MORTENSEN-HEALY & HEALY
[2013] FamCA 378
•30 May 2013
FAMILY COURT OF AUSTRALIA
| MORTENSEN-HEALY & HEALY | [2013] FamCA 378 |
| FAMILY LAW – CHILDREN – Children’s living arrangements – where the children live with the father – where the children spend supervised time with the mother on only a few occasions each year – injunctions precluding the mother from otherwise approaching or contacting the children – where the mother posed an unacceptable risk of physical and psychological harm to the children – where the mother could not meet the children’s emotional needs – where the mother had attempted suicide and had initially planned to kill the children – where the mother made unfounded allegations of family violence and child abuse perpetrated by the father – where there was considerable doubt about the mother’s psychological recovery FAMILY LAW – CHILDREN – Parental Responsibility – where the father has sole parental responsibility – where evidence of the parties’ failure to communicate about the children rebutted the presumption of equal shared parental responsibility FAMILY LAW – PROPERTY – Property Settlement – wife receives fifteen (15) per cent and the husband receives eighty five (85) per cent of the matrimonial asset pool – where the parties’ contributions during cohabitation were relatively equal – where the husband made significant financial contributions at the commencement of the relationship – where the husband made significant contributions post-separation to the welfare of the family – where a significant adjustment is made in favour of the father due to his future care for the two children of the marriage – where the wife was in arrears with even minimal child support payments – where no superannuation splitting order could be made due to lack of procedural fairness afforded to the superannuation trustee – where there was no basis for add-backs to the pool of assets FAMILY LAW – PRACTICE AND PROCEDURE – Wife’s Application for adjournment dismissed – where the wife had already exhausted all recourses for a grant of legal aid – where the wife had sufficient time to arrange legal representation – where the trial had already been set down for final hearing on two previous occasions – where the husband was also unrepresented |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 68B, 75, 79, 90MZD and 106A Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011(Cth) Mental Health Act 2007 (NSW) |
| Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175 Chorn & Hopkins (2004) FLC 93-204 Goode & Goode (2006) FLC 93-286 Omacini v Omacini (2005) FLC 93-218 Marriage of Coghlan (2005) 33 Fam LR 414 MRR v GR (2010) 240 CLR 461 |
| APPLICANT: | Ms Mortensen-Healy |
| RESPONDENT: | Mr Healy |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Garrick, Brennan Garrick Lawyers |
| FILE NUMBER: | NCC | 2245 | of | 2010 |
| DATE DELIVERED: | 30 May 2013 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 13, 14 & 15 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not Applicable |
| SOLICITOR FOR THE APPLICANT: | Not Applicable |
| COUNSEL FOR THE RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE RESPONDENT: | Not Applicable |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr T Bates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Garrick, Brennan Garrick Lawyers |
Orders
Parenting orders
All former orders relating to S, born … November 2003, and T, born … October 2008, (“the children”) are discharged.
The father shall have sole parental responsibility for the children.
The children shall live with the father.
The parties shall take all reasonable steps to ensure that the children spend supervised time with the mother for three hours on four occasions annually, being the Saturdays falling closest to 30 March, 30 June, 30 September, and 30 December each year.
For the purpose of implementing Order 4 hereof:
(a)The supervisor of the time spent by the children with the mother shall be staff at “Relationships Australia” at a contact centre venue on the Central Coast of NSW, or some other person or entity nominated by staff of that organisation (“the supervisor”).
(b)Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor.
(c)The time that is to be spent by the children with the mother shall commence at the time designated by the supervisor.
(d)The venue at which the time is to be spent by the children with the mother shall be designated by the supervisor.
(e)The parties shall pay in equal shares any costs due to the supervisor.
(f)The father shall cause the delivery of the children to, and the collection of the children from, the supervisor at the commencement and conclusion of the time spent by the children with the mother.
(g)If on an occasion that the children are due to spend time with the mother that time together cannot be accommodated by the supervisor the time that the children would otherwise have spent with the mother shall be made-up at another time as close to the original time as can be arranged.
(h)The mother and father shall comply with all reasonable requests and directions of the supervisor.
(i)Leave is granted to the mother and father to provide to the supervisor a sealed copy of these orders.
The parties shall take all reasonable steps to ensure that the children communicate by telephone with the mother for 20 minutes in total, commencing at 6.00 pm on:
(a)The second Wednesday of each month;
(b)Each child’s birthday;
(c)The mother’s birthday;
(d)Mother’s Day; and
(e)Christmas Day.
For the purpose of implementing Order 6 hereof, the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure the children are able to receive the mother’s calls on that number at those times.
The parties shall take all reasonable steps to ensure that the children are able to communicate with the mother in the following manner:
(a)By the mother being able to send letters, cards, and/or gifts to the children on or about dates proximate to their birthdays and Christmas Day, and
(b)By the father promptly sending to the mother written acknowledgement of receipt of the mother’s written communication and any letters, cards, photographs, or other written communication that the children, or either of them, wish to be conveyed to the mother.
The mother is restrained from spending time or communicating with the children other than in accordance with Orders 4-8 inclusive hereof.
Pursuant to s 68B of the Family Law Act the mother is restrained from entering upon or approaching within 100 metres of:
(a)The father’s residence; and
(b)Any school attended by either child.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
The father shall take all reasonable steps to ensure the eldest child continues to attend counselling at ARAFMI for as long as is recommended by that organisation.
The father shall notify the mother of any medical emergency, illness or injury suffered by the children whilst in his care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the mother about the condition and treatment of the children.
The father shall authorise and request the principal of any school attended by the children to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the children.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, and mobile telephone number.
Within seven days hereof the father shall cause the children to be delivered to the Director of Child Dispute Services at the Newcastle registry of the Family Court of Australia to have explained to them the effect of these orders, and if deemed appropriate by the Director, the reasons for such orders.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Property settlement orders
The father shall pay to the mother the sum of $50,695 within six weeks of the date of these orders.
Subject to compliance with Order 20 hereof, and in consideration of that payment, the father is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Lot … DP …, being the property more commonly known as … B Street, Town C, NSW (“the property”), and the mother shall do all such things and sign all such documents as may be necessary to transfer all her right, title, and interest in the property to the father contemporaneously with her receipt of payment pursuant to Order 20 hereof.
Subject to compliance with Order 21 hereof, and in consideration of that transfer, the father shall indemnify and keep indemnified the mother against all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to the property.
In default of compliance with Order 20 hereof, the parties shall do all such acts and things and sign all such documents as may be necessary to list the property for sale by public auction on the following terms.
For the purposes of implementation of Order 23 hereof:
(a)The solicitors chosen by the father shall be the solicitors acting on the sale of the property for the parties.
(b)The property shall be listed by the parties for auction sale within 6 weeks of the date of default of Order 20.
(c)The auctioneer, in the event of disagreement between the parties, shall be the auctioneer chosen by ballot from the respective choices of the parties.
(d)The reserve price shall be as agreed between the parties, and in the event of disagreement between the parties, the reserve price nominated by the auctioneer.
(e)In the event the property is not sold by auction, or private negotiation within a further 7 days, then the property shall be submitted to successive auctions within further 6 weeks periods until sold, otherwise on the same terms and conditions as applied to the first auction.
(f)Other than for the purpose of raising funds to enable the father’s compliance with Order 20 hereof, the parties are restrained from charging, mortgaging, or otherwise encumbering the property.
(g)The father may occupy the property pending its sale pursuant to these orders, provided that he meets all expenses incurred in respect of the property as and when those expenses fall due (including loan repayments, Council rates, water rates, and insurances), maintains the property in a reasonable state of repair, and facilitates inspection of the property by prospective purchasers.
Upon completion of the sale of the property pursuant to Orders 23 and 24 hereof the solicitors acting for the parties on the sale shall disburse the proceeds of sale as follows:
(a)Firstly, to pay all costs, commissions, and expenses of the sale and to pay any Council and water rates outstanding in respect of the property.
(b)Secondly, to pay to the mother the sum of $50,695, together with any interest accrued on that sum, calculated from the time of the father’s default of Order 20 hereof.
(c)Thirdly, to pay to the father any balance then remaining.
The father is declared the sole legal and beneficial owner (as between the parties) of the funds retained by the parties in Adelaide Bank mortgage offset account number …01 and the mother shall forthwith do all acts and things necessary to transfer all her right title and interest in those funds to the father.
The father shall indemnify, and keep indemnified, the mother in respect of any debt allegedly owed by the parties, or either of them, to:
(a) Bankwest;
(b) Jetstar mastercard; or
(c) Any member of the paternal family
Unless otherwise provided:
(a)Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed in the possession of the superannuant.
(b)Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession, and any debts in their respective sole names.
Miscellaneous orders
In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these orders the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to s.106A of the Family Law Act.
Costs are reserved for 28 days.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mortensen-Healy & Healy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 2245 of 2010
| Ms Mortensen-Healy |
Applicant
And
| Mr Healy |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
History
The applicant mother and respondent father have been locked in intractable controversy about their children and their property for years. Consensus eluded them at every point until literally the last moments of the hearing, when the mother made significant concessions about the father having sole parental responsibility for the children, them living with him, and the restricted circumstances under which they should spend time with her. However, the parties were still unable to agree about any aspect of the division of their matrimonial assets and resources.
The parties commenced their cohabitation in February 2002, married in September 2002 and finally separated on 21 March 2010.[1]
[1] Mother’s affidavit, para 3; Father’s affidavit, para 3
Their two children were born in November 2003 and October 2008 and are now aged nine and four years respectively.
Following the parties’ final separation in March 2010 the children remained living with the mother in the former matrimonial home on the Central Coast of NSW. The father moved to live with the paternal grandparents in Sydney. The children initially spent every weekend with the father and then each alternate weekend with him.[2]
[2] Father’s affidavit, para 4
About three months after separation, in June 2010, the mother unsuccessfully made a serious suicide attempt at the former matrimonial home while the children were at school and in child care. As a consequence of that incident the mother was admitted to a psychiatric facility as an involuntary patient under the Mental Health Act (NSW) and the father assumed full-time care of the children.
The mother resumed occupation of the former matrimonial home upon her discharge from the psychiatric facility, but later vacated it in favour of the father and children in about August or early September 2010.[3] The father and children have occupied the home ever since. The mother lives elsewhere on the Central Coast.
[3] Father’s affidavit, paras 18, 51
A family violence order was issued against the mother for the protection of the children following her failed suicide attempt, because evidence suggested the mother had originally contemplated murdering the children prior to her suicide. That order was made final by the Local Court of NSW in September 2010.[4]
[4] Father’s affidavit, paras 19, 256-259
The mother commenced these proceedings on 27 August 2010, contemporaneously with her departure from the former matrimonial home and just before the family violence order became final.
The first set of interim parenting orders was made on 15 September 2010, with the consent of the parties. The orders provided for the children to live with the father and to spend time with the mother on two occasions each week under the supervision of Centacare staff.
The second set of interim parenting orders was made on 1 November 2011, again with the consent of the parties. The orders provided for the children to continue living with the father and to continue spending time with the mother on two occasions each week for an aggregate period of four hours. The only material difference was the discharge of supervision of the children while they spent time with the mother.
The third set of interim parenting orders was made on 26 March 2012, again with the consent of the parties. The orders slightly adjusted the times at which the children visited the mother on the same two occasions each week and expanded the visits to an aggregate period of six hours.
The father breached those orders from 6 April 2012 until further orders were made some weeks later.[5] The father admitted in cross-examination that he did so, but asserted he was justified in taking such action because of the unhealthy nature of the conversations then occurring between the mother and the eldest child.
[5] Mother’s affidavit, paras 47-55
The fourth set of interim parenting orders was made on 8 May 2012, again with the consent of the parties. The mother was restrained from attending the eldest child’s school, from entering upon the property of the former matrimonial home, and from speaking with the children by telephone for more than 30 minutes on each occasion. Otherwise, it was intended that the existing interim orders prevail.
The Family Report was released to the parties shortly after its compilation on 26 October 2012, the contents of which urged the re-introduction of supervision of the time spent by the children with the mother.
The matter was back before the Federal Magistrates Court (as the Federal Circuit Court then was) shortly afterwards on 8 November 2012 and, in light of the contents of the Family Report, the proceedings were transferred to this Court. In addition, a fifth set of interim parenting orders was made, again with the consent of the parties. All past orders concerning the children’s interaction with the mother were suspended and the orders instead provided for the children to communicate with the mother by telephone three times each week and to spend supervised time with the mother at a contact centre. The orders also restrained the mother from attending the eldest child’s school and the youngest child’s pre-school. Although the orders did not prescribe the frequency or duration of the children’s supervised visits with the mother, there has apparently been no controversy about implementation of the orders.
The orders made in November 2012 prevailed until the final hearing in May 2013.
Application for adjournment
The mother foreshadowed her application to adjourn the hearing when the parties appeared before the Registrar on 8 May 2013,[6] but the application was not actually made until the final hearing commenced on 13 May 2013. On the eve of the hearing the mother sent an email to the Court setting out the grounds of her intended adjournment application,[7] but she did not give a copy of that email to either the father or the Independent Children’s Lawyer until the application was made. The adjournment application was opposed by both the father and Independent Children’s Lawyer.
[6] Notation A made on 8 May 2013
[7] Exhibit M2
The adjournment application was dismissed with reasons to follow. These are those reasons.
It is important to understand the tortuous history of the proceedings, which were commenced by the mother in August 2010.
In November 2011 the Federal Magistrates Court listed the proceedings for final hearing on 26 March 2012. The hearing was intended to finalise the parties’ disputes as to both parenting and property settlement orders.
On the 26 March 2012 the intended hearing was aborted because the parties were unprepared.[8] The proceedings were necessarily adjourned,[9] the interim parenting orders were adjusted,[10] the mother was directed to file a further affidavit,[11] and the mother’s solicitor was expected to draft some further procedural orders for a financial conciliation conference.[12]
[8] Mother’s affidavit, para 34; Father’s affidavit, para 45;
[9] Order 4 made on 26 March 2012
[10] Order 1 made on 26 March 2012
[11] Order 5 made on 26 March 2012
[12] Notation 6 made on 26 March 2012
The matter was subsequently fixed for conciliation conference on 20 July 2012,[13] but by that date the parties were still unprepared. The father did not provide proper financial disclosure, the value of the father’s superannuation interest was unknown, the mother failed to give procedural fairness in relation to the orders she sought, the parties failed to comply with procedural orders about the compilation of a balance sheet, and both parties failed to provide the Registrar with Case Outline documents.[14]
[13] Order 4 made on 8 May 2012
[14] Notation A made on 20 July 2012
The matter was fixed for final hearing for a second time on 19 February 2013, but that trial date was lost when the proceedings were transferred to this Court on 8 November 2012.[15]
[15] Notations E-F made on 12 December 2012
Upon transfer to this Court the proceedings were expedited,[16] which resulted in the matter being fixed for final hearing for the third time on 13 May 2013. Many procedural orders were made to ensure the hearing would finalise both the outstanding parenting and property settlement applications of the parties.[17] Additional procedural orders were made in April 2013 without disturbing the final hearing date.[18]
[16] Order 1 made on 12 December 2012
[17] Orders and Notations made on 21 December 2012
[18] Orders and Notations made on 10 April 2013
Presently, the principal concern of the mother was the absence of any legal representation. Although the mother was not legally represented, that had been the case for many months. The Court record disclosed the last occasion on which an appearance was made by a lawyer on behalf of the mother was on 8 November 2012. The mother was self-represented at all subsequent appearances before the Court, including in December 2012 when the matter was fixed for final hearing in May 2013.
The mother had more than sufficient time within which to ascertain whether she qualified for a grant of legal aid and, irrespective, arrange legal representation if she desired it. The mother contended she had been actively seeking representation since January 2013, though clearly she should have been trying from an earlier point in time.
The mother’s application for legal aid was refused. The refusal was affirmed upon review. The mother admitted she made a “further request for an independent review” in April 2013, the unfavourable result of which was notified to her on 8 May 2013. It therefore follows that the administrative functions of the Legal Aid Commission of NSW were completed once the review was undertaken by the Legal Aid Review Committee. It was consequently pointless for the mother to rely upon the provisions of the Legal Aid Commission Act 1979 (NSW) to seek an adjournment of the hearing. There was no need to adjourn the hearing to enable a legal aid appeal because the appeal process was already exhausted.
The mother must have been well aware that she would be without legal representation if her appeal against the refusal of a grant of legal aid was unsuccessful. She must therefore have contemplated the need to ready herself for the hearing in that eventuality. If she had other options to pursue for her legal representation, such as with “Salvos Legal” as she suggested, she failed to make timely arrangements to implement those options. The Court does not, and should not, arrange its resources and schedule to meet the convenience of only one party. The mother had plenty of time to arrange her affairs in readiness for the hearing.
The mother was indeed unprepared for the hearing. Her Amended Initiating Application filed on 25 January 2013 only contained her proposal for parenting orders, not property settlement orders, and her affidavit filed on 12 April 2013 contained no evidence pertinent to the division of the parties’ property and superannuation interests. But that was her choice or her oversight. She knew the hearing was intended to finalise the parties’ outstanding disputes over both parenting and property settlement orders. She told her treating psychiatrist in February 2013 that the final hearing was fixed for May 2013 when the Court would be “looking at property settlement and the arrangements for the children”.[19] The procedural orders made in December 2012 made that plain anyway.
[19] Exhibit ICL12
The adversarial judicial system does not permit disregard of delay. Nor does it countenance or reward a party’s ignorance of procedural orders. Avoidance of undue delay and efficient use of resources are broader public considerations which may transcend the individual interests of the parties. The Court controls the course of litigation because the resolution of litigation serves the public as a whole, not merely the parties to the proceedings (see Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175 at 189-190, 211-215, 217).
There were several persuasive facts that militated in favour of the hearing proceeding. The mother is the applicant. She commenced the litigation in order to determine the parties’ dispute, presumably expecting that it be determined in a timely fashion. The litigation has now been pending for nearly three years. The hearing scheduled for May 2013 was the third occasion on which the proceedings were fixed for final hearing. The mother was unready for final hearing on one prior occasion over 12 months ago and was unready again. She was also previously unready for at least one other interim event. The Court could have little confidence the mother would be any better prepared if reprieved again. The absence of legal representation was not of itself a disadvantage to the mother because the father was similarly without legal representation. The mother’s application for adjournment was therefore refused and the final hearing proceeded.
Proposals and primary evidence of mother
During final submissions the mother abandoned the proposal for parenting orders set out within her Amended Initiating Application filed on 25 January 2013 and instead adopted, in most respects, the proposals made by the father and Independent Children’s Lawyer.
She proposed that the father have sole parental responsibility for the children and that they live with him. She agreed the children should only spend supervised time with her at a contact centre, but for six rather than four visits each year. She additionally proposed her communication with them by Skype on a monthly basis and by letter on special occasions such as birthdays, Mother’s Day and at Christmas. Comparison of that proposal with the one made in her Amended Initiating Application demonstrates that the mother effectively reversed her views and capitulated to the weight of the evidence against her.
The mother was particularly desirous of the children each having individual counselling, but not the counselling with ARAFMI proposed by the Independent Children’s Lawyer[20] and the father.
[20] Exhibit ICL10, Order 9
As to property settlement orders, the mother simply proposed that she have “50 per cent” of the matrimonial pool.
The mother relied upon her affidavit filed on 12 April 2013 and her financial statement filed on 8 April 2013.
Once the mother’s application for adjournment of the hearing was dismissed, she abandoned her subsidiary application for her own forensic psychologist, Dr D, to be appointed as a single expert in the proceedings to “conduct an assessment on [her]”.[21]
[21] Exhibit M2
Proposals and primary evidence of father
The father pressed for the orders set out within the minute of orders he tendered at the commencement of the hearing.[22] His position has been consistent for a prolonged period.[23]
[22] Exhibit F1
[23] Family Report, para 17
As to parenting orders, he sought sole parental responsibility for the children, for the children to live with him, and for the children to spend only supervised time with the mother at a contact centre on four occasions each year. He acknowledged during final submissions that many of the other orders he sought were either unwise, unenforceable, or beyond the Court’s power.[24]
[24] Exhibit F1, Orders 4, 9, 10, 11, 24, 25
The father generally agreed with the orders proposed by the Independent Children’s Lawyer, including the order that obliged him to ensure that at least the eldest child continued to receive counselling at ARAFMI.
As to property settlement orders, the father sought retention of the former matrimonial home and payment out of the mortgage, but could not explain the source of funds which would be used to discharge the mortgage. In reality, the father’s position was that he was entitled to “fairly close to 100 per cent” of the matrimonial pool. Beyond that he was unspecific.
The father relied upon his affidavit and financial statement, both of which were filed on 3 April 2013.
Proposal of independent children’s lawyer
At the commencement of final submissions the Independent Children’s Lawyer tendered a minute of the orders she proposed.[25] They essentially provided for the father to have sole parental responsibility for the children, for them to live with the father, for them to spend supervised time with the mother at a contact centre on only four occasions each year, and for them to correspond with the mother monthly.
[25] Exhibit ICL10
The Independent Children’s Lawyer otherwise proposed the mother be restrained from interacting with the children, which restraint was intended to include preclusion of any interaction by telephone.
Additional evidence
The Independent Children’s Lawyer and the parties relied upon the evidence contained within:
a)The reports of the single expert psychiatrist, Dr E, which were prepared on 20 July 2011 and 16 March 2013; and
b)The Family Report of the Family Consultant prepared on 26 October 2012.
The parties and the Independent Children’s Lawyer cross-examined both the single expert and the Family Consultant. The mother abandoned her application for the single expert to attend Court to give evidence in person, conceding she was not prejudiced by conducting her cross-examination by telephone, as she initially agreed would be satisfactory.[26]
[26] Order 1 made on 10 April 2013
I accept the evidence of both the single expert and Family Consultant. Their evidence was consistent, logical, reasoned, and hence persuasive. The mother implicitly reached the same conclusion because she would not have capitulated to the parenting proposals of the father and Independent Children’s Lawyer unless she acknowledged the force of the evidence given by the single expert and Family Consultant.
Parenting proceedings
Applicable legal principles
Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Since these proceedings were commenced before 7 June 2012 the provisions of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011(Cth) do not apply (see Schedule 1, items 44 and 45).
Children’s best interests – primary considerations (s 60CC(2))
These proceedings were conducted on the basis of uniform concessions that the children enjoy close and loving relationships with both parties.
The point of difference was the nature of the children’s “attachment” to the mother, which the single expert and Family Consultant both consistently described as either “insecure” or “disorganised”. The impaired attachments resulted from the mother’s inability to modulate the children’s emotions and the consequent stimulation in them of elevated anxiety and chaotic behaviour.
The evidence about that aspect of the mother’s parenting capacity will be elaborated as a consideration under s 60CC(3) of the Act, but presently it suffices to observe the children do have underlying meaningful relationships with the mother from which they will derive benefit. However, for reasons later explained, it is only presently feasible to maintain those relationships in a rudimentary form.
The mother’s allegations against the father of perpetrating family violence upon her and sexual and physical abuse of the children were a significant feature of these proceedings. Ultimately, all of those allegations proved to be specious.
Relevantly for the purposes of these proceedings, “family violence” is defined to include actual or threatened conduct that causes a member of the family to reasonably fear for or to be reasonably apprehensive about his or her personal wellbeing or safety (s 4(1)). The new definition of “family violence” does not presently apply (s 4AB).
The mother may not have appreciated the distinction between the old and new definitions, since she boldly proclaimed in her affidavit:[27]
For a significant period of time leading up to and immediately after my separation from the Respondent I believe that I was subjected to significant physical, emotional, financial, mental domestic abuse and coercive controlling violence at the hands of the Respondent.
[27] Mother’s affidavit, para 5
Careful scrutiny of the evidence does not verify the mother’s belief about the perpetration of family violence by the father.
Shortly after the parties’ separation, in April 2010, the mother approached the police and made a comprehensive statement about her adverse experiences with the father.[28] The single incident of overt physical confrontation between the parties described by the mother in that statement occurred in 2002, when the father pushed the mother aside during an argument.[29] The father conceded such an incident occurred, but explained how the mother had blocked his egress from the balcony whilst she was in a rage.[30]
[28] Mother’s affidavit, para 5, Annexure A
[29] Mother’s affidavit, Annexure A (para 13)
[30] Father’s affidavit, para 302
Even on the mother’s version of the event, far from being cowered by the father’s hostility, she threatened him with vengeful retaliation. She was confident her martial arts training equipped her with the ability to adequately defend herself. She believed the father was wary of her and so “from then on he didn’t actually touch [her]”.[31] The mother reported the same history to Dr D in September 2010, confirming that after that solitary incident the father “tended to verbally abuse her rather than physically abuse her”.[32]
[31] Mother’s affidavit, Annexure A (para 13)
[32] Mother’s affidavit, Annexure D (para 38)
From that time on, the parties’ intermittent confrontations were confined to arguments, usually about matrimonial finances.[33] According to the mother’s evidence, the worst that occurred during their arguments was the father screamed and gesticulated with his finger.[34]
[33] Father’s affidavit, para 296
[34] Mother’s affidavit, Annexure A (paras 13, 22)
When the mother was admitted to a psychiatric facility for some treatment in December 2006 she reported that she and the father “occasionally have verbal arguments” but it did not include “threatening or assaultive (sic) behaviour”.[35]
[35] Family Report, para 110
The mother maintained she did not realise the father’s behaviour amounted to “domestic violence” until the concept was later explained to her by others. She became convinced of her victimisation by a refuge caseworker in 2007,[36] a counsellor in 2009,[37] and another counsellor in 2010.[38] When the mother later conferred with Dr D in September 2010 she confirmed how her appreciation of domestic violence was entirely retrospective.[39] Her gravest complaint about the father to the single expert in June 2011 was that he showed her no affection after the eldest child was born.[40]
[36] Mother’s affidavit, Annexure A (para 27)
[37] Mother’s affidavit, Annexure A (para 32)
[38] Mother’s affidavit, Annexure A (para 38)
[39] Mother’s affidavit, Annexure D (para 39)
[40] First single expert report, page 11
The father’s consistent denials of family violence to the Family Consultant,[41] in his affidavit,[42] and during cross-examination were not just convincing, but factually correct.
[41] Family Report, paras 20, 57
[42] Father’s affidavit, paras 28, 30, 287, 302
Clearly, the mother’s current belief in the father’s past perpetration of family violence formed incrementally through a series of conversations with counsellors over a period of years during which she suffered from unstable psychological health. The mother seemingly now attributes her emotional instability to her subjection to violent and aggressive conduct by the father, but the evidence more reliably suggests the opposite. Her emotional instability afforded the context within which she was able to form an erroneous belief in her mistreatment by the father. Such a conclusion is consistent with the opinions of the Family Consultant, the single expert, and Dr D.[43] It is also consistent with the Independent Children’s Lawyer’s submission about the mother’s perception not being borne out by the evidence.
[43] Family Report, paras 21, 126; Second single expert report, page 14;
The mother also believed the children’s errant behaviour, and in particular the eldest child’s tendency to physically harm himself, was attributable to the father’s perpetration of family violence in their presence and his abuse of them. Despite the apparent genuineness of the mother’s belief, there was no evidence at all to support her belief. The evidence does not prove the children were either exposed to “family violence” or subjected to sexual or physical “abuse”. Even if it did, there was no evidence to reasonably connect the children’s behaviour to the father’s violent or abusive conduct. Quite the opposite. The single expert and the Family Consultant both attributed the children’s chaotic behaviour, which occurred only in the presence of the mother, to the nature of their insecure or disorganised attachments with her.[44] Their opinions seem vindicated by the children thriving and behaving sensibly in all other aspects of their life, including at school.[45]
[44] Family Report, paras 118-119
[45] Family Report, para 106
The mother said the children referred to the father as “mean” in her presence,[46] but as the single expert explained during cross-examination, the children’s heightened anxiety when with the mother probably conditioned them to make statements to her which they perceived she would wish to hear. There is no doubt the mother was satisfied by the children’s reports which vindicated her belief in his violent behaviour. The mother made no secret of her feelings on the matter. She once caused the children to wear wristbands with a “say no to violence” slogan[47] and she admitted regularly recording her conversations with the children.[48] The children were therefore probably aware of the mother’s desire for them to make some form of disclosure to her about the father. Even as recently as January 2013, notwithstanding the scrutiny of professional supervision, the mother quizzed the youngest child about whether the father was “still hitting them”.[49] The children must have known what the mother wanted to hear from them.
[46] Family Report, para 33
[47] Family Report, para 58
[48] Family Report, paras 24, 35; Second single expert report, page 15
[49] Exhibit M5
As the single expert explained, it was “highly likely that [the eldest child] was under a lot of pressure from the mother to make reports and reflect the mother’s anxiety”.[50] I accept as correct the single expert’s opinion that the mother had no insight into how potentially damaging to the children her interrogation of them was.[51] There is little doubt such interrogation will continue if unchecked because the mother said in cross-examination “I’m obsessed with protecting my children every step of the way”.
[50] Second single expert report, page 16
[51] Second single expert report, pages 16, 17
The mother made allegations to a number of agencies and counsellors that the father sexually assaulted the youngest child, or that she at least suspected such abuse. She repeated those allegations to both the Family Consultant and single expert.[52] In cross-examination the mother denied she had made such reports, but I reject her denials as false. When pressed, the mother alleged she saw blood on the youngest child’s nappy while the father was changing her and she believed the blood was discharge from the child’s vagina as a result of her being digitally penetrated by the father.[53] She admitted that ever since she has believed the father sexually assaulted the youngest child.
[52] Family Report, paras 19, 24, 87; Exhibits ICL6, ICL7, ICL8
[53] Exhibit ICL2
The father denied the allegation and explained in both his affidavit[54] and during cross-examination how on that occasion, while having her nappy changed, the youngest child simply scratched her excoriated vulva and caused her skin to bleed.
[54] Father’s affidavit, para 30
That incident occurred in early March 2010, just prior to the parties’ separation. The mother took the child to a doctor’s appointment the next day, allegedly to report and investigate her concerns of sexual abuse, but the doctor’s notes from that consultation do not bear out the mother’s version. The doctor recommended only topical application of an ointment to treat the child’s excoriation.[55] It is inconceivable the mother would consult a doctor about alleged sexual abuse of a young child, causing injury, and it not be the subject of a single note in the doctor’s records. I do not accept that aspect of the mother’s evidence.
[55] Exhibits ICL1 and ICL2
The mother also openly made allegations that the father was, and is currently, physically violent towards the children and neglectful of their care.[56]
[56] Family Report, paras 19, 29, 35; Exhibits ICL6, ICL8
Despite her allegations of the father’s sexual and physical abuse of the children, somewhat surprisingly, she told the single expert in March 2013 that the worst thing that occurred between the children and the father was the father’s “emotional neglect”.[57] Such an answer implies the mother did not place strong emphasis on the allegations of sexual and physical abuse, which is difficult to fathom if her allegations were genuine.
[57] Second single expert report, page 9
I accept the father’s denials of the allegations of his abuse of the children, just as I accept his denials of family violence. Occasional corporal punishment of children, to which the father admitted, is not necessarily unlawful or abusive.[58]
[58] Father’s affidavit, paras 29, 298
Unhappily for the mother, the only risk of harm to the children is posed by her. That risk is mainly, but not wholly, attributable to her psychological instability. The mother has suffered recurrent psychological ill health over many years.
When aged only 19 years, in or about 1983, the mother made a suicide attempt. Apparently she then had intermittent suicidal ideation up until 2006.[59]
[59] First single expert report, page 4; Mother’s affidavit, Annexure D (page 083)
In October 2006 the mother suffered a “breakdown”, which resulted in her admission to a psychiatric facility for some five weeks, where she was treated for depression and suicidal ideation.[60]
[60] First single expert report, pages 3, 9; Family Report, para 109
In October 2007 the mother presented to the emergency department of a local hospital following an overdose. She was then diagnosed with depression, anxiety and acute adjustment disorder.[61]
[61] First single expert report, page 4
In June 2010 the mother attempted suicide. When she was found and revived she was admitted to a psychiatric facility as an involuntary patient for a week.[62]
[62] First single expert report, page 3; Mother’s affidavit, Annexure C (pages 062, 069)
The suicide attempt in June 2010 was not feigned to seek attention or cry for help. The mother clearly intended to end her life. It was planned several days before and the plan was executed with some precision.
In June 2010 the mother made an audio recording of her despair and her resolution to commit suicide. The recording disclosed she had also formed an intention to murder the children contemporaneously with her suicide,[63] but she subsequently dispensed with the idea of murdering the children and made a recording of that decision also.[64] Her denial to the treating psychiatrist of even contemplating the murder of the children was patently false.[65]
[63] First single expert report, page 4; Father’s affidavit, paras 13-14, Annexure PH-1
[64] Mother’s affidavit, para 7; Father’s affidavit, para 233
[65] Mother’s affidavit, Annexure C (page 063)
Two days later the mother attempted to poison herself with carbon monoxide while locked inside the garage of the former matrimonial home. The doors were deadlocked and police needed to smash windows to gain entry. The mother was unconscious and needed to be revived.[66] Shortly beforehand the mother emailed her sister with directions about the collection and care of the children, in expectation she would be deceased when the email was read.[67]
[66] First single expert report, page 5
[67] Exhibit ICL3
The mother considered her initial contemplation of the children’s murder to be inconsequential once she discarded the idea. On the contrary, notwithstanding the transience of her murderous intention, the fact she had the intention at all is extremely alarming. It is all the more alarming, as the single expert observed in cross-examination, that the mother now tries to dismiss the significance of that history.
The mother’s uncorroborated statement that she has had no other episodes of suicidal feelings since the incident in June 2010 is not particularly comforting.[68] She previously told Dr D in September 2010 she never thought her “suicide rumination” would get to the point it did,[69] so she is obviously capable of acting in ways she does not expect. Dr D was concerned about the mother’s capacity to recognise when she experiences tension and depression and an elevation in the risk of her self-harm.[70]
[68] Second single expert report, page 11
[69] Mother’s affidavit, Annexure D (page 083)
[70] Mother’s affidavit, Annexure D (page 087)
The mother privately consulted Dr D again more recently in February 2013 and he reported to her that an influential factor in the prediction of the likelihood of a person self-harming is a past pattern of such behaviour.[71]
[71] Mother’s affidavit, Annexure H (page 165)
According to the single expert’s evidence, the mother’s current condition is unchanged over time. The Family Consultant even considered that the mother was “deteriorating from a psychological perspective”.[72]
[72] Family Report, para 124
The single expert said in his report:[73]
…I believe that there is a high risk [the mother] could become overburdened and potentially suicidal. The threats of murder suicide I believe should be taken seriously.
[73] Second single expert report, page 18
The Family Consultant said in the Family Report:[74]
If [the mother] continues to deteriorate, she could quite possibly become suicidal again and this would increase the risk of harm to both the mother and to the children (on the basis that she has previously considered killing the children).
[74] Family Report, para 124
There is no room for doubt about the acuteness of the risk.
The single expert said he was “alarm[ed]” at the mother’s lack of insight and concerned she would become “extremely desperate”. He described her as a “significant and major risk” to the children.[75] In cross-examination he said she presents a “very high risk” to the children.
[75] Second single expert report, page 19
The Family Consultant quantified the risk as “serious”.[76]
[76] Family Report, para 127
The mother could hardly quarrel with their assessment because it mirrored concerns earlier reported by Dr D, who said following his consultation with her in September 2010:[77]
…it may not be in the children’s best interests to be faced with a mother who is psychologically vulnerable and emotional…
[77] Mother’s affidavit, Annexure D (page 088)
The mother poses an unacceptable risk of physical harm to the children, which is the most compelling consideration in the proceedings.
Children’s best interests – additional considerations (s 60CC(3), (4))
The Family Consultant and single expert both described the attachments between the children and the mother to be insecure or disorganised.[78]
[78] Family Report, para 22
As was explained by the Family Consultant, such impaired attachments are a matter of “serious concern” because of the short and long term implications for the psychological health of the children. In the short term, the children may become aligned with the mother and reject the father.[79] In the long term, children are at “substantially greater risk of developing adult relationships where intimacy, reciprocity and mutuality are compromised”.[80]
[79] Family Report, para 123
[80] Family Report, paras 22, 112, 115, 116, 120
The potentially harmful “enmeshment” of the children with the mother’s emotional state, as described by the Family Consultant,[81] or the “reverse parenting dynamic”, as described by the single expert,[82] is not merely theoretical. The mother conceded that the eldest child worries about her.[83] It is a matter of utmost concern that a child so young worries about his parent rather than himself. The eldest child’s state of anxiety has been aroused to the point that he divulged to his counsellor as recently as February 2013 that he was “only happy to see mum when someone was there to look after him”.[84]
[81] Family Report, paras 22, 120-123
[82] Second single expert report, page 17
[83] Family Report, para 36
[84] Exhibit ICL9
The children’s anxiety, and in particular that of the eldest child, is elevated at times they associate with the mother, which phenomenon was independently noticed by the father, the eldest child’s school principal, and the Family Consultant.[85] Other records perused by the Family Consultant, including the records of the NSW Department of Family and Community Services[86] and the records of the contact centre,[87] described similar uncontrolled behaviour by the children in the mother’s presence as she witnessed in her observation session.
[85] Family Report, paras 65, 66, 73, 98-106
[86] Family Report, para 108
[87] Exhibit M5
Apart from the risk of physical harm posed by the mother to the children, which has already been discussed, the single expert and Family Consultant were also concerned by the risk of psychological harm posed by the mother to the children. It is another compelling consideration in the proceedings.
The single expert described the risk as one in which the mother is actively attempting to alienate the children from the father.[88] The Family Consultant described the risk as one in which the mother was unable to regulate the children’s behaviour.[89] Both consequences are manifestations of the mother’s psychological condition and the children’s insecure or disorganised attachments to her. The Independent Children’s Lawyer submitted that the mother’s behaviour towards the children amounted to “systemic emotional abuse”, which may over-state the situation, but is nonetheless indicative of the extent of the problem from an impartial perspective.
[88] Second single expert report, page 18
[89] Family Report, para 127
The mother undoubtedly lacks insight into the nature of her psychological condition. Until the last moments of the hearing, the mother denied she had any personality disorder or any other species of psychological instability.
She told the Family Consultant her prior attempts to participate in Dialectical Behavioural Therapy (“DBT”), as recommended by the single expert,[90] were only to demonstrate her compliance with all recommendations, but were thwarted in any event because she has no condition which is amenable to correction by such therapy.[91]
[90] First single expert report, page 21
[91] Family Report, para 38
She told the single expert she tried to undertake DBT but her condition was not “bad enough” to warrant the treatment. She believed she was now emotionally stronger and did not need the treatment.[92] She repeatedly insisted, both to the single expert[93] and in evidence,[94] that she had never been formally diagnosed with Borderline Personality Disorder.
[92] Second single expert report, page 11
[93] Second single expert report, page 12
[94] Mother’s affidavit, paras 65-66, 72
She gave evidence of the same ilk during cross-examination. She said she did not intend to participate in any therapy proposed by either the single expert or the Family Consultant since she “emphatically” rejected their suggestions. She said she was “stable” and therapy was not required.
The mother belatedly conceded in final submissions that she needed to undertake therapy of the type recommended by the single expert, but her concession was probably disingenuous because she realised the tide of the evidence was running against her. When the mother was pressed, the thin veneer of her belated enlightenment was scratched. She believes her troubles are attributable to the father, not her. She resorted to her mantra of victimisation and said:
I know the truth. I know what happened behind closed doors…Hand on my heart. That was the truth.
Irrespective of the mother’s actual beliefs, she does have “significant personality problems”, which the single expert described as a “personality disorder with dependent and borderline features”. More importantly than the label attached to her condition, the mother’s disorder is a “significant problem” in terms of her ability to provide adequately for the children.[95] In cross-examination the single expert more stridently termed her condition as a “severe personality disturbance”, which deprived her of any insight into her limitations as a parent.
[95] Second single expert report, page 15
The mother tried to influence the evidence in the proceedings to portray circumstances consistently with her perception of events. The Family Consultant concluded the mother did so by dictating the circumstances under which the children were counselled by professionals selected by her.[96] Even the psychologist and psychiatrist privately selected by the mother for her consultation were guarded about her presentation and motivation.
[96] Family Report, para 87
Dr D observed in September 2010:[97]
She appears to be a woman who is somewhat unstable in her psychological state, and despite putting on a good face for my assessment seems emotionally brittle.
[97] Mother’s affidavit, Annexure D (page 086)
Dr F observed in February and March 2013:[98]
I have tried to get her [the mother] to see that courts will not just accept what she says, that she has to demonstrate over time that she is safe with the children and that she, over an extended period of time, does not develop any suicidal thoughts or make any suicide attempts…
It is really quite difficult to know how genuine she is and how accurate she is in her reporting…She asked to come back to me at monthly intervals and I suspect that’s more for the impression that will create in court.
[98] Exhibits ICL11, ICL12
The mother’s prior attempts at therapy enjoyed only ephemeral success. The mother participated in a “Brighter Futures” program in 2008 just prior to the youngest child’s birth in an effort to enhance her parenting capacity, but any gains she made were swiftly lost.[99] She also participated in residential counselling programs in January 2012 designed to address her trauma arising from domestic violence,[100] but clearly that was misguided and afforded her no tangible assistance. Nor have her past attendances on numerous psychologists and psychiatrists resulted in any concrete progress.
[99] Family Report, paras 69, 117
[100] Mother’s affidavit, paras 67-69
Presently, there is no evidentiary basis upon which to make parenting orders that achieve any outcome other than preservation of the physical and emotional safety of the children.
In discussions with the Family Consultant the eldest child implied that he would like to remain living with the father, but would like to spend more time with the mother.[101] The views of the children, to the extent that they may be discernable from the evidence, carry no weight. They are too young and do not have the emotional maturity to understand the implications of the views they do express. In addition, their views are liable to simply be reflections of the parties’ attitudes. The mother conceded to the Family Consultant that she discussed with the children the purpose of their visit to the Family Consultant.[102]
[101] Family Report, para 83
[102] Family Report, para 44
The children have appropriate interaction with members of the extended paternal and maternal families while living with the father.[103]
[103] Family Report, para 23
The mother repeatedly professed concern about the father’s use of illicit drugs and excessive use of alcohol.[104] The father admitted some occasional illicit drug use, which ceased years ago. His admission was consistent with the information he provided to the single expert in June 2011.[105] Other than the mother’s uncorroborated belief, there was no evidence at all of the father’s past or current excessive use of alcohol. The father expressed to the Family Consultant many months ago his willingness to participate in random drug and alcohol testing if ordered,[106] so he was inferentially confident any test would corroborate his evidence. Perhaps unsurprisingly then the mother did not ever seek such an interim order or even make a request of the father to undertake such a test. The evidence does not reasonably permit any inference that the father’s ingestion of drugs or alcohol presents any risk to the children, either by compromising him as a role model or by his intoxication precluding him from properly caring for them.
[104] Family Report, para 30
[105] First single expert report, page 7
[106] Family Report, para 63
Parenting orders
There are no findings of family violence or child abuse made against the father. The mother’s emotionally abusive behaviour towards the children is not “abuse” as relevantly defined for the purposes of these proceedings. Consequently, the presumption of equal shared parental responsibility applies (s 61DA(2)). However, I am satisfied the evidence proves that it would not be in the children’s best interests to allocate equal shared parental responsibility to the parties (s 61DA(4)).
The mother knows it is impossible to allocate equal shared parental responsibility for the children to her and the father because they cannot communicate effectively. She acknowledged that to the Family Consultant,[107] through the orders she proposed in her Amended Initiating Application, and through the orders she proposed orally in final submissions.
[107] Family Report, paras 19, 40, 48
The allocation of sole parental responsibility to the father was a point on which the parties, the Independent Children’s Lawyer, the single expert,[108] and the Family Consultant[109] all ultimately agreed.
[108] Second single expert report, page 19
[109] Family Report, para 125
It is unnecessary to follow the legislative path dictated by the Act (s 65DAA) when parental responsibility for the children is allocated solely to the father.
It was ultimately agreed the children should remain living with the father.
Even the issue about the circumstances under which the children would retain contact with the mother was substantially narrowed.
The single expert and Family Consultant both recommended that the children only spend time with the mother under supervised conditions at a contact centre, where their interaction could be strictly monitored.[110] They each suggested such interaction was designed only as “recognition style contact”,[111] and they each proposed it only occur four times per annum for only a couple of hours on each occasion.[112]
[110] Second single expert report, page 18; Family Report, para 127
[111] Second single expert report, page 18
[112] Second single expert report, page 19
The single expert recognised such a measure to be draconian but necessary. He and the Family Consultant thought it was the only pragmatic way to attenuate the risk presented by the mother to the children. I accept their evidence and orders are made to that effect. The mother’s wish to have six visits in lieu of four was for her benefit, not the children’s.
The only circumstances in which the single expert envisaged the mother could play a more prominent role in the children’s lives were if she undertook an “extensive rehabilitation process” which successfully achieved restructure of her personality. He considered that process would likely take at least two years, but implied pessimism about her chances of success.[113] In cross-examination he confirmed that the duration of the rehabilitative process would be measured in years rather than months. Even then, the prospects of its success depend upon the mother’s willingness to accept her shortcomings and engage with the therapy.
[113] Second single expert report, pages 19-20
So that the orders regulating the children’s personal interaction with the mother should not be frustrated, provision is made prohibiting the mother’s attendance at or near to the father’s residence and the children’s schools and pre-schools. Such an order reflects the desire of the eldest child’s school principal[114] and the Independent Children’s Lawyer.[115]
[114] Family Report, para 74
[115] Exhibit ICL10, Order 8
An order is made permitting the children to have limited telephone communication with the mother, despite the opposition of the Independent Children’s Lawyer. However, the order does not adopt the mother’s proposal of audio-visual communication by Skype. Without holding a strong view, the single expert considered there was a role for telephone communication, albeit brief, infrequent, and at routine times. He considered the children would want to be re-assured the mother was well and had not disappeared from their lives. I accept the veracity of that opinion. I accept the mother’s proposal that such communication can safely occur on a monthly basis. The proposal of the father was too frequent.[116]
[116] Exhibit F1, Order 7
An order is also made, consistently with the proposals of the mother and Independent Children’s Lawyer,[117] for her limited written communication with the children.
[117] Exhibit ICL10, Order 7
The children do obviously worry about the mother. For that reason the single expert believed the manner in which the orders are explained to the children will be important. I therefore adopt the proposal of the Independent Children’s Lawyer for the orders to be explained to the children by the Family Consultant.[118]
[118] Exhibit ICL10, Order 6
An order is made permitting the mother to procure the children’s school reports and school photographs. The children will not be disadvantaged in any way and the single expert considered that would be helpful to the mother.
The mother impressed upon the Court her wish for the children to have continuing counselling, but with counsellors other than those at ARAFMI. Perhaps her preference was for the counsellors to whom she took the children without the father’s knowledge,[119] but she did not specify the identity of the counsellors she proposed should take on the task. The Family Consultant was content with the counselling arranged by the father for the children to attend at ARAFMI, with which arrangement the father and Independent Children’s Lawyer are also content.[120] The evidence did not demand a contrary view.
[119] Family Report, paras 24, 34, 87
[120] Exhibit ICL10, Order 9
The remaining parenting orders could not be the subject of reasonable dispute.
Property settlement proceedings
The pool of property
The parties repeatedly failed to file a joint balance sheet setting out the matrimonial property, resources and superannuation interests.[121]
[121] Orders 6-8 made 8/5/12; Order 4 made 21/12/12; Notation G made 10/4/13
Consequently, the pool of property is established as a pastiche of admissions[122] and evidence from their financial statements, the father’s affidavit, and numerous exhibits.[123]
[122] Notation G made on 10 April 2013
[123] Exhibits F2, F4, F6, F7, F8, M1, M3, M4, M6, M7
I find the pool of property to be as follows:
Assets
Party
Value
Total
1
Matrimonial home
Joint
360,000
2
H Make car
H
11,000
3
Equipment, stock & trailer
H
10,000
4
Bendigo Bank acc
H
3,080
5
Furniture
H
2,000
6
Matrimonial home contents
Joint
10,000
7
ANZ Bank acc
W
156
8
ANZ Bank acc
W
nil
9
Mitsubishi car
W
1,000
10
Personal items
W
nil
11
Company G shares
H
1,440
12
AMP retirement savings
H
3,900
13
Company G retrenchment money
H
nil
14
Adelaide Bank acc
Joint
69
Sub-total
402,645
402,645
Liabilities
15
Adelaide Bank mortgage
Joint
281,541
16
Bankwest loan
H
25,018
17
Family loan
H
35,000
18
Jetstar mastercard
H
17,312
Sub-total
358,871
358,871
Net
43,774
Superannuation
19
J Super Fund
H
327,400
20
K Super Fund
W
4,500
Sub-total
331,900
331,900
Net assets and resources
375,674
Some items require individual explanation.
Item 1
The former matrimonial home was professionally valued at $360,000.[124] The mother cross-examined the expert witness about the valuation, but for no useful purpose. I accept his valuation as correct.
[124] Exhibit F4
Item 3
Although the parties agreed on the value of the father’s trailer at $2,000, the father admitted in his financial statement to having business stock and equipment, including the trailer, worth $10,000 collectively.
Item 10
The mother believed she had personal items stored at the former matrimonial home worth $10,000, which evidence the father flatly refuted. So much is evident from the parties’ individual balance sheets.[125] The mother adduced no evidence of their valuation. Nor was the issue raised in cross-examination or submissions. The Court is therefore left with no option, but to ignore the issue.
[125] Exhibits M1, F2
Item 11
No current evidence was adduced about the value of the father’s Company G shares, but in her balance sheet the mother admitted the value of $1,440 attributed to them by the father. That value is therefore adopted.
Item 13
The father was retrenched from his employment with Company G on 14 May 2012. At that time he received a redundancy payment of $167,244.[126] He did not depose to having those monies, or any portion thereof, currently saved in any investment or account. I therefore impute the monies were, at least in part, deposited to the credit of his superannuation interest. That would account for the escalation in the value of his superannuation from $287,750, as was disclosed in his financial statement through reliance upon historical documents, to $327,400, as recently disclosed by his superannuation fund trustee.
[126] Exhibit F8
Addbacks
The balance sheets filed by the parties indicate they intended to argue over a host of notional add-backs.[127] Not a single question was asked by one of the other in cross-examination about the add-backs and not a single submission was made about them. Consequently, the Court cannot be satisfied there should be any notional add-backs to the matrimonial pool on established principles (see Omacini v Omacini (2005) FLC 93-218; Chorn & Hopkins (2004) FLC 93-204).
[127] Exhibits F2, M1
The evidence adduced by the father in his affidavit[128] about the payments he voluntarily made at various times after separation does not of itself prove that any of those amounts ought be notionally added back to the matrimonial pool. Add-backs are an exception, not the rule. The father’s payment of debts and expenses is instead taken into account in the assessment of the parties’ respective contributions.
[128] Father’s affidavit, paras 204-205
Superannuation
The value of the father’s superannuation interest is proven by the information recently provided by the trustee of his superannuation fund.[129]
[129] Exhibit M3
The value of the mother’s superannuation interest is proven by the admission contained within her financial statement.
The Court is generally exhorted to assess the parties’ contributions to superannuation entitlements separately, but that need not necessarily be the case (see Marriage of Coghlan (2005) 33 Fam LR 414 at 428-429). The parties’ superannuation interests should be treated separately in this case. Firstly, the father began accumulating his superannuation interest with J Super Fund in February 1997,[130] which is five years before the parties began their cohabitation. Secondly, the father continued to contribute to his superannuation entitlements until his retrenchment in May 2012, being nearly two years after he assumed sole care of the children and the household.
[130] Father’s affidavit, para 56
Assessment of contributions
The parties’ contribution-based entitlements to the matrimonial pool are assessed by reference to the criteria stipulated by ss 79(4)(a)-(c) of the Act.
At the commencement of the parties’ cohabitation in February 2002 the father had assets with a net value of approximately $78,000. He also had accumulated superannuation entitlements, the value of which is unknown.[131] By that time he had been incrementally accumulating superannuation with J super Fund for not less than five years.
[131] Father’s affidavit, paras 38-39
By comparison, the mother owned a car of negligible value and was indebted to her bank for $35,000.[132] Within months of their cohabitation the father extended the mortgage over his Sydney apartment to discharge the mother’s debt.[133]
[132] Father’s affidavit, para 43
[133] Father’s affidavit, paras 40, 44, 48
In 2007 the father sold his apartment and the net proceeds of sale were used to partly fund the purchase of the former matrimonial home on the Central Coast.[134]
[134] Father’s affidavit, paras 41-42
The father was employed by Company G throughout the relationship and was ultimately retrenched in May 2012, over two years after separation.[135]
[135] Father’s affidavit, para 45
The father accumulated superannuation entitlements with J Super Fund between 1997 and 2012, a period of 15 years. The parties cohabited for eight of those years. The mother therefore indirectly contributed to the father’s accumulation of those entitlements for little more than half the time.
The mother was either employed or self-employed sporadically throughout the relationship. She tried to start her own business, which met with limited success, and was otherwise employed in various hospitality and clerical roles.[136]
[136] Father’s affidavit, paras 46, 60, 65, 66, 80, 81
In addition, the mother assumed responsibility for the management of the parties’ financial affairs.[137] Although the parties argued over their financial affairs and the mother’s management of them, the father seemingly acquiesced to the mother’s continued control of their finances.
[137] Father’s affidavit, paras 61-62
The mother was principally responsible for the care and supervision of the children, who were born in 2003 and 2008, but the father also attended to domestic duties and the care and supervision of the children throughout the relationship.[138] No doubt the extent of the father’s contributions around the home and in respect of the children spiked at times when the mother periodically experienced emotional ill health.
[138] Father’s affidavit, para 34
Upon separation in March 2010 the children remained in the primary care of the mother and the father vacated the former matrimonial home. That situation prevailed for only three months.
When the mother was admitted to hospital in June 2010 following her suicide attempt the father assumed full-time care of the children, which he has never relinquished. That arrangement has now prevailed for nearly three years. The parties’ cohabitation only lasted eight years in all.
Once the father resumed occupation of the former matrimonial home with the children it was necessary for him to rectify outstanding debts in the nature of mortgage arrears, council rates, water rates, and electricity bill, totalling approximately $5,000.[139]
[139] Father’s affidavit, paras 53-55
The financial burden of maintaining the children has fallen almost exclusively upon the father since June 2010. The mother has only ever paid minimal amounts of child support. Her present child support payments are only $15 per week pursuant to assessment.[140] The mother is currently in arrears with child support payments and the debt currently stands at $1,150.[141] The mother said she is actually taking steps to try and extinguish or lessen the debt by re-assessment.
[140] Mother’s financial statement, para G3
[141] Exhibit F5
The parties’ contributions during their cohabitation were relatively equal. They both devoted their available time to the derivation of income, the performance of domestic duties, the management of household affairs, and the care and supervision of the children. Their financial and emotional advancement as a family during cohabitation was a joint effort.
The father’s overall contributions were however superior. He made a significantly greater initial contribution of assets at the commencement of cohabitation. He has also borne the principal burden, both financial and physical, of maintaining the children since separation.
I assess the father’s entitlement to the matrimonial pool at 60 per cent and the mother’s entitlement at 40 per cent. A differential of 20 per cent is an appropriate distinction between their overall contributions.
Adjustment of interests
The Court must next identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), and s 75(2) of the Act to determine the adjustment, if any, that should be made to the contribution based entitlements of the parties.
Both parties are of comparable age. The evidence suggests they each have satisfactory physical health. The mother railed against any suggestion that her psychological health is fragile, but it undoubtedly is.
Neither party presently cohabits with another adult.
The mother is employed, but only on a part-time basis. Her employment history suggests it is improbable she will ever secure highly remunerative employment. Most likely her employment will be transient, often part-time, generating very modest income. The mother’s earning capacity has not been impinged by the support she afforded the father during cohabitation or the time she devoted to the care of the children.
The father’s retrenchment in May 2012 motivated him to become self-employed in his own cleaning business. He disclosed only very modest income in his financial statement. Since the children will continue to live with him and see the mother only infrequently, his commitment to their care and supervision will make it difficult for him to earn significant income in the foreseeable future. He and the children are also likely to enjoy only a modest lifestyle.
The meagre amount of child support paid by the mother to the father over the past three years is a fairly reliable basis for prediction that the father will continue to bear the principal financial burden of raising the children for the remainder of their minority. For the eldest child that will be a period of nine years and for the younger child a period of 14 years. Neither party has an obligation to support any person other than the children.
The future financial burden of maintaining the children is the solitary factor that warrants an adjustment of the parties’ contribution based entitlements. The adjustment should be in the father’s favour and measured at 25 per cent. That may seem a large percentage adjustment, but calculated on the entirety of the pool it amounts to less than $94,000. That is hardly an extravagant sum to help maintain the children for the duration of their minority in the absence of meaningful child support from the mother.
Property settlement orders
The father’s overall entitlement to the pool is therefore measured at 85 per cent and the mother’s at 15 per cent.
The total net value of the parties’ assets and superannuation interests is $375,674, of which 85 per cent equates to $319,323 and 15 per cent equates to $56,351.
Presently the mother retains assets (items 7, 8, 9) and a superannuation interest (item 20), which are collectively worth $5,656. In order for her to obtain her full entitlement the father needs to transfer to her funds or assets worth an extra $50,695 ($5,656 + $50,695 = $56,351).
Neither party sought superannuation splitting orders and so the trustee of J Super Fund would be denied procedural fairness, contrary to the requirements of the Act (s 90MZD) and Family Law Rules 2004 (Cth) (r 14.06), if splitting orders were now made by the Court of its own volition. There is little option but to allow the parties to retain their own superannuation interests.
The consequence of the father retaining his superannuation interest is that the bulk of his entitlement must rest in that superannuation interest, which will not be available to him for use, other than in the case of manifest hardship, until his retirement. He will have little or no equity in alienable assets.
The father wishes to retain the former matrimonial home, but he realised the parties’ financial position may not permit such an outcome. The father may have access to funds of family members and friends that will enable him to pay out the mother’s interest and thereby keep the former matrimonial home. If he does not, and cannot extend the mortgage for that purpose, then it will be necessary for the former matrimonial home to be sold for the mother to be paid her proper entitlement.
Orders that achieve such an outcome are just and equitable.
I certify that the preceding one hundred and seventy-eight (178) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 30 May 2013.
Associate:
Date: 30 May 2013
Notation C made on 12 December 2012
First single expert report, page 18; Mother’s affidavit, Annexure D (page 086)
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Family Law
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Property Law
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Injunction
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Procedural Fairness
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