Powell & Powell
[2022] FedCFamC2F 67
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Powell & Powell [2022] FedCFamC2F 67
File number(s): BRC 310 of 2018 Judgment of: JUDGE MIDDLETON Date of judgment: 28 January 2022 Catchwords: FAMILY LAW – Parenting – where there is one child of the relationship – where the child has spent not time with father since 2017 – whether mother has alienated the child.
FAMILY LAW – Property – just and equitable division of property.
FAMILY LAW – Spousal maintenance – wife seeks spousal maintenance – whether spousal maintenance should be paid to wife and the time frame for that payment.
CHILD SUPPORT – wife seeks a departure order - whether appropriate to make such an order
Legislation: Child Support (Assessment) Act 1989 (Cth) ss.116, 117
Family Law Act 1975 (Cth) ss.60CA, 60CC(2) and (3), 61DA(9), 65DAA, 72, 74, 75(2), 75(3), 79, 79(4)(a)-(c), 83, 90XT
Cases cited: Bevan & Bevan (1995) FLC 92-600
Eliades & Eliades (1981) FLC 91-022
Hickey & Hickey (2003) FLC 93-143
1 MRR v GR [2010] HCA 4.
AJO & GRO (2005) FLC 93-218
Robinson & Willis (1982) FLC 91-215
Stanford v Stanford [2012] HCA 52
Division: Division 2 Family Law Number of paragraphs: 132 Date of last submission/s: 8 November 2021 Date of hearing: 10-11 May 2021; 11-12 October 2021 Place: Brisbane Counsel for the Applicant: Ms Oakley Solicitor for the Applicant: Fedorov Lawyers Counsel for the Respondent: Mr Galloway Solicitor for the Respondent: Mitchell Lawyers ORDERS
BRC 310 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR POWELL
Applicant
AND: MS POWELL
Respondent
ORDER MADE BY:
JUDGE MIDDLETON
DATE OF ORDER:
28 JANUARY 2022
THE COURT ORDERS THAT:
1.The mother and father shall have equal shared parental responsibility in relation to the child X born in 2011.
2.Unless otherwise agreed in writing by both parents, X shall continue to attend B School, and the mother may be X’s home-based supervisor.
3.X shall live with the mother.
4.The child shall continue to attend upon the psychologist Dr C and the cost of X’s attendances shall be paid by the father.
5.In the event Dr C ceases to be the child psychologist, X shall attend upon a psychologist recommended by Dr D and Dr E, and the costs of X’s attendances on the psychologist shall be paid by the father.
6.The father shall pay the costs of X attending upon Dr D.
7.At such time as the psychologist upon whom X’s attending is of the opinion X is able to deal adequately with her anxiety and X also requests to have contact with her father, then X shall have such contact with her father at times X, the mother and the father may agree.
8.The father and mother shall attend, whether jointly or individually, upon the psychologist Dr F at such times Dr F may recommend and the father shall pay the costs of any attendances.
9.The father and mother shall carry out the recommendations of Dr F.
10.Upon an appointment being available for X, X shall attend upon Dr G and Professor H (formerly with the J Clinic) for an ASD/gifted and talented assessment, and the father shall pay the costs of the assessment.
11.Any of the doctors or psychologist named in these orders, and any that may in the future be appointed under these orders, are at liberty to discuss with each other, and provide any information about, X’s welfare.
12.X shall not be enrolled in religious education classes or any other form of religious instructions, whether at school or not, unless it is first agreed in writing by the father and mother.
13.Aside from any recommendation by Dr D and/Dr E in relation to X’s anxiety, the recommendations of Dr D and/or Dr E shall be followed for X’s medical care including whether X should have any vaccinations or other preventative care for Covid-19.
14.Except as otherwise provided or as may be agreed in writing by the mother and father, the father is restrained from attending upon X school when X is in attendance, or any music teacher upon whom X attends, the K School when X is in attendance, or on X herself, provided however, the mother shall forward by email to the father copies of X’s school reports, the address at which X is residing, the name of the psychologist upon whom X is attending, and advise him of any events in the life of X the mother considers significant.
IT IS ORDERED BY WAY OF FINAL PROPERTY ORDERS THAT
Sale of the L Street, Town M Property
15.That within 30 days of the date of these Orders, the parties shall do all acts and things and sign all documents required to sell the property situated at L Street, Town M in the State of Queensland, more particularly described as Lot … on Survey Plan …, Local Government of Region N, Title Reference … (hereinafter “the L Street, Town M property”), and for that purpose, the following shall apply:
(a)The L Street, Town M property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within 7 days of the date of these Orders, the Applicant shall provide the Respondent with a panel of three (3) real estate agents within a further seven (7) days, from which the Respondent shall nominate one (1) within a further seven (7) days, failing which the Applicant shall nominate one (1) from the panel;
(b)The list price of the L Street, Town M property shall be such amount as is agreed between the parties and failing agreement within 14 days after the date of appointment of the agent in accordance with Order 15(a) above, then the list price shall be as determined by the agent appointed in accordance with Order 15(a) above;
(c)The sale price of the L Street, Town M property shall be such amount as is agreed between the parties and failing agreement any offer to buy the L Street, Town M property that is at least 98% of the list price shall be accepted by the parties as the sale price;
(d)The parties shall co-operate in every way with the real estate agent in relation to the marketing for sale of the L Street, Town M property including making the key(s) readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at all times, including at the time of inspection by any prospective buyer;
(e)That upon agreement being reached for sale of the L Street, Town M property the parties shall execute the contract of sale and all other documents required to complete the sale of the L Street, Town M property including all transfer documentation forthwith upon its submission to them by the agent or their Solicitor, and for this purpose each party shall do all acts necessary to instruct a Solicitor to act for them jointly in the sale;
(f)The contract of sale shall provide for completion within 30 days after the date of the contract or such other time as agreed between the parties;
(g)The proceeds of sale of the L Street, Town M property shall be paid in the following manner and priority:
(i)to discharge all debt secured by mortgage no. …93 to Australian and New Zealand Banking Group Limited (“ANZ”) for which purpose the parties shall sign an authority and any other document required by ANZ bank to discharge the mortgage;
(ii)payment of the agent’s commission and advertising and other expenses payable in respect of the sale;
(iii)payment of the legal costs and outlays relating to the sale;
(iv)to Region N City Council on account of any rates adjustment;
(v)any outstanding Body Corporate fees;
(vi)reimbursement to the Applicant for any advertising or auction expenses met by him in advance in respect of the sale;
(vii)the balance to be paid to give effect to enable division of 62% to the mother and 38% to the father taking into account the property entitled to be retained by the parties pursuant to these orders and as referred to in the attached balance sheet.
16.In the event that the L Street, Town M property is not sold by private treaty pursuant to Order 15 above on or before 9 months from the date of these Orders or within such other time as is agreed then each of the parties shall do all acts and sign all documents required to sell the L Street, Town M property by public auction, and the following shall apply:
(a)The L Street, Town M property shall be listed for sale with the agent appointed under Order 15(a) above (“the auctioneer”) for sale by auction within a further 3 months;
(b)The parties shall execute all documents requested by the auctioneer for sale of the L Street, Town M property by auction;
(c)The reserve price of the L Street, Town M property shall be such amount as is agreed between the parties, and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price shall be such price as is nominated by the auctioneer;
(d)The Applicant shall pay any sums requested by the auctioneer for advertising or auction expenses in advance and shall be reimbursed from the sale proceeds pursuant to Order 15(g)(vi) above;
(e)The parties shall give such instructions as are required to a Solicitor to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer;
(f)The parties shall co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the L Street, Town M property at all times reasonably requested by the auctioneer and/or real estate agent and ensuring that the L Street, Town M property is clean, neat and in good order at all times, including at the time of any inspection and on the day of auction;
(g)The sale price of the L Street, Town M property shall be no less than the reserve price, but in the event of the reserve price not being reached, the sale price of the L Street, Town M property shall be such amount as is agreed between the parties and failing such agreement any offer received after the auction to buy the L Street, Town M property at a price which is at least 98% of the reserve price shall be accepted by the parties;
(h)That for the purpose of reaching agreement under Order 15(g) above, the parties shall attend at the auction and negotiate with the highest bidder or any other interested party in the event that the reserve price is not reached;
(i)That upon agreement being reached for sale of the L Street, Town M property, the provisions of Orders 15(e) to 15(g)(inclusive) above shall apply.
17.In the event that the L Street, Town M property is not sold at the auction pursuant to Order 16 or within 14 days after the date of the auction by further negotiation, then the parties shall cause a further auction of the L Street, Town M property to be held within 3 months after the date of the first auction and every 3 months thereafter until such time as a sale has been achieved, and for that purpose the provisions of Order 16 above shall apply save that the reserve price of the L Street, Town M property shall be reduced by 5% for each successive auction
18.Pending the completion of the transfer or sale of the L Street, Town M property in accordance with these Orders:
(a)The Applicant shall have the sole right to occupy the L Street, Town M property and shall be responsible for all rates and outgoings of the L Street, Town M property including all mortgage repayments (principal and interest) and household utilities and insurance as they fall due;
(b)Neither party shall encumber the L Street, Town M (including by way of causing the current mortgage loan secured over the L Street, Town M property to increase) or in any way deal with the L Street, Town M property without the consent in writing of the other party or/or any mortgagee.
19.That the Father retains his full interest in:
(a)The Motor Vehicle 1;
(b)His ANZ bank account …55;
(c)His ANZ bank account …33;
(d)His O Super Fund and P Super Fund accounts save for any entitlement to the wife pursuant to these orders;
(e)His USA individual retirement fund accounts; and
(f)His furniture and contents
(g)His liabilities referred to in the attached balance sheet and any other liability in his sole name.
20.That the Mother retains her full interest in:
(a)Her motor vehicle 2;
(b)Her bank accounts;
(c)US savings bonds;
(d)Furniture and contents;
(e)Her musical instruments; and
(f)Her O Super Fund superannuation account.
(g)Her entitlement to superannuation from the husband superannuation accounts pursuant to these orders;
(h)Her liabilities referred to in the attached balance sheet and any other liability in her sole name.
21.That subject to being satisfied as to procedural fairness , the following order has effect from the operative date
(a)that pursuant to section 90 XT of the Family Law Act the base amount of $55,000 shall be allocated to Ms Powell in respect of Mr Powell’s (born in 1964) superannuation interest in the O Super Fund and that pursuant to section 90 XT of the Family Law Act whenever a splittable payment becomes payable in respect of that interest Ms Powell is entitled to be paid the amount calculated in accordance with the Family Law (Superannuation) Regulations in respect of that base amount, and there is to be a corresponding reduction in the entitlement of Mr Powell (born in 1964)”
(b)That having been accorded procedural fairness in relation to the making of this order, the order binds the trustee of the O Super Fund.
(c)That the operative date is the fourth business day after the date upon which a copy of this order is served upon the trustee of the O Super Fund.
22.That subject to being satisfied as to procedural fairness the following order has effect from the operative date.
(a)that pursuant to section 90 XT of the Family Law Act the base amount of $226,999 shall be allocated to Ms Powell in respect of Mr Powell’s superannuation interests in the P Super Fund (member …39) and that pursuant to section 90 XT (1) (a) of the Family Law Act whenever a splittable payment becomes payable in respect of that interest Ms Powell is entitled to be paid the amount calculated in accordance of the Family Law (Superannuation) Regulations in respect of that base amount, and there is to be a corresponding reduction in the entitlement of Mr Powell (member …39).
(b)That having been accorded procedural fairness in relation to the making of this order, the order binds the trustee of the P Super Fund.
(c)That the operative date is the fourth business day after the date upon which a copy of this order is served upon the trustee of the P Super Fund.
23.Pursuant to section 74 of the Family Law Act, the Husband shall pay to the Wife the sum of $300 per week until such time as the Wife obtains full-time employment or three years has expired from the date of these orders or whichever is sooner”.
24.The Husband shall transfer to the Wife 521,560 Qantas Frequent Flyer points which the Wife shall use to acquire for X a 13 inch Macbook Pro with touch bar 2.OGH13 quad-core Gen- Intel Core 15 Processor, ITB or something similar if the aforementioned becomes unavailable through Qantas Frequent Flyer Points.
| Ownership | Description | Applicants value | Respondents value | |||||||
| ASSETS | ||||||||||
| 1. | L Street, Town M (Joint) | $ 630,000 | $ 630,000 | |||||||
| 2. | ANZ Account ending …55 (Husband) | $ 12,667 | $ 12,667 | |||||||
| 3. | ANZ Account ending …33 (Husband) | $ 10,703 | $ 10,703 | |||||||
| 4. | Wife’s bank accounts | $ 238.92 | $ 238.92 | |||||||
| 5. | US Savings Bond (Husband) | $ 736 | $ 736 | |||||||
| 6. | US Retirement Account with Company R (Husband) | $ 154,797 | $ 154,797 | |||||||
| 7. | US Individual Retirement Account with Company S (Husband) | $ 64,403 | $ 64,403 | |||||||
| 8. | Motor Vehicle 2 (Wife) | $ Not valued | $ Not valued | |||||||
| 9. | Motor Vehicle 1 (Husband) | $ Not valued | $ Not valued | |||||||
| 10. | Furniture and contents (Wife) | $ Not valued | $ Not valued | |||||||
| 11. | Furniture and contents (Husband) | $ Not valued | $ Not valued | |||||||
| Total | $ E 873,545 | $ E 873,545 | ||||||||
| ADDBACKS | ||||||||||
| 12. | Sale of Company T Shares(Husband) | $ 24,905 | $24,905 | |||||||
Total $ 24,905 $ 24,905
LIABILITIES 14. ANZ Mortgage (Joint) $ 9,166 $ 9,166 15. Personal Loan (Husband) $ 20,768 $ 20,768 16. ANZ Credit Card (Wife) $ 3,174 $ 3,174 17. Bank U Visa (Husband) $ 2,339 $ 2,339
| Total | $ 35,447 | $ 35,447 |
SUPERANNUATION Member
Name of Fund
Type of Interest
Applicants value
Respondents value
| 18. | O Super Fund (Husband) | Accumulation | $ 155,057 | $ 155,057 | ||
| 19. | P Super Fund (Husband) | Accumulation | $ 397,485 | $ 397,485 | ||
| 20. | O Super Fund (Wife) | Accumulation | $ 207,744.83 | $ 207,744.83 | ||
| Total | $ 760,287 | $ 760,287 | ||||
| FINANCIAL RESOURCES | ||||||
| Ownership | Description | Applicants value | Respondents value | |||
| 23. | Qantas Frequent Flyer Points | 46,407 | 46,407 | |||
| TOTAL | $l,669,696.92 | $l,669,696.92 | ||||
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 Powell & Powell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 10 February 2022.JUDGE MIDDLETON
INTRODUCTION
This decision is in relation to orders being sought with respect to parenting of a child X born in 2011, aged 10, final property orders, spousal maintenance order and a departure order.
The mother and father were married in 1995, commenced cohabitation in 1996, arrived in Australia in 1999 and separated on a final basis on 23 November 2017. A relationship that therefore lasted 22 years.
With respect to the child, it is not in contest that she last spent time with the father on 19 November 2017 and that she has been diagnosed with generalised anxiety disorder, separation anxiety disorder, specific phobias of fire, dentist, water, spiders/crawling insects and loud noises. It is also agreed between the parties and all of the experts who have had an involvement with this child that she presents as possibly autistic although, this has not been formally diagnosed. Furthermore, the parties agree that the child is incredibly bright and incredibly gifted with respect to music.
It is the father’s case that the mother and maternal grandmother have played a major part in the child no longer having a relationship with him. He believes that this child has been “alienated” from him by the interactions of both the mother and maternal grandmother.
It is the mother’s case that the child has severe anxiety and that incidents that occurred in the home between the mother and father together with the post separation history of repeated reunification attendances, have largely contributed to the child’s extreme anxiety. The mother maintains that she wants the child to have a relationship with the father but that the child’s anxiety is so severe that it is best for the child to first be given time to settle her anxieties in an effort to, at some stage, have a relationship with her father.
The trial was conducted over four days and there was very little cross-examination of the parties in relation to property orders, spousal maintenance or the departure order, furthermore their respective affidavits contained limited evidence on these topics. The parties have however agreed upon the balance sheet in relation to property orders.
The parties agree that they have made equal contributions to the property. The mother seeks an overall property adjustment that would see her retain 70% of the assets available for distribution and the father seeks an overall adjustment that the mother receive 60% of the assets available for distribution, should the child remain living with her, or that he received 60% of the assets available for distribution in the event the child lives with him.
The mother seeks a spousal maintenance order that she be paid $750 per week with no end date and a departure order that would require the father to pay an additional sum of $440 per week making a total payment of $804 per week. The father says there should be no spousal maintenance order or a departure order.
THE ISSUES
The issues for determination therefore are as follows:
(a)Whether it is in the best interests of this child to remain living with the mother with no specific order as to spending time with the father or whether it is in the best interests of this child for interim orders to be made that she live with the father and there be a moratorium in place preventing the child from spending time with the mother for 90 days.
(b)What are the just and equitable orders having regards to the future needs of the parties.
(c)Whether a spousal maintenance order should be made and if so for how much and for how long.
(d)Whether a departure order should be made.
THE MATERIAL
Both parties have set out the material upon which they rely in their case outlines. The father filed his case outline on 29 January 2021 and the mother filed her case outline on 29 April 2021 and amended the documents she relies upon by filing a second amended list of documents on 9 October 2021.
I had the benefit of affidavits from Ms V, a psychologist and clinical family therapist who engaged with the family for the purposes of family therapeutic process. I have the benefit of the report from Dr C, a clinical psychologist who has assessed and treated X since 21 March 2018 and I had the benefit of four family reports all written by Ms W.
THE ORDERS
The father acknowledged that the orders he sought in relation to the involvement of the Y Counselling Workshop were effectively orders of the last resort. To that end, the father proposed interim orders which would see the child living with him and spending no time with the mother for a period of at least 90 days or in the alternative orders that effectively recognise that the child would continue to live with her mother and continue with therapeutic assistance for her anxiety with no specific order for her to spend time with the father. The orders he sought are set out in the written submissions filed on 8 November 2021 and relate to parenting, property, spousal maintenance and departure orders.
The mother sets out the orders she seeks in relation to parenting, property, spousal maintenance and departure orders in her document filed on 10 October 2021.
Both parents seek an order for equal shared parental responsibility. Both parents seek orders for the continuing therapeutic assistance for the child. The mother seeks an order that the father be prohibited from attending the child’s school or any extracurricular activity whilst the child is present.
THE LAW
In relation to parenting orders sought by the parties the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) apply. It is the best interests of the child that is my paramount consideration (section 60CA). When determining what is in the best interests of the child, I must consider the matters set out in subsections (2) and (3) of section 60CC of the Act.
If I make an order for equal shared parental responsibility then the provisions of section 65DAA are triggered and I must consider those provisions as set out by the High Court in MRR v GR [2010] HCA 4.
In relation to property and spousal maintenance orders the provisions of Part VIII of the Act apply. In relation to the spousal maintenance order being sought, the mother must meet the threshold which is found within section 72 of the Act. If I am satisfied that the mother has met those thresholds, then my power to make a spousal maintenance order is found within section 74 of the Act.
In relation to the orders being sought by way of a departure order, Part VII, Division 4 of the Child Support (Assessment) Act 1989 (Cth) (“ the Child Support Act”) apply. In particular sections 116 and 117.
PARENTING
The evidence satisfies a finding that this child is unique and as a result of her diagnosis and behaviours, very vulnerable. The evidence also establishes that this child has an extreme dislike of her father and indeed has voiced that she wishes he would die.
A great deal of time was spent during this trial in trying to establish that the child’s views have been significantly influenced by the mother’s behaviour and/or actions. From the mother’s perspective, the father was cross-examined at length about his behaviours whilst he was in the home with the mother and child prior to separation.
Having witnessed the father under cross-examination and having considered the mother’s evidence in relation to the father, I am quite satisfied that he has a very rigid personality and that this may have contributed to the child’s anxiety. Furthermore, the father acknowledges that due to work commitments, he was absent from the home frequently and this would explain why this child is very attached to the mother for emotional support.
Having witnessed the mother under cross-examination and having considered the father’s evidence in relation to the mother, I am more than satisfied that the mother has failed to properly support this child’s emotional development in that she has failed to set appropriate boundaries and has acquiesced to the child’s wishes rather than providing parental guidelines. Having said that, it must be remembered that this child has a significant anxiety disorder and that she has had this disorder for most of her life.
I am not satisfied that the mother has maliciously attempted to interfere with the child’s relationship with her father. Her actions in totally supporting the child’s wishes have not served this child well.
The child is home-schooled through the B School and the mother is her supervisor. The child has an almost complete dependence upon the mother and finds it very hard to be separated from her. Indeed until recently, the child could not toilet on her own nor could she be absent from the mother within her own home for any length of time.
The child has been under the care of Dr C for a number of years however, the child has never been in the presence of Dr C without the mother being present.
When the child attended a state school she was extremely anxious and in those circumstances, the mother would sit in the rear of the car with the child on the way to school in order to reassure her that she would be okay. Unfortunately as it transpires the child was bullied, including acts of physical violence whilst attending that school and this not only made her anxiety greater but also made her more determined to be home-schooled.
I accept the evidence of Ms W when she says at paragraph 162 and 163 of her report dated 12 April 2018 the following:
[162] “Ms Powell views Mr Powell’s actions through a filter whereby she considers Mr Powell to be inconsistently hostile and therefore, X is unsafe in his care. X has, to some extent, aligned with the mothers view. Ms Powell is also concerned that he fails to adequately understand X’s anxiety and may therefore, prioritise his own need to influence her in regards to his strongly held religious beliefs. It also seems that through her attempts to act protectively, she inadvertently co-creates with X the reality that Mr Powell is to be feared. She is avoiding opportunities for X to have contact with her father and in so doing, inadvertently invites X to enjoin with her perceptions and feelings towards Mr Powell. Given X’s biological connection to her father, it is not in the best interest to continue to have such a negative view of Mr Powell.”
[163] “There is concern that she appears to abdicate responsibility for decision-making to X rather than assume this parental responsibility. While it is acknowledged that her behaviour is intended to be child focused, it is the consultant’s opinion that children of X’s age feel secure when they are managed, not when they are given responsibility for decision-making in regards to their needs and activities. In delegating this responsibility to this child, Ms Powell is likely to be facilitating her anxiety, rather than ameliorating it. It will therefore be essential for her to discuss this issue with the treating psychologist to ensure X relinquishes this responsibility.”
In light of those concerns Ms W continued in her report to say at [164]
“While this to me is assessed as being a devoted and loving mother who’s central life interest is the child and who wants to do all things possible to ensure her development is optimised, it will be in X’s best interests for her to be required to be involved in a systemic therapeutic process with a skilled professional to address the father/daughter issues with the view to sealing X’s relationship with the father. It is acknowledged that her behaviours in regard to X’s relationship with her father are not motivated by any malicious intent.”
I agree with Ms W. I do not believe that the mother has maliciously set out to interrupt the child’s relationship with her father. I am satisfied that she is primarily, almost solely, focused on the child and as a result has placed the child’s needs with respect to every other aspect of her life above the child’s need to have a meaningful relationship with her father. I am satisfied that this was done unintentionally.
I am also satisfied that the father is an intelligent man who is strongly aligned to his religious beliefs. I am satisfied that this is caused him to be somewhat emotionally distant and self-absorbed and that he may have prioritised his own needs and his desire to provide for the family together with his religion above the child’s needs. This has clearly impacted upon his connection with the child.
The father complains that he had an intact relationship with his daughter until shortly prior to separation. He says that the mother required him to focus on his relationship with the child and to engage in some therapeutic counselling to assist the relationship during the time the parties were together. It is quite obvious that the father and mother’s relationship began to deteriorate prior to separation and in those circumstances, it is not surprising perhaps, having regard to the child’s significant attachment to the mother, that the relationship with his daughter also started to fail.
In short, I am satisfied that the relationship the child had with her father was somewhat dependent upon the mother supporting her in that relationship. Whilst the mother says, and I accept, that she wants to support a relationship with the father now, I am satisfied that at the time the parents were having difficulty with their relationship, the mother’s focus in supporting the child’s relationship with the father may have waned. That is not to say however, that the mother deliberately interfered with the relationship. It is more the case that this child requires her mother’s support in relation to every aspect of her life.
Importantly, once the mother had the opportunity to consider the opinion of Ms W, the evidence establishes a finding that the mother has engaged with Dr C by March 2018 and that she has maintained that connection with Dr C up until and throughout the trial. That is the mother has done what was required of her.
The court has also attempted to assist this child’s relationship with her father. Orders have been made for the parties to engage in reunification therapy and to that end Ms V has provided an affidavit filed on 30 January 2021 setting out the steps undertaken to reunite X to her father.
That evidence establishes a finding that both parents have complied with court orders and have attended individual and joint therapeutic sessions with Ms V. Unfortunately, the child refused to engage with the father during attempts to reunify in early 2018.
A further attempt at reunification was ordered into 2019 and once again, despite there being six attempted reunification sessions, the child refused to engage with the father. Ms V described the child as follows:
“X is a delightful nearly 9 year old who is articulate and intelligent. She exceeds academically at B School as is evidenced in her school reports. She also presents as an extremely sensitive child who displays quirky personality traits/mannerisms, such as stimming (hand flapping), toe walking and repetitive play, playing with the same objects/toys repeatedly. As well, X presents as a unique atypical nine year old girl who displays extremely high anxiety and exceptionally low resilience and tolerance, more so than is typically seen in same age children.
Ultimately, Ms V formed the view that further attempts at reunification would cause X more emotional harm and negatively impact upon her emotional well-being. Ms V was also of the view that a change of residence and moratorium would not be in X’s best interests as removing X from her mother whilst having no contact with her for a period of time would negatively impact X’s emotional functioning and well-being. Ultimately, Ms V could not proffer or make any recommendation as to how re-establishing the child’s relationship with her father could occur.
Dr C said this in relation to the child:
“In conceptualising X’s anxiety symptoms, she was predisposed to these difficulties due to her anxious temperament, sensory sensitivities, and her strong flight/flight response. X is an extremely sensitive girl. X is caring, loving and friendly girl when she feels calm, safe and secure. X processes emotional information in a unique way. She is also aware of, and sensitive to, sensory stimuli and a range of situations. X has perceived the previous events that have occurred with her father Mr Powell to be negative and frightening. X has strong threat interpretations of the previous events that occurred prior to a parent separation. X has reported flashbacks and re-experiencing symptoms in relation to these events. X has enlisted a strong avoidance strategy previously in an attempt to cope with the heightened arousal and distress that the anxiety symptoms cause. Prior to psychological treatment, X internalised anxiety and she was not able to articulate her fears and worries. X now has the ability to provide direct and clear statements about her thoughts and emotions. I have referenced some of X’s comments to me during our sessions in this report. X has a range of advanced academic and musical skills. X has engaged very well in therapy sessions once she realised that she could trust me, and it was safe and secure environment for her to learn new coping skills.”
In relation to a possibility that X has autistic spectrum disorder Dr C says:
“There has been previous discussion with Ms Z (clinical psychologist) at AA Family Psychology and Dr D (consultant paediatrician) about whether X displays symptoms of an autistic spectrum disorder (ASD). X has certainly presented with some symptoms that are characteristic of children on the autistic spectrum in the therapy sessions. She often monologues about her chosen topics, and she stems (flicking your hands) frequently as she talks. She enjoys standing on my “Guess Who” game, where she repetitively opens and closes the characters”
Dr C asked the mother to complete a questionnaire assessing ASD symptoms and noted that the mother recorded scores above the normal range for seven out of the 24 items.
Dr C discusses the possibility of parental alienation and in that regard reported as follows:
“I have discussed with Mr Powell about his concerns that X’s anxieties will not improve as she is not having any time away from Ms Powell. Mr Powell has reported to me that Ms Powell and her mother Ms BB are alienating X from him. Ms Powell has asked me to provide my opinion on whether parental alienation is a factor in X’s continuing anxiety symptoms. Making a determination on parental alienation is outside my scope of practice. This will be a topic of discussion in the family report.”
“I can however detail my observations of X and her interactions with Ms Powell during sessions. In my opinion, X is well bonded with Ms Powell as she has seen her as the primary attachment figure throughout her development. X will often kiss or hug Ms Powell during our sessions, and she will say that she loves Ms Powell. In my professional opinion, X’s expression of love and affection for Ms Powell is very genuine, and indicates a safe and secure attachment style between X and Ms Powell. I have observed X to interact in a warm and affectionate way with the maternal grandmother Ms BB (in the waiting room). In my opinion, I do not think that X’s expressions of affection are anyway forced or scripted. My observation of Ms Powell is that she has frequently asked me questions to ensure she is handling X’s anxiety appropriately when X has been triggered by memory or event related to Mr Powell.”
Whilst it is clear that the mothers parenting style has been less than optimal for X’s development having regard to the particular characteristics of the child and the evidence of independent experts, I am not satisfied that the mother is deliberately attempting to undermine the child’s relationship with her father. I am satisfied that the mother is attempting, using the tools she has and in the circumstances she is in, to do everything within her power to allow this child to have a meaningful relationship with the father.
Whilst Dr C appropriately indicates that it is outside her scope of expertise to make a recommendation as to whether X should live with the mother or father, she does note that the child is primarily bonded to the mother and states that she would be concerned about the child’s mental health functioning if there was an immediate change in permanent residence.
Furthermore, whilst she acknowledges that the child has progressed in that her anxiety symptoms are reducing in the home and school environments, she acknowledges that there has been no reduction in her anxiety symptoms in relation to the father and ultimately concludes that the child engage in a different form of individual therapy in the future that may assist in changing her negative thoughts and perceptions more effectively than the cognitive behaviour therapy has been able to do.
Ms W, the family consultant addresses the mother’s failings in each of her reports. She also acknowledges the part that the father has played in the child’s presentation and at paragraph 122 of her second report dated 30 July 2019 says:
“It will also be important for him (the father) to be guided by both Ms Powell and ideally a child/family focus psychologist in regards to X’s feelings and perceptions if he is to respond to her emotional needs effectively. He appears to be a man who has traditional views of parenting and disciplinary methods that may be somewhat rigid and inflexible and unlikely to meet the needs of this unique little girl. It will also be important for him to understand that his style of “interventions” to deal with relationship issues are most unsuitable for young child who simply wants to be loved, feel secure and have fun.”
Having considered both parents vulnerabilities over a long period of time, Ms W nevertheless makes a recommendation that the child remains living with the mother. Ms W confirmed in her oral evidence that she did not support a transfer of the child’s residence but acknowledged that the child is not being “optimised” in the mother’s care. Ms W was of the opinion that both parents have contributed to the child’s behaviour noting that the child is vulnerable due to her unique characteristics and her extremely high levels of anxiety.
In Ms W’s final report she makes a recommendation that Dr F is likely to offer a different and more robust approach to the interactional dynamics in this matter and that in those circumstances, might be considered to be appropriate for his intervention into the family.
Ms W adds in her final report that in the event the child is not meeting with her father in her mother’s presence by mid-2021 and that there is no progress in regards to either attending a mainstream school or being enrolled in several social activity groups, then consideration must be given to her transferring temporarily to her father’s care. As I said, Ms W did not support that recommendation in her oral evidence before the court.
Quite clearly, if I am to make an order that the father seeks, I must make an assessment as to the nature of the intervention proposed.
Remarkably, notwithstanding the father seeks an order for the Y Counselling Workshop to be utilised, he acknowledged in his oral evidence that he did not know the qualifications of the “counsellors” involved in the program and that he did not know what was involved in the program.
His evidence is that the child would be taken from the mother and handed to a stranger (initially at court being a person in the day care area) then driven to an unknown location, held there without a telephone and with no known person to support her. He understood that after the four-day intervention in which he will be involved he would then be required to take a seven-day holiday alone with the child with professionals being available by telephone if needed.
The founder and chief coordinator of the Y Counselling Workshop, Mr CC, gave evidence in the father’s case. He is a counsellor and psychotherapist who acknowledged that he became interested in ‘parental alienation syndrome’ after he had been exposed to it in his own relationship with his child. He acknowledged that he had not been able to reconcile with his child.
His evidence continued that he never met the child, the mother, or had read any of the filed documents. He confirmed that there would be a structured way to remove the children from the Family Court to a location where the program would run. He continued that staff at a children’s contact service would explain the orders to the child and that thereafter “when the child was ready”, the child would be transported to a workshop location.
Mr CC acknowledge that children are often anxious, oppositional and angry and that their reactions “are as a result of what has been done to them”. He said he would be surprised if the intervention of Y Counselling was ordered if there was no finding of alienation.
Mr CC was questioned as to what happens on day one and he said that the children are shown the orders again, they are explained and that the child is assisted to understand the way in which they have formed their views. His evidence was that the other facilitators of the program had qualifications as a social worker and family law dispute resolution practitioner, counsellor and psychotherapist. He also gave evidence that on day two, the child may learn how her views can be shaped by adult influence. Ultimately, he would then provide a report to the court with recommendations as to how the child may then transition to spending time with the mother.
I must admit the manner in which Mr CC explained the Y Counselling program to me sounded very similar to a kidnapping scenario often played out in Hollywood movies. I was alarmed that a person holding themselves out to be an expert would come along to a court and ask me to make orders for a very vulnerable child that would effectively see that child handled by unknown persons at an unknown location for a period of time. I formed the view that Mr CC had no real understanding of the vulnerabilities of this child and that if I were to make orders consistent with placing the child effectively into his care the child would be most likely psychologically harmed.
It is well accepted that children will benefit from having a meaningful relationship with both of their parents provided it is safe to do so. This child has not spent any time with her father since 19 November 2017 despite many attempts at reunification and many hours of therapeutic intervention to address her individual vulnerabilities.
Indeed, it is rare that independent experts cannot make recommendations as to an appropriate therapeutic intervention that would assist a child to have a meaningful relationship with both parents but nevertheless, that is precisely what I am faced with here. At best, Ms W hopes that Dr F will have a positive therapeutic outcome for this child.
Having regard to the evidence that the child has an irrational fear of the father that is unshakeable and that as a result she is highly resistant to any suggestion she have a relationship with her father, it is difficult to accept that there may be success at this stage, however I am satisfied that it is this child’s best interests for Dr F to be involved.
Whilst it is acknowledged that the child’s development is not being optimised in her mother’s care, I am not satisfied that she is in need of protection from her mother. There are many factors at play in relation to this child but what is clear is that the child feels supported, nurtured and loved in the mother’s care.
It is also the case that the evidence surrounding the father’s behaviour in the family home does not support a finding that the child is in need of protection from him. I am not satisfied on the evidence that the father would expose the child to family violence, abuse or neglect. I am satisfied that the father dearly wants a meaningful relationship with his daughter but that he has been unable to reflect on his own behaviours that have impacted upon the child’s current presentation.
The child has expressed a view repeatedly that she does not want to have a relationship with her father. Indeed she has stated that she wishes he were dead. Having regard to all of the evidence relating to the father’s behaviour in and around the child, I am satisfied that the child has an irrational fear of the father. That is the nature of anxiety and despite many attempts at therapeutic counselling, individual counselling and interventions, this child maintains that irrational fear and in those circumstances her views must be acknowledged.
The evidence clearly establishes that both parents have actively engaged in taking every opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child. The evidence establishes that the mother and father, despite their difficult relationship, have made decisions jointly for the benefit of the child. Obviously the father’s attempts to communicate with and spend time with the child have failed due to the child’s extreme anxiety.
The evidence supports a finding that both parents have fulfilled their obligations to maintain the child.
Whilst I accept that the child’s development is not being optimised whilst living with the mother I’m also satisfied that the mother is willing to engage in therapeutic intervention for the benefit of the child. Obviously until such time as the child responds positively to individual counselling around her relationship with her father, if she remains living with her mother she will not have a meaningful relationship with him. She is however, otherwise fully supported in her academic and extracurricular activities and is thriving. She has also made gains in relation to her separation anxiety in those fields.
If I were to make orders consistent with the father’s proposal I am concerned about the initial traumatic effect of those orders upon the child in the circumstances as outlined above. I’m also concerned that the child would struggle enormously in being absent from her primary attachment for any length of time and that this may lead to an increase in her anxiety disorder. This view is supported by the oral evidence of Dr C.
Furthermore, Ms V in her first report stated that the negative impact of a change of residence would far outweigh potential gain such a change would make and her second report opined that a change of residence would cause the child more emotional harm and negatively impact upon her emotional well-being. In her oral evidence, she agreed that a change of residence would be “catastrophic” for the child. She concluded her evidence on this topic by stating that the child would not tolerate a move to her father and that it would not be in her best interests either in the short or long-term and that her anxieties would likely escalate to a point that she would probably not be able to regulate or cope and the trauma caused would likely cause long-term mental health issues for the child.
There is no practical difficulty or any real expense that would substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis and to that end, this consideration does not impact largely on my decision.
As I’ve stated both parents have vulnerabilities around their capacity to provide for the needs of the child including the emotional and intellectual needs. Having said that, it is quite clear that the mother has abundant capacity to provide for the intellectual needs of the child and that she is focused on meeting those needs.
There is nothing about the maturity, sex, lifestyle and background of either parent or the child which will impact upon this decision and the child is not aboriginal or Torres Strait Islander.
I am satisfied on all of the evidence that both parents have demonstrated an excellent attitude to the child and to their responsibilities as a parent subject to their own independent vulnerabilities as previously outlined.
There is no family violence order in place and as I stated, the evidence does not support a finding that the child will be exposed to family violence in the future.
It is preferable to make orders that would least likely lead to the institution of further proceedings and the orders the father seeks in relation to the parenting aspect of this case obviously would require further proceedings. These proceedings were commenced in January 2018 and at the date of writing this decision some four years has passed. It is well accepted that ongoing litigation can have harmful effects upon children and is therefore not in their best interests. I am satisfied that a final determination is necessary.
It is relevant to the parenting application to note that the father is in full-time employment earning approximately $178,000 per annum and that the mother does not earn income. It is also relevant to acknowledge that this child has significant vulnerabilities that require intensive supervision by the mother at this stage and that a return to work for her, although she is well qualified, is not likely in the foreseeable future.
In those circumstances, the mother seeks orders that the child continue attending upon her various doctors and psychologists and the father pay those costs. I am satisfied that he should do so.
The evidence also establishes that the father is a dedicated and devoted religious man and that he wishes for X to undertake religious education. The evidence also establishes that X has a resistance to religious education at this stage, perhaps impacted upon by the mother but I can’t make that finding, and in those circumstances, the mother seeks an order that the child not be enrolled in religious education classes unless agreed in writing between the mother and father.
I am satisfied that such an order would be in the child best interests as it will avoid further conflict.
The mother seeks an order that the child be placed on airport watch list however, I’m not satisfied on the evidence that there is any risk that this child will be removed from the Commonwealth of Australia by the father or anybody else and in those circumstances. The evidence does not support the making of such an order.
The mother also seeks an order that the father be restrained from placing pictures of X or the mother on social media or writing anything about the child and the mother on social media. I cannot find any evidence to support the making of such an order and in those circumstances will not do so.
The mother also seeks an order that the recommendations of Dr D and Dr E be followed. I’m satisfied that that order would prevent any further conflict around medical decisions for this child and in those circumstances is in the best interests of the child.
The mother seeks an order preventing the father from attending the child’s school, music sessions or performances whilst the child is in attendance unless it is agreed in writing between the mother and father. There is abundant evidence to satisfy a finding that the child is extremely anxious around the father and in those circumstances the order sought is supported by the evidence and I will make that order.
Both parents seek an order for equal shared parental responsibility, noting that the mother seeks an order for sole responsibility for the child’s music tuition and any music performances. There is nothing within the evidence that would satisfy me that the father would interfere with any decisions relating to the child’s music tuition and/or music performances. It is clear that this child has thrived and that whilst the father has not supported some of the decisions made by the mother, he has certainly not interfered with the child’s tuition and progress. In those circumstances, I am not satisfied that an order be made for the mother to have sole responsibility for decisions relating to music.
There is ample evidence to support a finding that the parents have been able to make decisions jointly relating to major long-term issues for the child. Indeed the evidence supports a finding that both parents want to have the other parent equally involved in making those decisions and in those circumstances, an order for equal shared parental responsibility is in the best interests of the child.
It is also the case that the evidence supports a finding that the presumption contained within section 61DA(1) should apply.
In circumstances where I intend to make an order for equal shared parental responsibility then the provisions of section 65DAA apply. I must consider whether it is in the child’s best interests and is reasonably practicable for the child to spend equal time with both of her parents.
For the reasons that I have previously outlined, an equal time order is clearly not in the best interests of this child. I must also consider whether it is reasonably practicable for the child to spend equal time with both parents. I have already set out my concerns in relation to the impact upon the child in the event that she were to spend time with her father. There is nothing contained within the evidence that would alter those concerns if the child were to spend equal time with both parents. The simple fact is this child has an irrational fear and dislike of the father that has not been able to be shaken despite significant therapeutic intervention.
In circumstances where an equal time order is not in the child’s best interests, I must then consider whether it is in the child’s best interests for her to spend substantial and significant time with her father. For the reasons previously outlined such an order is not in the child’s best interests nor is it reasonably practicable.
In those circumstances I intend to make orders consistent with the mothers outline of proposed orders save for those orders that I have outlined I will not make.
PROPERTY
The parties have agreed as to the nature and value of the assets available in order to make property orders pursuant to section 79 as follows:
| Ownership | Description | Applicants value | Respondents value | |
| ASSETS | ||||
| 1. | L Street, Town M (Joint) | $ 630,000 | $ 630,000 | |
| 2. | ANZ Account ending …55 (Husband) | $ 12,667 | $ 12,667 | |
| 3. | ANZ Account ending …33 (Husband) | $ 10,703 | $ 10,703 | |
| 4. | Wife’s bank accounts | $ 238.92 | $ 238.92 | |
| 5. | US Savings Bond (Husband) | $ 736 | $ 736 | |
| 6. | US Individual Retirement Account with Company R (Husband) | $ 154,797 | $ 154,797 | |
| 7. | US Individual Retirement Account with Company S (Husband) | $ 64,403 | $ 64,403 | |
| 8. | Motor Vehicle 2 (Wife) | $ Not valued | $ Not valued | |
| 9. | Motor Vehicle 1 (Husband) | $ Not valued | $ Not valued | |
| 10. | Furniture and contents (Wife) | $ Not valued | $ Not valued | |
| 11. | Furniture and contents (Husband) | $ Not valued | $ Not valued | |
| Total | $ E 873,545 | $ E 873,545 |
| ADDBACKS | ||||
| 12. | Sale of Company T Shares (Husband) | $ 24,905 | $24,905 | |
Total $ 24,905 $ 24,905
LIABILITIES 14. ANZ Mortgage (Joint) $ 9,166 $ 9,166 15. Personal Loan (Husband) $ 20,768 $ 20,768 16. ANZ Credit Card (Wife) $ 3,174 $ 3,174 17. Bank U Visa (Husband) $ 2,339 $ 2,339
| Total | $ 35,447 | $ 35,447 |
SUPERANNUATION Member
Name of Fund
Type of Interest
Applicants value
Respondents value
| 18. | O Super Fund (Husband) | Accumulation | $ 155,057 | $ 155,057 |
| 19. | P Super Fund (Husband) | Accumulation | $ 397,485 | $ 397,485 |
| 20. | O Super Fund (Wife) | Accumulation | $ 207,744.83 | $ 207,744.83 |
| Total | $ 760,287 | $ 760,287 | ||
| FINANCIAL RESOURCES | |||||
| Ownership | Description | Applicants value | Respondents value | ||
| 23. | Qantas Frequent Flyer Points | 46,407 | 46,407 | ||
| Total | $l,669,696.92 | $l,669,696.92 |
As a result of the decision in Stanford v Stanford [2012] HCA 52 I am satisfied that the correct approach to adopt when considering making property orders is as follows:
(a)consider whether is just and equitable to make property orders at all;
(b)identify the legal and equitable interest of the parties in the property;
(c)consider the contributions of the parties within paragraphs (a) to (c) of section 79(4);
(d)consider the section 75(2) factors; and
(e)consider whether the order proposed is just and equitable (AJO & GRO) (2005) FLC 93-218 and Hickey & Hickey (2003) FLC 93-143).
The High Court pointed out that the first consideration is often satisfied by observing at [42]
“In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying section 79(4).”
In this case, the just and equitable requirement is satisfied in circumstances where the parties have jointly held property, have a joint liability over the property and the parties no longer enjoy the mutual use of that property.
As I stated previously, the parties agree as to the nature and value of the property available for distribution as set out in the above balance sheet.
Both parties also agree that taking into account all of the circumstances of their relationship including the length of the relationship, they have equally contributed to the property.
In his oral evidence the husband agreed to transfer the frequent-flyer points to the wife.
An analysis of the property with regards to the legal entitlement to the property reveals that the husband has property in his sole name, totalling $820753. The wife has property in her name, including the transfer of the frequent-flyer points totalling $254,390.77.
It is not in dispute that the parties will be responsible for their individual liabilities as set out in the balance sheet. In those circumstances, the husband has property with a net value of $797,646 and the wife has property with a net value of $251,216.77.
The parties have agreed that the value of the former matrimonial home is $630,000. However, it is in my view reasonable to acknowledge that the real estate market in Queensland, where this property is situated, is very active and prices have increased considerably in the past few months.
The wife seeks an order that the property be transferred to her and the husband seeks an order that the property be sold. I must make orders that are just and equitable and in circumstances where the wife acknowledges that the former matrimonial home must be sold because the child cannot live in it, I am satisfied that it is appropriate to make an order for the sale of the property rather than the transfer of the property into the wife’s name for her subsequent sale of the property. In doing so, the true market value of the property will be ascertained and both parties can benefit from this.
As a result of the orders that I’ve made in relation to the parenting aspect of these parties circumstances, it is a fact that the child will continue to remain living with the mother and for the foreseeable future spending no time with the father. Furthermore, this child has unique characteristics and significant anxieties that require the mother to be present almost all of the time. The child is currently 10 years of age and of course I must protect a party who wishes to continue that party’s role as a parent.
There is a significant income earning disparity and although I acknowledge that the wife is very qualified as an educator, I also must take into account the reality that it is intended for this child to be home-schooled for the foreseeable future and maybe until she attends university.
The husband is 57 years of age and the wife 50 years of age and both are in good health. Neither parent has re-partnered and neither has the responsibility to care for or support any other person. It is noted that the husband currently pays $364 per week by way of child support.
Having assessed that the contributions to the property were equal, I further assess that it is necessary, just and equitable to adjust the parties’ interests in favour of the wife to a further 12%.
This will see the wife retaining 62% of the net value of the property with the husband retaining 38%. As I said previously, I am satisfied that it is appropriate for the former matrimonial home to be sold as soon as practicable and for the costs of sale and statutory charges to be paid together with the outstanding mortgage on settlement.
The wife seeks an order that the husband pay her a cash amount in the sum of $34,880. No evidence was provided as to why that payment is necessary or whether it would be just and equitable. In those circumstances I will not make such an order.
The wife seeks an order pursuant to section 90XT that she be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations in respect of the base amount of $43,833 from the husband’s O Super Fund and that she be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations using a base amount of $300,000 from the husband’s P Super Fund.
If I were to make those orders, this would result in the wife receiving approximately 56% of the total retirement benefits available to the parties. In my view such an order is not just and equitable.
I accept the evidence of the wife that she has contributed significantly to the husband’s income earning throughout the relationship by effectively funding him whilst he studied to achieve his current qualifications. In those circumstances, I am satisfied that an equalisation of the retirement funds is an appropriate and just and equitable order.
In those circumstances, I have made an order that the wife be entitled to a payment using a base amount of $55,000 from the husband’s O Super Fund and a payment using a base amount of $226,999 from the husband’s P Super Fund.
Thereafter, the balance of the proceeds of the sale of the former matrimonial home should be paid to the Applicant and Respondent so as to achieve an overall adjustment in the percentage terms I have set out noting that the wife currently has net property totalling $251,216.77, taking into account her liability of $3174 and the husband has net property totalling $797,646 taking into account his liabilities of $20,768 and $2339 together with the superannuation entitlements, both parties have as a result of the orders I have made.
In all of the circumstances I am satisfied that such an order is just and equitable for the reasons I have set out.
SPOUSAL MAINTENANCE
The primary purpose of spousal maintenance is to adjust for any disparity between the incomes or incapacities of parties based upon their respective needs. It is also important to note that it is ordered usually for a relatively short period after separation approximately 2 to 3 years. Under section 74 of the Act, I am able to make such order as I consider proper for the provision of maintenance in accordance with that part.
The husband submits that the wife has not made out her claim for spousal maintenance because, inter-alia, the mother has not been able to provide adequate evidence to establish what her reasonable needs are. In written submissions, counsel for the father submits that the wife’s evidence in relation to her needs is uncertain as a result of the difference in her evidence as between her financial statement and the oral evidence of herself and her mother.
The test of ability for self-support is not whether one is in need but whether the applicant is in a position to finance themselves from their own resources. That is, can the applicant by reason of her earning capacity, capital or other sources of income look after herself as per Eliades & Eliades (1981) FLC 91-022.
I accept that the mother has an earning capacity which would provide her with sufficient income to meet her needs. However, the mother is not currently working and she will have the full-time care of a highly dependent child. Furthermore, I must protect her desire to continue her role as that primary parent (section 75(2)(l)).
The financial statement of the mother reveals that she is in receipt of child support and family tax benefits A and B. Section 75(3) provides that in exercising my jurisdiction under section 74, I must disregard any entitlement the mother has to an income tested pension, allowance or benefit. In those circumstances, the mother has no income for the purpose of assessing her capacity to support herself.
As a result of the property orders I have made the mother will receive cash from the sale of the home. She is currently residing with her mother and at some stage will need to find her own suitable accommodation. It is reasonable in those circumstances that the proceeds of sale she receives be utilised to acquire suitable accommodation should she choose to do so.
I am satisfied that the mother is unable to support herself adequately because she has the care and control of a child of the marriage who has not yet attained the age of 18 years and that child is a vulnerable child with particular characteristics that requires the mother to be supervising the child the vast majority of the time.
Of course the mother can only receive spousal maintenance if the father is reasonably able to provide spousal maintenance. The father has filed a financial statement that sets out that he has an average total weekly income of approximately $3354. The financial statement also sets out his total personal expenditure as approximately $4287.
An analysis of the evidence contained within the financial statement reveals that the husband includes approximately $1855 by way of other necessary commitments. Those commitments include legal fees, the cost of family reports, the costs of commuting to and from Brisbane, and charitable donations. The vast majority of the approximate $1855 is made up of legal fees relating to this matter of approximately $1654.
I am not satisfied that it is reasonable to include those legal fees on an ongoing weekly basis as they simply will not exist at the conclusion of this matter. I am also not satisfied that it is appropriate to include the costs of family reports and charitable donations as an ongoing weekly commitment.
The father also includes in his personal expenditure the mortgage repayments of $55 per week and the rates units and levies payments of $89 per week. As a result of the orders I have made, those two expenditures will no longer be necessary on an ongoing basis.
In those circumstances I find that the amount of $1918 should be deducted from the husband’s total personal expenditure that he has outlined as approximately $4287 with the result being that he will have expenditure totalling $2369. The net result of those findings would see that the father has a surplus of approximately $985 per week. In those circumstances I am satisfied that the father is reasonably able to make spousal maintenance payment to the wife.
The wife seeks an order for those payments to continue indefinitely. However, through the written submissions of her Counsel it is submitted that he (the father) would be “alert to the provisions of section 83 of the Family Law Act that allows for the modification of spousal maintenance orders and for the several basis where that it is reasonable.” I am not attracted to that submission as section 81 of the Act requires me to make such orders as will finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them.
The wife seeks an order for the payment of $750 per week. In circumstances where I have assessed that the husband’s surplus is approximately $985 I do not think that such an order would be proper as it would be excessive in the circumstances Robinson & Willis (1982) FLC 91-215.
The process for assessing a spousal maintenance claim is Bevan & Bevan (1995) FLC 92-600:
(a)a threshold finding under section 72 (1);
(b)consideration of section 74;
(c)the no festering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit, and
(d)the discretion exercised in accordance with section 74.
It is accepted that the evidence supports a finding that the parties enjoyed a reasonable standard of living throughout their relationship. It is not in dispute that the wife currently resides with her mother and that her mother assists her quite significantly financially. This situation is not something that is reasonable and is yet another reason why the wife has successfully made out her claim for spousal maintenance.
Having regard to the state of the wife’s evidence in relation to her reasonable needs and doing the best I can to assess those needs, with reference mainly to her financial statement, I am satisfied that it is a proper exercise of my discretion to order that the husband pay the amount of $300 per week to the wife by way of spousal maintenance. I am also satisfied that the payment of spousal maintenance should cease either upon the wife taking up full-time employment or the expiration of three years from the date of this order.
DEPARTURE ORDER
The wife seeks a departure order and the husband opposes the making of an order. The wife’s own evidence suggests that the application for departure order has not been served on the child support agency. It is the mothers evidence that she has written to a general address for the child support agency informing them that she has been unable to serve a copy of the orders sought by way of facsimile and furthermore, that she sought a response from the child support agency to acknowledge her correspondence. The wife has not provided any evidence that the agency has acknowledged her correspondence or indeed that they have been served effectively with a copy of the orders being sought.
The other difficulty that I see in the wife’s application for a departure order is she has not made out any special circumstances relevant to her application. The fact that this child requires ongoing therapeutic counselling is not of itself a special circumstances sufficient in my view to attract the provisions applicable to a departure order particularly where I have ordered that the father continue to be responsible for the costs associated with that counselling.
Counsel for the father submits that the orders sought by way of a departure order are “so vague as to be unable to be determined “and that certain orders being sought (10 (c) and (d)) could not be properly made and to do so would be to vary tax deductions that the father would otherwise be eligible to make.
I am attracted by the submissions of the father’s Council and am satisfied that it is not appropriate to exercise my power pursuant to section 116 and 117 of the Child Support Assessment Act.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Middleton. Associate:
Dated: 28 January 2022
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