Sigrun & Erkin
[2024] FedCFamC1F 313
•15 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sigrun & Erkin [2024] FedCFamC1F 313
File number: SYC 8604 of 2020 Judgment of: ALDRIDGE J Date of judgment: 15 May 2024 Catchwords: FAMILY LAW – PARENTING – Application for final parenting orders – Mother and the Independent Children’s Lawyer (“ICL”) proposed the mother have sole parental responsibility and the children live with her – Father sought for the children to live with him – Where the children live with the mother and have spent limited time with the father – Father’s evidence treated cautiously due to his propensity to exaggerate – Family violence found not to be a significant factor – Threatening email sent by the husband addressed to the former ICL and the judge previously set to hear the matter – Father’s anger and strongly held views are relevant insofar as they concern the best interests of the children – Behaviour in the courtroom taken into account – Father’s subjective beliefs about the Catholic Church are not evidence of a risk of harm in the mother’s care – Children would benefit from a continuing relationship with both parents – Evidence does not raise a risk of harm to the children – Father has not complied with obligation to pay child support – One child has particular needs and is upset by change – Parties are unlikely to agree on long-term issues – Children to live with the mother who is to have sole parental responsibility – Children to spend day time with the father – Time to be supervised pending completion of a Parenting After Separation course.
FAMILY LAW – PROPERTY – Application for final property orders – Little dispute on assets – Father sought to keep the matrimonial home but did not adduce evidence to support his capacity to do so – Mother made the bulk of the financial contributions – Father likely made some non-financial contributions to the care of the children – Parties agreed contributions were equal up to date of separation – Mother has had care of children post-separation and will continue to do so – Unclear what future needs one the children may have – Mother has the capacity to work – Net assets to be divided 70 per cent to the mother and 30 per cent to the father – Orders made for the sale of the former matrimonial home.
FAMILY LAW – COSTS – Previous final hearing dates vacated due to an email sent by the father addressed to the former ICL and the judge set to hear the matter – Mother and ICL sought costs orders against the father – Father’s conduct caused the mother and the ICL to waste legal costs – Father did not challenge the quantum of costs sought – Order made for the father to pay the mother and former ICL’s costs in a fixed sum.Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 1 First Instance Number of paragraphs: 141 Date of hearing: 11–13 March 2024 Place: Sydney Counsel for the Applicant: Mr Eardley Solicitor for the Applicant: Emanuel Refenes Solicitor The Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Ms Boettcher Solicitor for the Independent Children’s Lawyer: Holmes Donnelly & Co Solicitors ORDERS
SYC 8604 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SIGRUN
Applicant
AND: MR ERKIN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
15 MAY 2024
THE COURT ORDERS THAT:
PARENTING
1.The mother shall have sole parental responsibility for the children, X and Y.
2.The children shall live with the mother.
3.The children shall spend time with the father as follows:
(a)Subject to the availability of the supervision service, every second Saturday from 10.00 am to 2.00 pm, or such other similar period of time made available by the supervising service, supervised by B Contact Service or another professional supervision service as agreed between the parties in writing, and:
(i)The father shall pay the costs of supervision;
(ii)The time will occur at the location advised to the parents by the service; and
(iii)In the event that the service is unable to facilitate that time on a Saturday, the parents are to accept any reasonable alternate times offered by the service in lieu.
(b)Following the children spending supervised time with the father and completion of the requirements of Order 5, every second Saturday from 10.00 am to 2.00 pm;
(c)Subject to Orders 3(a) and 3(b) above:
(i)On Father’s Day from 9.00 am to 1.00 pm if the children are not already in his care;
(ii)On each child’s birthday if the children are not already in his care from the conclusion of school to 7.00 pm or, if the birthday occurs on a non‑school day, from 9.00 am to 1.00 pm; and
(iii)On Christmas Eve from 9.00 am to 1.00 pm if the children are not already in his care.
4.The children spend time with the mother, if they are not already in her care, on the following special occasions:
(a)On Mother’s Day from 9.00 am to 1.00 pm; and
(b)On each child’s birthday from the conclusion of school to 7.00 pm or, if the birthday occurs on a non-school day, from 9.00 am to 1.00 pm.
5.The father shall complete a Parenting After Separation course delivered face-to-face and:
(a)A suitable course is to be selected by the father and sent to the mother for her written approval;
(b)The mother is not to withhold written approval of a suitable course unreasonably; and
(c)The father is to provide the mother with evidence of his successful completion of the program.
6.The mother shall complete a Parenting After Separation course, equivalent to that in Order 5, but not in the same course intake as the father.
7.Changeovers for unsupervised time shall occur in a public place as agreed between the parents.
8.Both parents are entitled to receive copies of reports, notices and documentation to which parents are entitled from the schools attended by the children.
9.Both parents are entitled to attend and participate in school events, functions, sporting events or extra-curricular activities to which parents are invited to attend.
10.The parents shall do all acts and things necessary to authorise any medical practitioners who may treat the children or either of them to provide each parent with copies of test results, referrals, reports and other correspondence regarding the children.
11.Both parents are to ensure the other parent is informed of:
(a)Any medical problems or illnesses suffered by the children whilst in that parent’s care;
(b)All visits to doctors, hospitals or other treating medical practitioners;
(c)Any medication prescribed for either of the children;
(d)The name and address of the children’s treating practitioners;
(e)Any social or religious functions that the children are to attend; and
(f)Any other matter relevant to the welfare of the children.
12.Neither parent shall denigrate the other parent in the presence or hearing of the children, or allow a third party to denigrate the other parent in the presence or hearing of the children.
PROPERTY
13.Within 30 days of the date of these orders the parties each sign all documents and do all things necessary to effect a sale of the property at C Street, Suburb D (“the property”) being the whole of the property contained in Certificate of Title Folio Identifier … and for that purpose the following shall apply:
(a)The property shall be listed for sale by private treaty with such real estate agent as agreed between the parties or, failing agreement, the mother shall provide the father with a list of three agents from which the father shall nominate an agent in writing within seven days, failing which the mother shall select an agent;
(b)The list price of the property shall be as agreed between the parties or, failing agreement, as nominated by the agent;
(c)The sale price of the property shall be as agreed between the parties or, failing agreement, any offer to buy the property that is at least 85 per cent of the list price shall be accepted by the parties as the sale price;
(d)The parties are to co-operate in every way with the agent in relation to the marketing of the property including making all keys readily available, allowing inspection of the property at all times reasonably requested by the agent, and ensuring the property is clean, neat and in good order at the time of inspection by any prospective buyer;
(e)That upon agreement being reached for the sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or the solicitor acting for them jointly in the conveyancing of the property;
(f)That the parties shall agree in writing on the appointment of a solicitor to act on the sale or, failing agreement, the applicant shall provide the respondent with a list of three solicitors from which the respondent shall nominate one in writing within seven days, failing which the applicant shall select a solicitor;
(g)The contract of sale shall provide for competition within 42 days after the date of the contract, or such other time frame as otherwise agreed in writing; and
(h)The proceeds of the sale of the property shall be paid in accordance with Order 16 below.
14.In the event the property is not sold by private treaty on or before two months from the date it is first listed for sale by private treaty, then the parties shall sign all documents and do all things necessary to sell the property by auction and the following shall apply:
(a)The property shall be listed with an agent appointed under Order 13(a) above (“the auctioneer”) for sale by auction within a further two months;
(b)The parties shall execute all documents requested by the auctioneer for sale of the property by auction;
(c)The reserve price of the property shall be such amount as is agreed between the parties or, failing agreement being reached 21 days prior to the auction, as nominated by the auctioneer;
(d)The parties shall give such instructions as are necessary to the solicitor appointed under Order 13(f) above to prepare a contract of sale and provide it to the auctioneer prior to the auction, no later than the date sought by the auctioneer;
(e)The parties agree to cooperate in every reasonable way with the auctioneer in relation to the sale by auction including by allowing inspection of the property at all times reasonably requested by the auctioneer, and by ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of the auction;
(f)The sale price of the property shall be any amount in excess of the reserve price but, in the event the reserve price is not reached, the sale price of the property shall be such amount as agreed between the parties or, failing agreement, any offer received after the auction to buy the property at a price that is at least 85 per cent of the reserve price shall be accepted by the parties;
(g)The parties, or either of them, shall attend the auction and negotiate with the highest bidder or any other interested party in the event the reserve price is not reached, for the purpose of reaching agreement under Order 14(f); and
(h)Upon agreement being reached for the sale of the property, the sale proceeds are to be paid in accordance with Order 16.
15.In the event that the property is not sold at auction pursuant to Order 14, or within 14 days after the date of the auction by further negotiation, then the parties shall cause a further auction of the property to be held within two months after the date of the first auction and the provisions of Order 14 will apply for that purpose.
16.The proceeds of the sale of the property are to be applied in the following manner and priority:
(a)To pay all agent’s commissions and reasonable legal or other costs and outlays related to the sale including advertising or other expenses, if any, payable on the sale;
(b)To pay all outstanding utilities, council rates and other charges outstanding on the property;
(c)To discharge the current mortgage on the property;
(d)Where applicable, to reimburse either party for the costs of cleaning, or repair or maintenance of the property as required in relation to marketing the property for sale;
(e)70 per cent of the remaining proceeds to the mother; and
(f)The balance of the sale proceeds in the following order:
(i)$7,500 to the mother in payment of the costs of the vacated hearing in August 2023;
(ii)$2,684 to the ICL in payment of the costs of the vacated hearing in August 2023; and
(iii)The remaining balance to the respondent.
17.Pending completion of the sale of the property:
(a)The parties hold their respective interest in the property upon trust pursuant to these orders;
(b)Neither party shall encumber the property without the consent in writing of the other party or any mortgagee; and
(c)Each party will cause to be repaired any damage to the property caused by them from the date of these orders, such repair to be at that party’s own expense.
18.Within 28 days of the date of these orders, the parties are to take all steps reasonably necessary and sign all documents reasonably required to close the parties joint bank account known as ANZ Account #...67 with the funds from the said account to be paid to the respondent.
19.Within 28 days of the date of these orders, the parties are to take all steps reasonably necessary and sign all documents reasonably required to effect the sale of their jointly held E Company shares with the parties to each receive 50 per cent of the sale proceeds.
20.Save for those items otherwise dealt with in these orders, the parties shall each retain to the exclusion of the other all rights, title and interests in all assets and forms of property in their respective possession at the date of these orders including but not limited to bank account balances in their sole name, superannuation resources, vehicles, jewellery, furniture and personal effects.
21.Within 14 days of the date of these orders, the respondent is to make available to the applicant for collection the following items:
(a)1x recliner chair;
(b)Kitchen Aid food mixer;
(c)Various kitchen utensils;
(d)Her work books and resources; and
(e)Various children’s toys.
22.Each party shall be solely responsible for all debts or liabilities standing in their name at the date of these orders and shall indemnify and keep indemnified the other against all such debts or liabilities.
23.In the event either party fails for any reason to execute any deed or instrument necessary to give effect to these orders within seven days of a written demand from the other party to do so, then pursuant to s 106A of the Family Law Act 1975 (Cth) an officer of the court may be appointed to execute such deed or instrument in the name of the defaulting party.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sigrun & Erkin has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
These are parenting and property proceedings between Ms Sigrun (“the mother”) and Mr Erkin (“the father”).
The mother was 45 years old at the time of the hearing and the father 46 years old.
The mother arrived in Australia in 1985, coming from Country F, her place of birth.
The parties met in mid-2008, commenced cohabitation in 2009 and married in 2010. The parties separated on 22 May 2020 and were divorced in 2023.
The parties had three children, with their second child sadly dying in 2013 shortly after his birth.
X was born in 2011. She has been diagnosed with autism spectrum disorder and sensory processing disorder. X also has selective mutism and a high level of social anxiety. She has been involved in multiple early interventions and therapy programs since 2016. When she saw the Family Consultant on 26 September 2022, X did not speak or make eye contact with the consultant but did write answers in her notebook.
At the time of the hearing X was not attending any clinicians, apart from a dietician, because she was awaiting a multidisciplinary team assessment to determine the best therapeutic approach for her in the future. (Transcript 12 March 2024, p.91 lines 1–11).
Y was born in 2018 and appears to be a happy, cheerful child.
It is necessary to deal with the parenting issues first because the orders that are made will have a significant impact on the property orders.
PARENTING
The proposals
In her Case Outline, the mother proposed that she have sole parental responsibility for the children who were to live with her. The children were to spend time with the father every alternate Saturday for three hours supervised by a contact supervision service on 13 occasions. Thereafter, provided that the father had attended all 13 occasions and completed a “Parenting After Separation” course, he would spend five hours unsupervised with the children every alternate Saturday, plus time on special days.
The mother’s position changed during the course of the hearing and at its conclusion, it was submitted that the children’s best interests were best served by the orders proposed by the Independent Children’s Lawyer (“ICL”).
That proposal differed from the mother’s in that it suggested only four weeks of supervised time. However, as with the mother’s proposed orders, unsupervised time was not to start until the father had completed the requisite course which, in all probability, if undertaken by the father, would take longer than four weeks.
Neither the mother nor the ICL proposed any telephone time.
The father took an entirely different line seeking orders that the children live with him and spend limited supervised time with the mother. It follows that he would have sole parental responsibility for them.
Background
In order to answer the questions posed by these various positions, it is necessary to delve a little further into the history of the relationship.
At the time the parties started to cohabit, the father was employed at a company. The mother was an educator.
A property at Suburb D was purchased in 2010.
After the birth of X in 2011, the mother was on maternity leave for a while and later returned to work three days a week as an educator.
On the day of the funeral of the parties’ second child, the father’s employment was terminated as he did not attend work.
From late 2013, X started attending on an occupational therapist, a speech pathologist and a psychologist. The first two were funded under the NDIS.
In 2014, the father commenced university studies, but he did not complete the degree. He said that the mother’s conduct and continued denigration of him were the reasons why he was unable to do so.
In 2016, the mother increased her days at work from three to four days.
In late 2019, the mother started to receive government benefits of $780 per fortnight, having ceased work after the birth of Y in 2018. In order to make ends meet, the parties used a redraw facility on their mortgage.
In 2019, the father sought work as a transport worker but either was unsuccessful (father’s affidavit filed 6 July 2023, paragraph 49) or declined the offer of the job (mother’s affidavit filed 21 July 2023, paragraph 45).
The mother returned to work in early 2020, again for three days a week.
In April 2020 the father proposed that he return to university but the mother declined to support him.
The parties separated in May 2020 when the mother and children left the family home. I shall refer to that event in some detail shortly.
The mother’s evidence, not really challenged, was that from May 2020 to January 2023 the father spent no more than nine occasions with the children despite the mother suggesting that they spend some time with him twice a week. Interim orders were made on 31 August 2021 for the children to spend time with the father from 10.00 am to 2.00 pm each Saturday for six months.
On 30 January 2023, further consent orders were made for the children to spend time with the father from 5.00 pm Friday to 5.00 pm Saturday each week. The orders allowed for an increase in time to two consecutive nights a fortnight once the father completed a Parenting After Separation course. He did not do so and the extra time did not take place.
The mother suspended the children’s time with the father in August 2023 because of an email the father wrote addressed to the former ICL and a judge of the Federal Circuit Court and Family Court of Australia (Division 2) (sent to her associate), before whom the matter was listed for final hearing commencing on 3 August 2023. The mother’s evidence was that this letter caused her to fear for the safety of the children in the father’s care (mother’s affidavit filed 19 February 2024, paragraph 8).
This email was the subject of particular attention at the hearing, and I will deal with it in detail in due course.
Until last year both children went to a local primary school. It was the mother’s wish that X attend a Catholic high school but the father did not agree. X started at a local high school this year and seems to have settled in well, having regard to her particular difficulties.
Allegations of family violence
Although each party accused the other of family violence, the particular events on which they relied were few in number.
It has to be said that the father holds strong beliefs very firmly. His trial affidavit was little more than an extensive jeremiad against the mother, her relatives, their Catholic beliefs, the Catholic Church, the Catholic education system, family lawyers and this Court. That was a course he followed throughout the hearing. Some specifics excerpts from his Case Outline filed 11 March 2024 make his attitude plain:
My ex-wife is not even remotely concerned with [X] or [Y’s] welfare. It is all about forcing catholicism on them…. [the mother] and her family have shown that they will intimidate, ostracise, and abuse if noone [sic] steps in, and that they have no desire to stop, ever.
…
… the [mother] and her family have shown that they will never cease abusing my children. They think that because they follow the catholic church, this justifies any horrific actions they commit.
Despite those comments, the actual events relied on by the father are few. None could be described as remotely horrific.
The father asserted that the mother frequently called him lazy and useless throughout the relationship because he was not employed, which caused him to be “anxious and worried that this abuse would escalate or be projected onto [X]” (father’s affidavit filed 6 July 2023, paragraph 45). This, according to him, was the reason for his poor academic performance and did not enable him to complete his degree.
The mother denied calling him lazy and useless (Transcript 12 March 2024, p.81 lines 42–47).
As the person asserting that this occurred as he said, the father bears the burden of proving that event occurred on the balance of probabilities.
As may already be apparent, but will be if it is not, the father is prone to excessive hyperbole and exaggeration. It leads me to approach his evidence with caution.
Regard too, must be had to the probabilities of what is asserted. It may be said that, at least in the heat of the moment, that it is not unlikely that a person would describe a long-term unemployed partner as lazy and useless. However, the father has asserted the mother has said other things which appear to be much less likely such as (father’s affidavit filed 6 July 2023):
•I will go to the police to make false allegations (paragraph 68).
•I’ll go lie to the police. I got away with it before and I will get away with it again (paragraph 78).
•I’ll lodge a false complaint with the police if you ever act that way again (paragraph 97).
Such statements completely lack verisimilitude and the mother specifically denied the second and third statements (mother’s affidavit filed 21 July 2023, paragraphs 176 and 194).
Further, it is difficult to understand the second comment. The mother went to the police once, who took no action. What is it then that she got away with? I am not persuaded that during this event the mother abused the father as he asserted.
The father said that in or around 2018, X told the mother “I don’t want to go with you to church anymore” (father’s affidavit filed 6 July 2023, paragraph 57). The mother then allegedly screamed at X calling her a disappointment and saying “[X] is incapable of thinking for herself. Neither of you have a say in the matter, you’re not Catholic and don’t have any rights” (father’s affidavit filed 6 July 2023, paragraph 57).
The Family Consultant asked X about her experience in attending mass. X wrote “OK to miss mass, don’t usually go” (Family Report dated 1 October 2022, paragraph 60). It follows that X has not been abused for not doing so as it’s “OK” not to go.
That makes the asserted outburst by the mother improbable or, at the least, of little importance, and I am not persuaded that it occurred.
The father alleged that in May 2020 there was an argument during which the mother broke the children’s christening candles and left saying she would lie to the police. The father accepts that the mother did attend the police and reported the father as having locked her in the house (father’s affidavit filed 6 July 2023, paragraph 68).
The mother’s version was that the father broke the candles. In cross-examination she elaborated on the incident saying:
I had to call the police to come in, pretty much get me out of the house that you had locked us into…I asked my mother to call the police for me…
(Transcript 11 March 2024, p.27 lines 9–15)
It became necessary to adjourn for the day due to the father’s manner of questioning. The following day, the mother further clarified:
…I was locked in that house, and it wasn’t until I picked up my phone, and I said…“I’m calling the police,” that the door was then unlocked, and I had to leave with my…two children, my work backpack and a nappy bags, the girls in their pyjamas. And I had to walk after…it had rained all night…My mother had already called the police on my behalf. And they never arrived. They never got there…And the worst thing is to be then told by the police that if I just waited until they got there, they would have been able to charge [the father] for something. But because you unlocked the door, that’s it.
(Transcript 12 March 2024, p.43 line 27 to p.44 line 3)
It is more likely than not that the mother’s version is correct as it is supported by her complaint to the police.
The father contended that in late 2022 the following occurred:
When [X] arrived at my place, [the mother] walked across my lawn to the stairs of my house. I said to her words to the effect of “Please leave my property.” [The mother] did not do so and instead verbally abused me, threatened me and tried to blackmail me into giving her 80% of all the assets again. She said words to the effect of “I’ll go lie to the police. I got away with it before and I will get away with it again.” Once [the mother] left the property, [X] and [Y] were both distressed. I spent time consoling her. I still returned the children to [the mother] at 2pm, despite [Y] crying and saying to me words to the effect of “I want to stay with you.” I then went to the Police Station and reported the incident as my daughters and I can’t even be safe in our house.
(Father’s affidavit filed 6 July 2023, paragraph 78)
No further details of the asserted abuse, threats or blackmail are given and it is impossible therefore to give these assertions any weight. I have already determined that I am not persuaded that the quoted words were said.
However, even if it were accepted, such evidence would not assist the father. I am quite unable to see how the mother verbally abusing the father whilst standing on the lawn of a house of which she was a co-owner with every right to be there had the effect that the father and the children were unsafe. Again this shows the father’s tendency to histrionics and exaggeration and intense dislike of the mother.
That is the extent of the alleged family violence. Even if I were to take the allegations of each party at face value, that violence would be very much at the lowest end of the scale. In that case, any findings as to violence would not attract significant weight in determining the appropriate outcome for the children.
Given the findings I have made, it is even less of a concern.
The father
The father is a very angry man and, in his view, is justifiably so.
In the first couple of minutes of the hearing the father said:
…It’s 14 years of abuse…The abuse…has been going on for, well, probably her entire lifetime and will continue for her entire lifetime…That’s what these people are like.
(Transcript 11 March 2024, p.3 lines 6–15)
He described the first day of hearing as “corruption at its worst” (Transcript 11 March 2024, p.28 line 45). He described my comment that some of his questions had not been relevant as “offensive” and “corrupt” (Transcript 12 March 2024, p.37 lines 20–24).
The following exchange occurred with counsel for the mother:
[COUNSEL FOR THE MOTHER]: Sir, I’m going to suggest to you that you are very angry about these proceedings. You would agree with that, wouldn’t you?
[THE FATHER]: I would say that I have a right to be angry about these proceeding given how I’ve been treated and that does not reflect on my outside life, as seen in the fact that I am the escalation point for very upset people throughout my ordinary working life. I’m the one that calms them down. I’m the one that deals with their frustrations […] that they take out on my staff and I don’t go blaming them for it. It’s just – you know, if you’re put in an extreme situation, well, people may get upset. That’s not – to use a really bad urban term, don’t hate the player, hate the game.
[COUNSEL FOR THE MOTHER]: You see, sir, what I’m going to suggest to you is that you’re enraged by these proceedings and that - - -?
[THE FATHER]: Have I physically assaulted anyone? Do you know what the word “engaged” means? I would say that 14 years of abuse, I would say that proceedings where it has been found – where I haven’t been listened to, where nothing I – where I spent tens of thousands of dollars to submit affidavits that the judge didn’t even read, where my ex-wife has deliberately lied to the police because she didn’t get her own way, and because I stood up and told her to stop abusing my kids. I’m pretty sure if you took all that in a thing, you would be hard to find someone that isn’t upset in some way by that.
(Transcript 12 March 2024, p.119 lines 26–44)
The third morning of the hearing commenced with:
[THE FATHER]: Yesterday morning, upon entering the court, I was physically accosted by a security guard who attempted to manipulate the events in this court. He pulled me aside, attempted to physically intimidate me, claimed that if I asked questions again that he didn’t like that he was going to prevent me from being in this court, or being in this entire building with complete disregard to whether you said so or not.
…
So that…it would be automatically ruled against me. I find that intimidating, and a threat that would affect my ability to question the witness, that would affect my ability to even feel safe coming here, and I want the man removed from this site immediately…because it’s another sign of – a security guard, of all people, trying to manipulate court proceedings, and trying to do something that would result in the court automatically ruling against me.
HIS HONOUR: Now, [Mr Erkin], I don’t have control over the court’s security services, or control over who enters the building or not. So if you have a complaint about the - - -
[THE FATHER]: So by the time they deal with it, it will be too late.
HIS HONOUR: Just – but the – if you have a complaint about the actions of the security service, you will have to take it up with the head of security. And just because they do things that they regard as being necessary in the course of their job for the protection of members of the public generally, as well as people in this courtroom - - -
[THE FATHER]: Well, a deliberate attempt to manipulate proceedings, your Honour.
(Transcript 13 March 2024, p.133 line 6–42)
In the course of his oral evidence the father said:
I would accept the proposition that I have issues with the way the Catholic Church has treated people in the present and the past including, but not limited to gay people, atheists, the Jews that have been massacred not only in mid ’30s and ’40s Germany, but for over a thousand years beforehand, their attitude towards Muslims, their attitude towards pretty much every other religion and, in particular, their attitude towards people that don’t follow the values that they set up. And that – and the way that that attitude, and the way that my ex-wife and her family treat people, including each other, who they see as not following values when, in fact, those people are not doing anything wrong, not hurting anyone, and the way that my child, [X], has been treated…for simply saying that she didn’t want to go to church, and didn’t believe in God.
(Transcript 13 March 2024, p.161 lines 31–43)
The Family Consultant described the father as being “frustrated and cynical towards the court process and its perceived bias towards [the mother]” (Family Report dated 1 October 2022, paragraph 45) and noted his concern about “the bias court system and corruption” (Family Report dated 1 October 2022, paragraph 46).
Of particular concern was the following, as recorded by the consultant:
…[The father] stated that [X] and [Y] frequently ask to spend more time with him. He explained that he responds by saying, “I wish you could, but your mum is a horrible person and is stopping it”. The Family Consultant spent time exploring with [the father] how [X] and [Y] might feel when he says denigrating comments about [the mother]. [The father] displayed limited insight and stated, “I tell them the truth and plan to give them all the information so they can make an informed decision”. He further stated that he has told [X] that her mother was abusive towards him.
(Family Report dated 1 October 2022, paragraph 46)
In her oral evidence, the Family Consultant said, when asked if the father was an angry man:
Very cynical, very – he’s somewhat angry, somewhat in interview. Very cynical, very scathing of a lot of things towards the court system and Catholic education system – very focused on those issues.
(Transcript 13 March 2024, p.151 lines 25–27)
As I have said, the parties’ matter was due to be heard on 3 August 2023. On 26 July 2023 the father sent the following email to the former ICL and the associate of the judge before whom the matter was listed:
[Ms M] and [the judge],
How many lies do my ex-wife and her lawyers need to tell before you wake up. [Ms H] specifically told me she is located in [Suburb G], and a quick search confirms that, as you will see below.
I will point this out to you clearly, seeing as her lawyer has previously inferred that I need to hold your hand like a two year old – [Suburb G] is nowhere near [Suburb J], and even if she were in [Suburb J], it does not change the fact that they deliberately acted through changing the wording in the court order and organising the appointments for late on a Thursday to try and prevent me from being able to talk to my daughters on a Thursday night.
The continued favouritism towards their unethical behaviour and prejudice against me from the beginning is disgraceful. Your entire profession should be thrown in jail for extortion, theft and corruption. You think you can all get away with overcharging, charging money for work not done, especially after being criticised, and then using the threat of taking everything from someone and leaving them in poverty and unable to see their own kids despite being the victims of domestic violence, not the perpetrators to force them to pay you and your cronies ridiculous amounts of money. How you have not all been killed yet is beyond comprehension.
I will explain to you how a response works, as you are obviously unclear. A response comes after the thing you are responding to. The court orders were clear and yet again, you showed my ex-wife and her lawyers that they can commit any crime, tell any lie, and completely ignore any court orders, because you will just let them pull your strings and make you dance like the pathetic puppets you are.
Because of your corruption and your gross incompetence I have lost years with my daughters and suffered constant abuse and threats from my ex-wife, while you sit by day dreaming of your next luxury car or mansion that you are buying with all the proceeds from this sham. Your behaviour and the behaviour of all the family law lawyers and judges is a disgrace to humanity. I have done nothing wrong. I even supported my ex-wife when her own relatives were abusing us, something she is looking to replicate. The domestic violence has always been unidirectional, from a group of religious bigots against myself and my children. If you had the slightest bit of integrity, you and your colleagues would have done the right thing and killed yourselves out of acute shame at your actions by now. It’s not too late to do so.
You have seen and heard their lies that are so obvious Helen Keller could tell they are lieing [sic], and yet you have continually let them get away with it. You have seen the evidence that she doctored evidence to fool you into thinking I was not paying bills, and you have ignored it. If you open your eyes and look and listen you will see that my ex-wife and her lawyers have done everything possible to prevent me from having a say, including serving the original documents late on the afternoon of the last afternoon before Christmas when all law firms were already closed for weeks, lieing [sic] in the first mention so obviously that my 4 year old could tell it was a lie from the way [Mr K] was stuttering and changed his story 5 times in two sentences despite not having a stutter, deliberately withholding details of that first mention until 3am of the morning of the mention in order to try and make me miss it despite being ordered to provide me the details over a week beforehand, trying to claim that Legal Aid don’t take months and months to get back to you despite everyone who has a clue knowing that this is the case, trying to prevent me from having a say in any hearings by cutting me off and lieing [sic] to the court, filing documents that I have a right to have a reasonable amount of time to respond to a [sic] the last minute or after they are due so I am unable to respond to them, etc, etc. All the while you sit there doing nothing, not doing your job, whilst they commit these crimes.
My ex-wife has continually breached court orders because she knows her puppet will just let her get away with it. Every time you claim that you allow her to do so because it might affect my kids, but that is the biggest load of crap. It is because you are prejudice and greedy and corrupt. The registrar bullied me into accepting a court order for 6 months where I only got to see my kids for 4 hours a week, and there was a court order to be in place after that where I had them every second weekend. Even [Ms L], who showed how prejudiced this system is against the father [illegible] children by assuming I was the one committing violence against my ex-wife before she had even bothered reading anything, clearly saw that court order. Yet, when I brought up that my ex-wife had breached it, it suddenly disappeared. I suspect you deliberately deleted it.
That you would allow someone like [Ms L] to even be part of the process when she clearly has a prejudice against men and is incapable of impartiality or conceiving that an abusive lieing [sic] bigoted Catholic woman might lie to the police despite the evidence being there in her own writing of her planning for a year beforehand to do something like this, shows how corrupt you are. And don’t you dare claim that it’s the system or that this is the only system we have, so we have to go by it. That is just a copout used by the lazy, the greedy and the corrupt. According to your own system and your own words, my ex-wife’s affidavit should not be accepted. It clearly states that she had to request from you if for it to be handed in late, or “It would not be accepted under any circumstances”. She has not had to deal with greedy law firms trying to suddenly charge her additional thousands dollars for nothing because they think they can get away with anything because all the other lawyers and judges are just as corrupt and greedy. She has not had them deliberately screw things up over and over, and force you onto other lawyers so that they can charge to read the same document or write the same document 10 times over. She has not had lawyers charge more than 10 thousand dollars for a couple of hours reading, sitting in court for 2 and a half hours, and then forwarding a couple of emails like criminals. She only works a few days a week for less than 5 hours a day, less than 40 weeks a year, despite my children still being in childcare 5 days a week, more than 40 weeks a year. They deliberately left it to the last minute, literally sending it at 5 minutes before closing, in order to prevent me from being able to adequately respond, and yet again, you sit there and pander to them, allowing this atrocious behaviour and deliberately harming me. They do this, because [Mr K] knows his client is the abusive one. He knows they have no case. He knows they are lieing [sic] and falsifying evidence. And he realised quickly in that first mention how corrupt you are, and that he could treat you like a puppet as he pulled the strings.
I hold both of you personally responsible for the continuation of the violence levelled against myself and my daughters. I hold you responsible for the time I have missed with them. You may think you are beyond reproach and that you and your cronies can just continue running your extortion racket, but where others have just given up and committed suicide, for which you are guilty of murder, do not think for a minute that there is anything I will hesitate to do.
(As per original)
(Exhibit MS-1 of the mother’s affidavit filed 19 February 2024, p.3–4)
Of this email, Mr Erkin said:
I was extremely frustrated at being continually denied access to my children and I was trying to get some help. I was also continually frustrated about the court showing complete lack of impartiality…and favouritism. I was trying to get some help.
(Transcript 12 March 2024, p.105 lines 41–45)
He was of the view that the email was justified because the approaching final hearing “would be completely void of any impartiality or any fairness towards [him]” (Transcript 12 March 2024, p.107 lines 7–8).
The letter does not seek help. It is a sustained attack on four people in violent uncontrolled language. The last paragraph, on one view, which is the one I favour, makes scarcely veiled threats of physical harm.
The father said that this was a one-off event due to the pressure he was under at the time. Even accepting that to be so for the moment, it is still a disproportionately nasty and threatening email.
The Family Consultant did not see it as a one-off event, because “some of the tone in the email was similar to the tone in the interview” (Transcript 13 March 2024, p.157 line 44). She added that “one-off incidences still explain a lot of what’s going on, and it’s inappropriate whether it’s a one-off or an ongoing thing” (Transcript 13 March 2024, p.156 lines 37–39). When pressed on this point by counsel for the mother, she said that having read the email, a mental health assessment of the father may be helpful given his very strongly held views (Transcript 13 March 2024, p.151 lines 1–6).
The Family Consultant added:
The email is concerning. I think it does – it does point towards the need for mental health support. [The father] is very cynical to accessing mental health support in interview, and I did note that that would be a barrier to its effectiveness. As to the impact with specific parenting capacity, it is difficult to comment on. Yes, if – if [the father] isn’t able to separate these extreme views from when spending time with his children, I do think that is a significant problem in relation to mental health affecting parenting.
(Transcript 13 March 2024, p.151 lines 14–20)
The Family Consultant agreed that she observed a lack of respect and acceptance of authority adding, “it very much felt like he presented himself as the victim in the situation with everyone else against him” (Transcript 13 March 2024, p.151 lines 42–43).
In her oral evidence the Family Consultant affirmed the view expressed in the Family Report that the father “displayed limited insight into the impact of his actions on the children, specifically in the way that he talks about the mother to them” (Transcript 13 March 2024, p.152 lines 1–3; Family Report dated 1 October 2022, paragraph 69).
There is no doubt that the father is a very angry man. The transcript does not fully reveal the belligerent manner in which the father approached the hearing, frequently making speeches, talking over the top of everybody, arguing with rulings after they were made and behaving in a thoroughly disrespectful way to everyone in the courtroom. I warned him twice that his behaviour in the courtroom may be a relevant matter when considering the outcome in these proceedings.
Of course, that conduct must be relevant to the issues in the proceedings. He is entitled to hold views and to hold them strongly. My only concern is the possible impact of those views and the anger of the father insofar as they concern the best interests of the children.
First, a court hearing takes place in a formal controlled setting. If the father cannot control himself and behave in that context, it is extremely unlikely that he would able to do so in a regime of supervised time. Indeed, if he demonstrated such behaviour at a contact centre, it is likely that the centre would refuse to provide services.
Secondly, there are credit issues as the mother denies the occurrence of a few matters on which the father strongly insists. On the third day of the hearing, he complained about the conduct of counsel for the mother in the following terms:
[THE FATHER]: My other complaint is in regards to [counsel for the mother’s] actions towards me yesterday.
HIS HONOUR: Yes? What’s the complaint?
[THE FATHER]: If I had spoken, and used physically intimidating body language against the applicant, as he did to me to try and force me into a false confession, all for a money grab which is – what came up at the end was that he wants money for days that he wasn’t here. He didn’t work. He probably did work for other people.
HIS HONOUR: Yes. All right. Well, that’s - - -
[THE FATHER]: I don’t find it acceptable that these double standards exist. I don’t find it acceptable that just because of my ..... that, yes, emotional abuse is seen as acceptable.
(Transcript 13 March 2024, p.134 lines 1–15)
My observation was that counsel acted in an entirely professional manner in difficult circumstances.
It follows then that the father sees events through the prism of his anger towards the Catholic Church, the mother, the Court and lawyers. That makes it difficult to accept evidence of his that is disputed and not supported by other evidence.
The father, of course, insists that he is justifiably angry. He said in his Case Outline:
[The mother], her mother, her sisters and her eldest brother have a long and continuing history of abusing any siblings or cousins that commit such horrific crimes as having a boyfriend who isn’t catholic, not attending church when they don’t believe in any gods so have no reason to be there, taking the absolutely normal step of living with someone before being married, and […] being gay. They will abuse [X] and [Y] just the same.
They have lied, manipulated and deceived in order to make her siblings hate their own father, for the crime of saying they should care about each other first, not the church. This sums up her attitude towards [X’s] welfare. It will never be taken into consideration. The church’s abusing desires will always take full priority, no matter what the consequences to my kids. Her own brother tried to commit suicide because of this abuse.
…
My ex-wife is not even remotely concerned with [X] or [Y’s] welfare. It is all about forcing catholicism on them. [X] has already said that she doesn’t believe in any gods or want to go to church. [The mother] and her family have shown that they will intimidate, ostracise and abuse if noone steps in, and that they have no desire to stop, ever.
She lied to the court claiming the court needed to urgently force the enrolment of my children in catholic school, as [X] would only be able to make friends at the start of year 7 and if she started later she would never make friends. Where is that concern now? Where it always was, never there.
She also said there would be no spot for them if it wasn’t forced urgently. Again, this was obviously a lie, because she is suddenly saying there is.
She claimed it had nothing to do with catholicism and forcing religion on [X], after previous claiming she should get special treatment from the court because she is catholic. Now she is back to claiming she should get special treatment because she is catholic, to force catholic lack of values on [X] and [Y]. This shows how much she lies and continually changes her story, and how little she cares for anyone’s welfare barr the catholic church’s. There is no amount of crimes against humanity the catholic church or their followers or their schools can commit that would result in [the mother] and her family even contemplating thinking that what they do is wrong. This sums up her so called values. They are the same values and rhetoric as those who commit honour killings and other crimes for their religions. She has falsely claimed she respects [X’s] lack of catholic beliefs, whilst simultaneously expressing that she should be allowed to force her catholic beliefs on [X] and [Y], which she has proven she will do through family violence. She talks about how she talked to other parents at the school and they think the school is great. These are people that will always think the catholic church and any catholic schools are great no matter how many little boys they molest. Their opinion is beyond biased. It is fanatical.
This all started because she didn't like that I told her to stop abusing [X] when [X] got old enough to realise there is such thing as gods, that it is a massive lie, and that [X] wanted to stay home with me, not go to church. She has initiated all this so she can have carte blanche to abuse my daughters into supporting the catholic church and their abhorrent beliefs, without any accountability.
(Father’s Case Outline filed 11 March 2024, p.2–3)
The father’s evidence is replete with abusive comments directed to the Catholic Church, the mother’s relatives and the mother herself. In the course of the hearing the father rhetorically asked “Do you know how much abuse I’ve suffered for 14 years?” (Transcript 11 March 2024, p.27 lines 35–39).
Despite the barrage of complaints about the mother, the father adduced surprisingly little evidence to support them. As far as I can distil, it is the following.
The mother’s sister moved in to live with a man without marrying him. Some members of the family, including the maternal grandmother, who are all practising Catholics, ostracised the sister from the family for about a year. This led to further difficulties between those members of the family and the maternal grandfather who did not agree with them.
The mother moved in to live with the father before she was married to him. This too, caused difficulties between her and the members of her family for a while it seems and the mother was in tears before her wedding day because of this.
I have already referred to the asserted incident concerning X saying that she did not want to attend church. Assuming, for the moment, that the event occurred as the father described it, there is no evidence from him that it was repeated.
Even if the mother called the father lazy and useless many times, that is something usual that might arise in a family where one person is working and the other is not. It may be abusive, but in the circumstances of this case, it falls well short of being described as family violence as there is no acceptable evidence that it was coercive or controlling or caused the father to be fearful.
In the absence of more detailed evidence, it is difficult to give any weight to claims made by the father that the mother abused and vilified the children during FaceTime calls.
There is no basis for finding that the mother abused and vilified the father or the children. The fact that the mother would prefer the children to grow up as practising Catholics or to attend Catholic schools is not evidence of itself that the mother will thereby abuse them. Many people do so and live normal happy lives. Choice of a religion only becomes a relevant matter when there is evidence that a choice of religious practice may result in a risk of physical, psychological or emotional harm to the children. The father’s subjective beliefs about the Catholic Church in general are not evidence of such harm.
Best interests of the children
The provisions of s 60CC of the Family Law Act 1975 (Cth) set out the matters that must be taken into account in determining what orders are in the children’s best interests.
The benefit to the children of having a meaningful relationship with both parents
The children clearly have a good relationship with both parents who each love their children immensely. In interviews for the preparation of the Family Report, albeit in October 2022, the children were observed to relate well with both parents. Each of them demonstrated insight into and understanding of X’s difficulties.
The children would benefit from a continuing relationship with both parents.
The need to protect the child from physical or psychological harm
Until the father wrote the email on 26 July 2023, there was little evidence that would suggest he posed a risk of harm to the children. Whilst it is more probable than not that on one occasion the father prevented the mother from leaving a room for a while, there was no more than that.
Taking into account the email, I am not satisfied that there is a risk of physical harm to the children that would prevent them spending time with him.
The Family Consultant recorded his care of the children and understanding of theirs needs, especially X’s.
The continuing abuse of the mother is more problematic. In the Family Report the Family Consultant referred to the perceived risk that the father will seek to turn the children against the mother (Family Report dated 1 October 2022, paragraph 75).
The children have not spent any time with the father since the email was sent. The Family Consultant said:
I think considering there hasn’t been contact for several months, going back to overnight contact would be a big jump. So for [X] and [Y’s] sake, a gradual transition back into contact may suit them better…
(Transcript 13 March 2024, p.137 lines 41–44)
Orders were previously made for the father to attend a Parenting After Separation course. He did not do so because he does not see them as helpful or relevant (Transcript 13 March 2024, p.164 lines 35–39).
The Family Consultant said:
[COUNSEL FOR THE ICL]: …what recommendation would you make for contact before completion of that course and - - -?
[FAMILY CONSULTANT]: I do think completion of that course is important. I did note in interview the father’s attitude and disregard towards the mother was a problem, and him speaking about her negatively in front of the children. I do think that course is important to help him understand the importance of speaking about the mother in a respectful and neutral way for their sake. Yes, until that course is completed, perhaps day visits would be more appropriate. Yes, it depends what the reasoning for the kids were in why they ceased overnight time or from the mother’s perspective. So much time has passed, it’s difficult to comment on.
(Transcript 13 March 2024, p.138 lines 13–22)
That does not raise a risk of harm to the children, but there is caution as to how much time is in the children’s best interests.
The views of the children
In the interviews both children expressed the view that they would like to spend time with the father. The mother said they are now not so keen, but as the Family Consultant opined, care must be taken about the weight to be given to those statements as we do not know the circumstances in which they were made.
The nature of the relationship of the children with each parent and any other persons
The children have a good relationship with the mother and retain a relationship with the father. There was limited evidence as to their relationship with other family members but there is no reason to think it was not the usual. If the children are in the primary care of the father, it is difficult to see how he could support a relationship between the children and the maternal relatives or the mother given his views of them.
The extent to which each of the parents have taken the opportunity to participate in decision making, spend time with the children and communicate with the children
The father has actively sought to be involved in the children’s lives.
The extent to which each of the parents has fulfilled their obligation to maintain the children
The father has not complied with his obligations to pay child support because he believes “the system is broken” and because if he does pay the money, he believes that it will not be spent on the children but on fighting him (Transcript 13 March 2024, p.166 lines 34–45). His answers during cross-examination and his closing submissions suggested he would rather spend the money on items that the parties agree the children need following receipt of the relevant invoice or receipt. That is quite a controlling attitude. His approach, more generally, reinforces the view that the father considers he is always right, no matter what others, in this case the law, say.
The likely effect of any change in circumstances on the children
X has particular needs and the unchallenged evidence is that she is wary of and upset by change. She would therefore be particularly vulnerable to a change of residence. That should not take place unless there is a compelling reason. There is none in this case.
Further, the father, if the primary carer, will not support relationships with the children’s friends. He told the Family Consultant that he “will not support playdates or birthday parties with ‘bigoted and homophobic families’” (Family Report dated 1 October 2022, paragraph 80). Having regard to his views, I take that to include all Catholic families.
The children have a close relationship with their mother and it is likely that they would be most upset if changed to the primary care of the father.
Any practical difficulty and expense of the children spending time with either parent
There appears to be no practical difficulty or expense associated with the children spending time with both parents.
The capacity of each parent to provide for the children’s needs
Despite the father’s allegations, I am well satisfied that the mother can provide for all the needs of the children. As to the father, the concern that his intensely negative view of the mother and her relatives, in particular, will adversely impact on his capacity to provide for the children’s emotional needs. Caution is required.
Disposition
There is no evidence that the mother has or will continue to abuse or vilify the children. There is no case therefore to support a change of residence to the father. I am satisfied that such a change of circumstances would be difficult for them, particularly X.
It follows that such an order will not be made and the children will remain in the primary care of the mother. The father did not propose any alternative orders if that turned out to be the case.
It will be in the best interests of the children to spend time with the father, ideally unsupervised. It must be remembered that the father played a significant role in their lives, particularly when they were younger, when the mother was working and the father was not.
However, given the vehemence of the father’s views of the mother, as expressed in his evidence, his Case Outline, his comments in court and the email of 26 July 2023, it is difficult to see how the father’s time with the children will not be coloured by those views. His answer to the following question was less than satisfying:
HIS HONOUR: Now, just before you go out of the witness box…can I ask you this. Supposing you’ve got the children with you and they start talking about their mother, what are you going to say about her?
[THE FATHER]: It would depend on what they’re saying about her, because if they complain about not having – not being fed breakfast, for example, or not getting their jumper back from school, I might ask how often it’s happening. I might make inquiries without necessarily mentioning her as the – what the problems they are experiencing are. I would need to know the avenues moving forward of how I would report any issues so that they do get looked at rather than just going under the carpet, so to speak.
(Transcript 13 March 2024, p.195 lines 5–13)
There is no evidence that the children are not being fed and jumpers can be left behind at times. It seems probable to me that given extended time with the children, the father could not restrain himself from trying to obtain information which, to him at least, shows the mother in a bad light or expressing his views about her.
I also bear in mind the Family Consultant’s comments about overnight time and the need to move carefully. Appropriate regard must be had to X’s difficulties and her difficulties with changes in her circumstances.
I have spoken earlier about the difficulties I perceive about the effectiveness of supervised time and whether the father will be able to control himself. In this case, however, that is the point of supervision – if the father behaves inappropriately, the visit will cease. That will be protective of the children and therefore their interests.
Both the mother and the ICL propose that the father complete a Parenting After Separation course before there is a move to unsupervised time. As I have said, the father does not believe in them, leading to a risk that supervised time would be indefinite, which would be undesirable.
Nevertheless, as outlined by the Family Consultant, the father needs some assistance to see that his behaviour towards the mother is capable of negatively impacting the children. The benefits of successful completion of such a course outweigh the negatives.
The course must be completed in person. I do not accept, in this case, that an online course will suffice. I have in mind a course of substance over several sessions, five at least, over a month or more. The course will be as approved by the mother in writing, with approval not to be unreasonably withheld.
Thereafter, and provided the father has successfully completed each session of supervised time, unsupervised time will commence. I am not persuaded, due to the extreme anger of the father, that there should be a move to overnight time.
I will make no order for electronic communication. It has caused difficulties in the past and it can be difficult for children to engage in it. It the children wish to speak to the father they should reasonably be allowed to do so. On balance, I consider that the mother is likely to facilitate this.
The mother will be the primary carer of the children. The father seems to hold the mother and her views in less than contempt. She is fearful of him. There is no prospect of the two parents cooperating in agreeing on long-term issues and absolutely none on schooling or religion. Whilst X is doing well in her first year at a state school, the mother was appropriately guarded. Whilst she was happy for her to stay there, if things did not work out well, she would propose a move, probably to a Catholic school. The father would never agree.
Thus, whilst there is presently no issue as to schooling, one might arise.
It follows, inevitably, that equal shared parental responsibility is not a viable option. As primary carer the mother will therefore have sole parental responsibility. There is no reason to think that she will make decisions other than in what she considers to be the children’s best interests. The children are more likely to have a continuing relationship with friends and family under her stewardship.
I consider these orders to be in the best interests of the children.
PROPERTY
Assets
Ultimately, there was little dispute about the assets of the parties. The balance sheet includes a value for the major assets of the parties, a property at Suburb D, but it is well out of date and neither party suggested it carried that value. It follows that it will have to be sold.
The father said that he wished to keep the property but did not adduce any evidence as to his ability to raise the funds or to identify, in the absence of a value to be ascribed to the home, how such a payment could be calculated.
Both parties initially contended an amount for personal effects however counsel for the mother ultimately submitted both amounts be removed from the balance sheet. The father did not suggest a different approach in his submissions and accordingly, I have not included these amounts in the balance sheet.
OWNERSHIP DESCRIPTION VALUE ASSETS Joint Suburb D property $660,000 Wife Car $3,500 Wife Bank account $1,000 Wife E Company shares $1,079 Husband Car $7,500 Husband Bank account $23,000 Husband E Company shares $1,709 TOTAL $697,788 LIABILITIES Joint Mortgage on Suburb D property $42,000 Wife HECS debt $11,000 Husband HECS debt $10,753 TOTAL $63,753 SUPERANNUATION Wife Superannuation Fund 1 $193,413 Husband Superannuation Fund 2 $10,799 Husband Superannuation Fund 3 $64,219 TOTAL $268,431 NET TOTAL ASSETS (including superannuation) $902,466
The total assets are $966,219 with the net assets being $902,466.
Contributions
The parties had little in the way of assets when they met. The mother worked for a significant period of the relationship, whilst the father was unemployed, studying at times. It is likely that he bore some of the burden of raising the children because of that. The parties agreed that their respective contributions up to the date of separation in May 2020 were equal, which seems appropriate.
Since separation, the mother has borne the primary care of the children. She has also largely been responsible for their financial support. The father has paid for some items, such as a laptop for X as well as child support until he stopped payments in November 2023.
The father has paid the mortgage payments on the house but has had the benefit of living there rent free. The mother has had to rent a home for her and the children.
Taking these matters into account and giving weight to the mother’s care and support of the children, contributions to the date of the hearing are assessed as favouring the mother as to 60 per cent and the father 40 per cent.
Future needs
As to the future, the mother will continue to have the primary support and care of the children, including financial support. It is not clear what future needs X may have, such as a psychologist and therapist experienced in autism and selective mutism, which seem quite likely given her reliance on them in the past. The costs of that therapy which falls on the parents will, most likely, have to be borne by the mother alone. The father will only pay child support if compulsory steps are taken against him.
Whilst the mother is currently not working as an educator to facilitate her studies, she has the capacity to do so and earn more than the father. Neither has any illness or condition presently known which will affect their earning capacity.
Taking these factors into account it is appropriate there be a further 10 per cent adjustment in the mother’s favour.
Disposition
The appropriate division of property is therefore 70 per cent to the mother and 30 per cent to the father.
Using the above figures for the moment, the mother will receive $631,726.
She will retain assets of $198,992 less $11,000, which totals $187,992. Therefore, she will need to receive $443,734 from the sale of the Suburb D property.
The father will receive $270,740. He will retain assets of $107,227 less $10,753, which totals $96,474. In order to receive 30 per cent of the property he must receive $174,266 from the Suburb D property.
I note that the mother will receive a greater share of superannuation than the husband, which she cannot immediately access. The husband will retain $23,000 in cash as well as his share of the proceeds of sale. The differential between them is $360,986 which is justified by the small size of the asset pool and the need of the mother to house and provide for the children.
In the circumstances, I consider that outcome to be just and equitable. The orders will provide for the house to be sold and the parties to receive the above sums from the proceeds. If the house sells for more than $660,000, the parties will share in any surplus in the 70/30 proportions. If the property sells for less than that sum, or if the costs of its realisation mean that there are insufficient proceeds to make the payments, the payments will be reduced accordingly in the same proportion.
COSTS
The hearing listed on 3 August 2023 did not proceed because of the email sent by the father which completely derailed it. It was appalling conduct which caused the mother and the ICL to waste the legal costs which they had incurred. There was no challenge to the amounts sought. An order will be made that the father pay the mother’s costs fixed in the sum of $7,500 and the ICL’s costs of $2,684, being the previous ICL’s costs. They will be paid from the father’s share of the property settlement as it is unlikely that they would be paid voluntarily.
The ICL, as she is obliged to do sought an order that the parties pay her costs. Such an order is likely to cause hardship to the parties, especially the mother who has the care of the children. Accordingly, it will not be made.
I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 15 May 2024
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