Payne & East (No 2)
[2024] FedCFamC2F 377
•7 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Payne & East (No 2) [2024] FedCFamC2F 377
File number(s): MLC 2364 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 7 March 2024 Catchwords: FAMILY LAW – final parenting orders – mother have sole parental responsibility – children live with mother – decision of no time between the father and the children – father to see children at the wishes of the mother – Kennon claim for course of conduct after end of relationship – father was a litigant in person – provisions of 102NA prohibited the father from cross examining the mother – concerns of the fathers mental health – where father believes there is no problem with his mental health – where there is real concern of risk of psychological and physical harm to the mother and children – the father’s behaviour towards the mother is unpredictable, intimidating and threatening – parenting orders to be determined with the evidence provided to the court, not as they could be with future assistance – where the father has previously been incarcerated – where there is a current final intervention order in place – where the fathers involvement in proceedings was sporadic – superannuation split – 60/40 split in the mothers favour – where the former relationship home is up for sale prior to orders being made Legislation: Evidence Act 1995 (Cth) ss 131 and 140
Family Law Act 1975 (Cth) ss 4AB, 13C, 60CA, 60CC, 60CF, 60CG, 61DA, 65DAA, 65DAC, 75(2), 90SE, 90SF(3), 90SM and 90SS
Cases cited: Benson & Drury [2020] FamCAFC 303
Bielen & Kozma (2022) FLC 94-12
Britt & Britt (2017) FLC 93-764
Dickons & Dickons [2012] FamCAFC 154
Fox v Percy (2003) 214 CLR 118
Hickey & Hickey and the AG for the C’lth of Australia (2003) FLC 93-143
Kennon & Kennon (1997) FLC 92-757
Keskin & Keskin & Anor (2019) FLC 93-932
Lainhart & Ellinson [2023] FedCFamC1A 200
Lovine & Connor and Anor (2012) FLC 93-515
Oberlin & Infield [2021] FamCAFC 66
Re F: Litigants in Person Guidelines (2001) FLC 93 072
Stanford v Stanford [2012] HCA 52
Wayne & Wayne [2010] FamCAFC 33
Division: Division 2 Family Law Number of paragraphs: 377 Date of last submission/s: 24 January 2024 Date of hearing: 22-24 January 2024 Place: Melbourne Counsel for the Applicant: Ms Paterson Solicitor for the Applicant: Aberdeen Lawyers The Respondent: In Person Solicitor for the Independent Children's Lawyer: Mr Hale Solicitor for the Independent Children's Lawyer: Peter Lynch Lawyers ORDERS
MLC 2364 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PAYNE
Applicant
AND: MR EAST
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
7 MARCH 2024
THE COURT ORDERS THAT
1.All previous parenting orders be discharged.
2.Ms Payne, (‘the Mother’) have sole parental responsibility for the children X born in 2015 and Y born in 2017 (“the children”).
3.The children live with the Mother.
4.The Mother be excused from providing her and the children’s current and future address and contact details to Mr East, (‘the Father), with such details to remain confidential.
Time with the Father
5.The children spend no time and have no communication with the Father unless agreed in writing by text message, email or letter and in the event of a dispute as to what was agreed the Mother’s last communication shall be regarded as determinative of whether there was an agreement or not.
Restraints
6.The Father be and is hereby restrained by injunction from:
(a)endeavouring to ascertain the residential address of the mother and children and permitting, causing, or authorising an agent to do so on his behalf.
(b)attending the children’s school/s or any extracurricular activities attended by the children and permitting, causing, or authorising an agent to do so on his behalf.
(c)approaching the mother and children’s residence and permitting, causing, or authorising an agent to do so on his behalf.
Passports and Travel
7.The Mother be permitted by this Order to apply, pursuant to section 11 of the Australian Passports Act 2005 (Cth), for the renewal and/or issue of an Australian Passport for the children without requiring the consent or signature of the Father, with the Court being satisfied that such order is in the children’s best interests.
8.The Mother be at liberty to provide a copy of these Orders to the Australian Passport Office and/or any relevant Department of the Australian Government with respect to the children’s passports.
9.The Mother retain possession of the children’s passports.
10.The Mother be permitted to travel overseas and/or interstate with the children and obtain any necessary travel visas/permits on any occasion that she deems appropriate without requiring the consent of the father.
Other
11.The Mother be at liberty to provide a copy of these Orders to the children’s school/s, the children’s treating medical or allied health practitioners and the mother’s treating medical or allied health practitioners.
12.The Father be at liberty to provide a copy of these Orders and the reasons for Judgment (when available) to any treating or assessing medical practitioner, including allied health medical practitioner, officer concerning with a Community Corrections Order and/or a officer of any court supervising or dealing with any sentence of the Father
13.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these Orders.
14.The appointment of the Independent Children’s Lawyer be discharged.
Final Property Orders
15.Within 7 days of the date of these orders, the Father do all acts and things and sign all documents required to list the real property situate at and known as C Street, Suburb D, in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the property”) for sale (“the sale”).
16.L Company, be appointed as the selling agent (“the selling agent”) and the parties be permitted to provide a copy of these orders to the selling agent.
17.The Mother provide at her expense prior to or at settlement of the sale a withdrawal of Caveat … registered on the title to the property.
18.The sale proceeds be applied as follows:
(a)First to discharge mortgage no. … to Bank F (“the mortgage”).
(b)Second to pay any costs, commissions, and advertising expenses of the sale.
(c)The remaining balance to be applied as follows:
(i)a sum equal to 40% of the remaining proceeds of sale to the Father.
(ii)a sum equal to 60% of the remaining proceeds of sale to the Mother.
19.Prior to the distribution of sale proceeds to the parties, the sum of $495 be deducted from the sum due to the Father pursuant to order 4(c)(i) hereof being the Father’s half share of the cost of the property valuation report, and such sum paid to the Mother.
20.Pending completion of the sale:
(a)The Father have sole use and occupation of the property;
(b)The Father pay all mortgage repayments to the effect that the balance outstanding does not increase beyond the sum of $285,000, rates and outgoings for the property as and when they fall due;
(c)The Father be restrained from further encumbering the property and/or drawing on the existing mortgage facility without the consent in writing of the Mother.
(d)The parties hold their respective interests in the property upon trust pursuant to these Orders.
21.The Mother retain to the exclusion of the father the following:
(a)The Motor Vehicle 2 in her possession; and
(b)Funds standing to her credit in any bank accounts in her name.
(c)The chattels and furniture in her possession.
22.The Mother be solely liable for and indemnify the Father in relation to all debts and liabilities in her name or attaching to any item of property which she is to retain pursuant to this Agreement including but not limited to:
(a)M Bank credit card account ending #...91 - ($8,000)
(b)M Bank Visa account ending #...05 – ($8,000)
(c)N Bank Mastercard account ending #...47 – ($2,500)
23.The Father retain to the exclusion of the Mother the following:
(a)The business trading as H Pty Ltd;
(b)Motor Vehicle 3 in his possession; and
(c)Funds standing to his credit in any bank accounts in his name.
(d)Chattels and furniture in his possession.
24.The Father be solely liable for and indemnify the Mother in relation to all debts and liabilities in his name and of the business trading as H Pty Ltd or attaching to any item of property which he is to retain pursuant to this Agreement including but not limited to the Business overdraft account ending #...16.
Superannuation Splitting Orders
25.That for the purpose of these Orders:
(a)Mr East is the member spouse – member number … (“the member spouse”);
(b)Ms Payne is the non-member spouse (“the non-member spouse”);
(c)Super Fund 1 is the Superannuation Fund (“the Superannuation Fund”);
(d)Super Fund 2 is the Trustee company (“Trustee”)
26.That in accordance with S.90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable from the interest of the member spouse the Superannuation Fund shall pay to the non-member spouse the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $33,362 and there be a corresponding reduction in the superannuation entitlement the member spouse would have had but for these Orders.
27.That for the purpose of these Orders with respect to the splittable payment the operative time is four (4) business days after service of this Order upon the Trustee.
28.That until the happening of:
(a)The establishment of a separate account in the name of the non-member spouse in the Superannuation Fund; or
(b)The transfer or “rolling over” into another superannuation fund of the payment split which was created by this order hereof;
(c)There is a satisfaction of a condition of release and payment of a payment split which was created by this order hereof;
(d)An execution of a waiver of rights within the meaning of Section 90MZA of the Family Law Act in relation to the payment split created by this order hereof;
the member spouse 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 other act or thing which would render any part of his interest in the Superannuation Fund a “non-splittable” payment within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 and the member spouse revoke any death benefit nominations currently executed in favour of any person other than the non-member spouse and execute forthwith a death benefit nomination in favour of the non-member spouse.
29.That a copy of these Orders be served forthwith upon the Trustee of the Superannuation Fund.
30.That having been accorded procedural fairness in relation to the making of these Orders hereof, these Orders bind the Trustee of the Superannuation Fund.
31.Unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these Orders.
(b)Monies standing to the credit of the parties in any joint bank accounts be divided equally and the accounts then closed.
(c)Save as provided herein each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.
(d)Insurance policies remain the sole property of the owner named thereon.
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
32.Any application for costs be made in accordance with rule 12.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules within 28 days of these orders.
33.All extant applications be 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
res tempore
INTRODUCTION
These are the settled reasons of a judgment delivered res tempore, that is an oral judgment delivered shortly, but not immediately, after the hearing or what would be described as ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read including by inserting headings. The substance is unchanged. It is the practice of this court to deliver reasons for final orders in writing. An already in place sale of the property was arranged for early 2024 and it was imperative that orders and reasons for judgment be delivered before then. For that reason, I delivered oral reasons and made orders on 7 March 2024 for a trial concluded on 24 January 2024.
The first question I must determine in this case is whether the Respondent, the father of X (‘X’) now aged 8 and Y (‘Y’) now aged 6, collectively referred to as ‘the children’, should spend any, or any substantial and significant time, with the children. The second question I must determine is how the modest equity in the home the parents once lived in should be divided between the children’s parents after the now pending sale of that property.
The Applicant, Ms Payne, (‘the Applicant’) is the mother of the children and they currently live with her, and the Respondent, Mr East (‘the Respondent’), is the father of the children and the sole registered proprietor of the property the subject of the property orders controversy. He has re-partnered and has a child, O, now aged 8 months with that partner. An Independent Childrens Lawyer (‘ICL’), funded by Victoria Legal Aid, represents the children’s interests in these proceedings.
The Respondent is intelligent and articulate and has achieved much in his life and has the personal potential to continue to achieve. He has, I infer, completed the tertiary qualification of his trade apprenticeship, runs his own business, purchased a home at a young age and been significantly involved in the care of the children when young.
Respondent not seeing the children
Although he wanted to, the Respondent has not seen or spent time with the children since he was arrested and refused bail in 2022. The children love the Respondent and want to spend time with him. This case turns on whether it is in the children’s best interest, including whether it is satisfactorily safe for the children’s mother and the children, for the Respondent to spend supervised or unsupervised time with the children.
Decision of no time
For the reasons that follow, after considering the applicable law and all of the evidence, with great sadness, I am not satisfied that that it is in the children’s best interests for any orders to be made, interim or final, for the Respondent to spend time, supervised or unsupervised, with the children.
It is noted the Applicant pressed an order that the children spend no time and have no communication with the Respondent. I am troubled about that order because if she were, in the future, to determine that it was safe and appropriate for there to be supervised or unsupervised time with the Respondent, she is potentially in breach of an order and would need to come back to court to be able to put that in place. I am satisfied that the Applicant has a mature approach and would prefer a relationship between the children and the Respondent, if she was able to be satisfied that it was safe and peaceful to do so.
Hence, I am satisfied that the order about the Respondent’s time should be qualified by the further words “unless agreed in writing or by text message, email or letter”, and in the event of a dispute as to what was agreed, the Applicant’s last communication shall be regarded as determinative of whether there was an agreement or not. I insert that because of the potential for the parties to fall out about what was and was not agreed, were that agreement to ever come to pass.
I am also satisfied that not only the Applicant should be at liberty to provide these orders to the children’s schools, etcetera, but the Respondent should also be at liberty to provide these orders and the reasons for judgment, when available, to any treating or assessing medical practitioner or allied medical practitioner, concerning him and/or any officer of a Community Corrections order and any officer of any court supervising or dealing with any sentence of the Respondent.
BACKGROUND
The Respondent is aged 37. He has worked as an owner of his own business. The Respondent states, and I accept, that he has not had any paid employment since around mid-2023. The Applicant is aged 33. She is currently not in any paid employment at the time of the trial and lives at an address known to the Court but intended to not be known to the Respondent.
The parties commenced cohabitation in or around 2012 according to the Applicant, or 2014 according to the Respondent. They separated in or around 2019.
By agreement made between the parties, soon after the parents separated, for the short period of about eight (8) weeks, the children lived with both parents on a roughly equal basis. The Respondent cared for the children for four (4) nights during the first week, and three (3) nights during the second. The Applicant cared for the children three (3) nights within the first week and four (4) nights within the second week.
The agreement broke down after an incident in late 2019 where the police were called to the former relationship home (‘the FRH’) and an Intervention Order was taken out against the Respondent for the protection of the Applicant and the children. The Respondent has not seen or spent time with the children since May 2022.
The Applicant has claimed to be a victim of serious family violence from the Respondent. The Respondent was incarcerated for breaches of a Family Violence Intervention Order (‘FVIO’) that was put in place naming the Applicant as the protected person.
The first proceedings
The Applicant had first issued proceedings seeking children’s orders on 4 March 2021 and later, what purported to be, final parenting orders were made by consent on 2 September 2021. Those consent orders provided for equal shared parental responsibility and for a shared care arrangement where the children spent time with the Respondent on two nights on alternate weekends, one evening after school in the other week, for half of school holidays on an alternate week basis, and for special days. As set out later I accept the Applicant was intimidated into agreeing to those orders.
The property dispute continued and has troubled the parents since.
Respondent imprisoned and released after serving sentence
Those court ordered arrangements, although not proceeding satisfactorily, broke down entirely in May 2022 when the Respondent failed to return the children to the Applicant as required by the court orders and soon after was arrested and charged with breaches of an Intervention Order, was refused bail and, after he pleaded guilty, was sentenced to imprisonment in late 2022 after already serving time while in custody. That was the only time the Respondent has been imprisoned. After his sentence was varied on appeal, he was released in late 2022, but with the substantial supervision requirements of a longer Community Correction Order (‘CCO’).
On the limited evidence available before me, whether or not the Respondent’s compliance with the community-based order is entirely satisfactory – and it appears not to be – the impact on the Respondent of the prison sentence and the conditions of the community-based order appear to have been successful, so far, in assisting the Respondent avoid further criminal charges, and I take that into account.
ORDERS EACH PARTY SEEKS
It is most convenient to address the final orders sought by the ICL[1] first.
[1] Exhibit M2.
Orders sought by the ICL.
1.The mother have sole parental responsibility in respect of the children [X] born [in] 2015 and [Y] born [in] 2017.
2. The children live with the mother.
3.The father spend time with the children as determined by the court, after considering any risk factors presented by the father.
4. The father attend and complete a Men’s Behaviour Change Program.
5.The father continue to attend upon his psychologist and accept all their reasonable directions.
6.That in the event that the father’s time is supervised, the court consider a review of this matter in 3 to 6 months.
7. The father attend upon a psychiatrist for review of his medication
In final address the solicitor/advocate for the ICL submitted as follows:
MR HALE:…the ICL particularly says that we don’t want to start supervised [time]if there’s absolutely no prospect of going to unsupervised, but, at this stage, particularly bearing in mind the wishes of the children, and not just the wishes of the children, but the right of the children to know their father and his extended family, at this stage it’s a process worth trying. Even if it doesn’t proceed, [Ms P] has adverted to the identification aspect and indicated that if, at the very least, there ought be some identification visits on six occasions a year from memory.
So, in the ICLs respectful submission, yes, it’s – there’s no guarantee that it would proceed to supervised, but, at this stage, it’s worth trying and it’s not that there’s simply no prospect that it could ever become unsupervised. And one can speculate that, if [the Respondent] were to engage with a psychiatrist and gain greater insights into his mental health issues, and the like, then there’s a real prospect of there being fulfilling time between him and the children.
It is clear that the ICL placed great weight on the children’s wishes and their right to have a relationship with both parents. At this point, I want to indicate that the position of the ICL and the orders of the ICL are not accepted, and I do not accept those orders for the reasons later set out. But I do regard those orders as being impaired by the observations of the Full Court both in the case of Oberlin & Infeld[2] and in the case of Lainhart & Ellinson[3].
[2] Oberlin & Infeld [2021] FamCAFC 66.
[3] Lainhart & Ellinson [2023] FedCFamC1A 200.
In final address, the following occurred in counsel’s reply to the idea of a “different case”:
HIS HONOUR: …Ms Paterson, Mr Hale’s “let’s have some supervision and see how that goes,” is there any view that, contrary to if I did do supervision, what that’s going to show is [X] and [Y] would be likely to interact well with their father?
MS PATERSON: They’re likely to, yes.
HIS HONOUR: Yes. And, hence, at the end of whether it’s four or six or ten visits, we would know what we know now?...
MS PATERSON: Yes. They’re likely to have a good time.
HIS HONOUR: Yes.
MS PATERSON: And there might be some difficulties with the administration of it, but that will be contained to his - - -
HIS HONOUR: Yes. But the issue is, is it safe for the children? Is it safe for [Ms Payne]? Is it safe for the children’s relationship with [the Applicant]?
MS PATERSON: Yes, if it’s – yes.
HIS HONOUR: All right. And your case is there’s an unacceptable risk, or rather in blunt terms it’s not safe?
MS PATERSON: Yes. That’s right. And no amount of carefully choreographed supervision even at a contact centre is sufficient to mitigate that risk.
HIS HONOUR: And Mr Hale’s case says, “Look, give [the Respondent] a chance to get his case in order,” to do the psychologist, to do the psychiatrist, etcetera. You say you press for final orders and that I make final orders on the state of the evidence as it is.
MS PATERSON: Correct.
HIS HONOUR: And that if [the Respondent]… does all the things that Mr Hale and the ICL says he should do, that it would be a different case?
MS PATERSON: Of course it would, and that it would have to be assessed on its merits at the time.
Orders sought by the Applicant
The Applicant sought orders that she have sole parental responsibility, that the children live with her, and that any time between the Respondent and the children be prohibited. She sought the sale of the FRH that is solely owned by the Respondent, with the proceeds of sale after payment of sale expenses and discharge of mortgage to be divided between the parents so that the Applicant receives 80 per cent and the Respondent receives 20 per cent, that is, 80/20 of the asset pool as she characterises it. As I set out later, I did not ultimately accept the asset pool as initially characterised by the Applicant in her outline of case.
Orders sought by the Respondent.
As to the children, the Respondent seeks orders that in concept align with the ICL’s orders but does not adopt the provisions that would authorise the Applicant to consult his medical practitioners or the hair follicle testing. He opposes those matters on the basis that he is being closely supervised by the Court Judicial supervision regime of his criminal sentence and the CCO.
As to the property orders, the Respondent seeks the sale of the FRH and he says he already has that sale underway, with the proceeds of sale after payment of sale expenses and the discharge of the mortgage to be divided equally between the parents. For the reasons set out later on, I did not accept either party’s property case. I ultimately determined that the proceeds of sale of the FRH, with some conditions, should not be divided equally between the parents and not 80/20 but 60/40 in the Applicant’s favour.
THE CURRENT PROCEEDINGS
These proceedings have had a difficult and protracted history since the final children’s orders of 2 September 2021 were made. The proceedings have cost the Applicant a very significant sum. I am satisfied that if the Applicant was in full-time work, the cost of pursuing these proceedings or defending them would be the equivalent of likely about two or three years or so of her net of tax earnings. Her parents have funded the proceedings. The Respondent’s conduct of the proceedings has frustrated the applicant, and I must, and I do, take care to not let his conduct of the proceedings overshadow the children’s best interests. But the evidence of the manner of the Respondent’s “off and on” and less than satisfactory engagement in these proceedings, and his attitude to that, is one of the matters necessary to take into account in determining the best interests of the children.
Interim proceedings and current orders
After enduring significant threatening communications from the Respondent, the Applicant commenced these, the second parenting proceedings, in this Court on 4 March 2022. The first return was on 11 May 2022 when the Respondent appeared electronically. Communications at that time are addressed in detail later in these reasons. Interim orders were made on 6 July 2022, with the assistance of a Child Impact Report (‘CIR’), in the absence of the Respondent and while he was in jail. Those quite drastic and unusual orders provided:
Interim parenting orders[4]
[4] 6 July 2022 Orders.
1. That the Parenting Orders made on 2 September 2021 be discharged.
2.That until further Order, the Mother, [the Applicant] [Ms Payne] (‘the Mother’), have sole parental responsibility for the children [X] … and [Y] (‘the children’).
3. That the children live with the Mother.
4.That until further Order, the Father be restrained from spending time or communicating with the children.
5.That the Mother be excused from providing her and the children’s current and future address and contact details to the Father with such details to remain confidential.
6.That the parties have liberty to apply for the parents and the children to attend upon a Court appointed Child Expert for the purpose of preparation of a full Family Report if they deem it necessary for the progression of this matter.
7.That the Independent Children’s Lawyer do all acts and things to cause and arrange for the Father to be psychiatrically assessed by an expert psychiatrist (‘the Psychiatrist’), AND IT IS REQUESTED that such assessment be funded by Victoria Legal Aid in the first instance.
…
13.That the Mother has leave to make an application to proceed on an undefended basis in the event that the Father does not file documents in accordance with these orders.
Parenting - other
…
16.That the Independent Children’s Lawyer forthwith provide by email to the Father and by email and ordinary post to the Father care of his lawyers retained in criminal proceedings, the following documents within seven (7) days of these interim orders on condition that the Father only uses these documents for the purposes of this proceeding and subject to the injunctions made in these orders:
(the CIR and documents provided by DFFH and a copy of the orders)
…
Interim property orders
21. That regarding the property at [‘the FRH’]:
a.60 days prior to the trial date, the parents to all things necessary obtain an updated valuation of the property from the firm known as [E Company], the cost of such valuation to be paid initially by the Mother and adjusted at a final settlement.
b.In the event that the Father fails to facilitate entry to [the FRH] when requested to, the valuer be permitted to revalue the property based on the criteria listed in the valuation report dated [mid]-2021;
…
(emphasis added)
The Final Hearing
The Final Hearing commenced on 22 January and ran for 3 days. I reserved reasons on 24 January 2024.
The Respondent remained a litigant in person throughout the final hearing, and the Applicant was legally represented by solicitor and counsel. I had regard to the Respondent being a litigant in person and provided some information to the parties pursuant to the settled law of the obligations of a Judge described in Re F: Litigants in Person Guidelines (2001) FLC 93 072 at [253].
The matter was to proceed in person in the courtroom at the Federal Circuit and Family Court of Australia at Melbourne, Division 2, however my chambers received an email on the Sunday before the final hearing where the Respondent requested that he appear electronically via Microsoft Teams because he said he was experiencing COVID-19 symptoms. I accepted his request. The email chain between the Respondent and my chambers was marked as Exhibit C3.
Application for undefended hearing refused
The Respondent did not file affidavits of evidence in chief as he was ordered to. At the beginning of the Final Hearing, counsel for the Applicant made an oral application for the matter to proceed on an undefended basis and accurately set out part of the procedural history:
MS PATERSON: [On 6 July 2022 The Court made] …a discretionary order at that stage for the 102NA provisions to apply. And your Honour… at that stage listed the matter for trial on 20 April 2023, and you made trial directions which included an order for the parties to file material. The Respondent was to file material within 28 days of the trial date, and you made an order that if he failed to do so, the applicant could seek leave to proceed undefended. The father did not comply with those orders and directions for filing documents… But, in any event, the court vacated… that trial date. The order to vacate the trial date was made on 20 March 2023, and the matter was re-listed for 25 September 2023 for four days. That’s the second trial date... And
…
MS PATERSON: So… this is the third time the matter has come before the court for a trial. It was to have a special fixture before you in September, and the main reason for the trial date being vacated and adjourned to today was the fact that the psychiatric report still hadn’t been completed and released. The interviews had happened several months prior to that, but the father had not attended to payment of the report. He, in fact, has now done that, and the report was only released on 10 January. But for his failure to do that, in my submission, the matter could have proceeded to hearing on 25 September...
…
MS PATERSON: And so…when the matter came before you on 11 September, which was when you vacated the 25 September trial date, you made orders for the father to file and serve any amended response trial affidavit, financial statement by no later than 4 pm on 4 December. He hasn’t done that.
…
But in any event, the only material that he has filed is material that is woefully out of date…
…
HIS HONOUR: And is one of your points, if you proceed undefended, there’s a prospect of concluding at least this part of the case today.
MS PATERSON: Yes.
…
After hearing submissions I declined to make an order to proceed on an undefended basis and decided I would hear the Respondent’s case and his submissions as well as the Applicant’s and the ICL’s.
The Respondent and the Family Report Writer were cross examined. The Applicant was cross examined by the lawyer for the ICL but was not cross examined by the Respondent due to the provisions of section 102NA of the Act and the order made by this Court that prevented the Respondent from personally cross examining the Applicant.
This 3-day trial was mostly 3 days of cross-examination and submissions. Evidence in chief was by affidavit and the parties proceeded on the basis that evidence in chief had been read before the start of the hearing. It had been.
Documents relied upon
The Respondent was permitted to rely on documents filed much earlier when the proceedings were at an interim stage. He relied on:
·Response to Application for Final Orders filed 29 April 2021;
·Affidavit of the Respondent filed 29 April 2021; and
·Oral Evidence.
The Applicant was permitted to, and did, rely on documents filed much earlier at an interim stage as well as affidavits of evidence in chief. The Applicant relied upon the following documents:
·Interim affidavit of the Applicant filed 9 May 2023;
·Interim affidavit of the Applicant filed 10 June 2023;
·Child Impact Report dated 21 June 2022 filed 30 June 2022;
·Amended Application for Final Orders filed 28 July 2023;
·Financial Statement filed 28 July 2023;
·Trial Affidavit of the Applicant filed 28 July 2023;
·Affidavit of Mr Q (Valuation) filed 28 July 2023;
·Affidavit of Ms T filed 28 July 2023;
·Family Report of Ms P filed on 3 March 2023 and a further addendum to that report (or second family report) filed 7 August 2023;
·Affidavit of Dr R filed 12 January 2024;
·Section 69ZW report dated 22 June 2022 filed 1 July 2022; and
·Section 69ZW report dated 17 March 2022 filed 30 June 2022.
The ICL relied upon the following documents:
·Section 69ZW report dated 22 June 2022;
·Child Impact Report dated 1 July 2022 and a further addendum report filed 1 July 2022;
·The Family Report dated 2 March 2023 and a further addendum to that report filed 4 August 2023;
·Subpoenaed materials of Corrections Victoria regarding the Respondent and Victoria Police records regarding the Applicant and the Respondent; and
·Affidavit of Dr R, a single expert psychiatrist, filed 12 January 2024 who examined the Respondent.
Exhibits tendered
Exhibits tendered are listed at the end of this judgment in Appendix One.
APPLICABLE LAW
Standard of proof
In these reasons, statements of fact are findings of fact. In this proceeding, I must and do 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.
Reliability of the parents’ evidence
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 in evidence, incontrovertibly demonstrated that the Kombi van had been on its correct side of the road at the material time. The High Court found that the Court of Appeal had been justified in upholding the appeal and upheld that court’s findings about the point of collision.
When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality in 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 as well as the evidence and demeanour in the witness box of the parties. In the circumstance of the Respondent representing himself and potentially suffering some impairment of judgment, and hence capacity to conduct his case, I was alert to potential exaggeration of the Applicant in her evidence or reports to Child Protection that may not be challenged or dealt with by the Respondent. I did not find any.
I have, broadly speaking, accepted the Applicant’s account of controversial events because:
·I observed the demeanour of each of the parents in the witness box and of the Respondent in his submissions. The Respondent is dismissive of allegations that he perceives as critical of him, unless he knows there is incontrovertible evidence against him.
·The Applicant’s demeanour was of a careful and largely responsive witness who readily made concessions. Her oral and affidavit evidence had an apparent verisimilitude about it.
·The volume of incontrovertible text message and email evidence of the Respondent threatening, harassing, demeaning, and insulting the Applicant over a long period up until he is imprisoned is consistent and corroborative of the general and particular evidence and the opinion the Applicant has of her relationship.
·The substantial extent to which the involvement of DFFH (‘Child Protection’) and the section 69ZW reports are consistent with and corroborative of the general and particular evidence and the opinion the Applicant has of her relationship.
·Although the Respondent was intelligent and articulate and, I am satisfied, quite capable of advancing his case, he challenged allegations of few incidents.[5]
[5] For example, he challenged the alleged assault on the Applicant’s father. and the father not being a witness, I do not make any finding as to that controversy.
SOME SIGNIFICANT EVENTS & CONTROVERSIES
These reasons will not recite all of the relevant events and controversies, but it is necessary to recite much of the events disclosed in the evidence to provide context for my consideration of Part VII and Part VIIIAB of the Family Law Act 1975 (Cth) (‘the Act’), and the drastic and unusual orders I am very sadly compelled to make in the best interests of the children. I have attempted to consider and set out these events in chronological order to better understand how this family ended up where it is.
The parts of emails reproduced in these reasons should not be regarded as all of them. There were many very long and threatening texts and emails. They make disturbing reading. The parts set out are not the most offensive[6] or threatening[7] but will suffice for the reader to catch the tone and frequency and context to the voluminous communications. These show what the Applicant had to endure post separation.
[6] for example the email from early 2022 from what appears to be Ms U and is recited below and attached at page 21 of the Applicant’s 9 May 2022 affidavit
[7] for example the email attachment on pages 33 &43 of the 9 May 2022 and the text message on page 15 of the Applicant’s affidavit of 10 June 2024
Respondent first diagnosed by Dr.S back in 2013
Dr S was the Respondent’s general practitioner that the Respondent has attended upon since 2013 about his low moods and mental health. Dr S diagnosed the Respondent with a mental illness and has been his treating GP since.
Start of de facto relationship in 2014
It is common ground the de facto relationship was more than two (2) years and that property proceedings commenced within two (2) years of the end of the relationship. The Respondent asserts, and it is common ground, the chronological parameters of the de facto relationship were as follows:
7.[the Applicant] and I commenced living together in or around 2014. At this time I owned a property in [Suburb G] (“the [Suburb G] property”) and [the Applicant] moved in with me. [the Applicant] and I separated in early September 2019.
8. There are two (2) children of the relationship:
(a)[X] born [in] 2015 (almost 6 years); and
(b)[Y] born [in] 2017 (aged 3 years) (“the children”).
9.From [late] 2019 to [late] 2020 the children lived with [the Applicant] and I on an equal shared care basis by way of an informal agreement. [the Applicant] has refused to allow me to see the children since this time.
The Applicant describes the de facto relationship as follows:
12.I say that my role as a Wife and Mother has been significantly more arduous due to the domestic violence the Respondent perpetrated against me, both during our relationship and in the four years since it ended.
13.During our de facto relationship, the Respondent was controlling, abusive and created arguments for no reason. He berated and yelled at me in public and did not like me having friends. When I started playing sport to get fit and for social interaction, the Respondent told me he did not want me doing so, because I paid for it with family money, and I "was not to forget it was his money". I was given minimal money to buy groceries and necessities for the family and the Respondent controlled what I bought. He was also critical of food I cooked and said it was "shit". The children witnessed many of the Respondent's abusive outbursts. His behaviour continued and worsened after separation and occurred at every opportunity the Respondent had to come in contact with me, and also by way of text and electronic media.
Whilst the relationship may have commenced earlier than 2014, I am satisfied that the parties were in a de facto relationship by 2014.
Late 2019 incident
In late 2019, an incident broke out where the Police were called. The Applicant claims that she was assaulted by the Respondent in the presence of the children. The children were in the Respondent’s care when he telephoned the Applicant at her workplace and insisted that she come and collect the children from him because, he said, he was sick. The Applicant was irritated with the demand that she leave her work to collect the children. She was sceptical about the Respondent’s claim of illness being such that he could not care for the children. She relented, left work, and went to the FRH – where the Respondent still lived – for the purpose of collecting the children as he requested.
I am satisfied she was very annoyed and irritated and that this was apparent to the Respondent. Once the Applicant arrived at the FRH, an argument erupted between the parents. The Respondent refused to let the Applicant take the children as he had previously demanded. Although denied by the Respondent, I am satisfied that he did assault the Applicant.
I am so satisfied notwithstanding the impairment to the fact-finding process[8] of the Respondent being unable to cross examine the Applicant. The Applicant was cross examined, not unsympathetically, by the ICL and not at all by the Respondent.
[8] An unintended consequence of the 102NA scheme.
I am so satisfied of this allegation because:
·I observed the demeanour of each of the parents in the witness box and of the Respondent in his submissions. The Respondent is dismissive of allegations that he perceives as critical of him, unless he knows there is incontrovertible evidence against him. On this “assault” incident point I was not satisfied that his evidence is reliable.
·The Applicant’s demeanour was of a careful and largely responsive witness who readily made concessions including in regard to this incident.
·In the circumstances of the later consent orders for a shared care arrangement I cannot ascertain any motive for the Applicant to exaggerate or make up such an incident.
·The incontrovertible evidence (recited later) of impulsive but serious threats and comments by text message and emails show the Respondent is capable of impulsive and violent behaviour towards the Applicant.
·The Applicant’s evidence on this point had an apparent verisimilitude about it and the Respondent’s did not.
The Police were called after this event and an IVO was taken out against the Respondent naming the Applicant and the children as protected persons.
The Respondent was charged with assault in late 2019 and received a good behaviour bond and was ordered to attend reportable therapy. I infer those charges arose from the incident described above. The incident is described in detail within the applicant’s affidavit of 4 March 2021, but it is unnecessary that I refer to those detailed observations.
When questioned about this by the ICL during cross examination, the Applicant alleges that she came to the house due to the Respondent stating he was sick with gastro and needing help. The Applicant alleges that this was a ploy to get her to the house, as she believed that he was a grown adult and could look after himself.
MR HALE:Do you agree that there had certainly been a gastro sort of thing going on in the household, with him and the kids?---
THE APPLICANT: Not at that time, no
MR HALE:You think it was a ruse simply to get you there?---
THE APPLICANT: He was definitely insistent that I come, because he’s also an adult and able to look after himself, and should be able to look after his children at the same time.
The Applicant recited the incident in a step-by-step process when asked:
HIS HONOUR” You get there. There’s discussion between you. You go to leave with the children?—
THE APPLICANT: Mmm.
HIS HONOUR: Which is what he originally requested?---
THE APPLICANT: Yes.
HIS HONOUR;: But at this point he has changed his mind - - -?---
THE APPLICANT: Yes.
HIS HONOUR: and doesn’t want you to leave with the children?---
THE APPLICANT: Wants me to stay.
HIS HONOUR: Wants you to stay. Takes [Y] from you and [assaults you]?-
THE APPLICANT: He locked me in the house.
HIS HONOUR: Okay?---
THE APPLICANT: And, yes, essentially, we were having an argument, quite close quarters to each other, and I had [Y] in my arms.
HIS HONOUR: Yes?---
THE APPLICANT: And he ripped him out of my arms. Yes.
HIS HONOUR: Right. And so no [assault]?---
THE APPLICANT: Yes. Sorry. Then, yes, the altercation moved to an open living space, where there was a scuffle, including [an assault].
HIS HONOUR: Yes, but you didn’t [assault him]?---
THE APPLICANT: God no.
HIS HONOUR: Yes. He [assaulted you]?---
THE APPLICANT: Yes.
When asked about the incident during cross examination, the Respondent denied any allegation of an assault and referred to his sentencing history where he says the charges were struck out as he says he pleaded not guilty.
The Applicant conceded that this was the only time there has been any sort of physical family violence perpetrated by the Respondent.
MR HALE:Yes, and that’s the last occasion there was a physical incident – there was physical abuse of you by [the Respondent]?---
THE APPLICANT: Yes. There – it was not a common or consistent thing, and I’ve never claimed that he’s – has – he has done that more than once.
MR HALE:Okay. So that was the one occasion there was physical abuse of you by [the Respondent]?---
THE APPLICANT” I would say there was an altercation. Yes. I wouldn’t really call it abuse. It was an incident.
MR HALE: Okay?---
THE APPLICANT: To me, abuse is a consistent kind of thing.
MR HALE: Well, I - - -?---
THE APPLICANT: I guess it’s subjective, though.
I accept the Applicant’s evidence on this point for the reasons stated.
Late 2020 text messages
While the previous parenting arrangement was in place, the Respondent advised the Applicant via text message in late 2020 that he would not be able to see the children due to him going through a mental breakdown.[9]
I cannot have the kids until further notice. If you want to talk. You are welcome to call me.
[9] Annexure D of the Applicant’s affidavit of 4 March 2021.
The Respondent followed up with another text message stating:
You have no idea what you have done to me inside I'm dead! I'm checking out [the Applicant]! Hopefully the borders are open in the next week or 2 and I'm going to […] and staying with Dad for a while… I can't do shit and while there's a ivo it's all your responsibility. I'll have the kids when I can. I will not be committing to anything for the next 13 months. You do what ever you want!
This was at a time where the Applicant was concerned for the mental health of the Respondent and felt that she could not leave the children unsupervised with the Respondent until he proved to not be a risk of harm to the children.
Late 2020/ Early 2021 Respondent’s allegations investigated
The events of this time are helpfully recited in the section 69ZW report dated 22 June 2022 and include:
A further report was received [in early] 2021 which raised concerns for [X] and [Y]'s safety when in the care of [the Applicant] as it was alleged that she was abusing illicit substances. Child Protection note that these concerns were raised in the most recent intervention and were not substantiated. It was also alleged that the children's emotional wellbeing was being impacted given they had not had contact with their father, [the Respondent].
The Child Protection assessment drew attention to the concerns for [the Respondent] perpetrating family violence which had recently been investigated and substantiated by Child Protection between [late] 2020 and [early] 2021. Child Protection assessed there to be concern for the pattern of family violence perpetrated by [the Respondent] towards [the Applicant]. Child Protection substantiated these concerns and assessed [the Respondent] as responsible for harm on [X] and [Y].
Child Protection had recently assessed that [X] and [Y] would be at risk of experiencing harm whilst having contact with [the Respondent] and a recommendation was made that it would be in their best interests to have only supervised contact with [the Respondent].
The later section 69ZW report conveniently summarises events at this time as follows:
[late] 2020 – [early] 2021; Protective Intervention, concerns substantiated
[In late] 2020, Child Protection received a report in relation to the safety and wellbeing of [X] and [Y] who currently reside in the primary care of [the Applicant]. The reported information identified there is a current Intervention Order in place wits [the Applicant] and the children listed as protected persons. The information indicated that [the Respondent] had been having contact with the children however [the Applicant] has since ceased this contact and is no longer permitting it. Concerns were raised that [the Applicant] may be misusing substances given her posts on social media. Further concerns raised that [the Applicant] may be having men come to the home and is suspected to have a boyfriend who is a drug dealer.
[In late] 2020, Child Protection attended the family home and interviewed [the Applicant] who vocalized her suspicions that the report had been made by [the Respondent] regardless of Child Protection advising the identity of the reporter cannot be disclosed. [the Applicant] disclosed [the Respondent] had committed significant family violence against her.
[The Applicant] disclosed that [the Respondent] had grabbed her by the throat and dragged her in front of [X] and [Y]. [the Applicant] disclosed that [the Respondent] had been financially controlling, emotionally abusive, and physically abusive towards her and that He had breached the current Intervention Order 23 times in [late] 2020 alone.
[The Applicant] expressed she had not ceased contact between the children and [the Respondent] as reported, rather [the Respondent] had been unwilling to see the children due to his mental health. [the Applicant] denied she was involved in substance misuse and denied allegations that her boyfriend was a drug dealer.
Child Protection interviewed [X] who made disclosures that she had observed [the Respondent] grab [the Applicant]’s phone, observed him hurt [the Applicant] and making her bleed. [X] disclosed no concerns about [the Applicant].
[In late] 2020, Child Protection interviewed [the Respondent], who disclosed his concerns that [the Applicant] is using drugs along with her boyfriend however was unable to provide information as to these concerns.
Child Protection spoke to [the Respondent] in relation to the concerns for his use of family violence, and [the Respondent] denied these stating that his relationship with [the Applicant] was a “fairy tale relationship” where there was no violence involved. [The Respondent] stated that they were a loving family together and that [the Applicant] ended the relationship
[The Respondent] denied any previous or current family violence and alleged that [the Applicant] had been violent towards him. [The Respondent] denied any substance misuse however acknowledged having mental health issues including anxiety and post-traumatic stress.
During the intervention, [the Applicant] engaged with Child Protection and submitted evidence of ongoing breaches of the Intervention Order that [the Respondent] was committing.
Child Protection later spoke to [the Respondent] [in early] 2021 and raised concerns for [the Respondent] persistently breaching the Intervention Order and perpetrating family violence and harassment towards [the Applicant]. [The Respondent] acknowledged he had been sending harassing messages to [the Applicant].
[The Respondent] was assessed to lack very limited insight into his behaviour and was unable to acknowledge his use of violence. [The Respondent] stated to Child Protection on one occasion that [Ms Payne] had “escalated it to this point”. When Child Protection read out some of the language used in [the Respondent]’s breaches, he stated “she got me to this point”. Child Protection attempted to challenge [the Respondent] and hold him accountable and recommended he engage in family violence supports to address his behaviour and to create a safe environment for the children.
During the intervention, it was alleged that [the Applicant] had been using illicit substances. Child Protection investigated this and did not substantiate these concerns. [the Applicant] submitted drug screens during the intervention which were negative of any illicit substances.
The period of protective intervention closed [in early] 2021 with [X] and [Y] residing in the primary care of [the Applicant].
Further information from the helpful 69ZW report is recited later.
Final orders for regular time made by consent
On 2 September 2021 the following consent orders were made:
5. The children spend time and communicate with the father as follows:
(a) In each fortnight:
i)In week 1 from the conclusion of school on Friday until 5 pm on Sunday; and
ii)In week 2 from the conclusion of school until 7 pm (with the father to return the children to the changeover location at [Z Store]) on any one weekday upon providing the mother with at least 24 hours’ notice in writing.
…
(provisions for special occasions to be shared)
…
(g)For half of all school term holidays…
(h)In the long summer school holidays on a week about basis…
The Applicant asserted in her affidavit filed in these proceedings on 9 May 2022 that she consented to those orders because:
25.After 6 months of court proceedings and the steadfast refusal of the Respondent to negotiate or cooperate, I was worn down and made the decision that it may be safer for the children, me, and my family to agree to a consensual parenting arrangement which provided for limited alternate weekend time, with an order for the Respondent to continue treatment with his GP and psychologist, rather than to continue arguing futilely for the following 18 months to trial. I hoped that agreeing to consent orders may calm things down somewhat. I was wrong.
26.Within 2 months of the final parenting orders being made, the Respondent's stability diminished. He began to make continuous threats to 'take us out one by one' and went on a mission to destroy my life and that of my parents.
By the time of the orders the Respondent had re-partnered with Ms V. I am satisfied that part of what the Applicant took into account was that the time provided in the orders would be in the presence of Ms V. The Applicant then regarded the new partner as a good influence in the Respondent’s life and likely to assist the smooth functioning of the shared care orders she consented to.
Having assessed all of the evidence, including contemporaneous text messages, emails and statements to Child Protection[10] by the parents, I am satisfied of the Applicant’s account as to why she consented at that time to those orders. The intimidation of the Applicant worked. The Applicant also wanted the children to have a relationship with their father.
[10] Also referred to in these reasons as Child Protection.
Offer of property settlement late 2021 emails
Although final children’s orders were made, the property division litigation continued. After the solicitor for the Applicant sent an email attaching a proposed settlement for property orders to the solicitor of the Respondent, the Respondent emailed the Applicant personally. The subject of the email was “[Applicant’s] greedy family law gouge’[11]
Too late now. Your greediness and selfish acts have now made its worse…
[11] Page 17 of the Applicants affidavit of 9 May 2022.
I proceed on the basis that the quantum of any offer may have been included in those communications as a bona fide attempt to resolve the disagreement between the parties. But the remaining text of the Respondent’s offers and the manner of them, are such that it is necessary to consider them, and in the event that the whole of those communications were to be asserted (which it is not) to be offers falling within the parameters of section 131 of the Evidence Act, I regard it as necessary to consider the remainder to understand the dynamic of the relationship between the parties at that time and the provisions of section 131(2)(e) & (g) apply. Emails sent would otherwise be misleading. Hence, they would be excepted from the provisions of section 131 of the Evidence Act by section 131(2):
Section 131 Exclusion of evidence of settlement negotiations
(1)Evidence is not to be adduced of
(a)a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
(b)a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
(2)Subsection (1) does not apply if:
…
(e)the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or
…
(g)evidence that has been adduced in the proceedings, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence
…
The Respondent emailed the Applicant a day later at 5.53pm with the subject ‘So pretty much this parenting order was a waste of time wasn’t it [Applicant]?’.
Why did we get a parenting agreement for?...
Early 2021 ‘War’ email
In early 2021, the Respondent emailed the Applicant at 5.00pm with the subject of the email being “War!!”.[12]
[12] Annexure E of the Applicants affidavit of 4 March 2021
So you have declared war have you?...
…
Think very wisely! Let me see my children! It's that simple.
I will retreat instantly! And life will be good!
If YOU continue this path. It's war! The end!!!
ALL OUT WAR! DO NOT TAKE ALL I HAVE LEFT IN THIS WORLD. MY GOD DAM F-----G FLESH AND BLOOD.
Very scary scenario when you take everything a man has left!
There are 2 options here! You choose!!
Let that sink in for a minute!
…
I regard that email as threatening, notwithstanding the articulate and clever threat contained therein is uncertain. On the one hand, the threat is uncertain, but on the other that uncertainty adds to the impact upon the person to whom it is addressed.
Applicant issues proceedings
On 4 March 2021 the Applicant issued de facto parenting and property proceedings. The Respondents threats continued.
Dr S report
In early 2021, Dr S prepared a report[13] for use in the parenting proceedings that recorded the Respondent as having been diagnosed with a mental illness, and prescribed medication.
[13] Annexed to the Respondent’s affidavit of 28 April 2021.
Dear…
I am writing to you with regard to the specific questions in your letter dated on [early] 2021
1.How long [the Respondent]has been your patient
[The Respondent]has come to see me since 2013
2.[Mr East]’s diagnosis (mental health condition only)
[Mr East]’s diagnosis is: [a mental illness]
3.[Mr East]’s current and recommended treatment
…
Medications:
[Mr East]’s compliance to the medication is good. He is asked to continue current treatment for the foreseeable future.
4.In your professional opinion, whether [the Respondent]is medically fit to care for the children?
[Mr East]’s mental health has been well managed with oral medications over the past year. In my opinion, he is medically fit to care for his children at this stage.
…
Dr S was not called as a witness or for cross examination in this case. Notwithstanding that the Respondent had initially relied upon that evidence, he later came to disparage Dr S’s diagnosis:
HIS HONOUR: That’s your evidence, is it, that you have no psychiatric history?---
[THE RESPONDENT]: …I’ve taken antidepressant, but the psychiatric, bipolar, or whatever you want to call it, was diagnosed by a GP. He was actually underqualified to give that assumption and the prognosis was null and void. And the prognosis that I’ve been given from [Dr R][14] isn’t [a mental illness] or any kind of personality disorders. And I must note, I’ve never been to a psychiatric treatment facility before either. Taken antidepressant, that’s it, for a bit of depression.
HIS HONOUR: All right. So in your affidavit[15] - - -?---
THE RESPONDENT: Yes, I realise that I said I had [a mental illness].
HIS HONOUR: Yes, you said you had [a mental illness]?---
THE RESPONDENT: Yes, I did. Exactly right. And at the time I believed I did. I mean, I was seeing – I was seeing [Dr S]. I no longer – I do see him for other things, but I don’t see him for my mental stuff any more, except to get my regular pills. At the time I was led to believe and with [the Applicant] telling me that I was mental and everyone telling me, you know, “There must be something wrong with you.” I was led to believe that I, you know, I think they call it gaslighting. You know, they make you think you’ve got the problem and you think that you’ve got the – the disorder. It turns out I was just… a little bit sad and I just needed a bit of help and needed to see a psychologist, and which I’ve been doing. I take some regular medication and I feel great. So that’s… that one.
[14] The psychiatrist who prepared the single expert assessment.
[15] The affidavit prepared by his then solicitor at an interim stage of proceedings and before the Respondent had been imprisoned.
When the Respondent was asked about why he went to see Dr S about his mental health, he blamed the Applicant for his deteriorating mental health.
THE RESPONDENT: I had a mental health issue, if you want to call it that, called depression, based on the way I was being treated at home and my ex-partner, [the Applicant], being [a drug addict] and being on drugs all the time and me trying to run a business and trying to, you know, defend myself from day to day and without being gaslighted all the time, and, you know, after a while, when your partner is not coming home at night and she’s sleeping with other people and taking drugs and stealing your money, it gets pretty depressing. And if you want to read my affidavit, it’s all in there.
I am satisfied the Respondent’s abrupt change in his own assessment arose in part from the observations of Dr R, who prepared the psychiatric assessment of the Respondent for these proceedings (released in early 2024). I recite later observations from that report.
Another Child Protection investigation of the Applicant
A further report was received by Child Protection in early 2021 “which raised concerns for [X] and [Y]’s safety when in the care of [the Applicant] as it was alleged that she was abusing illicit substances”[16]. The report was closed at intake. I am satisfied the Respondent made the report and made it for the purpose of causing distress to the Applicant.
[16] The 22 June 2022 section 69ZW report at page 2.
Ms U (Mr East]-4 report mid-2021
Ms U was the Respondent’s treating psychologist and prepared a report[17] for use in the parenting proceedings of the Respondent’s sessions with her up to that time. Ms U was not called as a witness in this case. That report is as follows:
[17] Attached to the Respondent’s affidavit filed 28 April 2021
…
Firstly, [the Respondent] was referred to [AA Psychology] by [Dr S] of [BB Medical Clinic] in [early] 2020.
Secondly, [Dr S] referred him for assistance with symptoms of anxiety and depression, with a background diagnosis made six years ago of [a mental illness]. This condition had been stable for some years but the depressive component has been activated by his recent marital breakdown.
Thirdly, in relation to psychological treatment, [the Respondent]has been having regular counselling sessions since [early] last year and has attended 17 appointments. Sessions focused on assisting him with anxiety management strategies, worked on ongoing review with the aim of closure in relationship breakdown and also provided education and support with separated parenting management.
In this process he showed a preparedness to look at his own behaviour [and] also a concern for his ex-partner’s wellbeing. I would recommend continuation of the two to three weekly counselling as he adjusts to regular access arrangements.
Finally, in response to the request of an assessment of [Mr East]’s medical fitness to parent his children, I can only comment as psychologist. I have no knowledge of his medical fitness. As a psychologist and based on the work we have done, I think [the Respondent]is fit to parent his children.
His reporting of the periods of access he has had with his children over the last 12 months have always indicated good understanding of his children’s needs, preparedness to be flexible in his dealing with his ex-partner and definite enjoyment of warmth being with his kids.
My understanding that his medication is well monitored and that he has progressed significantly in understanding and reducing his symptoms of anxiety and depression since his referral [early] last year. He also uses lifestyle and exercise strategies to assist in managing daily pressures.
He is in a stable relationship and has his partner’s unqualified support and assistance in caring for the children.
He has also agreed to participate in a Men’s Behaviour change group grogram which will provide him with additional techniques to manage calculation and difficult situations.
As such, [the Respondent]appears to take his parental responsibilities seriously and is very willing to work constructively with his ex-partner for the well bring(sic)[18] of his two children.
…
[18] Report of Ms U including spelling mistakes.
I accept that at that time the Respondent presented to his psychologist as described. I am not satisfied his psychologist, who only had the Respondent’s account to go on, was fully aware of the extreme nature Respondent’s communications to the Applicant and the implicit violence within those communications. I am not satisfied the reported “preparedness to look at his own behaviour” and the “concern for his ex-partner’s wellbeing” was either genuine, or if it was, of other than a passing thought. I am not satisfied that the Respondent had, at that time, gained any significant or lasting understanding of his role in conflict with the Applicant or the impact of his violent or threatening behaviour on the Applicant, her family, and the children.
The Respondent did not continue therapy with that psychologist for very long and chose not to continue, as opposed to being advised that the therapy had concluded or was no longer required.
The Respondent’s conduct with the maternal grandparents
In late 2021, an IVO was taken out against the Respondent by the maternal grandparents after continual threats made by the Respondent over online communication.
Early 2022 Mr Q texts the Respondent
At about this time, the Applicant’s former partner, Mr Q, contacted the Respondent. These text messages created a response from the Respondent and are recited below. The Respondent asserts that Mr Q threatened to “put [the Respondent] in hospital and break his knee caps”[19].
[19] Recited in paragraph 32 of the Applicant’s 9 May 202 affidavit.
The DFFH mid-2021 section 67Z Response provided to the parties by DFFH reported[20]:
The concerns for [the Respondent’s] perpetration of family violence have recently been investigated and substantiated by Child Protection (between [late] 2020 and [early] 2021). Child Protection have recently assessed that [X] and [Y] would be at risk of experiencing harm whilst having contact with their father therefore Child Protection assessed that it would be in their best interests that the father’s contact be supervised.
[20] As later summarised in the Child Impact Report dated 30 June 2022 and relied on in this hearing and referred to later in these reasons.
Ms V, or not: [early] 2022 text messages
In early 2022 the Applicant and the maternal grandmother received a text message from an unknown number. However, it looks to be signed off by Ms V, by that time the Respondent’s ex-nanny and partner.[21]
[21] This text was annexed to the Applicants affidavit of 9 May 2022 on Pages 85-96.
In early 2022, the Applicant received an email from the email address of the Respondent, that on its face purported to be sent by the partner of the Respondent, Ms U:[22] “Who did you say was being played [the Applicant]? Have you read this man's statement and what he has said about you? I will forward it to you as I don't believe you will have access. Your not popular. He's told everyone your his [omitted]”[23]. The email continued:
[Applicant],
Please don't call me a fool or tell me I'm being lied to or played…
[22] Page 21 of the Applicant’s 9 May 2022 affidavit.
[23] This email was attached as Ms Payne-4 to the Applicant’s affidavit on 20 May 2022.
I am not satisfied that this email was sent by the Respondent’s former girlfriend. I am satisfied that this email was sent by the Respondent. I am so satisfied because of other evidence that demonstrates that the Respondent has the intellectual capacity to manipulate electronic communication. I am further satisfied that this was sent by the Respondent because the nature of the communication, the tone and context of it, and the phrasing and usage of language is entirely consistent with other abusive but articulate messages and emails sent by the Respondent to the Applicant.
Respondent abuse to paternal grandfather early 2022
Within the Applicant’s affidavit of 9 May 2021, the Applicant alleges that the Respondent has continually tried to destroy her life. In support of this argument, the Applicant attaches an email that the paternal grandfather was sent in early 2022. There are further emails that the maternal grandfather received, including:
''Truly don't give a f--- about anyone or anything anymore. I will keep going like a robot [Mr W], you will need to f----- kill me, I swear I will destroy her career. I will shame her. I will make sure your family's name is dirt as well as destroy your business and take everything from you ... .just like everything has been taken from me."
“Don't even think for 1 min this is a f----- joke. I'm not a violent man [Mr W]. But I'll get you were it hurts over the next 20 years. Then I'll piss on your grave once you die of a heart attack because you worked your whole life for nothing”
“I suggest you shut the f--- up. Get your women into order. Grow some f------ balls and call me. We need to chat. If you can't bring yourself to call me. Write me a letter. Meet me for coffee. Do something don't just avoid and be a sly dog like you have been and do nothing. All you had to do you stupid old b------ was to talk to me. Why the f--- didn't you just say something. Your just hid and ignored and hoped it would all go away. It's not going away [Mr W]. You can't hide from this one.”
“I owe you and your family nothing. You have already cost me over $***k for nothing. Nothing mate. But ill gladly piss the house up against the wall and make sure [the Applicant] gets nothing anyway which will also make you get nothing. I don't give a f---. Do vou? How much do vou give a f--- about your daughter?”
This threatening email can only have had a profound effect on the Applicant and her family. The uncertain nature of the threat makes the email only more worrisome to the recipient at the time.
Text message from Respondent early 2022
In early 2022 the Respondent text the Applicant the following: [24]
Please. Just stop it now. It's over…
[24] And recited at paragraph 36 of the Applicants affidavit of 9 May 2022.
Respondent has Mr Q’s registration
The Applicant received a text message from the Respondent after the communication recited above: [25]
Got […’s][26] rego to. I’ll be making a visit soon and putting out the word. Makjng making sure he knows well and truly never to raise his voice again in front of my children. That actually is f----- considering all thing. I Hope he’s ready to meet me, ill have a influence he wont forget.
[25]This text was annexed to the affidavit of 10 June 2022 at page 104.
[26] As an associate and ex boyfriend of the Applicant
Applicant does not allow Respondent to see children (early 2022 emails)
In early 2022, the Applicant wrote to the Respondent via email at 9.49am advising she would not allow the children to spend time with the Respondent until his mental health was under control. The response of the Respondent was made at 10.03am. The response was made from the Respondent’s work email address.
Excuse me. I haven't abused you at all…
The Respondent then followed up with another email to the Applicant at 12.14pm:[27]
I actually can't even believe that your going to pull this stunt again!...
[27] Annexed as Ms Payne-4 in the Applicants affidavit of 9 May 2022.
The Respondent followed up with another email to the Applicant at 2.39pm.[28] The subject of this email was “you think I’m the violent one and mental? Didn’t you basically order someone to kill me?
you did didn't you [Applicant]?...
[28] This is also attached to the Applicant affidavit of 9 May 2022 at Ms Payne-4.
The Respondent followed up his own email at 2.58pm:
And to think that even if you do think I have mental health issues…
Respondent asserts he is seeing the children (early 2022 email)
After the Applicant advised the Respondent that she was not comfortable with him seeing the children, the Respondent emailed the Applicant (in early 2022) and the maternal grandmother advising him of his plan.[29]
Good afternoon [Payne] Family.
I'm giving you 24hrs notice as per our family parenting plan that is court ordered…
[29] This email was attached to the affidavit of 9 May 2022
Respondent meets with the children’s school (early 2022 email)
In early 2022, the Applicant then received another email from the Respondent regarding a meeting that the Respondent had with the children’s school. The subject of this email was “Had a meeting with the school yesterday, lovely people”. [30]
…
Good to see you have updated everyone with our parent agreement…
[30] Page 34 of the Applicant’s 9 May 2022 affidavit
The Respondent was demonstrating his presence to the Applicant.
Email to the applicant from ‘insider who dislikes women’
| Description | Ownership | Respondent asserts | Applicant asserts | |
| ASSETS | ||||
| 1 | C Street, Suburb D sworn valuation dated early 2023[87] | Respondent | $650,000 | $650,000 |
| 2 | M Bank acc…09 | Respondent | $1,080 | N/K |
| 3 | M Bank acc #...62 | Respondent | $423 | N/K |
| 4 | Motor Vehicle 1– midpoint Redbook valuation | Respondent | $13,000 | $18,000 |
| 5 | H Pty Ltd inclusive of a car loan | Respondent | Nominal | N/K |
| 6 | Motor Vehicle 2 | Applicant | $6000 | $1000 |
| 7 | Westpac Bank acc #...80 | Applicant | N/K | Nominal |
| 8 | Westpac Bank acc #...22 | Applicant | N/K | Nominal |
| 9 | Westpac Bank acc #...03 | Applicant | N/K | Nominal |
| Assets subtotal | ||||
| LIABILITIES | ||||
| 10 | Mortgage for the Property | Respondent | $284,241 | $284,241 |
| Respondents H Pty Ltd commercial overdraft account pre separation | Respondent | $4278 | $4278 | |
| M Bank VISA #...91 (Respondent 2nd cardholder) | Applicant | $8000 | $8000 | |
| M Bank VISA Card #...05 (joint relationship debt) | Applicant | $8000 | $8000 | |
| N Bank Mastercard acc #...47 (joint relationship debt) | Applicant | $2500 | $2500 | |
| Loan payable to Mother’s parents for 50% costs of Respondent’s share of E Company sworn valuation | Applicant | $495 | $495 | |
| Liabilities subtotal | ||||
| SUPERANNUATION | ||||
| Fund | Type of interest | Applicant’s value | Respondent’s value | |
| The Respondent’s super fund | Accumulated | $74,127 | $74,127 | |
| The Applicant’s super fund | Accumulated | $14,255 | $14,255 | |
| Superannuation subtotal | $88,382 | |||
| TOTAL (assets – liabilities) | $361,486 | |||
| TOTAL (assets – liabilities + superannuation) | $449,868 | |||
| FINANCIAL RESOURCES | ||||
| Description | Ownership | Applicant’s value | Respondent’s value | |
| NIL | Respondent | |||
| NIL | Applicant | |||
| Financial resources subtotal | ||||
| OTHER | ||||
| Description | Ownership | Applicant’s value | Respondent’s value | |
| Loan payable by Mother to family friend Ms T for rental, accommodation, utilities | Applicant | $20,650 | N/A | |
| Loan payable to Mother’s parents for removalist costs | Applicant | $2,330 | N/A | |
| Loan payable to Ms T for car purchase | Applicant | $12,000 | N/A | |
| Loan - Legal costs paid by mother using funds borrowed from her parents | Applicant | $113,362.88 | N/A | |
[87] This value was not disputed and it was ultimately agreed the property would be sold.
There has been a lot of water under the bridge for these parties since separation. The most contentious item was the Respondent’s overdraft, fully drawn to $50,000, when, back in 2019, at least, at one point, it was only a tad over $4000. Ultimately, it was not disputed that I needed to take both parties’ liabilities into account as they were at the final hearing.
Car values were not agreed but the Respondent made some frank admissions of value that were not seriously disputed, were admissible evidence and are reliable enough for the hearing to proceed.
He accepted that his Motor Vehicle 1 “is worth 10” ($10,000), his “business vehicle is worth 30” ($30,000) and “the plant and equipment is seven and a half ($7,500), a total of $47,500[88]. I am satisfied his estimates suffer from the optimism of second hand car owners and may be worth less than $47,500. It was common ground that the business overdraft was $50,000 owing at the time of hearing. It is just and equitable to regard the Respondent’s “keep” as break even rather than negative.
[88] See Transcript page 61 and 341.
The Applicant is indebted to a family friend, Ms T. Ms T was not cross-examined. The Applicant’s outline of case did not press that liability to be included, but that was in the context of liabilities being fixed as at separation, hence if the Respondent’s liabilities are to be taken account at trial, it follows so should the Applicant’s. But Ms T is a generous family friend. She has expended or foregone at least $20,650 in foregone rent and utility bills paid until the Applicant became concerned the Respondent knew where she lived and moved. I am satisfied the Applicant has a real moral obligation to repay her generous family friend, but I am not satisfied that is a legal obligation like, for example, the home mortgage or the overdraft, that will be enforced.
The Applicant’s only other assets are modest second-hand furniture, and I regard her affidavit opinion of the value as more a replacement value rather than a market value. I am not satisfied they would be able to be sold for any value, but I take into account they have utility for her and the children. The Applicant has an unrepaired second-hand Motor Vehicle 2 that she admits is worth about $1,000. That is admissible and not disputed. I am satisfied that the Applicant’s “keep” should be regarded as about break even at best. I take into account the possibility of having to reduce the credit card debt to some extent into account of the third step of the preferred approach.
The substantial advance by the Applicant’s parents of at least $120,000 was not pressed as a liability, nor was the corresponding asset of the Applicant’s paid legal fees that would have to be taken into account if I did include the liability. Nonetheless, I will and do take into account that substantial moral obligation to repay her parents, if she is able, when I am assessing the prospective factors of section 90SF(3) at the third step of the preferred approach.
In regard to the Respondent’s keep, I regard that as roughly equal to his debt. In regard to the Applicant’s keep, I regard that as roughly equal to her debt. The total of all other assets – there is about $80,980 in the Respondent’s superannuation entitlement and $14,255 in the Applicant’s superannuation with a total of $95,235. A fixed superannuation split payment to equalise superannuation would be in the sum of $33,362. I do not find that any party has any hidden asset or undisclosed bank account or source of income.
Conclusion as to the “pool”
Hence, re-ordered into assets to divided and the Respondent’s ‘keep’ and the Applicant’s ‘keep’, the assets and liabilities of the parties are as follows:
| Description | Ownership, or to be retained by Respondent or Applicant | Value[89] | |
| Assets to be divided | |||
| 1 | FRH at C Street, Suburb D sworn valuation dated early 2023[90] | Respondent but FRH to be sold | $650,000 |
| 2. | Respondent’s mortgage debt | (285,000) | |
| 3. | FRH equity | $365,000 Less selling costs | |
| Respondent’s ‘keep’ | |||
| 4 | Assets roughly equal to debt | Respondent | Nil |
| Applicant’s ‘keep’ | |||
| 5 | Assets roughly equal to debt | Applicant | Nil |
| OTHER? | |||
| Total All Assets | |||
| The Respondent’s super fund | $80,980 | ||
| The Applicant’s super fund | $14,255 | ||
| Superannuation subtotal | $95,235 | ||
| 50% = $447,617 less $33,362 | |||
[89] All whole dollars after rounding.
[90] This value was not disputed and it was ultimately agreed the property would be sold.
I do not find that any party has any hidden or undisclosed asset, bank account or source of income.
Step two: section 79(4)(a), (b) & (c) contributions
The thrust of the authorities of the Full Court, which I endeavour to apply, is that all direct and indirect contributions, financial and non-financial, made long ago or made recently must be considered and had regard to in a holistic manner.
I acknowledge the guidance of the observations of the Full Court in Britt & Britt (2017) FLC 93-764 and particularly at [38] & [39].
38.The proposed evidence went to the relationship between the parties. In proceedings under the Family Law Act, evidence of relationships and the parties’ contributions to their property is commonly given in general terms and in terms which are redolent of being a conclusion. Affidavits would be excessively long otherwise. For example, parties often describe “relationships commencing” or starting “to live together” and this evidence is routinely and unremarkably admitted. Judges use their experience and, importantly, all of the evidence in the case to understand such statements.
39.It is true, of course, that complaints of family violence raise serious issues. Even so, there is not a higher standard for the admissibility of evidence of family violence compared to evidence on other issues. In determining whether or not allegations of a serious nature have been proven, the Court will apply s 140 of the Evidence Act, but such a task is undertaken after issues of admissibility have been decided.
I am satisfied of the Respondent’s case that he genuinely loves his children and wants to spend time with them. As to particular evidence of individual events, to the extent of his limited denials, I did not find that evidence reliable.
I am satisfied of the broad sweep of the conclusionary evidence of the Applicant’s experience of the relationship. I am not satisfied on the balance of probabilities considering section 140 of the Evidence Act and the seriousness of the allegations that the difficult and unhappy relationship before separation was a course of conduct that satisfies me that the conduct was a course of conduct that comes within the parameters of the Full Court authority of Kennon[91].
…
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon the party’s contribution to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79. We prefer this approach to the concept of “negative contributions: which is sometimes referred to in this discussion.
In the above formulation, we have referred only to domestic violence, for the reasons which we indicated earlier, but its application is not limited to that.
…
However , in our view, s 79 should encompass the exceptional cases which we described above.
…
To be relevant, it would be necessary to show that the conduct occurred during the marriage and had a discernible impact upon the contributions of the other party. It is not directed to impact which does not have that effect.
[91] Kennon & Kennon (1997) FLC 92-757 at 84,294
In assessing contribution for the purposes of section 90SM(4) of the Act I am required to and do take into account all contributions up to the final hearing. It is settled law that the contribution clock or assessment does not stop at the end of a de facto marriage or for married people at divorce. I do not understand the Full Court in Kennon when using the phrase “in course of the marriage” to be deciding that a course of conduct demonstrated to have had a significant adverse impact on a party’s contributions should be disregarded because the course of conduct spanned before and after separation or divorce or only after divorce. I understood that course of conduct must relate to the other party’s contributions over a considerable period of time being considered in the section 79(4)[92] contribution assessment exercise. That is the necessary nexus must be to the contributions of the parties being connected not whether their marital relationship subsisted or had ended.
[92] Section 79(4) of the Act applies to married or once married parties and for practical purposes here is conceptually identical to the principles applying to de facto parties pursuant to section 90SM9$) of the Act.
I am mindful of the Full Court’s observations in Dickons[93] as restated in Benson & Drury [2020] FamCAFC 303, (2020) FLC 93-998, (2020) 62 FamLR 1, and a case dealing with a “Kennon” claim, and the observations of the Full Court are apposite. Those observations include the following:
[35]… all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one again the remainder.
[36]That principle has a counterpart in the application factors prescribed in section 75(2) or section 90SM(3) of the Act. Any adjustment to the parties contribution-based entitlements should be determined inclusively after considering all relevant factors; not by aggregating incremental adjustment in respect of each relevant factor.
[93] Dickons & Dickons [2012] FamCAFC 154
Hence I must avoid, “the error of segmentation and the comparative of analysis of one feature of the evidence against all others”. But I am satisfied that the events from late 2019, after separation, from that time until final hearing, do amount to a course of conduct by the Respondent that made the Applicant’s continuing contributions over nearly 5 years much more onerous and that conduct had a profound effect on her. Despite that she continued to parent the children and they have, in all the circumstances, thrived.
In assessing section 90SM(4) contributions, I am guided Dickons & Dickons [2012] FamCAFC 154 (‘Dickons’) at [24], Lovine & Connor and Anor (2012) FLC 93-515, [2012] FamCAFC 168 (‘Lovine & Connor’) at [40] to [41]. The passage in Dickons is as follows.
[24]There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
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) and (c) whenever they were made, and that it is an error to give greater or lesser weight to any particular type of contribution. However, a contribution is not to be disregarded merely because it was made long ago.
The most significant contributions of the parties are:
·the Respondent’s inheritance of $110,000;
·the Respondent’s equity of roughly $35,000 in the Suburb G property when that property was sold early in the piece;
·the $60,000 paid towards the expenses of mortgage, car payments and other bills for the Respondent by his step-father after separation, including during his incarceration. Had those expenses not been paid, there may well be no, or a much reduced, equity in the property or in the proceeds of the default sale by the mortgagee.
·The Respondent working and parenting during the roughly five years of cohabitation but little contribution since separation;
·the Applicant working and parenting over the whole of the period from 2014 until today, roughly 10 years, and most significantly from the birth of X in 2015, a period of just under 10 years.
Since 2019, the Applicant’s parenting contributions have been made much more arduous because of the unpredictable and threatening communications of the Respondent, and I take that into account in the manner as I am compelled to do by the authority of Kennon in addition and at the same time as taking into account all other contributions. In regard to the Kennon-type contribution and/or the initial contribution, I bear in mind the wise warnings against compartmentalisation. The $35,000 equity, the inheritance of $110,000 and the $60,000 Kessey-type contributions must all be compared to the available net asset pool of assets.
The net pool of assets will be something in the order of a bit more or a bit less than $365,000 depending on selling price, that is, non-superannuation assets. Measured on only a dollar basis, those amounts of the Respondent are equal to about half of the current equity. It is a significant contribution. Further, the value of the $35,000 and the $110,000 would have been substantially more than the value of those amounts at this time. But holistically, and taking into account all of the contributions, I am satisfied that the contributions should be assessed and regarded as about equal.
Step three: section 75(2) factors
I refer to and repeat the list of section 90SF(3) factors or provisions recited earlier.
Decisions where the Full Court finds error and re-exercises the discretion or decision are of particular assistance to Judges and practitioners where the facts are similar enough to be roughly comparable. The principles of law stated on appeal would ordinarily be binding on the Trial Judge and the re-exercise of discretion on the facts a helpful example, although not binding.
In Wayne & Wayne [2010] FamCAFC 33 (‘Wayne’), the Full Court dealt with an appeal where the total asset pool was $937,000 (in 2010 dollars), the parties had 4 children aged 18, 16, 10 and 8. The 18 year old could be regarded as independent and the 16 year old, having left school, and was soon enough to be working or looking for work. The 10 and 8 year old children lived in a 5/9 nights per fortnight in school term and shared holiday arrangement, with the Respondent for the 9 nights. The 16 year old also lived with the Respondent. The Respondent was found to have a full time earning capacity of $45,000 to $50,000 and the Applicant worked 35 hours per week and had slightly less earning capacity[94]. Contribution was found to be 48/52 in the Applicant’s favour and that was not interfered with on appeal.
[94] See at [58] and despite complaint the Full Court did not interfere with those findings.
In Wayne, in those circumstances, the Learned Trial Judge made a section 75(2) or third step adjustment of 10%. The Full Court found the extent of that adjustment to be an error of law and decided the adjustment should be only 4% in the circumstances. The rational of that decision can be easily discerned from the following paragraphs of the appeal decision:
[107]It is also important to recall what was said in Phipson & Phipson [2009] FamCAFC 28 when the Full Court was dealing with another appeal from the trial Judge in the present proceedings:
[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.
[108]The 10% adjustment his Honour made on account of s 75(2) factors has led to a disparity in favour of the Applicant equivalent in value to 20% of the assets. In money terms this represents $187,733 out of a total asset pool of $938,665…
[109]In our view an assessment leading to a disparity of $187,733 in the capital/superannuation to be received by each party was outside the reasonable ambit of the trial Judge’s broad discretion… The appeal will therefore be allowed.
…
[113]Taking these matters into account, and the failure of the Respondent to pay child support after giving up his employment, we consider there should be a 4% adjustment for s 75(2) factors, creating a disparity of 8% between the parties – or in money terms an amount of $75,093.
In Lovine & Connor 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 a section 75(2) adjustment.
There can thus be no doubt that settled law requires, when considering all relevant section 75(2) 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.
The Applicant seeks a 30-40% adjustment (from a 30-40% contribution position) under these factors and the Respondent seeks that there be no adjustment.
Discussion of the factors
The following headings, for convenience, paraphrase clauses of section 90SF(3), but I take into account the whole of the relevant cause.
Age and state of health
The Respondent is 37 years old. I am satisfied that his mental health is not currently well enough to apply himself properly and consistently to his trade and business.
The Applicant is 33 years old, and I am satisfied she suffers from the stress of coping with the years of abuse and threatening and unpredictable messages and behaviour from the Respondent, from about 2019 until now and particularly since separation. However, there is no question that her health is not good enough to parent the children.
Income, property, financial resources and capacity for employment
Neither party earns nor will earn a substantial income for the foreseeable future. The very different, but respective mental health and emotional difficulties of the Respondent and the Applicant, will significantly impact upon the earning capacity of both of the parties.
Reverse conundrum discussion.
The Applicant alleges that the Respondent’s mental health has been very poor since at least separation and is a matter that powerfully contends against his having supervised or unsupervised time with the children. But the Applicant’s case, when it comes to property settlement, by inference, asserts that his mental health is such that he will be able to satisfactorily support himself from his business or occupation of his trade qualification. I accept the former but not the latter proposition.
Care of children under 18 years
The Applicant has the sole care of two young children. Both parties will have substantial expense of supporting themselves. The Respondent will have the legal and moral obligation to support, or attempt to support his new partner, and O, very recently born prematurely. This was unquestioned in the trial, notwithstanding the absence of evidence of the state of that new relationship.
Commitments of each of the parties to support themselves or a child
The Respondent cares for his partner and the child. The Applicant gets by on social security, which in 2023, was about $674 per week, and a most modest income. Both parties will only have a modest standard of living in the future. The parties did not provide any indication that the issue of assisting education or training was relevant in these proceedings.
Responsibilities of either party to support any other person
The Respondent has the legal and moral obligation to support or attempt to support his new partner and O, who was recently born prematurely. This was unquestioned in the trial notwithstanding the absence of evidence of the state of that new relationship.
Pension or benefit
The Applicant gets by on social security that was in 2023 about $674 per week. A most modest income.
Reasonable standard of living
Both parties will have only a modest standard of living in the future.
Effect on creditors
The parties did not provide any indication that the effect on creditors was relevant to these proceedings, but I do take into account the very substantial sum advanced to the Applicant, by her parents, for legal fees.
Protect parties role as a parent
The Applicant at the moment needs to be available full time to care for the children. Her realistic fear of the Respondent also inhibits her ability to find paid employment.
Whether party cohabiting with another person
The Respondent alleges his new partner and their son live in the current FRH. That house is to be sold and I have no evidence of the living arrangements of the Respondent and his new family. The Applicants address was not to be disclosed, but she gave evidence that she is living in a house that accommodates for her family and I accept that.
Child support to be provided and other section 90SF(3) factors
I am not satisfied that either party has contributed to the earning capacity of the other. The Applicant, at the moment, needs to be available fulltime to care for the children and herself. Her realistic fear of the Respondent inhibits her ability to find paid employment. The Respondent is cohabiting with his new partner, but I have no evidence of whether he is likely to receive any substantial financial support, and I am not satisfied that he will. I am satisfied that the Respondent will be unlikely to contribute any significant child support, at least until his mental health and emotional health supports him applying himself to his trade and business in a sustained and significant way. I hope the Respondent proves me wrong in this regard.
Any fact or circumstances required to take into account
I take into account the threats and abuse, including the fake social media profile, have all contributed to the Applicant being unable to pursue employment at this time, and I take into account her presentation, as assessed in the Family Report, as a victim of family violence, and the significant and profound impact this has upon her.
Conclusion as to section 90SF(3) adjustment
Balancing all of the above, I am satisfied that there should be only a 10 per cent adjustment in the Applicant’s favour, in the non-superannuation assets, giving a disparity of about 20 per cent, and that is a disparity of about $73,000, depending on the sale price, on account of section 90SF(3) factors. I do not accept, in all of the circumstances of this case, that a 30 to 40 per cent disparity on account of section 90SF(3) factors, as pressed by the Applicant, is appropriate.
Step four: just and equitable and conclusion
I am not satisfied, nor was I pressed about it, that any adjustment, on account of 90SF factors, on the superannuation assets, is appropriate. Each party will retain about half the total superannuation, of about $46,000. Standing back and looking at the overall effect, I am satisfied that a 60/40 division of the proceeds of sale of the former matrimonial home, which is effectively the divisible pool, is appropriate.
Each party will retain about half the superannuation or $46,000 of superannuation. I am satisfied that there was procedural fairness to the superannuation trustee, by reason of the annexure to the Applicant’s affidavit.
I make those orders.
I certify that the preceding three hundred and seventy-seven (377) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 27 March 2024
Appendix One
Exhibit No: Description: Party 11 September 2023 F1 Respondents email chain in response of adjournment Respondent ICL1 ICL email to Chambers on 7 September 2023 ICL M1 Applicant’s submissions dated 11 September 2023 Applicant Monday, 22 January 2024 ICL2 ICL proposed Orders sought ICL M2 Applicants proposed Orders sought Applicant C1 Email chain of Respondent’s response to compliance email sent by Chambers Court C2 Email chain of Respondents response to the proposed Trial Plan Court C3 Respondents request to appear electronically Court C4 Email chain from the Respondents response to the Family Report of the parentage of the children. Court C5 Email chain of Chambers to Legal Aid following up the Respondents 102NA order. Court M3 Applicants bundle of documents in evidence in chief (9 pages) Applicant Tuesday, 23 January 2024 M4 Photograph of the Jewellery and The Bag that is identical to the appearance of the object inspected in Court. Applicant M5 Address of Applicant marked NOT TO BE DISCLOSED WITHOUT FURTHER ORDER. Applicant M6 Document shown to the Respondent of his alleged Motor Vehicle 1 (wrong model) Applicant F2 Respondents sentencing history Applicant F3 Respondents email chain between himself and the Solicitor for the Applicant between 8 December 2023 and 11 January 2024/ Applicant F4 Respondents LEAP VicPol record (Pages 1-12) Applicant Wednesday, 24 January 2024 F5 Court Judicial Monitoring reports. Respondent F6 12 page document of Arrival Checklist of the Subpoena documents Applicant F7 Page 4 of 104 of the “Office of Corrections” material produced on subpoena Respondent F8 Account …91 and Account …70 screenshots of statements Respondent M2.1 Closing version of Minutes of orders sought by Applicant. Applicant
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