Neaves & Neaves
[2022] FedCFamC2F 1576
Federal Circuit and Family Court of Australia
(DIVISION 2)
Neaves & Neaves [2022] FedCFamC2F 1576
File number(s): MLC 2837 of 2021 Judgment of: JUDGE BURT Date of judgment: 17 November 2022 Catchwords: FAMILY LAW – Parenting – two year old child diagnosed with global development delays – applicant having transitioned from male to female during the course of the respondent’s pregnancy – mutual allegations of family violence – no time between the applicant and child until the child was 18 months old – allegations of excessive alcohol consumption – respondent experiencing various health conditions – parental names to be used by the child.
FAMILY LAW – Property – modest asset pool – only significant asset being superannuation – spousal maintenance sought on a final basis.
Legislation: Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 4AB(1), 60B, 60CC, 65DAA, 72(1), 74(1), 75(2), 79, 80
Cases cited: Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232
Aleksovski v Aleksovski (1996) 135 FLR 131; (1996) 20 Fam LR 894; (1996) FLC 92-705; [1996] FamCA 111
Bevan and Bevan (1993) 120 FLR 283; (1993) 19 Fam LR 35; (1995) FLC 92-600; [1993] FamCA 95
Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387; [2013] FamCAFC 116
Bishop & Bishop (2013) FLC 93-553; [2013] FamCAFC 138
C & C (2005) 193 FLR 9; (2005) 33 Fam LR 414; (2005) FLC 93-220; [2005] FamCA 429
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Dovgan & Dovgan [2021] FamCA 306
Hall & Hall (2016) 257 CLR 490; (2016) 332 ALR 1; (2016) 90 ALJR 695; (2016) 54 Fam LR 631; (2016) FLC 93-709; [2016] HCA 23
Masson v Parsons (2019) 266 CLR 554; (2019) 368 ALR 583; (2019) 59 Fam LR 503; [2019] HCA 21
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall v Clark (2009) 41 Fam LR 483; (2009) FLC 93-405; [2009] FamCAFC 92
MRR v GR (2010) 240 CLR 461; (2010) 263 ALR 368; (2010) 84 ALJR 220; (2010) 42 Fam LR 531; (2010) FLC 93-424; [2010] HCA 4
Palumbo & Mandel (2019) FLC 93-929; [2019] FamCAFC 228
Stanford v Stanford (2012) 247 CLR 108; (2012) 293 ALR 70; (2012) 87 ALJR 74; (2012) 47 Fam LR 481; (2012) FLC 93-518; [2012] HCA 52
Varnham & Moses [2020] FamCA 83
Waterford & Waterford [2013] FamCA 33
Division: Division 2 Family Law Number of paragraphs: 281 Date of hearing: 10, 11 and 12 August 2022 Place: Melbourne Counsel for the Applicant: Mr Horsfall Solicitor for the Applicant: Pentana Stanton Lawyers Counsel for the Respondent: Ms Johnson Solicitor for the Respondent: Victoria Legal Aid Counsel for the Independent Children's Lawyer: Ms Matson Solicitor for the Independent Children's Lawyer: Schetzer Papaleo Family Lawyers ORDERS
MLC 2837 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS NEAVES
Applicant
AND: MS B NEAVES
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BURT
DATE OF ORDER:
17 November 2022
Parenting
the court orders by consent that:
1.All previous parenting orders be discharged.
the court orders that:
Parental Responsibility
2.The parties have equal shared parental responsibility for X born in 2019 (“the child”).
3.The Applicant do all things required to
(a)attend an appointment with the child and each of the child’s speech pathologist Ms C and his physiotherapist Ms D;
(b)add her name to the child’s NDIS plan and consulting with the NDIS consultant Ms E;
(c)obtain a letter from each of the child’s speech pathologist, physiotherapist and the NDIS consultant stating that they are confident as to the Applicant’s understanding of the child’s condition of developmental delay, how it affects the child and how to appropriately manage the condition;
(d)provide a copy of the letters to the Respondent.
4.The parties do all things required to apply to F Services for the purpose of the Applicant and X engaging with F Services “parent-child communication and play program” and complete the program (provided that X is accepted by the program).
the court orders by consent that:
5.The child live with the Respondent.
the court orders that:
The child’s time with the parents during school term
6.Pending the compliance of the parties with orders 3 and 4 herein, the child spend time with the Applicant each Saturday from 9.30am to 6pm.
7.Upon the compliance of the parties with orders 3 and 4 herein and in any event no sooner than 1 January 2023 the child spend time with the Applicant each alternate weekend as follows:
(a)For the first eight weeks, commencing each alternate Saturday at 9.30am and finishing at 11am on Sunday;
(b)For the next eight weeks, commencing each alternate Saturday at 9.30am and finishing at 1pm on Sunday;
(c)Thereafter commencing each alternate Saturday at 9.30am and finishing at 4.30pm on Sunday.
8.On a date not before 1 January 2024 and not later than 1 October 2024, such date to be agreed between the parties and determined in conjunction with, and having regard to the opinions and advice of the child’s treating practitioners (‘the date’) the child spend time with the Applicant each alternate weekend from the conclusion of childcare/kindergarten/school (or 3.30pm on a non-childcare/kinder/school day) on Friday until 4.30pm on Sunday.
9.If the parties are unable to reach agreement as to the date:
(a)the parties shall consider the appointment of a family consultant for the purpose of providing opinion as to the increase, and in the case of such appointment, the parties shall do all things necessary to obtain up to date reports from the child’s treating practitioners and provide copies of same to the consultant; and
(b)there be liberty to apply to both parties in respect of the date.
The child’s time with the parents during school holidays
10.Once the child commences to spend two consecutive nights with the applicant pursuant to order 8 herein, the child spend additional time with the Applicant during the Victorian gazetted school holidays to take place as agreed between the parties save that that time shall not form a block with the weekend time pursuant to order 8, and in default of agreement as follows:
(a)during the school years of 2024 and 2025, one additional night of time;
(b)from the start of Term 1 in 2026 and thereafter, two additional nights of time;
11.For the purposes of the preceding paragraph, the parties shall do all things necessary to consult with the child’s treating practitioners and obtain their opinion/advice in respect of the appropriateness of X’s time with the applicant increasing during the school holidays.
Special occasions
12.Notwithstanding any other orders and if the child is not otherwise in the care of the parties, he spend time with each of them on the following special occasions:
(a)with the Applicant on Mother's Day in 2023 and each alternate year thereafter from 4pm the night prior to 4pm on Mother's Day;
(b)with the Respondent on Mother's Day in 2024 and each alternate year thereafter from 4pm the night prior to 4pm on Mother's Day;
(c)for Christmas as agreed between the parties and in default of agreement
(i)with the Respondent from 4 pm on Christmas Eve until 10 am on Boxing Day; and
(ii)with the Applicant from 10 am on Boxing Day until 4pm on 27 December.
the court orders by consent that:
Miscellaneous spend time orders
13.Prior to the Applicant’s overnight time with the child commencing, the Applicant shall provide to the Respondent evidence that the child has his own bed and bedroom.
14.In the event that either parent has a housemate, that parent will notify the other in writing of the name of the housemate.
15.The Applicant’s parents be at liberty to spend time with the child during the periods the child spends with the Applicant.
16.The parents shall ensure that the child is provided with his own clothing and supplies during spend time for the child and ensure that any of the items sent by either parent with the child at changeover are returned to that parent at the conclusion of time.
the court orders that:
Changeover
17.Changeover shall take place
(a)whenever practicable, at the child’s childcare, kindergarten or school; or
(b)otherwise as agreed between the parties and in default of agreement outside the home of the Respondent’s grandmother in Suburb G, Victoria, such address to be disclosed by the Respondent to the Applicant forthwith.
the court orders by consent that:
18.In the event that either parent is running late to changeover, she shall notify the other parent in writing via AppClose as soon as practicable and provide an estimated arrival time.
The court orders that:
Communication with the child
19.The Applicant be permitted to communicate with the child by telephone/FaceTime/Skype each Wednesday as follows:
(a)the Applicant shall initiate the communication between 6pm and 6.15pm;
(b)the Respondent shall facilitate the communication by answering the call and telling the child that the Applicant is on the phone.
the court orders by consent that:
Communication between the parties
20.The parties shall communicate with each other in writing via AppClose or other agreed app for the purposes of communicating in relation to the child’s care and welfare, unless in the case of an emergency, in which case the parents shall communicate by text message.
Medical
21.The Respondent shall provide the Applicant with the name and contact details of all treating practitioners engaged to treat the child within 24 hours of such treating practitioners being engaged.
the court orders that:
22.For the purposes of ensuring that the Applicant is aware of the child’s attendances upon medical professionals, the Respondent shall (by way of the agreed communication app)
(a)notify the Applicant of the details of the child’s appointment within 48 hours of such appointment; and
(b)provide an overview of the treatment provided and whether any recommendations were made in respect of the child.
The court orders by consent that:
23.The Respondent shall forthwith provide a copy of these orders to the child’s treating practitioners (and provide a copy of the orders to any health professionals appointed to treat the child in future).
24.A copy of these orders shall act as authority for both parents to engage, communicate with and receive information from the child’s treating practitioners.
25.Each parent shall as soon as practicable notify the other in the event the child suffers any serious illness or injury requiring urgent or emergency treatment whilst in their care, and provide to the other parent the particulars or such illness or injury, and any treatment being provided to the child, together with the name and contact details of the treatment provider.
the court orders that:
Parenting program
26.Within 14 days of the date of the orders, the parents do all things and sign all documents necessary to enrol in the Parenting Orders Program, and thereafter complete same and provide a certificate of completion to the other parent.
Alcohol
27.The Applicant is restrained by injunction from drinking alcohol to excess during the 24 hours prior to, and during her time with the child.
New partners
28.In the event that either party re-partners, such new partner shall be introduced to the child on a gradual basis and the party who has re-partnered shall notify the other in writing.
How the Applicant is to be referred to
29.The Respondent shall refer to the Applicant as “Ms Neaves” when addressing the child, and the Applicant be at liberty to refer to herself when addressing the child as “Mummy Ms Neaves”.
the court orders by consent that:
Other
30.The parents shall each be at liberty to:
(a)communicate with and receive information from any kindergarten, childcare or school at which the child attends;
(b)obtain a copy of all reports, notices, newsletters, photograph order forms or other documents ordinarily provided to parents by any kindergarten, childcare or school at which the child attends
31.The parents be at liberty to provide a copy of these orders to any kindergarten, childcare or school at which the child attends.
32.The parents are both restrained, by themselves and/or their servants or agents, from:
(a)perpetrating family violence against the child or exposing him to family violence in any form;
(b)denigrating, insulting or undermining the other parent in the presence and/or hearing of the child or permitting another to do so; and/or
(c)discussing these parenting proceedings with or in the presence and/or hearing of the child or allowing anyone else to do so.
33.The independent children’s lawyer be discharged.
34.All extant parenting applications be otherwise dismissed.
35.Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
Property
the court orders that:
Adjournment
36.The matter be adjourned to 2 December 2022 at 9.30am for directions hearing.
Spousal maintenance
37.By way of periodic spousal maintenance and until 31 December 2024, the Applicant pay $200 per week to the Respondent, with the first payment to be made no later than 14 days from the date of these Orders.
38.All extant spousal maintenance applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Judgment with respect to any extant property application remains reserved.
B.The purpose of the adjournment is to enable procedural fairness to be afforded to the superannuation trustee.
C.Should procedural fairness be afforded and correspondence confirming same be provided to chambers prior the adjourned date, final property orders may be made in chambers.
D.Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of these orders are set out in Attachment A.
E.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Neaves & Neaves has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURT:
Introduction
These proceedings concern the parenting arrangements for X who was born in 2019 and is aged three years old. The parties were in a relationship for about eight years and separated just before X was born. They are unable to agree when and how his time with the applicant should progress to overnight time, or as to parental responsibility.
The parties are also in dispute as to the amount of the applicant’s superannuation which should be received by the respondent, and whether the applicant should pay spousal maintenance to the respondent. There are no significant assets other than superannuation to be divided between them.
Background and procedural history
The applicant, Ms Neaves, was born in 1981 and is aged 41. She has suffered from depression and anxiety and has previously sought psychological treatment. She says that she is currently managing her depression and anxiety well.
The respondent, Ms B Neaves, was born in 1981 and is aged 41. She suffers from chronic fatigue and type 2 diabetes as well as a number of medical conditions. She has also experienced mild depression and anxiety but says she is currently managing her symptoms without counselling.
The respondent says that she lives about two and a half hours’ drive away from the applicant but has not wished to disclose her address, or the suburb in which she lives to the applicant. As a result, it was difficult to assess the practicability of the parties’ competing proposals for the location for changeover.
X has been diagnosed with Global Developmental Delay. He has difficulties with motor skills and despite eating well is small for his age. He walks with the assistance of a walker. As a result of nerve damage to the right side of his face, his speech development has been affected. He is not currently attending childcare.
The parties began a relationship in either 2010, according to the applicant, or 2011, according to the respondent. At that time the applicant was known as a male person by the name of Mr H. The parties married in 2012 and began living together following their marriage.
During the marriage the applicant worked full time as a IT professional. Her daughter from a previous relationship, J (now aged 17), spent time with the parties, generally on alternate weekends. The applicant deposes in her affidavit of 16 March 2021 that she has a positive relationship with J. When cross-examined at trial, she said that J is now living with her mother in Queensland and conceded that she does not at present have a relationship with her.
The respondent alleges and the applicant denies that the applicant perpetrated physical, psychological and financial family violence during the marriage.
In about 2017, the applicant told the respondent that she was transgender. The applicant subsequently indicated that she wished to start hormone therapy as a step towards gender reassignment. The respondent says that the applicant agreed to delay the start of treatment until they had conceived a child together.
The respondent says that she ended the relationship after an incident of family violence which occurred in mid-October 2019. The applicant says that the end of the relationship came as a surprise to her. The respondent left the former family home and moved into alternative accommodation.
X was born somewhat prematurely in 2019 and spent five days in intensive care.
The applicant attended at the hospital where X was born in 2019. The respondent deposes that the hospital staff called the police who then interviewed the respondent. The police officers then issued a Family Violence Safety Notice against the applicant which listed the respondent and X as affected family members.
It appears that there was at least one report to the Department of Health & Human Services, as the Department of Families, Fairness and Housing then was (“the Department”) during late 2019 as a result of which the respondent was interviewed twice by protective workers. On 8 January 2020, the Department prepared a Case Plan which stated that it had substantiated concerns that X had been subjected to emotional harm caused by the applicant. The report notes that the maternal health nurse had no concerns for X’s safety and wellbeing in the care of the respondent.
On 14 January 2020 there was a mention hearing in the City K Magistrates’ Court at which a final intervention order was made for a period of 12 months, naming the respondent and X as the protected persons, with the consent of the applicant but without admission.
The respondent says that she did not permit X to spend time with the applicant during his early months due to concerns about family violence.
The parties attended mediation via Victoria Legal Aid’s Family Dispute Resolution Service on two occasions, namely 6 August 2020 and 2 December 2020, but were unable to reach agreement about parenting arrangements for X.
On 6 January 2021, the respondent applied to extend the final intervention order on the basis of alleged breaches by the applicant. On the same day, the respondent was granted an interim intervention order.
The intervention order proceedings were listed for a directions hearing in the City K Magistrates’ Court on 17 September 2021. On that date, the respondent’s application was struck out as she had failed to file Further and Better Particulars.
On 16 March 2021, the applicant filed an Initiating Application in this court seeking parenting orders. The respondent filed her material on 6 May 2021.
In about May 2021, X was approved for National Disability Insurance Scheme (“NDIS”) funding which covers the cost of his attendance upon specialists, including a paediatrician, speech pathologist, physiotherapist and occupational therapist.
On 12 May 2021, Registrar L made orders which provided for X to live with the respondent and spend supervised time with the applicant from 10am until 12 noon each Saturday. Those orders also required the respondent to undertake hair follicle testing in respect of alcohol use, both parties to attend a post separation parenting program and the respondent to ensure that the applicant was listed as a parent on X’s NDIS case plan.
On 20 May 2021, X, being 18 months old at the time, began to spend supervised time with the applicant, supervised by M Family Services. Fifteen sessions of supervised time took place.
On 31 May 2021, the respondent’s lawyer provided the applicant’s lawyer with instructions explaining how the applicant could become listed as a parent on X’s NDIS case plan.
On 17 June 2021, the applicant’s solicitor circulated to the parties her hair follicle test results which did not indicate excessive alcohol consumption.
On 5 August 2021, a Conciliation Conference took place but the matter did not resolve. Registrar N ordered both parents to undergo psychological assessments.
In about October 2021, the parties started using AppClose, a communication ‘app’ proposed by the applicant.
On 14 October 2021, there was an interim defended hearing at which Senior Judicial Registrar L made orders by consent providing that supervision no longer be required, that X’s time with the applicant gradually increase to 9am to 6pm, stipulating that all changeovers take place at Suburb O Community Centre and providing for time on his birthday. The applicant was also ordered to pay the respondent the sum of $12,800, to be characterised at trial, and to be paid in instalments over the next 12 months.
The first unsupervised visit was due to take place on 16 October 2021. The respondent says that she mistakenly believed that there was due to be one further supervised visit and that she did not hand X over to the applicant because the supervisor was not present.
A Compliance and Readiness Hearing took place before Deputy Chief Judge McClelland McClelland on 30 November 2021. The matter was listed for trial on 10 August 2022 and trial directions were made.
In May 2022, the respondent moved to her current address. She deposes that as a result of the move, she now lives about 25-30 minutes further away from Town P, where the applicant lives.
The parties and the independent children’s lawyer attended a further Family Dispute Resolution Conference on 25 July 2022. The matter did not resolve.
The trial took place on 10, 11 and 12 August 2022 before me.
On the morning of 10 August 2022, Counsel for the applicant indicated that both he and his instructors had been instructed at very short notice. It appeared that the order of 30 November 2021 pursuant to s.102NA of the Family Law Act (‘the Act’) had not been referred to Victoria Legal Aid until 4 August 2022. Counsel for the applicant wished to adduce updating evidence from the applicant as her most recent affidavit had been filed on 13 October 2021. He indicated that in the alternative, he would have to seek an adjournment.
Having heard submissions from the applicant’s Counsel and with the consent of the other parties, I gave permission for the applicant to rely on her affidavits filed on 16 March 2021 and 13 October 2021 and to adduce updating evidence in the form of a written statement. That statement was dated 11 August 2022 and was tendered by Counsel for the applicant as exhibit “A-1”.
material relied upon
In her outline of case filed on 9 August 2022, the applicant said that she relied upon:
(a)her amended initiating application filed on 27 July 2022;
(b)her affidavit filed on 16 March 2021;
(c)the affidavit of Ms Q, psychologist, filed on 4 August 2021, annexing the child inclusive conference memorandum dated 8 July 2021;
(d)her affidavit filed on 13 October 2021;
(e)the affidavit of Ms R, psychologist, filed on 13 October 2021, annexing the psychological report of the respondent dated 7 October 2021
(f)the family report prepared by Ms S, regulation 7 family consultant, dated 17 June 2022;
(g)the affidavit of Ms T, professional contact supervisor, filed on 4 August 2021;
(h)her financial statement filed on 9 August 2022; and
(i)the affidavit of Ms D, senior paediatric physiotherapist, filed on 9 August 2022.
As indicated previously, the applicant further relied upon her written statement dated 11 August 2022 and tendered as exhibit “A-1”.
In her outline of case filed on 9 August 2022, the respondent said that she relied upon:
(a)her further amended response filed on 27 July 2022;
(b)her affidavit filed on 27 July 2022;
(c)her financial statement filed on 27 July 2022;
(d)the affidavit of Ms Q, psychologist, filed on 4 August 2021, annexing the child inclusive conference memorandum dated 8 July 2021;
(e)the affidavit of Ms R, psychologist, filed on 13 October 2021, annexing the psychological report of the respondent dated 7 October 2021
(f)her affidavit filed on 13 October 2021, annexing the psychological report prepared by Ms R of the applicant dated 8 October 2021;
(g)the affidavit of Ms T, professional contact supervisor, filed on 4 August 2021; and
(h)the family report prepared by Ms S, regulation 7 family consultant, dated 17 June 2022.
At the hearing on 11 August 2022, the respondent further sought to rely upon the affidavit of Ms D, senior paediatric physiotherapist, filed on 9 August 2022.
In his outline of case filed on 8 August 2022, the independent children’s lawyer said that he relied upon:
(a)the response prepared by the Department dated 12 May 2021;
(b)the affidavit of Ms Q, psychologist, filed on 4 August 2021, annexing the child inclusive conference memorandum dated 8 July 2021;
(c)the affidavit of Ms R, psychologist, filed on 13 October 2021, annexing the psychological report of the respondent dated 7 October 2021;
(d)the respondent’s affidavit filed on 13 October 2021, annexing the psychological report prepared by Ms R of the applicant dated 8 October 2021; and
(e)the family report prepared by Ms S, regulation 7 family consultant, dated 17 June 2022.
the parties’ positions - PARENTING
At the commencement of day two of the trial, Counsel provided the court with a joint minute setting out the issues in respect of which there was agreement, and consolidating the orders requiring determination.
All parties agree that before X begins to spend overnight time with the applicant, she should meet with his treating physiotherapist, Ms D, and his speech pathologist, Ms C, as well as adding her name to his NDIS plan and meeting with Ms V, X’s NDIS consultant (collectively, “X’s health professionals”). It is also agreed that the applicant and X shall engage with a parent-child communication and play program operated by F Services and, if accepted, complete that program.
It is agreed that once the applicant confirms compliance with those conditions and no earlier than January 2023, overnight time shall start.
The applicant’s proposals - parenting
The applicant seeks equal shared parental responsibility and is supported by the independent children’s lawyer in this proposal.
The applicant proposed initially that overnight time should take place on alternate weekends from 9am on Saturday until 6pm on Sunday, and that from the start of 2024, time should take place from the end of childcare or school on Friday until 6pm on Sunday. In his closing submissions, Counsel for the applicant confirmed that the applicant supported the independent children’s lawyer’s proposal for the gradual increase of overnight time.
During school holidays and once X is spending two nights with the applicant, she proposes that he should spend an additional two nights with her during each school holiday. She proposes that those two nights should not be consecutive with the alternate weekend time ‘until X is settled’. She proposes that consideration should be given to X spending time with her for one week during the school term holidays and two weeks in the long summer holidays commencing December school holidays 2025.
The applicant seeks an order that she communicate with X by telephone or video each Wednesday evening. The independent children’s lawyer supports this proposal.
The applicant proposes that X should spend Mother’s Day with her every second year. For Christmas, she proposes that he spend time with her from 12 noon on Christmas Eve until 12 noon on Boxing Day in even-numbered years and with the respondent in odd-numbered years.
The applicant, supported by the independent children’s lawyer, proposed that she be restrained by injunction from drinking alcohol to excess during the 24 hours prior to, and during her time with X.
The applicant, supported by the independent children’s lawyer, seeks an order that in the event that either party re-partners, such new partner shall be introduced to X on a gradual basis and the party who has re-partnered shall notify the other in writing.
She seeks permission to refer to herself as “mummy Ms Neaves” to and in relation to X, and that the respondent be ordered to refer to her as ‘Ms Neaves’ when addressing X. The independent children’s lawyer supports this proposal.
She seeks an order that X’s birth certificate be amended to refer to her as his mother.
The respondent’s proposals - parenting
The respondent seeks sole parental responsibility for X, and proposes that in respect of any long-term decisions relating to his religion, education, ideology, and health she will consult with the applicant and consider her views prior to making a decision. She proposes that the time currently taking place on Saturdays should begin at 9:30am rather than 9am.
The respondent proposes that when overnight time starts it should take place from 9:30am on Saturday until 11am on Sunday. She proposes that it increase to two nights only after X turns five, and subject to a report from Ms D confirming that X is ready to spend a second night with the applicant.
The respondent proposes that additional school holiday time should not start until the end of term two in 2026, and that the additional two nights to be spent with the applicant during each school holiday should not form a block with the alternate weekend time.
The respondent proposes that X should spend Mother’s Day each year with her. She also proposes that X should spend time with her from 4pm on Christmas Eve until 10am on Boxing Day each year, and that he should spend time with the applicant each year from 10am on Boxing Day until 10am on 27 December.
At the start of the trial, the respondent proposed that all changeovers not taking place at childcare or school should be at Suburb O Community Centre. On the third day of the trial, she altered this proposal to suggest that changeovers not taking place at childcare or school should be at her grandmother’s home in Suburb G.
The respondent seeks an order restraining the applicant from drinking any alcohol during the 24 hours prior to, and during her time with X. She also seeks orders for the applicant to undergo hair follicle testing every six months until July 2024.
In addition to the order proposed by the applicant in relation to new partners, the respondent seeks an order that the party who has re-partnered supply a police check to the other party in relation to the new partner. She seeks an order that the applicant be restrained from referring to herself as “mother” or any of its derivatives in relation to X. She also seeks orders restraining the applicant from cutting X’s hair or coming within 100 metres of her home.
The respondent seeks orders that if the applicant is unable to care for X during his time with her, that the applicant should notify her and she should have the first option to care for him. In addition, she seeks an order that the applicant pay one half of any ‘gap’ fees relating to X’s attendance upon a counsellor or psychologist.
The independent children’s lawyer’s proposals
The independent children’s lawyer set out his proposed final orders in a minute supplied by Counsel at the time of closing submissions.
The independent children’s lawyer proposes that overnight time should commence in January 2023, subject to the applicant liaising with X’s health professionals, commencing each alternate Saturday at 9.30am and finishing as follows:
(a)for the first two months, finishing at 11am on Sunday;
(b)for the following two months, finishing at 1pm on Sunday; and
(c)thereafter, finishing at 4.30pm on Sunday.
The independent children’s lawyer suggests that alternate weekend time should increase to two nights not before June 2023 and subject to both parties consulting with X’s treating practitioners, with the parties to consider the appointment of a family consultant to provide an opinion as to the proposed increase. The independent children’s lawyer proposes that once X is spending two consecutive nights with the applicant, consideration should be given to him spending an additional two nights with the applicant during the school holidays, again subject to the parties consulting with X’s treating practitioners.
The independent children’s lawyer proposed that the parties engage a parenting co-ordinator. The applicant agreed to this suggestion but the respondent did not. The independent children’s lawyer also proposed an order requiring the respondent to notify the applicant of each medical appointment using the communication app agreed between the parties, and to provide an overview of the treatment provided and any recommendations made.
THE EVIDENCE - PARENTING
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The applicant
The halting manner in which the applicant gave her evidence suggested that she was affected by the anxiety which she concedes has at times affected her functioning. However, the answers that she gave, sometimes after a significant delay, were articulate and appeared to be constructed with some care.
There was a marked contrast between the somewhat faltering manner in which the applicant spoke and the content of her answers, which at times bordered on dogmatic. She impressed as having complete confidence in her ability to manage X’s needs whilst in her care, in spite of both his special needs and her own lack of communication with his treating team. It appeared also that she had very definite ideas about how questions of gender should be approached with X as he grows up. Whilst she referred to the need to liaise with the respondent in that regard, she had little confidence in the respondent’s views in that regard.
The primary theme of the applicant’s viva voce evidence was the extent to which she had been excluded from X’s life by the respondent. Her negative view of the respondent was entrenched. Perhaps for this reason, the applicant struggled to see her relationship with X from any perspective but her own.
The respondent
The respondent’s evidence was more fluent than that of the applicant and she was more easily able to recall dates and the details of past events. She was also able to describe X’s development and needs much more clearly than the applicant, which is unsurprising given that she is his primary carer.
She too had a fixed and negative view of the applicant. She impressed as quick to blame the applicant for failing to be pro-active in meeting X’s needs. She did not appear to realise that she bears a responsibility for communicating with the applicant about those needs.
Family violence
The respondent deposes to an incident during the first year of the marriage when she says that the applicant started yelling at her when she was sitting outside smoking a cigarette. She says that the applicant threw her cigarettes across the garden and then threw a chair across the garden. In cross-examination, the applicant conceded that she had thrown the chair.
The respondent says that were at least five other occasions during the marriage when the applicant lost her temper and threw objects including her mobile phone. The applicant conceded that she that she did sometimes get impatient with the respondent and that it was possible that she had displayed bursts of anger but otherwise denied the allegations.
I am persuaded on the balance of probabilities that the applicant did engage in shouting at the respondent, slamming doors and throwing objects such as cups and mobile phones. Those allegations are very similar to the throwing of the chair, which the applicant admits. The respondent’s admission in relation to bursts of anger allows me to infer that there were other occasions on which she lost control sufficiently to throw other objects as she had the chair. In my assessment, there were periods of volatility in the relationship in which the applicant behaved in ways which she may not believe amounted to family violence but which involved shouting and throwing objects sufficient to cause fear and distress to the respondent.
The respondent says that on or about 17 August 2013, she and the applicant attended a concert with her mother and grandmother during which the applicant asked her for a sip from her bottle of water. She says that she told the applicant that she needed to finish the bottle and suggested the applicant buy her own water. She says that the applicant snatched the bottle from her hand and then slapped her face. In her affidavit of 13 October 2021, the applicant denies that she grabbed the bottle or slapped the respondent but does not give an alternative account of the incident.
Neither party was cross-examined about this specific incident. The respondent did not adduce any evidence from her mother or grandmother about it. The allegation that the applicant hit the respondent in the face is a serious one, and as it is said to have happened in a public place I would have expected some contemporaneous evidence to be available. I am not persuaded to the requisite standard that the applicant struck the respondent on this occasion.
The respondent says that in mid-October 2019, the applicant “forcefully rammed her shoulder” into her when they walked past each other in the hallway. She says that she asked the applicant to be careful and that the applicant responded in a “grumpy sounding” tone. She says that she said “lighten up” and jokingly tapped the applicant on the arm after which the applicant hit her on the stomach with a closed fist. At this time, the respondent was around 38 weeks pregnant. She says that she experienced stomach pains thereafter but was too afraid of the applicant to call an ambulance. Instead, she asked her mother to come and stay. In cross-examination, she said that she had not called the police because her main concern was the welfare of her baby.
In her affidavit of 13 October 2021, the applicant denies striking the respondent in the stomach but does not give an alternative account of this incident. In cross-examination, she said it was possible that she had accidentally “brushed past” the applicant but denied that she had “rammed” the respondent’s shoulder or punched her in the stomach.
I take into account the applicant’s admission that in 2013 she pushed her own grandmother so forcefully that she almost fell over, after her grandmother patted her on the stomach and commented on her weight gain. It follows therefore that she is capable of using force against people who are more physically vulnerable than she is.
I am not however persuaded that she punched the respondent in the stomach to the standard required in respect of such a serious allegation. This incident occurred at the very end of the relationship at a time when there was significant conflict between the parties. It appears that each of them felt persecuted by the other at this time. The applicant wanted to progress her gender transition and was concerned about financial matters, whilst the respondent was heavily pregnant, feeling unwell and believed the applicant to be controlling her access to bottled water and showers. It may be that the parties bumped shoulders by accident and that what happened thereafter was magnified by the respondent’s sense of anger and hurt. I find that the allegation of punching is not established.
The respondent deposes to a number of occasions in 2017, 2018 and 2019 when she says that she asked the applicant to call an ambulance but the applicant refused to do so. The applicant could not recall any of these occasions. The respondent deposes to the applicant limiting the number of showers she could take; the applicant denies doing so. I am not satisfied that those disagreements between those parties had the requisite element of coercion, control or causing fearfulness so as to fall within the definition of family violence as per s.4AB of the Act. .
The respondent says that on about 27 October 2019, the applicant attended at the hospital where both she and X were inpatients. She says that she was told by a nurse that the applicant had shouted at the staff on reception and that staff had called the police. She says that she “disclosed the family violence” when interviewed by police. The police then issued a family violence safety notice against the applicant. The applicant says that she was “shocked” to be served with the respondent’s application for an intervention order.
The respondent says that in March 2020, she received an email from Google notifying her that the applicant’s email address had “requested an invitation to her “home” in the Google Home app”. She reported this to the police. The applicant says that she was attempting to add a second account to a Google Chromecast device and confirmed that an email should be sent to the owner of the device, expecting that the email would be sent to her. She says that the email was “inadvertently” sent to the respondent. She was not charged with a breach and denies that she has breached the order.
The respondent deposes to applying on about 6 January 2021 to extend the final intervention granted on 14 January 2020. Her application for the extension, annexed to her affidavit, refers to “two breaches” of the final intervention order but her application does not particularise the alleged breaches. The application was struck out on 17 September 2021 as she had failed to file the Further and Better Particulars directed by the court.
The parties’ physical and mental health
The applicant says that the respondent’s health conditions are so severe that she was dependent on the applicant for basic care during the relationship. She expresses concern as to how the respondent is able to care for X as well as manage her own needs. The respondent says that her various conditions do not prevent her from caring for X and says that she receives support from her mother and grandmother. She denies that she ever viewed the applicant as her carer.
The s.67Z report dated 12 May 2021 makes some references to the respondent’s poor physical health, and the Early Maternal Child Health Nurse being concerned as to the respondent’s parenting capacity. No concerns in that regard appear to have been raised by any of the many medical professionals currently working with X. In my view, those concerns are no longer current, to the extent that they were ever well-founded, as I am confident that one or more of X’s medical professionals would take appropriate steps if concerned about the impact of the respondent’s health on her capacity to care for X.
The respondent deposes to the applicant having a history of depression and describes an incident in 2014 where applicant described experiencing urges to drive her car off the road. The respondent says that she offered to drive the applicant to see a doctor, but the applicant refused. The applicant admits that she has a history of depression and anxiety. She told the family consultant in June 2022 that she had recently re-engaged with her psychologist. In cross-examination, she said that she was continuing to take mirtazapine for anxiety but had ceased seeing her psychologist about a month before the trial as the psychologist had said that regular appointments were no longer required. She also described the coping strategies that she had developed to recognise when her stress levels were rising and to manage her stress. I am satisfied that the applicant has good insight into her own mental health and the ability to seek treatment when required.
The respondent also expresses concern about the applicant’s consumption of alcohol alleging that she had found empty bottles of spirits under the applicant’s bed and hidden around their home. The applicant denies that she drank alcohol to excess during the relationship or that she hid empty bottles. The applicant underwent hair follicle testing in May 2021, which it is agreed did not show excessive alcohol consumption. The allegation that the applicant’s drinking presents a risk to X is therefore not made out.
The applicant has expressed concern about the impact on X of the respondent’s allegedly heavy smoking, both during her pregnancy and at present. The respondent admits to smoking about 20 cigarettes a day. She deposes that she does not smoke cigarettes around X and he has never seen her smoke. She wears a jacket over her clothes and washes her hands after smoking to minimise his exposure to smoke. There is no evidence before me which could support a finding that the respondent’s smoking presents a risk to X.
The applicant’s involvement with X
The applicant says that during the relationship she and the respondent had “extensive discussions” about how they would raise their child together, including the discussion of names, and how the child would refer to them. She deposes to the parties agreeing that she would take two months off work and then go back to work part-time, depending on how much assistance the respondent required in caring for X due to her health conditions.
The respondent did not tell the applicant when X was born. She says that she did however send monthly email updates to the applicant about X. She did not propose any form of supervised time, which would have mitigated her concerns about family violence. Equally, it does not appear that the applicant was pressing for time.
The applicant says that she was told by the respondent on 2 December 2020 that her name was not on X’s birth certificate. She says that she supplied the required forms to Birth Deaths and Marriages on 19 January 2021. She also says that she learnt of X’s developmental delays in December 2020 and that she offered to pay for specialist treatment for him.
The applicant did not respond in her supplementary statement to the respondent’s evidence that she had been provided with details of X’s NDIS plan in late May 2021. When cross-examined by Counsel for the respondent, she confirmed receipt of that information. She said that she had not engaged with Ms V because she wanted to speak instead to the health practitioners who worked directly with X. She gave a different explanation when asked about this issue by Counsel for the independent children’s lawyer, namely that she found the process of collecting the multiple forms of identification required intimidating because some of her documents were in her old name, and that she had let her “anxiety get in the way”.
It is somewhat surprising that the applicant was either unwilling or unable to take the steps required to access the NDIS portal which contained crucial information about X’s needs and treatment. Her initial response indicated a degree of both rigidity and passivity in her approach, namely that because she was not given precisely the information that she wanted, she took no steps in relation to the information which she did have. At other points in her evidence, her deep hurt at not seeing X during his early months was palpable. In those circumstances, I would have expected her to do everything in her power to inform herself about his wellbeing. The reasons which she gives for failing to access the NDIS portal are in my view inadequate.
In answer to a question from Counsel for the respondent, she said that it would have “been better” if she had accessed the information on the NDIS portal and that it might have resulted in slightly different behaviour when X is in her care but “only a very limited change”. It appeared that she recognised that she had missed an opportunity to familiarise herself with X’s doctors and their recommendations. While this insight is reassuring, her evidence suggested that she minimises the importance of X’s diagnosis and the particular care he requires.
The applicant said she had not contacted any of X’s doctors because she had not been given their contact details. When asked if she had asked the respondent for that information, she said she had expected the respondent to provide them. I was again struck by the combination of rigidity and passivity which appeared to underpin the applicant’s attitude.
When the respondent was cross-examined about the recommendation of Ms Q in her report of 8 July 2021, namely that the applicant be given a full list of the doctors working with X, she could not remember either the recommendation or whether she had complied with it. She insisted that she “would have” complied with that recommendation, and that the applicant knew the identity of those doctors but could not explain why she would have known. I am not satisfied that she did provide the list of doctors to the applicant. Had she done so, she would in my view either have referred to that issue in her evidence, or have been able to recall it in cross-examination, as she was able to recall other such historical details.
The applicant was asked about her ability to practice the skills and strategies recommended by X’s treating medical professionals, given that she has not liaised with them. She said that she did not see his needs as different from other children. She was then asked specifically about the goal identified in X’s NDIS plan for him to improve his ability to regulate his emotions, she responded, “what do you think about learning to regulate emotions is unique to X? It is something that every child needs.” On these and other occasions in her evidence the applicant responded defensively to suggestions that X required tailored strategies, insisting instead that the skills she had developed when caring for her older child were sufficient.
In her supplementary statement of 11 August 2022, the applicant says that X presents as happy and enjoys the time in her care. She says that he shows no signs of distress at the zoo, shopping centres or at play centres.
Counsel for the respondent put to the applicant that she had ignored the respondent’s request to avoid taking X to busy places such as shopping centres. The respondent said that she sometimes needed to go to shopping centres as they were “part of life”. She said that X did not show distress when she did so and suggested that his distress might be an “echo” from the respondent. Counsel for the independent children’s lawyer asked what she would do if the doctors recommended avoiding crowds, and the respondent specifically asked her to avoid shopping centres. She said after a long pause that she would question whether the respondent’s observations were accurate but would be willing to consider them. She appeared to struggle to accept the respondent will inevitably have a better grasp of X’s needs and preferences and that it will be in his best interests for her to provide care which is consistent with that which he receives from the respondent. The applicant should in future attach more weight to the views of the respondent about X’s needs.
The applicant agrees with the respondent that changeovers are tense but says that she does her best to present in a friendly fashion. She deposes to X appearing to enjoy car travel and that he points out landmarks and other cars. She says that she tells the respondent about the day that she and X have spent together at the end of time.
The respondent says that fifteen supervised visits took place between the applicant and X concluding in October 2021. She deposes to X often appearing distressed and being difficult to settle after those visits and says that his behaviour changed noticeably for several days afterwards. She alleges that during changeover on 31 July 2021 the applicant blocked her car in the carpark at Suburb O Community Centre and she reported this to the police. In cross-examination, she was adamant that she was able to identify the applicant as the person who was driving the car which was blocking her. The applicant denied that she had done so. There is not enough evidence before me as to the facts surrounding this incident to support a finding that the applicant deliberately blocked the respondent’s exit from the carpark.
The respondent deposes to X appearing upset at the start of unsupervised time with the applicant and that he held tightly to the respondent and cried when handed to the applicant. She says that changeovers are difficult and that on about 9 April 2022 she was holding X and asked him if he was ready to be handed over to the applicant when the applicant “snatched” him from her arms and walked away. She says that X remains awake for the entire journey between her home and Suburb O and that when she has to drive to City K, she finds the journey very tiring. She says that she noticed unusual behaviour after time with the applicant, including X pinching her legs, banging his head on the floor.
The respondent says that he returned with bruises on a number of occasions including in November 2021, January 2022, March 2022 and July 2022. In her supplementary statement, the applicant says that the bruises which X experienced during January were likely to be the result of playing with his cousins (who she does not identify) during his time with her. She says that the bruise he experienced in March was probably due to his bumping into a doorframe which she saw him do during that visit. She also says that he had a small tumble on 23 July 2022. I accept the evidence of the applicant in this regard.
The applicant’s new partner
The applicant has re-partnered with Ms W, with whom she lives. The applicant told Ms Q at the time of the 11F report that Ms W had been accused of abuse of her own child. The applicant told Ms R that the allegations related to an occasion when Ms W’s child had had a panic attack which required him to be restrained physically to avoid him hurting himself or others. In cross-examination, she said that Ms W’s time with her son had now ceased after an incident during his time with her when an instruction book for a game had “touched his hand” which he perceived as an assault, as a result of which his other parent had suspended time. She did not know what court orders were in place in relation to the child’s time with Ms W.
The applicant’s gender transition and terms used by X
The applicant says that after she told the respondent that she wished to transition from male to female, the respondent repeatedly asked her to delay in doing so, initially until her pregnancy had reached 12 weeks, and then until after the parties had had a second child. She says that the respondent also sought to impose other conditions on the timing of her social transitioning. The applicant said that she had always said to the respondent that she would never be a father to their baby save in the sense that her sperm had produced him.
The respondent says that she was shocked when the applicant told her that she was transgender. She says that she encouraged the applicant to get assistance from a psychologist and that she suggested they attend couples’ counselling but that the applicant rejected both proposals. She says that the applicant was “happy to have a child” and that the parties agreed that the applicant’s role would be that of a father.
Unsurprisingly, in the light of their very different viewpoints and expectations, the parties have found it difficult to agree how to define the applicant’s parental role. The consent orders of 14 October 2021 included an order that the applicant be at liberty to describe herself as “mummy Ms Neaves”, and that the respondent refer to her in X’s presence as “Ms Neaves”. The respondent was unwilling to agree to those provisions remaining in place on a final basis.
The applicant deposes to referring to the respondent as ‘mummy Ms B Neaves’. She says that X uses the terms ‘mummy Ms Neaves’ and ‘mummy Ms B Neaves’ when he is with her. When asked by Counsel for the respondent if she understood that the respondent wanted deeply to be known as the mother of X, she said that it is equally important for her to be known as the mother. She said “I am a woman and I am a parent and that makes me a mum”. The depth of her feeling was evident in the manner in which she answered this question.
In cross-examination, the respondent said that since X was born she had referred to the applicant as his father, which she said she saw as “the right thing”, noting that the applicant let J continue to address her as her father. She said that she now refers to the applicant as “Ms Neaves” and tries not to refer to her as a father. She said that it is not her occasional references to the applicant as “father” that may confuse X, but instead the fact that the applicant is his biological father but does not identify as such. The respondent conceded that she does find the applicant’s wish to share the status of motherhood as disrespectful. Her unhappiness with the situation which has, from her perspective, been inflicted on X by the applicant was palpable.
The respondent said that she had observed X to be upset and confused when the applicant referred to herself as “mother” but that she would be happy for him to call the applicant “mummy Ms Neaves” if that was what he wanted. Although the respondent said that her objection was based on her perception of X’s response rather than her own feelings, my view is that she is unable to overcome her own deeply held feeling that only she is X’s mother. X will follow the lead of his parents, the two most important people in his life, as to the words by which he addresses each of them. He will not, in my view, be confused unless he is exposed to ongoing conflict as to the role of the applicant in his life.
The respondent said that she would be willing to share Mother’s Day with the applicant if X said that he saw the applicant as a mother. In my view, this approach places too much weight on X’s capacity to communicate to the respondent that he sees the applicant as a mother. He may also be impeded from doing so if he becomes aware of the respondent’s reluctance to see the applicant’s role as a maternal one.
Ms D
Ms D is a senior paediatric physiotherapist and swore an affidavit filed on 9 August 2022, annexing a letter dated 28 July 2022 and prepared at the request of the respondent. In this letter, Ms D noted that:
(a)X has recently transferred NDIS services due to a change in suburb and has completed his initial and follow up session, together with a routines-based assessment;
(b)X continues to have delayed development across all areas, however, he has “made some pleasing progress”;
(c)X’s developmental age, from initial observations, appears to be between 13 to 18 months and he is very small in structure for his actual age;
(d)X has recently commenced walking independently, having previously used a walker since he was one and a half years old, and will require ongoing physiotherapy to further progress this;
(e)X is no longer mouthing toys and objections and is developing his fine motor control and skills around using a spoon and “developing skills in scribbling and drawing”;
(f)Despite his challenges with communication, X’s expressive vocabulary has improved with a significant increase in new words, including being able to identify toys such as “piggy” and “playdoh”, however, further speech therapy is required;
(g)X occasionally gestures to indicate his wants and needs and frequently requests “cuddles” from the respondent; and
(h)X is reported to be very placid and has “strong trauma responses to being forced to complete an activity that causes him anxiety, sensory overload or stress”;
Ms R
Ms R is a forensic psychologist. She was instructed pursuant to the orders made on 5 August 2021 to prepare psychological assessments of both parties. She was not required to attend for cross-examination.
Her report in relation to the applicant dated 8 October 2021 was not annexed to an affidavit from Ms R but was instead annexed to the affidavit of the applicant filed on 13 October 2021. No objection was taken to this by the respondent. Ms R’s assessment of the respondent dated 7 October 2021 was annexed to her affidavit filed on 13 October 2021.
Ms R interviewed the applicant by video link. The applicant told Ms R that she had a history of depression starting during her university years and said that she had had fleeting suicidal ideation, most recently two years ago, but had never acted on it. She provided information about the psychological treatment which she had received for gender dysphoria issues. She said that she had recently ceased taking duloxetine (an antidepressant) but was continuing to take mirtazapine (another antidepressant). She had delayed the cessation of duloxetine until after her gender reassignment surgery last year as she was aware that that period was a high risk one for depression. She said that since her transition and surgery, her mental health has continued to improve.
The applicant told Ms R that she drank a single glass of spirits on average two to three times per week and occasionally up to four times. She denied ever having a problem with alcohol consumption.
In terms of mental state, Ms R considered the applicant to have good insight and judgment and to engage easily with the assessment. Ms R conducted a number of psychometric tests after which she concluded that the applicant showed mild to moderate symptoms of depression, anxiety and stress and normal to mild symptoms of trauma.
Ms R considered that the applicant’s diagnosis of persistent and major depressive disorders is managed at present by medication and that the applicant has displayed good insight by seeking support with her mental health when required. Her view is that whilst the applicant shows indications of a compulsive personality, they do not appear to affect her functioning. In her opinion, the applicant does not present any other symptoms of mental illness or personality dysfunction. She concludes at [98]:
There is no current indication of risk issues that would compromise [Ms Neaves’] functioning, behaviour, or her capacity to make appropriate decisions regarding the care of her child.
In relation to the respondent, Ms R again took a detailed family, educational and relationship history. The respondent also gave Ms R details of her various medical issues and of X’s developmental history.
The respondent told Ms R that she has suffered from depression and anxiety since her early twenties, linked to the chronic pain from her medical conditions. She had not taken antidepressant medication or seen a psychologist since then but had seen a counsellor both before and after separating from the applicant. She reported anxiety and trauma following separation and continues to remain highly anxious.
The respondent disclosed that she engaged in deliberate self-harm in her early 20’s for a period of six-months. This was in the context of her uncontrolled medical conditions and the significant pain, frustration and depression she experienced. She denied any suicide attempts.
The respondent denied any history of problematic alcohol use and stated that she no longer drinks due to her current medications. She expressed concerns that X is at risk of exposure to family violence, given her own alleged experiences of family violence by the respondent.
In terms of mental state, Ms R considered the respondent appeared forthcoming with information and demonstrated good insight and judgment. The psychometric tests conducted showed normal symptoms of depression and anxiety, mild symptoms of stress and normal to mild symptoms of trauma.
Ms R opined that the respondent presented no clinically diagnosable mental health condition, though there is evidence of underlying generalised anxiety and post-traumatic stress which appear to be related to the current court proceedings. Further, Ms R recognises that that the respondent has managed to maintain reasonable mental health despite her multiple significant life changes and that her capacity to care for X does not appear to have been compromised. She notes a concern that the respondent does not appear to consider that the absence of the applicant from X’s life may have detrimental effects on him longer term.
Ms R recommends at [116] that:
It is important that [the respondent] learns to manage her anxiety around [X]’s care so that this does not impact her relationship with [X] as he grows, but also to ensure that her own attempts to protect him do not escalate into overprotective behaviour which could be damaging, restrictive , and cause him to develop anxiety problems … or prevent his independence , growth and development at appropriate stages of his life.
Ms R’s evidence was unchallenged and I accept it.
The Department of Families, Fairness and Housing
The s.67Z response prepared by the Department dated 12 May 2021 noted that:
(a)There was one previous report from October 2019 to January 2019 which proceeded to Protective Intervention. This concerned the applicant perpetrating family violence against the respondent and the respondent’s poor physical health and poor parenting capacity.
(b)There were reported concerns regarding the state of the respondent’s home, including hygiene concerns, unpacked boxes and sleeping on mattresses on the floor, despite having lived in the property for several months. Further, it was reported that the respondent appeared to have somewhat of a “tit for tat” relationship with her neighbour, resulting in undesirable behaviours such as loud banging on the floor.
(c)X’s enhanced maternal child health nurse explained that X has struggled with gaining weight, that he is under the 5th percentile for height and weight and raised concerns regarding the respondent’s capacity to follow recommendations and prioritise X’s health needs.
(d)It was reported that the applicant would regularly drink spirits and leave bottles hidden around the house and that there were concerns that the applicant:
(i)was withholding access to money, and in particular, access to food and water for five days;
(ii)had kicked a cat in the past and had punched the respondent in the stomach with a closed fist, when the respondent was pregnant; and
(iii)had allegedly breached the final intervention order when trying to access the Google Home account.
(e)No further involvement was required by the Department and the appropriate referral was made.
The family consultant
The family consultant prepared one report dated 17 June 2022 and attended Court on 12 August 2022 for cross-examination. The family consultant had conducted interviews with the parties and observed both of them with X on 8 June 2022, all via video.
The family consultant noted that the parties had very different recollections of their relationship. She noted also that both parties denied that they had behaved abusively to the other.
During her interview with the family consultant, the applicant suggested that X’s developmental delays may have been caused by neglect by the respondent, noting that her only basis for this suggestion was that during their relationship the applicant observed the respondent to smoke 50 cigarettes a day and sit outside a lot. The family consultant noted that the applicant had only a limited understanding of X’s global developmental delays.
The respondent told the family consultant that X’s behaviour after spending time with the applicant included being difficult to settle, making high-pitched noises and banging his head on the floor. She alleged that in taking X to busy places, such as shopping centres, the applicant had failed to take into account his particular needs.
The family consultant expressed concern about the applicant’s lack of information about X’s delays and his particular care needs, and the failure of both parties to remedy this issue. She emphasised the importance of the applicant having all the information required to allow her to provide suitable care for X. She noted also the importance for X observing courteous communication between his parents and suggested that the parties might benefit from professional assistance with their communication with each other.
The Family Consultant considered that whilst keeping the current arrangements in place would provide stability, to do so might also prevent X’s relationship with the applicant progressing to a close and loving attachment. She also considered that an immediate move to overnight time would present a risk if the applicant did not yet have a full understanding of X’s special needs and the care required of her. The Family Consultant points out that X will benefit if the applicant is able to understand that he may need to be returned early or may be unable to spend time with her if unwell.
In her report, the family consultant makes the following recommendations:
(a)consideration be given for shared parental responsibility and that X continue to live with the respondent on a day-to-day basis;
(b)the current spend time arrangements remain in place until the applicant meets with all of X’s medical professionals in relation to his global development delays, so that she can have a better understanding and awareness of his needs;
(c)once the applicant has full knowledge of X’s needs, he spend one overnight with the applicant each week, with changeover to occur at childcare, and there be consideration of two overnights per week with the applicant once X has fully settled in kindergarten next year;
(d)all decisions to further increase the nights that X spends with the applicant be made in the context of his development needs;
(e)each party keep the other updated with relevant information which will assist them co-parent and that both parties priorities X’s health, education, social and emotional needs;
(f)that the applicant:
(i)engage in family violence counselling and drug and alcohol counselling; and
(ii)undergo random hair follicle testing
if the court finds that the concerns raised by the respondent are compelling and current;
(g)X be enrolled in a suitable day-care program;
(h)the parties communicate via a communication app; and
(i)the parties not denigrate each other and engage in positive communication about the other party.
In her viva voce evidence, the family consultant indicated that if the applicant demonstrated an understanding of and involvement with the recommendations of X’s treating doctors, she saw no strong reasons why the parties should not share parental responsibility.
In her view, the duration of X’s time with the applicant should gradually increase once he starts staying with her overnight. She also recommended that both parents should be flexible depending on how X is coping.
She supported the proposal of weekly telephone or Skype communication with the applicant. She emphasised the importance of the parties modelling friendly greetings and cooperative behaviour during the calls so that X can learn from their behaviour to each other.
She said that the point at which X would be ready for his time with the applicant to increase to a second overnight would depend on his behaviour, rather than his age, because of his developmental delays. Her view is that the decision should be based on the assessment of his treating doctors. She also said that the progression to two nights should not happen at the same time as another major change for example starting kindergarten. She did not support the proposal of the respondent that the progression to two nights should not be considered until October 2024. Her view was that if the overnight time started in January 2023, there should be no increase to two nights for a minimum of six months thereafter.
The family consultant was asked by Counsel for the independent children’s lawyer about how X should refer to the applicant. The family consultant would have no concerns about X referring to her as “mummy Ms Neaves” and pointed out that as he is accustomed to that name being used for her any change would be confusing for him, as would any reference to the applicant as his father. She said that both parents need to be consistent as to how they refer to the applicant.
The family consultant’s opinion and the basis for it were not successfully challenged by either of the parties. Although I am not required to accept the recommendations of the family consultant, in this matter I found her observations of the parties consistent with my own observations. I was assisted by her evaluation and accept for the most part her recommendations.
Legal principles
Part VII of the Family Law Act 1975 (Cth) (“the Act"”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons [2019] HCA 21 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on "ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child". The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright [2007] FamCA 520 and McCall v Clark [2009] FamCAFC 92.
Section 61DA of the 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.
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 abuse of the child or family violence. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption of equal shared parental responsibility is not rebutted and I accept it would be in the best interests of the child to make an order for equal shared parental responsibility, I am then required by s.65DAA (1) and (2) to consider whether to make orders that the child spend equal time or, if not equal time, then substantial and significant time with each parent.
Parental responsibility
I have found that there was family violence within the definition at s.4AB(1) of the Act perpetrated by the applicant against the respondent, albeit at the lower end of the scale. The presumption in favour of equal shared responsibility is therefore rebutted, and my decision in that regard is governed by the best interests of X.
It is common ground that the parents do not communicate well. The applicant complains that the respondent has not kept her informed about X’s progress and special needs. The respondent says that she has tried to communicate with the applicant but that her attempts have met with a lack of interest and that her advice has been ignored. Both parents blame the other for their communication problems. My view is that both parents have contributed to these difficulties as each has expected the other to take primary responsibility for communication in relation to X.
In her closing submissions, Counsel for the respondent submitted that the history of the matter demonstrated that the respondent had been willing to “bridge the gap” in relation to communication between the parties but that her efforts “had not worked”. That submission is not consistent with the respondent’s evidence. For example, when asked by Counsel for the independent children’s lawyer whether she was informing the applicant of information obtained from appointments with X’s treaters, she said that she did so “sometimes with some things”. It is also inconsistent with her inability to recall when or how she sent, as she asserted she had, the list of X’s doctors to the applicant.
The applicant expressed confidence that she would be able to overcome her anxiety in order to communicate effectively with the medical and allied health professionals who work with X. Although the respondent says that the family violence she has experienced has left her feeling afraid of the applicant, she did express willingness to communicate with the applicant via their selected parenting app.
The family consultant recommends that consideration be given to equal shared parental responsibility. In her viva voce evidence, she confirmed that that was her recommendation, as long as the applicant engaged and remained engaged with X’s doctors.
Despite the communication difficulties between them, it is in my view in X’s best interests for his parents to share responsibility in respect of long-term major decisions. The applicant has accepted the need for her to liaise with X’s treating doctors. That addresses the primary concern of the respondent with respect to parental responsibility. There is no history of X’s needs going unmet or decisions having been delayed because of a dispute between the parents.
Both parents have much to offer X. They should both play an important role in his care, welfare and development. I hope that they will continue to work on their ability to liaise with each other and to negotiate in relation to major long-term decisions. Both parents say that they want to communicate better with the other parent. It is, in my view, a pity that the respondent is unwilling to consider the instruction of a parenting coordinator, which in my view would be of great assistance to both parties and, most importantly, to X. I hope that both parties will reconsider the independent children’s lawyer’s recommendation that they engage with a parenting coordinator if their communication problems persist.
I have made orders for X to spend additional time with the applicant during school holidays only once he has begun to spend two nights on alternate weekends with the applicant. I have provided for that holiday time to progress gradually so that he spends one extra night with the applicant during 2024 and 2025 (assuming that he has by then begun to spend two nights with the applicant in term-time) and two extra nights in 2026. In my view, this order strikes an appropriate balance between the cautious approach required by X’s special needs, and the need for him to enjoy the freedom and relaxation of holiday time with the applicant.
The respondent was cross-examined by Counsel for the independent children’s lawyer about weekly telephone or skype communication between X and the applicant. She did not see this proposal as workable, and was concerned that X was too young to sit and manage a call. She did, however, say that she would be open to facilitating communication if the applicant made a video call, by encouraging X to come to the phone.
Both the family consultant and the independent children’s lawyer support the order that I make in relation to regular video or telephone communication, which I am satisfied is in X’s best interests. The applicant will however need to recognise that there will be times when X is distracted or busy. On some occasions, her communication with X may be very brief or he may not wish to speak to her at all. It will be important for her to understand that this is entirely normal for young children and that she does not seek to blame the respondent for occasions when the calls are unsuccessful or very short.
Historically, the parties have effected changeover in Suburb O, which has meant that the applicant has done the majority of the driving required. The applicant accepted that she had also done most of the driving during the parties’ relationship. She submitted that the respondent’s health issues did not justify the applicant continuing to do almost all of the driving. Having relied on the severity of the respondent’s medical problems to assert that she may be unable to care for herself or X, the applicant cannot then deny their impact on the respondent’s ability to manage a long drive.
The respondent said in cross-examination that changeover at Suburb Z Library proposed by the applicant would mean a two-hour drive from her home, after which she would need a two- hour rest before returning home. She proposed that changeover take place at her grandmother’s home in Suburb G as she would be able to rest there after the drive. I accept that her ability to rest before and after changeovers will be in X’s best interests and I order that changeover take place at that location when it is not at X’s childcare, kinder or school.
My orders provide for the status quo to remain in place in relation to the applicant referring to herself as “mummy Ms Neaves” and the respondent referring to her as “Ms Neaves”. X is old enough to have grown accustomed to those terms, to which the parties both agreed as recently as October 2021. I accept the evidence of the family consultant that any change will be confusing for him.
In the light of those orders, it is important for X to spend alternate Mother’s Days with each parent, consistently with how each of them identify themselves in his life.
Given that the applicant accepts that she does not celebrate Christmas or buy presents, that her relationship with her family is so difficult that she would be making a sacrifice by seeing them at Christmas, and her concession that X might be aware of her discomfort in that regard, my view is that X should spend Christmas Eve and Christmas Day with the respondent each year, and the 26th and 27th of December with the applicant each year.
I make the injunction to which the applicant consents and which prevents her from drinking to excess 24 hours before or during her time with X. Given the absence of evidence as to excessive drinking on her part, I consider the injunction sought by the respondent which would prevent her from drinking any alcohol at all 24 hours before or during her time with X to be unduly restrictive. I also consider the requirement that any party who re-partners should provide a police check in respect of the new partner to be unduly oppressive and I decline to make that order.
There is no evidence before me as to whether it is possible for Births Deaths and Marriages to alter X’s birth certificate to show her as his mother, as the applicant seeks me to order. I do not therefore make any order in that regard.
property
I will now consider the competing applications for a division of property between the parties.
Is it Just and Equitable that an Order be made?
In Stanford v Stanford [2012] HCA 52 (“Stanford”), the High Court said pursuant to s.79(2) of the Act, before making any order altering the interests of the parties to a marriage in relevant property, I must be satisfied it is just and equitable for me to do so.
If I am satisfied it is just and equitable for an order to be made, I am then empowered to make such order as I consider appropriate taking into account a number of factors as set out in ss.79(4) and 75(2) of the Act, insofar as they are relevant.
Their Honours said the expression “just and equitable” at [36]:
… is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
Their Honours further said there is no presumption that the parties’ entitlements in the existing asset pool should be altered, or that one party has the right to have the property of the parties divided between them only on the basis of the considerations in s.79(4).
The High Court in Stanford made it clear that I cannot conflate my determination pursuant to s.79(2) of the Act with my determination pursuant to s.79(4) of the Act. These are separate enquiries.
In these proceedings, both of the parties urge the Court that it is just and equitable that orders be made to alter their interests in their property. It is not sufficient that the parties simply agree that there should be an order made pursuant to s.79(2) of the Act. I must be satisfied myself that such orders are appropriate.
In my view, this is one of the “vast majority of cases” referred to by the plurality of the High Court in Bevan v Bevan [2013] FamCAFC 116 at [164] in which the requirements of s.79(2) of the Act are fairly readily satisfied. It is plainly just and equitable to make an order pursuant to s.79 of the Act in these proceedings for a division of property between the parties.
Assets, liabilities and financial resources as at the date of final hearing
The parties’ positions in relation to their respective assets, liabilities and financial resources as at the date of the hearing were as follows:
Ownership
Description
Applicant’s value
Respondent’s
value
ASSETS
Respondent
Bank AB account #...33
Not known
$ 2,607
Applicant
Bank AB account #...21
$ 200
$ 200
Applicant
Bank AB account #...13
$ 1,079
$ 1,079
Applicant
Motor Vehicle 1
$ 12,200
$ 12,200
Respondent
Motor Vehicle 2
$ 1,700
$ 1,700
Applicant
Household contents
$ 8,000
E$ 8,000
Respondent
Household contents
Not known
E$ 3,500
Assets subtotal
$ 23,179
$ 29,286
LIABILITIES
Applicant
Loan from Commonwealth Bank
$ 13,131
Nil
Applicant
Bank AB Low Rate Credit Card
$ 869
Nil
Applicant
Bank AB Bank secured vehicle loan
$ 11,942
Nil
Applicant
Outstanding legal fees
$ 4,028
Nil
Respondent
Debt to AC Hospital
Not known
$ 768
Respondent
Tollways debt
Not known
$ 8,764
Respondent
Personal loan to Ms AD
Nil
$ 5,000
Respondent
Rental debt
Not known
$ 1,700
Liabilities subtotal
$ 29,970
$ 16,232
SUPERANNUATION
Applicant
Super Fund AE
$ 285,184
$ 306,979[2]
Respondent
Super Fund AF
Not known
Nil
Superannuation subtotal
$ 285,184
$ 306,979
NET POOL (excluding superannuation)
($ 6,791)
$ 13,054
NET POOL (including superannuation)
$ 278,393
$ 320,033
[2] As discussed later in these reasons, the figure for the applicant’s superannuation adopted by both parties at the close of the trial was $286,637.06.
Although the parties do not agree as to the treatment of their respective asserted liabilities, they did agree that the total net value of each of the parties’ non-superannuation assets is negligible. For the purpose of my assessment of the treatment of superannuation, I will accept the contention of each party that neither has any or any significant net capital.
The only asset in respect of which either party proposes any adjustment is the applicant’s superannuation. There is therefore no need for me to assess how the parties’ various debts should be treated for the purpose of these proceedings or to make findings in relation to the quantum of the non-superannuation assets.
Contributions
Section 79(4)(a), (b) and (c) /90SM(4)(a), (b) and (c) of the Act
In determining what orders are to be made pursuant to s.79(4), Baker and Rowlands JJ in Aleksovski v Aleksovski [1996] FamCA 111 (“Aleksovksi”) ; held at [55] that trial judges must:
…weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.
Further, in Aleksovski, his Honour Kay J said at [90]:
The Judge must weigh up various areas of contribution. In a short marriage, significant weight might be given to a large capital contribution. In a long marriage, other factors often assume great significance and ought not be left almost unseen by eyes dazzled by the magnitude of recently acquired capital… What is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship.
Those observations were quoted with approval by the Full Court Dickons v Dickons [2012] FamCAFC 154 (“Dickons”). At [21], their Honours said that “…the requirements of the section are met by approaching the assessment of contributions holistically…” by analysing the contributions of all types, and by reference to the particular circumstances of that particular relationship. Their Honours said at [24]:
…However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship.
The assessment of contributions does not require “over-zealous” attention to the ascertainment of contributions, and the process of the Court as required by s.79 of the Act “…is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise” as set out in Dickons at [25].
In Dovgan & Dovgan [2021] FamCA 306, Harper J at [347] restates the need to holistically assess contributions following the case of Dickons, and that “all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder”.
Given that this matter relates to the division of superannuation, I have had particular regard to C & C [2005] FamCA 429, Bishop & Bishop [2013] FamCAFC 138, and Varnham & Moses [2020] FamCA 83. As summarised in Palumbo & Mandel [2019] FamCAFC 228 at [47], the Court is required to:
•Consider and make findings about contributions to superannuation;
•Consider and make findings about the impact of the assessment of those contribution entitlements in determining if any adjustment should be made on account of s 75(2) (including the parties' future superannuation prospects); and
•Ensure that the real nature of the superannuation interests is taken into account in the final assessment of whether the ultimate order is proper.
I must also consider and take into account the factors set out in s.75(2) of the Act and, in particular, s.75(2)(b) and (f).
Initial contributions
The respondent contends that neither party brought any significant assets into the relationship save that each of them owned a motor vehicle.
Contributions during the marriage
During the marriage, the applicant worked full time as a IT professional. The respondent deposes to doing casual acting work for about five days per year but otherwise being unemployed. The respondent says that she did the majority of the household chores during the relationship. The applicant denies this and says that she did most of the cooking and cleaning.
The respondent says that J spent time at the parties’ home on average every second weekend. She says that she provided most of the care for J. The applicant denies this, deposing in her affidavit of 13 October 2021 to the respondent providing care for J on a few occasions.
The applicant says in her affidavit of 13 October 2021 that she took out a number of personal loans from the Commonwealth Bank and Company AG during the relationship in order to ‘maintain the lifestyle’ to which the respondent was accustomed. She deposes to borrowing $24,537 after being subjected to pressure from the respondent. The respondent denies that she put the applicant under pressure to borrow money and that she expressed reservations about taking out the loans.
In cross-examination, she said that none of the funds from that loan were used for her benefit but that they were used to pay for work on the respondent’s car and that she took out an additional loan for obstetric fees. She says that she remains responsible for the repayments on those loans. She says that she has sought copies of the relevant loan documents from the lenders, but that the lenders no longer had copies.
Contributions post-separation
The applicant deposes to making the repayments required in respect of the Commonwealth Bank and Company AG loans of about $225 per week. The applicant is also required to pay spousal maintenance to a total of $12,800 pursuant to orders of 14 October 2021, with the final instalment of $3,000 due on 31 October 2022. Counsel for the applicant argued that the applicant should be given credit for these post–separation contributions by deducting them in full from the superannuation amount to be divided between the parties.
Counsel for the respondent argued in her closing submissions that the respondent had continued to look after X after separation, thus enabling the applicant to continue to work full-time. Of course the applicant has also continued to work full-time since separation, which has contributed (together with passive growth) to the increase in the value of the applicant’s superannuation since then.
Family violence
Counsel for the respondent did not rely in her closing submissions on the family violence alleged by the respondent to have been perpetrated by the applicant as a factor which I should take into account in respect of property settlement. This does not appear to me in any event to be one of the exceptional cases in which family violence is a relevant factor.
The s.79(4)(d), (e), (f) and (g) and the s.75(2) factors
The respondent is currently dependent on the child support paid by the applicant and upon Centrelink benefits. She says that she hopes to return to work when X is older but is uncertain when she will be able to do so because of his special needs. She says that her medical issues will prevent her from working full-time but there is no medical evidence before the court to corroborate this assertion.
In her supplementary statement, the applicant says that despite having a well-paying job she is “just making ends meet”, although relevantly she discounts the bonuses which she receives. She refers also to the costs she has paid in the course of these proceedings.
Superannuation
At the start of the trial, the applicant had failed to disclose a current statement of her superannuation. Neither party seemed to have sought details of the applicant’s superannuation balance as at the start of the relationship or at the time of separation.
The applicant indicated through her Counsel that she could not obtain a balance figure current as at the date of the trial. She tendered documents at the conclusion of the hearing as a result of which the parties agreed that her superannuation balance was as follows at the following dates:
31 December 2012 $34, 421.94[3] 1 July 2019 $180,102.95 30 June 2020 $201,569.21 30 June 2021 $286,637.06 [3] The superannuation statement tendered by the applicant dated 31 December 2012 refers to a “family law benefit split” of $12,500 on 6 June 2012.
For the purposes of the orders contended for, each party used the agreed figure for the balance as at 30 June 2021 rather than the amounts contained in their respective balance sheets.
The respondent has no superannuation. She deposes to accumulating a small amount of superannuation during her casual work as a Carer which she withdrew to pay a debt before the start of the parties’ relationship.
What orders are just and equitable
Although in her further amended response filed on 27 July 2022 the respondent sought an order that the applicant pay her $10,000, this application was not pressed at trial. Neither party sought any order for property adjustment save in relation to superannuation.
The parties agreed that there should be an order splitting the applicant’s superannuation in favour of the respondent.
The applicant proposed that the respondent should receive a base amount of $111,000. That proposal was based, according to the closing submissions of Counsel for the applicant, on deducting, from the current balance, the superannuation of approximately $34,000 held by the applicant at the start of the relationship, as well as $24,000 representing the amount of the bank loan which the applicant deposed to repaying after separation and the sum of $12,000 which the applicant is required to pay to the respondent pursuant to the orders of 14 October 2021. The applicant proposed that the resulting sum of approximately $222,000 be divided equally so that the respondent receives $111,000 by way of superannuation. Relevantly, this sum was less than the superannuation split of approximately $131,000 proposed in the applicant’s case outline document.
The amount of superannuation held by the applicant at the start of the relationship is a relevant contribution on her behalf. Whilst her repayment of the Commonwealth Bank and Company AG loans and her payment of both the sum of $12,000 and child support are all relevant post-separation contributions, those contributions have to be weighed against the contributions of the respondent in caring for X since separation. I do not accept that the appropriate approach is to deduct the amount of the loan and spousal maintenance paid from the superannuation balance but I do take those contributions into account.
The respondent proposed that she should receive 75% of $252,216, which was said by her Counsel to be the superannuation accumulated during the relationship (in other words the current balance less the balance as at 31 December 2012). The respondent therefore sought a base amount of $189,162.
Counsel for the respondent also submitted that the respondent would not have to wait until retirement age to access her super but would be able to do so at an earlier stage on the basis of hardship. This submission was challenged by the applicant and as there was no evidence to support it, I place no weight upon it.
Although the parties agreed that the quantum of the superannuation splitting order would be dealt with on the basis of submissions alone, their submissions amounted to little more than stating the orders sought by their respective clients.
Doing the best I can with the limited information available, I assess the contributions of the parties at 52.5% to the applicant and 47.5% to the respondent. I am satisfied that takes into account the myriad of contributions made by both parties across the entirety of the relationship as well as the initial and post-separation contributions to which I have referred.
In relation to the parties’ future needs, I take into account the modest pool of assets available for division, and the respondent’s health issues which together with her primary care of X will negatively affect her ability to obtain paid work. I note also the applicant’s comparatively significant weekly income and her much greater ability to rebuild her superannuation fund in the future. There will be an adjustment of 7.5% in favour of the respondent in respect of s.75(2) of the Act.
The overall adjustment is therefore 55% to the respondent and 45% to the applicant in respect of the applicant’s superannuation. That percentage division will be applied to the most accurate figure for the applicant’s fund available at trial, namely $286,637. The superannuation split from the applicant to the respondent is therefore $157,650.
On that basis I am satisfied that in the circumstances of this case that the outcome is just and equitable.
In circumstances where procedural fairness in respect of a fixed base amount superannuation split has not been afforded to the superannuation trustee, I am currently unable to make any superannuation splitting orders. I understand that the respondent’s solicitor wrote to the superannuation trustee on 11 November 2022 requesting procedural fairness. Upon receipt of procedural fairness and a copy of that correspondence being provided to my chambers, I will make the aforementioned superannuation splitting orders in chambers and otherwise dismiss all extant property applications.
In the event that procedural fairness is not forthcoming, I have adjourned the matter to 2 December 2022 at 9:30am for further directions.
Spousal maintenance
In her further amended response filed on 27 July 2022 the respondent seeks an order pursuant to s.74 of the Act that the applicant pay her spousal maintenance in the sum of $246 per week, to continue until X commences primary school. Her case outline filed on 9 August 2022 puts the amount sought at $150 per week. In her closing submissions, Counsel for the respondent confirmed that her client sought $256 per week but did not explain why this figure was different from that set out in the case outline and her amended response.
In cross-examination, the respondent said that she intends for X to start Grade Prep in February 2026, which would mean that on her proposal the applicant would pay spousal maintenance for approximately three and a half years from the date of these orders. In addition, she seeks an order that the payments be “adjusted annually by the Consumer Price Index”.
In her amended initiating application filed on 27 July 2022, the applicant sought an order that there be “no ongoing spousal maintenance”.
There was minimal cross-examination of either party in relation to the factors relevant to spousal maintenance. The parties’ case outlines set out their contentions in summary, but this issue was not canvassed at any length by Counsel for either party in closing.
Applicable law – spousal maintenance
In the case of Hall & Hall [2016] HCA 23, the High Court restated the principles relevant to the grant of spousal maintenance at [3] to [5]. The gateway to such an award is s.72(1) of the Act which provides as follows:
A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself … having regard to any relevant matter referred to in section 75(2).
Section 74(1) of the Act authorises the court to make whatever spousal maintenance order it considers proper for the provision of maintenance in the context of the other applicable provisions of Part VIII of the Act. This engages, in particular, the list of considerations contained in s.75(2) of the Act which the legislature has directed are to be taken into account in relation to spousal maintenance.
As to the proper approach in considering an application for spousal maintenance, the Full Court in Bevan and Bevan (1995) FLC 92-600 observed at 81,981 to 81,982:
Taken together, then, we would state the law as being that an award of spousal maintenance requires:
1. a threshold finding under section 72;
2. consideration of section 74 and section 75(2);
3.no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and
4.discretion exercised in accordance with the provisions of s 74, with 'reasonableness in the circumstances' as the guiding principle.
Is the respondent able adequately to support herself?
The respondent relied upon her financial statement filed on 27 July 2022 in which she deposes to receiving weekly income on average of $917, consisting of Single Parent Pension of $449, Family Tax Benefit of $115 and child support from the applicant of $352. Her evidence as to her income was unchallenged.
The respondent says that she plans to seek work when X is older but her ability to do so will depend on his progress in the light of his special needs. I accept that evidence.
In her outline of case, the applicant submits that the respondent has failed to provide medical evidence to support her inability to work. The applicant has herself deposed to the respondent requiring support from the applicant with basic care due to her medical conditions. Having alleged that the respondent’s health was so poor that she might be unable to care for X, the applicant is not in a position to argue that she is immediately able to find employment.
The respondent’s reasonable weekly needs
The respondent deposes to having been wholly financially dependent on the applicant during the relationship. She says that she has been unable to afford private health insurance since separation. She says that she requires private health insurance to attend upon a rheumatologist and fatigue specialist, but provides no medical evidence in this regard and does not explain why these specialists are not available to her via Medicare.
In her financial statement filed on 27 July 2022, the respondent deposes to the following personal expenditure:
Rent payments $ 219 Car registration $ 9 Part N – average weekly expenses $ 777 Total $1,005
The respondent’s financial statement was not fully completed as the Part N figure had not been added to the total weekly expenditure at item 33. I have, however, added the relevant figure to the total which appears above. She was not challenged as to any of her items of expenditure.
I am satisfied that the respondent has a shortfall of $88 per week.
The applicant’s capacity to pay spousal maintenance
In her financial statement filed on 9 August 2022, the applicant deposes to receiving an average weekly income of $4,076[4], which comprises a salary of $3,153 per week plus an average bonus figure of $923 per week. She deposes to her partner, Ms W, earning an average of $500 per week.
[4] In her financial statement filed on 9 August 2022, the applicant incorrectly calculated her total average weekly income as $4,077.
The applicant deposes to the following personal expenditure:
Income tax $ 1,297 Rent payments $ 130 Total insurance premiums (car, health) $ 108 Car registration $ 16 Loan repayments (Commonwealth Bank) $ 155 Secured vehicle loan repayments (Bank AB) $ 117 Credit card repayments (Bank AB) $ 20 Child support payments for X and J $ 778 Part N – average weekly expenses $ 672 Total $ 3,293
The applicant conceded in cross-examination that the child support of $850 per fortnight which she pays in respect of J will cease when J turns 18 which will happen before the end of 2022. In his closing submissions, her Counsel submitted that she may wish to continue to pay that amount after J’s 18th birthday, and referred to the possibility of a claim for adult child maintenance in respect of J. There was no evidence before me in respect of those submissions and I attach no weight to them.
The respondent was not challenged about any other aspect of her financial statement.
I am satisfied that the respondent has, at present, a surplus of income over expenditure of $783 per week. Once J turns 18, that surplus will increase to $1,633.
Section 74 and s.75(2) factors
Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
In her outline of case, the applicant submits that X could attend childcare now and could start kindergarten in 2023 which would enable the respondent to work. This submission ignores not only the respondent’s medical problems but also her evidence, with which the family consultant agreed, that the approach to X starting childcare and kinder will need to be both cautious and flexible because of his special needs.
The implications of maintenance to enable a party to retrain or undertake a course of education directed towards increasing income earning capacity
The respondent deposes to intending to take a course in NDIS issues which will assist her in managing X’s care. While she says it may help her with future employment, there is insufficient evidence in that regard for it to be a relevant factor for maintenance purposes.
Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
There is a dearth of evidence before me as to the standard of living that the parties enjoyed during the relationship. Both say that they now live frugally.
The duration of the marriage and its implications for a party’s income earning capacity;
The parties’ marriage lasted just over seven years. I take into account that it does not appear that the applicant expected the respondent to earn an income during the relationship.
Subject to subsection 75(3), the eligibility of either party for a pension, allowance or benefit under a pension or superannuation scheme
For the purposes of assessing the amount of maintenance which is proper, I am required to disregard the respondent’s entitlement to any income-tested pension or benefit. I therefore disregard the single parent pension and family tax benefit which she receives. If those sources of income are wholly disregarded, her shortfall increases to $653 per week.
The order to be made
Section 80 of the Act lists the general powers of the court available in respect of its application of Part VIII. They include the power to award maintenance in a lump sum or in periodic form; to award maintenance in the form of property transfer or settlement; and to make an order for maintenance for a designated term.
Taking into account all of the factors set out in these reasons, I will order the applicant to pay the respondent the sum of $200 per week until 31 December 2024, which will on the respondent’s evidence be just before X starts attending kindergarten. I am satisfied that that amount is within the applicant’s capacity to pay, noting that she has been able to pay a total of $12,800 over the last year which equates to about $230 per week. Whilst not eradicating the whole of the respondent’s shortfall once income-tested benefits are disregarded, those payments will significantly reduce her shortfall during the period before X starts kinder, after which she will be in a better position to find work. I am satisfied that the term of the order is appropriate given the duration of the relationship and the respondent’s evidence about her intention to find work once X is older. Given the relatively short term of the order, I will not order that the payments be adjusted annually by the Consumer Price Index.
I make orders as are set out.
I certify that the preceding two hundred and eighty-one (281) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burt. Associate:
Dated: 17 November 2022
0
12
0