Richards & Young (No. 2)

FAMILY COURT OF AUSTRALIA

RICHARDS & YOUNG (NO. 2)

[2009] FamCA 75

FAMILY LAW – CHILDREN – whether it is in the best interests of the children that there be unsupervised periods of time with a parent within strict terms and conditions – injunctions – publications order

FAMILY LAW – PROPERTY – global assessment of contributions – relevant s 75(2) matters – consideration of just and equitable order

Family Law Act 1975 (Cth ) ss 60CA; 65AA, 60CC(2), 60CC(3), 60B, 60B(2), 60CC(1), 60CC(5), 61DA, 61DA(2), 61DA(4), 60CA, 75(2), 79(2), 79(4)

Norbis v Norbis(1986) 161CLR 513

APPLICANT:

Mr Richards

RESPONDENT:

Ms Young

FILE NUMBER:

BRF

3190

2005

DATE DELIVERED:

4 February 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Honourable Justice Rose

HEARING DATE:

2-3 February 2009

REPRESENTATION

APPLICANT:

No appearance

COUNSEL FOR THE RESPONDENT:

G Waterman

SOLICITOR FOR THE RESPONDENT:

Delaney and Delaney

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

J Lloyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

K Beckhouse

Orders

That the final parenting orders made 3 November 2006 are discharged save and except for Order 1.
That the three children of the parties K born … September 1996, A born … March 1998 and J born … November 1999 (“the children”) live with the mother AND that the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.
That the father may spend time with the children as follows:
During school term
(a)Each alternate weekend from 6.30 pm Friday until 5 pm Sunday, the father to collect the children from the Centacare Contact Centre (‘Centacare Contact Centre’) at the commencement of his time and to return the children to the mother at Centacare Contact Centre at the conclusion of his time, commencing Friday 13 February 2009, and that the sequence of alternate weekends shall commence on the first Friday of each school term.
(b)On Fathers Day from 9am until 5pm and the father shall collect the children from the Centacare Contact Centre and return them to the mother at that place at the conclusion of that time or as otherwise agreed between them.
(c)For such alternative or other periods as the parties may agree upon from time to time.
During school holidays following the conclusion of each school term
(d)For the first half of the school holiday periods in each odd numbered year and the second half of such periods in each even numbered year and the father shall collect the children from the Centacare Contact Centre at 10am on the first full day of the period that the children are to spend with him and he shall return them to the mother at the Centacare Contact Centre by 6pm on the last day provided that in relation to the period of time that they spent with him in the second half of the school holiday periods such period shall conclude at 6pm on the last Saturday of the relevant school holidays.
(e)That order 3(a) is suspended for the whole of each school holiday period including that portion which is not spent by the children in the care of the father.
(f)For such alternative or other periods as the parties may agree upon from time to time.
That the Father is restrained from spending time with the children other than at his residence and/or within a 25 kilometre radius of his residence unless the Father proposes spending time with the children at an alternative venue and he records this proposal in the Communication Book twenty-eight (28) days in advance with the following details and the Mother provides her written consent in the Communication Book to the proposal:
(a)The address at which the Father proposes to spend time with the children;
(b)The other people who will be in the company of the children at that address;
(c)The travel itinerary for the children including mode of transport, departure and arrival details.
That the father may communicate with the children on each of their birthdays between 7pm and 7:30pm and for that purpose the mother shall initiate the call to the father’s land-line telephone number or as otherwise agreed between the parties.
(a) That the father is restrained from attending the children's school or extracurricular activities at any time other than on those occasions when the children are with him in accordance with these orders.
(b) The mother may provide the father with details of the children’s school, sporting and extra-curricula activities to take place when the children are with him, such details to be included in the communication book by her 14 days in advance. The father shall ensure the children attend such school, sporting and extra-curricula activities as identified by the mother in the communication book.
(c) The father is restrained from interfering with the children’s participation in such activities.
The mother and the father shall forthwith contact the Centacare Contact Centre, and take all steps to arrange for changeovers to take place at that Centre and in the event that Centacare Contact Centre cannot facilitate handovers due to the closure of the Centre’s services during school and public holiday periods or at any other time handover will occur firstly at another Contact Centre nominated by the Mother which can accommodate the handover or otherwise at the N Police Station.
The father shall bear all costs associated with transporting the children in relation to his time with him.
The parties shall equally meet all costs associated with changeovers taking place at Centacare Contact Centre or any other contact centre.
That the father shall ensure that the mother is able to communicate daily by telephone with the children during all periods that they are in his care and that such communication does occur.
That order 3(a) is suspended for the whole of the weekend during which Mothers Day falls.
That a communication book be used by the parties to facilitate communication in relation to all matters related to the implementation of these orders.
That in the event of the children or any of them suffering from a serious injury or illness then the parent who has the care of those children or child shall inform the other parent as soon as possible of the details of such injury or illness and the name, address and telephone number of the relevant hospital or medical practitioner.
That the father is restrained from obtaining information, results and reports from the children's school, medical practitioners and other professionals who treat, consult with or interview the children unless otherwise agreed upon in writing.
That the father is restrained from entering the suburb in which the mother resides unless otherwise agreed between the parties in writing.
That the father is restrained from criticising, denigrating, demeaning or belittling, or ridiculing the mother or any member of her family or household in the presence of or hearing of the children and he shall remove the children from the presence of persons who are doing so.
The father is restrained from discussing with the children:
(a) These proceedings or any matter arising out of these proceedings including matters contained in affidavits or expert reports and
(b) The children’s wishes in terms of which parent they should live with or the amount of time they should spend with the other parent or the place or area in which the father resides or proposes to reside.
That the father is restrained from removing and / or causing or allowing the children, K, born … September 1996, A born … March 1998 and J born … November 1999 to be removed from the Commonwealth of Australia.
That the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration is requested to take all steps to immediately place the children’s names on the airport watch list, also known as the PACE alert system, at all points of arrival and departure in the Commonwealth of Australia.
That until further order a recovery order shall issue and lie in the registry subject to Order 22, authorising and directing the Marshall, all officers of the Australian Federal Police and all officers of the Police Force of all States and Territories of the Commonwealth of Australia, if necessary by force, to:
(a) Stop and search any vehicle, vessel or aircraft and search and premises or place for the purpose of finding the child/ren;
(b) Recover and take possession of the child/ren;
(c) To deliver the child/ren to the mother Ms Young.
That in the event of the father failing to comply with any order made this day then all orders which make provision for him to spend periods of time and/or communicate with the children or any of them are suspended unless otherwise agreed between the parties in writing or as otherwise ordered.
That in the event of the father failing to return the children or any of them to the mother at Centacare Contact Centre, pursuant to the Orders made this day or as otherwise agreed between the parties in writing, the mother is granted liberty to apply for urgent orders exparte.
That the Independent Children’s Lawyer explain to the children the effect of the Orders made this day and the substance of the reasons for judgment and the mother shall do all things necessary to ensure that the children are available for an interview with the Independent Children’s Lawyer for that purpose as soon as possible.

Property Settlement Orders

That Delaney and Delaney Solicitors Brisbane shall forthwith pay to the mother all money held in trust by them for the parties being the balance of the net proceeds of sale of the properties known as Z property and S property together with interest accrued thereon.
Declare that subject to the order made this day each of the parties is the sole beneficial owner of all items of personalty of whatsoever kind including but not limited to superannuation entitlements which are in his or her possession or control respectively.

General

That the mother and the Independent Children’s Lawyer may each publish a copy of the Orders made this day to the principal of all schools attended by the children and to the manager or supervisor or other staff at Centacare Contact Centre; any other contact centre and the police.
That the application for costs made by the Independent Children’s Lawyer is dismissed.
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the active pending cases list.

Notation
A.That the order for sole parental responsibility for the major long term issues in relation to the children made 3 November 2006 is a current order and remains binding upon the parties.

IT IS NOTED that publication of this judgment under the pseudonym Richards & Young is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: BRF 3190 of 2005

MR RICHARDS

Applicant

And

MS YOUNG

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings orders for property settlement and parenting are sought by each of the parties.
The applicant, who is the father in the proceedings, seeks orders that the three children of the parties live with him and that there be periods of what is described as “contact” with the mother.
The orders so sought by him contemplate that the children would live with him in the Blue Mountain region.
The mother seeks orders that the children live with her and that there be unsupervised periods of time, on strict terms and conditions, which the father may spend with the three children.
Each of the parties seeks orders for property settlement.
The quantum of property available for distribution between the parties is set out in Exhibit 7. The amount involved is modest, relatively speaking.
At the continuation of the hearing before me on 2 February 2009 the father, who was unrepresented, made an application that the continued hearing of the proceedings be adjourned for a period of approximately five months. I heard submissions in relation to his application.
The application was dismissed. Ex tempore Reasons for Judgment were given.
I then offered the father the opportunity to consider whether or not he should seek an adjournment of the proceedings until 10.00am the following morning. That issue was raised by me with him in the middle or late in the first half of the day on 2 February 2009.
He declined that opportunity and reiterated that he would not be in a position to represent himself, given his lack of legal expertise and the time that he would need to be properly prepared.
In that regard, I had not lost sight of the fact that these proceedings were fixed for continuation of the hearing some four months prior to 2 February 2009, namely, on 23 September 2008.
This matter has an unfortunate and intensive history of proceedings, principally in relation to parenting orders, both in the Brisbane Registry and the Sydney Registry of the Court.
Aspects of those proceedings, to which I will subsequently refer, were distressing especially to the mother and, perhaps indirectly, to the children. That was against a background where the father absconded with the three children for six weeks on or about 18 March 2007, taking them with him to what he euphemistically described as “a holiday” in Tasmania. Ultimately, a police search was carried out and the children found in Tasmania.
Not content with the obvious disruption and stress created by his actions on that day, the father also absconded with the three children for a day in May 2007 when they were found by the police.
Given those events, and the history of litigation between the parties and bearing in mind that it could only be in the best interests of the children for the tension associated with ongoing litigation to be concluded as soon as possible, I decided to proceed with the hearing, notwithstanding the father’s further protestations of the need to have an additional five months to be prepared for the continuation of the hearing, otherwise which had been set down for the week commencing 2 February 2009.

Historical background

The parties cohabited for a period of approximately 11 years, which commenced in or about 1994.
They married in July 1996.
They have lived separate and apart from each other on a final basis since 22 September 2005.
The marriage was dissolved by divorce granted in February 2007.
The father is 61 years of age. He describes his occupation as a person who carries out maintenance. He is otherwise unemployed, so far as I am aware.
The mother is 52 years of age. The mother is a journalist.
The father lives in rented premises in THE BLUE MOUNTAINS.
The mother lives in premises in N with the three children.
The three children are K, 12 years of age having been born in September 1996, A, 10 years of age having been born in March 1998 and J, 9 years of age having been born in November 1999 (who I will refer to collectively as “the children”).
The children have been in the primary care of the mother since the parties separated. There have been periods of time that they have been in the care of the father, to which I will subsequently refer.

Previous court orders

Further historical background, about which there is no controversy, are the following orders that have been made in both Local Courts as well as this Court.
On 26 October 2005 parenting proceedings that had been instituted in the Local Court were transferred to the Brisbane Registry of the Family Court of Australia. Interim parenting orders were made.
On 7 December 2005 a Registrar made directions.
On 21 December 2005 interim parenting orders were made, directions were also made.
On 17 January 2006 directions were made.
On 7 February 2006 interim property settlement orders were made by consent; directions were made.
On 21 February 2006, in the Queensland Magistrates Court, a domestic violence order against the father made for the protection of the mother for a term of 12 months.
On 13 March 2006 directions were made.
On 5 May 2006 directions were made.
On 10 July 2006 interim parenting orders were made by consent; directions were made.
On 17 July 2006 directions were made.
On 20 July 2006 Coleman J made interim parenting orders; directions were made.
On 7 September 2006 Coleman J made further directions.
For the period 25 September 2006 to 29 September 2006, the hearing of parenting applications made by each of the parties proceeded to conclusion before Coleman J.
On 3 November 2006 Coleman J made final parenting orders (which I will refer to as “the final orders”).
On 16 February 2007 Coleman J made orders as to costs and directions in relation to the pending property settlement proceedings.
On 20 March 2007 Smith JR made interlocutory orders and orders by way of location and recovery
On 5 April 2007 Barry J made publication orders.
On 17 May 2007 Smith JR extended the period of the recovery order previously made; the independent children's lawyer was appointed.
On 17 May 2007 Bell J caused a warrant to issue for the arrest of the father; an injunction was granted, restraining him from coming within 800 metres of the residence of the children.
On 25 May 2007 Bell J suspended current parenting orders in favour of the father; directions were made.
On 20 July 2007 Bell J made interim property settlement orders.
On 3 October 2007 orders were made by consent which enabled the mother to relocate with the children to Sydney; the proceedings were then transferred for further hearing in the Sydney Registry; parenting orders were made which enabled the father to have supervised periods of time with the children.
On 5 November 2007 directions were made.
On 5 March 2008 I heard the first day of the substantive hearing, in accordance with the Less Adversarial Trial procedure; directions were made.
Notations were also made in relation to the parties utilisation of the communication book and with respect to further periods of time that might be spent by the father with the children on a supervised basis. The parties had engaged in counselling with a family consultant. A child and family psychiatrist was appointed as the single expert witness, for the purpose of preparing a report in relation to certain designated matters.
On 30 April 2008 parenting orders were varied which provided for, amongst other things, the father to spend supervised periods of time with the children on certain terms- an injunction was granted restraining the father from filming or recording the children, bringing the children into contact with a counsellor, therapist or medical practitioner except in an emergency, discussing the proceedings, encouraging the children to express a preference of where to live, removing the children from Sydney or wherever they may live; directions were made.
On 16 June 2008 I made further directions. In addition, an order was made appointing Dr L as the single expert witness, in place of the previous appointed single expert. Dr L was ordered to prepare a report in relation to the welfare of the children. Orders were made in relation to costs. Directions were made.
On 20 August 2008 directions were made in chambers.
On 28 August 2008 I made orders which enabled there to be further periods of time to be spent by the father with the children on an unsupervised basis. Those orders were made by consent.
The issues for determination on the subsequent hearing were noted, following consideration of the contents of Dr L’s report, which is Exhibit X, and after hearing submissions on behalf of the parties.
Those issues are:
“(a) The parental attitude of the parties;

(b)The capacity of the parties to provide for the physical, emotional and intellectual needs of the three children;

(c)The care of the three children by each of the parties since orders were made on 3 November 2006;

(d)Whether any of the parties has not complied with orders made on 3 November 2006 and any subsequent orders and, if so, the circumstances; and

(e)The proposals of each of the parties for the future care of the three children and the periods of time that the other party should spend and communicate with the three children.”

Directions were made in relation to affidavits.
On 23 September 2008 I made further directions in relation to the filing and service of affidavits. I fixed the hearing of the consolidated proceedings for five days commencing 10.00am 2 February 2009.
It was at that point, as earlier observed, that the parties were, in effect, given approximately four months within which to carry out all necessary preparation, to proceed with the hearing before me on 2 February 2009.
I granted liberty to apply to set aside or vary all or any of the directions made, upon seven days written notice being given.
I observe here that no such application was made by or on behalf of the mother and no application was made by or on behalf of the father.
The only application made by him subsequent to those orders was his application for an adjournment of the proceedings filed on 29 January 2009, which was approximately two working days prior to the commencement of the continuation of the hearing on 2 February 2009. That application had been dismissed by me on that day, as previously referred to.

Relevant Legal Principles Pursuant To The Family Law Act 1975 As Amended (“The Act”)

Section 60CA of the Act makes it clear that, in deciding whether or not a parenting order should be made in relation to a child:
“a court must regard the best interests of the child as the paramount consideration.”[1]
[1] Section 60CA
That provision is re-emphasised in section 65AA.
For the purpose of determining what is in a child's best interests, I am required to consider the matters in section 60CC(2) and (3). In the course of doing so, I also have to consider the matters in section 60B, which set out the objects of the provisions of Part VII of the Act in relation to children and the principles that underlie those objects.
In substance, they provide for the benefit to children of their parents having, amongst other things, a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child. The principles underlying those objects are set out in the provisions to the Act.
It is important to note, however, that section 60B(2) provides an important exception to the principles underlying the objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests”[2].
[2] Section 60B(2)
I am then required to evaluate all relevant issues and the facts in relation to the same, in order to reach a conclusion which is in the best interests of the three children, the subject of these proceedings. In carrying out my task, it is important to note that no presumption as to orders that should be made arises, nor does either party carry any particular onus for the purpose of the conduct of the proceedings.

Relevant matters pursuant to section 60CC

Section 60CC(1) makes it clear that, for the purpose of determining what is in a child's best interests, I am required to consider what are described as “primary considerations”, as well as additional considerations. The exception is found in section 60CC(5), where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
The primary considerations are:
“(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.”[3]
[3] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact, without which the conclusions which must be reached cannot be achieved.
That will involve findings in relation to one or more of the discrete relevant matters described as “additional considerations”. For example, findings in relation to the parental capacity of each of the parties to provide for the needs of the child are surely, in a given case, necessary factual findings for the purpose of reaching a conclusion regarding the benefit to the child of having a meaningful relationship with both parents.
Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3), to the extent to which they are relevant in these proceedings. The findings of fact will then be referred to by me in my conclusions, in respect of both primary considerations, for the purpose of the ultimate determination of the best interests of the children and the parenting orders that will be made.

The views expressed by the children

In relation to the views expressed by the children, there is evidence before me of the children expressing different views, so far as the time or the circumstances in which time might be spent by them with the father.
I should add at this point, in relation to this matter, as well as all other relevant matters to which I will refer, that the evidence before me is comprised of the parenting questionnaires, which are part of Exhibit 1, the affidavit evidence of the mother and the expert report of Dr L, being Exhibit X.
I accept Dr L’s evidence and find that the children love both parents and secondly, that they desire to remain living with the mother at N and nextly, to continue at their current school.
They also expressed the view of seeking increased contact with the father. In that regard I note that a consent order had been made on 28 August 2008, to which I have earlier referred, providing for unsupervised periods of time by the father with the children.

The nature of the relationship of the children with each of the parties and other persons

With regard to the nature of the relationship of the children with each of the parties and other persons, there is no issue that the children have a loving relationship with each other and with each of the parties.

The willingness and ability of the children’s parents to facilitate and encourage a close and continuing relationship between themselves and the other parent

So far as the willingness and ability of the children’s parents to facilitate and encourage a close and continuing relationship between themselves and the other parent, there are qualifications in that regard so far as each party is concerned.
The mother has shown, by orders that she has consented to including subsequent to the no doubt distressing episodes of the father’s absconding with the children to which I have earlier referred, that she has been willing to facilitate and encourage a continuing relationship between the children and the father.
Not surprisingly, that willingness has been expressed on a qualified basis. That qualification, at times, was in circumstances whereby the time to be spent should be supervised, particularly after the distressing events of absconding with children to which I have referred and at other times, on conditions that circumscribe the behaviour or possible behaviour of the father on the relevant occasions.
Notwithstanding the continuation of these proceedings and breaches by the father of various orders that have been made from time to time, the mother was prepared and did consent to periods of time being spent by the father with the children on an interim basis and unsupervised as demonstrated by the orders made on 28 August 2008.
Consequently, I find that the mother has demonstrated both a willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father.
So far as the father is concerned, he professes to be and to have been willing for the children to have and continue to have a close and continuing relationship between themselves and the mother.
As with many of the father’s representations in the proceedings the true test of them is what has happened in reality.
The reality has been that the father has absconded with the children, hardly the actions of someone who has been willing to facilitate and encourage a relationship between them and the mother. He has done so in circumstances whereby it was a unilateral removal, either from school or from near the home that the mother and the children were then occupying. He did so without any subsequent communication with the mother. His actions can only be regarded as being despicable and quite the antithesis of any consideration of willingness and ability to facilitate a close and continuing relationship between the children and the father.
The father, in addition, has taken advantage of the ages of the children, their emotional vulnerability and no doubt the love that they otherwise have for him, to present an idolised picture of living in the Blue Mountains, or its surrounding area, a picture painted of entertainment and fun.
That has been done, on the evidence before me, not simply as a means of providing enjoyment for the children, but with a more subtle and disturbing purpose. That has been to disrupt the relationship between the children and the mother, and to turn their minds against living with her in N in Sydney, as opposed to living with the father in the Blue Mountains.
Unfortunately, the father has prevailed upon friends and acquaintances of his to join in his project, no doubt by presenting an incomplete picture of his actions during the past few years so far as the relationship with the mother is concerned and his actions, of the type to which I have referred, so far as the children are concerned.
Consequently, I find that the father has paid lip service, at best, to the willingness and ability to facilitate and encourage a close relationship between the children and the mother. I do not doubt that at times he has convinced himself that he is acting in a positive way in that regard. However, his actions during the last few years lead me to conclude that any willingness that he has shown has been a shallow one indeed.

The likely effect of any changes in the children’s circumstances, including the likely effect of any separation from either parent or any other child with whom the children have been living.

So far as the likely effect of any changes in the children’s circumstances, including the likely effect of any separation from either parent or child with whom the children have been living, it is not an issue in these proceedings that the children be separated.
I accept Dr L’s views, expressed in Exhibit X, that the children will benefit most from the stable home environment which has implicitly been provided by the mother, and that type of environment should be maintained, with regular contact with the other parent.
The father’s position of seeking to promote the Blue Mountains as the place at which the children are more likely to progress has been in the circumstances to which I have referred.
I also take into account that the mother has been the one who has provided the sole financial support for these children since the parties separated. The father does not make any proposals for future financial support for the children.
Consequently, I find that the stable home environment and the manner in which that has been created by the mother and is likely to be continued in the foreseeable future, is one which should be maintained and that any substantial change in that regard is likely to be to their detriment.

The practical difficulty and the expense of the children spending time with and communicating with a parent.

So far as the practical difficulty and the expense of the children spending time with and communicating with a parent is concerned, those matters obviously arise due to the father renting premises in the Blue Mountains and the mother living with the children in N, in Sydney’s suburbs.
A system has been in force for some time now whereby there has been a changeover of the care of the children from one parent to the other taking place at the contact centre since 28 August 2008.
That system, encompassing unsupervised periods of time that the children spend with the father, has not been the subject of any evidence of complaint by the mother.
In those circumstances I infer that it has worked reasonably well for the benefit of the children, notwithstanding the practical difficulty and expense which has arisen due to the considerable distances between the places of residence of the parties.

The capacity of the parties to provide for the needs of the children, including their emotional and intellectual needs

The matter of the capacity of the parties to provide for the needs of the children, including their emotional and intellectual needs, arises very much as substantial issue in the proceedings.
There is no issue that he mother has the capacity to provide for the physical needs of the children, both in terms of the home environment and financial support, notwithstanding the difficulties that that must have entailed due to the lack of financial support provided by the father.
There is no evidence before me of the mother being a parent who is other than able to sufficiently cater for the emotional and intellectual needs of the children.
The children have progressed very satisfactorily at school and in other activities.
That is largely a credit to the mother’s parenting skills. The mother had suffered from emotional stress. Dr L, in Exhibit X, concluded that the mother’s mental state is stable.
So far as the father is concerned, no issue arises in relation to the physical features of the accommodation that he has in the Blue Mountains.
In addition, an issue does not arise so far as his capacity to provide for the intellectual needs of the children.
However, so far as his capacity to provide for the emotional needs are concerned, there are some significant matters to take into account.
Dr L diagnosed the father as a person who has significant allusive thinking and has a manner which is highly idiosyncratic. He concluded that the father’s manner was suggestive of a pervasive development disorder, with narcissistic and obsessional behaviours.
Consequently, I have not only accepted Dr L’s unchallenged evidence, but I make findings accordingly.
The father’s erratic manner of caring for the children, highlighted by his absconding with them in the circumstances to which I have earlier referred, together with activities of his which required interim injunctions to be granted on 30 April 2008, make it clear that his capacity to provide for the emotional needs of the children in a satisfactory and constructive way must be heavily qualified.
Dr L also expressed the view that the father was not a “flight risk”, despite the background of absconding with the children, to which I have referred. Dr L formed that conclusion based on his interviews with the parties and the children in July 2008, as well as the documents identified by him in the first and second pages of Exhibit X.
Dr L did not have the benefit of the mother’s extensive primary Affidavit sworn on 19 January 2009. Whether that might have led Dr L to alter his opinion is a matter upon which I cannot speculate. Dr L was not required for cross-examination by either counsel for the independent children’s lawyer or the mother.
Whilst I accept Dr L’s opinion, based on the limited information that he had before him and his own interviews with the father, I am not prepared to make an unequivocal finding that the father is no longer a flight risk with the children.
I am of the view that, on the evidence before me, given the father’s erratic behaviour at times, the diagnosis that Dr L has made of the father, and the father’s unpredictable behaviour at times, as well as breaches of court orders, that he is a person who does represent instability of thought and there is a risk, albeit perhaps not great, of absconding with children.
That will be a matter which will be addressed by me in my conclusions and, ultimately, in the orders to be made.

Parental attitude of the parties

With regard to the parental attitude of the parties, the mother I find, has an exemplary parental attitude.
The mother has applied herself, to the full extent of her ability and her resources, in providing parenting for her three children at times under much difficulty, as well as sole financial support of them.
The children have progressed well, which is no doubt largely due to her efforts.
So far as the father is concerned, I find that he has a significantly qualified parental attitude. There is no issue that he loves the children and that they love him. The children obviously have a strong attachment to him, on the evidence before me.
However, parental attitude must encompass more than providing enjoyment and fun times for children. There is the less attractive and perhaps sobering obligation of providing financial support.
In that regard, the father has not provided one cent of child support for the children, or any of them, since the parties separated on 22 September 2005. The father in Exhibit 1, which includes questionnaires completed by him, gives his occupation as “teacher, sales professional, outdoor-educator, journalist, and musician”. Obviously, the father's dedication to the welfare of the children falls short when it comes to exercising one or more of these occupations to provide for their welfare in terms of child support.
In addition, his parental attitude can hardly be one described as positive in all respects, given the background of breaches of court orders and absconding with children, in the circumstances to which earlier reference has been made.

Conclusion

My conclusion in relation to this matter is as follows.
Each of the parties puts forward proposals in relation to parenting orders that should be made. Each of them seeks an order that the children live with him or her, as the case may be.
The father, in the orders sought by him in his Further Amended Application filed 1 November 2007, does not seek an order to discharge Order 1 made in the final orders, which provided for the mother to have sole parental responsibility of the children.
The mother, for her part, also does not seek to disturb that Order.
Consequently, the issue of parental responsibility, as opposed to with whom the children should live, or the periods of time that should be spent with a parent, is not an issue for determination in these proceedings.
Counsel for the independent children’s lawyer in tendering the minute of orders sought by the independent children’s lawyer, which became Exhibit 5, includes two orders of relevance in relation to this matter. Firstly, that all orders be discharged. Secondly, that there be an order for sole parental responsibility in favour of the mother.
It was submitted by counsel for the independent children’s lawyer that this was done on the basis of having, as it were, one document that encompassed all of the relevant orders that may be made or which should be continued.
So far as the mother is concerned, the mother sought such an order on a similar basis.
However, upon further reflection, I do not see the need to make an order again in the same terms that are current and which will remain operative. To embark upon a different approach would have meant a reconsideration of the presumption in section 61DA, whether or not one or both of the grounds in section 61DA (2) or (4) applies and then, regardless of the result, considering whether a parenting order should nonetheless be made in the best interests of the children consistent with section 60CA.
These various considerations are mandatory, due to the amendments to the Family Law Act which came into force on 1 July 2006.
However, the reality of the situation is that which I have already summarised, namely, that there is a current order for sole parental responsibility in favour of the mother, being Order 1 of the final orders and the father does not seek an order to set aside, vary or suspend that order.

As a result, I do not propose to consider further the submissions made by counsel for the independent children’s lawyer and the mother on the question of sole parental responsibility.
With regard to the orders sought by the parties in terms of with whom the children should live, the mother seeks a continuation of the status quo and that is that the children continue living with her in N where they have progressed well under her parenting in all respects.
The mother has been the primary carer of the children since the parties separated approximately three and a half years ago.
The mother seeks an order that the father have regular, unsupervised periods of time with the children both on alternate weekends and for half of school holiday periods as, implicitly, the interim orders to that effect, made on 28 August 2008, have been operating satisfactorily.
The mother seeks additional orders by way of injunctions to restrain the actions of the father, to which I will subsequently refer.
The evidence before me in relation to the proposals of the parties is totally that by the mother, with the exception of the parenting questionnaires which are Exhibit 1 and Exhibit X, the single expert’s report of Dr L.
That is because the matter proceeded before me on an undefended basis.
I have determined that orders will be made that the children live with the mother, that there be unsupervised periods of time with the father, which largely reflect the interim consent orders made on 28 August 2008 and that there be injunctions granted for the purpose of circumscribing actions of the father, as well as a publication order, so that the mother may publish copies of the orders to be made today to the principal of all schools attended by the children, as well as the staff of the relevant contact centre at which changeover of care of the children from one parent to the other takes place.
My reasons for making that determination reflected in all of those orders are as follows.
The mother has been the stable parent, with whom the children have not only lived in her primary care but with whom they have progressed in all respects.
The mother has been the primary carer of the children for approximately three and a half years.
In the intervening period, the mother has provided stable homes for the children, both in Queensland and in Sydney. The mother has been the sole provider of not only emotional support for the children on a consistent basis, with the exception of those periods of time that the children have spent in the care of the father, but has exclusively provided for their financial support.
The children have progressed well in the mother’s care.
The evidence demonstrates that they are making excellent progress at school and have been prominent in the extracurricular and other activities in which they have been engaged, no doubt, with the mother’s full support.
In addition, the mother has ensured that the children have spent periods of time with the father, consistent with orders that have been made and, at times, by consent. Against a background of the children disappearing with the father in 2007 and breaches of Court orders made by him, it is very much to the mother's credit that she was prepared to consent to interim parenting orders being made on 28 August 2008, whereby henceforth, the children were to spend unsupervised periods of time with the father.
I have made findings in relation to the views of the children to which I give weight. Those views being that they continue to live with the mother and attend their current schools, as well as spending periods of time with the father.
I have also given considerable weight to my findings as to the capacity of the mother to provide for the physical, emotional and intellectual needs of the children, in contrast to the lesser capacity of the father in those respects.
The mother has not sought to alienate the children in any way in terms of their relationship with the father.
In contrast, the father’s subtle actions in endeavouring to undermine the relationship that the children have with the mother are to be deplored.
The father, in addition, has not made any proposal on the evidence before me, including in his parenting questionnaire, being part of Exhibit 1, for future financial support for the children.
I am satisfied that the children will progress well in the mother’s care, providing a stable physical and emotional environment for them to do so. In that regard, I have also given considerable weight to the opinion expressed by Dr L in Exhibit X of the necessity for those factors to be present in the best interests of the children.
I will make orders as sought by the independent children’s lawyer, supported by the mother, in terms of changeover taking place at the relevant contact centre, and for the duration and frequency of those periods of time. Essentially, they reflect the orders that have been in operation since 28 August 2008 namely, alternate weekends and half of school holiday periods.
Due to the unreliability of communication between the parties and especially the erratic behaviour by the father in that regard, I consider it to be in the best interests of the children that the parties continue to use a communication book, which was the subject of one of the earlier interim parenting orders.
I will make an order that in the event of the children, or any of them, suffering from a serious injury or illness, the parent who has the care of those children, or child, shall inform the other parent as soon as possible of the relevant details.
There is evidence given by the mother, which I accept, of the father appearing uninvited in the immediate vicinity of the mother’s home as well as of the school. Needless to say the mother has concern, which I accept, as to whether the father’s behaviour in that regard represented the forerunner of yet another possible absconding by him with the children.
The father has not been backward in coming forward in constant criticisms of the mother, as is demonstrated in his parenting questionnaire. There is no evidence before me to demonstrate that the father is either capable of or has the willingness to restrain himself from engaging in such behaviour in the presence or hearing of the children, or any of them. Consequently, appropriate injunctions will be granted. Those injunctions will also extend to any discussion or comment by him about these proceedings or the evidence which has been adduced.
The mother has a concern, which is soundly based, as to whether the father, in one of his more erratic moods, may endeavour again to remove the children, or any of them, from the areas in which they either live with the mother or spend time with him. Appropriate injunctions will be made to ensure, so far as the Court is able to do so that those matters remain in control.
Consequently, the orders as sought, in terms of limiting the area within which the father may spend time with the children, subject to giving written notice by him to the mother of any alternative proposals, and her consent, will be made, as well as an order for the issue of a recovery order, which will lie in the Registry, subject to any further application.
So far as applications to deal with the breach of any order by the father, I will make an order which will enable the mother to do so on an ex parte basis.
I will also make an order that in the event of the father breaching or failing to comply with any of the orders made this day, relating to his care of the children or any injunction against him, will result in all orders being suspended which would otherwise enable him to spend time with or communicate with the children, unless otherwise agreed between the parties or as otherwise ordered.
The father should pay particular heed to that matter, given that it will not be a matter for him to influence the children to make statements which might justify him breaching orders. The simple fact will be, if he breaches an order, it will mean the suspension of any order by which he might otherwise spend time with the children or communicate with them.
Breaches of order by him may also lead to an application for him to be dealt with for contempt. There are serious penalties which might arise, should any contempt be established to the satisfaction of a court exercising jurisdiction.
I will make an order which enables the mother to publish these orders to the principals of all schools attended by the children, as well as the staff of contact centres. That will ensure that those responsible for the care of the children in those places will have the objective information of the obligations cast upon each of the parties, rather than perhaps a selective, or misleading, version that may be given to those persons, particularly by the father.
The orders I propose should ensure that the children have the benefit of a meaningful relationship with each of the parties: they will live with the wife in a stable and well maintained environment and also spend regular periods of unsupervised time with the father on terms and conditions for their benefit in their best interests.

Property settlement proceedings

I will now proceed to deal with the property settlement proceedings.
The relevant principles for determination of property settlement proceedings, pursuant to the Act, require a number of determinations to be made in what is often called a four stage process. The first of which is findings as to the current net property of the parties and any relevant financial resources. Secondly, the contributions made by each of the parties, both financially and in a non-financial sense, as well as the contribution in the role of homemaker and parent. Thirdly, findings of relevant matters which arise under section 75(2), which principally deal with the financial circumstances of each of the parties and fourthly, consideration of orders which are just and equitable.

Property of the parties

I find that the property of the parties is as set forth in Exhibit 7 as follows:

PROPERTY	OWNER-SHIP	ASSETS	LIABILITY
Proceeds of Sale
Proceeds of sale – [Z property]	Wife	$142,795.86
Proceeds of sale – [S property]	Wife	$28,140.66
Motor Vehicle
Toyota Corolla	Wife	$E1,000.00
Van	Husband	Unknown
Bank Accounts
Bank Account - St George BSB […] A/C […]	Wife	$E1,000.00
Bank Account - St George A/C […]	Husband	Unknown
Bank Account - St George A/C […]	Husband	Unknown
Bank Account - Commonwealth Bank A/C […]	Husband	Unknown
Bank Account - Woolworths Ezy Banking A/C […]	Husband	Unknown
Furniture
Furniture and Contents	Wife	$E1,000.00
Furniture and Contents (including hand bells, piano, electric keyboard, amps and speakers, computers, tools and equipment, kitchen equipment)	Husband	$9,350.00 (value given by Husband in previous Form 13 Financial Statement 5 June 2006)
Liabilities
Virgin Mastercard	Wife	$ 3,600.00
Capital Gains Tax (in accordance with estimate of 28 January 2009)	Joint	$5,483.00
Loan from D Young	Wife	$10,000.00
Loan from M Young	Wife	$10,000.00
Loan from G Young	Wife	$50,000.00
Superannuation
MEAA	Husband	$E7,113.00
Media Super	Wife	$754.00
Total	$E191,153.52	$E 79,083.00
Net Total	$E112,070.52

Contributions of the parties

With regard to the contributions of the parties, I find as follows.
The initial financial contributions of the mother included her equity in the S property, a motor vehicle, superannuation entitlements, and unstated funds in a bank account. I find that the father’s initial financial contributions were minimal, as set forth by him in his financial questionnaire, being part of Exhibit 1. I find that the mother made financial contributions reflecting the following.
The mother was the sole income-earner throughout the period of cohabitation of the parties through her own endeavours, albeit that the father was provided with income from time to time, under the auspices of the company utilised by the mother as the commercial vehicle for the business activities that she undertook.
The mother has been engaged in a series of occupations during the period of cohabitation.
I find that the income earned by the mother was applied by her for the purpose of meeting liabilities and living expenses of the parties.
The mother also used her financial resources for the purpose of acquisition of the former matrimonial home at Z. The mother met all outgoings in that regard. The mother also carried out renovation work to the former matrimonial home.
Subsequent to the separation of the parties, the mother has been the source of sole financial support for the children.
The mother has been employed from time to time in various capacities and has applied the income so earned by her for the benefit of herself and the children. In addition, the mother has made a contribution to real estate owned by her by meeting the outgoings which was generated by such real estate.
The father, for his part, has made a financial contribution represented by some assistance that he provided in relation to administration matters involving the company to which I have referred. He was not engaged in any employment, whether self-employed or otherwise.
The father received Centrelink disability benefits. On the evidence before me, those funds were applied by him for his own personal needs. The father, in his financial questionnaire, suggests that he met the expense of certain living expenses, such as household goods. The father does not state in the financial questionnaire, however, what the source was of the moneys that he utilised for that purpose. Given that he was not in paid employment, the answer can surely only have been from moneys generated by the mother, directly or indirectly, which was made available in part to him in order to carry out shopping as well as Centrelink payments.
The mother, in addition, has made a contribution to the welfare of the family in the role of homemaker and parent. I accept her evidence that she has attended to the children’s daily needs and upbringing at times with little or no assistance from the father due to mental health issues with which he has had to cope or otherwise because of absences from the matrimonial home.
Subsequent to the separation of the parties, the mother has been the sole carer of the children, save and except for those periods of time represented by some alternative weekends and at other times, periods of school holidays that the children have spent in the care of the father.
The mother’s contribution as homemaker was further burdened by the father’s absconding with the three children for the periods to which I have earlier referred in that, notwithstanding that they may have enjoyed what they perceived was a holiday, those periods represented a disruption to their lives and, inferentially, must have required some considerable parenting skills by the mother to have them re-established in a home environment of stability despite those events.
The mother has been the parent who provided the sole financial support of the children since they separated.
I do not accept the father’s elevated view of his occupational qualities or experience, given that whilst they read in an impressive way, there is no information given by him as to his income, nor any explanation by him as to why he has not utilised what he considers to be impressive qualifications in a range of areas to provide for financial support for the children, to whom he claims to be dedicated.
Indeed, on consideration of the father’s financial questionnaire I find it to be, in part, not only misleading but deliberately so. In that document, he refers to having, in March 2007, taken the children “on holiday to Tasmania for six weeks”. No mention is made by him of the police search which had to be carried out to find him with the children interstate, that is, in Tasmania, as opposed to where they should have been, namely, in Queensland, nor to his unilateral removal of them from their school.
In addition, the father does not refer at all to the events of 17 May 2007 when he inveigled the children to meet him in a park at 7.00am and then disappeared with them for a day until they were eventually found by the police. Not even the father is prepared to gloss over that event as being a “holiday”.
Consequently, I attach no weight to any of the matters of possible controversy or conflict in the evidence that are set out in the financial questionnaire completed by the father, and which is part of Exhibit 1, in which he attested to his understanding that the contents of the document may be relied upon by the Court.

Assessment of contributions

I find, by way of assessment of contributions, that the mother’s contributions should be assessed at 75 per cent of the current available property reflected in Exhibit 7. My reasons for doing so are as follows.
The mother’s initial financial contributions far exceeded those of the husband. The mother’s financial contributions during the course of cohabitation well exceeded those of the father. Her contribution as homemaker and parent was also greater than the father, particularly subsequent to the parties’ separation about three and a half years ago.
Taking a global view of the contributions of the parties, in accordance with the High Court’s judgment in Norbis[4]I have concluded that the contributions of the mother taken as a whole, by comparison to those of the father, greatly exceed contributions that he has made.
[4] Norbis v Norbis (1986) 161CLR 513

Relevant matters pursuant to section 75(2)

With regard to relevant matters pursuant to section 75(2) of the Act, I make the following findings.
The father is 61 years of age.
He claims to be engaged in maintenance.
He is otherwise unemployed, notwithstanding the testimonial that he gives to himself of the range of qualifications and experience that he says he has in a number of areas.
The mother is 52 years of age.
The mother is employed in the media.
The father’s physical health is good. His mental health has some qualifications to it, in view of the diagnosis provided by Dr L to which I have earlier referred.
The mother’s mental health is stable, notwithstanding a background of depression at times and severe stress brought about, if not solely then primarily, by the litigation and the actions of the father, in terms of breaches of court orders and absconding with children.
The mother is currently earning $938.00 gross per week in her position.
There is no evidence of the father's income. His occupation is that to which I have earlier referred.
The mother and the children are living in rented accommodation and the mother is paying rent at the rate of $500.00 per week.
I do not have evidence of any further aspect of the father’s financial circumstances, including liabilities and average weekly expenditure, as I do not have a Financial Statement sworn by him which is in evidence.
Since the parties separated the mother has had and will continue to have the primary care of the children. The children are still young; their ages are 12, 10 and nine, respectively.
Periods of time will be spent by the children in the care of the father, in accordance with the orders which I have foreshadowed.
Subsequent to the separation of the parties, the wife has borrowed approximately $60,000.00 from members of her family to meet living expenses and, no doubt, legal costs in these proceedings.
Each of the parties has received the benefit of interim property settlements, whereby each received part of the net proceeds of sale of the properties at S and Z, currently held in trust by the mother’s solicitors, Delaney & Delaney.
The father also holds various items of personalty, including furniture.

The mother will remain the source of sole financial support for the children.
There is no evidence of a child support assessment having been made by the Child Support Agency in relation to child support for which the father is liable, nor is there any evidence from him of his proposals, if any, to at last commence paying child support. Indeed his financial questionnaire, being part of Exhibit 1, is silent in that respect.

Assessment of relevant section 75(2) matters

In considering the relevant section 75(2) matters, I have concluded that, based on my findings as to the mother’s continued care of the three young children, her financial support for them for the future and her own modest financial position, leads me to conclude that there will be an adjustment in her favour, based on section 75(2) matters, of a further 25 per cent of the net property of the parties, as reflected in Exhibit 7.
I have reached that determination, given the absence of evidence from the father of relevant matters pursuant to section 75(2), other than that contained in his financial questionnaire, to which I do not attach any weight, for the reasons previously given by me.

Conclusion

By way of conclusion and in considering whether an order that the mother receive all of the funds held by her solicitors, as set out in Exhibit 7, amounting to approximately $112,000.00 having regard to my assessment of entitlements on the basis of contributions and section 75(2) matters, I have taken into account not only my findings in that regard but also the relatively modest amount of net property that is available.
In addition, I have taken into account that the father retains items of personalty, including furniture, albeit not having a great value.
I also take into account that the mother has incurred significant legal costs in these proceedings, which remain unpaid, as well as her ongoing contingent liability to Queensland Legal Aid.
The background to considering that all of those matters may represent, in the end, a just and equitable order is also in the context that the father chose not to continue to participate in the hearing, let alone to have filed and served further affidavit evidence, despite having been given four months to do so.
In those circumstances I have concluded that it is indeed just and equitable that an order be made that the mother receive all of the funds held by Delaney & Delaney Solicitors, as set forth in Exhibit 7, together with any interest that has accrued.

I certify that the preceding two hundred and eighteen (218) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate:

Date: 11 February 2009

[2009] FamCA 75

4 February 2009

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