Otmar & Mack
[2024] FedCFamC2F 37
•23 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Otmar & Mack [2024] FedCFamC2F 37
File number(s): MLC 2416 of 2021 Judgment of: JUDGE O’SHANNESSY Date of judgment: 23 January 2024 Catchwords: FAMILY LAW – final parenting orders – final property orders – where unintended consequence of mandatory provisions of section 102NA family violence cross examination scheme contributed to delay of long awaited final hearing – where both parties seek sole parental responsibility – where one parent seeks teenager live with him and have no contact with other parent – where other parent seeks teenager live with her and have limited time with other parent – one parent spends no time with teenager and alleges other parent has alienated teenager from her – expert evidence regards teenager as mature – where teenager shows no empathy for one parent – where court not satisfied teenager mature– family therapy attempted twice – where parent not seeing child has had past episodes of poor mental – where teenager has given vague and contradictory reasons to reject one parent – consequences for teenager to force time with a parent – whether alleged perpetrator of assault was the victim – one parent assaulted by other but the assaulted parent removed from home by police and charged with assault – where charges withdrawn after recording provided much later – weight to be given to many years of different contributions – whether one parent suffered mental health issues – whether one parent pre-occupied with perceived danger of a politician and whether that indicates mental health relapse – Alcohol and illicit drug consumption – much greater consumption by one parent – whether restriction on drug and alcohol consumption should be imposed on resident parent – weight to be given to significant inheritance – weight to be given to section 90SM factors-common ground former relationship home to be sold – final orders made for teenager to spend time with one parent as she wishes and to live with parent with high alcohol consumption – restraint on alcohol consumption. Legislation: Evidence Act 1995 (Cth) ss 59, 128, 140
Family Law Act 1975 (Cth) ss 4AB, 11F, 60B, 60CA, 60CC, 60CF, 60CG, 61DA, 65AC, 69ZT, 90SF(3)(c), 90SM(4)(e), 90SL, 90SS, 102NA
Family Violence Protection Act 2008 (Vic)I
Cases cited: Clauson & Clauson (1995) FLC 92-595
Fox v Percy (2003) 214 CLR 118
Gartrell & Deakin (2019) 67 Fam LR 23
Hickey and Hickey and the Attorney-General [2003] FamCA 395
Hobson v Hobson (2020) 61 Fam LR 557
Kennon v Kennon [1997] FamCA 27
Keskin & Keskin and Anor [2019] FamCAFC 236
Lovine & Connor and Anor [2012] FamCAFC 168
Mallet v Mallet (1984) 156 CLR 605
Parshen & Parshen (1996) FLC 92-720
Rosati v Rosati (1998) FLC 92-804
Stanford v Stanford [2012] HCA 52
Varnham & Moses (2021) FLC 94-007
Wallis & Manning (2017) FLC 93-759
Wayne & Wayne [2010] FamCAFC 33
Division: Division 2 Family Law Number of paragraphs: 330 Date of hearing: 6, 7, 8, 9 & 10 March, 3 May 2023 Place: Melbourne Counsel for the Applicant: Mr J. Levine Solicitor for the Applicant: Matrix Legal Counsel for the Respondent: Mr C. Dunlop Solicitor for the Respondent: Forty Four Degrees Counsel for the Independent Children's Lawyer: L. Marchetti Solicitor for the Independent Children's Lawyer: Bowlen Dunstan And Associates Pty ORDERS
MLC 2416 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS OTMAR
Applicant
AND: MR MACK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
23 JANUARY 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be, and are, discharged.
PARENTING
2.The Father, Mr Mack (‘the Father’) have sole parental responsibility for the child X born in 2007 (‘X’) provided that, save in emergency, before he makes any major long term decision about the care, welfare and development of X (‘the decision’) the Father;
(a)inform the Mother, Ms Otmar (‘Mother”), of all details of the decision he proposes, in a timely manner by text message or email; and
(b)in the event the Mother responds in a timely manner, consider her response, and;
(c)inform the Mother in a timely manner, by text or email, of the decision.
3.X live with the Father.
4.X spend time and communicate with the Mother in accordance with X’s wishes and for that purpose the Mother keep the Father informed of a mobile phone number and email address suitable to her for communication with X, and the Father do all acts and things necessary to ensure X is kept aware of the mobile phone number and email address provided by the Mother for that purpose.
5.That on the occasions of X’s birthday, Mother’s day and Christmas Day and in addition, on other occasions as the Mother chooses, but not more frequently than once each school holiday, the Mother be and is permitted to send X a short letter by text message or email and for that purpose the Father keep the Mother informed of X’s mobile phone number and X’s email address as are suitable for the Mother’s communication with X, and the Father do all acts and things necessary to ensure the Mother is kept aware of X’s mobile phone number and X’s email address for this purpose.
6.Each parent do all acts and things to cause and ensure that both parents are authorised to obtain, from any school X may attend, copies of all school reports, school newsletters and school photographs and any other documents that parents are normally provided with, and the provision of these Orders shall act as an authority for same.
7.When X is in the Father’s care or living with him or in his company the Father be and is restrained from consuming any alcohol or illicit drug, including beer and/or illicit substance, at all, and for the avoidance of doubt, that means none at all.
8.Each of the parents, their servants or agents, be and are restrained from denigrating the other parent to or in the presence or hearing of X or allowing any other person to do so;
9.Each parent inform the other, in a timely manner, in the event that X suffers a serious illness or serious injury or serious medical condition.
10.For the purposes of these orders, X’s parents communicate, only in temperate terms, by text message or email and each keep the other informed of a mobile phone number and email address available for that purpose.
11.The Independent Children’s Lawyer (‘the ICL’), explain, in such manner as the ICL sees as appropriate, these orders and such aspects of the reasons for this decision as appropriate, taking into account X’s current circumstances, and following such explanation, is discharged.
12.All extant parenting applications are otherwise dismissed.
FINAL PROPERTY ALTERATION ORDERS
Former matrimonial home
13.The Mother and the Father do all acts and things to cause and ensure the real property located at B Street, Suburb C (‘the FRH’) be advertised on the market for sale by private treaty to be sold as soon as practicable but not later than 90 days from the date of these Orders and the proceeds of the sale be disbursed as follows:
(a)First, to pay all the costs and commissions and expenses of the sale, including legal fees and conveyancing fees;
(b)Second, to discharge the mortgage secured against the FMH and any other encumbrance affecting the FMH; and
(c)Third, the fees of Ms M, for appearing at the final hearing be paid, and in the event either party has already paid those fees or part thereof, that party be reimbursed such proportion, either 58% or 42% as the case maybe, to the same effect as if those fees were being paid from the proceeds of sale.
(d)Fourth, the balance to be split as follows:
(i)42 % to the Mother; and
(ii)58 % to the Father; and
(iii)on account of Motor Vehicle 1 and Motor Vehicle 2 to be retained by the Mother, from the Mother’s 42% there be paid to the Father the sum of $8,700 (58% of the Motor Vehicle 1 and Motor Vehicle 2 valued together at $15,000); and
14.If the FRH fails to be sold by private treaty within 90 days of the date of these orders, then the parents take all necessary steps and execute all necessary documents to cause the former matrimonial home to be sold by public auction at the earliest practical date and the proceeds of sale be distributed in the same manner as provided in the previous order.
15.For the purpose of the sale of the FRH:
(a)Within 14 days the parties jointly appoint an independent conveyancer or solicitor to act as the conveyancer; and
(b)Within 14 days the parties jointly appoint a real estate agent (‘the agent’) and failing agreement as to the agent the parties or either of them request the President of Real Estate Institute of Victoria (“REIV”), or his nominee, to nominate a suitable agent for the purpose of the sale of the former matrimonial home;
(c)The reserve price be set at $920,000 unless otherwise agreed between the parties in writing;
16.Pending the sale and settlement of the FRP:
(a)The Father have the sole right to occupy the FRP and during such right of occupation the Respondent shall be liable for and pay for all rates and taxes and like apportionable outgoings of the property as and when they fall due;
(b)For the purpose of the sale the Father take all steps necessary to maintain and present the FRP at the standard advised by the agent in writing.
(c)The parties hold their respective interests in the former matrimonial home upon Trust pursuant to these Orders;
(d)The parties be and are hereby restrained from encumbering the former matrimonial home without consent in writing from the other party; and
(e)The parties take all necessary steps to prevent the building permit issued in respect of the former matrimonial home from lapsing prior to the sale at their equal shared expense.
(f)Unless advised to the contrary by the agent the remaining renovation items including the tapware, bath, toilets, vanity, shower should be neatly left in the FRH for the purpose of enhancing the prospects of sale.
(g)Any insurance fees arising out of the building permit issues to be shared in the proportions of 58% by the Father and 42% by the Mother.
Timber flooring
17.Subject to the advice of the agent, the parties endeavour to sell the timber flooring, stored at D Store (‘the timber flooring’), together with the FRH, and the parties follow the advice of the agent in this regard.
18.If the timber flooring is not sold with the Family Home, the parties take all necessary steps and execute all necessary documents to sell the timber flooring for the best price available, with a reserve price as agreed, and in default of agreement, a reserve price of approximately $10,500.00 unless otherwise agreed between the parties in writing, and the sale proceeds be distributed between the parties in the proportions of 58% to the Father and 42% to the Mother with the Father to have the conduct of the timber flooring but provided the Mother is informed of the proposed sale prices, sale conditions and identity of the purchaser before any sale.
E Company Fund
19.Within 14 days of the date of these Orders, the parties take all necessary steps and execute all necessary documents to cause the removal of the Mother’s name from the parties joint membership number … with F Company (formerly E Company Fund) in respect of both and/or either of the parties children without causing a surrender payment to be made.
Winding up the companies and the trust
20.The parties do all acts and things to wind up and/or deregister (‘the winding up’) the Trust or settlement known as G Family Trust and the Companies, H Pty Ltd and J Pty Ltd, (collectively referred to as ‘the Companies and the Trust’), including the retention of a suitable accountant as agreed (‘the accountant’) to undertake the winding up.
21.For the purpose of the winding up;
(a)The parties jointly retain a suitable accountant; and
(b)The parties do all acts and things, and if required the amendment or rectification of accounts, to cause the debts of the parties or either of them to the Companies and Trust to be recorded and/or treated as due from them to the effect that, in the event of a surplus after such amendment or rectification and the winding up, then such surplus be divided between the parties in the proportions of 85% to the Father and 42% to the Mother, and to the effect that in the event of a deficiency after such amendment or rectification and the winding up, then the parties contribute to such deficiency in the proportions of 58% by the Father and 42% by the Mother.
22.For the purpose of the winding up the parties do all acts and things necessary to sell:
(a)the Motor Vehicle 3; and
(b)the Motor Vehicle 4; and
(c)the Motor Vehicle 5;
and apply the entire proceeds towards the winding up with the Mother to have the conduct of those sales but provided the Father is informed of the proposed sale prices, sale conditions and identity of the purchaser before any sale.
Superannuation Splitting Orders
23.These superannuation splitting Orders are binding upon K Pty Ltd (“Trustee”) as the Trustee of Super Fund 1 (“Fund”) of which the Respondent Father is a member.
24.The base amount to be allocated to the Applicant Mother out of the total interest of the Respondent Father in the Fund is $13,857 (“Base Amount”).
25.Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth), whereby the Trustee of the Fund makes a splitable payment from the interest held by the Respondent Father in the Fund, the Trustee shall:
(a)Pay to the Applicant Wife the Base Amount referred to in the preceding Order, which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)Make the corresponding reduction in entitlement which the Respondent Father would have had in the Fund but for the provision of these Orders.
(c)These superannuation splitting Orders have effect from the operative time and the operative time is seven days after service of a sealed copy of these Orders on the Trustee.
26.Until the happening of any of:
(a)The establishment of a separate account in the name of the Applicant Mother in the Fund; or
(b)The transfer or "rolling over" into another superannuation fund of the payments created by these Orders;
(c)The Applicant Mother satisfying a condition of release of being paid the payment split which was created by these Orders; or
(d)The Applicant Mother executing a waiver of right within the meaning of section 90XZA of the Family Law Act 1975 in relation to payments created by these Orders –
the Respondent Father be and is hereby restrained by himself, his servants, or agents from executing a Death Benefit Nomination in favour of any person or doing any act or thing which would render any part of his interest in the fund a "non-splittable payment" within the meaning of regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 and the Trustee of the fund shall give effect to these Orders.
Ancillary orders
27.The Applicant Mother retain to the exclusion of the Respondent Father:
(a)Motor Vehicle 1 and Motor Vehicle 2, and the Father execute any necessary document to facilitate the transfer of the registration of Motor Vehicle 2 to the Mother at her expense, if any.
(b)Any funds standing to her credit in bank accounts in her personal name.
28.Save as provided in these orders, the Respondent Father retain to the exclusion of the Applicant Mother:
(a)Any funds standing to his credit in bank accounts in his personal name;
(b)the membership number … with F Company (formerly known as E Company Fund);
(c)The household items and furniture situated in the FRH.
29.Failing agreement within 14 days of these orders as to who the accountant and/or the conveyancer will be the parties do all things necessary to request the President of the respective professional association of the accountant and/or the conveyancer, as the case maybe, to nominate a suitable person to carry out the work and the parties retain the person nominated as soon as practical.
30.Unless otherwise specified by these Orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these Orders and the contents, household items and furniture situated in the FRH are deemed to be in the possession of the Father;
(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c)The parties shall do all such acts and things and sign all necessary documents to close bank accounts in their joint names and any funds standing to the credit of the parties in those accounts shall be distributed to the parties equally;
(d)Each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these Orders;
(e)All insurance policies are to become the sole property of the owner as named;
(f)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(g)Any joint tenancy of the Applicant Mother and Respondent Father in any real or personal estate is expressly severed.
31.The parties do all acts and things and give all consents and execute all documents and writings necessary to give effect to these Orders.
32.There be liberty to apply to Judge O’Shannessy as to any difficulty implementing these Orders.
33.All extant property applications are otherwise dismissed.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
[1]
BACKGROUND
[6]
THE PROCEEDINGS
[11]
First interim orders
[13]
The section 11F report
[14]
First interim parenting orders
[17]
Matter set down for final hearing
[19]
The ill-fated contravention application holds things up
[20]
Mother self represented and the long awaited final hearing adjourned
[23]
More interim orders and more family therapy
[25]
Final Intervention Order against the Father
[26]
FINAL HEARING
[28]
Documents relied upon
[32]
Exhibits tendered
[36]
PARENTING: WHAT QUESTIONS MUST BE ANSWERED?
[37]
APPLICABLE LAW
[39]
Standard of proof
[39]
Credit of the parties
[40]
Family Law Act 1975 (Cth) Provisions
[43]
SOME SIGNIFICANT EVENTS
[44]
January 2021: the night of the injury
[45]
Mother’s version of the incidents
[46]
Father’s version of the incident
[52]
The ICL’s version of the incident
[57]
The transcript and the recording of the January 2021 Incident
[59]
The first forced entry into bedroom
[60]
The second forced entry into the bedroom
[63]
Father continues while on top of the Mother
[72]
The Police attend and remove the Mother from FRH
[83]
Conclusion: the night of the injury
[88]
Communication with the children after the January 2021 incident/s
[95]
Not the sole cause
[101]
The weekly telephone communication
[104]
Family Therapy X 2
[108]
The Family Report
[112]
The assertion of maturity
[124]
X not responsible for the train wreck
[125]
Alcohol and illicit drugs
[129]
The family report and father reporting alcohol consumption
[133]
The handyman and alcohol
[134]
The health records and alcohol
[135]
The DUI conviction with child Mr L on ‘L’ Plates
[137]
The next hair follicle test shows low to moderate drinking
[139]
The last hair follicle test: heavy consumption shown
[140]
Father does not regard his alcohol consumption as a problem
[144]
Illicit substance use
[148]
Illicit drugs only once
[155]
The sexual assault allegations
[156]
Alleged identification of the Father by the neighbour
[164]
THE DETERMINING ISSUES
[173]
The extent of the Mother’s involvement in the children’s lives prior to separation.
[174]
Whether the Mother had mental health difficulties…
[175]
Mother’s mental health history
[175]
Mother’s hacked social media account
[187]
Mother’s handwritten notes
[191]
Notes should have been disclosed
[195]
Conclusion as to Mother’s mental health and impact on children
[197]
Which parent was violent to the other on the night of the injury…
[201]
Whether the Father had and has a substantial alcohol consumption…
[202]
Whether the Mother blamed or denigrated the Father during weekly telephone calls…
[203]
Whether the Father “alienated” the children from the Mother
[208]
Conclusion as to whether Father “alienated” the children
[216]
The weight to be given to X’s wishes described in expert evidence as “mature”...
[219]
The impact on X if she were compelled to live with or spend time with the Mother.
[225]
Section 60CC factors
[229]
The benefit of a relationship with both parents
[230]
The need to protect children from physical or psychological harm
[231]
Nature of relationship with each of the child’s parents and other persons
[232]
Practical difficulty and expense
[233]
Capacity to provide for the child’s emotional and intellectual needs
[234]
Attitude to the child and to the responsibilities of parenthood
[235]
Family violence & section 60G
[236]
Final or interim orders
[238]
CONCLUSION AS TO PARENTING MATTERS
[239]
X to live with her Father
[239]
Restraint of Father’s alcohol consumption
[240]
Parental responsibility for long term decisions
[241]
Orders for limited communication and obtaining some information
[242]
Need for orders to be explained
[246]
PROPERTY ALTERATION
[247]
The issues in dispute
[248]
THE APPLICABLE LAW
[250]
Stanford
[254]
The preferred approach
[261]
APPLICATION OF THE PREFERRED APPROACH
[264]
Step one: identify the property and liabilities
[264]
Common ground: Alter egos and need to wind up trusts and companies
[266]
The E Company fund
[268]
The motor cars
[269]
Superannuation
[272]
Recasting the list of assets and liabilities
[273]
Step two: section 90SM(4)(a), (b) & (c) contributions
[276]
Weight to be given to inheritance
[278]
Homemaker and parent income contribution
[287]
Post separation homemaker and parent contribution impaired
[288]
Not a Kennon case
[296]
Conclusion as to contribution
[297]
Step three: section 90SF(3) factors
[299]
Age and state of health
[300]
Income, property, financial resources and capacity for employment
[303]
Care of children under 18 years
[307]
Commitments of each of the parties to support themselves or a child
[310]
Responsibilities of either party to support any other person
[312]
Whether party cohabiting with another person
[313]
Child support to be provided
[314]
Conclusion as to section 90SF factors
[315]
Step four: just and equitable and conclusion
[323]
CONCLUSION
[325]
INTRODUCTION
The Applicant, Ms Otmar (‘the Mother’) and the Respondent, Mr Mack (‘the Father’) ask the Court to determine the living and spend time arrangements for now 16 year old X and what property alteration orders should be made now that X’s parents are separated.
Since separation X has not spent any time with her Mother, despite her Mother being desperate to see her. At separation the Mother was excluded from the home by a family violence order and later charged with assault. The Father has continued to live in the parties’ home and for some of the time has serviced the mortgage debt secured over that home.
The parties disagree about who their teenage daughter should live with, what time their daughter should spend with the parent with whom she does not live with, which parent should have sole parental responsibility and whether one or the other parent should receive a larger share of the proceeds of sale of the jointly owned former relationship home (‘FRH’).
The Mother seeks that I make orders for her to have sole parental responsibility of X, for X to live with her, and X to spend only limited time with the Father (alternating Sundays from 10am until 3pm with telephone calls each Tuesday at 6pm for 15 minutes). The Mother seeks additional provisions for each parent to be authorised to obtain information normally obtained by parents from X’s school, provision for communication between the parents, various restraints on both parties including denigration, exposure to family violence and notification in the event of any illness or injury to X.
The Father seeks that I make orders for him to have sole parental responsibility for X, for X to live with him, and X to spend time with the Mother in accordance with X’s wishes, in substance, no time.
BACKGROUND
The parents commenced a relationship in 1995 and began cohabiting in 2003. The parents did not marry, but separated on a final basis under the one roof in December 2020 on the Mother’s case, or 17 January 2021 on the Father’s case, but in reality and I find, on 26 January 2021.
There are two children of the relationship, Mr L born in 2005, now aged 18 years and no longer a child of these proceedings, and X born in 2007 and who turned 16 years shortly after the final hearing concluded (collectively ‘the children’). The children live with the Father and do not spend time with the Mother. Although there have been, pursuant to court orders, provisions for weekly telephone contact between the children and the Mother since 6 May 2021, these calls have been unsuccessful in maintaining a relationship between the children and the Mother.
The Mother receives WorkCover payments as a result of an injury incurred, but is not otherwise employed. The Mother disputes a diagnosis of a mental illness but has been diagnosed with a medical condition. She resides with her Mother, approximately 20 minutes away from the FRH. The Father is employed as a retail worker and is in good enough health. He continues to reside in the FRH with the children.
The Mother’s evidence and case during these proceedings was that she was the victim of family violence and sexual assault during the relationship. She says she was misidentified as the perpetrator of violence after the Father called an ambulance for her and police attended at the time of separation. She was removed from the family home in early 2021 after an incident where each asserts they were assaulted by the other. The Mother’s case is that the Father has alienated the children from her, and she raised serious concerns about the Father’s alcohol and illicit substance use. She seeks orders for X to live with her and spend limited time with the Father. The Mother relies heavily of the Father’s alcohol consumption as being an unacceptable risk to the welfare of X if she lives with the Father.
The Father denies all allegations of family violence and the allegations of sexual assault and asserts he was the victim of controlling behaviour. After objecting to giving some evidence on the grounds he may incriminate himself, he was granted a certificate pursuant to section 128 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) relating to any oral evidence he gave touching on illicit drug cultivation, possession or use. He conceded cannabis cultivation, possession and use, and gave evidence that both parties engaged in cannabis and other drug use. He said he did not regard his drinking as problematic. The Father asserted that the children’s relationship with their Mother has broken down and they do not wish to, and should not, be forced to, communicate with her.
THE PROCEEDINGS
The Mother commenced proceedings on 5 March 2021, seeking an urgent listing and to be excused from obtaining a section 60I certificate. She sought, among other orders, on an interim basis the children to live with her and the children to spend no time with the Father until such time as he produced three consecutive clear drug test results. She sought sole occupancy of the FRH and for the parents to obtain, as it was then known, a section 11F[1] report or Child Inclusive Conference report (‘section 11F report’). She asked that she particularise the final orders she sought at a later date.
[1] Section 11F of the Family Law Act 1975 (C’lth) (‘the Act’).
The Father filed a Response to the Mother’s application on 8 April 2021. He sought orders for the children to live with him, the children to communicate with the Mother via phone or video calls conditional on the children’s consent, for the Mother to obtain a psychiatric assessment and for the parents to obtain a section 11F report. He also sought hair follicle testing for both parents not more than once per month, for a period of 12 months, at the request of the other party. He sought, among other property orders, sole occupancy of the FRH, restraints on either parent further encumbering the FRH or the parents business, and valuations to be completed of the FRH and business.
First interim orders
On 12 April 2021, the matter came before a Judicial Registrar of this Court who made orders, among others, for a section 11F report, financial disclosure by each party and the parents to attend a Conciliation Conference on 2 July 2021. No orders were agreed to or made in relation to parenting matters. At this point the children lived with the Father and, save for a text message the day after the Police removed the Mother from the home 2 ½ months earlier, the children had neither communicated, or spent time with the Mother. The assault charges against the Mother, arising from the night the Police removed the Mother from the home, were then still pending and the Mother had been charged with assault on the Father only two weeks earlier.
The section 11F report
The section 11F report was subsequently undertaken and released on 22 April 2021. The purpose of a section 11F report (now a Child Impact Report) is as described by Bennett J in Boyd &Sage [2020] FamCA 482 at paragraph 15 as below:
That assessment is a "Child Inclusive Conference" which is a meeting with a Family Consultant, the adults and the children involved in the matter and is ordered by the Court. Lawyers are not included. The conference is intended to give the Court an understanding of the family situation, and particularly of the child/ren's experience. The conference can help the judicial officer hearing the case make short-term decisions about arrangements for the child/ren. It may also help the parties reach an agreement. A Family Consultant is an expert psychologist or social worker with a high level of training and experience in child development and parenting after separation and divorce. Family Consultants are employed directly and exclusively by the Court in Child Dispute Services which is located within the Registry.
In mid-2021, that is 2 ½ months after the January 2021 incidents (also known as the night of the injury) and the children’s last communication with then Mother (both discussed in detail later), the parties and children were interviewed for the purposes of the section 11F report. X reported that since the Mother’s departure, the family home was “far more calm and relaxed” and that when her Mother had been there it was “tense and there was constant arguing.” X reported to feel “rejected” by her Mother when the family were living together as her Mother was swept up in international politics.
I refer in particular to the following paragraphs of the report:
26.[X] and [Mr L] are aged 13 and 16. Their home environment has been described as one of long-term and enduring conflict. Regardless of which parent was the primary agitator of this, it is clear that this exposure has had a significant impact on their emotional well-being. Moving forward, it is important that the children be safeguarded from adult conflicts and disputes.
27.Both of the children presented as highly resistant to re-establishing a relationship with their mother at this point in time. This position is extreme, particularly considering the minimal amount of time that has lapsed since [the Mother] leaving (sic) the home. This could be considered a disproportionate response, indicating that other factors could potentially be manipulating the children’s viewpoints.
28.The children’s resist and refusal positions presented as rigid … considering their age and stage of development, forcing the issue of spending time with their mother at this point, would likely be counter-productive and could be detrimental in the long term outcomes of the relationship. … it will be beneficial for [the children] to be encouraged but not forced to re-establish a relationship with [the Mother]. …
(emphasis added)
First interim parenting orders
On 28 April 2021 the matter was again listed for Mention, and on 6 May 2021 for interim defended hearing. On 6 May 2021, and I infer influenced by the section 11F report, consent orders were made for the children to live with the Father until further order, and the children to communicate with the Mother only once per week by telephone (‘the weekly telephone calls’) and the Mother to be at liberty to send the children cards, gifts and letters. There was no time spend with the Mother ordered.
An Independent Children’s Lawyer was appointed, both parents were to obtain hair follicle tests and the parents were to engage in family counselling with a psychologist. The Mother was to obtain a report from her treating psychiatrist setting out her diagnosis, prognosis, treatment and prescribed medication. With respect to property matters, further orders were made for the parents to provide full and frank disclosure, the Mother to provide the Father’s computer passwords to him, and a restraint from encumbering, selling or disposing any asset of the parties without consent of the other party.
Matter set down for final hearing
The parents did not reach agreement at the Conciliation Conference on 2 July 2021. On 16 July 2021 orders were made for the preparation of a Family Report, trial directions and the matter was listed for final hearing on 14 September 2022 (that is then a bit over one year away) with an estimated hearing time of three days. No changes were made to the parenting orders, hence the Mother only had orders for weekly telephone time with the children. On 23 March 2022 the Family Report was released to the parents.
The ill-fated contravention application holds things up
On 3 August 2022 the Mother filed a Contravention Application[2] detailing many instances in which she alleged the Father had failed to comply with orders for her to: communicate with the children via telephone each Tuesday, the Father failing to engage the children with family therapy on a regular basis to support reunification, Father failing to notify her of Mr L being unwell and absent from school for more than one week, the Father failing to produce documents for her to deal with an overdue account with the Australian Taxation Office (‘ATO’) and the Father failing to pay arrears of the FRH mortgage.
[2] The Mother asserts, and was not contradicted, she commenced this process or application, back in March 2022 but “it was lost in the system somehow and it wasn’t filed until August 2022” (Mo trial affidavit at [85])
The Contravention Application was listed before a Senior Judicial Registrar on 5 August 2022. The matter was adjourned for a directions hearing on 19 August 2022 in the National Contravention List with the following relevant notations:
A.The Court strongly recommended to the Mother that she withdraw her Contravention Application and focus on the substantive proceedings in circumstances where the Initiating Application is listed for Final Hearing for 3 days commencing on 14 September 2022.
B.The purpose of the adjournment is to allow time for the Mother to consider her position in relation to the Contravention Application and further time for legal advice.
On 19 August 2022, the Mother, and I infer, sought to press her contravention application and it was adjourned to a date to be advised to deal with the alleged contraventions at a defended hearing. The contravention application was later listed for final determination on 9 November 2022.
Mother self represented and the long awaited final hearing adjourned
Pursuant to orders of the July (2021) of the previous year (that is 14 months earlier) the substantive parenting and property proceedings were listed for a three day final hearing on 14 September 2022. But on 5 September 2022 the Mother became self-represented. The provisions of section 102NA of the Family Law Act 1975 (Cth) were clearly in play.
The unintended consequence of the mandatory provisions of that scheme meant that the matter could not then proceed as a final hearing with any degree of procedural fairness to the parties. Also the contravention application was still outstanding, and consistent with usual practice, the parties either sought or acquiesced in the position that the contravention application should be dealt with before the final hearing and, in any event, they had not filed their evidence in chief or obtained a valuation of the FRH. Hence the matter was not able or ready to proceed. I made orders, among others, for the final hearing to be listed on 6 March 2023, for the existing trial directions to remain in place, and for the parents to obtain a joint valuation of the FRH. I made an order to the effect that the parties would not be permitted to personally cross-examine the Father and for the Mother to apply for assistance pursuant to the section 102NA Family Violence Cross-Examination Scheme.
More interim orders and more family therapy
On 6 November 2022 the Mother filed a Notice of Discontinuance in relation to the Contravention Application. The parents submitted interim consent orders providing for the previous order with respect to telephone calls and the Mother provided cards, gifts and letters to be discharged, and a new order for the children to communicate with the Mother each Tuesday between 10:30pm and 10:45pm. A further order was made for the parents to attend family counselling with Ms M. The matter remained listed for final hearing on 6 March 2023.
Final Intervention Order against the Father
On 21 October 2022 the Mother made an application for Intervention Order against the Father, protecting herself, and an interim order was granted on 24 October 2022. On 7 November 2022 the Father consent without admissions to a final order to expire on 10 November 2025.
On 14 November 2022 the Mother filed an Application in a Proceeding seeking an urgent hearing, and orders for the Father to pay the full arrears of the joint mortgage and for the Father pay all mortgage payments moving forward. The Mother raised concerns with the Father’s illicit substance use, the Father’s alcohol consumption resulting in her vehicle, when in the Father’s possession, being impounded, and an allegation that the Father had put holes in three of her tyres. She raised concerns he was not contributing towards the mortgage which in turn would affect her credit rating. On 6 December 2022 the Mother filed a Notice of Discontinuance of that application.
FINAL HEARING
On 1 February 2023 the Father filed his trial material, seeking leave to proceed undefended amongst other orders, I infer, as the Mother had not complied with trial directions for filing. On 21 February 2023 the Mother’s solicitors (appointed pursuant to the section 102NA scheme) came on board and filed the Mother’s trial material.
The matter was listed for final hearing on 6 March 2023 and, although always listed for (and the Court advised the hearing would be) three days. The matter proceeded over six days, being 6, 7, 8, 9 and 10 March 2023 and 3 May 2023. Only a small part of the first day was available to the parties due to other matters being dealt with. All parties were represented by solicitor and counsel.
I thank counsel and solicitors for their efficiency in the conduct of the difficult proceedings. The parties were robustly represented and points available to be made were made and marginal points were not pursued. It must be recognised that that in a criminal or tortious court environment the sexual abuse allegations alone would likely have taken longer than the entire final hearing, yet the parties and their lawyers are expected to, and did, compress those allegations plus the other many other issues and events over 20 years, both parenting and property division issues, into the (really) five days the final hearing took. I am grateful to counsel and solicitors for their discipline and skill in containing the issues and time needed to the essential and necessary.
At the end of the last day of the final hearing I discharged the then extant order for weekly telephone time between the Mother and the children and reserved my reasons. These reasons include my reasons for discharging that interim order for communication. These reasons exceed the no more than 3 months delay guideline of the court and I apologise to the parties for the delay.
Documents relied upon
The Mother relied upon the following documents:
·Amended Initiating Application filed 20 February 2023;
·Trial affidavit of the Mother filed 20 February 2023;
·Financial Statement filed 20 February 2023;
·Affidavit of Dr N filed 20 February 2023;
·Affidavit of Ms O filed 23 February 2023.
The Mother, after filing a Notice of Address for Service indicating an intention to represent herself on 17 May 2023, filed an affidavit herself and an affidavit of another person. I have not read, and do not accept, those documents into evidence.
The Father relied upon the following documents:
·Family Report prepared by Ms P dated 15 March 2022;
·Report of Q Company (valuation) filed 1 February 2023;
·Amended Response to Final Orders filed 1 February 2023;
·Trial affidavit of the Father filed 1 February 2023;
·Financial Statement filed 20 February 2023;
·Affidavit of the Paternal Grandfather filed 24 February 2023[3];
·Affidavit of therapist, Ms M filed 2 March 2023;
·Affidavit of Reply by the Father filed 2 March 2023.
·Father’s Police statement, 16 February 2021, MM-01 to Father’s affidavit 8 April 2021.
[3] This was not permitted to be relied upon and was not accepted into evidence.
The Independent Children’s Lawyer relied upon the following documents:
·Section 67Z Response from dated 7 April 2021;
·Child Impact Report prepared by Ms R dated 22 April 2021;
·Section 67Z Response from Dept of F, F& H (‘Child Protection’) dated 14 My 2021;
·Family Report prepared by Ms P dated 15 March 2022;
·Section 67Z Response from Dept of F, F& H (‘Child Protection’) dated 6 December 2022;
·Affidavit of therapist Ms M filed 2 March 2023;
Exhibits tendered
Exhibits tendered during the Final Hearing are as follows:
·M1: Exhibit MM03 report of Dr S 17 June 2021 and notes (page 13-18 of the Father’s Affidavit filed 15 July 2021) exhibited 6 March 2023;
·M2: Mother’s Cost Notice exhibited 7 March 2023;
·F1: Father’s Cost Notice exhibited 7 March 2023;
·M3: Photocopy of Mother’s notes and original notes dated 7 March 2023;
·M4: Orders sought by Mother emailed by Mother’s solicitor on 4 March 2023 exhibited 7 March 2023;
·F2: Draft Joint Asset & Liability Statement exhibited 7 March 2023;
·F3: Father’s proposed orders sought exhibited 7 March 2023;
·ICL1: Independent Children’s Lawyers cost notice exhibited 7 March 2023;
·C1: Three video recordings provided by the Mother of the incident in January 2021 exhibited 9 March 2023;
·M5: Mother’s ‘transcription’ (with some commentary) of the January 2021 incident exhibited 9 March 2023;
·M6: Layout of master bedroom drawn by Mother exhibited 9 March 2023;
·M7: Police narrative of incident from subpoena notes (3 pages) exhibited 9 March 2023;
·F4: Father’s hair follicle tests dated mid-2021 and late 2022 with CDT test at mid-2021 exhibited 10 March 2023;
·M8: Mother’s hair follicle test dated mid-2021 exhibited 10 March 2023;
·ICL2: T Hospital subpoena notes exhibited 10 March 2023;
·ICL3: T Hospital notes MDT meeting dated 3 June 2022 exhibited 3 May 2023;
·F5: Father’s hair follicle test dated mid-2023 exhibited 3 May 2023;
·F6: Page 13 Father’s affidavit filed 8 April 2021 (Father’s police statement) exhibited 3 May 2023;
·F7: Page 25 Father’s affidavit filed 8 April 2021 (urine test for illicit drugs as at early 2021) exhibited 3 May 2023;
·ICL4: Independent Children’s Lawyer’s minute of proposed final orders sent to the Court by email on 6 March 2023 exhibited 3 May 2023;
·F8: Father’s proposed final orders as at 3 May 2023 exhibited 3 May 2023;
·M9: Mother’s proposed final orders sent by email on 4 March 2023 exhibited 3 May 2023;
·ICL5: Email and invoice and text message regarding Ms M’s costs provided by the Independent Children’s Lawyer by email on 3 May 2023 exhibited 3 May 2023;
·M10: Mother’s hair follicle test dated mid-2023 received by the Court on 16 May 2023 exhibited 16 May 2023;
·M11: Email from the Mother’s solicitor with attached hair follicle test exhibit M10 received by the Court and the other parries on 16 May 2023 exhibited 16 May 2023.
PARENTING: WHAT QUESTIONS MUST BE ANSWERED?
I will turn first to the parenting matters. The substance of the disputed orders is:
·Whether the Mother, or the Father, have sole parental responsibility;
·With whom X lives; and
·What contact X has with the non-resident parent.
The primary issues that the parties or one of then assert, and I largely accept, must be answered and will inform the disputed parenting orders are:
·The extent of each parent’s involvement in the children’s lives prior to separation.
·Whether the Father “alienated” the children from the Mother and/or has failed to support their relationship with her.
·Whether the Mother had mental health difficulties during the relationship and if so whether these difficulties caused, or contributed to, the disintegration of the Mother’s relationship with the children.
·Which parent was violent to the other, including in the presence of the children, on the day the Police removed the Mother from the FRH (in January 2021).
·Whether the Father had and has a substantial alcohol and illicit substance problem and whether that affects his parenting.
·Whether the Mother blamed or denigrated the Father during her weekly telephone calls with the children.
·The weight to be given to X’s wishes, at final hearing a 15 year old and now a 16 year old, described in expert evidence as “mature”.
·The impact on X, including whether she would co-operate, if she were compelled to live with the Mother.
APPLICABLE LAW
Standard of proof
In these reasons, statements of fact are findings of fact. Findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Credit of the parties
In Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’), at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders who were coming around the bend. The issue was upon which side of the road the collision occurred. The Court of Appeal of the Supreme Court of New South Wales had to interfere with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of the witnesses, that the collision occurred on the Kombi Van’s wrong side of the road. The Court of Appeal found the first instance decision was wrong because of the position of the braking skid marks of the Kombi Van that were in evidence. The skid marks of the Kombi Van incontrovertibly demonstrated that the Kombi Van had been on its correct side of the road at the point of collision. The High Court found that the Court of Appeal was justified in upholding the appeal and upheld its findings.
When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of Fox & Percy observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
[Citations omitted]
I have endeavoured to rely on objectively established facts and the apparent logic of events in this case.
Family Law Act 1975 (Cth) Provisions
In deciding what particular parenting orders to make I regard the best interests of the children as the paramount consideration under section 60CC the Act. I must consider the matters described in the Act as primary considerations and additional considerations. I apply and take into account the whole of Part VII of the Act. I apply section 4AB (definition of family violence), sections 60CA, 60CC, 60CF, 60CG, 61DA, 65DAC and take into account the obligations of section 65DAC. Those relevant to this case include:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
…
60CAChild's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by Mr L and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of Mr L and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
…
60CF Informing court of relevant family violence orders
(1)If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order.
(2)If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that person may inform the court of the family violence order.
(3)Failure to inform the court of the family violence order does not affect the validity of any order made by the court.
60CG Court to consider risk of family violence
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
…
61DAPresumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may 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.
…
65DAACourt to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
…
65DACEffect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
SOME SIGNIFICANT EVENTS
I will not recite all relevant events and controversies but only those central to the major issues.
January 2021: the night of the injury
Although only one issue in dispute the events of January 2021 figured significantly in evidence and heavily impacted on the parents and the children. The Act requires family violence to be taken into account in ascertaining the best interests of children. This incident led to the Mother being removed from the family home and identified as the perpetrator in the incident. I regard this unhappy day in January 2021, as the day of actual, or final, separation notwithstanding the parties now contend that at least by 17 January 2021 they had “separated” or ended their de facto relationship. The Mother alleges, and I accept, she commenced agitating for discussion of the parties separating in December 2020. No discussions were held and the parties continued living and parenting in the FRH, albeit sleeping in different rooms and most unhappily. The Father alleges[4] they “separated” on 17 January 2021 when the Mother sent the Father an email asking to finalise “separation”. I accept the Mother regarded herself as separated and the Father knew this. It is accepted that at the time of the incident, the Mother had requested separation for a period of time and the Mother had been sleeping on the couch for approximately six weeks.
[4] See [12] of his trial affidavit.
Mother’s version of the incidents
The Mother’s version of events is as follows. She says that during the day the Mother told the Father words to the effect of “I’m not sleeping on the couch. I need a good night’s sleep.” Under cross-examination, and not contained in her trial affidavit, she gave evidence that she also specifically told him she would be sleeping in the bedroom that night. While she was holding a drink the Father closed the door on her causing her drink to spill. That evening, while the Father was absent from the home (he had driven X to a friend’s home) the Mother went into the parties’ bedroom and moved the bedside table in front of the door so the Father could not come in. She moved the case containing the Father’s drug paraphernalia and cannabis or “dope” from the bedroom into the hallway as she did not want the Father to come into the bedroom looking for it.
The Father returned from taking X to a sleepover and came into the bedroom, pushing the bedside table out of the way. The Mother started to record using her phone, however the camera was obscured under the bedclothes and only audio of the first entry was captured. The parties argued about whether the Mother was entitled to prevent him accessing the bedroom, and the Father smoked in the corner of the room before leaving the room.
The Father returned a few minutes later. The parties again argued about whether the Mother could have the sole use of the bed and the bedroom. After realising the Mother was recording him, the Father objected and seized the Mother’s wrist in an attempt to remove the phone from her and in the cause of this struggle the Mother and the Father ended up on the floor with the Father on top of her with the Father straddling her hips and pinned her left arm to the floor. She attempted to push and pull the Father off, her including pulling at his clothing. After a short time on the floor, the Father’s then knee ended up on her body and this caused an injury.
The Mother said she did not know whether the causing of the injury was intentional or accidental[5] but refused to allege the injury was intentional even when pressed to consider whether it was in oral evidence. They exchanged further words where the Father acknowledged she had been hurt and he told her he would call an ambulance and left the room.
[5] Transcript page (‘TP’) 155.
The Mother returned to the controversial bed in pain, and fell asleep. She awoke to hear someone speaking to her who she understood was a paramedic, but she was speaking to a police officer. Soon after she was identified as the perpetrator of violence and removed from the property by police and charged with assault on the Father and was served with a safety notice that became an interim family violence order that characterised her as the perpetrator and the Father as the victim of violence. The Mother denied that she had been drinking any alcohol that day, insisting that she had only drank water.
On day two of the final hearing the Mother referred to the video recording she had made of the incident. There were three separate videos[6] (‘the recording’) that had not been asked for or provided prior, but were produced with what purported to be a transcript prepared by the Mother (‘the transcript’) on day three after I had inquired why the evidence was not available. I still do not understand how or why the recordings and the “transcript” had been neither provided or sought by any party until I raised the matter. The video contained minimal visual footage, however the audio recorded was clear enough. The Mother drew a plan or rough sketch of the layout of the parents’ bedroom and the sketch was marked an exhibit, M6.
[6] Edited to omit the long periods of silence in between events.
Father’s version of the incident
The Father’s version of events is as follows. The Mother was voluntarily sleeping on the couch following separation under the one roof. On the morning of ... January 2021 he was working on the computer with headphones on in the study adjacent to the couch where the Mother was asleep. The parties had not communicated that morning. The Mother got up, pulled his headphones jack out of the computer and turned off the computer he was using. They conversed, with the Mother saying words to the effect of “I can’t continue like this.” The parties had a heated conversation. Later that day, the Father asserts that the Mother barricaded them both into the bedroom and demanded, in a raised voice, an answer from the Father with respect to their separation. He says he did not engage in the conversation. Sometime after this occurred, the Mother approached the Father in the doorway of the bedroom whilst he was in the bedroom. The door was wide open and the Mother was holding an alcoholic drink. As the Father moved past the Mother, she purposely spilt her drink onto him, then claimed that he had pushed her. He says he went and “told the kids what she had done”[7].
[7] Father’s Police statement 16 February 2021, MM-01 to Father’s interim affidavit of 8 April 2021.
At some time during that day the Mother told the Father she wanted to get a decent night’s sleep and wanted to sleep alone in the bedroom. The Father told her that he was still going to sleep in their bed because he had not done anything wrong.
Later that evening, when the Father attempted to access the bedroom, the Mother had put a chest of drawers[8] across the doorway. He pushed open the door and went into the bedroom, seeing the Mother in bed with the doona cover on. He pulled the doona off her and she pulled it back and over her head so she was completely underneath. The Father informed her he would acquiesce her request to sleep alone in the bed that night. He does not dispute that he may have consumed an illicit substance, which was on the bedside table inside the bedroom (not outside as the Mother alleged), consumed the substance in the room however cannot recall exactly if or when this occurred. He asserts he remained standing at the side of the bed facing the Mother (and in his Police statement asserts leaning over the bed), and that he then pulled the doona again to speak with the Mother, who was laying on her back in the middle of the bed, and that the Mother grabbed him by the jumper and t-shirt shirt collar and pulled him in towards her. He said he pulled back or away but the Mother wouldn’t let go of his clothing. As he pulled back the Mother continued her hold of his clothing and so was, he says, unintentionally pulled out of the bed. He says both parties fall on the floor with the Mother still holding his clothing. As he fell, he kneed her accidentally, saying “Let me go, let me go” repeatedly. He said the Mother still held onto him and pulled on his shirt and he managed to break her grasp.
[8] The Mother describes a “bedside table” and the Father describes “a chest of drawers”, but nothing turns on this. I am satisfied they are describing the same item of furniture as a “chest of drawers” can be used as a “bedside table”. I am satisfied it was a chest of drawers that was used as a bedside table.
He says after he managed to break away from the Mother’s grip, he realised the Mother was hurt and he telephoned emergency services. He denies grabbing the Mother by the wrist or attempting to remove her phone from her or grabbing the Mother at any time. Later, after police arrived, they took photos of the back of his neck which had lacerations, he says from the Mother pulling at his clothing, which resulted in the Mother being charged with assault. It is clear the Father supported the Police decision to charge the Mother with assault on him and he maintained in the final hearing that, in substance, he had been assaulted by the Mother not the other way around. The Father’s evidence is that this incident was a culmination of weeks of arguments between the parties and in particular, on that day.
There was no mention of the “don’t you dare record me” statement or a struggle for the telephone in the Father’s trial affidavit version of the incident or in the Police statement made a couple of weeks later . I am satisfied the Father intentionally omits this part of the incident from his account.
The ICL’s version of the incident
Counsel for the ICL asserted in final address that:
More questions should have been asked and certainly it does appear that the party that was seeking some solace, in terms of a room, locked and away, was the one ultimately injured and taken away (by the Police).
When pressed further counsel for the ICL contended that the Father pulling off the bedclothes were “assaults” and that the Mother would have felt “completely wronged” by being removed from the home in the circumstances. Further the ICL asserted that the Mother being removed from the home by the Police had contributed to a narrative that developed (that the Mother was in the wrong) and the children have been partisan and involved in the development of a narrative that had “seriously polluted” the children’s view of the world and impacted on their relationship with their Mother.
The transcript and the recording of the January Incident
It is convenient to deal with the incident as two related incidents. The substance of the transcript and the recording, after an opportunity to examine them, was not controversial and the transcript aligned with my examination of the recording. From repeatedly listening to the audio and viewing the limited visual recording and taking account of the layout of the room, exhibit M6, cross examination and the common ground aspects, I am satisfied the following events took place.
The first forced entry into bedroom
It is common ground that the Father returned to the FRH and ascertained the Mother was ensconced in, what had been for many years, the parents shared bedroom and bed. The Father pushed on the door with the considerable force needed to move the bedside cupboard that the Mother had moved to barricade the door to the bedroom. The Father knew the Mother did not want him to enter the room but he persisted with force. When he entered the room the Mother was in the bed and he angrily complained of the Mother attempting to prevent his entry in supercilious, insulting and derisive terms. The Mother remained calm explaining her position to the effect that after six weeks on the couch she was entitled to sleep by herself in the bed. Of course the Mother knew, and the Father did not, that the Mother’s phone had been switched to record.
In the course of his angry derision the Father pulled the bedclothes off the Mother (who remained in the bed), and I infer from the angry demeanour of the Father, angrily and violently, exposing the partly naked Mother. While this was happening the Mother, in a calm voice, pleaded with the Father: “Please don’t, I’m half naked”
Thereafter the supercilious derision of the Mother by the Father became more forceful, louder and more angry. The Mother was determined but temperate and attempted to de-escalate the confrontation. The Father left the bedroom. When he did the Mother moved the bedside cupboard back to again block or barricade the door to the bedroom.
The second forced entry into the bedroom
A short time after leaving the Father again applied force to the door of the bedroom sufficient to again move the barricade of the bedside cupboard and did so knowing the Mother did not want him in the room or the bed with her. In his trial affidavit the Father deposes, unchallenged and I accept, that he had received an email from the Mother some two weeks earlier where she asserted, she wished to separate from him. This was of course before he had heard the recording or read the transcript. However, I do not accept that he then regarded himself and the Mother as separated because of the tone and content of the recording. The Father was resolute in not acknowledging the Mother’s assertions that they were separated.
The Father, standing at the side of the bed with the Mother lying in the bed below him below him (but on the far side to the middle of the bed) in angry and insistent tones again asserted his right to the bedroom and the bed. The Mother remained calm and spoke in a temperate voice. The Father spoke in a loud, forceful and angry voice and the parents had the following exchange:
MOTHER: I’m sleeping here tonight
FATHER: This is our room. This is our bedroom. This is our bed.
MOTHER: We are separated, [Mr Mack].
FATHER: This is our bedroom and our bed.
At this point the Father became more angry, heighted and forceful. He continued:
FATHER:……..not going to fight you tonight. But this is my bedroom as much as yours.
MOTHER:OK….I’ve been on the couch for the last 6 weeks and you’ve been in here, ya know, “on bed” and all and ..um..I figure I’ve got 6 weeks here now.
FATHER: Figure what you want mate.
MOTHER: You’ve had 6 weeks, its my 6 weeks.
FATHER:Figure what you want. Figure what you want [now increasingly very angry and loud]
It is clear that at this point the Father again pulled the bed clothes off the Mother. I infer from his tone, violently.
Up to this point the Father was unaware the Mother had activated the recoding mechanism on her phone which had been unobserved under the bedclothes. The Father then observed the phone in the Mother’s hand and angrily and aggressively and asserted:
Father: Don’t you dare try and record me:
At this point there is limited visual recoding as the phone is moved around in jerky abrupt movements and largely towards the ceiling of the room. The Mother asserts, and I accept, that at this point the Father grabbed her wrist and, I infer, he attempted to remove the phone from her and thereafter, with the Father standing at the side of the bed and the Mother lying on the bed, the Mother and Father violently struggled for possession of the Mother’s phone.
The Father asserts that at about this point he is grabbed by the collar of his shirt around his neck and then by quickly leaning back to free himself, unintentionally pulled Mother from the bed to the floor and because she has hold of the collar and landed on top of her.
The Mother’s account is that in the struggle while and after the Father has hold of her wrist she ends up on the floor with the Father on top of her and she cannot recollect the precise mechanics of how she ended up on the floor.
I am satisfied that the Father was motivated to seize the Mother’s phone because he feared what might have been recorded. The effect of that struggle, although I cannot be certain of the precise mechanics of the struggle, was that the Mother ended up on the floor with the Father on top of her still holding her arm or wrist and the Mother clinging to her phone.
Then, after the parties were on the floor, the Mother asserts the Father had hold of the left upper arm of the Mother and that, “after we hit the floor I grabbed the front of his jumper and was trying to push him away and was trying to pull him sideways and tried to pull him sideways and later tried to use her legs and knees to push him off. I accept that evidence.
Father continues while on top of the Mother
Despite being on the floor on top of the Mother, the Father continued to angrily assert, “Figure what you want” and, “this is my bedroom: this is our bedroom”. After a short time on the floor (and not immediately) the Mother cries out in apparent significant pain. Despite the Mother crying out in obvious pain the confrontation continued with the Mother screaming out for the Father to “Get off me” and the Father called out for her to, “Then let me go”. The call and reply then went on with the Mother calling out, “Get out of my room” and “Get off me” with the Father angrily shouting, “This is not your room” a further six times. The episode then changed to the Mother repeatedly calling out, and in apparent pain, for the Father to, “get off me” and the Father calling out that he couldn’t because, “You are holding onto me”.
At no point, even while being on top of the Mother, did the Father agree or indicate that he would leave the room. The parties’ teenage son, Mr L then 16 years, then intervened and repeatedly asked his parents to “just stop”. The Father continued to assert, “you are holding onto me” and the Mother continued to groan in apparent pain. After some considerable time the Father and Mr L left the room leaving the Mother in the room.
It is common ground that the end result of the struggle and the Mother landing on the floor with the Father on top of her, at some point, has injured her and it was not contested that it caused considerable pain and it was not contested “broke” or injured the Mother’s .... The Father asserted that his landing on top of the Mother was not intentional and was accidental and the Mother did not assert that her injury, as opposed to the seizing of her arm and the struggle, was intentionally caused.
The Father’s account to the Police (who soon attended) and in this court was that while he was standing along side the bed (his Police statement says he was leaning over the bed) that the Mother had grabbed him by the clothing at or near his neck and by his moving back had accidentally dragged her from the bed. In evidence before me, after I inquired from his description of where the parties where in the room, how the Mother could have reached his collar (he had said he was standing beside the bed), he added the accusation that the Mother had lept up and grabbed his collar while he was standing along side the bed.
The episodes were recorded on the Mother’s phone and the audio is clear enough but there is little that can be seen. Most of the visual recoding is blank. But having reviewed the recording with the benefit of the transcription (exhibit C1) and the parties evidence and demeanour in the witness box, I do not accept the Husband’s version of events. I accept that from the point where the parties were on the floor the Mother had hold on the Father’s clothing and this is included is and consistent with the Mother’s evidence. But I do not accept the Father’s evidence as to his being grabbed by the collar while the Mother was still in the bed and I do not accept this was the cause of the physical altercation that ended with the Father on top of the Mother on the floor. I accept the Mother’s account of the physical altercation commencing with the Father grabbing the Mother’s wrist while she was holding the phone at the time the Father shouted, “Don’t you dare try and record me”. I find that the Father did so in an attempt to remove the phone from the Mother to prevent the further recording of the incident and fearing what might have been recorded.
In Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518 (‘Stanford’) the majority of the High Court stated some fundamental propositions about section 79 proceedings. In Stanford the essential issue was whether it was just and equitable to make any property order at all, in circumstances where the consortium vitae or marriage relationship had not broken down by way of a separation and the Wife’s needs were otherwise provided for.
The Family Court of Western Australia had made an order for a property settlement that would have necessitated the sale of the former matrimonial home where the husband continued to reside. For 37 years prior to the wife moving to a nursing home, the parties had made their matrimonial home in a house registered in the husband's name. The wife’s expenses in accommodation were being met and she had the benefit of a sum set aside in the event she needed anything further. It was the second marriage for both of the parties.
The High Court varied the order of the Full Court and found that in the circumstances it was not just and equitable that a property settlement or property alteration order be made at all. This was so despite 37 years of marriage and contribution by the wife. Hence section 79(4) contribution, even 37 years of it, was not to be conflated with the section 79(2) “just and equitable” requirement but should be considered separately. For the purposes of this case statements of law relating to section 79(4) and or Part VIII of the Act are applicable to section 90SM(4) and Part VIIIAB of the Act.
Apart from the general observations about section 79 the High Court also observed that it should not be concluded that the making of an order is just and equitable only because of, or by reference to, the matters in section 79 without a separate consideration of section 79(2).
The majority observed at [42]:
[42]In many cases where an application is made for property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice by made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife. No less importantly, the express implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship... And the assumption that any adjustment of those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4) [and/or section 90SM(4)].
In Stanford the High Court did not go on to comment upon how section 79(4) should be applied where it was just and equitable that a property alteration or settlement order be made. Stanford was not concerned with the nuts and bolts of how section 79(4) (or section 90SM(4)) was to be applied in the ordinary run of cases, to the extent there is such a thing.
In this case there is no longer the common use of the parties property and each asserts it is just and equitable to make property alteration orders and I am satisfied it is. However the orders I make must be just and equitable.
The preferred approach
In Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932 (‘Keskin’) the Full Court, Strickland, Kent & Austin JJ, approved what was the age old and pre-Stanford “preferred approach” as to the how the nuts and bolts of section 79(4), and hence section 90SM, fitted together:
[20]In Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143 at [39] the Full Court, in setting out what the case law revealed as the “preferred approach” to the determination of an application under s 79 of the Act, referred to four inter-related steps, including that “the Court should identify and assess the contributions of the parties within the meaning of ss. 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties”...
That preferred approach set out at [39] of Hickey and Hickey and the Attorney-General [2003] FamCA 395; (2003) FLC 93-143 (‘Hickey’) is as follows:
[39] …Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of hearing. Secondly the court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b) & (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly the court should identify and assess the relevant matters referred to in section 79(4) (d), (e), (f) & (g) (“the other factors”) including, because of section 79(4), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment study (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
(Citations omitted and emphasis added)
Lest it be said there is a conflict between the High Court’s disavowal of “entitlement” to a section 79 order by mere separation and/or section 79(4) contribution on the one hand, and the use of the word “entitlements” in the Hickey passage cited above, I regard the use of that word in the above context as synonymous with “assessment.” I will have regard to what I find to be the contribution based assessment rather than entitlement.
APPLICATION OF THE PREFERRED APPROACH
Step one: identify the property and liabilities
I turn now to step one of the preferred approach.
At my request, the parties prepared a joint list of assets and liabilities. I set out this attempt at a joint list of assets (exhibit F2) , with redacted notes, as follows:
Description Legal Ownership Agreed value ASSETS FMH Joint 920,000 Company shares Applicant 13,000 Motor Vehicle 1 Applicant 8,000 Motor Vehicle 2 Respondent 7,000 J Pty Ltd ATF G Family Trust
Underlying assets:
Shareholding in Joint Business
Beneficiary loan accounts
$50,381 owed by Applicant
$56,508 owed by Respondent
Underlying liabilities:
loan to Family Trust 2 $111,383J Pty Ltd ATF G Family Trust Not known H Pty Ltd
Underlying assets:
Loan owing from Family J Pty Ltd ATF G Family Trust $111,383
Motor Vehicle 4 $12,000
Motor Vehicle 5 $13,000
Motor Vehicle 3 $1,500
Underlying liabilities:
PAYG payable ($17,019)
Superannuation payable ($2,649)
Equity
Retained earnings $106,788J Pty Ltd ATF G Family Trust Not known Furniture and whitegoods Joint NIL/20,000 E Company Fund re X Joint 21,354 Moneys in bank account #...81 Joint Nominal Moneys in bank account #...44 Joint Nominal Timber flooring Joint 9,500 Other Investments Respondent Unknown Assets subtotal LIABILITIES Home loan ANZ Joint (284,265) Loan from Applicant’s Mother for legal fees Applicant (29,500) Outstanding legal fees payable Respondent Loan owed to H P/L Applicant (50,381) Loan owed to H P/L Respondent (56,508) Liabilities subtotal SUPERANNUATION Name of Fund Type of interest Member Agreed value Super Fund 2 Accumulation Applicant 30,584 Super Fund 3 Accumulation Applicant 32,839 Super Fund 1 Accumulation Respondent 91,138 Superannuation subtotal TOTAL (assets – liabilities) TOTAL (assets – liabilities + superannuation) Common ground: Alter egos and need to wind up trusts and companies
It was common ground that the Trust and Companies were merely the alter egos of the parents. The joint asset list recites debts from the parents to their own alter egos and between alter egos. Care must be taken not to lose sight of the path of those liabilities. At the start of the case each sought that the other be responsible for taxation liabilities. It was, by the end of the case, common ground or not disputed that the Companies and Trusts should be would up in the most tax effective manner. Each put responsibility for the current mess of the affairs at the Companies and Trust with the other. I am not persuaded either party bears any greater or less responsibility for that.
Both parents seek the sale of the FMH. The Mother seeks that the sale proceeds of the FMH be divided 65/35 in her favour, and the Father seeks that the sale proceeds be divided 75/25 in his favour. The Mother seeks additional orders for the Father to prepare the property for sale, including delivery of the timber flooring and various household items like tapware to the property so that potential purchasers ‘can see what they may be purchasing.’ Both parents agree to take necessary steps to prevent the building permit on the property lapsing. The parents agree on a value or sale price of the flooring, if not sold with the property, to be $9,500. The Mother otherwise proposes that the Father retain the whitegoods and furniture in the property at a value, she says of $20,000. The Father agrees to retaining same, but says the value is nominal.
The E Company fund
By the end of the case it was common ground that the joint ‘E Company Fund’, a fund for X containing approximately $21,354 should be controlled solely by the parent X is to live with. I have determined X will live with the Father. Neither parent sought this be regarded as an asset.
The motor cars
Both parents seek to retain Motor Vehicle 1, currently registered to the Mother and, now, in the Mother’s possession. They agree on each retaining what is currently in their own bank accounts.
With respect to the parent’s business, the Mother seeks to sell the Motor Vehicle 3, Motor Vehicle 4 and Motor Vehicle 5 purchased for the business, to pay debts accrued by the business. By the end of the case both acquiesce in that by joining in the position of winding up the Companies and the Trust.
The Father seeks that his liabilities as they relate to the business be initially allocated to the Mother, and the Mother seeks that the Father be liable for those himself. Each sought that the other indemnify him or her for all liabilities for the business, including unpaid taxation assessed.
Superannuation
The parents agree on an equalisation of superannuation with a base amount figure. The base amount to equalise superannuation on the superannuation figures at Final Hearing is $13,857[18]
[18] Mother’s superannuation $30,584 + $32,839 = $63,423 + Father’s superannuation $91,138 = $15,4561 / 2 = $77,280
Recasting the list of assets and liabilities
It is necessary to recast the joint list of assets to remove the inter-entity debts and the debt of the parties to their entities, effectively debts to themselves. I do not accept the Mother’s opinion of the value of the FRH contents. That bundle of second hand furniture would have minimal value but none the less does not need to be replaced and so is an advantage to the Father.
Description Legal Ownership Value $ ASSETS 1 FRH; Agreed value- $920,000
Less Home loan ANZ (284,265)
EquityJoint 635,735
2 Company shares Applicant 13,000 3 Motor Vehicle 1 Applicant 8,000 4 Motor Vehicle 2 Respondent 7,000 5 J Pty Ltd ATF G Family Trust
Underlying assets:· The now defunct business
· Debts due from the parties.
· $50,381 owed by Applicant
· $56,508 owed by Respondent
To be wound up Likely to be a deficit on winding up 6 H P/L
Underlying assets:· Loan owing from Family J Pty Ltd ATF G Family Trust $111,383
· Motor Vehicle 4 $12,000
· Motor Vehicle 5 $13,000
· Motor Vehicle 3 $1,500
Underlying liabilities:
· PAYG payable ($17,019)
To be wound up Likely to be a deficit on winding up 7 Furniture and whitegoods Joint negligible 8 E Company Fund re X, $21,354 Joint Not included[19] 9 Moneys in bank account #...81 Joint Nominal 10 Moneys in bank account #...84 Joint Nominal 11 Timber flooring Joint 9,500 12 Other Investments Respondent Not proven Assets subtotal $663,735 LIABILITIES 13 Home loan ANZ Joint Included above 14 Loan from Applicant’s Mother for legal fees, $29,500 Applicant Not included[20] 15 Outstanding legal fees payable Respondent Not included for same reason as above 16 Loan owed to H P/L Applicant Not included as effectively debt to the parties 17 Loan owed to H P/L Respondent As above Other Liabilities subtotal Nil SUPERANNUATION Name of Fund Type of interest Member Agreed value 18 Super Fund 2 Accumulation Applicant- $30,584 19 Super Fund 3 Accumulation Applicant- $32,839 20 Total Applicant 63,423 21 Super Fund 1 Accumulation Respondent 91,138 Superannuation subtotal 154,561 [19] It was common ground that after separation the Mother had utilised a similar fund that was designated as for Mr L for her own purposes and for this reason neither party pressed to include the X fund in the pool.
[20] Not included because the funds were applied to the Mother’s legal fees and those fees are not included as an asset, either both go in or neither.
Because the parties agree on a superannuation payment split order to roughly equalise the parties superannuation, and because of the parties ages and the nature of superannuation, it is not appropriate to have an “all assets” total or treat superannuation as the same as the non- superannuation assets.
Hence, I have to decide how to divide the non superannuation pool of assets of the parties of about $663,735. By the time the winding up is done I expect the pool will be about $650,000.
Step two: section 90SM(4)(a), (b) & (c) contributions
At the start of the relationship each party brought in substantial assets.
In 2017 the Father received an inheritance of $211,000 from the sale of his deceased Mother’s house. The Mother did not press that this was a joint gift toward both parties.
Weight to be given to inheritance
In a pool of $663,735, but likely to end up less after the winding up, in the ordinary run of cases, such an inheritance of $211,000 in 2017 would be regarded as a substantial contributions by the Father. In this case the Father was the main promoter, and user, of the use of cannabis (the only evidence is that the Father purchased cannabis as he saw fit) and by far the largest consumer of purchased alcohol over many years. The consumption of cannabis and alcohol was so significant that it called for an explanation as to how that was funded. The Father’s evidence included:
HIS HONOUR: …in terms of paying for the alcohol and the cannabis that both you and have consumed over the – your relationship, I know there’s a period early on where you were growing your own cannabis but thereafter, the impression I have is that the extent of your cannabis consumption and alcohol consumption would have been a fairly substantial hit on the weekly budget of the family, wouldn’t it?---
FATHER: Yes, that’s – that’s probably fair to say. Yes.
HIS HONOUR: And I’m – there’s no evidence that you set aside a jar of money and budgeted. You just spent it along with everything else you spend on. Is that a fair?
FATHER: Yes.
…
HIS HONOUR: And so the money for that would have directly or indirectly come from your income, [the Mother]’s income and other moneys that you would have had available?---
FATHER: Yes.
HIS HONOUR: And that would include the $200,000 [inheritance] as well, which you had available?---
FATHER:It’s – yes. Everything was basically pooled in to one, the slush fund. So yes.
I accept that evidence.
HIS HONOUR: And if I draw the conclusion that whilst you both consumed alcohol and cannabis, from your perspective, would it be fair to say that you consumed much more cannabis and much more alcohol than [the Mother] did?---
FATHER:No.
I do not accept that evidence. I refer to the discussion of alcohol and illicit drug consumption in the parenting part of these reasons.
The Mother complains that the Father, for much of the relationship, refused to work and stayed home computer gaming and smoking cannabis while she worked to support the family and this necessitated borrowing that was applied to living expenses. The Father provides a different account. I do not entirely accept this account. The Father’s existing superannuation balance is more than the Mother’s and is consistent with significant periods of employment.
In the circumstances of the Husband’s consumption of cannabis and alcohol and his reliance on his inheritance as a direct contribution or the purposes of property settlement, it behoved him to give some account or explanation of the funding of the cannabis and alcohol and the application of the inheritance funds. The explanation or accounting is the part of the transcript recited above.
I am satisfied, in all the circumstances, that a very significant part of the Husband’s inheritance was indirectly applied by him to cannabis and alcohol. At some times the Mother joined in those activities but I am satisfied they were primarily driven by the Husband. The Husband would consume cannabis at lunch time and several times a day. He usually drank 2 to 6 litres of beer a day.
I also take into account the guidance of the Full Court in Parshen (1996) FLC 92-720 (‘Parshen’) as follows:
In our view, in the absence of evidence to the contrary, it should be inferred in proceedings pursuant to the provisions of s 79 that moneys howsoever received by a party during the course of the parties’ cohabitation, are used by that party for the benefit of the family unit. Such moneys, in those circumstances, thus constitute a financial contribution by the party who received the moneys.[21]
[21] Approved by the Full Court in Hallinan & Witynski at [51] (23.7.99). Cited with approval at [29] of Harrington (2007) FLC 93-317
I adopt, with respect, the crisp statement of principle of Judge Betts in Gartrell v Deakin 67 FamLR 23 (‘Gartrell’) at [91] when dealing with expenditure on illegal drugs:
[91]…it plainly could not be said to be money applied for the benefit of any property, be property preservation or improvement; it in no way constitutes a contribution under s 90SM, and I consider that such amount [spent on drugs] really ought to be treated as moneys thrown away.
In this case it is proven that the Husband applied a substantial part of the family income and his inheritance to cannabis and alcohol. In those circumstances I can only give limited weight to the contribution of the Husband’s inheritance. I am not satisfied all of the inheritance was applied to drugs and alcohol.
Homemaker and parent income contribution
I am satisfied each party worked in paid employment and was involved as a homemaker and parent to the children. I am satisfied that over many, many years the Mother worked in paid employment and homemaker and parenting while the Father, although working in those areas from time to time, was usually a daily cannabis consumer. I am satisfied that the pattern of cannabis consumption described by the Father towards the end of the relationship was the pattern of the consumption throughout. There is no evidence of any significant or rapid increase of consumption towards the end of the relationship. The same applies to the Father’s beer consumption. I am satisfied that over many years, the quality of the Mother’s contribution as homemaker, parent and income earner was greater when taking into account the totality of the Father’s homemaking contribution This was not for a year or two, or while the Father suffered any illness, but over year after year after year. I also take into account and acknowledge the Father’s support for the Mother during her periods of poor mental health and the additional burden on him during those times.
Post separation homemaker and parent contribution impaired
After separation only the Husband has been involved in homemaking and care of the children. The authority of the High Court in Mallet v Mallet (1984) 156 CLR 605 (‘Mallet’) asserts I cannot assume equality of any aspect of section 79(4) contributions and hence section 90SM(4)(a),(b) or (c) contribution. In many cases the many years of disparate contribution by parties inevitably adds up to equality of direct and indirect contribution. This case is not one of them. The Husband’s post separation parenting contribution is substantially impaired by his failure to assist the children have a relationship, a most important relationship, with their Mother. That post separation contribution is also impaired by the extent of the Father’s alcohol consumption and the .102 BAC L plate incident is an example of the impaired contribution.
In those circumstances only little weight can be given to the Father’s post separation contribution as a homemaker and parent.
Likewise little weight can be given, as a section 90SM(4) contribution, to either party for the muddle of the post separation management of the business.
Immediately after separation the Mother removed $40,000 from the parties joint funds and this left the Father with only about $13,000 in funds. Some of the funds the Mother removed were applied to her own support, some to the parties’ mortgage on the FRH and some to her legal fees. I take this generally into account. The Mother also had the use of Mr L’s E Company fund post separation. Because of this, the remaining X’s E Company fund was not included by the parties in the pool of assets and I will acquiesce in that approach.
Post separation, from mid-2022, the Father, as ordered, has paid the FRH mortgage payments. He has also had the exclusive use of the FRH.
It is clear that the terms of section 90SM(4) require that I take into account all contributions within the terms of section 90SM(4)(a),(b) & (c) whenever they were made and that it is an error to give greater or lesser weight to any particular type of contribution.
All contributions must be had regard to in a wholistic manner and not compartmentalised. However, a contribution is not to be disregarded merely because it is long ago. Further, as stated in Wallis & Manning (2017) FLC 93-759 (Wallis & Manning) at [105]:
The length of the marriage can be seen to be of considerable importance in the assessment of contributions.
In all of those circumstances, I give the relatively recent inheritance some weight (I am not satisfied all of it went to drugs and alcohol). But because of the extent of the Father’s cannabis and alcohol consumption throughout the relationship, consuming what would otherwise have been family income for application on family purposes, overall the Mother made the greater contribution during the relationship as parent, homemaker and income earner. But I am satisfied the Father should be assessed as making a greater contribution overall.
Not a Kennon case
I do not take the night of the injury events into account as a Kennon v Kennon [1997] FamCA 27 (‘Kennon’) contribution. The night of the injury was not a course of conduct of the relationship that made the Mother’s contribution more difficult.
Conclusion as to contribution
In balancing all of the evidence and the parties’ different contributions, the most significant contributions are both parents either working in paid employment or in home making and parenting over many years. Because of the Father’s alcohol and cannabis consumption over many years, but also acknowledging the Mother’s much more modest alcohol and cannabis consumption, I am satisfied that the Mother worked considerably harder and more reliably, despite periods of mental health difficulties, over many, many years in either paid employment or home making and parenting.
Balancing those matters I am satisfied that overall, because of the size of the recent inheritance the Father should be regarded as making a greater contribution. I am satisfied that contribution should be regarded as 54/46, that is a disparity of contribution in the Father’s favour of 8%. Assuming a non-superannuation pool of $650,000 (after the likely winding up deficit) that creates a disparity on account of contributions of $52,000 between the parties. The not unreasonable submissions of the Father’s counsel did not take into account my finding as to comparative contribution during the relationship, post separation and the limited weight I have given to the inheritance.
Step three: section 90SF(3) factors
I now turn to the third step of the preferred approach. I do not address every factor, only those that the parties, or the evidence engage.
Age and state of health
The Mother is aged 50 years. She is diagnosed with a medical condition but no evidence was put before me as to the impact, if any, of such condition on the Mother. She also gave evidence that she has a work injury but again, no evidence was put before me as to the status of her injury or whether or not there is a capacity to return to work in any capacity.
The evidence of Dr S’s report, which I accept, shows a fragility to the Mother’s mental health and consequently to her current and future earning capacity. At the time of final hearing, the Mother was not working but existing on minimal Workcover payments after a workplace injury. She has previously been able to earn a better income than the Father.
The Father is aged 52 years. He is in good enough health. Because of his alcohol consumption there is a fragility to his health and hence to his current and future earing capacity. But he is currently working and I am satisfied will continue to do so unless alcohol gets the better of him.
Income, property, financial resources and capacity for employment
The Mother is in receipt of WorkCover payments as a result of her injury whilst working at the parents’ joint business. The Mother receives $320 per week or about $16,640 per annum. No evidence was put before me as to when the Mother intends to return to work.
The Father is employed as a retail worker earning $1,189 per week before tax or $61,000 per annum before tax: a modest income but more than the Mother’s income. He resides in the FRH, and pays the mortgage, with the children but will not be able to continue to do so after these orders are implemented.
The Father will also have the benefit of the $23,000 of X’s E Company fund.
The Father’s financial position is considerably better than the Mother’s, largely because he is able to engage in modestly paid full time work. The Father has been assessed as having an additional $52,000 more than the Mother at the end of the first step contribution assessment and this must also be taken into account.
Care of children under 18 years
The Father has the care of X, aged 16 years. Mr L has turned 18 in 2023 but it is understood Mr L remains living in the Father’s home.
The Mother does not, and pursuant to these orders, will not spend substantial and significant time with X unless X wishes.
The Father is likely to have the care of X for another two years and a bit until adulthood. Children and teenagers are expensive. The Father will have to provide the day to day expenses for X and provide housing.
Commitments of each of the parties to support themselves or a child
The Father continues to be employed and supports himself and the children. Save for his alcohol he has no unusual expenses.
The Mother has the advantage of being able, at least in the short term, to be able to live with her generous Mother.
Responsibilities of either party to support any other person
The Father supports the children of the relationship.
Whether party cohabiting with another person
The Mother is living with, but not cohabiting with, her Mother. Neither party has re partnered and cohabits with anyone.
Child support to be provided
The Mother minimal pays minimal Child Support to the Father as assessed.
Conclusion as to section 90SF factors
The observations of the Full Court in Clauson & Clauson (1995) FLC 92-595 (‘Clauson’) have guided judges and practitioners since 1995. The Full Court did not interfere with a contribution assessment of 75/25 in the husband’s favour. But on a re-exercise of discretion, the Full Court made a section 75(2) adjustment of 25% and included the observation (at 81,911) about consideration of section 75(2) factors that:
…in any event it is the real impact in money terms which is ultimately the critical issue.
In Rosati v Rosati (1998) FLC 92-804 (‘Rosati’) the Full Court had reason to re-exercise the discretion in the division of the parties’ assets in a $1,500,000 pool of assets back in 1998. After finding that section 79(4) contribution should be regarded as 60/40 in the husband’s favour the Full Court found a 10% adjustment on account of section 75(2) factors was appropriate. But it is significant how the Full Court addressed the disparity on account of section 75(2), way back in 1998, and it was addressed as follows at 85,046:
On our adjusted figure for the value of the parties’ net assets ($1,503,863), adjustment of 10% in the wife’s favour results in an increase in her entitlement of $150,386, and a corresponding reduction in the husband’s entitlement, producing a differential movement between them of $300,772 …
In Wayne & Wayne [2010] FamCAFC 37, Finn, Coleman and Thackray JJ (Wayne), at [107] observed:
[39]It is always important to keep in mind that an adjustment of X% for s 75(2) factors leads to a disparity in the value of property received by the parties representing 2 x X%. It is that disparity, measured in “money terms”, that requires consideration in determining whether the result is just and equitable: see Campbell v Kuskey (1998) FLC 92-795 at 84,928.
In Lovine & Connor and Anor [2012] FamCAFC 168, another Full Court, approved the observations in Wayne and demonstrated that the percentage, the actual dollar amount of the adjustment and the disparity the adjustment creates should be taken into account when considering section 75(2) & 90SF(3)
In Wallis & Manning the Full Court, after a discussion of the section 75(2) factors applicable to that case, concluded:
[169]In our view, s 79(4)(e) requires those matters to be taken into account in arriving at orders that are just and equitable as between the parties. In arriving at an appropriate assessment for those factors, a dollar value of it should be uppermost in our minds [79] and, of course, the ultimate disparity in entitlements which it might produce. That dollar value is, in turn, dependent upon the value of the interests in property of the parties.
In Varnham & Moses (2021) FLC 94-007 the Full Court again approved the “real money” approach of Wayne, and of Phipson & Phipson cited in Wayne, and of Lovine & Connor.
Thus there can be no doubt that settled law requires, when considering relevant section 75(2) & section 90SF(3)factors that the “real money” as well as the “percentage” must be considered, as well as the disparity between the parties that any adjustment creates.
Balancing all of the above, and in particular the only further two years and a bit, X will be supported solely by the Father (including the provision of housing), the Mother’s fragile mental health, the and Father’s superior financial position at the moment, I am satisfied that there should be a modest third step of section 90SF(3) adjustment of 4% giving a disparity of 8% and in dollar terms a disparity of about $52,000.
Step four: just and equitable and conclusion
I am satisfied that it is equitable that the non-superannuation assets of the parties should be adjusted 58 % to the Father and 42% to the Mother and that they should contribute to any shortfall on the winding up, or share any surplus, in those same proportions.
I am not satisfied that there is any just and equitable reason for the Father, not the Mother, to retain Motor Vehicle 1. Its value will be taken into account. The Mother has had possession of Motor Vehicle 2 since separation and hence it is just and equitable she retain that. Neither wants Motor Vehicle 2 but it is impractical to have an order of a controlled sale. The Mother can sell it if she wants.
CONCLUSION
It is just and equitable that the non-superannuation assets be divided 58/42 in the Father’s favour. The nuts and bolts of that is that the Mother will retain, Motor Vehicle 1 and Motor Vehicle 2, assets of $15,000. Hence from her share of the FRH proceeds she should pay to the Father 58% of the value of those items, $8,700. The proceeds of the sale of the house should be divided 58/42 in the Fathers favour. The surplus and/or the deficiency of the Companies and the Trust should be 58/42 as the case may be.
The effect of the disparity of contribution and section 90SF(3) factors means that overall, the Father will receive about $104,000 (subject to the winding up position) more than the Mother. Taking into account all of the circumstances of this long relationship including the inheritance and all other contributions and the Father’s obligation to support X and the size of the asset pool, I am satisfied this is a just and equitable alteration of property.
I do not accept the Mother’s proposal to exclude the Father and the children from the FRH so it can be repaired/presented better for sale. That is not a practical way forward and does not provide for where the Father and the children will live until the sale proceeds are received. Everything should be done to divide the deposit when paid as soon as possible as the Father will need to arrange accommodation for himself and X prior to settlement of the sale.
The Father has a substantial interest to maximise the sale proceeds and I am satisfied he will present the property so as to maximise his return and hence the Mother’s as well. I am satisfied the order compelling presentation as directed by the agent is more practical than the more onerous provisions sought by the Mother.
I have intentionally lengthened the sale period to 90 days as I am not satisfied the parties could cooperate to ensure a sale in the shorter 60-day period. I have intentionally applied a period of retention of accountant and conveyancer of 14 days rather than 7 days for the same reason.
Winding up, selling agent and conveyancing practitioners should be as agreed and failing agreement as nominated by the President for the time being of the respective professional associations. There will be liberty to apply.
I certify that the preceding three hundred and thirty (330) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 23 January 2024
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