Staley & Birch
[2022] FedCFamC1F 494
•13 July 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Staley & Birch [2022] FedCFamC1F 494
File number: CAC 1456 of 2017 Judgment of: GILL J Date of judgment: 13 July 2022 Catchwords: FAMILY LAW – PARENTING – Where the father seeks sole parental responsibility for the child – Where both the mother and father are impacted by mental health issues – Where expert recognised that father had taken active steps to address mental health issues, whereas mother has limited insight into her conditions and taken minimal steps to receive support – Where mental health of parties has bearing on the capacity of the parents to care for their child – Where the relationship between parents has been marked by mutual acts of violence – Consideration of best interests of the child, particular regard for facilitation of meaningful relationship between both parents – Orders made for the father to have sole parental responsibility and for child to spend time with the mother.
FAMILY LAW – PROPERTY – Settlement in relation to end of de-facto relationship which exceeded six years – Assessment of contributions made by mother and father – Where there are cross allegations of family violence – Where mother seeks application of Kennon principle – Where mother was incarcerated for shooting the father – Where mother alleged her contributions were made arduous due to her incarceration – Where responsibility for those contributions being rendered more arduous falls upon the mother rather than the father.
Legislation: Family Law Act 1975 (Cth) Part VIIIAB, ss 60B, 60CA, 60CC, 65DAA, 90SF Cases cited: Benson & Drury (2020) 62 Fam LR 1
Bevan v Bevan (2013) 49 Fam LR 387
Britt v Britt (2017) 56 Fam LR 526
Dickons v Dickons (2012) 50 Fam LR 244
Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143
Kennon v Kennon (1997) FLC 92-757
Kowaliw & Kowaliw (1981) FLC 91-092
Jollie & Dysart [2014] FamCAFC 149
Marsden & Winch (No 3) [2007] FamCA 1364
Mazorski v Albright (2007) 37 Fam LR 518
Omacini & Omacini (2005) FLC 93-218
Phillips & Hansford(No 2) (2019) 60 Fam LR 160
Stanford v Stanford (2012) 247 CLR 108
Sweet & Sweet [2022] FedCFamC2F 676
Trevi & Trevi (2018) FLC 93-858
Division: Division 1 First Instance Number of paragraphs: 352 Date of hearing: 24–28 May 2021 Place: Canberra Counsel for the Applicant: Ms Warwick Solicitor for the Applicant: Pyrmont Legal Counsel for the Respondent: Mr Connor Solicitor for the Respondent: Neilan Stramandinoli Family Law Solicitor for the Independent Children’s Lawyer: Legal Aid, ACT ORDERS
CAC 1456 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR STALEY
Applicant
AND: MS BIRCH
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
13 July 2022
THE COURT ORDERS THAT:
PARENTING
1.All previous orders concerning the child, X, born in 2012 (“X”) are discharged.
2.Mr Staley, (“the father”), has the sole parental responsibility for X.
3.X shall live with the father.
4.Unless otherwise agreed in writing, that X spend time with Ms Birch (“the mother”) as follows:
(a)During X’s school term time, for each alternate weekend (commencing on the first weekend after school resumes) from after school Thursday to the commencement of school on the following Monday and if a long weekend then return on the following school day;
(b)For half of each term school holiday period commencing on the Friday after the last day of school term until 5.00 pm on the Saturday closest to the midpoint of any school holiday;
(c)The second half of the December/January school holiday period in even numbered years and the first half of the December/January school holiday period in odd numbered years, with handover to occur on the Saturday closest to the midpoint of the holiday period at 5.00 pm;
5.For X’s birthday, in the event that he is not otherwise, pursuant to these orders, spending time with both parents, X shall spend from after school (or 3 pm on a non-school day) until 7.30pm with the parent that he is not otherwise spending time with, or as otherwise agreed in writing.
6.Changeover shall take place at the child’s school on school days and at the D Service Station, Suburb B on non-school days or as otherwise agreed in writing.
7.Should X require emergency treatment, including admittance to hospital, the parent whose care X is in shall advise the other parent as soon as practicable.
8.The father is restrained from physically disciplining X.
PROPERTY
9.The net proceeds of sale of the parties’ property currently held in the trust account of Q Solicitors of $1,030,117.91 be disbursed in the following manner:
(a)In the sum of $713,794 to the father;
(b)The balance of $316,324 to the mother.
10.Except and otherwise provided for in these Orders, the mother shall retain her right, title and interest, and be as against the father, the sole legal and beneficial owner of the following:
(a)Any savings in her name;
(b)Any furniture and effects in her possession, custody or control;
(c)Her superannuation benefits and entitlements;
(d)All other property currently in her possession, custody or control.
11.Except as otherwise provided for in these Orders, the father shall retain his right, title and interest, and be as against the mother, the sole legal and beneficial owner of the following:
(a)His Motor Vehicle 2;
(b)His Motor Vehicle 3;
(c)His Motor Vehicle 5;
(d)Any savings in his name;
(e)Monies in the parties’ joint account;
(f)The DD Company Shares;
(g)The BB Company shares;
(h)His EE Company shares;
(i)Any furniture and effects in his possession, custody or control;
(j)His superannuation benefits and entitlements; and
(k)All other property currently in his possession, or control.
12.The parties shall forthwith take all steps and execute all documents to cause the accounts containing the shares and monies referred to in the immediately preceding order to be operable solely by the father.
13.The mother cause the Motor Vehicle 3 to be delivered to the father within 7 days of these orders.
14.Except as otherwise provided for in these Orders, the mother shall be solely responsible for and shall indemnify the father in relation to all liabilities in her sole name and for the Commonwealth Bank Credit Card.
15.Except as otherwise provided for in these Orders, the father shall be responsible for and shall indemnify the mother in relation to all liabilities in his sole name and for the debt owed to the RR childcare facility.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Staley & Birch is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
INTRODUCTION
The parties to this matter are Mr Staley, the applicant father, and Ms Birch, the respondent mother. The parties did not marry. Their relationship commenced in about 2008 and they commenced cohabitating in July 2009, ending in 2015 at which time the mother was incarcerated for shooting the father, following an incident of violence perpetrated by the father upon the mother. There is one child of their relationship, X, born in 2012 (“X”).
An Independent Children’s Lawyer (“ICL”) was appointed on behalf of X.
These proceedings concern the arrangements for X that will serve his best interests, and the appropriate division of the parties’ property.
ORDERS SOUGHT
The orders sought by the father are set out in his Outline of Case document filed on 21 May 2021. The parenting orders sought by the mother are set out in her Outline of Case document filed on 19 May 2021. The ICL seeks orders as set out in her Outline of Case document filed on 20 May 2021. The orders sought by both parties and the ICL are set out in full at Annexure A and B of this judgment.
In summary, the father seeks orders to hold sole parental responsibility for X and for X to live with him. He seeks orders that X spend each alternate weekend from Friday until Monday with the mother, along with periods during the school holidays.
In relation to property, the father seeks the payment of various expenses, adding back of various expenditures with generally a 75-25 per cent division of non-superannuation property in his favour, with each party to retain their superannuation.
In summary, the mother seeks for the parties to have equal shared parental responsibility for X. She seeks for X to live with her, and for X to spend time with the father each alternate week from after school Wednesday until school on Monday, along with school holiday time. In the alternative, she says that the arrangement should be for a 50-50 division of time.
In general terms, the mother seeks orders to divide the parties’ non-superannuation property 75-25 per cent in her favour, with each party to retain their superannuation.
The ICL seeks orders such that X live primarily with the father and spend time with the mother each second weekend from Friday after school until Tuesday morning with the mother, along with school holiday time. The ICL further sought that the father have sole parental responsibility, but be required to consult with the mother in relation to certain decisions.
MATERIALS RELIED UPON BY THE PARTIES
The written material relied upon by the parties ranged far beyond what was grappled with by them at trial. In particular, the mother’s affidavits contained a vast array of allegations against the father, some of which appeared inherently unlikely, and many of which were not explored with the father during the trial.
Each of the parties limited the scope of what was covered during the trial, presumably restricting themselves to deal with the matters that they regarded as of forensic importance in resolving the dispute about X, and in resolving the property dispute. Accordingly, despite the array of allegations presented in the affidavit material, it is that which received focus at trial that receives the greatest emphasis in the judgment, avoiding the dangers associated with relying heavily on aspects of the evidence that were neither tested, nor received full explanation by way of submissions.
The material that the parties relied upon is set out below.
Applicant Father
The father relies on the following documents:
(a)Initiating Application filed 11 August 2017;
(b)Response filed 18 September 2017;
(c)Affidavit of the father, Mr Staley filed 18 September 2020;
(d)Affidavit of the father, Mr Staley filed 23 April 2021;
(e)Financial statement filed 13 October 2020;
(f)Affidavit of the father, Mr Staley filed 13 October 2020;
(g)Affidavit of the father, Mr Staley filed 23 April 2021;
(h)Child Dispute Conference Memorandum to Court released 11 October 2018;
(i)Child Inclusive Conference Memorandum to Court dated 19 September 2019;
(j)Report of Dr K dated 28 February 2021; and
(k)Father’s Case Outline filed 21 May 2021.
Respondent Mother
The mother relies on the following documents:
(a)Response to Initiating Application filed 11 September 2017;
(b)Affidavit of the mother, Ms Birch filed 4 May 2021;
(c)Affidavit of the mother, Ms Birch filed 14 October 2020;
(d)Affidavit of the mother, Ms Birch filed 18 September 2020;
(e)Affidavit of Ms O filed 18 September 2020;
(f)Affidavit of Ms R filed 21 September 2020;
(g)Affidavit of Ms S filed 18 September 2020;
(h)Financial Statement filed 14 October 2020;
(i)Family Report filed 26 March 2021;
(j)A Tender Bundle and Further Tender Bundle from the material produced under subpoena provided to the Court; and
(k)Mother’s Case Outline filed 19 May 2021.
Independent Children’s Lawyer
The ICL relies on the following documents:
(a)Report of Dr K dated 28 February 2021;
(b)Child Inclusive Conference Memorandum to Court dated 19 September 2019; and
(c)ICL Outline of Case filed 20 May 2021.
Principles in child related cases
The paramount consideration in determining what order should be made for X is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of X. That is to be determined on consideration of the matters set out in s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act and, where applicable, following the reasoning process set out in s 65DAA of the Act.
The objects and principles contained in s 60B of the Act provide that:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) 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
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) 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
(b) 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
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It may be readily recognised that the objects and principles do not all necessarily point in the same direction, and that they themselves are made subject to a consideration of best interests.
The Court is required to evaluate the s 60CC considerations to the extent that they are at “issue in the proceedings.”[1] Not all of the considerations will arise in each case, and even of those that do arise, not all will have the same significance. The considerations are to be assessed to the extent that they are “relevant to the particular circumstances of the child.”[2] The considerations that require closest attention can usually be identified from the matters that the parties ultimately placed emphasis upon in the trial.
[1] Phillips & Hansford(No 2) (2019) 60 Fam LR 160 at [43].
[2] Jollie & Dysart [2014] FamCAFC 149 at [45].
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
The two primary considerations (which in large part reflect the emphasis of the Objects) focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence. Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations.
In Marsden & Winch (No 3),[3] Warnick and Thackray JJ observed the prominence of the primary considerations, such that a primary judge is:
78.… of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.
[3] [2007] FamCA 1364.
However, they also noted that the primary considerations are to be considered as part of the suite of considerations that includes the additional considerations:
77. whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
The primary considerations, described as the “twin pillars” upon which the considerations rest by Brown J in Mazorski v Albright,[4]frequently subsume a number of the additional considerations. For example, the additional consideration in s 60CC(3)(j) that concerns family violence involving a child or member of the child’s family will often form a part of the primary consideration relating to the need to protect a child from family violence.
[4] (2007) 37 Fam LR 518.
Similarly, and noting Warnick and Thackray JJ’s analysis in Marsden & Winch (No. 3),[5] that the Act places focus, not on a meaningful relationship as an end in itself, but rather in terms of the benefits to a particular child of a meaningful relationship with a particular parent, the nature of the child’s relationships (s 60CC(3)(b)) and parenting capacity (s 60CC(3)(f)) will often comprise a part of this consideration.
[5] [2007] FamCA 1364.
In this case, prominent and closely allied to the primary considerations, are issues flowing from the capacity of the parents to provide for X’s needs, the nature of X’s relationships with his parents and his views.
The history OF THE PARTIES’ relationship
The parties commenced their relationship in 2008 and started to live together in July 2009 at the property of the mother at M Street, New South Wales (“the property”).
The mother alleges that the father was violent to her during the relationship.[6]
[6] Affidavit of the mother filed 19 September 2020, paragraph 9.
In both these proceedings, and in prior proceedings in the District Court of NSW where the mother faced charges in relation to shooting the father, the father has accepted that he has been violent to the mother on occasion. He does not accept the bulk of the allegations, however.
This included a general allegation that the father was verbally abusive to her, and an assertion that there had been about 50 occasions of physical abuse leaving bruises, along with a number of more specifically described instances. The parties did not, during the trial, dwell upon this general assertion, nor did they explore a number of the more specific allegations made by the mother. Those focussed upon are dealt with below in setting out the history of their relationship.
The mother alleged that she was assaulted by the father in early 2008, prior to the commencement of cohabitation. While the father accepted that he had pushed her at his home on this occasion, he described that she had just thrown a heavy object and was in the process of attempting to kick glass panels next to his door. The mother accepted that she had thrown such an object, but denied kicking the door. He said that after pushing the mother he was then punched by the mother’s sister, who he had called to take her away. The mother accepted that her sister had struck the father.[7]
[7] Transcript 26 May 2021, p.196 line 45.
It appears that the mother, who describes herself as “fiery and determined” rather than “aggressive” was the instigator of the physical altercation between the parties on this occasion.[8]
[8] Affidavit of the mother filed 19 September 2020, paragraph 124.
A further incident occurred between the parties prior to commencing cohabitation when they were holidaying in Country HH together in 2008.
It was alleged that the father threw the mother against a wall.
The father described (as he had in the District Court) that the wife jumped on the bed and said, “Make me get off” “Make me get off”, that he then dragged her from the bed, and that this caused her to strike her head.[9] This followed an argument between the parties where the father had said that he wanted to lie down. The mother’s “make me” should not be taken to be some sort of invitation on the part of the mother for the father to assault her.
[9] Affidavit of the mother filed 19 September 2020, Annexure NB2, page 43.
This forms an example of the father, who is considerably larger and more physically powerful than the mother, assaulting her.
In 2009 the mother underwent surgery. In July of that year they started to live together at the property.
The mother alleged that in 2009 or 2010 or 2011 the father was violent to her whilst they were in the surf together. The mother said that the father was teaching her to surf, and had told her not to get between the board and the surf. The mother alleged that he then pushed her in front of the board and that the board hit her in the ribs. She said that he then said “I warned you not to do that.” The mother formed the view that he deliberately struck her with the board. The father accepts that the mother was hurt in an incident in the surf.
Although the mother asserted that she received broken ribs from this incident, she did not produce x-rays that she asserted were in existence and held by her GP to substantiate such an injury.
Whether or not the ribs were damaged in this incident, the mother’s description falls far short of establishing that the incident was an act of violence by the father. It is difficult to comprehend why the mother now seeks to characterise the incident as violence, particularly in the face of his denial. It may be observed that the father’s denials also occur in the context of the father otherwise being willing to make a series of admissions in relation to other incidents of violence toward the mother.
The father also admitted (as he had in the District Court) to, on a particular occasion, punching the wife in the face two to three times, in a manner that he described as controlled, and not “extremely forceful”. He accepted that he may have caused the mother to have a fat lip. He explained that this action followed the mother having punched him a few times. He accepted that his conduct was to show her that she would never win.
The mother denied punching the father prior to him striking her, but accepted that she had slapped the father, probably twice, prior to the father hitting her. She said that he then “jabbed me a few times.”[10]
[10] Transcript 26 May 2021, p.200 lines 1–2.
There are difficulties in characterising this conduct. It was the demonstrable exercise of dominant force by the father upon the mother. It was responsive to a physical attack by the mother upon the father. It can best be understood as mutual violence, neither justified by the acts of the other.
The father also accepted that there were a number of occasions where arguments between the parties had become violent, and that he had physical superiority over her to the extent that he was capable of winning any of those conflicts.
Other allegations made by the mother were not the subject of such ready admissions on the part of the father.
The mother alleged, and the father denied, that on an occasion when they were out shooting that he pointed the gun at her.
The mother also alleges that in January 2011, she was assaulted by the father elbowing her in the nose, describing that she was standing behind him when he opened the door with force, elbowing her in the nose and causing two black eyes and facial swelling. A medical report indicated a non-displaced fracture to the nose. The father accepted that he had elbowed the mother in her face, but asserted that it was accidental.[11] It may be concluded that the mother was injured by an elbow to the face, but the description given by the mother does not otherwise point to it being an act of violence directed at the mother, particularly where the father, who has made other ready admissions to adverse conduct on his part, denies that it was.
[11] Transcript 28 May 2021, p.430 line 32.
X was born in 2012.
In late 2012 - early 2013 the father says that he received a call from one of the mother’s friends who reported that the mother had passed out and an ambulance had been called, that the mother had punched her friend in the face and tried to assault an ambulance officer. He says he attended the hospital and tried to see the mother who was in a room that had a guard, and that she was making a lot of noise and was threatening. The mother agrees that an ambulance attended the property, following the mother asking a friend to leave the property. The mother denied that she attempted to punch anyone, but accepted that she was taken by the ambulance to the JJ City hospital and placed, overnight, into a single room with a guard outside.[12] What happened on this occasion remains unclear.
[12] Transcript 26 May 2021, p.207 lines 14–15.
THE SHOOTING INCIDENT
It was uncontroversial that the mother shot the father on the evening of 8 August 2015. The mother says that she did so in self-defence.
That evening both had been out to celebrate a birthday. They returned home. The father asserted that later that evening, when he left the computer room, he discovered the mother to be heavily intoxicated with opioids. The mother denies that she was intoxicated on opioids, describing that she had consumed a light beer, two wines and Valium. The father also consumed some alcohol.
The parties argued after the mother asked the father if he was having an affair, or accessing dating sites. She accessed the father’s telephone in pursuit of her concern that he was having an affair.
The father says he went to bed, but then moved to the spare room before the mother came to bed. He described that he locked the door to that room, but that over a period of hours the mother harassed him from outside the room.
The mother denies harassing him, but agrees that late that night she knocked on the spare bedroom door telling the father that she had written a letter, to which he replied that he would read it in the morning. She says that she asked him to read it “now” as she was ending the relationship and would not be there in the morning. She denied either continuing to knock on the door, or, as described by the father, becoming more and more angry. She described that the father suggested that she go back to her previous husband to which she replied “at least he was a man and did not take his anger out on other people or on me.” She denied that he was still in the spare room when this conversation took place, asserting that he had left the room and was in the hallway.
The parties agree that the father said to the mother “if I threw you around and smacked you around would I be a man?”[13]
[13] Transcript 26 May 2021, p.213 lines 35–36.
The father then assaulted the mother, by his own admission, holding her by the neck and lifting the mother off the ground and moving her. They dispute whether it was 1.5m or 3m. The mother alleges that some days later red marks emerged on her neck that were photographed. No such photographs were produced. The mother says that she became unconscious, regaining consciousness in the master bedroom. The father said that after he put her down he went back to the room, locking the door. The father denied that the mother lost consciousness.
On either account this constituted a serious assault upon the wife. While it may readily be accepted that holding someone by the throat is an inherently dangerous act and one that may cause loss of consciousness, I do not accept that the mother lost consciousness.
The mother says that she then moved X (who was asleep in his room) into the master bedroom, and obtained a knife to protect herself. She said that the father had returned to the spare room. The mother says that she then called her parents, and was “really upset.”
The mother says that she was concerned that with the father’s martial arts training he would kill the mother and X, and possibly himself as well. The mother agrees that she went to the gun safe and that she removed multiple guns from the gun safe. She says that she did so in order to deter him from entering the master bedroom. At that time, and until the gun was first fired, he remained in the spare room.
The mother accepted that she fired a shot from the master bedroom through the corner of X’s room and into the hall cupboard.
The mother also says that she does not remember firing the gun, but remembers entering the hallway with the gun after being woken. This description sits uncomfortably with the firing of the first shot by the mother.
The father said that when he heard a gun go off he left the spare room. He said that he was concerned that the mother may have harmed herself.
The mother says that she was confronted by the father. She said to him “stay away or I will shoot you.” The father claimed, and the mother denied, that he said to her “if you’re going to shoot me you will have to shoot me in the back.”
The father described that he turned his back and says he heard the gun click, but not fire. He then heard the gun being re-cocked. He was then shot in the back.
The mother, however, asserts that the father spun around quickly as if to kick and disarm her, that she jumped back and the gun went off, shooting the father. She said that she did not know that the gun was loaded. Given that the gun had already been discharged by her by this stage, the mother must have been aware that the gun may still be loaded.
The mother subsequently called an ambulance, explaining that she had shot the father.
The mother was arrested that evening, and the mother spent over a year in custody pending her trial in the District Court at JJ City, at which point she was acquitted. In that trial the father gave evidence consistent with the description that he gave in this Court, including making concessions as to having previously been, and on the night been, violent to the mother.
The father’s account contains strong concessions by him of conduct that reflects poorly upon him, in circumstances where the only witnesses were himself and the mother. As indicated above, it may be accepted that he engaged in a serious act of violence upon the mother, in the context of previous acts of violence against the mother. His conduct gave the mother good reason to be afraid of him and what he might do.
The mother’s account that she did not know that the gun was loaded when it was fired should not be accepted to the extent that the mother must have recognised, by the second shot, that the gun may be loaded. The firing of the first shot remains unexplained by the mother. I am not prepared to accept that the father was turning so as to kick the mother. It may be accepted that his back was turned to her by the time that he was shot. I accept the father’s account, in the context of the admissions made by him and the doubts as to the reliability of the evidence of the mother about this night, that he told the mother that she would have to shoot him in the back if she was to shoot him. I accept that the mother was afraid of the father at the time of the discharge of the weapon, in circumstances where they were in close proximity following a recent assault by him upon her. I further accept that the mother’s use of the firearm was the use of potentially deadly force upon the father.
I am not persuaded that the mother’s assertion that she was acting in self-defence is correct. To the extent that this is a part of her case it is not made out to the civil standard. It is at least equally open to conclude that the firing of the gun was a non-defensive response to the father’s earlier assault of the mother, albeit in circumstances of fear on the part of the mother.
For clarity, it should not be thought that the acquittal in the District Court, even if on the basis of self-defence, establishes otherwise.
These are the relevant aspects of the incident. It is an incident that has had profound ramifications for each of the parties, resulting in the incarceration of the mother, and contributing to the mental struggles of the father in a manner dealt with by the single expert below.
The police obtained an Apprehended Violence Order (“AVO”) against the mother.
A variation to the AVO was obtained, and from October or November 2015 while the mother was in prison, the father facilitated the mother having frequent telephone contact with X. This was generally two phone calls per day. From late 2015 to mid-2016, the father travelled weekly with X to KK prison so that X and the mother might be able to spend time together.[14] The father and mother’s account of X’s contact with his mother during the period she spent in prison are consistent, save for the mother recounting that when she “was in lockdown which occurred almost weekly” she could not use the telephone.[15]
[14] Affidavit of the father filed 18 September 2020, paragraph 12; Affidavit of the mother filed 19 September 2020 paragraph 31.
[15] Affidavit of the mother filed 18 September 2020, paragraph 31.
The father’s conduct during this period demonstrated a strong commitment to the promotion of the relationship between X and the mother, in circumstances where there appeared to be no external compulsion to cause him to make such efforts.
Although in submissions there was some suggestion that the father was behaving in a psychologically controlling manner, there was no sufficient basis to suggest this.
In February 2016, the father started to see a psychologist, Dr T.
The mother’s release from custody
Following the mother’s release from gaol in 2016, the mother was unable to immediately return to the former family home, due to the operation of an AVO. However, the father facilitated X entering into the mother’s care. The terms and expectations in relation to X entering into the mother’s care were not made clear, although the parties were at that time seeking (ultimately unsuccessfully) to re-establish their relationship. The father described that X came and went between the parents. The father described that he thought that it was a good thing for X to be reunited with the mother.
The mother says that she saw a psychologist for a period of time following her release from prison, but that no treatment was recommended for her.
The father and mother both sought a variation to the AVO to permit the mother to live at the property.
In about November 2016, the mother returned to live at the property.
The mother alleges that the father told her that he disposed of the gun, and also that he had hidden a gun on the premises and the mother would get into trouble for it. I am unable to conclude that the father did either of these things.
The parties co-residing at the property was short lived. A further incident occurred on 18 December 2016, which resulted in the mother leaving the property, after an interaction with the father where he asked if he should call the police. This comment followed a discussion about whether the mother loved the father, which ended in the father locking himself in a room and the mother knocking on the door. The mother denied that the door was locked or that she knocked on it. The mother asserted that the father threatened to call the police if she left the home.
The father described the knocking on the door as similar to the experience that he had on the night that he was shot. The father denied the mother’s allegation that he behaved aggressively toward her, although he accepted that he might have told her to turn the “fucking light” off, and “[Ms Birch] wants the light on so the light’s on regardless of whether I’m in the room sleeping or not.”[16] He accepted that he had also thrown garbage bags containing the mother’s belongings into the bathroom. On his own admission as to his conduct, it may be taken that there was aggression shown by the father.
[16] Transcript 25 May 2021, p.126 lines 46–47.
The mother packed the car and left with X, and the father did not see X for the next two weeks until 2 January 2017. The mother took X to the coast, and X did not see the father for Christmas. The mother asserts that the father did not want X overnight, and after visiting the father on 2 January 2017, X did not see the father again until 12 or 13 January 2017, when he stayed with the father for a night.
The father alleged and the mother denied that she said to the father that X could not stay overnight until the father signed a paper regarding where X would live.
The parties disagreed about whether X spent any further overnight time with the father pending orders made by the Federal Circuit Court in August 2017. The father denied that there were any further occasions, saying that the mother stopped him seeing X at all from February 2017. The mother’s evidence was at times difficult to follow, but appeared to land upon the assertion that although she could not say how many times, there would have been overnights, that there would have been a “number”, and that there would have been, maybe, about six overnight occasions.[17] The mother was subsequently asked whether there was any face to face time between X and the father from February 2017 up until further orders were made in August 2017. The mother said that she was not sure.[18] The mother’s evidence that there was overnight time during this period was unconvincing.
[17] Transcript 26 May 2021, p.235 lines 36–39.
[18] Transcript 26 May 2021, p.239 lines 20–24.
I accept that X did not spend time with the father for this period of the mother’s care for him.
The mother sought to explain the initial hiatus in time with the father as the product of the father blocking her calls. The father accepted that he had blocked the mother’s number at times after X went into her care. However, this was episodic rather than continuous, as he described blocking her number for a day or two if they had an argument. The mother accepted that, despite blocking occurring, there was contact with the father,[19] as he would block and unblock her number, which lent credence to his description, and some credence to her assertion that there were impediments to communication. It does not, however, act as a good explanation of why there was such a hiatus.
[19] Transcript 26 May 2021, p.237 lines 9–15.
The mother denied that X was keen to speak with his father on the telephone during this period, asserting that he became “very, very upset.”
Although the mother initially briefly continued to take X to his day care centre in JJ City, she explained that she stopped, asserting that the father had said that there was an Australia wide warrant for her arrest, but that the police had told her both that there was no such thing and that she should not leave the Australian Capital Territory (“the ACT”) and should not take her son to JJ City.[20] These assertions did not feature in the mother’s affidavit, and I do not accept that they are an accurate explanation of the cessation of X’s day care arrangements.
[20] Transcript 26 May 2021, p.238 lines 16–38.
The mother moved X to a preschool in Suburb C in the ACT. The preschool was convenient to where the mother was living and to her parents. She could not recall if she had discussed this with the father.
In March 2017 a report regarding the father was prepared by Dr T, his treating psychologist.[21] The report described that the father had been undertaking cognitive behavioural therapy to address his anxiety, depression and trauma symptoms. He was described as suffering from PTSD symptoms.
[21] Exhibit M2.
The father further described that when Dr T went on maternity leave, he continued to obtain professional support, recommencing seeing his previous psychologist, Mr U, who he had previously seen following the death of his first wife in December 2003.
COURT PROCEEDINGS FOR TIME WITH X
On 21 August 2017, Judge W Neville ordered that X spend time with the father on two specific occasions. The father spent time with X at his preschool on 25 August 2017, and then at his football game on 26 August 2017. The next occasion that X spent time with the father was on 2 September 2017, being Father’s Day.
The mother agreed that the father did not then see X again until after further orders were made on 14 November 2017. She asserted that it was because the father did not want to see him, and then appeared to qualify that it was because the father failed to pick X up. I do not accept that this was an accurate explanation for the gap in seeing X.
The father also attempted to contact X by telephone, but described that the mother involved herself in the calls, interjecting, answering for X and prompting X as to what to say.
On 14 November 2017, the parties reached an interim agreement where X would live with the mother. The orders provided that X would spend four nights per fortnight with the father for the balance of the 2017 school year. Orders also provided for school holiday time, and then for the 2018 school year for five nights per fortnight with the father, from Friday to Monday in week one and from Wednesday to Friday in week two.
Shortly after these orders commenced, there was a further incident between the parties at a changeover at a service station on 20 November 2017, a Monday on which X was being returned to the mother before school. There was a tug of war between the parties over the dog LL, who had arrived in the father’s car, and the mother ran into the service station to call the police. The father put X back into his car and also called the police. Each of the parties allege that they were assaulted by the other.
The mother’s description of the incident was both inconsistent and suggestive that she was attempting to take the dog away with her, varying between describing that she may have said that the dog should be with her and X and denying saying that.
The mother then obtained an interim AVO from the ACT Magistrates Court, as did the father’s mother, who also attended the service station. The AVO then prevented the father from attending X’s school until April 2018 when the AVO applications were mutually withdrawn.
On 17 April 2018, Judge W Neville noted that the interim parenting orders as made on 14 November 2017 were being complied with.
On 19 July 2018, Judge W Neville ordered the parties to attend a Child Dispute Conference with a Family Consultant on 4 October 2018, which the parties did and agreed to modify the arrangements for X, such that X was then to spend time with the father each alternate week from Thursday at 3.00 pm until the following Tuesday at 9.00 am. The parties also made arrangements for the school holidays. This agreement was reflected in the memorandum prepared by the Family Consultant on 11 October 2018.
In accordance with this agreement, X was due to spend time with the father on 17 November 2018. The mother contacted the father saying that X was feeling unwell and should stay with the mother that evening and be picked up by the father the following day at Sports Centre. The mother asserted that the father agreed to this.
However, the father says that in a context where X was to spend from Thursday to Tuesday with him, he was told by the mother that he would not be getting X on Thursday but on Friday as that accorded with X’s wishes. He asserts that the mother told the school that the father could not pick up X on the Thursday and so he did not in order to avoid putting X through such a scene.
The mother then says that she attempted to contact the father on about 20 occasions, but that he blocked her calls. Further, she says that X offered that the three have a milkshake together, but that the father declined and accused the mother of sabotaging the relationship.
The child related orders remained unchanged from those made on 14 November 2017, following an appearance before Judge W Neville on 28 November 2018. The parties were ordered to attend a Conciliation Conference on 26 February 2019.
MOTHER UNDERGOES SURGERY
During this time the mother was quite unwell, undergoing surgery in Sydney in mid-2019. While she was unwell and while X was not spending time with the father, X was absent in school: missing eight days in April, missing 12 days in May and missing 15 days in June.
In May 2019, the proceedings returned to court when the mother was undergoing surgery, and her lawyers applied to transfer the proceedings from the Federal Circuit Court to the Family Court of Australia.
When the matter returned to court on 17 May 2019, it was noted by Judge W Neville that the parties both agreed that X’s time with his father was to increase, but this had not yet occurred. The matter was transferred.
The mother accepted that X did not spend any time with the father until further orders were made in July 2019. The mother was asked why X was not spending time with the father during this period. She explained that the father was in a relationship with “Ms MM”, that X did not want to see him, and that the father blocked her number. When asked why these various factors prevented X spending time with the father, the mother asserted that X did spend time with the father unless the father did not want him to. I am unable to accept that the father did not want to spend time with X.
Implicitly, it may be accepted that there were other issues acting as an impediment as the mother underwent treatment and surgery in Sydney for a life threatening condition during this period.
On 2 July 2019, the mother obtained a letter from a GP who reported that he had “examined X” who was:
visibly upset regarding going to his dad’s place over the holidays. He ‘feels unsafe’ at his dad’s house and can stay over for a maximum of 3 hours over the weekend. His dad apparently shouts at everyone which makes [X] feel unsafe and afraid. His dad has never shouted at [X].[22]
[22] Exhibit F7.
It was unclear how this consultation and letter came about, or what was directly attributable to X, or what had been furnished by the mother (or potentially the mother’s father)[23] to the GP. The consultation took place at a point when X had not spent time with his father for about six months. Although the mother asserted that the consultation happened shortly after X had spent the weekend with the father, this does not appear to be so.
[23] Transcript 26 May 2021 p.267 lines 4–18.
In July 2019, the parenting orders were varied, such that X would live with the mother and spend the first three consecutive weekends with the father from 12.00 pm Saturday until 12.00 pm Sunday. It was additionally ordered that following this, the father’s time was increased to each weekend from after school on Friday until commencement of school on Monday. The parties were also ordered to attend a Child Inclusive Conference on 16 September 2019.
On 13 July 2019, the father spent time with X, taking him to his home and telling him that he was going to be a big brother (as the father’s partner was pregnant). They also opened Christmas and birthday presents, along with Easter eggs, then went to the maternal grandmother's home for dinner.
After X returned to the mother, the mother then called the father, offering that X also stay that night. She described the circumstances as X being upset following his return from the father, saying “I miss dad and I miss you too.”[24] After X initially declined the mother’s suggestion of another night, he then said to her “I’ll go for another night then mum,” and it was so arranged. The mother says that X was cranky and verbally abusive when he returned the next day.
[24] Affidavit of the mother filed 19 September 2020, paragraph 57.
In her oral evidence, the mother departed from her description regarding X having the extra night, asserting that X did not want to go for the extra night with the father, but that she was confused and did not know what to think. It cannot reasonably be accepted that the mother sent X for another night with the father if he did not want to go, and the mother’s oral evidence appeared to be a significant reconstruction of the events of the mother offering a further night.
The mother asserts that on 16 July 2019, X had a meltdown and was verbally abusive to the mother, telling her “don’t talk to me. Just fucking stop. Don’t talk to me.” The mother says that X explained that the father had said that if X lived with the father that the mother would get better, and that the father had yelled at him using what he described as “that voice.”
The father accepted that he has spoken about the mother to X on occasion in denigrating terms. He however denied having told X that if he lived with the mother that she would get better.
Contrasting with the mother’s account that X has said that he is scared of the father, the father says that X is not afraid, that he has told the father that he is not afraid of him, and that he does not act like he is afraid of him. The father said that he spoke to X about this due to the reports that X is afraid of him, which he does not accept as true. The father asserts that the mother’s account of X expressing fear is a fabrication, and that X reports that the mother has told him to say that he is afraid.
The next visit occurred on 20–21 July 2019, being a visit that passed, on the mother’s account, without incident.
The following weekend there was a disagreement regarding changeover. The mother asserted, and the father denied, that he had told X he would collect X from the property at Town G. X was subsequently taken to changeover.
For the weekend of 3 August 2019, the father agreed to a changed handover time to accommodate X attending a birthday party.
X spent time with the father on the weekend of 9 August 2019.
For the following weekend of 16 August 2019, the mother attended at the school on the Friday afternoon, when the father was due to collect X. The mother denied that her purpose was to interfere with the father’s time.
She says X was in trouble for throwing a rock, and X said to her that he wanted to go home with her rather than to the father’s home, as the father frightens him. An interaction between the mother and X, and then X and the principal, ensued, where X said that he was scared of the father, and was asked by each whether the father hit him, to which he answered that he had not, although he said that the father yells at him. The mother asked the father to delay his attendance to collect X from the school, however the father approached the principal, mother and X and told the principal that there were court orders. Following this, the principal said that X should go with the father.
The father says that when he initially attended to collect X, he was told to wait at the principal’s office, as there had been an incident where X had thrown a rubber. After waiting, he walked down the hallway to see what was happening.
The mother describes the father attending and saying “[X] follow me there are court orders in place. You are coming with me.” The father accepts that he said something similar to that, and that he had also said to X to give the mother a hug, and explained to the principal that the orders meant that X was to be with him.
Although he said that X showed no reluctance to come with him, the father inconsistently described that X said “I don’t want to come with you” to which he responded “you’re coming anyway.”
Once in the car, the father told X that he was too upset to go swimming (the activity that they were to engage in) and so they would go home. The father asked X whether he did not want to see him anymore, to which X responded that he did. X described that the mother had said that the father was trying to take X away from her, to which the father responded that he had never failed to return X, and also that he had taken X to see the mother while she was in gaol.
Later that visit X told the father’s partner, Ms NN, that he is scared when the father yells at other people, but that the father does not yell at him. He also said that the mother had said various things about the father not returning X, or trying to take him away, and that it was the father’s fault that the property would be sold.
Following this visit, the mother asserts that X told her that the father had been angry, had questioned him about the mother and had an argument with his partner, Ms NN.
The mother again attended at the handover changeover on 23 August 2019. This, she explained, was pre-arranged to hand over X’s watch and telephone. The father alleged and the mother denied that she said in front of X “it’s your fault I have cancer and that I’m unable to return to work.”
On 15 September 2019, the father and X were in the SS Region visiting the paternal grandfather. Although the mother had no contact with the paternal grandfather since the shooting, she rang the paternal grandfather, who reported to the father that the mother had said “horrible” things about the father.
On 16 September 2019, the parties were scheduled to take part in a Child Inclusive Conference. On attendance they discovered an error had been made in allocating the date by the Court. The father alleges that the mother, in the precincts of the court, yelled at him that he was a murderer. She denied this. However, the mother told the Family Report Writer that some of her friends warned her that the father has tried to harm her, which she believed resulted in her diagnosis of cancer, and further that the father had been implicated in the death of his former wife. The mother said that she believed these to be true. These comments and beliefs gave added credence to the father’s account.
In September, the father made arrangements for X to attend a psychologist through his Employee Assistance Program (EAP). He asserts that the mother called the psychologist’s rooms and advised that she did not consent.
On 3 October 2019, orders were made for alternate weeks between the parents, with alternations between either parent on Fridays at the conclusion of school, or at 3.00 pm. It was also ordered for the mother to undertake a psychiatric assessment. There were issues with the handover location because X was absent from school on the handover day on a number of occasions.
The first changeover occurred without incident. However, the second changeover on 15 November 2019 occurred with the assistance of the Town G police, as the mother had not taken X to the allocated changeover. The father called the police who attended at the mother’s home and effected the changeover.
The mother messaged the father in the following terms:
It’s to late [Mr Staley], you aboriginal non aboriginal my father fucked me up sexually entitled predator. You are right. I couldn’t have sex with you. It made me sick. You are your socially complex situation. You need to accept who you are. You hurt our son, you’ve crossed the line. I will ensure you are dealt with legally and thoroughly. Do not hurt [X] anymore. I’m standing up to you. I’m aware of things now. Everyone will know. I’m not listening to you. I’m going to involve police. They won’t believe you over me, you are a liar.[25]
[25] Affidavit of the father filed 18 September 2020, paragraph 61.
The third changeover took place at the allocated venue on 29 November 2019, but was followed up shortly thereafter by the mother seeking a welfare check to be conducted by the police. Initially, the mother said that she did not recall why she sought the check, then explained that it was on the basis that the father may not provide appropriate medical care for X. The mother explained variously that the need for care was not related to an accident involving the mother and X in late 2019, later asserting that it was the reason for the need for care.
The mother then ceased to comply with the orders, on the basis that X had said that he would run away. On 13 December 2019, the father received a telephone call from X where X said that he was scared of the father and would run away if he came to the father’s home.
The local welfare agency Child and Youth Protection Services (CYPS) has had involvement with the family on and off over a period of time. December 2019 marked a period of more intense involvement by them.
In December 2019, the Deputy Principal at X’s school reported to CYPS,[26] that X was generally “okay” in class, although he would get frustrated. She noted that “their biggest issue is mum, [Ms Birch], bombarding with emails and coming in on [Mr Staley’s] week”, and that the mother has been saying negative things about the father in front of X. She observed that “[X] is starting to feel very much a part of the (father’s new) family”. She further observed that the mother had attended the school (during the father’s week) saying “I just need to check in and see that [X’s] safe”.
[26] Exhibit F8, p.23.
ORDERS THAT X LIVE PRIMARILY WITH THE FATHER
Orders were then made on 18 December 2019 for X to be in the father’s primary care. The orders additionally provided that the ICL and Family Consultant assist X in the transition to the new living arrangement.
On 13 January 2020, CYPS appraised “evidence for [X] not wanting to go to his father’s house or being fearful of him was not founded in the appraisal”.[27] Although it was not clear what led them to this conclusion in the appraisal, they further recorded “contact with X as part of the appraisal process did not establish he was fearful of the father: there was, however, consideration that X felt a sense of guilt about returning to his father’s care. This guilt may be X’s reaction to witnessing his mother’s distress prior to returning to his father’s care.”
[27] Exhibit F9.
On 24 January 2020, it was ordered that X live with the father and spend time with the mother three nights per fortnight, on each alternate weekend from the end of school on Friday until the start of school Monday. During public holiday periods, X was to spend time with the mother from 3.00 pm on the last school day until recommencement of school the following week. During school holiday periods, X was to spend time with the mother from 3.00 pm on the last school day until 3.00 pm on the Saturday closest to the mid-point of the holiday period.
In July 2020 communications between the school and CYPS indicated that X’s teacher had found interactions with the mother so stressful that not only did she decline to participate in parent teacher interviews, but also accessed her Employee Assistance Program. The mother was asked about this and expressed surprise, describing, from her perspective, a positive relationship with X’s teacher.[28]
[28] Transcript 26 May 2021, p.280 lines 14–21.
In the same document, the school reported to CYPS that the mother was harassing of the school, and was passive aggressive and manipulative of school staff. The mother asserted that this was not the case and that from time to time she was caused to stop contact with the school (perhaps inconsistently with her surprise expressed above), in part, she said, due to the school providing a document purportedly from the mother said to indicate that the mother was concerned that she may harm X.[29]
[29] Transcript 26 May 2021, p.281 lines 14–22.
The school further reported that X had never spoken to them poorly about the father, and had not indicated that the father has hurt him, although he told teachers that the mother had shot the father.[30]
[30] Exhibit F10.
CYPS recorded that on 27 July 2020,[31] X said “if I be good at school I won’t be able to see her again so I should be bad at school” and “that she had said to him several times ‘you won’t be able to see me again’. X has previously stated that his mother has said to him a few times that he would only be able to see his father or her, not both. X stated that these comments upset him.” The mother denied having spoken to X in such a manner.[32]
[31] Exhibit F11.
[32] Transcript 26 May 2021, p.283 lines 14–17.
On 7 August 2020, X was again interviewed by CYPS.[33] X told CYPS that his father had smacked him, but they did not assess it as meeting the “threshold for physical abuse.” The mother said that she had no idea that CYPS had interviewed X on this occasion.
[33] Exhibit F12.
At the 7 August 2020 interview, X said that he wanted 50/50 care and appeared to be relieved when the CYPS officer told him that his father was aware that he was speaking to CYPS (indicating to them that the father had not prepared X for such an interview and had not coached him in relation to the interview).
The mother then took X to the police station on 10 August 2020, and X was again interviewed, this time by the Sexual Assault and Child Abuse Team (SACAT) and CYPS. The mother says that she took X to the police because he wanted to go.[34]
[34] Transcript 26 May 2021, p.287 lines 42–43.
They record “[X] shared similar information (presumably similar to what he had said to CYPS a few days earlier) and did not appear to hold back in what he had discussed” which again they assessed as not meeting the threshold and not indicating that X could not go back to the father’s home. They record that “[Ms Birch] then asked [X] if he told them everything, to which he said most of it.”
Further the CYPS records indicate that the mother spoke of X being “flogged” and started to talk about the family law proceedings in front of X. She was asked to stop. The mother also explained that what she meant by “flogged” was that X had been pulled by the arm (which appears at face value to be an exaggeration of such an act). CYPS further recorded that the mother “continued to ask [X] what was said in the interview” and was again asked to stop.
The mother said that this was another … case, on her explanation being a reference to a local case involving a child being killed by his father.
The mother was recorded as saying that she was unhappy because the police had “advised her that it was ok to assault children,” and further that her only regret was missing her target when she shot her ex-partner. In her oral evidence, she agreed that she had probably expressed this regret.[35] She did also, however, say that she has “always maintained the fact that I’m glad I didn’t kill him.”[36]
[35] Transcript 26 May 2021, p.292 lines 16–19.
[36] Transcript 26 May 2021, p.292 lines 33–37.
Exhibit F13 records an unidentified notifier reporting that X had said that the mother took him to the police station and made him lie in relation to the father. However, this was anonymised, and no weight can be placed on the assertion of the unidentified third party.
The father collected X from the Suburb OO police station, after a member from the SACAT called him to say that X was there. When he attended, the mother was there with various family members. He was told that the mother had alleged that he had beaten X. He left the police station with X later that evening.
On 2 and 9 October 2020 the parties and X attended upon the single expert, Dr K, via an audio visual link.
The mother reported that in November 2020 X told her that the father and his partner Ms NN fought constantly, and that he hated being at the father’s place.
The single expert provided her report on 28 February 2021.
The mother says that on 4 April 2021, X described that an argument had taken place, and that the father had left with Ms NN crying.
The mother also alleged that X said that the father had told him that if he did not say what the father wanted him to say that he may never see the mother again and that she would go back to gaol. She further claimed that X had reported that the father had said a number of negative things about the mother. She described that X has said to her that he misses her, that he has trouble sleeping at the father’s home, and that no one is helping him or listening to him, and that if the father found out what X was saying he would “cop it.”
These issues were not explored in any depth at trial.
The father described that X had changed psychologists from December 2020 as his previous psychologist had left for maternity leave.
The trial took place from 24 to 28 May 2021.
The single expert
The parties engaged Dr K, a child, adolescent and adult forensic psychiatrist, as the single expert in these proceedings. She conducted a formal psychiatric assessment of the parties, which included diagnosis and prognosis of their mental health conditions, as well as analysis of their relationship to X. Dr K regarded that X faced difficulties in the care of each of the parents, with such difficulties being grounded in each of the parents’ mental health issues.
Dr K assessed that the mother has a history of adjustment disorder, anxiety and depression, and that she meets the criteria for a psychiatric diagnosis of major depressive disorder, substance use disorder (benzodiazepines and opioids) and a borderline personality disorder. Dr K was of the view that the mother also had transient stress-related paranoid ideation and held “overvalued ideas that drones were spying on her and the house was being bugged.”[37] However, this issue of paranoid ideation was not significantly pursued by the parties in the proceedings.
[37] Affidavit of Dr K filed 26 March 2021, p.23.
Of these health issues, she considered that the substance use disorder was of primary concern, considering that, contrary to the mother’s report as to her use of prescriptive medications for physical health recovery in addressing pain-management, her “chaotic presentation over the course of” the assessment was suggestive of a current opioid and hypnotic substance disorder.[38]
[38] Affidavit of Dr K filed 26 March 2021, p.40.
Dr K further considered that it is probable that the mother has a borderline personality disorder, which:
is characterised by marked interpersonal difficulties, affective or mood instability and desperate attempts to involve real or imagined abandonment. This is evidenced by her remaining in, and repeatedly returning to, abusive intimate relationships and her alleged attempts to ensure that [X] remains in her care.[39]
[39] Affidavit of Dr K filed 26 March 2021, p.41.
She described that “a central feature of a borderline personality disorder is emotional hyperreactivity, in which emotions are experienced extremely intensely.”[40] The symptoms were observed to “heighten during times of acute psycho-social distress”[41] leading to potential negative impact on her parenting, as opposed to what she is capable of when not so heightened. She observed evidence of this in the mother’s failure to take X to school regularly. She noted that the mother was subject to significant deterioration when stressed, and has some difficulties then in attending to X’s needs. Without adequate support and treatment, this is a stressor that is likely to be ongoing. Dr K thought that the “impairment becomes more acute if she is distressed and worried that X is being physically and emotionally abused by his father.”[42] She further considered that at times of such increased psychosocial distress, there is an additional risk of substance misuse, potentially leading to further impairment.
[40] Affidavit of Dr K filed 26 March 2021, p.41.
[41] Affidavit of Dr K filed 26 March 2021, p.42.
[42] Affidavit of Dr K filed 26 March 2021, p.42.
In the mother’s household, her personality disorder symptoms lead to disorganisation and chaos which Dr K described as:
really of grave concern in terms of [X’s] care and his wellbeing, and in my report I make mention of the level of disorganisation, which I attributed to the mother’s personality vulnerabilities and also the psychosocial stressors that were making things worse at the time. I do think that that is something that will be very difficult for [X] to navigate.[43]
[43] Transcript 28 May 2021, p.383 lines 36–41.
She went on to observe that X’s description of the mother's house did not sound like he experienced it as disorganised, although Dr K regarded X’s description with some caution given her own assessment of the mother. The implications of X being exposed to such disorganisation were regarded by Dr K as detrimental to his well-being as she observed:
So, consistency of care and – or knowing what your primary caregivers are going to do and being able to respond and react to those – to that care, is really core, at the heart of secure attachments. It’s also really important for [X] to be able to develop an integrated sense of self as he gets older, and I think that if it is very disorganised there’s going to be uncertainty, which is likely to escalate not only his externalising behaviour which he displays currently, but it also could potentially increase his risk of developing his own mental health concerns.[44]
[44] Transcript 28 May 2021, p.384 lines 3–10.
Despite all of these observations, Dr K considered that the mother has the capacity to care for X, and that X is well cared for when in the mother’s care.
In relation to the father, Dr K assessed his symptoms as consistent with a diagnosis of major depressive disorder,[45] and met the criteria for Post-Traumatic Stress disorder (PTSD), Substance use disorder (amphetamine) in remission, and Borderline Personality Disorder with traits of narcissistic personality disorder.[46]
[45] Affidavit of Dr K filed 26 March 2021, p.23.
[46] Affidavit of Dr K filed 26 March 2021, p.46.
The effects of the PTSD included “hyperarousal and reactivity, manifesting as anger, irritability and sadness,” which point towards his household as being one that is characterised by rapid acceleration into anger whether directed at X or other members of the household. X said that at his father’s house, “his father could get upset and has smacked him on occasion.”[47] He also said that “[Ms NN] and his father argue and don’t seem very happy.”[48]
[47] Affidavit of Dr K filed 26 March 2021, p.33.
[48] Affidavit of Dr K filed 26 March 2021, p.33.
The diagnosis of primary concern was described by Dr K as the borderline personality disorder with probable narcissistic personality disorder traits. The consequences of these may include an over-sensitivity to “injury from criticism or defeat” leading to potential reactions of “disdain, rage or defiant counterattack.”[49] Again, this is a matter detrimental to X and of some importance as Dr K noted:
that also sits with my diagnostic formulation of the father where he also has a level of impulsivity related to his personality vulnerabilities that mean that he responds very reactively. That level of hyperreactivity is frightening for [X] and also detrimental to the formation of an integrated sense of self for him, particularly because he carries a lot of blame for why his father gets angry. And so that doesn’t really bode well in terms of his own self-esteem and his ability to regulate his own emotions because he experiences those things as frightening.[50]
[49] Affidavit of Dr K filed 26 March 2021, p.48.
[50] Transcript 28 May 2021, p.384 lines 18–25.
In assessing the parties she considered that the father has a moderate degree of functional impairment. While it affected his interpersonal relationships and his ability to cope, he was able to maintain a job, maintain a romantic relationship and also maintain a relationship with X. She further noted that there were times in the not too recent past when his symptomology had been so acute that it had prevented his proper functioning in both work and interpersonal domains. She observed that if he was under the influence of further stressors in the future, or further trauma, he could decompensate further.[51]
[51] Transcript 28 May 2021, p.388, lines 30–39.
She saw a need for him to manage his physical health needs and also to accept guidance and support in terms of practical aspects of parenting. She considered that the difficulties faced by the father are long-standing, and chronic in a similar manner to those faced by the mother.
Despite the difficulties faced by the parents, Dr K observed that X exhibits secure attachments with both. The significance of such a secure attachment is that:
the child feels safe and contained within the relationship with their parents, and that they know that their parent will be able to provide them with care and love and security so that they have a pattern or a template upon which they base their subsequent attachments.[52]
[52] Transcript 28 May 2021, p.375 lines 34–37.
This was observed to be a positive feature for X, particularly in the light of the mental health difficulties faced by the parents and, importantly in the context of their hostile relationship with each other, which Dr K regarded as significantly detrimental to X.
Dr K observed, that with his mother, X can “seek comfort, guidance and care from his mother as evidenced by his warm, spontaneous reactions with her”.[53] The secure attachment was similar for X with his father as “evidenced by his interactions with him” and that such a relationship with his father, would help X to learn how to trust others, respond emotionally, develop empathy, to develop physically and emotionally, “learn better, self-regulate, develop confidence and self-reliance.”[54]
[53] Affidavit of Dr K filed 26 March 2021, p.51.
[54] Affidavit of Dr K filed 26 March 2021, p.49.
The greatest risk identified by Dr K to X was identified as one flowing from “being subjected to the indirect effects of family violence.” Exposure can already be seen in X telling his peers that his mother shot his father.
Further, each parent is concerned that X is exposed to denigration in the other household, a further matter assessed as likely, if true, to cause X harm. Similarly, X’s observation of arguments between the father and his partner Ms NN, where X perceives himself as to blame for the arguments, is assessed as likely to cause X psychological harm.
The expert assessed that:
Both parents demonstrate an impaired capacity to provide for [X’s] psychological needs in a developmentally and culturally appropriate manner, as each parent has their own psychiatric needs. Specifically, these needs are personal vulnerabilities, and each at times has failed to realise how their acrimony towards each other has negatively impacted [X’s] emotional well-being.[55]
[55] Affidavit of Dr K filed 26 March 2021, p.54.
X told Dr K that he had previously had anger issues, and would become angry “when people said things to him that he didn’t think were appropriate.”[56] X also described that in both households, if he did not do what was required of him, he was given a “gentle reminder.”
[56] Affidavit of Dr K filed 26 March 2021, p.33.
Dr K assessed that X did not have symptoms of anxiety or a major depressive disorder. He spoke about seeing both a psychologist, Ms Z, and counsellor, Ms TT, which he liked as they supported him with his emotions.[57] Dr K also observed that the mother did not appear to have a good understanding of X’s developmental needs. The mother said that X struggled emotionally, and that she found Ms Z following a Court order, but that X told her that he did not want to go because they “spoke about his brain.”[58] Dr K observed that the father had a good understanding of X’s needs and that he was of the view that the psychological interventions were beneficial to X.[59]
[57] Affidavit of Dr K filed 26 March 2021, p.35.
[58] Affidavit of Dr K filed 26 March 2021, p.22.
[59] Affidavit of Dr K filed 26 March 2021, p.32.
The expert also observed that X is finding the “tension between his parents difficult to manage.” He is “unable to navigate the tangible anger and denigration expressed by each parent toward the other. His behavioural outbursts at school and at home are understood to be a manifestation of this distress.”[60] Dr K further considered that if animosity between the parents was not addressed then there could be damage to the attachment relationships that X has with each of his parents.
[60] Affidavit of Dr K filed 26 March 2021, p.52.
Dr K was asked about the potential impacts upon X of there being inconsistency in the time that he spends with a parent. This was whether it was inconsistency in spending time with the mother if he lived with the father, or inconsistency in spending time with the father if he lived with the mother. She observed that:
I think that the impacts on [X] are quite significant. So, what we know is that that level of instability and inconsistency in care can often result in young people feeling unsafe, and it can create what we would term attachment trauma where the person who is one of your primary caregivers and who you have what we’ve described previously as it’s your attachment to, is not available, it can have significant emotional and psychological consequences for the child, and I think that some of that is already evident and demonstrated in [X’s] externalising behaviours both in the school environment and in the home environment. So, where that uncertainty about what his care arrangements are and wellbeing of each of his parents and their animosity, it’s already manifesting itself in him behaving in a more aggressive manner than he usually would.[61]
[61] Transcript 28 May 2021, p.377 lines 9–19.
In summary, Dr K noted that:
there’s a level of disorganisation and parentification [which was explained to be that [X] “seems to prioritise worrying about his mother as being part of his role as a child, which, of course, isn’t – brings into the relationship an element of sort of role reversal, and that is not good for [X]”[62] in the mother’s home. There is also a level of control and fear that [X] appeared to be experiencing in the father’s home. And, so, both in my estimation were not ideal, but they did not completely eradicate the parents’ capacity to provide care, with the caveat that they both attend to their mental health needs.[63]
[62] Transcript 28 May 2021, p.380 lines 16–19.
[63] Transcript 28 May 2021, p.384 lines 26–30.
It may be observed that Dr K’s views were heavily caveated, dependent upon the prospects of the parents to have recourse to proper support.
She noted that the father was insightful as to his need for support which meant that his prognosis for the symptoms remitting is positive. Dr K noted that the father positively progressed with engaging in cognitive behavioural therapy with Mr U and Dr T, attending counselling at PP Services and undertaking several parenting courses.[64] She recommended that his medication could be optimised by attending upon a psychiatrist, and that:
work around his management and emotional regulation, which might take the form of either dialectical behaviour therapy or cognitive behaviour therapy.[65]
[64] Affidavit of Dr K filed 26 March 2021, p.25.
[65] Transcript 28 May 2021, p.394 lines 5–6.
In contrast, Dr K observed that the mother “never sought to engage in psychological interventions to improve her symptoms of chronic pain, anxiety or depression, despite her intellectual understanding that all of these conditions have both a physical and psychological aetiology.”[66] Dr K made recommendations for a suite of treatments and support for the mother, including: comprehensive treatment from a pain clinic, an appropriate psychiatrist, antidepressant medication, potentially methodone, psychotherapy, along with other supports, such as parenting courses. Psychologically, she considered that the intervention would be dependent on what the therapist considered to be most suitable at the time, although considered that there should be neuropsychological testing to see if there are changes in the way that the mother processes information. These assessments were in part because Dr K “felt that her level of disorganisation was concerning.”[67]
[66] Affidavit of Dr K filed 26 March 2021, p.44.
[67] Transcript 28 May 2021, p.393 line 20.
The father continued to make payments toward the property mortgage from his income.
At the commencement of their cohabitation, the father owned a property in Suburb UU in the ACT.
For the first year of the cohabitation, the father’s Suburb UU property was leased out, but for less than the associated mortgage payments, being sold in late 2010 for approximately $630,000, with about $385,000 outstanding on the mortgage.
In late 2010, the father placed approximately $422,000 (the proceeds from the sale of the Suburb UU house and other cash savings) into an offset account for the property, the parties having agreed a value of the property of about $850,000. This constituted the father paying a share for half the property. The title was later adjusted to reflect this.
In 2012, X was born, with the mother primarily caring for him.
The father received a redundancy payment in 2013 of approximately $97,000 (after tax). He paid this into the mortgage account which was then more than completely offset, with the excess (in the range of $50,000 to $67,000) subsequently being transferred to an ING account.[94] In late 2013, the father resumed work in a contract role.
[94] Transcript 26 May 2021, p.304 lines 28–35; Transcript 27 May 2021, p.318 lines 7–12.
By virtue of this history, it was asserted by the mother that the initial contributions of the parties were about equal. However, this history tends toward a conclusion that in the earlier part of the relationship, the father’s contributions outweighed those of the mother, he contributing a greater share of the effective equity than the mother. Although she brought in the property, the mother also brought in a debt that left her with less than half the value of the property in equity whilst, in multiple tranches, the father not only contributed a full half share in equity, but exceeded that to expunge the debt when he subsequently brought in a redundancy payment.
While the mother also asserted that she made superior contributions from the commencement of the relationship until she was incarcerated, this was based in part upon the notion that the money paid to her by the father following the commencement of cohabitation as described above had an ongoing benefit in the reduction of interest payments. I am unable to give this aspect the double contribution effect contended for by the mother. The mother also asserted that her contributions were greater than the father’s following X’s birth, when the father often spent long hours away from the home. However, her various contributions as they related to the care of X and conduct of the business could not be said to be superior to those of the father, as he undertook paid employment, cared for X and contributed to the property. While their roles were distinct, this did not render the mother’s contributions as superior to his, nor his as superior to her, at least prior to the mother’s incarceration.
The period following the shooting and separation
By the time of the parties’ separation and mother’s imprisonment in August 2015, the balance owing on the mortgage for the property was approximately $370,000. The offset account also held approximately $370,000, completely offsetting the mortgage. An amount of $50,000 was also held in the ING account, and there were shares held of approximately $24,000.
This marked an apparent high point in the parties’ property position, their position deteriorating from here as each drew upon the property pool of the parties for various purposes.
For a period following the shooting, the father was unemployed, later resuming employment. He drew living expenses from the property offset account.[95] During the period that the mother was in prison, the father’s contributions involved the sole care of X, taking steps in preserving and promoting an ongoing relationship between X and the mother by taking X regularly to see the mother, as well as having the sole upkeep of the property. While the mother submitted that the father had the occupation of the property, this carried with it the upkeep of the property, each offsetting the other.
[95] Transcript 25 May 2021, p.169 lines 27–34.
During the mother’s incarceration, $180,000 in legal fees for the criminal proceedings were paid for the mother. The father described that these were sourced from the ING account and the offset account.
In August 2016, the father resumed work.
By the time that the mother was released from custody, the property mortgage account (then at $334,000) exceeded the offset account by approximately $164,000. Shares were still held of $26,000. The $50,000 that was held in the ING account had also been applied toward the legal fees.
The mother agrees that she did not immediately return to work following the release from prison, and in the period following her release and leading up to February 2017, withdrew from the joint account $51,000.
In November 2016, the mother was able to move back onto the property by virtue of an amendment to the AVO. Although she moved back, the parties did not reconcile.
In December 2016, the mother moved away from the property, with the father living at and maintaining the property from then until February 2018. While it was asserted that he had paid the mortgage from the joint funds held in the offset account, it appeared that his salary was also being deposited into that account, meaning that in fact he was paying the mortgage out of his resources whilst living there, rather than from joint funds. When the father left the property in 2018, the mortgage balance had reduced by $10,000 to $324,000 outstanding.
The father withdrew $100,000 from the parties’ offset account in January 2017, which he placed into a FF Bank account, although it was not clear what significance was put to this. Its removal at least colours the complexion to be placed on the degree of his contributions during this period as to some degree they are offset by the withdrawal, in a manner similar to the monies depleted by the mother. The father explained that he did this as he was concerned about withdrawals made by the mother. The father also took steps to prevent redraws and ceased placing money into accounts that could be accessed by the mother. On that same day, the mother withdrew $16,000 from the account (which formed part of the $51,000 withdrawn as referred to above).
The mother says that she spoke to the father about his withdrawal of the $100,000 and he said that it was to “even things up” after the mother had used $180,000 in payment of legal fees for her criminal proceedings. The use of the funds was not explored in any depth with the father. While it, like the payment for the mother’s criminal law expenses, has the flavour of a premature distribution of the parties’ property, neither party sought an adding back, although each otherwise asked that the amounts be taken into account.
The father left the property in February 2018. The parties then withdrew amounts from their share account, with the father receiving $10,000, the mother $14,400.
Two days later, the mother withdrew a further $2,000 from another joint account and, by February 2018 her credit card was at its $25,000 limit. The mother later also sold shares held by the parties recouping a further $13,000 that she described that she used to rehouse herself and X, although she also asserted that this amount had been retained in the share account.
In May 2018, the mother moved back onto the property with X. The bulk of the equipment and plant remained at the property when the mother returned to the property. The mother then disposed of most of the equipment, paying some of the proceeds off the mortgage and using other proceeds for her living expenses. Despite orders requiring her to do so the mother did not account for the sale of plant and equipment. The mother says that the items were sold for $40,000, and conducted her case on the basis that this amount would be added back notionally on her account.
In December 2020, orders were made that the mother vacate the property to enable the father to prepare it for sale. By that stage the property was fire damaged, and much of the plant and equipment was gone, disposed of by the mother. The father was required to make the property ready for sale and incurred costs referred to above, as well as making personal efforts to ready the property.
The father asserted that the arrears on the mortgage for the property for the period of occupation by the mother, commencing in February 2018 had accumulated to approximately $37,000. Again, this is a factor that dulls the contributions made by the mother during this period.[96]
[96] Affidavit of the mother filed 14 October 2020, paragraph 37–43.
The mother asserted she paid mortgage repayments of $1,020 per fortnight until May 2019.[97]
[97] Affidavit of the mother filed 14 October 2020, paragraph 43; Affidavit of the father filed 14 October 2020, paragraph 40.
The rates and arrears were expunged, it may be inferred, on the sale of the property.
The settlement of the sale of the property was delayed as the mother’s former lawyers held a caveat on the property, and required the payment of approximately $26,000 from the mother for the outstanding fees to remove the caveat.
The mother also asserted that the father had withdrawn $100,000 in 2019, which the father denied. This removal was not established by the mother.
Discussion
It is, as sought by the parties, just and equitable to make an order dividing their property following the end of their relationship. Such a step was not in contention between the parties and reflects the end of their cooperative efforts and capacity to share their property and jointly contribute to it.
The father sought a division of the non-superannuation property, with a series of notional add backs included, at 75-25 in his favour.
The mother asserted that contributions should be assessed as 60-40 in her favour, although she appeared to accept that they may be assessed as low as 50-50.
The mother further submits an adjustment of 10-15 per cent on consideration of matters within s 90SF of the Act, taking into account what she described as “tremendous” health issues, albeit at the same time acknowledging that the father too has ongoing health issues. The mother’s issues have included recent surgery and ongoing pain medication, which Dr K considered have become a difficulty for the mother. It was asserted that the mother is now reliant on a Commonwealth sickness benefit, rendering her future prospects as limited. While it can confidently be said that the mother has suffered major health issues, and has ongoing mental health issues, there was extremely limited evidence as to the manner in which the mother’s issues affect her ongoing capacity for employment. It may, however, be concluded that she will struggle for so long as she lacks insight and fails to avail herself of therapeutic assistance.
The mother sought an adjustment in relation to the care of X in the event that 50-50 care was not ordered. She submitted that in the event that the father had the primary care of X there should be a ten per cent adjustment in his favour, with presumably the reverse should X be primarily in her care.
Whilst it was somewhat unclear, it appeared that her overall position was to pursue a 75-25 disposition in her favour.
Dealing firstly with the contributions of the parties, it can be seen that the contributions of the parties took on different complexions at different points.
By a point early in their cohabitation, the parties’ contributions favoured the father by virtue of two effects. The first was that through his cash contribution of more than half of the value of the property, sourced in the sale of the Suburb UU property and savings, and in the $30,000 loan that the mother says was absorbed into his acquisition of the property, the father contributed a greater share of the equity associated with the property than the mother did. While she brought in the title to the property, it was subject to debt greater than half the $850,000 value of the property, at $583,000. This had the effect of the father bringing in a greater share of the equity, a position that further strengthened in his favour on his deposit of his redundancy payment into their joint account.
From that point, their ongoing contributions evened out as they each undertook different roles in the care of X, upkeep of the property and earning of income.
Their contributions following the incarceration of the mother, again diverged. The father had the full care of X during the period of incarceration. He had the responsibility for the upkeep of the property, but also, offsetting that had the benefit of occupying it.
This period favours the father in terms of contribution.
Following the mother’s release, contributions again favoured the father. During this period, there were times that the father occupied and had responsibility for the property, and times the mother did. A distinction in this respect can be drawn between them as the father’s occupation was associated with a reduction in the mortgage, whilst the mother’s was with an increase. As noted above this is a matter that diminishes the mother’s contribution during this period. Some offsetting in favour of the mother should be reckoned as for periods of time X was in her primary care. However, there have also been periods when X has been in the primary care of the father.
Each of the parties, following separation, had access to and used significant sums of money. The father withdrew $100,000. The mother had the benefit of $180,000 for her criminal defence. The father and mother also had access to cash to fund their living expenses at various points, for the father during the mother’s incarceration, and for the mother following her release. Neither party contended that these should be treated as notional add backs. They, however, dull the contributions otherwise made by the parties, offsetting them to some degree.
This period favours the father.
This leaves the contributions as favouring the father. They should be reckoned as favouring the father over the mother 60-40.
The father will also have the primary care of X, which calls for a further adjustment in his favour. Such an adjustment occurs in circumstances where both parties have ongoing health issues, being the mental health issues of each, along with the mother’s ongoing recovery following her treatment. Little evidence is available as to the manner in which this impacts the parties, although at the time of trial, the father was only engaged in part time work, and the mother was in receipt of a Commonwealth benefit. These circumstances point to the father being in a marginally better position in the immediate future, but not to what the longer term differential might be. As observed above, it may be that the mother struggles, while she fails to obtain the relevant support.
The immediate differential results in an amelioration from the adjustment of ten per cent nominated by the mother in the event of primary care of X, such that there be an adjustment of 7.5 per cent in favour of the father.
This results in an adjustment of 67.5 per cent to the father, 32.5 per cent to the mother. It should be recognised that this adjustment is in the context of the accepted adding back of the plant and equipment against the mother, which diminishes what the mother will receive on division of the property compared to the father.
Although the father sought the notional adding back of the mortgage arrears and rates for the period of the mother’s occupation of the property, these, rather than being treated as falling within the exceptional category of a notional add back, have been considered in assessing the parties’ contributions during that period. They should not be double counted.
While an add back was also sought for the PEXA fees, such an add back would have little appreciable impact upon the substance of the property division and should not be made. The mother should not bear responsibility for the child care fees, she having not significantly used the service arranged by the father and he should bear that liability. Similarly, the father should not bear responsibility for the mother’s use of the credit card post separation, and she should bear that liability.
Each party will retain their superannuation, in an equivalent amount to the other party, and that the adjustment that is sought is only in respect of the non-superannuation pool, reducing the impact of the differential in the division of the non-superannuation property.
Conclusion
Prior to the deduction of the liabilities to be reimbursed to the father the pool totals, $1,106,095 including the adding back for the disposed of plant and equipment. Removing the liabilities to be reimbursed to the father leaves the pool at $1,096,381.
The father’s share of the pool will be 67.5 per cent of $1,096,381, being $740,057. To this will be added the $9,714 reimbursement, leading to total value of $749,771.
This will be made up of the Motor Vehicle 2, Motor Vehicle 5 and various share amounts and balances in accounts, leading to a cash payment of $713,794 from the proceeds held in the Q Solicitors account.
The mother will receive an amount equating to 32.5 per cent of $1,096,381 which, including the notionally added back plant and equipment at $40,000, leads to a cash payment of $316,324 from the Q Solicitors account.
Each will also retain their superannuation, for the father of $475,671, and the mother of $472,010.
Taking a last look at the effect of the orders, in the whole context of the circumstances of the parties, the result can be seen as just and equitable.
I certify that the preceding three hundred and fifty-two (352) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 13 July 2022
Annexure A
Final Orders sought by the Applicant Father
Children
1.That the applicant father have the sole parental responsibility for the child X born in 2012 (“X”)
2. X live with the father.
3. X spend time with the mother as follows:
a) For each alternate weekend from after school Friday to the commencement of school on the following Monday and if a long weekend then return on the following school day;
b) For half of each term school holiday period commencing on the Friday after the last day of school term until 5p.m. on the Saturday closes to the midpoint of any school holiday;
c) The second half of the December/January school holiday period in even numbered years and the first half of the December/January school holiday period in odd numbered years
d) Such other or further times as may be agreed between the parties;
e) Changeover shall take place at the child’s school on school days and at the D Service Stationk on non-school days or as otherwise agreed in writing.
Property
That the net proceeds of sale held in the trust account of Q Solicitors is $1,030,117.91.
5. That the amount of $9,714.89 be paid immediately from the proceeds of sale of the property owned by the parties at Town G to the father being funds expended by the father to pay amounts owing by the mother and to clean and prepare the property following the vacation of the property by the mother.
6. That an amount of $45,964.59 be added back to the net proceeds representing $9,419.90 of arrears and unpaid rates which rates should have been paid by the mother, an amount of $36,528.30 which was the arrears in the mortgage payments as at 16 April, 2021 and an amount of $16.39 being PEXA fees paid to the mother’s former solicitors to remove the caveat on the title.
7. That for the purpose of dividing the net proceeds between the parties the net proceeds of sale then be divided as to 75 percent to the father and 25 percent to the mother with the add back amount being deducted from the mother’s 25 percent share.
8. That the value of the plant, stock and equipment disposed of by the mother is the value recorded in the taxation records of the former partnership of the parties, namely $131,958.00 and that there be a payment from the mother’s eventual share of the sale proceeds of $65,979.00 which is half that value and noting that that valuation excludes the value of motor vehicles.
9. That the shares owned by the party be sold and that the joint account in the name of the parties be sold and divided as to 50 percent each.
10. Each party keep all other assets, monies or superannuation in their name or possession or control.
Annexure B
Final Orders sought by the Respondent Mother
Parenting
1. All previous Orders be discharged.
2. That the parents have equal shared parental responsibility for the child X born in 2012 (“X”).
3. That X live with the mother.
4. That X spend time with the father as follows:
4.1.For each alternate weekend from after school Wednesday to the commencement of school on the following Monday;
4.2.For half of each term school holiday period commencing at 3pm on the last day of the school term until 3pm on the Saturday closest to the midpoint of the school holiday period;
4.3.The second half of the December/January school holiday period in even numbered years and the first half of the December/January school holiday period in odd numbered years;
4.4.Such other or further times as may be agreed between the parties;
5. Changeover shall take place at the child’s school on school days and at D Service Station, Suburb B on non-school days or as otherwise as agreed in writing.
6. Notwithstanding these orders, X will spend time with the parents as follows:
6.1. In odd numbered years:
6.1.1.With the father from 12 noon on Christmas Eve to 12 noon Christmas Day, and
6.1.2. With the mother from 12 noon Christmas Day to 12 noon Boxing Day
6.2. In even numbered years
6.2.1.With the mother from 12 noon on Christmas Eve to 12 noon Christmas Day, and
6.2.2. With the father from 12 noon Christmas Day to 12 noon Boxing Day.
6.3.On the weekend including Father's day, from after school on Friday until before school on Monday with the father;
6.4.On the weekend including Mother's day, from after school on Friday until before school on the Monday with the mother;
6.5. In odd numbered years:
6.5.1.With the Mother from afterschool or 3pm on the day before X’s birthday until after school or 3pm the day after his birthday
6.6. In even numbered years:
6.6.1.With the Father from afterschool or 3pm on the day before X’s birthday until after school or 3pm the day after his birthday
IT IS NOTED THAT X and the mother share the same birthday.
7. X will attend AA School commencing in 2022 and neither parent will change the school without the express written consent of the other parent.
8. The parties may attend all school events and sporting activities that X participates in, including when X is in the other parent’s care.
9. The parties can vary the terms of these Orders by agreement in writing.
Property
10. That within 7 days from the date of these Orders, the parties do all acts and things and sign all documents necessary to distribute the net sale proceeds held in the trust account of Q Solicitors as follows:
10.1Repay $500 in relation to outstanding daycare fees relating to X’s previous enrolment;
10.2 Repay $22,500 in relation to the joint Commonwealth Credit Card debt.
10.3$783,944.10 to the Respondent Wife or as she directs less the amount of $21,500 being an amount agreed payable to V Solicitors, and
10.4 $223,173.32 to the Applicant Husband or as he directs.
11. That the parties do all acts and things necessary to equalise their superannuation entitlements.
12. That the parties do all acts and things and sign all documents necessary to close all joint accounts held in the parties’ name and that any funds in credit be equally divided between them.
13. That the parties do all acts and things and sign all documents necessary to transfer the parties’ CommSec account, including shares and cash account to the Applicant Husband.
14. That except and otherwise provided for in these Orders, the Respondent Wife shall retain her right, title and interest, and be as against the Applicant Husband, the sole legal and beneficial owner of the following:
14.1. Her Motor Vehicle 4;
14.2. Any savings in her name;
14.3. Any furniture and effects in her possession, custody or control;
14.4. Her superannuation benefits and entitlements subject to Order 11 above;
14.5. All other property currently in her possession, custody or control.
15. That except as otherwise provided for in these Orders, the Applicant Husband shall retain his right, title and interest, and be as against the Respondent Wife, the sole, legal and beneficial owner of the following:
15.1. His Motor Vehicle 2;
15.2. His Motor Vehicle 3;
15.3. His Motor Vehicle 6;
15.4. Any savings in his name;
15.5. His EE Company shares;
15.6. Any furniture and effects in his possession, custody or control;
15.7. His superannuation benefits and entitlements subject to Order 11 above; and
15.8. All other property currently in his possession, or control.
16. That, except as otherwise provided for in these Orders, the Respondent Wife shall be solely responsible for and shall indemnify the Applicant Husband in relation to all liabilities in her sole name, including but not limited to the following:
16.1. Her GG Finance account;
16.2. Her CC Credit Card;
16.3.Her Outstanding legal fees, noting agreement to pay any agreed amounts from her share of the net sale proceeds; and
16.4. Her salary overpayment.
17. That, except as otherwise provided for in these Orders, the Applicant Husband shall be responsible for and shall indemnify the Respondent Wife in relation to all liabilities in his sole name, including but not limited to the following:
17.1. His credit card liability with National Bank of Australia;
17.2. His loan from his mother, Ms P;
17.3. His outstanding legal fees.
18. That from the date of these Orders and unless otherwise specified in these Orders, except for the purposes of enforcing payment of monies due under these Orders:
18.1.Each party be solely entitled to the exclusion of the other to all property (including choses in action) and personal possessions or items of furniture, personalty and/or chattels in the possession of such party at the date of these Orders;
18.2.Money standing to the credit of the parties in any bank account shall remain the property of the party in whose name such bank account is held;
18.3.Each party forego any other claims he or she may have to any superannuation interests or benefits belonging to or owned by the other;
18.4.Insurance policies remain the sole property of the beneficiary named therein; and
18.5.Each party be solely liable for and indemnify the other against any liability currently standing in their sole names or liability encumbering any item of property to which the party is entitled pursuant to these Orders.
19. That each party shall do all acts and things reasonably required by the other, including the signing or execution of all necessary documents, to give effect to the provision to these Orders within 14 days of written request to do so;
20. That if either party refuses, fails or neglects to sign or execute any document necessary to put these Orders into effect within 14 days of written request to do so, then the Registrar, Deputy Registrar or any other Officer of the Canberra Registry of the Family Court of Australia is hereby appointed under Section 106A of the Family Law Act 1975 (Cth) to execute or sign such document on behalf of that party upon lodgment of such document and the filing of an Affidavit by the requesting party as to the neglect or refusal.
Annexure C
Final Orders sought by the ICL
BY CONSENT THAT;
1. All previous Parenting Orders be discharged.
2. The Father have sole parental Responsibility for X born in 2012 (X)
3. Notwithstanding Order 2 prior to making any major decisions for X in regards to;
a) Health,
b) Education,
c) Living Arrangements
the Father shall discuss the decisions with the Mother and consider her views. If there is no agreement between the Mother and the Father, the Father shall make the final decision.
4. X shall live with the Father.
5. X shall spend time with his Mother as follows;
During the School term time
5.1Each alternate weekend from after school Friday, or 3pm if Friday is a non-school day until before school Tuesday, or 9am if Tuesday is a non school day.
School Holiday time
5.2During the school holidays Order 5.1 shall be suspended and resume on the first weekend of the new school term if X spends the first half of the holidays with his Mother or the second weekend of the new school term if X spends time with his Mother in the second half of the school holidays unless otherwise agreed in writing between the parents
During the Term 1, Term 2 and Term 3 School holidays
5.3For one half of the school holidays being the first half of the school holidays, commencing at the conclusion of school on the last school day until 3pm on the Saturday closest to the mid point of the school holiday period, in even numbered years and the second half of the school holidays, commencing at 3pm on the Saturday closest to the mid point of the holidays until the morning of the commencement of the new school term in odd numbered years unless otherwise agreed in writing between the parents.
Term 4 school holidays
5.4 In even numbered years for week 1,2 and 5 with his Mother and weeks 3,4 and 6 with his Father.
5.5 In odd numbered years for weeks 1,2 and 5 with his Father and weeks 3,4 and 6 with his Mother.
5.6Once X commences high school X shall spend the Term 4 holiday in a block of 3 weeks with each parent unless otherwise agreed between the parents in writing.
Easter outside of school holidays
5.7Should the Easter break occur outside of school holidays X shall spend Easter Sunday and Easter Monday with the parent he would normally be due to spend time with that weekend and Good Friday and Easter Saturday with the other parent unless otherwise agreed between the parents.
5.8X shall spend any other time with either parent as agreed in writing, including text message or SMS, between the parents.
6.All changeovers shall occur at X’s school if on a school day and at a location agreed between the parents if on a non school day.
Communication
7.Both parents shall facilitate X communicating with the parent that he is not currently with at all reasonable times.
8.The parents shall use the “Talking Parents App” to communicate about any parenting issues for X except in the case of an emergency.
Health Issues
8.The Father shall continue to engage with his mental health professionals and be complaint [sic] with any treatment recommended by his treating professionals.
9.The Mother shall consider the recommendations of Dr K in her report dated 28/2/2021 and use her best endeavours to seek the professional assistance as recommended and be complaint with any medication or treatment regime that may be recommended.
10.Both parents shall continue to support X attending upon his psychologist for as long as recommended.
11.These Orders shall serve as an Authority for either parents to request and receive relevant information for X from any treating health professional that X may attend upon.
12.Should X require emergency treatment including admittance to hospital the parent whose care X is in shall advise the other parent as soon as practicable.
Further Orders
13.Neither parent to denigrate the other parent, or a member of that parent’s family, or allow any other person to do so in the presence or hearing of X.
14.Neither parent to physically discipline X or allow any other person to do so.
15. Neither parent to expose X to Family Violence including verbal arguments.
16.These Orders serve as an Authority for either parent to request and receive any information in regards to X that a parent would usually be at liberty to receive from any educational facility that X may attend.
17.Both parents are permitted to attend X’s school and attend any school event or extracurricular activity that parents would usually be invited to attend.
Travel
18.Both parents are permitted to travel interstate with X during their time with X and shall advise the other parent prior to any trip occurring of the destination and contact details for X during that time if the period of travel is greater than 24 hours.
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