Molenaar & Molenaar

Case [2021] FCCA 390

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…

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Molenaar & Molenaar [2021] FCCA 390
Case
[2021] FCCA 390
Decision Date

CaseChat Overview and Summary

In the matter of *Molenaar & Molenaar*, heard before Judge McNab, the dispute concerned parenting arrangements and property division between Ms Molenaar (the Applicant Mother) and Mr Molenaar (the Respondent Father) following their final separation in July 2018. The proceedings involved significant procedural history, including applications for recovery orders, interim consent orders, and multiple adjournments, ultimately leading to a final hearing addressing both parenting and property matters.

The court was required to determine several key legal issues. Primarily, it needed to consider whether the presumption of equal shared parental responsibility under section 61DA(1) of the *Family Law Act 1975* (Cth) should apply, given allegations of family violence and the parties' demonstrated inability to agree on significant decisions concerning the children. The court also had to make final parenting orders regarding the children's living arrangements, time spent with each parent, and parental responsibility, as well as orders concerning the division and sale of the family home and other property.

Judge McNab found that the presumption of equal shared parental responsibility was displaced in this case. This conclusion was based on the evidence of long-term conflict between the parties and the Father's inability to agree on crucial decisions affecting the children's welfare and development, exemplified by the protracted delay in deciding whether their son, Y, should repeat his prep year. The court gave significant weight to the school's recommendation that Y repeat the year due to social and learning difficulties, contrasting this with the Father's delayed response and suggestion of private tutoring. Consequently, the court ordered that the Mother have sole parental responsibility for the children, subject to specific communication requirements with the Father. The court also made detailed orders regarding the children's living arrangements, time spent with the Father (including substantial supervision requirements), and communication.

In relation to property, the court ordered the Father to vacate the family home within 30 days and leave specific items belonging to the Mother and children. The parties were directed to take all necessary steps to sell the family home by private treaty, with specific terms regarding listing, sale price determination, and completion. The court also outlined a process for sale by public auction if the property remained unsold within 120 days, with further provisions for a second auction if necessary. The proceeds of the sale were to be distributed after expenses, mortgage discharge, and outgoings, with the balance divided 70% to the Mother plus $1,867, and 30% minus $1,867 to the Father. Further orders addressed the division of other property and the severance of joint tenancies.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 – PARENTINGEqual 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.