RYVES & WANTWORTH

FAMILY COURT OF AUSTRALIA

RYVES & WANTWORTH

[2016] FamCA 594

FAMILY LAW – CHILDREN – Best Interests –With whom the child spends time – Where there is one child who is 11 years of age – Where there is a level of risk posed to the child by her maternal grandfather – Where the mother and the ICL ultimately agreed on proposed orders – Where the father sought orders that he spend four consecutive nights per fortnight with the child – Where the only issue for determination in relation to parenting was which days and nights the child should spend with the father – Where the father has a long history of mental health problems – Orders made to restrain the mother from allowing the child to be unsupervised in the presence of the maternal grandfather and from relocating until after the child completes year 10 – Where the restraints placed on the mother are appropriate to ensure that the child would not be at any unacceptable risk.

FAMILY LAW – PROPERTY –Where there is a modest property pool – Where the parties were married for 12 years – Where the mother made the overwhelming financial contributions – Where the parties agreed that their contributions to the welfare of the family including as homemakers and parents were equal – Where in the post-separation period the mother’s contributions have been far greater than those of the father – Where the Court is of the view that the contributions are 70 percent by the mother and 30 percent by the father – Where it is not appropriate to make any adjustment pursuant to s 75(2) matters – Superannuation splitting order.

FAMILY LAW – COSTS – Application by the ICL that each of the parties pay one half of its costs in the parenting proceedings – Where the mother has agreed she should be responsible for her share – Where it would not be in the meaning of s 117(2) of the Act to make a costs order against the father.

Family Law Act 1975 (Cth) – ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65AA, 65DAA, 75(2), 79, 90MT, 117(2)

Bevan & Bevan (2013) FLC 93-545
Goode and Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461
Stanford v Stanford (2012) FLC 93-518

APPLICANT:

Ms Ryves

RESPONDENT:

Mr Wantworth

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney Central Family Law

FILE NUMBER:

SYC

4861

2011

DATE DELIVERED:

30 June 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

4, 5, 6, 7 & 8 April 2016

REPRESENTATION

FOR THE APPLICANT:

Ms Ryves in person

FOR THE RESPONDENT:

Mr Wantworth in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Messner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Connor of Legal Aid NSW Sydney Central Family Law

Orders

PARENTING

The following parenting orders are made in relation to the child B (“the child”) born on … 2005.
All previous parenting orders are discharged.

Parental Responsibility

The mother and the father shall have equal shared parental responsibility for the child.

Live with

The child shall live with her mother.

School

Commencing in 2017 the child shall attend C School in Suburb D or such other school as agreed in writing between the parties.

Spend time

During the school terms the child shall spend time with her father as follows:
a. From after school Wednesday to before school Thursday each week;
b.Each alternate weekend commencing on 8 July 2016 from 6.30 pm on Friday to 6.00 pm Sunday;
c.To facilitate these orders the father shall collect and return the child from and to school on Wednesdays and Thursdays and otherwise collect and return her from and to her mother’s residence on Fridays and Sundays.
The father shall spend time with the child during school holidays as follows:
a.A maximum of seven nights (one week) of every New South Wales term school holidays with the parties to agree which week and in the absence of agreement, the first half;
b.When the child is with the father for the second half of the holidays the father shall return the child at 6.00 pm the night before the start of the school term;
c.During the Christmas holidays a maximum of 21 nights (three weeks) over the long Christmas New Year school holiday period as agreed but failing agreement the first half when Christmas is an odd numbered year and the second half when Christmas is an even numbered year, and the child shall spend every alternate Christmas Eve/Day with each parent.
The school holiday period shall be defined as commencing at the completion of the last day of the school term and concluding on the morning of the first day of the new school term.

Easter

The child shall spend time with her father for Easter in accordance with Jewish custom each alternate year commencing in 2017.

Telephone

The child shall have telephone communication with her father at 7.00 pm each Monday and Thursday and the mother shall ensure that the child makes the telephone calls.

Special days

Should Mother’s Day fall on a weekend when the father would ordinarily have the child’s care then the father shall make her available to the mother from 5.00 pm Saturday before Mother’s Day.
Should Father’s Day fall on a weekend when the mother would ordinarily have the child’s care then the mother shall make her available to the father from 5.00 pm Saturday before Father’s Day to 6.00 pm on Father’s Day.

Medical

The father shall authorise his treating psychiatrist Dr E, or such other psychiatrist that he is referred to, to contact the mother and advise her if he has any concerns about the stability of the father’s mental health including but not limited to any mood changes, sleeping difficulties, his making less rational decisions, or less rational statements, becoming overly preoccupied with the child’s welfare, exhibiting signs of depression, lethargy or erratic behaviour.
Each parent shall notify the other as soon as practicable of any serious illness, medical emergency or hospitalisation of the child including details of any medical practitioner, specialist or hospital attended and medication prescribed so that both parents may be fully involved in the child’s treatment and recovery.

Restraints

Each parent is restrained from denigrating the other in the presence or hearing of the child and they are to use their best endeavours to ensure that no other person does so.
The mother shall ensure that any time the child is in the company of Mr Ryves it is supervised by the mother or Mr F or such other person as agreed in writing between the parties, and the mother is restrained from permitting the child to be alone with Mr Ryves without supervision for any reason whatsoever.
Both parents are restrained from relocating the child’s residence out of the Sydney metropolitan area until she completes Year 10.

Courtesy

Each parent is to keep the other notified of their current address and telephone contact number and to provide the other parent with 7 days’ notice of any change.

Travel

The child’s passport shall remain in the mother’s care and that for future international travel events the passport be furnished to the father no later than one week before the departure dates. The father is to return the passport to the mother within 7 days of return to Australia. When international travel occurs an itinerary be provided to the non-travelling parent as early as possible detailing in which country the child will be and the dates thereof.
That 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

That the father and the mother forthwith instruct Messrs Harris Freidman solicitors to pay out the balance of the controlled money account in the following manner:
a. $5917 to the mother and
b. the balance to the father
That upon receipt of the above $5917 the mother shall forthwith pay this to Legal Aid New South Wales (being her outstanding liability for the costs of the ICL).
That the application by the ICL for payment by the father of part of its costs be dismissed.
That until these orders have been fully complied with the mother is restrained from dealing with her self-managed superannuation fund (“the fund”) other than in compliance with these orders and pending compliance with these orders the mother must not make or cause any transaction to take place in relation to this fund without the father’s prior written consent which must not be withheld unreasonably.
That pursuant to s 90MT(4) of the Act the Court allocates a base amount to the father in respect of his superannuation interest in the fund of $74 726.
That pursuant to s 90MT(1)(a) of the Act the father is entitled to be paid the base amount and the mother’s entitlement to her interest in the fund is correspondingly reduced.
That these orders bind the trustee of the fund and take effect from the operative time being 10 days from the date of these orders.
That the mother sign all documents and do all things necessary to cause the trustee of her fund to arrange roll-out of the base amount of $74 726 to a complying superannuation fund nominated by the father as soon as possible after the father provides the trustee with written notice of his nominated fund.
That the father forthwith do all things and sign all documents necessary to establish an interest in a complying superannuation fund and that he provide the trustee of the mother’s self-managed superannuation fund of details of his fund as soon as possible.
That pursuant to s 79 of the Act each party is declared the sole owner respectively of all other property and superannuation in their possession or control.
That all exhibits be released.
That each party has liberty to re-list these proceedings in relation only to implementation of these orders by arrangement with the Associate to Johnston J.
That these proceedings be removed from the list of active cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ryves & Wantworth has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4861 of 2011

Ms Ryves

Applicant

And

Mr Wantworth

Respondent

REASONS FOR JUDGMENT

These are final parenting and property proceedings. The parenting aspect relates to the child B who was born in 2005 and who is therefore 11 years of age. the child’s parents are Ms Ryves (“the mother”) and Mr Wantworth (“the father”). The child’s parents have been unable to agree about final parenting arrangements for the child nor have they been able to agree about a property settlement. They have asked this Court to determine these matters.

Applications

The orders sought by the mother at the commencement of the hearing were to the following effect:
Parenting
·That the parties have equal shared parental responsibility for the child;
·That the child live with the mother;
·That the mother be permitted to move to Brisbane with the child at an appropriate time;
·While living in Sydney:
(a)      The child attend C School Suburb D;
(b)      The child spend time with the father as follows:
-Each Wednesday from after school until 9.00 am the following day; and
-Each alternate weekend from 6.30 pm until 6.00 pm Sunday
-During school term one week (7 nights) such week to be agreed and in the absence of agreement, first half;
-If the child is with the father for the second half of such holidays the father return the child to her mother at 6.00 pm the evening before commencement of the school term;
-During the long Christmas / New Year school holiday period the father have three weeks (maximum 21 nights) and the child spend each alternate Christmas Eve / Day with each parent.
·When the child lives in Brisbane the child spend time with the father as follows:-
(a)      One half of all Queensland school holidays;
(b)Two weekends each Queensland school term from 6.30 pm Friday to 6.00 pm Sunday, if the father resides in Sydney or if the father resides in Brisbane each alternate weekend from 6.30 pm Friday to 6.00 pm Sunday;
(c)For Christmas holidays to be agreed; and
(d)Other times as agreed between the parties.
·Specified details for the child’s travel including notice by the father of his intention to spend time with the child;
·Certain orders about Father’s Day and Mother’s Day;
·The mother will pay costs of all travel by the child to Sydney and such to be taken into account for child support assessment;
·The father will meet the costs of his travel to and from Brisbane to spend time with the child;
·The father have a current mental health management plan in place including opinion by his treating psychiatrist about his current mental stability;
·Certain orders for telephone and electronic communication and other communication;
·Certain orders about school reports and communications, the child’s health, residential addresses, telephone numbers and email addresses of the parties;
·Various restraints against denigration and to ensure the parties’ communications are polite and respectful;
·Orders concerning the child’s passport;
Property
·That the father be given a 20/80 split of the property pool.
·During her final submissions Ms Ryves asked for orders which would reflect the following:
From the $24 700 in the controlled money account, the remaining $5917 of her one half share of the costs of the ICL would be paid, the father could pay the outstanding amount owing to his former solicitors (approximately $7300) and the balance could be paid to the father. The mother would retain her superannuation and her personal property identified above.
On the other hand, the orders sought by the father at the commencement of the hearing were to the following effect:
Parenting
·Parties have equal shared parental responsibility for the child;
·The parties are restrained from relocating the child’s residence more than 10 km from the Eastern Suburbs of Sydney;
·Unless otherwise agreed the child shall live with the father as follows:
(a)During school terms six consecutive nights per fortnight beginning on Tuesday at the conclusion of school and ending on the following Monday at the commencement of school but concluding at the commencement of school on Tuesday if the Monday is a Gazetted NSW long weekend;
(b) Orders about Father’s Day and Mother’s Day and Easter;
(c)For half of each school holiday period as agreed between the parties but failing agreement for the first half in odd numbered years and the second half in even numbered years (and if the number of nights is indivisible by two, the extra night to be with the mother)
·The child shall live with the mother at all other times;
·Orders concerning telephone communication;
·The child to attend C School, Suburb D unless otherwise agreed by the parties;
·Orders concerning extra curricular activities, ethics classes/religious instruction, school reports and communications, health, medical and hospital;
·Various restraints including that all contact between the child and her maternal step grandfather shall be supervised by an agreed or court appointed supervisor;
·The child shall not stay overnight in the same dwelling as the maternal step-grandfather;
·A non-denigration order;
·Orders about maintenance of current addresses and telephone numbers;
·Orders about the child’s passport and international travel;
·Certain enforcement and recovery orders; and
·That the father provide a written assurance to the Court that his treating psychiatrist Dr E will immediately inform the mother if at any time symptoms of hypomania or mania are detected by him in the father.
Property
·That the Mother pay to the father the sum of $121 250 plus 40 percent of (all her superannuation less $80 000);
·The mother to retain the furniture and chattels in her possession;

Annexure A

For completeness the form of orders sought by each of the parties is at Annexure A to these Reasons for Judgment.

Major Concession

Approximately mid-way through the hearing the mother indicated that in the best interests of the child, she had decided no longer to seek orders permitting her to relocate the child’s residence to Brisbane, at least not prior to the child completing Year 10. The child would then be 16 years of age. This major concession by the mother resulted in her and the ICL reaching agreement about a framework of parenting orders. These were as follows.
1.That the parties have equal shared parental responsibility for the child, [B], born … 2005.
2.That [the child] live with her mother.
3.Commencing 2017 the child shall attend [C School] in [Suburb D] or such other school as agreed in writing between the parties.
4.During the school terms [the child] shall spend time with her father as follows:
a.From after school Wednesday to before school Thursday each week;
b.Each alternate weekend from 6.30 pm on Friday to 6.00 pm Sunday;
c.That to facilitate these orders the father is to collect and deliver the child to and from school on Wednesdays and Thursdays and otherwise collect and return her to her mother’s residence on Fridays and Sundays.
5.The father spend time with [the child] during school holidays as follows:
a.A maximum of seven nights (one week) of every New South Wales term school holidays with the parties to agree which week and in the absence of agreement, the first half;
b.When [the child] is with the father for the second half of the holidays that the father returns the child at 6.00 pm the night before the start of the school term;
c.During the Christmas holidays the father has a maximum of 21 nights (three weeks) with [the child] over the long Christmas New Year school holiday period as agreed but failing agreement the first half when Christmas is an odd numbered year and the second half when Christmas is an even numbered year, and [the child] spends every alternate Christmas Eve/Day with each parent.
6.That the father authorise his treating psychiatrist [Dr E], or such other psychiatrist that he is referred to, to contact the mother and advise her if he has any concerns about the stability of the father’s mental health including but not limited to any mood changes, sleeping difficulties, his making less rational decisions, or less rational statements, becoming overly preoccupied with [the child’s] welfare, exhibiting signs of depression, lethargy or erratic behaviour.
7.That in the event that the mother spends time with her stepfather, [Mr Ryves], whenever [the child] is in her care she must ensure that any time [the child] is in the company of [Mr Ryves] it is supervised by the mother or [Mr F] or such other person as agreed in writing between the parties, and the mother is restrained from permitting [the child] to be alone with [Mr Ryves] without supervision for any reason whatsoever.
8.Both parents are restrained from re-locating [the child’s] residence out of Sydney metropolitan area until she completes Year 10.
Accordingly, by the time of final submissions, the only real issue for determination in the parenting proceedings was about which four days and nights it would be in the child’s best interests to spend time with her father.

The father agreed with many of the orders but continued to press for six consecutive nights per fortnight time spent with the child. But by late in the hearing the father changed his position and said that he would agree to four nights per fortnight, provided that these would be Wednesday, Thursday, Friday and Saturday. The mother indicated that in her view such orders would not be in the child’s best interest.

Background To Parenting

The background facts are as follows.
The mother, 49 years, and the father, 59 years, commenced their relationship in January 1997.
There is one child of the relationship as indicated above, namely B (“the child”) who was born in 2005 and is 11 years of age.
In approximately 1975, the mother’s step father, Mr Ryves (“Mr Ryves”) started to sexually abuse her. This continued to occur until the mother was approximately 16 years old.
In approximately 1987 the father spent a period of time in a psychiatric hospital in New Zealand.
In late 1997 the mother moved to Sydney for employment reasons.
From 1999 to 2002 the mother attended therapy with Mr G to deal with ongoing trauma as a result of sexual abuse by her step father, Mr Ryves during her childhood.
In 2000 the parents were married.
In early 2002 the father developed Graves’ disease and was unable to work.
In mid-2002, according to the mother, she and the father separated for six months.
In 2003 the mother refinanced the mortgage on the Suburb H property and increased the loan to $250 000.
In May 2004 the father travelled to Country I.
In 2005 the child was born.
On 4 March 2005 there was an incident where the police approached the father as he was walking down a street at night holding the child. The police had been alerted by a member of the public who was concerned that the father was not carrying the child in an appropriate way. The police then attended upon the home of the parties however left when the father became uncooperative.
The mother and father relocated to live with the mother’s parents in Brisbane for approximately 12 months when the child was two months old. The mother returned to work in early January 2006 for four days per week.
In early 2007 the mother returned to full time work.
In 2008 the child commenced attending pre-school for one to two days per week.
In approximately November 2008, the father had a psychotic episode and was admitted to hospital on an involuntary basis where he stayed for a number of weeks. The mother deposed that the father was unable to fully participate in the child’s care from November 2008 until approximately May 2010. She said that during this time they received assistance from various friends and family members and she took periods of leave from her work to provide care for the father and the child.
According to the mother, the parents separated under one roof on 4 November 2008. The father says that separation in fact occurred in June 2010 when he left the home.
In mid-2009 the father commenced attending upon Dr E, a psychiatrist.
In 2010 the child commenced school at J School.
In June 2010 the father left the home. The father asserts that this was when the parties separated. At this time he moved to Queensland to stay with a friend, and returned to Sydney from time to time to help care for the child when the mother had to work away from Sydney.
In August 2010 the father moved to K Town, in northern New South Wales. He deposed that while he lived there, the child stayed with him on approximately three occasions for a few nights at a time. He continued to travel to Sydney to care for the child while the mother travelled for work.
In April 2011 the father returned to live in Sydney. He was unable to secure permanent accommodation so he stayed with friends and in temporary boarding facilities. He said that during this time the child stayed with him overnight on occasions including for a period of one week.
On 23 October 2011 the parties became divorced.
In November 2011 the mother moved into a one-and-a-half bedroom rental property in Sydney.
In November 2011 the father was successful in obtaining accommodation through Housing NSW and moved into a two bedroom apartment at Suburb D. The father’s application for accommodation was obtained on a priority basis on account of his parenting responsibilities. The mother supported him in his application on that basis. The child continued to spend time with the father from time to time while the mother travelled for work or at the mother’s discretion.
In December 2011 the mother commenced a relationship with Mr F.
In early 2012 the father increased his attendance upon Dr E.
In mid-February 2012 the mother took on an increasing workload in her employment and at the mother’s request, the father agreed to provide additional assistance caring for the child.
In May 2012 the mother notified the father of her intention to move with the child to Brisbane.
From mid-September 2012 the father did not spend time with the child. He said this was a unilateral decision made by the mother.
On 17 October 2012 the mother filed an Initiating Application for Final Orders in the Federal Magistrates Court (as it then was).
On 21 November 2012 the parties entered into interim consent orders in relation to both parenting and property. The parenting orders provided for the parties to have equal shared parental responsibility for the child, that the child live with the mother and spend time with the father each alternate weekend and for half of the Christmas school holidays.
On 8 March 2013 orders were made by consent providing for the father, in addition to the time provided for by the 21 November 2012 orders, to spend time with the child each alternate Wednesday from after school until 7.30 pm, and, that he be permitted to contact the child each Monday and Thursday when the child would not be in his care.
On 26 March 2013, orders were made by consent requiring that all time that the child spends in the company of Mr Ryves be supervised by Mr F or by both the mother and Mr F, and, that the mother be restrained from permitting the child to sleep overnight in any premises occupied by Mr Ryves. The mother and Mr F signed undertakings to this effect. The orders also appointed Dr L as the Single Expert.
On 12 June 2013 Dr L released his first report.
On 13 June 2013 the parties entered into further consent orders, requiring that each party be restrained from permitting the child to come into contact with Mr Ryves pending further interim hearing of the matter. The parties also agreed that the father would spend time with the child for a period of one week from 28 June to 5 July 2013; from 31 August to 1 September 2013; and from 20 to 27 September 2013.
In July 2013 the mother lost her job when her employer closed its Sydney office.
In August 2013 the mother started a 12 month contract of employment. She has worked on contract with this organisation since then.
On 8 August 2013 the father’s previous legal representatives filed an Application in a Case seeking that their outstanding legal costs be paid from the property pool.
On 23 August 2013 the parties came before Judge Monahan for an interim hearing regarding the issue of whether the Court should continue the injunction restraining the mother from bringing the child into contact with Mr Ryves. Pending the delivery of judgment, Monahan J made orders to continue the orders made on 13 June 2013 in relation to Mr Ryves. Also on this day, the parties entered into consent orders, putting in place a new arrangement for the father’s time spent with the child. The orders provided that the child spend time with the father in a fortnightly cycle.
On 9 September 2013 orders were made by Judge Monahan that the proceedings be transferred to the Sydney Registry of this Court subject to delivery of the interim judgment.
On 15 October 2013 Judge Monahan delivered the interim judgment of 23 August 2013 interim hearing. His Honour ordered that all time that the child spends in the company of Mr Ryves be supervised by Mr F, or by the mother and Mr F and that the mother be restrained from permitting the child to sleep overnight in any premises occupied by Mr Ryves. The mother and Mr F were required to enter into undertakings with respect to their compliance with the Orders.
On 12 March 2014 orders were made by Justice Aldridge to grant leave to the solicitors Clinch Long Letherbarrow Pty Limited to intervene in these proceedings in respect of the father’s unpaid solicitors’ fees. The mother and father were restrained from dealing with funds held on their behalf in a controlled monies account without written notice.
On 22 April 2014 orders were made by Justice Johnston on an undefended basis allowing the father to spend time with the child from 23 April 2014 until 29 April 2014, and requiring the mother to deliver the child to his residence.
On 21 May 2014 the mother informed the Court that in view of the Court’s concern to involve the Department of Family and Community Services in these proceedings, she would no longer press her application for orders permitting her to relocate the child’s residence to Queensland. This was reflected by way of a notation on this day. Also on this day the parties agreed to the child spending time with the father from 27 June to 4 July 2014.
On 14 October 2015 the proceedings were listed for hearing over four days commencing 7 April 2015.
In November 2014, the mother’s employment contract was extended for a further 12 months.
In February 2015 the father moved into accommodation in Suburb M obtained through Bridge Housing. He expects this accommodation to be permanent.
On 23 February 2015, the hearing listed for 7 April 2015 was vacated and the parties agreed to withdraw $6600 from the controlled monies account to fund an updated report in relation to the child by Dr L. It was also ordered that the sum of $25 000 be paid to the intervener, Clinch Long Letherbarrow Pty Limited from the funds held on behalf of the parties by Harris Freidman in a controlled monies account.
On 13 April 2015 the parties were ordered to release a further amount of $2500 of the funds held in the controlled monies account to Clinch Long Letherbarrow Pty Limited, and, that the balance of the monies owed to them be paid from any property which might be found to be that of the father by way of substantive determination or resolution of the property proceedings. Further orders were made by consent that Dr L prepare an updating report in relation to.
On 20 July 2015 orders were made by consent that the child be permitted to travel overseas with the mother from 13 September 2015 until 10 October 2015, and that the child spend various periods of make-up time with the father.
The father deposed that he contacted the mother by way of text message on 25 August 2015 with a view to putting arrangements in place for the 2015/2017 December/January school holidays. The father said that he did not receive an immediate response to his text message and booked flights for himself and the child to New Zealand.
In September 2015 the mother’s contract was extended to the end of June 2016.
In September/October 2015 the mother, Mr F and the child travelled to Europe.
On 26 November 2015 orders were made by consent providing for the child to spend the first half of the school holidays with the father, during which time she would travel to New Zealand with the father from 15 – 30 December 2015, and, that she would travel to Brisbane with the mother and remain in the care of the mother for the second half of the school holidays.
On 18 March 2016 the report by Dr L dated 14 March 2016 was released to the parties.
The child is currently in year six at J School and will commence High School at C School, Suburb D in 2017. The maternal grandparents have agreed to pay for the school fees.

Credit

The mother

Initially the mother was somewhat talkative and insistent about getting her point across including talking over me. But as she settled into the duty of being a witness she was generally forthright and responsive.
I regard the mother to be a witness of the truth.

Mr F

Mr F is Ms Ryves’ partner. They have been in a relationship for approximately 4½ years.
Mr F was responsive and forthcoming in his answers.
Despite at times showing some frustration with, and disrespect for, the father, Mr F was able to be quite cooperative in his evidence. He made concessions, usually offering a context or explanation where some criticism of him was suggested.
I accept Mr F as a witness of the truth.

Mrs Ryves

Mrs Ryves is the mother’s mother. She was born in Europe and is approximately 85 years of age. She was an impressive witness.
Despite having a slight weakness in her hearing, she was responsive and forthcoming in her answers to questions. She was quite articulate and precise. And she made concessions.
I have no hesitation in accepting her as a witness of the truth.

Mr Ryves

Mr Ryves was a poor witness. It must be borne in mind that English is his second language. He was born in Europe. But even taking this into account, his performance in the witness stand left me with many concerns.
He was unresponsive to questions on many occasions, saying that he could not remember and generally not very forthcoming in his answers.
There were several inconsistencies between the evidence of this witness and that of other witnesses. For instance he was asked whether, when the mother told his wife about the abuse, did his wife threaten to separate from him and return to Europe and he replied that he did not think so. Yet during her cross-examination Mrs Ryves said that she did this. I have much more confidence in her evidence than in that of Mr Ryves.
There were numerous concerns I had about Mr Ryves’ evidence. But in light of the fact that the mother no longer proposes to take the child to live adjacent to Mr Ryves it is unnecessary to spell these out further.

Dr N

Dr N gave his evidence in a professional manner.

The father

The father found it difficult to be succinct in his answers. He was quite particular in most of his answers and went to some lengths to provide detailed responses often which included material which I think he regarded as favourable to his own case.
This is not to say, however, that I have any sense that the father was not being truthful in his evidence. He made concessions readily, including in relation to some matters which would probably have caused embarrassment.
I regard the father as being a witness of the truth.

Dr E and Dr L

Dr E is the father’s treating psychiatrist and Dr L is the single expert.
Both gave their evidence in a professional manner and I have no hesitation in accepting their opinions.

The Father’s Mental Health

It is common ground that the father has a long history of mental health problems.
He was hospitalised in New Zealand in 1987 for a period of approximately 6-7 months.
The father had a further period of hospitalisation at O Hospital, Sydney in November 2008 for approximately three weeks.
Dr E has been the father’s treating psychiatrist now for some years. He reported that the father suffered a severe head injury at 20 years of age during a sports match. This required neurosurgical intervention. The father has some frontal lobe atrophy. Dr E thought that the father’s mental health disturbance could not properly be diagnosed as a Bi-polar Disorder because the father was hyperthyroid at the time of his “manic” episode in November 2008. Dr E said that the father’s frontal lobe syndrome more affects his level of activity in that he is not motivated and has been lethargic.
On the other hand, Dr L said that the father had a history of having been diagnosed with Bi-polar Disorder as a young adult. Dr L thought that the father might have a Bi-polar Disorder.
Both psychiatrists thought the father can have periods of disinhibition. There appears to be some evidence of this.
There have been a number of instances in which members of the public have made complaints to the police about certain alleged behaviours of the father. These occurred on 12 February 2005 at Suburb P, 4 March 2005 at Suburb Q, 27 January 2011 at R Town and 23 December 2011 at Suburb S. These incidents appear to have involved complaints about unusual, abusive or harassing behaviour by the father, or a combination of such. These matters were the subject of quite detailed cross-examination by counsel for the ICL and by the mother.
It is unnecessary to set out the details because some of the allegations were put into issue by the father and I would not be able to make precise findings about all of them. In addition, the father conceded that in respect of at least some of the alleged behaviour, this would have been a manifestation of his mental illness at the time.
What is relevant is that if the child had been in the care of her father, as she was on the occasion of 4 March 2005, the behaviours would have been distressing for her and possibly dangerous. The incident on 4 March 2005 is particularly worrying because it is clear from the police report and the mother’s evidence that the father was very irrational and aggressive on that occasion.
The father said that he could not remember those matters occurring. It demonstrates the possibility of great lack of control by the father for his behaviour and lack of insight. The father acknowledged that he had some “blind spots” but said these were not deliberate. I did not interpret this as the father minimising the seriousness of these behaviours. He said that there have been no further such incidents and I accept this. It is probably consistent with what appears to be improvement in the management of his mental health condition.

Parenting – The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.

Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In this case the parents have agreed that they will have equal shared parental responsibility for the child. I propose to make such an order.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286 and the High Court case of MRR v GR (2010) 240 CLR 461.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, in this case the parents shall have equal shared parental responsibility for the child. Accordingly, the Court must first consider making an order for the child to spend equal time with each parent if this will be in her best interests and be reasonably practicable. At an earlier time, the father appeared to have been seeking orders for the child to reside with each of her parents in an equal time arrangement. But, as indicated above, the father made it clear during the course of his submissions that he now proposes that the child spend time with him four nights per fortnight.
In my view what the father proposes would amount to substantial and significant time as referred to in s 65DAA(3) of the Act. The court is required to consider whether the child spending substantial and significant time with each of their parents would be in her best interests and would be reasonably practicable.
The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act. In effect this means that a child will be taken to spend substantial and significant time with a parent only if:
·The time the child spends with the parent includes both:
-days that fall on weekends and holidays;
-days that do not fall on weekends or holidays; and
·The time the child spends with the parent allows the parent to be involved in:
-the child’s daily routine; and
-occasions and events that are of particular significance to the child; and
·The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In the present case, what each of the parents propose includes days that fall on weekends and holidays as well as days that do not fall on such days. Each proposal allows both parents to be involved in the child’s daily routine including making her ready for school, taking her to school, communicating with her teachers and parents of her friends, helping the child with her homework and extra curricular activities as well as the host of other matters involved in her life including the matters available from the rich different cultural backgrounds of each of her parents.
Sub-section 65DAA(5) requires consideration to be given to whether it is reasonably practicable for the child to spend substantial and significant time with each of her parents. Now that the mother no longer proposes to relocate the child’s residence to Queensland, she would continue to reside within the Sydney Metropolitan area as would the father. So there would not be any geographical difficulty.
And as I have said, each parent has demonstrated a capacity to support the child’s relationship with the other. They have managed a parenting arrangement involving her having substantial and significant time with each of them. In this regard the mother was able to facilitate time spent between the child and her father following separation. And this was then against a recent background of the father having suffered a psychosis. By and large, the parents have been able to maintain a reasonable level of communication about the child’s parenting needs with one another. As was submitted by counsel for the ICL, the father can, at times, be somewhat difficult to communicate with. Dr E, his treating psychiatrist, explained that the father has a somewhat “circumstantial” style of communicating by which I understood him to mean that the father could tend to communicate in a somewhat circumlocutory manner as a consequence of his brain injury. When this difficulty has manifested itself the mother appears to have been able to accommodate it in her necessary dealings with the father.
In all these circumstances, in my view, what each of the parents proposes would be reasonably practicable within the meaning of the sub-section.

Best Interests

Section 60CC Considerations

How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Sub-section 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.
The child is fortunate to have a meaningful relationship with each of her parents. And the parents are to be commended for the support each has given to the child in having appropriate opportunity to develop her relationship with the other. This is not to say that there have not been some frustrations and difficulties. But by and large the parents have been mutually supportive of the child’s relationship with the other.
Dr L said that in his opinion the child would benefit from maintaining meaningful relationships with her mother and with her father. He said that children who continue to have close relationships with their parents following divorce are less likely to experience significant emotional, behavioural, educational and relationship difficulties.
In my view, what each of the parents propose would provide appropriate opportunity for the child to continue to have a meaningful relationship with each of them in the future.
The second of the primary considerations namely, the protective consideration, is highly relevant in this case. I have referred above to the concerns expressed by the father and the ICL that Mr Ryves poses a level of risk for the child. But the risk in this regard became substantially diminished upon the mother deciding not to press her application for permission to change the child’s address to reside next door to Mr Ryves and the restraints she agreed to subject herself to which would be included in court orders. The parenting arrangements which the mother now proposes would not, in my view, amount to an unacceptable risk to the child’s welfare.
Dr L said that his earlier assessment was that on the basis of the child’s own reports, teachers’ observations and comments by the parents there was no indication that the child had experienced any substantial neglect, abuse or exposure to violence. The recent interviews did not cause him to change his view about this. He said that the child had continued to prosper both socially and educationally.
There is, of course, some fairly remote risk to the child from her father’s underlying mental health condition. If he was to lapse into a psychosis while she was in his care this could constitute a danger for her. I shall refer to this again below.

Additional Considerations – s 60CC(3)

The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Sub-section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

Dr L said that the child had presented as a confident, mature and articulate girl for her age. I accept his views about her level of maturity.
Dr L said that the child said she spends more time with her mother but when she is with her father he helps her with her maths and about the selective high school tests. She gets help with her mother as well with homework. She said it is going pretty well, “I like the way it is going.”
Dr L said that the child had informed him that she was happy with the current arrangements and that she did not express a wish to have increased time with her father. He believed the child to be sufficiently mature and thoughtful to have her opinions taken into consideration by the Court.

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

Dr L formed the view that the child has a closer and stronger alliance with her mother. He said that her relationship with her mother has been more secure and stable than that with her father.
Having said this, Dr L said that the child has a comfortable relationship with both her parents. He observed her to be playful and confident with each of them. She informed him that she enjoys being with each of them. Dr L said that it seemed that the child made few distinctions between her parents in terms of the pleasure she receives from having a relationship with both of them.
Dr L also said that he had formed the impression that the child had developed a reasonably positive relationship with Mr F, although he had the view that her stronger attachments are with her parents. The mother said that Mr F is respectful towards the child and that they have lots of fun together. She said that late last year the child said “we make a good three-some”.
Dr L also said that there was no evidence of any overt anxiety with either of her maternal grandparents and that the child seemed to be comfortable with both of them. This is hardly surprising because the mother has a close relationship with her parents. The parents and the child lived with the mother’s parents at Brisbane for the first 12 months of the child’s life. They have visited the mother’s parents regularly over the years particularly during school holidays. The mother’s parents, particularly her mother, have been regular visitors to the mother and the child at their home in Sydney.

Sub-section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child

Both parents have actively participated in making decisions about major issues for the child. It is pleasing that they have been able to agree on her attending C School for her high school education.

Sub-section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

The father does not pay child support. He is in receipt of a disability pension. The mother provides almost the entirety of the financial expenditure required for the child.
The maternal grandparents will be paying the child’s private school fees when she commences at C School next year.

Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

This is discussed in relation to other considerations.

Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

Because both parents will be living in Sydney there will be no practical difficulty in this.
The father considers himself fortunate in the form of public housing which he has been able to obtain at Suburb M. This comprises a two bedroom apartment. The child has her own bedroom as does he. This accommodation is provided through Bridge Housing. It is secure in that the father has a lease which in effect amounts to a lifetime lease. The father has been able to secure this level of accommodation as a consequence of his parenting responsibility for the child. He undertakes voluntary work by being involved in a tenancy advisory group from which he obtains considerable personal satisfaction and this assists his self-esteem. He has friends in Sydney.

Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

Dr L said that when the child has any setbacks at school socially both parents have been very attuned to her needs and have responded appropriately.
As was submitted by counsel for the ICL, the mother has put aside her own needs in her long held desire to move to Brisbane, and prioritised the need for the child to be able to have the best opportunity to continue to develop her excellent relationship with her father, by deciding to remain living in Sydney.
In my view, this reflects great credit on the mother and reinforces the strength of her considerable parenting capacity as the child’s primary parent.
Dr L said that the child had informed him when seen alone that she thought that her father was taking good care of her, that he was very actively involved in her life, that he helped her with her education and that they shared enjoyable activities together.
The mother expressed a concern to Dr L that if the father was to have a relapse in his mental illness the child might be at risk of experiencing emotional trauma and possible neglect. But Dr L said that there was no evidence that the father had relapsed and that Dr E had indicated that the father had remained well with regular therapy and current treatment. As indicated above, the father has continued to see Dr E regularly and gave me every impression that he would continue to do so and that he would remain compliant with the medication prescribed by Dr E.
So as to endeavour to minimise any risk to the child posed by the father’s mental health condition the ICL proposes an order such as follows. The father would be required to authorise his treating psychiatrist to inform the mother if that psychiatrist had concerns about the father’s mental health stability. Dr E agreed with this. I accept that in all the circumstances, it would be in the child’s best interests to make such an order.
The father conceded that some time ago he had experienced difficulty in delivering the child to school on time because he had permitted her to sleep in. But I am reasonably satisfied that this has not been a problem recently.
Both parents assist the child with her homework.

Sub-section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

The child has the good fortune of parents who, between them, bring to her parenting a rich heritage of Australian, European, and New Zealand culture which each of them provide opportunity for the child to enjoy.

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right;

This is not relevant.

Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

I have referred to this in part above. But in addition, both parents have demonstrated an appropriate attitude to the responsibilities of parenthood. The mother has provided stability for the child and she has been nurturing in her care of the child.
The father has been an active and committed parent.

Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

Dr L said that the child had memories of her parents arguing and fighting but she did not report any family violence.

Sub-section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter;

This is not relevant.

Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

I have considered this matter and hope that the concessions which each parent has made to accommodate the best interests of the child will result in their long-standing litigation now coming to an end.
Both parents expressed their hope that the litigation would now end.

Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

At one point during the hearing the father suggested that if he did not have the child staying in his care for a certain number of nights his present Public Housing Authority accommodation might be at risk. But after certain inquiries were made the father accepted that his present accommodation in his apartment at Suburb M is secure. The father has been living in this apartment since February 2015. I am satisfied that the father is regarded as a good tenant. I am satisfied that it provides appropriate accommodation for the child.
There is a lot of evidence about whether Mr Ryves might constitute an unacceptable risk to the child because of his sexual abuse of the mother. And a considerable amount of hearing time was taken exploring this. It is unnecessary to deal with this in detail, however, because of the major concession made by the mother that she would not move with the child to live near Mr Ryves and the mother’s preparedness to accept appropriate protective restraints.

Conclusion

The Act requires that orders must be in the best interests of the child. As was submitted by counsel for the ICL, the orders proposed by the ICL and agreed to by the mother are basically in accordance with the child’s wishes. They only differ from the parenting arrangements the child currently enjoys by the addition of one night per fortnight spent by the child with her father.

There is no question that the child’s father loves her dearly and she obviously loves him. They have a close relationship. Clearly it is in the child’s best interests to continue to have appropriate opportunity to develop her close and meaningful relationship with her father.
In my view, however, some caution must be exercised about how the child’s opportunity for parenting by her father is arranged. Unfortunately the father has a serious mental health condition and this is relevant to his capacity to parent the child. As indicated above, it is to the father’s credit that he has been managing his condition well and in an appropriately responsible manner, certainly over the last few years at least. His regular consultation with his psychiatrist Dr E is impressive. But his underlying mental health condition is an ongoing concern to the mother and no doubt plays on her mind whenever the child is under the father’s direct responsibility.
As the father submitted, his proposal would involve fewer changeovers for the child. And he would be desirous of being able to take her to exercises on Thursday nights. There would be some advantage in this. But what the father proposes would mean the child spending four nights consecutively with him. A practical consequence would be that not only would the child be spending longer each period away from her mother, but she would also be longer away from her father between each period of time spent.
Such a pattern is not consistent with the child’s views and it would also mean that the mother would not have the same opportunity to monitor how the child was coping with her times with the father as regularly as is provided under the current regime and which would be present under the orders proposed by the ICL and the mother.
I am satisfied that the father’s underlying mental health condition, provided it continues to be managed well by the father and on the basis of an appropriate order directed to his treating psychiatrist, would not so affect his parenting capacity as to cause this Court to regard time spent by the child with him to involve placing her in a situation of unacceptable risk.
In relation to risk for the child in her mother’s care, there is the ongoing situation posed by the close relationship between the mother and her stepfather Mr Ryves, and that between the child and him. As indicated above, the ICL and the mother propose that the orders would include appropriate restraints on the mother to ensure that the child would not be brought into the company of Mr Ryves other than with an appropriate supervisor being present. I accept that in such circumstances this Court would not regard the child to be at any unacceptable risk. Obviously this was also the view of the ICL. The father also accepted the appropriateness of such an order.
The mother said that the current arrangements are working well for the child, Dr L has said that the current arrangements are working well for the child and the child said that she is happy with the current arrangements.
In my view, it would not be in the child’s best interests for orders as proposed by the father to be put in place. I propose to make orders generally in accordance with the regime proposed by the ICL and the mother.

PROPERTY

The Applications

As indicated above, the mother, during her final submissions, sought orders to the effect that from the $24 700 in the controlled money account, $5917 would be paid to Legal Aid NSW in respect of the balance of the mother’s half share of the costs of the ICL and the father could have the balance of the controlled money. The mother would retain the entirety of her superannuation.
As also indicated above the father was seeking, at the commencement of the hearing, a property settlement on the basis that the mother pay to him the sum of $121 250 (being one half of the proceeds of sale of the former matrimonial home) and 40 percent of her superannuation (being $294 000 less $80 000 thereof which the father said he would not make any claim upon) that is, 40 percent of $214 000 which would be $85 600.
But during final submissions the father’s position appeared to be that he was most desirous of being paid the entirety of the funds in the controlled money account and he appeared to consider that it would be unfair to him if the mother was to retain the entirety of her superannuation. In the end, he said that he would leave it to the Court to make a just property order in his favour.

Property Background

At the time the parties commenced cohabitation the mother owned an apartment at T Street, Suburb U, ACT subject to a mortgage. She had purchased this property the previous year using $98 000 loaned to her by her parents.
In November 1997 the mother sold her apartment for approximately $198 000 and received approximately $85 000 after paying expenses and discharging the mortgage.
In late 1997 the mother moved to Sydney because of her employment.
In early 1998 the mother purchased in her sole name an apartment at V Street, Suburb H for $315 000. This was funded from the $85 000 proceeds of sale of the mother’s ACT apartment, a loan on mortgage of $187 000 and the mother’s savings as well as money from her self-managed superannuation fund.
The father and mother moved into this apartment together in early 1998. The mother paid the mortgage and outgoings on the apartment.
In 2003 the mother refinanced the mortgage, increasing it to $250 000.
In early 2005 the parties went to Brisbane for 12 months living either with the mother’s parents or at the mother’s parents’ holiday home. The father stayed in Sydney for several weeks to prepare the apartment for sale.
But the mother was unable to sell the Suburb H apartment and it remained vacant during the 12 months that the parties lived in Brisbane.
In late 2006 the parties moved back to Sydney and lived in the Suburb H apartment. The mother recommenced employment four days per week and this became full-time in 2007. The father did not work in paid employment and cared for the child during the mother’s working hours.
In 2008 the mother again increased her mortgage, this time to $450 000 to reimburse her superannuation fund and to pay for bathroom renovations. The mother sold her apartment in November 2011 for $710 000. From the net proceeds of sale she purchased a relocatable home and had this installed on her parents’ property in Brisbane.
After paying costs of sale including legal costs of sale and discharging the mortgage on Suburb H, the mother received a net sum of $242 000.
The mother said that she repaid her parents their original loan of $98 000, which they advanced to assist the purchase of the ACT apartment, by purchasing the relocatable home and having it installed on her parents’ property which cost $132 000. There was some issue about this. But I accept this as a reasonable course taken by the mother. After all, she had the use of this $98 000 over a period of approximately 15 years.
After repaying her parents in this way the mother had $110 000 of the proceeds of sale. From this money she paid $29 000 towards her legal costs in these proceedings . This left a balance of $81 000. The sum of $55 000 was paid to a controlled money account in the name of the mother’s former solicitors, Harris Freidman. (This was possibly $65 000 and the parties were unclear about the actual amount.)
Of the balance of $26 000 the mother spent approximately $10 000 on a medical operation. The father said that he would not wish to make any claim in respect of these expenses. The mother said that the remaining part of the $26 000 was spent on household expenditure and the costs of moving out of the Suburb H apartment. I accept this.
As mentioned above, an order was made on 23 February 2015, that the sum of $25 000 be paid to the intervener, Clinch Long Letherbarrow Pty Limited, from the controlled monies account. They are the father’s former solicitors and they obtained judgment against him for substantial funds. On 13 April 2015 orders were made to release a further amount of $2500 from the controlled monies account to Clinch Long Letherbarrow Pty Limited, and that the balance of the monies owed to them be paid from any property which might be found to be that of the father by way of substantive determination or resolution of the property proceedings. The latter orders also included an order for $6000 to be released from the controlled monies account to fund Dr L’s updated report. In the event of any remaining monies, such were to be repaid to the controlled monies account and if there was to be a shortfall, such additional sum would be withdrawn from the controlled monies account.
Approximately $19 000 has been provided by the parties to Dr L for preparation of his reports and attendance at court for cross-examination.

The Applicable Law

Sub-section 79(1) of the Family Law Act 1975 (Cth) (“the Act”) provides to the effect that in property settlement proceedings the Court may make such order as it considers appropriate altering the interests of the parties to the marriage in the property.
Sub-section 79(2) provides that the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Sub-section 79(4) sets out various matters which must be taken into account in considering what order (if any) should be made under the section. These matters include direct and indirect contributions, financial and otherwise by or on behalf of a party or a child to the acquisition, conservation or improvement of any property of the parties, contributions by a party to the welfare of their family including as a homemaker or parent, relevant matters referred to in s 75(2) and the other matters referred to in s 79(4).
The operation of s 79 was the subject of consideration by the High Court in the case of Stanford v Stanford (2012) FLC 93-518. In this case the majority said (at page 86,640) in referring to ss 79(2) and 79(4) as follows:
35.… the requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36.The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. … while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.
The High Court said that the first of these propositions is for the court to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
The second is that although s 79 confers a broad power on the court, it is not a power that is to be exercised according to an unguided judicial discretion. It must be exercised in accordance with legal principles, including the principles which the Act itself lays down.
The High Court said that the third fundamental proposition is that the question of whether the order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters set out in s 79(4). To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2) would be to “conflate” the statutory requirements and ignore the principles laid down by the Act.
And the High Court majority went on to say (at page 86,642) as follows:
41.… The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

The Parties’ Existing Legal and Equitable Interests in Property

Balance Sheet Issues

There is no issue that the balance of the controlled money account is $24 700.
The parties agreed that each would keep their household contents and personal effects and that these would not be brought into the balance sheet.
The mother sold her motor vehicle for $4500 and she gave the father $1000 from the sale proceeds. I do not propose to make any adjustment one way or the other about these modest funds.
In relation to liabilities, each party asserts that they are substantially in debt. I suggested to them that it appeared that each party owed approximately $58 000 in total in debts to their parents and on credit cards. Each party agreed with this and also agreed that I would simply leave each of them with these respective liabilities and not bring these to the balance sheet. I propose, however, to bring to the balance sheet the mother’s liability of $5917 to Legal Aid New South Wales.
The parties’ interests in property and superannuation are as follows:

$

1.         Money in controlled money account

24,700

2.         Father’s car

500

3.         Father’s bank account

338

4.         Mother’s bank account

870

^{_____________}

$26,408

The mother has a superannuation benefit of $221 000 in her self-managed superannuation fund as well as a superannuation benefit of $73 000 in the Australian Ethical Investment accumulation account. This is total superannuation of $294 000.
The father has no superannuation.
Total assets are therefore $320 408 but I shall take account of the mother’s liability of $5917 to Legal Aid, New South Wales.
Accordingly there is net property and superannuation with a value of $314 491.

Sub-Section 79(2)

As indicated above, s 79(2) of the Act provides:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In their decision in the case of Bevan & Bevan (2013) FLC 93-545 the Full Court (Bryant CJ and Thackray J) said as follows at page 87,234:
In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order.
In the present case, the parties were married for approximately 12 years and have one child.
If the Court did not make orders, not only would the parties financial interests continue to be enmeshed but the unresolved financial issues between them would not be resolved and reflected in court orders. And the result would be unfair to both the mother and the father.
In these circumstances, in my view it would be just and equitable to make an order under s 79 of the Act.

Contributions

As indicated above, at the time of the parties commencing their cohabitation there was a disparity in terms of their property. As indicated above, the mother owned her apartment at Suburb U, ACT subject to a mortgage and she had approximately $80 000 in superannuation. On the other hand the father had his personal effects. When the mother sold her ACT apartment the father did some preparatory work and paid for some materials.
As also indicated above, the parties cohabited for a period of almost 12 years. The mother worked mostly full time or four days per week for most of this period apart from when the family moved to Brisbane. For a part of the period when she moved to Brisbane the mother was on maternity leave. When the family lived in Brisbane they lived either with the mother’s parents or in a property owned by them. The mother’s parents also gave her $20 000 to assist her to purchase a motor vehicle in 2002 and $7300 in September 2008, some of which the father used. So the mother’s parents made significant contributions. These contributions come in on the mother’s side of the ledger, as it were.
On the other hand, during most of the period of cohabitation the father did not work in income producing activity apart from some consultancy work on contract, but he was in receipt of the disability pension. In approximately early 2002 the father was diagnosed as suffering from Graves Disease, a hyper-thyroid condition. He was immobilised for three months and unable to undertake work.
The mother said that the parties separated for six months during 2002. This is not clear to me.
In mid-May 2004 the father went to Country I for a holiday.
As I have said the father undertook some paid consultancy work on contract in the early stages of cohabitation. He did no paid work during the year that the parties lived in Brisbane in 2005. But he did remain in Sydney after the mother initially moved to Brisbane for the purpose of endeavouring to prepare the Suburb H apartment for sale. He subsequently moved to live with the mother and the child in Brisbane. In November 2008 the father suffered a psychotic episode, was hospitalised for several weeks and was heavily medicated. The mother had to leave work to care for the child until January 2009 when the mother returned to work for 4 days per week.
The father, following his psychotic episode in November 2008, was heavily medicated until May 2010.
Twice per week the child would attend pre-school. The mother would deliver her to pre-school and the father would collect her therefrom. Often the maternal grandmother would visit from Brisbane to assist with the child’s care.
The father left the Suburb H apartment in June 2010, this being the time he asserts the parties separated. He lived in Queensland for nine months with Ms W. From time to time he stayed at the mother’s apartment and took care of the child when the mother was away working in Melbourne each few months.
In my view, it is clear that the mother made the overwhelming financial contributions.
Looking back over the period from commencement of cohabitation to the time that the father left the Suburb H apartment in June 2010 both parties made significant contributions to the welfare of their family unit and as homemakers and parents. Clearly, on the basis that the mother was working both full-time and also for some periods four days per week, clearly the father had more time during which to make welfare contributions. But having said this the mother was heavily involved in undertaking household tasks and caring for the child upon her return home from work each day, for a considerable period on her non-employed days on Fridays and over the weekends. The father conceded that he did little of the cooking. In all these circumstances, during this period to separation, in my view, their parenting and welfare contributions would not be far from equal. The parties agreed that these contributions were equal.
In the post-separation period the mother continued to work and the father continued to receive his disability pension and, I understand, rent assistance including provision of public housing. It is the mother, over this period, who has had almost the entirety of the financial burden of providing for the child’s needs. Since the mother sold the Suburb H apartment this has included rent of in excess of $500 per week to accommodate herself and the child. She has met the child’s schooling costs and her extra-curricular costs. In my view, the parties’ contributions have been vastly different since separation and a fair finding must fall heavily in favour of the mother in relation to this period. On the mother’s version this period is now more than seven and a half years. On the father’s view about separation this period is six years.
Looking back over the whole period, notwithstanding significant contributions which the father has made particularly as homemaker and parent, it is clear that the mother’s contributions have been far greater than those of the father.

In my view, her contributions overall have been more than double those of the father. The father conceded that in his view the contributions overall were 65 percent by the mother and 35 percent by him. In assessing the parties’ contributions overall, I have also taken into account the father’s concession that he would not wish to make any claim against the $80 000 superannuation which the mother had at the commencement of cohabitation.
I assess the contributions overall to have been 70 percent by the mother and 30 percent by the father.

Sub-section 75(2) matters

The mother is 49 years of age and in reasonable health. She is working on contract. In her financial statement she estimated her salary from this employment before tax at $1719 per week. But she said she has since received a salary increase of $83 per month after tax. In addition the mother receives a government benefit for child care of $20 per week. On all current indications she has the capacity to be able to continue in such or similar employment for the foreseeable future.
The mother has an interest in the Australian Ethical Super Fund as well as an interest in her self-managed superannuation fund. She would appear to be able to continue to have the capacity to contribute to the superannuation funds for the foreseeable future.
On the other hand the father is 59 years of age and his sole source of income comes from two pensions. Firstly, he receives $361 per week from the disability support pension and rent assistance. He also receives a pension of $145 per week paid by the New Zealand Government. This is a total of $506 per week.
The father has the serious mental health condition of an acquired brain injury. To his credit he has been managing this condition very well with medication and professional psychiatric report. He has not worked in income-paying employment for many years. It is the case that his treating psychiatrist Dr E expressed some optimism that the father has been managing his mental health condition well and might be able to undertake some work. But with due respect to the father I find it difficult to share such optimism, especially bearing in mind his age. In my view, the father has little capacity for gainful employment and would be expected to continue to rely on his pensions for his income.
The mother has the major care of the parties’ daughter B. The child has lived the entirety of her life with the mother subject to periods in which she has been in her father’s care. As indicated above, the father will be caring for the child when she spends time with him in accordance with the parenting orders I propose. On all present indications it is to be expected that the mother will have the major care of the child and almost the entire financial responsibility for her until she attains adulthood or possibly completes tertiary education.
As indicated above, the mother has been in a relationship with Mr F for some years. They do not cohabit but appear to be moving towards such a situation in Sydney in the not too distant future. Mr F has his own business,. My understanding is that if the mother and Mr F were to cohabit he would be in a position to make some financial contribution to their household costs.
The father does not pay any child support for the child.
In considering the relevant s 75(2) matters, clearly there is some difficulty so far as the father’s position is concerned. As I have said, he suffers a serious mental health condition, he is unable to work in income-producing activity, he has the limited income of the pensions referred to and he is some years older than the mother. These matters must be balanced with the considerable burden which the mother is going to continue to have not only in providing the major care for the child but almost the entirety of her financial support over at least the next seven years. As against this, the mother is fortunate to be able to undertake her professional career with its rewards, including being able to contribute to superannuation funds, she can probably look forward to some assistance with shared household costs from Mr F, she is younger than the father and has many income-earning years still ahead of her and, on a contributions basis, would be entitled to significantly more property and superannuation than would be the father.
On the one hand, the mother will have the major support and parenting responsibilities for the child for at least the next seven years and possibly longer. On the other hand the father will have to manage his disability, with the consequential financial limitations, for the rest of his life.
In my view, the relevant s 75(2) matters in support of each party balance.
Accordingly, in my view, it would not be appropriate to set-off any of the property or superannuation in favour of the one or other party on account of s 75(2) matters.

Conclusion and fourth step

The mother is to have 70 percent of the available property and superannuation. This is property and superannuation with a value of $220 144 (70 percent of $314 491 = $220 144).
The mother has the following:

$

1.         Bank account

870

2.         Self-managed superannuation fund

221,000

3.         Australian Ethical Investment Super

73,000

^{_____________}

$294,870

But the mother has a liability to Legal Aid New South Wales of $5917. So she has net property and superannuation with a value of $288 953.
If the mother was paid the sum of $5917 from the controlled money account and paid this to Legal Aid New South Wales and arranged for the father to have $74 726 from her self-managed superannuation fund, this would leave her with $220 144 worth of property and superannuation.
On the other hand, the father is to have property and superannuation with a value of $94 347 (30 percent of $314 491 = $94 347).
The father has the following:

$

1. Car

500

2. Bank account

338

^__________

$838

If he was paid the balance of the controlled money account of $18 783 ($24 700 - $5917 = $18 783) he would then have $19 621 ($838 + $18 783 = $19 621).
To achieve $94 347 the father would require a further $74 726 ($94 347 - $19 621 = $74 726). This would be provided to him by rolling this amount out of the mother’s self-managed superannuation fund.

Just and Equitable Order

If orders were made on this basis, the mother would pay her outstanding Legal Aid liability for the balance of her share of the costs of the ICL, she would have the very modest funds in her bank account but she would retain $219 274 of her superannuation.
As indicated above, she has the capacity to continue to earn income in her profession and to continue to contribute to her superannuation schemes. It would appear that renting accommodation will be necessary but perhaps in a few more years she might be able to fulfil her long-standing desire to move to Brisbane and live in the relocatable home there.
The mother has the capacity to be able to continue to provide for the needs of herself and the child, even more so if she is to cohabit with Mr F and have some assistance from him in sharing household costs.
On the other hand, the father should receive sufficient funds from the controlled money account to pay his debts and to have some surplus to assist meeting his ongoing expenses and perhaps be able to have some little money to spend on the child.
He will have to deposit the superannuation rolled out from the mother’s self-managed superannuation fund into a complying superannuation fund. But given his age and necessitous state, he might well be successful in persuading the trustees of his fund to pay the benefit out to him on the basis of hardship.
In my view, for all the above reasons, the orders I propose will be just and equitable.

Costs

The ICL sought an order that each of the parties pay the amount of $7567, being one half of its costs in the parenting proceedings. The mother has paid $1650 which leaves her balance at $5917. The mother agreed to pay this.
In relation to the costs order sought against the father, in view of his disability and his modest means, in my view, it would not be just within the meaning of s 117(2) of the Act to make a costs order against him notwithstanding the modest property settlement I propose in his favour.

I certify that the preceding two hundred and forty-six (246) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 30 June 2016.

Associate:

Date: 30 June 2016

ANNEXURE A

ORDERS SOUGHT BY THE MOTHER AND THE INDEPENDENT CHILDREN’S LAWYER

Parenting

That the parties have equal shared parental responsibility for the child, [B], born … 2005.
That [the child] live with her mother.
Commencing 2017 [the child] shall attend [C School] in [Suburb D] or such other school as agreed in writing between the parties.
During the school terms [the child] shall spend time with her father as follows:
a.From after school Wednesday to before school Thursday each week;
b.Each alternate weekend from 6.30 pm on Friday to 6.00 pm Sunday;
c.That to facilitate these orders the father is to collect and deliver [the child] to and from school on Wednesdays and Thursdays and otherwise collect and return her to her mother’s residence on Fridays and Sundays.
The father spend time with [the child] during school holidays as follows:
a.A maximum of seven nights (one week) of every New South Wales term school holidays with the parties to agree which week and in the absence of agreement, the first half;
b.When [the child] is with the father for the second half of the holidays that the father returns [the child] at 6.00 pm the night before the start of the school term;
c.During the Christmas holidays the father has a maximum of 21 nights (three weeks) with the child over the long Christmas New Year school holiday period as agreed but failing agreement the first half when Christmas is an odd numbered year and the second half when Christmas is an even numbered year, and [the child] spends every alternate Christmas Eve/Day with each parent.
That the father authorise his treating psychiatrist [Dr E], or such other psychiatrist that he is referred to, to contact the mother and advise her if he has any concerns about the stability of the father’s mental health including but not limited to any mood changes, sleeping difficulties, his making less rational decisions, or less rational statements, becoming overly preoccupied with [the child’s] welfare, exhibiting signs of depression, lethargy or erratic behaviour.
That in the event that the mother spends time with her stepfather, [Mr Ryves], whenever [the child] is in her care she must ensure that any time [the child] is in the company of [Mr Ryves] it is supervised by the mother or [Mr F] or such other person as agreed in writing between the parties, and the mother is restrained from permitting [the child] to be alone with [Mr Ryves] without supervision for any reason whatsoever.
Both parents are restrained from re-locating [the child’s] residence out of Sydney metropolitan area until she completes Year 10.

Property

Property – that the father be given a 20/80 split of the property pool.

ORDERS SOUGHT BY THE FATHER
Parenting

The parties shall have equal shared parental responsibility for the child [B] born … 2005 (“the child”).
The parties are hereby restrained from relocating the child from within 10km of the Eastern Suburbs of Sydney.
The child shall live with the father from the date of these Orders, unless otherwise agreed, as follows:-
In school time
(a)For 6 consecutive nights each fortnight beginning on a Tuesday at the conclusion of the school day and ending on the subsequent Monday at the commencement of the school day, excepting for any gazetted NSW long weekend spent with the father, where the time with father be extended to include the Monday, and conclude at the commencement of the school day on Tuesday.
(b)In the event that the weekend on which Father’s day falls is not usually time with father, that the child spend the weekend of Father’s day with the father.
(c)In the event that the weekend on which Mother’s day falls is not usually time with mother, that the child spend the weekend of Mother’s day with the mother.
(d)Easter weekend: Alternate years with each parent as in a above, in odd numbered years with the father.
Holiday time
(e)For half of each school holiday period as agreed between the parties, but failing agreement for the first half of each school holiday period in odd numbered years and the second half of each school holiday period in even numbered years; and on every occasion that the number of nights is indivisible by two, to avoid argument, the extra night be with the mother.
(f)For the purpose of Order 3(b) the school holiday period shall be defined as commencing at the completion of the last day of the school term and concluding on the morning of the first day of the new school term.
Other times
(g)The child shall live with the mother at all other times.
Telephone contact
(h)Each party have telephone communication with the child at all reasonable times, but limited to once in any two day period.
(i)The child can contact either parent by telephone when she wishes to.
Contacts with [Mr Ryves]
(j)All contact between the child and her maternal step-grandfather shall be supervised by a person agreed to in writing by the parties or appointed by the Court.
(k)The child [B] shall not be overnight at any time in the same dwelling as her maternal step-grandfather.
Education
(l)Both parents shall ensure that the child remains enrolled at [J School] until the end of Year 6, 2016.
(m)The parents shall agree the most suitable secondary school for the child to attend from the commencement of Year 7, 2017.
(n)The child shall attend [C School, Suburb D] unless otherwise agreed by the parties.
(o)The mother be restrained from enrolling the child into any further extra-curricular activities, or changing existing arrangements for existing extra-curricular activities without the prior consent of the father.
(p)The child remains enrolled into Ethics classes instead of the religious instruction previously attended at the school.
(q)These Orders constitute authority for any school attended upon by the child to furnish both parents with copies of all school reports, school photos, memoranda, newsletters, correspondence and invitations to school events to which parents are usually invited and both parents are at liberty to attend.
General obligations
(r)Neither parent nor member of that parent’s family shall denigrate the other in the hearing or presence of the child and are to use their best endeavours to ensure no other person does so.
(s)Both parties are to keep the other notified of their current address and telephone contact number and are to provide the other parent with 7 days notice of any change.
(t)Each party shall notify the other as soon as practicable of any serious illness, medical emergency or hospitalisation of the child including details of any medical practitioner, specialist or hospital attended upon and medication prescribed so that both parents may be fully involved in the child’s treatment and recovery.
(u)That the child’s passport remain in the father’s care, rather than that of the mother, and that for future international travel events the passport be furnished to the mother no later than one week before the departure date.
(v)That when international travel occurs an itinerary be provided to the non-travelling parent, detailing in which country the child will be on what dates.
(w)In the event of any recovery action to return the child from intrastate, interstate, or overseas that the Costs of such action be borne by the contravening party.
(x)Consequences for ‘significant’ breach of Orders. The writer does not have the experience to pen such an Order but encourages Justice Johnston to consider this in light of the ‘contravention’ history detailed in chronology and to be raised at trial.

Property

50% of the net proceeds from the sale of the matrimonial home, that is the sum of $121,250 be paid to the husband by the wife.
40% of all superannuation, a figure to be determined by the Judge, be paid to the husband.
The wife retains the furniture and chattels in her possession.
The wife pay the husband’s costs in this case, being the sum of $32,000.
That the wife meet half the costs of [Dr L’s] $14,800 of reports, being the sum of $7,400.

[2016] FamCA 594

30 June 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Remedies

$
1. Money in controlled money account	24,700
2. Father’s car	500
3. Father’s bank account	338
4. Mother’s bank account	870
^{_____________}
$26,408

$
1. Bank account	870
2. Self-managed superannuation fund	221,000
3. Australian Ethical Investment Super	73,000
^{_____________}
$294,870