RADA & GORNALL
[2017] FamCA 381
•1 June 2017
FAMILY COURT OF AUSTRALIA
| RADA & GORNALL | [2017] FamCA 381 |
| FAMILY LAW – CHILDREN – Best interests – Parental responsibility – Spend time with – Supervision – Where there is one child who is three years of age – Where the mother makes allegations of family violence – Where the Court finds that the father has perpetrated family violence – Where the parents have no effective communication – Where it is appropriate for the mother to have sole parental responsibility – Where the mother and the Independent Children’s Lawyer seek that the child’s time with the father be supervised – Where the father’s time with the child must be supervised – Order made for the mother to have sole parental responsibility – Order made for the child to spend supervised time with the father. FAMILY LAW – PROPERTY – Settlement in relation to de facto relationship pursuant to s 90SM of the Family Law Act 1975 (Cth) – Where there is no controversy that the jurisdictional requirements pursuant to ss 90SB and 90SK of the Act are satisfied – Where it is common ground that the father’s contributions exceeded those made by the mother but disputed as to the extent – Where it is found that the contributions were made in the proportions 25 per cent by the mother and 75 per cent by the father – Where the parties agree that there should be an adjustment made in favour of the mother – Where the appropriate adjustment is 15 per cent – Where orders are made to reflect an overall division of property in the proportions 60 per cent to the father and 40 per cent to the mother. |
| Family Law Act 1975 (Cth) |
| Cerini & Cerini [1998] FamCA 143 Gorman & Huffman and Anor (2016) FamCAFC 174 H v K[2001] FamCA 687 In the Marriage of Lenehan (1987) FLC 91-814 In the Marriage of Norbis (1986) FLC 91-712 In the Marriage of Zyk (1995) FLC 92-644 Leighton & Carey [2010] FamCAFC 94 Moose & Moose (2008) FLC 93-375 Slater v Light (2013) 48 FamLR 573) Stanford v Stanford (2012) 247 CLR 108 |
| APPLICANT: | Mr Rada |
| RESPONDENT: | Ms Gornall |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
| FILE NUMBER: | DUC | 211 | of | 2014 |
| DATE DELIVERED: | 1 June 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Loughnan J |
| HEARING DATES: | 18 - 21 April 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Neville |
| SOLICITOR FOR THE APPLICANT: | Kelly Hardie Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Mooney |
| SOLICITOR FOR THE RESPONDENT: | Jennifer Blundell and Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Hafey |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
Orders
Parenting
The mother shall have sole parental responsibility for the child B (“the child”) born … 2013.
Notwithstanding Order 1, the mother shall:
(a)Do all such things as are necessary to enable the father, Mr Rada, born on … 1972, to liaise with the child’s treating medical practitioners from time to time;
(b)Do all such things as are necessary to enable the father to liaise with the child’s childcare, pre-school and school from time to time;
(c)Provide the father with a quarterly update in relation to the child’s welfare, development, health, education and extra-curricular activities and notify of any changes in the child’s residential address, such update to be sent via email to an email address set up by the father solely to receive such updates:
(i)For the purpose of this Order, the father shall set up the email address within seven days of the date of these Orders and provide that email address to his solicitor, to be forwarded to the mother’s solicitor and provided to the mother.
(ii)The father is restrained from responding to the mother in any way upon receipt of the quarterly updates
Notwithstanding Order 1, the father shall be entitled to:-
(a)Liaise directly with the child’s treating medical practitioners;
(b)Liaise directly with the child’s childcare, pre-school and school;
(c)Attend parent/teacher interviews at the convenience of the child’s teacher, provided that this does not take place at the same time as any interview with the mother;
(d)Obtain directly copies of school reports, newsletters and school photograph order forms.
The child will live with the mother.
Unless otherwise agreed between the mother and father in writing, the child shall spend time with his father:
(a)From the date of these Orders until the end of 2017 under the supervision of D Group at the C Town Library (or such other agreed location) for a period of no less than three hours on two occasions each month, noting that the time may occur on consecutive days each month:
(i)During this time, the father may be accompanied by his mother but shall not permit the paternal grandmother to express her religious beliefs or engage in any religious practices;
(ii)The father shall be responsible for the costs of this supervised time.
(b)From January 2018 until the end of Term 2 2018 under the supervision of either D Group, E Group or F Group (as nominated by the father) for a period of no less than four hours on two occasions each month, noting that the times may occur on consecutive days each month:
(i)The father shall be entitled to spend time with the child at a venue which is appropriate for the child’s age, no further than one and a half hours drive from the mother’s home and acceptable to the person undertaking the supervision;
(ii)During this time, the father may be accompanied by his mother but shall not permit the paternal grandmother to express her religious beliefs or engage in any religious practices;
(iii)The mother and father shall be equally responsible for the costs of this supervised time with the father paying for the first and each alternate occasion thereafter and the mother paying for the second and each alternate occasion thereafter.
(c)From the commencement of Term 3, 2018 under the supervision of either D Group, E Group or F Group (as nominated by the father) for a period of no less than six hours on one occasion each month:
(i)The father shall be entitled to spend time with the child at a venue which is appropriate for the child’s age, no further than one and a half hours drive from the mother’s home and acceptable to the person undertaking the supervision;
(ii)During this time, the father may be accompanied by his mother but shall not permit the paternal grandmother to express her religious beliefs or engage in any religious practices; and
(iii)The mother and father shall be equally responsible for the costs of this supervised time with the father paying for the first and each alternate occasion thereafter and the mother paying for the second and each alternate occasion thereafter.
Within 28 days of the date of these Orders, the mother shall obtain an appointment with the child’s General Practitioner and request a referral to enable an assessment to be made by a team consisting of a paediatrician and a clinical psychologist in relation to whether the child has an autism spectrum disorder:
(a)The mother shall be entitled to provide the assessment team with a copy of Ms G’s report of 13 February 2017.
(b)The mother shall provide the assessment team with the father’s contact details and copies of contact reports for the six occasions which occurred prior to the first appointment with the assessment team.
(c)The mother shall comply with all requests for information and/or appointments as made by the assessment team.
(d)The father shall comply with all requests for information and/or appointments as made by the assessment team.
(e)The father shall be responsible for payment of any costs of the assessment which are incurred and not reimbursed to the mother either through Medicare or a private health fund.
Each of the parents is restrained from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
Unless the parties otherwise agree in writing, the father is restrained from:
(a)Contacting or communicating with the mother other than as provided by these Orders;
(b)Attending within five kilometres of the mother’s address, as notified by the mother from time to time;
(c)Attending at the child’s school other than at the express invitation of the staff of the school, provided that the father requests that the staff of the school notify the mother of the father’s proposed attendance.
By consent each party shall permanently destroy any and all images, video, audio and any other audio-visual recording of any type whatsoever, stored in or on any media whatsoever depicting any party in a state of undress or performing any act or conduct of a sexual nature, shall not retain copies of any such recording, and shall not disseminate any such recording to any other person for any purpose whatsoever.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth) (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Property Settlement
Within 42 days of the date of these Orders, or such longer period on which the parties may agree in writing, (the time for payment) the father shall pay to the solicitor for the mother the sum of $99,955.
In the event that the father neglects or fails to make the payment required by Order 1 herein, he shall forthwith sign all documents and do all things to place the property at H Street, I Town in the State of New South Wales on the market for sale by public auction and shall disburse the proceeds of sale as follows:
(a)To pay the costs of sale, including advertising costs, auctioneers’ and agents’ fees, and the legal costs incurred on the sale;
(b)To any adjustments on sale for rates or utilities;
(c)To the solicitor for the mother $99,955 together with interest at the rate calculated in accordance with the Family Law Rules 2004 on that sum from the time for payment;
(d)To discharge any mortgage secured on the property; and
(e)As to the balance, to the father.
Otherwise, each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these orders, including any realty, cash, superannuation interests, insurance policies, jewellery, furniture, furnishings, shares and motor vehicles.
For the purposes of Order 13, moneys standing to the credit of the parties in any bank accounts are the property of the party in whose name such bank account is held and the party in whose name any policy of superannuation or insurance is held is declared to be the owner and the beneficiary of such policy to the exclusion of the other.
Each party is solely liable for and shall indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
Forthwith upon the payment by the father to the mother in accordance with Order 11 or 12 as the case may be, the mother shall do all things and sign all documents necessary to remove the caveat from the property at H Street, I Town and shall meet all associated costs of doing so.
In the event that either party fails or neglects to sign any document necessary to give effect to the property settlement orders within seven days of being requested to do so in writing, any registrar of this Court at Parramatta is authorised pursuant to s 106A of the Act to sign that document in lieu of that party.
Leave is granted to the parties to apply to restore the proceedings to the list within 21 days of the date of these Orders in relation to the wording, rather than the import of the orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rada & Gornall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: DUC 211 of 2014
| Mr Rada |
Applicant
And
| Ms Gornall |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting and property settlement proceedings between Mr Rada (“the father”) and Ms Gornall (“the mother”). They have one child, B (“the child”), who is three years of age.
The parties agree that the child should live mainly with the mother and that he should spend time with the father. The parenting dispute includes whether parental responsibility should be exercised by the mother alone or be shared between the parents, the amount of time to be spent between the father and the child and whether that time should be supervised.
In the property proceedings it is agreed that orders should be made under s 90SM of the Family Law Act 1975 (Cth) (“the Act”) and that the property division will favour the father overall. The disputed issues in relation to property settlement are only about the extent by which the father’s contributions exceeded those of the mother, the extent of the adjustment to be made to the mother because of the non-contribution factors in s 90SM(4) of the Act and the structure of the orders for the overall settlement.
Applications
The father sought orders contained in his Amended Initiating Application filed 8 December 2016:
1.That all previous Orders be discharged.
2.That the Mother and the Father are to have equal shared parental responsibility for the child [B] born … 2013 (“the child”).
3.The father has responsibility for decisions as to the child’s day to day care, welfare and development during periods when he is spending time with him and the Mother has that responsibility at all other times.
4.The child lives with the Mother.
5.The child spends unsupervised time with the Father as follows:-
PREVIOUS TO THE CHILD COMMENCING SCHOOL
5.1From the making of Orders for a period of twelve (12) weeks, every alternate weekend from 9.00 am to 4.00 pm on Saturday and from 9.00 am to 4.00 pm Sunday (with the time to occur within the central coast area).
5.2On the expiration of Order 5.1 every third weekend from 9.00 am Saturday to 4.00 pm Sunday, extended if falling on a long weekend, with the Father to travel to the child and spend time with him in the Sydney and/or central coast area.
5.3On Christmas Day from 9.00 am to 2.00 pm commencing in 2017 and every odd numbered year thereafter and from Christmas Day from 2.00 pm to 5.00 pm commencing in 2018 and even numbered year thereafter.
WHEN THE CHILD COMMENCES SCHOOL
5.4On the second, fifth and seventh weekend of each school term from 5.00 pm Friday to 5.00 pm Sunday (extended to 5.00 pm Monday if falling on a long weekend and excluding Mother’s Day weekend).
5.5For one half of each New South Wales school holiday period, being the first half in odd numbered years and each alternate year thereafter, and the second half in even numbered years and each alternate year thereafter (the holiday period commences on the day immediately following the last day of school at 9.00 am and concludes at 4.00 pm on the last day of the school holiday period, the midpoint is the nearest Saturday to the midpoint).
5.6On Father’s Day weekend from 9.00 am Saturday to 5.00 pm Sunday.
5.7At such other times as agreed between the parties.
6.When the Father spends time with the child in the central coast area the parties or their agents will meet at a mutually agreed venue within five (5) kilometres of the Mother’s residence.
7.In relation to the operation of Order 5.5 and for the purposes of the Father spending time with the child, the parties or their agents will changeover in the township of [J Town] (in front of the RSL).
8.That the parties have the following telephone communication / SKYPE (if the parties have the facilities) with the child when he is not in their care:-
8.1Frequent and flexible at times determined by the child or the parties (with both parties at liberty to contact the child at reasonable times) or failing agreement between 6.00 pm and 6.30 pm Monday, Wednesday and Saturday.
8.2In relation to the operation of Order 7.1 the child is to be given privacy by the parent of whom they are in the care of at the time of the telephone call/SKYPE connection, meaning he is not placed on speaker phone and are encouraged to take the phone call/SKYPE connection in a quiet private place.
9.That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
10.That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile number if applicable) and advise the other party of any changes to these details within seven (7) days of such change occurring.
11.That during any period referred to in these Orders, in the event of the child is hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parents as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
12.That within fourteen (14) days of the date of these Orders and within fourteen (14) days of the child’s subsequent enrolment at any school, the Mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the Father copies of all of each of the child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.
13.That within fourteen (14) days of the date of these Orders the Mother ensure the school is provided with the Father’s contact details and that he is reflected on the school records as the child’s Father and emergency contact.
14.If issues arise in relation to the operation of the said Orders (including relocation matters) the parties agree to mediate with each other before making application to the Court through a qualified and appropriately authorised medical (sic) service.
15.The parties are at liberty to attend all activities of which the child is involved this includes both school and extra-curricular activities, with the Mother to notify the Father of all activities the child is involved in/registered to play etc and provide all details relating to the date and times of events as soon as they are known to her.
16.The parties are to communicate directly through text or by email in relation to child related matters only and are to conduct these communications at all time[s] in a respectful and appropriate manner.
17.The Mother is to engage with a Psychiatrist and follow strictly the prescribed therapy and medication regime and address specifically her concerns about the Father spending unsupervised time with the child.
As to property settlement, the father’s formal position was somewhat confused. Part of the Case Outline filed in his case under a heading “Orders Sought by Applicant Father” is the following:
The Applicant seeks a 30/70 split in his favour as follows:
1.That:
a)Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any reality (sic), cash, jewellery, furniture, furnishings, shares and motor vehicles.
b)Moneys standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held.
c)Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.
d)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 this Order.
2.That all pending Applications be dismissed.
3.That the Respondent (sic) things necessary to remove the caveat from the property [H Street, I Town] and meet all associated costs within seven (7) days of the making of Orders.
4.Costs.
As I read those orders, rather than “a 30/70 split”, a fairer characterisation would be that the father proposes that there be no change in property interests.
In final submissions some of that mystery was cleared up. I was told by the father’s counsel that he does seek an order for settlement of property and that in addition to the orders contained in the Case Outline he seeks an order that he be required to pay to the mother the amount of $14,500 within 42 days.
The mother sought orders in terms of an Amended Response to Initiating Application filed 4 November 2016 as follows:
1.That the mother have sole parental responsibility for the child [B] born … 2013;
2.That the child live with the mother
3.That the father be restrained from attending any residence or place such as preschool and school that the child may attend.
4.That the child spend supervised time with the father each alternate weekend, supervised by [D Group] for no less than 2 hours on each occasions and the costs to be shared as between the parents.
5.That the Paternal Grandmother have no contact with or communication with the child.
6.That the Father is permitted to send the child cards and gifts for the child’s Birthday and Christmas each year to the Mother’s postal address and the Mother in her absolute discretion will ensure the child receives the cards and gifts.
7.The mother shall not less often that twice a year, arrange to forward to the address provided by the father a current photograph of the child and the child’s most recent school report.
Property
1.That the husband pay to the wife a cash payment so as to achieve an overall property distribution of 40% in her favour.
2.In the presence of the wife’s father, the wife be permitted to remove from the family home the following:-
a)Professional library books/magazines/teaching programs/teaching software
b) Antique dresser and sideboard in the bedroom
c)Antique sideboard in the entry of the inside of the home
d)Art materials such as paints, dremel drillset, inks, paintbrushes, files and papers
e)Kind furniture grey modular lounge suits comprises of two, two seats and a single seat.
f)Clothes and shoes belonging to the Respondent Wife
g)The mother’s grandmother’s hand quilted and embroidered baby blanket with ducks.
h)The mother’s grandmother’s handmade lampshade on white lampstand.
i)The maternal grandmother’s hand quilted and embroidered baby blanket with rabbits.
j)The maternal grandmother’s handmade Red, grey and cream coloured lounge cushions.
k)…white bird painting on blue background small framed.
l)Grey decorative butterfly sequined cushion
m)Purple mohair throw rug
n)White QSB cover
o)The mother’s grandmother’s purple and aurbergine coloured framed hand embroidery (at the home in [I Town])
p)The maternal grandmother’s handmade patchworked and buttoned crazy doll
q)The maternal [uncle’s] framed panoramic photograph featuring lightning at night over Redhead shark tower
r)The mother’s 40th birthday present: Metal garden seat (at the home in I Town)
s)Stereo system still packed in its box in the home office (at the home in [I Town])
t)Aqua/turquoise coloured lounge cushions
u)The mother’s artworks
v)The mother’s HSC artwork: Bird in rainforest Large gouache framed painting
w)Texture series: 4 large hand developed b/w photographs framed
x)Pear and bowl series unframed in large folder
y)Green ceramic Dinosaur
z)Black and white ceramic decorative urn
aa)Personal and family photographs including but not limited to photographs of the mother when she was a child.
The mother was asked about the paternal grandmother spending time with the child. I asked her whether her objection to the paternal grandmother spending time with the child applied to supervised time. Albeit without any noticeable enthusiasm for the prospect, on more than one occasion she said that she would agree to supervised visits for the child’s paternal grandmother.
A minute of the Independent Children’s Lawyer’s (“ICL”) proposals on behalf of the child was provided to my chambers on the last day of the hearing:
1.That all prior parenting Orders are discharged.
2.The mother, [Ms Gornall], born on …1973, shall have sole parental responsibility for the child, [B], born on … 2013.
3.Notwithstanding Order 2, the mother shall:-
i.Do all such things as are necessary to enable the father, [Mr Rada], born on … 1972, to liaise with the child’s treating medical practitioners from time to time;
ii.Do all such things as are necessary to enable the father to liaise with the child’s childcare, pre-school and school from time to time;
iii.Provide the father with a quarterly update in relation to the child’s welfare, development, health, education and extra-curricular activities and notify of any changes in the child’s residential address,, such update to be sent via email to an email address set up by the father solely to receive such updates
1.For the purpose of this Order, the father shall set up the email address within seven days of the date of these Orders and provide that email address to his solicitor, to be forwarded to the mother’s solicitor and provided to the mother.
2.The father is restrained from responding to the mother in any way upon receipt of the quarterly updates
4.Notwithstanding Order 2, the father shall be entitled to:-
i.Liaise directly with the child’s treating medical practitioners;
ii.Liaise directly with the child’s childcare, pre-school and school
iii.Attend parent/teacher interviews at the convenience of the child’s teacher, provided that this does not take place at the same time as any interview with the mother
iv.Obtain directly copies of school reports, newsletters and school photograph order forms.
5.Unless otherwise agreed between the mother and father in writing, the child shall spend time with his father:-
i.from the date of these orders until the end of 2017 under the supervision of D Group at the C Town Library (or such other agreed location) for a period of no less than 3 hours on two occasions each month, noting that the time may occur on consecutive days each month
1.during this time, the father may be accompanied by his mother but shall not permit the paternal grandmother to express her religious beliefs or engage in any religious practices
2.the father shall be responsible for the costs of this supervised time
ii.From January 2018 until the end of Term 2 2018 under the supervision of either [D Group, E Group] or [F Group] (as nominated by the father) for a period of no less than 4 hours on two occasions each month, noting that the times may occur on consecutive days each month
1.the father shall be entitled to spend time with the child at a venue which is appropriate for the child’s age, no further than 1 ½ hours drive from the mother’s home and acceptable to the person undertaking the supervision.
2.During this time, the father may be accompanied by his mother but shall not permit the paternal grandmother to express her religious beliefs or engage in any religious practices
3.The mother and father shall be equally responsible for the costs of this supervised time with the father paying for the first and each alternate occasion thereafter and the mother paying for the second and each alternate occasion thereafter
iii.From the commencement of Term 3 2018 under the supervision of either [D Group, E Group] or [F Group] (as nominated by the father) for a period of no less than 6 hours on one occasion each month
1.The father shall be entitled to spend time with the child at a venue which is appropriate for the child’s age, no further than 1 ½ hours drive from the mother’s home and acceptable to the person undertaking the supervision
2.During this time, the father may be accompanied by his mother but shall not permit the paternal grandmother to express her religious beliefs or engage in any religious practices
3.The mother and father shall be equally responsible for the costs of this supervised time with the father paying for the first and each alternate occasion thereafter and the mother paying for the second and each alternate occasion thereafter.
6.Within 28 days of the date of these Orders, the mother shall obtain an appointment with the child’s General Practitioner and request a referral to enable an assessment to be made by a team consisting of a paediatrician and a clinical psychologist in relation to whether the child has an autism spectrum disorder.
i.The mother shall be entitled to provide the assessment team with a copy of [Ms G’s] report of 13 February 2017
ii.The mother shall provide the assessment team with the father’s contact details and copies of contact reports for the 6 occasions which occurred prior to the first appointment with the assessment team
iii.The mother shall comply with all requests for information and/or appointments as made by the assessment team
iv.The father shall comply with all requests for information and/or appointments as made by the assessment team
v.The father shall be responsible for payment of any costs which are incurred and not reimbursed to the mother either through Medicare or a private health fund
7.Pursuant to s68B of the Family Law Act 1975, the father is restrained from:-
i.Contacting or communicating with the mother other than as provided by these Orders;
ii.Attending within 5 kilometres of the mother’s address, as notified by the mother from time to time;
iii.Attending at the child’s school other than at the express invitation of the staff of the school, provided that the father requests that the staff of the school notify the mother of the father’s proposed attendance.
Expert Evidence
The expert evidence was that of the single expert, forensic psychiatrist, Associate Professor K. Her report was dated 6 July 2016.
The Hearing
The hearing commenced on 18 April 2017. On 21 April 2017 judgment was reserved.
Short History
The father was born in 1972. The mother was born in 1973. The parents commenced their relationship in 2007. They commenced cohabitation in 2008 on the mother’s version or in early 2011 on the father’s version. It is, however, common ground that they spent time staying together from 2008. They were never married. The parties separated in May 2014.
The parties have one child, B, who was born in 2013 and is now three years of age.
Credibility and Submissions
There are a number of factual issues that fall to be determined without independent evidence and based largely or solely on the uncorroborated testimony of the parents and other lay witnesses. Therefore it is necessary to say something about the credibility of the witnesses.
The Father
There were problems with the father’s evidence. He was careless in completing his Financial Statement and had some difficulty in conceding the problems. In that Statement his before tax average weekly income is said to be $894 while his weekly income tax liability is shown as about $590. I offered him the possibility that he had omitted $1,000 from his weekly income but he rejected that suggestion. He later conceded that something like that might have happened. The issue itself is not important, because the father’s income is a matter of public record but it was surprising that he was not a more careful witness. The father said that he did not have a clear recollection of some of the financial arrangements between the parties during cohabitation. For example he thought that apart from the mother’s payment of the cost of solar panels for the I Town property, he paid half of all expenses for the home. He did not have a clear recollection of making those contributions, for example in relation to fences and gates but thought that was what happened. He was asked about two transfers from his Commonwealth Bank account to another account in 2014 and could not recall what they were for. They were made on 25 June 2014 in the sum of $2,500 and 4 September 2014 in the sum of $2,957. $5,457 is a substantial and particular amount and one might have expected that he would recall or be able to deduce the reason for an expenditure or transfer of funds in that amount, albeit more than two years ago.
In giving his oral evidence the father had a somewhat tangential style of communication. He was asked about what sort of activities he would like to undertake with the child. He said that he had bought a $700 mountain bike and that there were sites near his home where he could ride with the child. The reference to the cost of bike was not required by the question but it was revealing and given his recent cancellation of child support, insensitive. Coming back to credit, he often responded to questions with a series of questions and answers in the style of: “Would I …? No. Would I …? Yes”. The father gave most of his evidence while maintaining a serious demeanour. He became more animated and smiled while telling the story of the occasion when he stabbed his laptop computer with one of his swords and left it in the backyard. On occasions there were different versions of his evidence. He said that he did not read the mother’s report to FACS (DOCS) but told Dr K that he was surprised when he read the report. He was strangely emphatic about some issues. He was asked whether he had persistently asked the mother to engage in a particular sexual practice with him – “absolutely” was the quick and emphatic response. He gave a similar response to questions about his consumption of certain drugs and alcohol and about other matters. On the other hand he rejected the suggestion that he had actively contemplated buying a firearm. Then he conceded that he considered buying a gun safe. The father made no effort to hide aspects of his conduct that the mother has criticised in her evidence. That might have been a concession against interest but it was my impression that he saw nothing wrong with his conduct.
The father appeared to have an idiosyncratic view of many issues. However, it was my overall impression that the father sought to give candid evidence.
The Paternal Grandmother
The paternal grandmother was noticeably frail following recent surgery but she gave her evidence directly. She was not successfully challenged on any issue. As the case developed, the importance of her evidence really only relates to one issue - whether she would be able to respect the mother’s wishes about her conduct in the presence of the child. That related to her pressing her religious beliefs on the child and her behaviour in his presence in the nature of spoken prayers and speaking in tongues. I understood her to say that she would respect the mother’s views and could avoid those displays in the child’s presence. I accept her as a witness of truth.
The Mother
Although generally composed, the mother became upset at times during her cross-examination. In the course of describing events during the relationship, the mother was at times distraught, became increasingly upset as she told the story of particular events and was ultimately, unable to continue for periods. Several breaks were taken to allow the mother to compose herself. Much of the mother’s displays of distress coincided with the content of her evidence rather than the fact or nature of her cross-examination. To my observation, while thorough, the cross-examination of the mother was undertaken in a sensitive and respectful manner. I should say that the mother’s distress was also apparent when she was not in the witness box. She appeared very upset during final submissions, for example.
Throughout, the mother steadfastly maintained the effect of her evidence.
As with the father, the mother made no effort to obscure what might be considered her parenting weaknesses or vulnerabilities. In her case they relate substantially to the destabilising impact of the father on her. It is her case and her evidence that she simply cannot and could not cope if the father has unsupervised time with the child. The mother would be aware that the father might have sought to take forensic advantage of that and other concessions. For example, he may have sought residence orders in his favour, arguing that, given her fragile emotional state, the mother is not a capable parent. In my view, that risk lends credibility to the mother’s testimony.
The mother’s evidence about an incident on 9 February 2014 was different in her affidavit and in her oral evidence in cross-examination. At paragraph 128 of her affidavit she says that she saw the father hitting (the seven week old) the child, very hard on the back and saw the baby’s head jerking backwards and forwards. She deposed that she said to the father: “Can you please support the child’s head and neck. ...”. In cross-examination her evidence was that her first intervention was to say: “Please be more gentle” and later “stop”. Whatever else might be said about that, the first version would tend to corroborate the father’s evidence that he was not hitting the child with excessive force. This highlights the difficulty, years after the event, in making clear findings about ambiguous events. Had there been relevant civil or criminal proceedings at the time, the events would have been fresher in the minds of the witnesses and perhaps clear findings would have been possible.
In my view the mother endeavoured to give honest evidence. That said there is a high likelihood that her interpretation of some of the father’s conduct is flawed. On several occasions during her oral evidence she described the father’s demeanour and conduct towards her, prior to their efforts to conceive the child, in the most complimentary terms and with obvious affection. However, she would allow little or no benign or ambiguous interpretation of his conduct since. That applied to words and phrases he used, gifts he provided for the child and even objects that were visible to her through the windows of his car when he parked near the contact centre. Such was the apparent the level of the mother’s distress, it is likely that she has difficulty in making an objective assessment of the parties’ recent history and of the specific incidents involving the father during that time.
The Maternal Grandmother
The maternal grandmother was briefly cross-examined. She was asked whether the now three year old the child currently feels unsafe about spending time with his father and answered “yes”. When it was pointed out that neither the mother nor the supervisors give that evidence, she readily changed her answer to “no”. I took from her evidence that in her opinion, the child should feel unsafe with the father. On the other hand she was not shaken when challenged about her evidence of the father holding a knife and fork over the baby the child’s stomach on one occasion. She also gave evidence about the father being cruel to his animals. My impression is that the maternal grandmother loves and supports her daughter and grandson and that she is ill-disposed towards the father. She is far from independent or objective in her evidence. Of course that does not mean that all of her evidence is wrong.
The Maternal Grandfather
The maternal grandfather was even more briefly cross-examined. He made it plain that he too is ill-disposed to the father. He corroborated the mother’s evidence about the father striking her on the hip after an IVF procedure. He is not an independent witness. However, he gave evidence about a number of incidents of controlling and petulant behaviour by the father and I do not recall that he was challenged on much of that evidence.
As with most proceedings, it is not possible to simply prefer the evidence of one witness over that of another, on all issues.
Dr K and Ms G gave evidence as experts and their credit was not called into question.
Background Facts
The father was born in 1972.
The mother was born in 1973.
The parents commenced a relationship in approximately 2007. They continued to maintain separate rental premises for some time. They cannot agree on the date by which they commenced cohabitation. On the mother’s version, by 2008 she was spending six to seven nights per week at the father’s home. According to the father they did not commence to live together until early 2011. He says that prior to that time they were spending two to three days per week together, mainly at his home and sometimes at the mother’s home but in each case, irregularly. It is not possible to resolve that dispute.
In 2010 the father purchased a property at H Street, I Town (“the I Town property”) using funds he had inherited from his late father and grandmother. Immediately upon purchase, the property was virtually unencumbered. The mother paid the first mortgage instalment of more than $2,000 and that left about $1,000 owing. From the inherited funds, the father also purchased a sports car. Options for paint colour and a hard top took the purchase price to more than $80,000. He bought a motorcycle and he paid off some credit card debts which totalled $40,000.
The parties engaged in an IVF program but the child was conceived in any event. The mother moved to her parents’ home at Suburb L near M Town in advance of the birth. In 2013, the child was born at a hospital in City O. The father stayed for nine days following the child’s birth. The mother and child stayed with her parents until 26 January 2014. They then returned to the I Town property.
From 31 March to 4 April 2014 the parents and the child stayed for one week at a residential service called N Group to obtain assistance in relation to the child’s sleeping which was adversely affected by colic and reflux.
In early April 2014 the mother contacted the Department of Family and Community Services (“FACS”) in relation to allegations against the father. Officers from the FACS assisted the mother in formulating a safety plan. The mother informed the father that she had contacted FACS in relation to him. Caseworkers from FACS attended the parents’ home to investigate the allegations against the father. After the attendance of the caseworkers, the father left the home overnight. He returned the following day, which was 10 or 12 April 2014, but moved into the garage. The father was asked about that in cross-examination. He said that he was angry or upset about the allegations and although he listened to the workers he did not invite them onto his property or address their concerns.
On 14 April 2014 the mother left the I Town property and relocated to live with her parents at Suburb L.
On 2 July 2014 the father commenced these proceedings in the Federal Circuit Court but in relation to parenting issues only.
On 20 November 2014 interim orders were made to the effect that:
(a)the parents have equal shared parental responsibility for the child; and
(b)The child live with the mother and spend supervised time with the father both in I Town and in the City O/M Town area.
The father spent time with the child at a contact centre in City O on 14 occasions between December 2014 and January 2016, and at the C Town Library on six occasions between December 2015 and September 2016. He spent time with the child at the contact centre in I Town on four occasions over two weekends in March and April 2015.
On 25 May 2015 the proceedings were transferred to this Court.
On 15 June 2015 the matter first came before Foster J.
On 1 July 2015, the section of the orders made on 20 November 2014 providing for supervised time between the father and the child at I Town was vacated. The father was permitted to arrange for that time to be replicated on a supervised basis in the City O/M Town area. An order was made for the paternal grandmother to spend time with the child during the father’s supervised sessions.
On 7 August 2015 Associate Professor K was appointed as the Single Expert in the parenting proceedings.
On 7 August 2015 the mother filed an Amended Response in which she sought both parenting and property orders. The parenting orders sought by the mother referred to the child only having time with the father, as the parties might agree.
On 15 September 2016 orders were made to appoint an Independent Children’s Lawyer.
On 15 November 2016 directions were made and it was noted that the father was no longer seeking an order that the child live with him but that issues remained in relation to the conditions for the time to be spent between the father and child, if any.
On referral from the child’s treating doctors, in November and December 2016 a Ms G, psychologist, conducted an assessment of the child in relation to the possibility of an Autism diagnosis. Ms G wrote a report dated 13 February 2017 in which she said that the child does satisfy the criteria for an Autism Disorder diagnosis, namely Autism 1.
The Parenting Proceedings
The law to be applied in parenting proceedings is found in Part VII of the Act.
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child is the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the Court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
The Expert Evidence
The single expert was Associate Professor K, Consultant Psychiatrist. Dr K is an Associate Professor in the School of Psychiatry. She also conducts a private practice as a Consultant Forensic, Child and Family Psychiatrist. Dr K was made a fellow of the Royal Australian and New Zealand College of Psychiatrists in 1973.
Dr K’s work experience includes the positions of Deputy Medical Superintendent, and Director of Mental Health Services.
Dr K prepared a report in this matter dated 6 July 2016. Dr K was cross-examined at length and she did not resile from or significantly change her reported opinion.
The Approach
For the purposes of the determination of these proceedings, I will adopt the following approach:
(a)set out the current parenting arrangements;
(b)set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
(c)where possible and relevant, consider and make findings about matters set out in s 60CC;
(d)consider and make findings about parental responsibility, including considering the presumption in s 61DA;
(e)apply s 65DAA if relevant and assess the proposals in light of that provision;
(f)if s 65DAA is not relevant, assess the proposals against the best interests criterion;
(g)consider and make findings about living arrangements; and
(h)make orders.
The Current Parenting Arrangements
Pursuant to the orders made on 20 November 2014, as varied on 1 July 2015, the parents have equal shared parental responsibility for the child and the child lives with the mother at Suburb L, in premises also occupied and owned by the maternal grandparents. The orders provide for fortnightly visits but the child spends supervised time with his father on a monthly basis at the C Town Library. Occasionally the paternal grandmother also attends.
The Parties’ Proposals
It is agreed that the child will live with the mother and that she will at least share parental responsibility for him. It is agreed that the child will spend time with the father.
The range of dispute on the key areas seems to be:
(a)whether parental responsibility should continue to be shared or whether it should vest solely in the mother;
(b)what time should be spent between the father and child;
(c)whether supervision is required and the venues and extent of supervision;
(d)if the father’s time is supervised, whether and if so, when, that supervision might be relaxed in the future.
Section 60CC Considerations
Section 60CC specifies the following considerations:
Primary considerations:
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2)(a) the benefit to the child of having a meaningful relationship with both of the child‘s parents
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[1] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[1] McCall & Clark (2009) FLC 93-405.
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[2]
[2] Champness & Hanson (2009) FLC 93-407.
Both parties seek that the child live mainly with the mother. That suggests that it is agreed that the relationship between mother and son is meaningful. Dr K reports that the child is far too young to be separated from his primary caregiver (the mother) for any significant period of time. The orders made in these proceedings should promote their relationship.
The mother seeks orders for the child to spend time with the father albeit on a supervised basis. Given the mother’s antipathy towards the father and her opinion about what he has done, that strongly suggests that she considers there to be meaning in the relationship between father and son.
Dr K recommended that the child should see his father at the very least for two hours each fortnight, even if that time had to be supervised. In my view the relationship between father and son is an important and valuable one and, subject to other considerations going to the child’s welfare, any orders of the Court should promote that relationship.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
‘Abuse’ and ‘family violence’ are defined terms.
“abuse” , in relation to a child, means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
Section 4AB provides:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member‘s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child‘s family towards another member of the child‘s family; or
(b)seeing or hearing an assault of a member of the child‘s family by another member of the child‘s family; or
(c)comforting or providing assistance to a member of the child‘s family who has been assaulted by another member of the child‘s family; or
(d)cleaning up a site after a member of the child‘s family has intentionally damaged property of another member of the child‘s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child‘s family by another member of the child‘s family.
Section 60CC (2A) deals with the weight to be given as between the primary considerations:
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
In her affidavit the mother makes allegations of violence against the father. In addition to general allegations, the mother’s affidavit and the affidavits of her parents contain evidence about many specific incidents. The mother deposed that there were too many incidents of family violence inflicted on her by the father to include them all in her affidavit. Of course the Court and the father can only address the evidence presented. Although there are headings in the mother’s affidavit, allegations of violence of various types are spread throughout the document.
The mother gave evidence about the father using a phrase: “We must take care of you” after every time he had physically hurt her. It is difficult to understand what she meant by that evidence. I do not recall for example, her giving evidence about any particular occasion on which that phrase was used.
Unfortunately, as I pointed out to the parties, the father’s trial affidavit does not specifically address the allegations made in the mother’s trial affidavit. That is understandable as her affidavit was filed the day before the father’s affidavit and it was apparently drawn without reference to the mother’s trial affidavit. The father’s affidavit specifically addresses allegations made by the mother in her affidavit sworn and filed in August 2014. The mother’s 2014 affidavit was not put into evidence before me. In some instances it is possible to identify from the context, an allegation that is made in the mother’s trial affidavit from the father’s response to the earlier affidavit of the mother. In relation to some allegations, the father’s counsel specifically put the father’s position to the mother in cross-examination. For example, learned counsel for the father put to the mother that some incidents did not occur. In that way I was able to know that issue was joined on that allegation. In relation to other allegations however, there was nothing said in the father’s affidavit and the mother was not challenged about the incident in question. Where the mother’s evidence is clear and is unchallenged, I am obliged to accept her testimony.
Where there is a dispute, it is important to keep in mind the role of this Court in relation to findings of abuse or violence. In Leighton & Carey [2010] FamCAFC 94 the Full Court discussed the principles relevant to findings about sexual abuse. In my view the same considerations apply to allegations of other forms of abuse or family violence. The discussion in Leighton & Carey was in the following terms:
Principles relevant to findings of sexual abuse
28.In considering this appeal it is important we refer to the principles relevant to a finding of sexual abuse. In B and B (1993) FLC 92-357, the Full Court reviewed the authorities at length and said at 79,777:
In B and B (1988) FLC 91-957, Baker and Maxwell JJ (with whom Nicholson CJ agreed on this point) considered the role of trial Judges in the Family Court when determining custody and access cases, with particular reference to those cases in which allegations of sexual abuse had been made. The appropriate law to be applied was as set out in the following passage which appears at pages 76,923-76,924:-
‘The Family Court is a civil court in which trial Judges are required to hear and determine cases in the course of which evidence of the parties and their witnesses must be analysed and findings made based upon the civil standard of proof, that is to say, on the balance of probabilities.
It is not appropriate for Judges of the Family Court to conduct cases in which allegations of child sexual abuse have been made as criminal trials which seek to establish the guilt or innocence of one of the parties in relation to allegations of sexual abuse with the consequential result being that if the allegation be proved, access will be suspended whereas if the allegation be not proved then access will be ordered.
In the course of the hearing of a custody or access application, the court may make one of the following findings in relation to an allegation of child abuse:
(a)that the allegation is proved; or
(b)that the allegation is not proved; or
(c)there is insufficient evidence to determine either (a) or (b).
Any such finding, however, may not necessarily be the determinant factor in the ultimate decision. …’ …
29.In M v M (1988) 166 CLR 69 the High Court said at 76:
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. …
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. …
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. (footnotes omitted)
As to the standard of proof, the Evidence Act 1995 (Cth) now incorporates the effect of Briginshaw[3] in s 140.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336
Section 140 of the Evidence Act 1995 (Cth) provides:
Civil proceedings: standard of proof
(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.
The allegations made in the mother’s case include the following:
(a)The father burnt a parquetry chopping board made by her brother which was broken, notwithstanding that the mother specifically told him that it was important to her and that she would like to have it repaired.
I have no recollection of that evidence being traversed or challenged.
I accept the mother’s evidence on this incident.
(b)On unidentified occasions the father ran after his pet rabbits, cracking a horsewhip, swearing at them and screaming if they did not respond correctly when he rounded them up into their enclosures for the night. This made the mother very frightened. On at least two occasions she told him that she wished he was not so aggressive and that it frightened her. The mother said that she reported her concerns about the father’s treatment of animals to various people – her trainee midwife in December 2013; the counsellor at the I Town Domestic Violence service and community nurses in early 2014; and a social worker at N Group in April 2014. The maternal grandfather corroborated the mother’s evidence about the father’s treatment of his rabbits.
The father agreed that he herded the rabbits but the effect of his evidence was that he used a dressage whip to gently encourage the rabbits out of the long grass. He agreed that he sometimes became frustrated and may have shouted or swore. Otherwise he strongly rejected the mother’s contention. He gave evidence to the effect that he tried not to frighten the rabbits because that would have made herding them into their hutch much more difficult.
It is not possible to make a clear finding about these allegations.
(c)Early in the parties’ relationship when the parties lived at P Street, the father poked at the mother’s eyes as if it was a fun game. On one occasion he jabbed her eyeball causing it to be painful, red and watering for hours. The maternal grandmother deposes to an incident in 2007 when the father poked the mother in the eye with a toothbrush. She said that the mother was in pain and that the father said that what he did was an accident. It is not entirely clear to me whether those allegations relate to one incident or more than one incident.
I have no recollection of any of that evidence being traversed or challenged.
I accept the mother’s evidence and that of the maternal grandmother.
(d)In January 2009 when the mother was on a mezzanine level of her parents’ garage, she asked the father to hold the ladder while she was there. The father left the garage and was not there to help her down the ladder. She says she was stuck in the garage for six hours until she could raise her mother. It is the mother’s evidence that because of this incident she suffered Deep Vein Thrombosis and a Pulmonary Embolism. The mother says that the father did not accompany her to hospital following that incident but instead returned to I Town.
It is the father’s evidence that he did no such thing and indeed that at that time he was probably in I Town.
It is not possible to make a clear finding about this incident.
(e)In 2010 the father showed the mother a dead rabbit because he said that she had left the dogs outside with the rabbits.
My understanding of the father’s evidence is that he agrees with the bare facts but says it was a benign incident. He gave some evidence about seeking to impress on the dog or dogs that they must not harm the rabbits and about the importance of positive reinforcement (I assume for the dog or dogs). I do not recall it being put to the mother that the incident did not occur.
I accept the mother’s evidence on this incident.
(f)From about 2011 to about 2014 the father was frequently angry at his animals. He would hold his Labrador on the ground, place his hand over the dog’s muzzle and blow hard into his nostrils. He did that until the dog became submissive.
I have no recollection of that evidence being traversed or challenged.
I accept the mother’s evidence.
(g)From November 2011 the father pressured the mother to use a drug called mescaline and in January 2012 she said she reluctantly took the drug. She said that the father then had sex (intercourse) with her without her consent. She said he later apologised and she forgave him.
I understood the father’s case to be that the mother agreed to take any drugs she consumed when she was with him, that he did not pressure her, and that their sexual interactions were all consensual.
It is not possible to make clear findings about the mother’s allegations.
(h)On at least 12 occasions between 2008 and 2013 the father locked the mother in a large aviary. After three occasions the mother felt trapped and extremely uncomfortable. In about 2011 the father began leaving the mother in the aviary for increasing periods of time. On one of the occasions the father left the mother in the aviary for about half an hour, saying that he could not hear her and had forgotten that he locked the aviary door.
The mother’s evidence on this issue is not entirely credible. It appears that the mother was not unhappy about the first occasions this occurred. It beggars belief that the mother gave the father the opportunity to lock her in the aviary against her will, on nine further occasions, after the first three.
The father was asked about this allegation in cross-examination and the effect of his evidence was that he locked the mother in the aviary on only one occasion and as a joke. He said that unfortunately he forgot about her for a period that was between five and 30 minutes, before returning to release her.
Beyond the father’s concession, it is not possible to make a clear finding about these allegations.
(i)In October 2012, the mother discovered that she had become pregnant naturally after two cycles of IVF. The father pressured the mother to have sexual intercourse immediately after she told him that she was pregnant. He was rough during that sexual intercourse and the mother was in pain. She began to miscarry two days later. The mother was devastated but says that the father showed no emotion.
I have no recollection of that evidence being traversed or challenged. However, it was the father’s evidence that the parties’ sexual interactions were all consensual.
It is not possible to make a clear finding about the mother’s allegation.
(j)On or about 8 February 2013 after an IVF embryo transfer the mother was told to rest. The mother says that the father slapped her hard on her hip and she yelled in pain. The mother says that the maternal grandmother was present and said to the father: “Why did you do that? That’s right at the level of the implant.” The mother says that the father walked off. The mother says that that pregnancy was unsuccessful.
The maternal grandmother and grandfather corroborate the mother’s evidence.
The father was asked about this in cross-examination and the effect of his evidence was that he lightly touched the mother on the hip; that it was a playful incident.
It is not possible to make a clear finding about this incident.
(k)In or about August 2013 the father threw his laptop hard on the ground. The mother said that he seemed frustrated and angry and said that it was not working properly. The mother returned home later that day with her mother to find the laptop open in the backyard with a sword stabbed through it. The mother says that there was the following conversation:
Father: I wanted to show you that I would protect you if anything upset you.
Mother: No, that is not what it means [Mr Rada] ... It means that YOU would hurt someone if they upset YOU.”
The father was asked about this in cross-examination. He agrees that he stabbed the laptop with one of his swords (the Knights Templar sword). He said that he bought a laptop and it would not work. He took it back to the store and was given a replacement laptop. The second laptop did not work. He decided not to return this one to the store. He stabbed it with his sword and left it in the backyard. The father gave evidence:
“.....I wanted to prove it was not directed at them (I assume, the mother and the maternal grandmother). How could I possibly put a sword through a computer and they come home and the sword is sticking out like a piece of art work – how could that be directed at you? It is obviously directed at the computer”.
There is no dispute about the basic facts reported by the mother.
(l)In late 2013, the father refused permission for the maternal grandparents to visit the mother in recovery, after her surgery. The maternal grandparents corroborate that evidence.
I have no recollection of that evidence being traversed or challenged. The father said that when the mother was in hospital following the child’s birth he tried to keep visitors away for four days. He asked her family to wait until 2.00 pm to visit on the day the child was born. The maternal grandfather took issue with this and came to the hospital and said “nothing will keep me from my daughter”. There is reference to the paternal grandmother pushing past the maternal grandmother. It would be strange if the father allowed his mother to be present but not any members of the maternal family.
It is probable that the father sought to control access to the mother at the hospital by members of her family.
(m)Throughout the relationship the father yelled and screamed if the mother turned on taps elsewhere in the house, while he was in the shower. However, he often turned on taps while the mother was in the shower.
I have no recollection of that evidence being traversed or challenged.
Although not specific, I accept the mother’s evidence about this behaviour.
(n)Over the course of their relationship the father deleted text messages from the mother’s mobile phone and he removed pages from her spiral bound notepad. On occasions he sent sexually suggestive emails from the mother’s computer to himself.
I have no recollection of that evidence being traversed or challenged.
Although not specific, I accept the mother’s evidence about this behaviour.
(o)On one occasion just before separation the father pretended to kiss the mother but sucked on her ear, causing her incredible pain.
I have no recollection of that evidence being traversed or challenged.
I accept the mother’s evidence about this behaviour.
(p)On 28 February and 14 March 2015 the father returned personal items belonging to the child and the mother to the Q Centre during supervised visits. Among the items were 23 long zip cable ties. It is the mother’s contention that this was intended as an unwelcome reference to the mother about the father’s bondage experiments with her. In an email on 19 August 2013 the father attached an image of a grey tie with the text “can u see the image?” It is the mother’s contention that this was a reference to the book “50 Shades of Grey” and sexual activities referred to in that book.
The father was asked about that in cross-examination. The effect of his evidence was that the grey tie was intended to be a reference to a book “50 Shades of Grey”. He conceded that the book referred to sexual practices including bondage. He could not recall sending the mother any cable ties. Again it was his evidence that all sexual activity between the parties was consensual.
Given that the parents were separated and estranged, the father’s conduct in drawing an allusion to the book is concerning. However, no findings are possible about the cable ties.
(q)It is the mother’s belief that the father has attempted to harass her with symbols, words or references:
(i)A Facebook message on 21 February 2015 referred to a link to a webpage associated with a toy (an elephant toy). The mother said that this was followed by a package sent to the child containing that toy. The mother says that when they were together the father owned a sex toy or sex toys of a similar name which he offered to use with the mother.
This was addressed with the mother in cross-examination. The mother agreed that the children’s toy is widely available. She confirmed that it was her view that the father’s message was a link to a sex toy. She agreed that the father is an animal lover and that animals are important to him. She said that the father purchased four or five sex toys in the period from 2011 until the end of their relationship.
No adverse findings are available in relation to the elephant toy and sex toy reference.
(ii)In 2015 the father posted to the child, three Easter parcels containing rabbit toys. The mother said that during her relationship with the father he would arrange rabbit toys in sex poses. She said that the father made lewd references to a gnome statue and arranged that statue with a bronze statue of a naked woman on her hands and knees, to imply intercourse. This caused the mother great embarrassment. The inference drawn by the mother was that in the guise of gifts for the child, the father was seeking to send a message to the mother about their sexual relationship.
In cross-examination the mother agreed that rabbit figures are common at Easter time – they are part of the Easter tradition. The mother confirmed that from her perspective, what the father intended to communicate to her by sending the child the rabbits was some form of harassment directed at her. She said “perhaps it could have been eggs, or a chicken, but he sent rabbits...”
No findings adverse to the father are possible in relation to the rabbit toys.
(iii)The father hit and killed a kangaroo with his car on the way to attend a supervised contact visit on 20 June 2015. On 24 June 2015 the father gave the child a book called “Big Red Kangaroo”. The inscription from the father included “We must take care of them” which the mother says was similar to the phrase he used after every time he had physically hurt her, “We must take care of you”.
The effect of the mother’s evidence in cross-examination was that her connection with that phrase is associated with abuse perpetrated by the father. She agreed that her evidence is that the phrase in that book used by the father was designed to harass her. The mother said, in effect, that there might have been other reasons to explain the father giving the child that book - he may have wanted to communicate to the child about animals.
No findings adverse to the father are possible in relation to this issue.
(iv)On the sixth and tenth contact visits the father left in his locked car but visible to passersby, a lounge cushion and a cushion made for the mother by the maternal grandmother, which she used when she breastfed the child. She said “It was like [Mr Rada] was playing a cruel mind game with me.”
I do not recall the father addressing this issue in his evidence.
No findings adverse to the father are possible in relation to this issue.
(r)The mother said that on many occasions she told the father that she was frightened of him. She said that when they watched a news story about Oscar Pistorius killing his girlfriend, there was reference to the girlfriend having reported that she felt frightened of Mr Pistorius. The father said to the mother “Maybe you should leave me”.
I have no recollection of that evidence being traversed or challenged.
No probative findings adverse to the father are possible in relation to the mother’s allegation.
(s)On or about 25 March 2014 the father punched the mother in the back as she slept.
I have no recollection of that evidence being traversed or challenged.
I accept the mother’s evidence.
(t)The mother observed the father being violent to the child, saying that: he hit the child hard and did not support his neck; he forced objects into the child’s mouth; he held the child painfully tight; exposed the child to excessive noise, including revving his motorbike excessively; slammed doors; broke glasses; yelled loudly; cracked whips in anger; roared at the top of his voice; exposed the child and the mother to scalding hot water and made stabbing and punching motions towards the child. In particular:
(i)As is referred to above, when the child was about seven weeks old the mother asked the father to burp the child. The father hit the child very hard on his back, causing his head to jerk backwards and forwards. Remarkably, the mother records in her affidavit that her first reaction was to ask the father to support the child’s head and neck. In her oral evidence in cross-examination she said that she told him: “Please can you be more gentle.” The mother says that the father glared at her and started hitting the child harder and faster causing his head to repeatedly snap back and forth. The mother says that she then begged the father to stop. She was horrified and alarmed. She stepped out of the room momentarily hoping that the father would stop hitting the child if she stopped responding. He stopped and the mother grabbed the child and ran to the bedroom and locked the door. The mother says that the father’s behaviour improved after this incident and a few days later and feeling reassured that the father was getting better, the mother again asked the father to burp the child. The mother said that the father began hitting the child extremely hard in the middle of his back, causing his head to again snap back and forth. This time the mother immediately took the child from the father, ran to a bedroom and shut and locked the door. It is the mother’s opinion that the father was aware that his action of hitting the child hard was deliberately putting the child at risk of harm. The mother did not report the incident to the police. She said that she did not want to get the father into trouble, she wanted him to get help. The mother reported the father’s actions to N Group and obtained referrals from her GP for the child to see a paediatrician named Dr R, who referred the child to see an eye specialist, Dr S.
The father denied the thrust of this evidence.
It was put to the mother that the father never burped the child with such force as to cause his head to swing back and forth. The mother rejected that proposition. Similarly she did not agree with the proposition that the father never shook the baby.
It was put to the mother that the supervision reports have not identified any incident of violence perpetrated by the father, nor any examples of bizarre or erratic behaviour by him. The mother agreed. Similarly the mother agreed that those reports have not identified any concerns about the father being under the influence of alcohol or drugs.
It is not possible to find, at the required standard, that these incidents occurred as the mother deposed. Of course the allegations give rise to a risk and in this instance, it is a risk of serious harm.
(ii)On at least two occasions between 27 January and 4 February 2014 the father held the child’s swaddled body abound his own body, headfirst and face down and ran through the house with his arms outstretched in front of him holding the child. The mother says that the boy’s head was not supported.
I have no recollection of that evidence being traversed or challenged. However, the father made a general denial in his affidavit about inappropriate handling of the child.
It is not possible to find, at the required standard, that these incidents occurred as the mother deposed.
(iii)On about a dozen times during February and March 2014 the father pretended/motioned with his hands to punch or stab the boy, causing the mother great distress.
I have no recollection of that evidence being traversed or challenged.
It is probable that the alleged conduct occurred.
(iv)Between February 2014 and 12 April 2014 the father bottle fed the baby. The mother says that on each occasion the father pushed the bottle too hard into the baby’s mouth. The mother observed the baby to try to pull away, to breathe fast and loud and on a few occasions the child gagged.
I have no recollection of that evidence being traversed or challenged.
It is probable that the alleged conduct occurred.
(v)During February 2014 the father held a knife and fork and pretended to cut the child’s stomach as he lay naked on the change table. The mother asked him to stop and he said it was just a joke. The maternal grandmother corroborates the mother’s evidence.
It was put to the mother that this incident did not occur. She did not agree with that proposition. Similarly it was put to the maternal grandmother that the father did not pretend to cut the child’s stomach with a knife and she did not agree.
In his affidavit the father denied ever placing a knife to the child’s stomach. He said he may have joked to the effect that the child was “so cute you could eat him”.
It is not possible to make a probative finding about this incident.
(vi)The father played with taps in the house while the mother showered, causing her to suffer hot then cold water. He also did that during the mother’s showers with the child. I take it that the mother contends that the father deliberately tried to harm mother and child.
I have no recollection of that evidence being traversed or challenged.
It is probable that the alleged conduct occurred.
(vii)On one occasion in February/March 2014 the mother heard the child give a high pitched scream. She came into the room to find the father holding the child’s sobbing and shaking body, at arm’s length with his fingertips. She says that the father displayed no emotion while he pressed his fingertips into the child’s ribcage. The father did not move and the child continued to scream. The mother stepped forward and took the child and went into another room to comfort him. On at least six other occasions the mother found the child screaming in similar circumstances. The mother deposed that on 2 April 2014 N Group nursing staff witnessed and documented a similar incident however those records were not tendered into evidence. The maternal grandmother deposed to a similar incident.
The father deposed that he was never violent to the child and that he was careful and nervous about handling the child as a newborn child. It was put to the mother that the mother’s evidence about the father squeezing the child was her own interpretation (rather than the truth) of what happened, and that it did not occur. The mother did not agree to either proposition. It was put to the maternal grandmother that the father did not hold the child unduly hard around his ribs. The maternal grandmother did not agree.
It is not possible to find that the alleged conduct occurred.
Almost exclusively, the mother made the parenting contribution.
Conclusion on Contribution
Although not pressed in oral submissions, the mother’s Case Outline document complains inter alia that the father engaged in wasteful spending and financial control throughout the parties’ relationship. She also complains that she “has not been recompensed for funds expended in pursuit of joint living expenses.” That last proposition is not a concept that is relevant to property settlement proceedings.
I assume the complaint about financial control is less to do with the property settlement and more about the parenting issues, in respect of which it could fall within the definition of family violence. In any event, the mother’s case about waste has not been made out. The mother’s affidavit addresses not only the items that the father bought, such as expensive knives and motor bikes but also items that he suggested be bought but did not buy, such as Napoleon’s underwear. Learned counsel for the mother commenced a line of cross-examination of the father in relation to his election to purchase a particular motor vehicle with part of his inheritance. Suffice it to say that there is no available remedy in property settlement proceedings for elections of that type. The focus for the Court is on changing interests in the property the parties have, rather than what they might have bought. For example, rather than in I Town the father could have bought a property in Zurich and taken advantage of a more internationally competitive property market.
The bare facts invite consideration of an argument such as that raised in In the Marriage of Kennon (1997) FLC 92-757 (“Kennon”). There is no real assertion by the mother, nor any complaint on behalf of the father, that there were contributions that the mother could have made, but for the father’s conduct. However, there is an available argument along the lines of the second limb of the approach identified in Kennon, that the mother’s contributions were made more onerous because of the conduct of the father. The mother’s evidence suggests that from the time of the child’s birth, what was a difficult enough parenting task with a fractious and unsettled baby, was made more onerous because of the father’s behaviour. Care is needed in too lightly adopting this approach. Firstly, and most importantly, the mother’s efforts stand on their own merits. Albeit assisted by her parents[5], the mother has carried virtually all of the parenting load since the child was born. The father stayed at the hospital with the mother. He was an infrequent visitor while the mother lived at Suburb L upon leaving hospital and the parties were only together at I Town for a matter of weeks between January and April 2014. Secondly, it is impossible to know the extent to which the mother’s reaction to the father has been exacerbated by her anxiety and depression. In cross-examination, Dr K regarded it as a fair statement, put by the ICL, that the mother has difficulty in attributing benign outcomes to the father’s actions, and, the father was not able to read social queues or empathise with her point of view. On balance, the Kennon approach is not relevant here.
[5]This does not detract from the mother’s efforts and because of the wording of s 90SM(4)(c) there is no scope for recognition of the maternal grandparents contribution under that provision.
It is common ground that the contributions of the father exceeded those made by the mother. In terms of the use to which the father’s initial contribution was put[6], the greater part of it provided the I Town property which was the family home. The home was nearly bought outright, requiring minimal additional cost by way of mortgage payments (something like a total of $3,000). Most of the other costs associated with the home were shared. More than one half of the current pool is represented by the assets the father brought into the relationship.
[6]See Pierce and Pierce (1999) FLC 92-844
This was not a long relationship and whereas the parenting contribution of the mother was arduous and was one from which she had little or no relief, that contribution was made over only three years.
In my view it would properly recognise the respective contributions of the parties if they were assessed in the proportions 25 per cent by the mother and 75 per cent by the father.
The other matters in Section 90SM
Once contributions have been assessed, the other factors in s 90SM(4) need to be considered. They are:
Section 90SM(4)(d)
Pursuant to s 90SM(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the father and mother. There is no evidence that would assist with this factor.
Section 90SM(4)(e) – Section 90SF(3) factors
The relevant matters in s 90SF(3) would seem to be paragraphs (a), (b), (c) and (k).
(a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
The parents are both 44 years of age. The father is in good health. I have referred to the health of the mother in some detail, earlier in these reasons.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
The father is currently on leave without pay. As to the position earlier in the year, in his Financial Statement the father understated his income. There he estimated his income in the form of wages as a public servant, at $894.50 per week. His pay slip for the period ending 23 February 2017[7] put his wage at $97,853 per annum, which would be about $1,881 per week. He deposed that he spent $1,636.50 per week, which included $590 in income tax, $70.75 in rates and levies, $46.75 in home and contents insurance, $19 in motor vehicle insurance, $10 to register a sports car, $200 in child support and $200 per week on all other expenses. He also spent $500 per week on Visa card repayments to the Commonwealth Bank although the minimum payment is $10 per week. At the trial the father said that he had discontinued payments of child support. The father lives alone.
[7]Exhibit 1
The father holds a full-time, permanent position as a public servant.
The father intends to complete studies for a Masters Degree and will take some time off work to support his mother who is unwell. He will take long service leave and then perhaps leave without pay. The father said that the outcome of these proceedings will be relevant to his arrangements in the near future. He did not explain what the options are or how the determination of issues in these proceedings would have a bearing on his decisions. He flagged the possibility of securing some casual work later this year. He also deposed that he has made enquiries with Centrelink as to a study payment but has not heard of the outcome.
The mother’s income is $831 per week made up of dividends of $8, $2 in interest, a Centrelink pension of $375, a Families’ Benefit of $246 and until very recently, child support of $200 from the father.
According to the mother’s evidence, her expenditure is $608 per week, made up of board of $450 paid to her parents, $26 in death and disability insurance, $102.49 in health insurance, $9.54 in Greenslip insurance and $20 for all other expenditure.
The mother is on unpaid maternity leave from her employment as a public servant. She wants to return to work but is unfit to do so at the moment. When she is able to return to work she will want to secure a suitable position in the City O/M Town area. She has made an application for a compassionate transfer to such a position.
The evidence about the parties’ assets and liabilities is set out earlier in these reasons. Importantly, a division based on contributions alone would leave the father with 75 per cent of the property pool, which in the context of this case, would leave him with over $400,000 more than the mother.
(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
The child will live with the mother and she alone will have care and control and parenting responsibility for him for the foreseeable future.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
I have set out above, what there is of the evidence in relation to the parties’ expenses.
(e) the responsibilities of either party to support any other person;
There is no evidence of either party supporting a person other than the child.
(f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
I have referred to the evidence about Centrelink payments and superannuation, earlier in these reasons.
(g) a standard of living that in all the circumstances is reasonable; and
There is no probative evidence about the standard of living enjoyed by the parties or to which they might aspire in the future. The evidence of the purchases made and contemplated by the parties suggest that they had a comfortable lifestyle. I assume they would wish the same for each other into the future.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
There is no application for spousal maintenance.
(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
There is no relevant creditor.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
The father took some leave around the time of the child’s birth but the parties gave priority to the mother taking time off with the baby and thereby favoured the father’s career over hers.
(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
The parties’ were in a personal relationship for about eight years. The duration of their cohabitation is disputed. Whatever the case, the relationship has apparently not affected the father’s earning capacity. The father is taking extended leave from work for reasons of study and his assistance to his mother. The relationship adversely affected the mother’s earning capacity. With leave and her fears in relation to the father, the mother has lost several years of teaching experience, which in turn has affected her level of seniority, and may have affected her promotion opportunities, etc.
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
Rather than the demands of caring for the child, the critical factors about the mother returning to teaching are her mental health and the availability of a suitable position. The mother says she is not able to contemplate returning to the classroom now. I understood her to say that she is not optimistic about securing a position immediately once she is ready. As to where the mother anticipates working, she referred to the need for family support and specified the City O/M Town area.
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
I have referred to the evidence about this issue. The father lives alone and the mother lives with her parents. The mother pays board. The mother and her parents expect that she will seek independent accommodation in the medium term.
(n) the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
This factor is not relevant.
(o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i) a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
There is no additional relevance to this factor.
(p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii) a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
This is not relevant.
(q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
The child support situation for the child is unusual. As I understand it, there is no child support assessment. Although the mother is in receipt of Centrelink benefits she has been exempted from applying for an assessment. As I understand her evidence, she was exempted on the basis of her fears of the father.
Until recently the father had been voluntarily paying $200 per week by way of child support. I understood the father to say that because he was on leave without pay, he had decided to cease making those payments and the payment immediately prior to the hearing was endorsed “Last Transaction”.
The father said that he has not decided what he will be doing in the immediate future. He said that his leave without pay will continue until at least the end of term two, which is approximately July. He said that he had not been successful in a recent application for a position as an educational officer with a nearby public attraction. He planned to continue his studies and to continue to provide a level of support for his mother. He also said that he would await the outcome of these proceedings before deciding what to do after term two of this year. That last statement was not explained. The father said he might undertake some casual work while he completes his studies.
Whatever the father does, it is apparent that he does not intend to pay child support if he receives no income. The submission made on behalf of the father in this respect was to the effect that the Court should look to the father’s history of voluntary payments as to the fact that he is likely to resume paying in the future. If the mother continues to avoid any action to obtain a child support assessment and enforce it, the father’s decisions on this issue will prevail.
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
Nothing comes to attention here.
(s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t) the terms of any financial agreement that is binding on a party to the subject de facto relationship.
There is no relevant financial agreement.
Section 90SM(4)(f)
Beyond those referred to above, there are no relevant orders made under the Act.
Section 90SM(4)(g)
I have referred to the child support position earlier in these reasons.
Conclusion
Albeit based on their submissions about the proportions in which contributions were made, each of the parties argue that there should be an adjustment in favour of the mother.
The relevant matters arising from the remaining elements of s 90SM(4), which include the s 90SF(3) factors referred to above are:
·Neither party is in receipt of income from paid employment but as opposed to the mother’s situation, the father’s decision not to exercise his earning capacity is voluntary;
·A property division based on contributions alone would leave the father with over $400,000 more than the mother;
·The property of the parties is unevenly owned between them. The mother has most of her assets in the form of superannuation whereas the father only has about 15 per cent of his assets in superannuation. That means that more of the father’s property is readily accessible;
·For the foreseeable future, the day to day and long term responsibility for the child will fall exclusively to the mother and she will have no respite in caring for him from the father;
·The parties’ relationship has had adverse financial consequences for the mother but not for the father;
·The mother is currently living with her parents (albeit she is paying some board) but as her father made plain in his oral evidence, he expects that the mother will find independent accommodation;
·Importantly, the mother cannot rely on the father to provide child support.
Of those considerations, all but the fact of the mother currently receiving accommodation and other support from her parents, argue for an adjustment in favour of the mother. In my view the allowance should be 15 per cent. Fifteen per cent represents about $125,500 and will make a difference between the parties of twice that sum.
Just and Equitable
The pool of assets has a value of $857,172, of which $197,671 is in the form of superannuation interests and $659,501 is not in the form of superannuation.
If the assets are divided in the proportions 60 per cent to the father and 40 per cent to the mother then the father will have about $514,303 and the mother will have about $342,868.
As to the form of the orders, the operative order will call for a payment by the father to the mother. So as to make the order self-executing, in default there will be a sale of the I Town property to provide the funds for that payment. There was reference during final submissions to the father’s preference for a splitting order to be made as a component of any significant adjustment to the mother. It was conceded in the father’s case that such an order could not be made. As a technical matter, no notice was given of such an application. That is difficult enough in respect of the mother but of more fundamental concern in relation to the trustee of the father’s superannuation fund. In any event, as I have indicated, superannuation already makes up a disproportionate share of the mother’ assets. Like the father, she is only 44 years of age and many years away from meeting the requirements for orthodox access to an interest in superannuation.
Of the pool of assets identified by me, the mother has the benefit of and would like to retain:
Owner Description Value M Bank (Savings) $3,000 M Motor vehicle $500 M Moneys retained by Mother at separation – added back $136,000 M First State Super $103,413 Total $242,913
In order to bring her to 40 per cent of the net assets she would need to receive $99,955.
That would leave the father with:
Owner Description Value
F
H Street $445,000 F Sports car $40,000 F Motor Bike $5,000 F Bank (Savings) $3,000 F Ride-on lawn mower $3,000 F Moneys retained by Father at separation – added back $24,000 F First State Super $94,258 Minus payment to the mother -$99,955 Total $514,303
The parties have omitted from the balance sheet much of their personalty. The mother seeks the return of some items that remain at the I Town property and the father agrees to that return. This issue is difficult for the Court to deal with, without concessions about the items in question being at the property. The parties indicated that they would settle the terms of an appropriate order. Despite the issue being pursued with their solicitors, no minute of agreed orders has been provided. I will make no orders in relation to personalty at the I Town property.
Conclusion under Section 90SM
This was a relationship that spanned six years and very significant contributions were made by each of the parties. They acquired substantial assets and provided for themselves and their baby son, the child. The father made the overwhelming financial contribution and the mother had virtually sole care of the child. The father’s contributions were much greater than those of the mother but an adjustment in her favour is warranted particularly because of the non contribution considerations in paragraphs s 90SM(4)(e). In my view the orders proposed above will reflect a just and equitable division of their property.
I certify that the preceding two hundred and eighteen (218) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 1 June 2017.
Associate:
Date: 1 June 2017
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