternal grandmother. The Independent Children’s Lawyer was also appointed.
On 5 February 2020, the Final Hearing listed for 10 February 2020 was vacated by consent, and the hearing was converted to a mention. On 12 February 2020, the Court listed the matter for mention on 25 May 2020 and for Final Hearing on 6 July 2020.
Following the conciliation conference on 24 February 2020, the Court ordered the Father pay the Mother’s costs of and incidental to the conciliation conference, noting that the Father had not filed a Financial Statement or Response outlining the financial orders he sought by the date of the conference.
On 11 May 2020, the Mother filed an application in a case seeking final property orders which included that, amongst other things, the Father vacate the family home and for the home to be sold.
On 6 July 2020, the Final Hearing was adjourned to 16 September 2020, with the orders noting the matter was to “be heard as a matter of priority”. The matter was also adjourned in relation property matters for an Interim Defended Hearing on the same date.
On 28 August 2020, the proceedings, including both parenting and property matters, were adjourned to 27 January 2021 for Final Hearing with an estimated hearing time of three days. The Father was also ordered to undertake a neuropsychological assessment with a practitioner to be nominated by the Independent Children’s Lawyer.
FINAL HEARING
On 20 January 2021, the Father filed an application in a case seeking the Final Hearing listed on 27 January 2021 be vacated. The application was listed to be heard immediately prior to the Final Hearing on 27 January 2021.
By way of submissions filed in support of his application on 20 January 2021 and oral submissions made on the first day of the hearing, the Father contended that:
(1)first, the neuropsychological assessment ordered on 28 August 2020, which was to be conducted by Dr K, had not be undertaken as the Father had not been able to receive funding from Victoria Legal Aid. The Father said that Dr K had been supplied documents by the Independent Children’s Lawyer, including all of the Court orders in this matter and a copy of a Family Report, dated 17 June 2020, completed by Ms D, Clinical Psychologist. On that basis, the Father contended that, as he had not been able to properly participate in the assessment, he would be put at a disadvantage as Dr K would only be able to undertake the assessment on the basis of the documents provided; and
(2)second, he had only been able to obtain legal representation immediately prior to the Final Hearing (with a Notice of Address for Service filed on 27 January 2021) and was therefore seeking the adjournment so that his legal representatives could “adequately prepare for the final hearing…which would be in the children’s best interests moving forward.”
The Father has been represented by a number of firms since the Mother initiated proceedings in 2018, but was self-represented between 23 February 2020 and the second day of the Final Hearing.
The Father’s application for a further adjournment of the Final Hearing was refused, and he represented himself on the first day of the Final Hearing. He advised the Court at the conclusion of the first day of hearing that he had obtained legal representation and that Counsel would be appearing on the following days of the hearing. The Father was then legally represented on the second and third days of the hearing, with Counsel appearing on his behalf.
The Mother was represented throughout these proceedings, with Counsel appearing on her behalf for all three days of the Final Hearing.
During the hearing, the Mother gave evidence, and the Father’s former partner Ms H also gave evidence on the Mother’s behalf. The Father gave evidence at the hearing, and the paternal grandmother, Ms B, also gave evidence on his behalf. The Family Report writer, Dr L, gave evidence after being called by the Independent Children’s Lawyer.
FINAL ORDERS SOUGHT
At the conclusion of the hearing on 29 January 2021, orders were made for the parties to file a proposed minute of orders sought, as well as submissions in support of those orders, by 4.00pm on 5 February 2021. The Court has regard to those submissions in making its decision in this case.
Parenting
Mother’s Proposed Parenting Orders
In respect of the parenting matters in this proceeding, the Mother seeks that she have sole parental responsibility for the children and that the children live with her.
The Mother also seeks orders of the Court that, during the school term, the children spend time with the Father each alternate weekends from the conclusion of school on Friday to 5.00pm on Sunday, with some variations on public holidays. The mother also seeks orders that the children have some limited spend time and communicate with the Father during school holiday periods, public holidays and special occasions. Importantly, the Mother seeks orders that the Father’s spend time be supervised by the paternal grandmother, paternal aunt or other agreeable third party.
The Mother also seeks orders that the Father be able to apply to the Court to revisit the spend time orders upon him after attending for the neuropsychological assessment ordered by the Court, and upon a Report being prepared that addresses the matters raised by Ms D in her report dated 17 June 2020.
Independent Children’s Lawyer Proposed Parenting Orders
The orders sought by the Independent Children’s Lawyer effectively reflect the orders sought by the Mother, with some minor variations relating to spend time.
Father’s Proposed Parenting Orders
The Father seeks that the parties have joint parental responsibility for the children, with the children to live with each party on a week-about arrangement from the conclusion of school on Friday to the commencement of school on the following Friday. The Father also seeks orders in relation to spend time arrangements on public holidays and special occasions.
Property
In relation to the property orders sought in these proceedings, the Mother seeks that the Father vacate the family home, and for the property to be put on sale within 21 days. The proceeds of the sale are to be first distributed in payment of expenses incurred, and for the remaining balance to be dived 75% plus $1,867 to the Mother and 25% minus $1,867 to the Father. The mother also seeks orders in relation to personal property in the home.
The Father proposes that within 14 days the parties obtain a valuation of the family home. Once the valuation is obtained, the Father would pay to the Mother the equivalent of 50% of the party’s equity in the home, with the Mother transferring her interest in the property to the Father. In the Father’s view, that net equity is to be determined by “…deducting from the agreed value all encumbrances over the property including the mortgage to Company M, the municipal rates owing, and any amounts owing to the parents of the husband and the wife”.
It is also proposed that there be some agreement as to the value of encumbrances on the property, rather than the value of the encumbrances being determined by the Court.
The Father wishes to retain the family home and, on that basis, seeks orders that the Mother provide to him a list of all items she requires from the home, and the Husband is to provide those items to her.
CONSIDERATION – PARENTING
Equal Shared Parental Responsibility
Section 61DA(1) of the Family Law Act 1975 (Cth) (“the Family Law Act”) provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This is true when the Court is making interim orders, unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
However, s61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child or the child's parents to have equal shared parental responsibility for the child.
This is a case where the presumption of equal shared parental responsibility is displaced.
The evidence in this case from both parties is that, whilst they both love their children, they cannot agree on decisions regarding the children, particularly decisions which affect the long-term welfare and development of the children. The parties gave evidence of long-term conflict, and the Mother, in particular, gave evidence about conflict between the parties and an inability on the part of the Father to come to agreement in relation to decisions regarding the children.
A central point of focus was the educational needs of Y. Y concluded his prep year at school last year, and the Headmaster wrote to the parties suggesting it would be in Y’s best, long-term educational and developmental interests for him to repeat prep. However, that was a decision that had to be made by the parents.
The Mother supports the proposal that Y repeat the year. He is young for his year and will turn 18 in his final year of schooling if he repeats prep as proposed. The view of the Mother and the Headmaster of the school is that Y is struggling socially and that he has significant difficulties with writing, which is an essential learning tool and/or marker of development.
The Father has delayed making a decision in relation to Y’s schooling, and suggested that the Mother should tutor the child. He points to end-of-year reports from the end of 2020 that do not specifically refer to any social or learning difficulties. However, I note that Y’s school reports seem to be more in the nature of encouragement tools rather than a strict assessment of the achievements of a child. On that basis, I have greater regard to the specific recommendations of the school.
The Father has, without consultation, enrolled the child in a private tutoring facility and says that that is sufficient to meet the needs of the child. In my view, this failure by the parties to agree on a course of action and the long-term disagreements about this issue (and many other matters) are likely to be to the detriment of the child. The issue in relation to Y’s schooling this year is not likely to be the only issue that arises in relation to long-term decisions that need to be made by the parties. The Father’s correspondence with the Mother strongly suggests that he either cannot make a decision or does not want to be in a position where he agrees with the Mother and therefore will adopt a contrary position. The case of Y’s schooling is an example of a series of disputes that have played out between the parents to the detriment of the children. Counsel for the Father put to the mother that neither of them could agree on major decisions.
The Mother’s reasons for Y repeating the prep year at school are cogent and supported by the child’s teachers. If the Mother does not have the ability to make these kinds of decisions solely, there is a real risk of ongoing intractable conflict which will affect both the children and the parties.
The Court is of the view that the orders regarding parental responsibility, being those sought by the Mother for her to have sole parental responsibility (which are supported by the Independent Children’s Lawyer), are manifestly appropriate. That view was robustly supported by Dr L in his oral evidence.
Time Spent With Parents
The Father is nonplussed about the situation he finds himself regarding his children, in circumstances where:
(1)he has previously had equal-shared responsibility of the children;
(2)he has had the care of the children unsupervised on a week-about arrangement; and
(3)the observations of the Dr L conducted on 22 August 2019 of the children with the father indicated that both the children are very happy to spend time with their father: see Family Report dated 7 September 2019 (“the First Family Report”) at [38].
In relation to his care of the children, the Father also refers to the fact that he has been regularly attending upon a psychologist in relation to anxiety and depression arising from a workplace injury which has led to his WorkCover claim. The Father sees this as evidence of his seeking support and his capacity to parent.
In the First Family Report, Dr L recommended that the shared‑care arrangements change so that the children spend alternate weekends with the Father unsupervised. He made this recommendation because he was of the opinion that the high level of tension between the parties did not favour shared care. Dr L referred to each party’s account of the other party’s mental health difficulties and said the parties must, amongst other things, attend for psychological assessment.
To that end, the parties attended upon Ms D, who provided comprehensive assessments of the parties in reports dated 10 July 2020, which are annexures to an affidavit filed on 15 July 2020. In relation to the Mother, Ms D stated by way of summary in her report at [37] – [38] that:
37. [The Mother’s] parenting strengths outweigh her parenting needs on the FSNA [a psychological test]. The areas of need that may have a negative impact on her parenting capacity include: the problematic relationship with the father; symptoms of anxiety to which the children may be exposed; and any difficulties the children may present with that would in fact place additional demand on parenting capacity.
38: Based on the balance of strengths and needs of the FSNA, the likelihood that Ms Molenaar’s children will be exposed to neglect or abuse in her care was rated as low.
In Ms D’s recommendations in relation to the Mother, she said there was no indication that the Mother’s time with the children should be restricted or that any treatment was required.
Ms D’s report on the Father was particularly detailed. Contrary to the evidence of the Father that the report was made as a result of an one‑hour assessment, the assessment was in fact carried out over a total of three hours, but was not concluded in a block of time. The report details the considerable difficulties encountered by Ms D in having the Father engage in the process and otherwise as a result of the Father’s behaviour in the course of the report being prepared.
At [8] of the report in relation to the father, the report states:
8. [The Father’s] presentation raised significant concerns regarding executive functioning – the ability to organise, plan, think flexibly and inhibit or control behaviour. His thinking was extremely rigid, and his behaviour was difficult to contain, before, during and after the assessment. He was neither prepared nor able to organise himself during the assessment. He lacked insight into his difficulties and externalised blame for them.
A matter raised by the Father throughout the hearing, which the report noted at [56], is that:
Although there have been disputed allegations of family violence by the mothers of his children, [the Father] does not have a significant history of antisocial behaviour. There are no concerns regarding criminal behaviour, drug or alcohol abuse or intellectual functioning, though he exhibited memory difficulties.
However, the report continues at [57] – [58] that:
57. [The Father] presents with an adjustment disorder with mixed disturbance of emotions and conduct associated with bullying in the workplace and the breakdown of his marriage. He was diagnosed with depression, anxiety and prescribed an antidepressant, Zoloft, which he continues to take.
58. [The Father’s] presentation, and the accounts of [the Mother] and Ms H, raised significant concerns regarding deficits in executive functioning. He struggled to organise, plan, think flexibly and inhibit or control his behaviour before, during, and following the evaluation.
The report then makes reference to the brain injury suffered in the car accident of 1996 and states at [59] – [61] that:
59. […] There are concerns that some of [the Father’s] difficulties are due to an acquired brain injury and therefore may be permanent in nature. [The Father’s] rigid thinking and difficulties controlling behaviour increase the likelihood that he was controlling in his relationship with [the Mother].
60. Regardless of the reason, [the Father] is not functioning well at present and his mental-health issues are such that he has been unable to engage in work of any kind for the past two years.
61. Results on the FSNA suggest the likelihood that [the Father’s] children will be exposed to neglect or abuse in his care is moderate to high. He has limited insight into mental health, behavioural and potential neurological difficulties or the impact of his actions on his children. He was unable to critically reflect upon his behaviour. There is concern that he was unable to modify his behaviour to be socially acceptable during the evaluation and therefore may struggle in the presence of his children. The risk to his children in his care will likely increase if he is found to be responsible for family violence, and decrease if [the Father] engages in recommended treatment.
Ms D subsequently made detailed recommendations including, amongst other things, that:
1. [The Father’s] time with the children is in substantial attendance of another responsible adult pending the outcome of the neuropsychological assessment. If this assessment does not reveal concerns that may impact parenting - in the absence of other concerns arising, unsupervised time may be re-introduced while the father engages in treatment as recommended.
In light of Ms D’s report and its very clear recommendations, orders were made for the Father to attend for a neuropsychological assessment, as set out above. The Father has not undertaken that assessment, notwithstanding the best efforts of the Independent Children’s Lawyer who wrote seven different pieces of correspondence to the Father in order to try and arrange for him to undertake the assessment: see exhibit ‘ICL-1’.
I conclude that because of the evidence given by the Father regarding concerns that he had in relation to the neuropsychologist, and in particular that the neuropsychologist would be provided with a copy of Ms D’s report, he did not want the examination to be conducted and certainly did not make any serious effort to organise for it to take place.
An updated family report was obtained and is dated 20 August 2020 (“the Second Family Report”). The family report writer, Dr L, interviewed the parties, the daughter X; as well as Ms H and Mr G.
At [52] of the Second Family Report, Dr L stated:
To conclude, the writer perceives the father, from his perspective to be an earnest and sincere decent man who genuinely loves his children. Whether as a result of his car accident his speaking and emotional behaviour has changed remains unknown, but based on extensive clinical assessment by Ms D, as well as the statements of the mother, his older son Mr G, and the latter’s mother, the father’s former partner, Ms H, it appears that the father currently does not have the overall cognitive and emotional capacity to be able to understand or accept that perhaps currently he may not have capacity to be able to always parent the children safely and appropriately by himself.
Dr L made recommendations that the Father’s initial spend time with the children should be substantially supervised and also recommended that the Father should undertake a neuropsychological assessment. Dr L also recommended that if the results of the assessment indicate any negative results then the Father should gain further medical referral to specialist health practitioners for further treatment. Dr L was called to give evidence and was cross-examined by Counsel for the Father. Nothing emerged from the cross-examination, or his evidence generally, to undermine the basis of his recommendations.
The difficulty for the Father is that the clear evidence of Ms D – for which she was not required for cross‑examination – is that the results of the psychological testing undertaken by the Father suggest that the risk of his children being exposed to neglect or abuse in his care is moderate to high. At [61] of her report, in relation to the Father, Ms D states that:
61. […] He has limited insight into mental health, behavioural and potential neurological difficulties, or the impact of his actions on his children, and he was unable to critically reflect upon his behaviour.
In addition to the evidence of Ms D, there is evidence before the Court that the Father was, and is likely, not able to adequately and safely care for the children. It seems that the children have been infantilised during his care, and I accept that until relatively recently the children were wearing pull-up nappies to bed as well as co-sleeping with the other child and/or with the Father. There is also evidence that, in particular, X, has failed to attend a significant number of days of school whilst in the Father’s care.
The Mother gave evidence of discussions that she had with her daughter in relation to the child’s time with the Father. The Mother alleges that the child effectively informed her that she had to get up, make her own breakfast as the Father would be sleeping in until 10 o’clock whilst the kids were in his care, leaving them to look after themselves. The Mother gave evidence that the child had also informed her that the Father’s house was often in state of disarray. The Father was invited to, show the Court the state of his house through the video camera in the course of the hearing, as the hearing was conducted via Microsoft Teams, but he refused to do that.
On the basis of the evidence and in the circumstances of this matter, I do not accept the Father’s proposal for a shared‑care arrangement are in the best interests of the children, and, effectively, no other proposal has been put forward by him which the Court might consider.
Supervision
I have concerns in relation to the proposals for the spend-time put forward by the Mother and the Independent Children’s Lawyer – in particular, that the Father’s spend-time be supervised by the Father’s mother, an aunt or some other agreed adult.
The grandmother is an elderly person who has a husband in frail health. She also has 22 other grandchildren who she wishes to spend time with. She does not want to be staying with the Father every second weekend, away from her husband and other family members. The arrangements proposed by the parties impose a significant burden on her, although she has made it very clear that she loves her grandchildren and that they love her.
Unfortunately, in circumstances where there is no viable alternative raised by the Father in the face of the clear evidence before the Court that supervision is currently required, and where the evidence of Ms D so overwhelmingly favours orders of the kind proposed by the Independent Children’s Lawyer and the mother, the Court will make orders along the lines proposed by the Independent Children’s Lawyer and the Mother in relation to spend-time arrangements.
The Court notes that the Father is now able to arrange for a neuropsychological examination, and once he obtains a report from that examiner he will then be in a position to follow the recommendations of that examiner. The Father has also got the benefit of the recommendations of Dr L in relation to psychological assistance that he might require. The Father should immediately take steps to arrange for a neuropsychological assessment to occur and to prepare a strategy in relation to spend time arrangements on the basis of the results of that assessment.
In accordance with the recommendations of Dr L, being recommendation A of the Second Family Report, I make orders that, in the event that a supervisor is not available to be in substantial attendance, the Father should spend greater video time with the children. An order will be made to that effect which includes time to be spent on Monday and Friday in addition to the Wednesday time proposed. If the times nominated are unsuitable because of school, sport or extracurricular activities, then time should be agreed between the parties.
In my view, the orders proposed by the Mother for changes to the Father’s spend time on weekends, so that the weekend time finishes on the Sunday night rather than the Monday morning, are in the best interests of the children. The evidence was that the children have difficulty getting to school on time on the Monday and are tired at the conclusion of the time spent with the Father. The changeover occurring on the Sunday night is likely to reduce those difficulties, whilst allowing the father to have substantial time with his children.
Statutory Considerations
By operation of s60CA of the Family Law Act, the Court is required to have regard to the best interests of the children as the paramount consideration when making parenting orders. To determine what is in the best interests of the children in this matter, the Court is guided by the primary and secondary considerations set out in s60CC of the Family Law Act.
In terms of dealing with the matters that I must have regard to under s60CC(3), to the extent that I have not already done so, I have regard to the following relevant considerations:
s60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
Both of the children in this matter are young. The child Y is too young to express a view for the purposes of this decision. The child X was, with some reluctance, interviewed by Dr L for the purposes of the Second Family Report. Dr L was of the view that given X’s age and state of development, any of her comments were unreliable for court purposes: see Second Family Report at [15].
That being said, both children have clearly expressed their views that they enjoy spending time with their Father and the Court takes that into account.
s60CC(3)(b) – the nature of the relationship of the child with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the child);
Both parties have acknowledged that both children love their parents and have a strong relationship with both their mother and their father and their half-brother Mr G.
s60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
The children reside with the Mother, and she is responsible for the day‑to‑day care of the children. The Father’s health issues impact on his capacity for decision-making and that is the principal reason for the orders that the Court will make, as well as for the reasons that I have set out above.
s60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I am of the view that the changes proposed by the Mother in particular, including the change for the Father’s time with the children finishing on a Sunday night rather than a Monday morning, are likely to have a positive impact on the children. The orders proposed allow for the Father to spend time with his children.
Further, and notwithstanding the fact that the Father has not undergone a neuropsychological assessment prior to the hearing, the orders that the Court will make allow for the Father to continue to spend time, albeit with another agreed adult in substantial attendance.
s60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;
Due to the Father’s brain injury and the unknown extent of the effects of that injury, I am of the view that there have been difficulties caused by the Father’s condition in relation to his capacity and the effect of the children spending time. The condition presents a practical difficulty in the course of the Father’s time with the children, in particular, getting the children to school, his capacity to make decisions and his ability to be sufficiently organised. These were the matters of concern raised by Ms D.
s60CC(3)(f) – the capacity of: (i) each of the children’s parents; and (ii) any other person (including any grandparent or other relative of the children), to provide for the needs of the children, including emotional and intellectual needs;
I have dealt with this as set out above and in the course of the discussion regarding Ms D’s report.
s60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The children in this matter are young. They are clearly in need of care, and are susceptible to neglect or abuse.
s60CC(3)(i) – the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;
Whilst the Father clearly loves the children, he has demonstrated a lack of capacity to make decisions which form an essential part of parental responsibility.
s60CC(3)(j) – any family violence involving the child or a member of the child's family;
There are allegations of family violence in this case. The mother has made allegations that the Father has effectively tried to involve himself in the psychological treatment of the child, X and that the Father has been keeping the Mother under surveillance. There has been an intervention order applied for by the Mother and an interim order has been made in the Mother’s favour. However, family violence did not present as a significant feature in this case.
s60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
An interim order was obtained by the Mother against the Father and that remains in force.
s60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to that child;
This is a matter where the orders contemplate a potential need for further proceedings. I am of the view that it is not in the best interests of the children and/or the parties for orders to have been made on an interim basis. The orders are framed to give the Father an allowance to undertake a neurological assessment and then to return to Court at some later stage for a Final Hearing if he has evidence to justify reopening the case.
This history of this matter shows that this case has been on foot for a considerable period. Given previous delays, the Court does not have confidence that the Father will undertake a neuropsychological assessment, which would leave the case simply pending, which is clearly not in their interests. The orders proposed by The Independent Children's Lawyer and the Mother contemplate the Father undertaking neurological assessment and for the spend time arrangements to be revisited. I am of the view that, whilst I cannot be confident that this is absolute finality, these orders are manifestly in the interests of the parties.
s60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
I am of the view that the failure on the part of the Father to engage in the neuropsychological assessment is a significant factor in this case and the Court takes that into account.
CONSIDERATION – PROPERTY
As set out above, the Mother proposes that the family home be sold with a division of the net assets of 75% plus $1,867 in her favour and 25% minus $1,867 to the Father. The Father proposes that the home be valued so that he retain the house and pay the wife 50% of the net equity.
The Court is not minded to make the orders sought by the Father as it is likely to be futile. The Father has not placed any evidence before the Court to support a finding that he is able to fund the purchase of the Mother’s interests in the property at the level nominated by him, being 50%, or by her, being 75%.
In considering the property matters in this proceeding, and the distribution of the asset pool, I am guided by the principles set out in the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143. In that case, the Full Court identified a preferred four-step process in property matters under the Family Law Act those being:
(1)to identify the pool of assets and liabilities generally and usually at the time of hearing;
(2)to assess the relative contributions of both the financial and non-financial, direct and indirect nature as specified by section 79(4) of the Family Law Act;
(3)to consider the factors as relevant contained in section 75(2) of the Family Law Act; and
(4)finally, to determine whether the order the Court proposes to make is just and equitable to both parties.
This approach was approved in Bevan & Bevan [2013] FamCAFC 116 where the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52. Neither party in this case contends that it is not just and equitable for the Court to make property orders.
In relation to assets and liabilities in this matter, the asset pool is relatively small, and the Mother has provided a summary of the pool in her submissions filed on 22 January 2021.
Of note, the Mother has estimated that the family home, which is owned jointly, has a value of $550,000. In his financial statement filed on 22 May 2020, the Father estimates the value of the house to be $420,000. There is a joint Home Loan on the property in the approximate amount of $342,000. There is also council rates owed jointly in the approximate amount of $7,592.45: see exhibit ‘A-4’.
In relation to superannuation, the Mother has approximately $51,370 in superannuation and the Father has approximately $69,000. No order is sought in relation to superannuation.
In terms of the contributions of the parties, the evidence supports a finding that at the commencement of the relationship the Mother owned a property which was sold in 2005, with approximately $50,000 of the equity being used for a deposit for a home in N Street, City J.
The Mother accepts that the Father received a TAC payment prior to the commencement of the relationship and that about $80,000 of that sum was used as a deposit on the family home, leaving a mortgage of about $200,000. The Father disputed the claim that the deposit was in excess of $100,000 but did not dispute the $280,000 purchase price of the family home. The Father has been in occupation of the house but has not paid the mortgage or outgoing bills on the family home since just after separation. The case that was being put by the Mother for the sale of the house has been made clear to the Father throughout this proceeding.
The mortgage over the family home has increased since the Father has been in occupation and the council rates have also accrued. Neither have been paid and it appears that about $30,000 has accumulated as a result the Father’s failure to pay the outgoing bills and refusal to sell the family home. The extent of the accrual amounts to about 13% of the non-superannuation asset pool on the basis of the Mother’s summary.
The Mother accepts that there is a slight disparity in the initial contributions between the parties. However, both parties made significant initial contributions to the property as a result of the length of the relationship. Given the length of the relationship, and the nature of those contributions, I find that the initial contributions and the contributions to the property are roughly equal.
In terms of the ongoing needs of the parties, the Mother is 39 years old, in good health and is employed as a public servant earning about $40,000 per annum. The Father is 44 years of age and receives an income of approximately $39,000 as a result of the WorkCover payments that he receives. The duration of those payments is not known and his capacity for ongoing employment is not clear. The Mother receives $44 per week in child support which is paid on a regular basis by the Father. The Mother has clearly got significant ongoing needs as a result of her care of the two children and, whilst she has some capacity to increase her income as a result of training (I understand that she is training to become a public servant).
It is unlikely that the Mother is going to be able to undertake full time employment in the immediate future because of the care of the children. She will also have significant costs associated with re-establishing herself. The Father will also have ongoing needs but his needs will be less than those of the Mother as he does not have the full-time care of children and at present his income/benefit receipts are similar to that of the Mother.
In my view, the just and equitable split of assets in this case is for the wife to receive 70% of the net equity in the property with the father to receive 30%. I make this assessment on the basis of the foregoing analysis.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 3 March 2021
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Family Law
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Property Law
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