Stanley & Stanley
[2022] FedCFamC2F 1463
Federal Circuit and Family Court of Australia
(DIVISION 2)
Stanley & Stanley [2022] FedCFamC2F 1463
File number(s): MLC 3118 of 2020 Judgment of: JUDGE GLASS Date of judgment: 9 November 2022 Catchwords: FAMILY LAW – PARENTING – 17 year marriage - where there are competing applications in relation to minor children aged 12 and 17 – whether it is in the best interest of the child to have a meaningful relationship with both parents given findings of family violence perpetrated by the father – where parties have no capacity to co-parent – where the presumption of equal shared parental responsibility is inapplicable – whether the circumstances warrant an order for supervision – where there is an unacceptable risk of exposing the children to abuse and family violence
FAMILY LAW – PROPERTY – where parties seek to alter their interests in property– where rent free accommodation forms a party’s contribution – where a party deliberately failed to disclose documents
Legislation: Family Law Act 1975 (Cth) Part VII ss 60CC, 60B, 60CA, 60CG, 61DA, 65DAA, 65DAC, 69ZN(3), 79, 75(2)
Family Violence Protection Act 2008 (Vic) s 74
Cases cited: Bant & Clayton (2019) FLC 93-924
Benson & Drury (2020) FLC 93-998
Duarte and Another and Morse (2019) FLC 93-902
Hendy & Penningh (2018)FLC 93-879
Jurchenko & Foster (2014) FLC 93-598
Kingston & Field(No 2) (2020) FLC 93-986
Kowaliw & Kowaliw (1981) FLC 91-092
Kuhl v Zurich Financial Services Australia Ltd & Another (2011) 243 CLR 361
Mulvaney & Lane (2009) FLC 93-404
Oram & Lambert (2019) FLC 93-886
Pellegrino & Pellegrino (1997) FLC 92-789
Stanford v Stanford (2012) 247 CLR 108
Syms & Syms (2021) FLC 94-010
Weir & Weir (1993) FLC 92-338 at 79-593
Division: Division 2 Family Law Number of paragraphs: 146 Date of last submission/s: 13 October 2022 Date of hearing: 8 – 9 September 2022 and 12 October 2022 Place: Melbourne Counsel for the Applicant: Mr Goddard Solicitor for the Applicant: Roger O’Halloran & Co Counsel for the Respondent: Mr Ambrose Solicitor for the Respondent: Michelle Moloney Family Lawyers
Table of Corrections 9 November 2022 In paragraph 114 the reference to the proceeds of sale of “$110,350” have been corrected to show “$100,350”. 9 November 2022 In paragraph 117 the reference to the proceeds of sale of “$110,350” have been corrected to show “$100,350”. 9 November 2022 In paragraph 134 reference to assets worth “$106,953” have been corrected to show $101,953”. 9 November 2022 In paragraph 144 the reference to the differential between the parties of “$64,172” have been corrected to show “$61,172”. 9 November 2022 In paragraph 145 reference to non-superannuation assets worth “$74,867” have been corrected to “$71,367”. 9 November 2022 In paragraph 146 reference to the Wife receiving “$59,955” have been corrected to “$53,455”. ORDERS
MLC 3118 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS STANLEY
Applicant
AND: MR STANLEY
Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
9 November 2022
Amended pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 9 November 2022
THE COURT ORDERS THAT:
Parenting
1.All previous parenting orders be discharged.
2.The Wife shall have sole parental responsibility for X born in 2005 (“X”) and Y born in 2010 (“Y”).
3.Notwithstanding Order 2 hereof, the Wife shall notify the Husband in writing at the earliest practicable time in the event that she is intending to exercise her parental responsibility to make a long-term decision in relation to either child and shall, as far as is practicable, consider any views expressed by the Husband in writing in relation to such decision.
4.The children shall live with the Wife.
5.X shall spend time and communicate with the Husband in accordance with her wishes.
6.Y shall spend time and communicate with the Husband as may be agreed between the parents in writing.
7.The Husband shall be permitted to send cards, letters and gifts to the Wife’s address to each of Y and X on their respective birthdays and at Christmas time and the Wife shall ensure the children each receive such cards, letters and gifts and facilitate any return correspondence in the event that the children wish to provide such to the Husband.
8.The Husband be restrained by injunction from:
(a)Physically disciplining, chastising or otherwise applying physical force to either child;
(b)Abusing denigrating or belittling the Wife or any members of the Wife’s household or family in the presence or hearing of either child;
(c)Discussing these proceedings or any proceedings in which either parent was a party within the presence or hearing of either child or allowing either child to access any document produced for the purposes of such proceedings.
9.The Wife shall advise the Husband in writing in the event that either child suffers any serious or significant illness or injury, unless, in the case of X, she does not wish the Husband to be so advised.
10.The Husband shall be at liberty to seek information from either child’s treating doctors or allied health practitioners, subject to the discretion of such doctors or allied health practitioners to maintain doctor patient confidentiality having regard to the age and wishes of the respective child.
11.The Husband shall be at liberty to obtain information from any school the children attend as to their academic progress and any school photos at his own expense.
12.Each of the parents shall inform the other of any change to their residential address or mobile telephone number.
Property
13.Of the monies held in trust for the parties by McIntyre and Statton Solicitors, the Wife be paid, via her solicitors, the sum of
$59,955$53,455 and the Husband be paid via his solicitors the balance then remaining.14.The Wife be responsible for and indemnify the Husband for any liabilities in her sole name including, but not limited to:
(a)Outstanding school fees for X and Y;
(b)Outstanding dental fees for X and Y; and
(c)The Outstanding debt in respect of the I-Pad purchased for the children.
15.The Husband be responsible for and indemnify the Wife for any liabilities in his sole name including, but no limited to:
(a)The Westpac personal loan;
(b)Bank B Visa;
(c)Mastercard loan; and
(d)Bank D loan.
16.For the purposes of these orders: -
(a)“the Superannuation Fund” is Super Fund E;
(b)the husband is the member spouse (member number …);
(c)the wife is the non-member spouse; and
(d)“the Trustee” means the trustee(s), person(s) or corporation(s) responsible from time to time for the management or investment of the Superannuation Fund.
17.Paragraphs 18 to 22 of these Orders are binding on the Trustee.
18.The base amount to be allocated to the Wife out of the Husband’s interest in the Superannuation Fund is $90,000 (“the base amount”).
19.In accordance with Section 90XT(1)(a) of the Family Law Act 1975 whenever the Trustee makes a splittable payment from the interest held by the husband in the Superannuation Fund the Trustee shall pay to the wife the amount which is calculated in accordance with part 6 of the Family Law (Superannuation) Regulations2001 using the base amount of $90,000 (provided that such base amount shall not exceed the value of the interest determined under Section 90XT(2)), and there be a corresponding reduction in the entitlement that the husband would have had but for these orders.
20.Paragraph 19 has effect from the operative time.
21.The operative time for the purpose of paragraph 19 is the beginning of the fourth business day after the day on which a sealed copy of these Orders is served upon the Trustee.
22.The Trustee and the parties in accordance with the obligations set out under the Family Law Act 1975, the Family Law (Superannuation) Regulations 2001 and the Superannuation Industry (Supervision) Act and Regulations 1994, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement and make the payment in accordance with these orders.
23.The Wife shall do all things necessary, including but not limited to, exercising her request pursuant to r.7A.07(2) of the Superannuation Industry (Supervision) Regulations 1994 for the payment of the transferable benefits out of the Husband’s interest in the Superannuation Fund to the Wife in accordance with r.7A.13 of the Superannuation Industry (Supervision) Regulations 1994.
24.Until the happening any of: -
(a)the establishment of a separate account in the name of the Wife in the Superannuation Fund; or
(b)the transfer or ‘rolling over’ into another superannuation fund or superannuation account the payment split created by paragraph 4 hereof; or
(c)the Wife satisfying a condition of release and receiving the payment split which was created by paragraph 19 hereof; or
(d)the Wife executing a waiver of rights within the meaning of Section 90XZA of the Family Law Act 1975 in relation to the payment split created by paragraph 19 hereof;
the Husband be and is hereby restrained by himself, his servants or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or thing which would render any part of his interest in the Superannuation Fund a “not splittable payment” within the meanings of Regulations 12 or 13 of the Family Law (Superannuation) Regulations 2001.
25.The Court notes: -
(a)that the value of the transferable benefits from the Husband’s interest to the Wife’s interest are calculated in accordance with r.7A.13 of the Superannuation Industry (Supervision) Regulations 1994;
(b)pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from the Husband’s superannuation interest in the Superannuation Fund made after the Trustee has created a new interest in the Wife’s name in the Superannuation Fund, as contemplated in paragraph 23, are not splittable payments;
26.Each party and the Trustee have liberty to apply in relation to the implementation of these orders affecting the husband’s superannuation interest.
27.That a copy of these Orders be served forthwith upon the Trustee.
28.Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other; and
(b)insurance policies remain the sole property of the owner named therein.
29.Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any monies due under these or subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c)Any money standing to the credit of the parties in any joint bank account is to be divided equally between the parties;
(d)Insurance policies remain the sole property of the owner named thereon;
(e)Each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;
(f)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(g)Each party forgoes any claim they may have to any inheritances or compensation payments to which the other party is entitled to either presently or in the future; and
(h)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
30.All extant applications be dismissed.
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 a pseudonym Stanley & Stanley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 9 November 2011
JUDGE GLASS:
After living together for one or two years, Mr and Ms Stanley married in 2002. These proceedings arise following the breakdown of their marriage in August 2019. Arising for determination are competing applications in relation to their minor children, X, born in 2005, and Y, born in 2010, as well as competing applications for alteration of their interests in property.
The parties’ respective positions were amended in closing address. In the case of Mr Stanley, the orders he sought were as contained in his Amended Response filed 24 August 2022 as amended orally by his Counsel. In the case of Ms Stanley, the final orders sought by her are contained in a Minute emailed to the Court prior to closing address.[1]
[1] Exhibit A4.
The evidence relied on was as particularised in the parties’ respective Outlines of Case and as tendered during the hearing save for two amendments. Mr Stanley also relies on a Child Inclusive Conference Memorandum dated 10 June 2020 which was prepared by the author of the Family Report. Mr Stanley no longer relies on the evidence of his mother, Ms F, in circumstances of her poor health. Given that explanation, it is agreed that I will draw no inference from her failure to give evidence.
It is convenient to address the parenting applications before turning to the property applications.
Parenting
The children, now aged 17 and 12 years, have lived with Ms Stanley since the parties’ separation and have spent no time with Mr Stanley.
Mr Stanley now seeks parenting orders only with respect to Y, namely that the parties have equal shared parental responsibility for her, that she live with Ms Stanley and spend professionally supervised time with him for no less than two hours per fortnight for a period of six months’ following which the parties attend Family Dispute Resolution.
Ms Stanley proposes that she have sole parental responsibility for the children and that they live with her. Whilst she proposes that X spend time with her father in accordance with her wishes and Y spend time with her father as agreed between the parties, she considers it unlikely the children will in fact spend time with him.
The parties also have two adult children, Mr G, now aged 20 years and Ms H, now aged 19 years, both of whom live with Ms Stanley, X and Y.
Statutory Framework
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth). I am guided by the objects of that Part and the principles underlying those objects.[2] The children’s best interests are the paramount consideration.[3] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
[2] Family Law Act 1975 (Cth), s 60B.
[3] Family Law Act 1975 (Cth), s 60CA.
I am to apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them.[4] The presumption does not apply if there are reasonable grounds to believe either of the children’s parents have engaged in child abuse or family violence.
[4] Family Law Act 1975 (Cth), s 61DA.
It is convenient to first address the section 60CC considerations before turning to the presumption contained in section 61DA.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
It is convenient to begin by addressing the second primary consideration given it is to be given greater weight than the first.[5]
[5] Family Law Act 1975 (Cth), ss 60CC(2A).
Ms Stanley contends that the children are at unacceptable risk of harm in the relevant sense in Mr Stanley’s care. She submits that such risk cannot be sufficiently ameliorated by orders for supervision or other restraints.
Given that submission, it is surprising how little of Ms Stanley’s affidavit evidence addresses the issue. Although she purports to annex to her trial affidavit a police statement she made in relation to the topic, that annexure is omitted from the filed affidavit and accordingly is not in evidence.
Ms Stanley does give evidence that Mr Stanley gave her a back hander to the stomach whilst she was pregnant with Y in 2009. That evidence was not challenged and whilst I accept that Ms Stanley has a negative opinion of Mr Stanley and dislikes him, I am not satisfied that Mr Stanley has generally impeached Ms Stanley’s evidence such that it should be rejected. I find Mr Stanley did give Ms Stanley a back hander to the stomach while pregnant in 2009.
In cross-examination, Ms Stanley gave evidence that when Mr Stanley came to collect his belongings after separation he went to strike her. She accepted that he had not been charged in relation to any attempted assault, but maintained, without challenge, that she had told Police about it. I accept Ms Stanley’s evidence of the incident.
Also in cross-examination, Ms Stanley gave evidence that Mr Stanley, after a chance encounter with Mr G in December 2019, followed him, despite Mr G not wanting to speak to him and there being an Intervention Order in place protecting Mr G from his father. Mr G subsequently spoke to Police for an extended period of time resulting in Mr Stanley being charged for breach of Intervention Order. Although Mr Stanley’s affidavit evidence suggests that he left after Mr G rode off, he admitted in cross-examination that he had followed him. The first thing Mr Stanley said to his son was to enquire about his work arrangements. Those work arrangements had formed the basis for him seeking a change to the administrative assessment of child support in September 2019.
Ms Stanley also deposes to Ms H reporting to her, in a state of distress, that Mr Stanley had followed her and X out of a supermarket in September 2021 and thereafter tailgated them as they drove away. Ms H thereafter reported that she had collided with a gutter and damaged her wheel rim. Ms H successfully applied for an intervention order against her father. That evidence was not the subject of challenge and I find Mr Stanley conducted himself in the way alleged by Ms H, causing her distress.
The children’s maternal grandmother, Ms J, deposes to the following incidents of family violence:
(a)In 2003, Mr Stanley yelled at, and repeatedly pushed, the then about 17 month old Mr G back into his chair when he refused to eat. Mr G burst into tears as a result.
(b)In approximately 2007, Mr Stanley grabbed Mr G by the back of the neck and dragged him inside during Ms H’s birthday party.
(c)On another occasion, Mr Stanley became agitated when having difficulty erecting a garden shed resulting in him throwing a hammer at a dividing fence causing several palings to break.
(d)In approximately 2004, when Ms H was 19 months old, Mr Stanley hit her on the legs when she ignored his instruction to sit still in her chair.
(e)In 2005, the parties were holidaying with the maternal grandparents in Queensland. After a dispute between the parties, Mr Stanley said to Ms J after she helped him put the children in the car that he would drive off the bridge with the kids.
Ms J also deposes to making the following observations:
(a)In around 2018, X video called Ms J in a state of distress and hysteria. Ms J observed red marks on her legs.
(b)Mr Stanley’s leather belts were on the floor of the parties’ home.
(c)When the children visited Ms J for sleepovers, she noticed bruises and marks on the children when they were bathing. The children reported they happened while playing or falling off a trampoline.
Ms J’s oral evidence was consistent with her affidavit evidence of her observations. She admitted that Mr Stanley had not, prior to September 2005, made a comment in relation to driving a car off a bridge. I accept her evidence in the absence of any successful challenge to it.
Ms Stanley otherwise relies on the reports the children have made to third parties in support of her contention that they are at unacceptable risk of harm in the relevant sense in Mr Stanley’s care.
Mr Stanley has been found guilty of assaulting X. Other charges that related to him assaulting Mr G, Ms H and X were dismissed. Those outcomes resulted from contested criminal proceedings in which Mr Stanley denied his guilt. The parties’ three elder children gave evidence and were cross-examined during that hearing. Mr Stanley maintains his innocence to this Court, saying that he could not recall the incident. The basis upon which I could reach an inconsistent conclusion from the criminal finding of his guilt in relation to X was not articulated. Based on that finding, I conclude that Mr Stanley has assaulted X.
The particulars of that charge occurred in September 2018 when X was 13 years old. X asked Mr Stanley to help her with her maths homework in her bedroom, but he refused, and left the room. X then asked Ms H for help. Mr Stanley saw this, and in a rage, entered X’s bedroom. Mr Stanley pulled Ms H out of the room and shut the door behind him and kept his weight up against the door. Mr Stanley then removed his leather belt from his uniform as X was trying to fight her way past him out of the bedroom as she knew what was coming. Mr Stanley pushed X backwards onto her bed and she landed on her right side. Mr Stanley has then hit X continuously along her left side causing bruising and red welts along her thigh, down her left leg and to her shin as she was wearing shorts. Mr Stanley caused X to fall to the ground and he continued hitting her with the belt. X managed to kick Mr Stanley and get up and leave her bedroom. Whilst this was occurring, Ms Stanley and Ms H were yelling at Mr Stanley to stop. Mr Stanley said nothing throughout the ordeal. X’s injuries were seen by Ms Stanley and her other three siblings. X face timed her grandparents around 9:00pm and disclosed and showed them her injuries over the phone. Mr Stanley admitted to this Court that was the evidence accepted by the Magistrates Court in finding the charge of him assaulting X proved.
In June 2020, Mr G was interviewed by Child Protection. He was extremely angry when discussing his father. He said:
“I hate that violence was normal. It was just the way it was for us, every day it was something different that made him go off. But always ended up aggressive and violent. It was more physical for me when I was younger, but I'm bigger than him now. He would sometimes use his hands, or items like saucepans, or just his belt off and just keep hitting and yelling."[6]
[6] Exhibit A2, page 6.
He reported witnessing his siblings being abused by Mr Stanley, saying “It happened all the time. It was really shit, but it was normal for us.” [7] Mr Stanley gave evidence that Mr G is making it all up because he is a “spoilt little brat”. I reject Mr Stanley’s explanation for Mr G’s report to Child Protection and find no basis to disbelieve Mr G’s report.
[7] Exhibit A2, page 6.
The same month, Ms H was also interviewed by Child Protection. She presented anxiously, highly emotional and required support. Ms H reported that she was subjected to multiple beatings from her father and stepped in to take beatings to prevent Y from being assaulted. She said “We all knew we had to protect Y, but we all knew that meant taking the abuse. Its [sic] what we thought was normal.” [8] She referred to Mr Stanley using the belt. She reported disassociating or shutting down from the beatings in order to get through them. She described telling others that her resultant bruises in places such as her lower back or hips were due to her clumsiness. She said she had learnt to cover them.
[8] Exhibit A2, page 5.
Mr Stanley denied Ms H’s report to Child Protection, although admitted that parts of it were true. He refused to elaborate on what the true parts were, other than to say he was frustrated. He sought to justify his behaviour because he was working long days and had to do the housework when he got home. He admitted that he had slapped the children with an open hand but denied ever using a belt. Based on the outcome of the criminal proceedings and the reports from the children, I reject his evidence that he never inappropriately disciplined the children.
It was suggested to Ms Stanley that her actions in leaving it up to the children whether they wanted to spend time with their father is inconsistent with her position that they are at unacceptable risk of harm in his care. Whilst I accept there is some such inconsistency, I am not satisfied it suggests that Ms Stanley is fabricating the allegations relating to the risk of harm to the children in Mr Stanley’s care. She gave evidence that she would be very concerned if the children did spend time with him.
It is common ground that the allegations of family violence and child abuse were not reported to external authorities until after separation. In cross-examination, it was suggested to Ms Stanley that the allegations of family violence and abuse she made were false. She denied the proposition. She gave evidence that the children used to hide the abuse. The absence of her prior involvement with agencies is not inconsistent with evidence of a history of family violence,[9] noting Ms Stanley’s explanation to Child Protection workers in June 2020 that she had not previously reported the abuse due to her fear of repercussion and Mr Stanley’s controlling behaviours.
[9] Hendy & Penningh (2018) FLC 93-879 at [13].
It was suggested to Ms Stanley in cross-examination that she did not do anything about the situation if what she says is true. She gave evidence that: “I know I didn’t do anything coz I didn’t want to be a statistic in this world and I was scared, I had no money, I didn’t know what security we had… Where do women go?” She was then asked where she went when she left in January 2019 and gave evidence that she went to the maternal grandparents’ home. She also gave evidence that they were not previously an option as she did not want to burden them. I am not satisfied that her failure to seek assistance at an earlier time suggests that her assertions of abuse are a lie.[10] I am also not satisfied that any discrepancy between the hearsay accounts of Ms Stanley’s representations to Child Protection and Consultant Ms L impeach the overall credibility of her reports.
[10] Hendy & Penningh (2018) FLC 93-879 at [13].
Consultant Ms L described the multiple reports as sustained physical violence and enraged behaviour. I accept that description and find that Mr Stanley has perpetrated family violence and physical abuse of his children on multiple occasions.
Having found a number of incidents of family violence and child abuse perpetrated by Mr Stanley proved to the requisite standard, it is necessary to consider whether there is an ongoing risk of him continuing to perpetrate such behaviour. He admitted in evidence that he sometimes has a quick temper, although denied being quick to anger. However, his engagement with agencies and third parties after the parties’ separation reveals very poor impulse control.
Mr Stanley was contacted by Child Protection workers on 18 June 2020. Mr Stanley agreed with the Departments’ report that he was “heightened and extremely aggressive”[11]. I accept the report that he refused to cooperate with them even if Mr Stanley cannot recall doing so. He agreed that he “escalated and began screaming that his details had been obtained illegally, that he had not consented to his contact details being provided, that Ms Stanley had broken his privacy and confidentiality by giving his contact details and he would initiate legal proceedings against her.” [12] He also agreed that he terminated the call. He sought to justify his behaviour by reference to having an assignment to do at the time.
[11] Exhibit A2, page 6.
[12] Exhibit A2, page 6.
Mr Stanley also sought to justify his conduct in interview with Victoria Police by reference to having an assignment to do and being stressed. His behaviour was then described as “concerning, that he was extremely heightened and aggressive, and upon leaving, screwed up paperwork provided and threw it at Detectives.”[13] Although Mr Stanley denied that he could not control himself, I find that he became angry and lost control during his interactions both with Child Protection and Victoria Police.
[13] Exhibit A2, page 6.
Mr Stanley’s previous general practitioner, Dr K, also reported that Mr Stanley became “extremely heightened” [14] when Dr K advised him in July 2020 that he would need to see a different doctor. Dr K “discussed concerns about Mr Stanley's current mental health and escalation in his aggression where he as [sic] presented as "unhinged".”[15] Clearly, despite the nearly 12 months that had elapsed since the parties’ separation, Mr Stanley continued to display anger and aggression to third parties.
[14] Exhibit A2, page 7.
[15] Exhibit A2, page 7.
Mr Stanley agreed that he “expressed irritation” to Consultant Ms L when she sought to interview him for the family report in June 2021. He also agreed that he retorted “where I work has nothing to do with the children and my relationships are irrelevant to what I do with the children”[16] when asked about his employment and relationship status by Consultant Ms L.
[16] Family Report, paragraph 47.
Mr Stanley gave evidence that he suffers from anxiety and depression and has previously felt suicidal, for which he is treated by a psychologist Ms M. He gave oral evidence of having been treated by her since 2019. He agreed she was available to give evidence about his treatment and presentation. No such evidence was adduced by him. I infer that her evidence would not have assisted Mr Stanley’s case.[17]
[17] Kuhl v Zurich Financial Services Australia Ltd & Another (2011) 243 CLR 361 per Heydon, Crennan and Bell JJ at [63].
Mr Stanley generally demonstrated a lack of ability to take any responsibility for his actions during his evidence. When it was suggested to Mr Stanley that the Court would have been more informed in relation to his mental health if he had been more cooperative with Consultant Ms L and disclosed that information to her upon request, Mr Stanley sought to attribute blame for that failure on the Court. He gave oral evidence that his relationship with his children has not been damaged by his own conduct, petulantly asserting that he has been damaged by everyone else involved.
Mr Stanley has failed to participate in a Men’s Behaviour Change Program as was recommended by Consultant Ms L in June 2020. He told Consultant Ms L that he did not need the program. He gave evidence that he had not undertaken it because it was not court ordered. Again, that response demonstrates a lack of Mr Stanley taking responsibility for his own actions. Consultant Ms L gave oral evidence that he was verbally abusive towards her when she tried to talk to him about how he could better manage his emotional regulation and his responses to situations.
Mr Stanley’s presentation and attitude since the parties’ separation is consistent with Ms Stanley’s submission that he has an explosive temper which he cannot control. He has previously lost his temper and physically abused his children. I conclude that he continues to present an unacceptable risk to the children of exposing them to family violence or abuse.
The benefit to the children of having a meaningful relationship with both of their parents
The background to which I have already referred reveals that the children currently have a relationship only with one of their parents, Ms Stanley. Mr Stanley contends that it is not good for Y to be completely disengaged from him. He invites the Court to assist Y to have something more of a normal life and have a relationship with both parents. He submits that ordering Y to spend supervised time with him would realistically attempt to re-establish a relationship with him.
Whilst clearly the benefit to Y of having a relationship with her father is a consideration to which primary attention must be given, it is well established that the Court is under no obligation to ensure that children maintain a meaningful relationship with both parents. Rather, I must consider the benefit to the children of having such relationships in light of my other findings.[18] Primacy must be given to the need to protect the children from the harm prescribed by the second primary consideration.[19] I am also required, to the extent that it is possible with the children’s best interests being the paramount consideration, to ensure that orders do not expose a person to an unacceptable risk of family violence.[20]
Any views expressed by the children and any factors (such as their maturity or level of understanding) relevant to the weight that should be given to those views
[18] Mulvaney & Lane (2009) FLC 93-404 at [89]; Jurchenko & Foster (2014) FLC 93-598 at [25]; Oram & Lambert (2019) FLC 93-886 at [148, 160]
[19] Family Law Act 1975 (Cth), ss 60CC(2A).
[20] Family Law Act 1975 (Cth), ss 60CG.
Given Mr Stanley only seeks parenting orders in relation to Y, I will focus on her views. Y was interviewed by Child Protection on 2 June 2020. She then described Mr Stanley as “annoying”, stating that “he goes into rages. If we stand up to him, he hits us with belts or something that he can reach”.[21] She explained that “he hit Mr G and X more, sometimes leather belts sometimes metal, it depends on his rage. He stopped hitting Mr G as much when he went to gym and got too big".[22] She said that she “didn’t get hit as bad”, but when she did it was with “his steel cap boots, phone or he would throw stuff”.[23] She described that he “would stop when we cried”.[24]
[21] Exhibit A2, page 4.
[22] Exhibit A2, page 4.
[23] Exhibit A2, page 4.
[24] Exhibit A2, page 4.
Y went on to yell “NO” when asked whether she felt safe with her father. When asked about contact with her father, “Y became visibly emotional and heightened, she appeared frightened and the fidgeting and pulling at her fingers became more pronounced. Y strongly stated ‘I never want to see him again’.”[25]
[25] Exhibit A2, page 4.
Y was interviewed by Consultant Ms L on 3 June 2020. Y then stated she did not want to see her father, adding “I am not scared of him, but scared of his actions. He used to hit us with anything in his reach.”[26] She “could not recall anything positive about the time spent with her father before separation, adding she did not like him at all ever.” [27] She re-iterated that she did not want to spend any time with Mr Stanley.
[26] Child Inclusive Memorandum of 10 June 2020, paragraph 38.
[27] Child Inclusive Memorandum of 10 June 2020, paragraph 38.
Consistent with those reports, Y’s psychologist, Mr N, reported to Child Protection in June 2020 that Y did not to want to have any further contact with her father. He observed strong physical responses from her when discussing her father “with shaking, pulling fingers, becoming emotional and frightened”.[28] Child Protection had made similar observations of her presentation during their interviews with the children.
[28] Exhibit A2, page 7.
Y was again interviewed by Consultant Ms L in June 2021. Y then stated that her father is out of the picture and gone. She said that she does not see her father “because he is scary. He goes on rampages.”[29] She described him as angry all the time and angry with everyone. She said she had no connection with her father and added that he had not called the children on their birthdays. Although Mr Stanley submitted that he was prohibited from making such calls, there is no evidence that he sought to do so in accordance with exceptions to the Intervention Order.
[29] Family Report of 21 June 2021, paragraph 87.
Y also told Consultant Ms L in June 2021 that she did not miss her father and complained that it was horrible when her parents lived together. Contrary to her previous representations to Consultant Ms L, she stated that her father never hurt her, rather it was more X who got hit. Y said that she is not scared of her father, but does not want to see him and “she would get really mad if she had to go and spend time with him”.[30]
[30] Family Report of 21 June 2021, paragraph 91.
Ms Stanley deposes to X and Y continuing to express a desire not to have contact with their father. Ms Stanley’s evidence in that respect was not the subject of successful challenge and I accept it. I also accept her unchallenged evidence that whenever Mr Stanley asked to see the children after separation, she asked the children whether they wished to see him and they said they did not wish to do so.
Mr Stanley suggested in his evidence that the children’s views have been influenced by other people, including Ms Stanley and her mother. Although the children’s maternal grandmother gave evidence in the proceedings, Mr Stanley did not suggest to her that she had been influencing the children’s views. The evidence does not satisfy me that the children’s views have been negatively influenced by their maternal grandmother.
Consultant Ms L’s opinion in both her reports is that the children may have been subjected to influence from their mother and each other. She opined in June 2021 that the ongoing influence of Ms Stanley has likely contributed to the children’s completely negative views of their father. I am satisfied that Ms Stanley has a negative opinion of Mr Stanley and that she has not encouraged them to have a relationship with their father. She has shared her negative opinions of him with the children, particularly in relation to the absence of his financial support for the family after separation. She has also inappropriately discussed the proceedings in this Court with the children.
Nevertheless, I consider the children’s views are reflective of their own opinions of their father based on their experience of him. Their reports of him walking out on them were a result of their own experience. I also accept Ms Stanley’s evidence that X’s report to Consultant Ms L in June 2020 that her father could only handle them for 5 minutes, is attributable to a comment he made to his daughter.
I also note that X reported to Consultant Ms L in June 2021 that if she made a decision to see her father, she considered her mother would be ok, provided she was not forced. That statement suggests that Ms Stanley is in fact supportive of the children’s views rather than seeking to impose her own opinion on them.
Mr Stanley submits that the children have aligned with their mother. Consultant Ms L did not agree with that characterisation. She also considered the concept of alignment to be irrelevant in circumstances where Y has been exposed to family violence, exposed to her siblings being physically harmed, as well as threats and arguments between her parents. It was not suggested to Consultant Ms L that Ms Stanley has actively alienated the children from their father, which forensic decision precludes acceptance of Mr Stanley’s final submission to that effect, even if the word was intended to be used in a non-technical sense.
Mr Stanley denies that the children have expressed views not to see their father, as it is reported that they have. He gave evidence that Consultant Ms L is lying in her report about the views Y expressed to her. He gave evidence that he considered she was doing so because she had read a report in relation to an incident with X in 2019 that never happened and when nobody actually knows what happened. That explanation is fanciful. Mr Stanley did not suggest to Consultant Ms L in cross-examination that she was lying in her report. I reject Mr Stanley’s evidence that Consultant Ms L’s report does not accurately record the children’s expressed views.
When Y’s reports to Child Protection in June 2020, the reports from Y’s psychologist and her comments to Consultant Ms L were put to Mr Stanley, he gave evidence that maybe she was coerced by her mother, Ms J and her siblings. I am not satisfied that Y’s views have been so coerced.
Mr Stanley acknowledged that he has no evidence to support a finding that the children do in fact wish to spend time with him. He also gave oral evidence that he is just hoping that Y does want to see him and rekindle her relationship with him. There is no evidence to support such a conclusion. I am not satisfied that Y’s views are other than as reflected in the independent reports available to the Court.
Despite Consultant Ms L’s opinion that the children’s views about their father may have been negatively influenced by their mother, she is of the opinion that their serious allegations of physical abuse have also contributed to their negative views. She considers them to involve a lot of self-protection for Y. She opines that “[g]iven Y’s view and the views of her sisters, brother and mother, it may be harmful to Y emotionally, if there were Orders for her to spend time with her father against her expressed wishes.”[31] Consultant Ms L opined in oral evidence that compelling Y to see her father would result in Y struggling to meet her developmental tasks and that she may engage in significant risk taking behaviours. Consultant Ms L considered it would be very harmful to her emotional wellbeing and that it would seem very punishing and emotionally damaging for Y to be required to spend time with her father against her expressed wishes.
[31] Family Report of 21 June 2021, paragraph 102.
I consider that substantial weight should be given to Y’s views given the circumstances in which they have been expressed and the expert evidence in relation to them.
The nature of the children’s relationship with each of their parents and any other persons (including any grandparent or other relative of the child)
Consultant Ms L opines that the children all appear to be connected to their mother. Whilst Mr Stanley has been critical of Ms Stanley in a number of respects, he fundamentally proposes that the children remain living full time with her. I find the children’s relationship with their mother to be appropriate in those circumstances.
Consultant Ms L also opines that the children appear connected as siblings, which opinion I accept absent any challenge to it.
It is Consultant Ms L’s opinion that the children’s relationship with their father “has been completely decimated”[32] after separation. She opines that the parties’ two older children had outright rejected their father based on their experiences of him. Ms Stanley gives unchallenged evidence that Ms H and X have been referred to counselling “as a result of their exposure to domestic violence at the hands of their father”,[33] which is ongoing. Clearly the children do not have, and have not had, a relationship with their father for the nearly three years that have elapsed since separation.
[32] Family Report of 21 June 2021, paragraph 93.
[33] Ms Stanley’s Affidavit filed 4 September 2022, paragraph 55.
Ms Stanley agreed in cross-examination that she had not facilitated the children spending any time with their paternal grandmother since separation. However, she gave evidence, without contradiction, that the children’s paternal grandmother had not contacted her. Ms Stanley also gave uncontradicted evidence that the children never had a close relationship with their paternal grandparents.
The extent to which either of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children; and to spend time with them and to communicate with them
Although the parties participated in Family Dispute Resolution after their separation, Mr Stanley did not apply to the Court for parenting orders until April 2020, approximately 8 months after separation. In that intervening period, the children spent no time with him. He failed to formally seek the opportunity to spend time with them during that period. The same could not be said thereafter given his interim application for the children to spend equal time with him, albeit that interim application was not successfully prosecuted.
Ms Stanley gave oral evidence that she had never received any requests, including through her legal representatives, from Mr Stanley to communicate with the children. That evidence was not contradicted by Mr Stanley. Whilst it is true that an Intervention Order was then in place, I am not satisfied that Ms Stanley is responsible for Y’s comment to Consultant Ms L that her father has not called the children on their birthdays.
Although Mr Stanley is critical of Ms Stanley for not providing him with information in relation to the children’s medical needs and schooling, he appears to have made minimal efforts to obtain such information independently.
The extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children
Mr Stanley paid child support as was assessed from time to time by the Child Support Registrar until that assessment was cancelled in March 2021. His evidence that he paid more than he was assessed to pay was not challenged.
Prior to its cancellation, Mr Stanley made many applications to vary the administrative assessment of child support which Ms Stanley found intolerable, resulting in her successfully obtaining a waiver of the requirement for her to seek child support from Mr Stanley.
Mr Stanley has made no financial contributions to the maintenance of his children since March 2021. Neither has he proposed doing so.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child or other person (including any grandparent or other relative of the children), with whom they have been living
It is not proposed that the children would be separated from Ms Stanley, their older siblings and their maternal grandparents with whom they have lived exclusively since the parties’ separation.
The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
Both parties reside in Suburb O, Victoria. It is not suggested there is any practical difficulty or expense in the children spending time or communicating with either parent.
The capacity of each of the children’s parents and any other person (including any grandparent or other relative of the children) to provide for the children’s needs, including emotional and intellectual needs
In December 2018, Mr G was 16 years old. Mr Stanley gives evidence that he had made arrangements with Mr G for him to help erect a pergola. On the agreed day, Mr G refused to help him, saying that he was going shopping with his grandmother. Mr Stanley gives evidence that he argued with his son and kicked him out of the house. Mr Stanley admitted in cross-examination that he had not spoken to Ms Stanley about kicking Mr G out of the house before he did so. I reject Mr Stanley’s evidence that he did not over react on that occasion. That Mr Stanley simply kicked his son out of the house as a result of that disagreement is demonstrative of a very limited capacity to provide for his children’s needs. Unsurprisingly, Mr Stanley’s other children were upset and also left the home.
In December 2019, Mr Stanley breached an Intervention Order when he accidentally came upon Mr G near a shopping centre to ask him whether he was working. I reject his evidence that he did so “so he could congratulate him if he was”. Three months’ prior, Mr Stanley had sought a reduction in the child support paid by him on account of the fact that Mr G had employment. Mr Stanley’s enquiry prioritised his own financial interests and demonstrated poor insight and capacity to provide for his son’s emotional needs.
Mr Stanley called evidence from his friend Mr P in which Mr P deposes to Ms Stanley telling him in 2019 that she had tried to commit suicide by hitting herself in the temple with a hammer. He gives evidence of observing two big lumps on the side of her head. Ms Stanley challenged Mr P’s evidence in that regard. She also challenged Mr P’s evidence that Ms Stanley admitted to sending him abusive and offensive messages over Facebook from an alias. Mr P’s oral evidence was consistent with his affidavit. There was nothing about the way Mr P gave his evidence that caused me to doubt it. I accordingly accept it. However, its significance is minimal given it is Mr Stanley’s proposal that Ms Stanley continue to primarily care for the children.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of their parents, and any other relevant characteristics
Consultant Ms L opines that Y is now going into adolescence which is a challenging and difficult time on lots of levels for children. She considers that her age is such that she should not be dragged kicking and screaming to see her father. She supports Y having a choice about whether she seeks to spend time with her father in the future.
Despite the adversity and heinous conduct she considers the children have been exposed to, Consultant Ms L commended the children for nevertheless doing well, including continuing to attend school.
If the children are Aboriginal or Torres Strait Islander children, their right to enjoy their Aboriginal or Torres Strait Islander culture; and the likely impact of any proposed parenting order will have on that right
The children are not Aboriginal or Torres Strait Islander children.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
It has been Ms Stanley’s case throughout these proceedings that the children spend no time with their father. However, I accept her denial of the suggestion put to her in cross-examination that she has actively sought to damage the children’s relationship with their father and has taken steps to stop the children spending time with him. I accept her denial of the characterisation put to her that Y’s comment that her father is gone and out of the picture is some sort of “mission accomplished”. I also accept her denial of the proposition that it was her agenda to punish Mr Stanley and ensure the children did not see him again.
Mr Stanley sought to criticise Ms Stanley for the fact that X reported to Consultant Ms L that she did not have her father’s phone number. I accept Ms Stanley’s evidence that the children have previously had their father’s number and could easily obtain it upon request. She suggested that X may have deleted her father’s number, a suggestion that was not challenged or contradicted.
Ms Stanley has not provided Mr Stanley with any information in relation to the children’s health. She gave evidence that because some of the children are what she described as “over the age”, she considered that she did not have to. She also considered that do so would be to breach the children’s privacy. I reject her explanations for failing to provide Mr Stanley with any information in relation to the children’s health. I find her failure to do so reflects poorly on her attitude to the responsibilities of parenthood.
Ms Stanley at various time during the relationship referred to Mr Stanley as a “sperm donor”. Whatever her criticisms of his contributions to the household, that comment minimised Mr Stanley’s role as the children’s father. It accordingly reflects poorly on her attitude to the responsibilities of parenthood.
I am not critical of Ms Stanley’s failure to encourage the children’s relationship with their father given the family violence and child abuse that I have found occurred. The Court itself, when faced with an interim application for the children to spend time with Mr Stanley, made an order that the children live solely with Ms Stanley.
I am also not critical of Ms Stanley for not acting on Consultant Ms L’s recommendation for the parties to attend Family Dispute Resolution. Given the parties’ entrenched positions and litigation in multiple jurisdictions, I am satisfied any such efforts would have been futile.
Mr Stanley’s attitude to the responsibilities of parenthood is reflected poorly in his evidence to the Court relating to his proposal. To repeat, he proposes that the children live primarily with their mother. He nevertheless denied the proposition that Ms Stanley can meet the children’s needs and look after them. He appeared to assert that she could not do so while living with her parents because they were somehow influencing the children. No suggestion to that effect was made to Ms J who was cross-examined on his behalf. Neither did Mr Stanley seek to restrain Ms Stanley from living with her parents. The orders he seeks are completely inconsistent with his evidence that Ms Stanley is unable to meet the children’s needs and look after them.
Mr Stanley’s attitude is also poorly reflected in the fact that he proposed, at the commencement of the trial, to require Ms Stanley to facilitate X speaking to her father twice per week and spend overnight time with him on alternate weekends. X is 17 years of age. He gave evidence that such an order would be in her best interests to try to see if she wants to see her father, despite the fact he has been found guilty of assaulting her in a contested hearing in which X was cross-examined on Mr Stanley’s behalf. His earlier position that, despite her age, she should be compelled to spend time with him in those circumstances reflects poorly on his attitude to the responsibilities of parenthood.
The same conclusion can be reached from the fact that the first time Mr Stanley suggested that there be any periods of supervised time was during this trial, some 3 years since the parties’ separated and since he had spent any time with the children. His failure to make that proposal at an earlier time deprives the Court of any evidence as to whether it would have been successful.
Mr Stanley’s position to this Court is also inconsistent with his evidence to the Magistrates Court shortly prior to this trial that he would respect the wishes of the children if they did not want to see him. Mr Stanley gave oral evidence that if his children tell him that they do not want to see him, he would walk away. In circumstances where Y has maintained a position of not wanting to see her father for an extended period of time, as reflected both in the independent evidence before the Court and Ms Stanley’s evidence, requiring his daughter to tell him the same thing directly either verbally or through text message reflects very poorly on his attitude to the responsibilities of parenthood.
Mr Stanley gave evidence that he did not want to force Y to spend time with him. When the inconsistency between that evidence and his position that she nevertheless spend time with him was raised, he agreed that the orders he seeks force her to do something she does not want to do. He went on “I’m requesting trying to have a relationship with my child because I want to be part of their life.” When he was asked how it was in X’s best interests to make orders requiring her to spend time with him for a few months prior to her 18th birthday, Mr Stanley retorted “How is it in my best interests?” That evidence suggests Mr Stanley’s motivation to impose something on his daughter contrary to her wishes is not focused on what is best for her, but what he wants. So much reflects poorly on his attitude to the responsibilities of parenthood.
Mr Stanley gave evidence of being concerned about the lack of information provided to him in relation to his children’s medical needs, claiming to care about the children and their health. However, he failed to disclose significant aspects of his own circumstances with the result that the Court is deprived of relevant evidence upon which to make findings, for example, in relation to his mental health. Again, so much reflects poorly on his attitude to the responsibilities of parenthood.
Any family violence involving the children or a member of their family
I have referred already to the allegations of family violence perpetrated by Mr Stanley that I have found to be established.
X told Consultant Ms L that “her parents argued a lot, with each of them walking out slamming doors and that they were hit by flying objects, thrown by their parents”.[34] Ms Stanley accepted that she and Mr Stanley argued. She gave evidence that she stood her ground or attempted to. She denied that she was a door slammer or a thing thrower. I am not satisfied that X is mistaken about her recollection. No suggestion to that effect was made to Consultant Ms L. I find Ms Stanley did contribute to arguments including slamming doors and throwing objects. However, it is common ground that the children will remain living primarily with her.
If a family violence order applies, or has applied, to the children or a member of the children’s family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which it was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter
[34] Family Report, paragraph 79.
On 26 August 2019, Ms Stanley successfully applied for an interim Intervention Order protecting herself and the children from Mr Stanley. On 26 September 2019, a final Intervention Order was made protecting Ms Stanley and the children from Mr Stanley. Mr Stanley gives uncontradicted evidence of not opposing the making of that Order and I infer that he did so by consent without admission as to its necessity.
Ms Stanley applied to extend the original Intervention Order which was due to expire on 26 March 2020. Ms H also applied for an Intervention Order against her father. Further, Mr Stanley applied for an Intervention Order against Ms Stanley. Those applications were determined on 7 September 2022. Mr Stanley’s application was dismissed. Both Ms Stanley’s and Ms H’s applications were successful. The resulting Orders protect Ms Stanley and the parties’ four children from Mr Stanley.
Those Orders were made after a contested hearing. I infer that the Magistrates Court was satisfied that Mr Stanley has committed family violence and is likely to continue to do so or do so again.[35] No further evidence has been adduced in these proceedings that would permit any other inferences to be drawn.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
[35] Family Violence Protection Act 2008 (Vic) s 74.
Mr Stanley’s proposal is likely to lead to the institution of further proceedings in relation to the children. He proposes only that Y spend supervised time with him for six months and thereafter the parties attend Family Dispute Resolution. Mr Stanley conceded in oral evidence that there have been no agreements between the parties for the last three years. The parties have previously attended Family Dispute Resolution in an unsuccessful effort to resolve the dispute. There is no evidentiary basis from which to infer any confidence that future agreement between the parties is likely. Presumably, in the event no agreement is reached in six months if I accede to Mr Stanley’s proposal, further litigation would then become inevitable.
In the months leading up to this final hearing, the parties and children have been subjected to contested criminal and Intervention Order proceedings in the State Courts. The impact on the children of further litigation is accordingly heightened, which impact must be considered in the conduct of child-related proceedings.[36]
[36] Family Law Act 1975 (Cth), ss 69ZN(3).
Further, in the event Y refuses to spend time with her father, even on a supervised basis, it is likely that further proceedings will be necessitated. That possibility is likely given Y’s consistently expressed views. Mr Stanley gave evidence that he would bring contravention proceedings in the event the Court now made orders for X to spend time with him, and she refused to do so despite the fact she will turn 18 years this year. I consider it likely he would seek to bring contravention proceedings in the event Y refused to spend time with him if such an outcome was ordered.
Any other relevant fact or circumstance
There are no other relevant facts or circumstances.
Parental responsibility
Given the findings I have made in relation to Mr Stanley’s perpetration of family violence and child abuse, the presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them is inapplicable.[37]
[37] Family Law Act 1975 (Cth), ss 61DA(2).
Mr Stanley nevertheless proposes that he have equal shared parental responsibility for the children. He contends that the children are entitled to the input their father is able to bring to their lives. If it be suggested that such an entitlement be elevated to any sort of presumption, clearly that would be inconsistent with the conclusion reached in the preceding paragraph based on statutory considerations.
Mr Stanley conceded in oral evidence that there has been no communication between the parties since 2020. Whilst he gave evidence of understanding the obligations that would be imposed by an order for equal shared parental responsibility, he was not able to articulate a method by which the parties could consult with each other and make joint decisions in relation to major long-term issues affecting the children. I am not satisfied the parties’ have the necessary capacity to do so.
Consultant Ms L opines that the parents’ relationship and capacity for communication is virtually non-existent and unlikely to repair. She considers their capacity for an ongoing co-parenting relationship is dismal.
I am not satisfied it is in the children’s best interests for their parents to have equal shared parental responsibility for them. It is accordingly unnecessary to consider whether the children spending equal time or substantial and significant time with each of their parents is in their best interests and reasonably practicable.
Mr Stanley refused to sign Y’s school enrolment form for the same school that her older sisters had attended. He sought to justify his refusal by reference to the fact that he did not have the funds to pay for it. Whilst the evidence does not permit a conclusion whether or not his signature would have required him to pay school fees, I consider that his failure to facilitate Y’s enrolment at the school was contrary to his daughter’s best interests.
Ms Stanley seeks sole parental responsibility for X and Y. Given she will continue to be effectively sole care provider for the children, I consider it to be in their best interests for parental responsibility to be solely vested in her on the proviso that, as she proposes, she provide advance notice of any intended exercise of that responsibility relating to a long-term decision. That outcome will minimise the risk of necessary decisions for the children being inappropriately or unnecessarily delayed.
Conclusions
Consultant Ms L opines that Y, at her age, clearly needs to be protected from further exposure to abuse and family violence by her father. She considers that Y has been physically abused by her father and witnessed seeing her siblings physically abused as they sought to protect her. So much is consistent with the findings I have made, and the findings made by the Magistrates’ Court of Victoria in convicting Mr Stanley of assaulting X and making Intervention Orders after contested hearings.
Mr Stanley submits that orders for Y to spend supervised time with him would mitigate against the protective concerns. It is well established that it is undesirable to make orders for indefinite supervision, even if in particular circumstances it might be warranted.[38] Here, Mr Stanley is effectively not seeking an indefinite order for supervision, rather only such an order for a period of six months. As has been referred to, the likely effect of the relief he seeks is further litigation. Further, there is some force in Ms Stanley’s submission that given Mr Stanley’s conduct when dealing with the professionals involved with his family, I could have no confidence that he would be deterred from losing his temper, abusing or denigrating the children or Ms Stanley to Y if he was permitted to have supervised time.
[38] Bant & Clayton (2019) FLC 93-924 at [53] and the cases there cited; Syms & Syms (2021) FLC 94-010 at [139] and the case there cited.
It is not the opinion of Consultant Ms L that it is in Y’s best interests to be compelled to have a relationship with her father. That opinion was not successfully impugned. I am not satisfied that the usual desirability of children benefitting from a meaningful relationship with both parents outweighs the likely emotionally and developmentally deleterious consequences of requiring Y to see her father contrary to her views. Further, the conclusions I have reached in relation to the unacceptable risk Mr Stanley poses of exposing Y to abuse and family violence are incompatible with a conclusion that in six months’ time supervision ought be abandoned.
Ms Stanley proposes that X spend time with her father in accordance with her wishes. Whilst Mr Stanley proposes no orders be made in relation to X, I consider it to be in her best interests to be permitted to spend time with her father should she decide to do so.
In the case of Y, Ms Stanley proposes that she spend time with her father as agreed between her parents. It is not controversial that the effect of such an order is that she will not do so at this time. I consider that outcome to be in her best interests. In the event she changes her mind in the future and expresses a wish to see her father, I agree with Ms Stanley that it will then be for the parents to negotiate how any time could then be facilitated. Importantly, the order proposed does not preclude the facilitation of any prospective desire by Y to see her father. I consider it to be in her best interests.
Other relief proposed by Ms Stanley will permit Mr Stanley to communicate with the children through cards, letters and gifts and to be appraised of medical and schooling issues affecting the children. Aspects of that relief are supported by specific recommendations made by Consultant Ms L. Other proposed orders will require him not to physically discipline the children, abuse, denigrate or belittle the maternal family in the children’s presence, or expose the children to court proceedings. Neither party made submissions about that relief sought, which I find to be in the children’s best interests.
Mr Stanley made no submissions in support of other parenting relief that he sought, which included orders for communication, travel and more expansive injunctions. There is limited evidence in support of them, and absent any submissions by him, I am unable to conclude they are in the children’s best interests.
Property
Both parties seek to alter their interests in property through the distribution of the proceeds of sale of the former matrimonial home which amount to
$110,350$100,350. Ms Stanley seeks to retain $70,000 from those proceeds, whereas Mr Stanley proposes an equal distribution of those proceeds after payment of the parties’ liabilities. As to the percentages of the parties’ net interests in non-superannuation assets, Ms Stanley seeks to retain approximately 70% of their value whereas Mr Stanley proposes that she retain approximately 59% of their net value.The parties agree that their superannuation interests should be approximately equalised through a superannuation split from Mr Stanley’s superannuation interests in the amount of $90,000.
Statutory Framework
Pursuant to section 79 of the Act, I have a discretion to make such order altering the parties’ interests in property as I consider appropriate. I am prohibited from making an order unless I am satisfied it is just and equitable to do so.[39] If I am so satisfied, I am required to consider the matters prescribed by subsection 79(4) of the Act and by the device of paragraph 79(4)(e), such matters as are relevant pursuant to subsection 75(2) of the Act.
[39] Family Law Act 1975 (Cth), ss 79(2).
Property interests
It is necessary to begin by identifying, according to common law and equitable principles, the existing legal and equitable interests of the parties in property.[40] Given Ms Stanley’s concession in closing address in relation to additional sums to be added back by way of part property settlement, those interests are agreed to comprise:
[40] Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) at [37].
Asset O'ship Value ($) Remaining proceeds of sale of Q Street, Suburb O Jt $110,350
$100,350Part Property Settlement W $90,000 School fee liability W ($5,223) Dental fee liability W ($5,000) Ipad liability W ($693) Part Property Settlement H $50,000 Westpac personal loan H ($14,542) Bank B Visa H ($5,494) Mastercard H ($1,991) Bank D loan H ($3,500) Total non-superannuation interests $213,907
$203,907Legal Super W $8,361 Super Fund E H $188,078 Total superannuation interests $196,439 Total property interests $410,346
$400,346Justice and equity
Both parties seek orders altering their interests in property, including superannuation. Implicit in their positions is an acceptance that it is just and equitable to make orders altering those interests.
The parties were joint proprietors of the former matrimonial home at Q Street in Suburb O. The proceeds of its sale remain in a solicitor’s trust account. The Court is obliged to make an order under Part VIII of the Act to sever their joint interests in those funds.[41]
[41] Duarte and Another and Morse (2019) FLC 93-902 at [486].
I am satisfied that it is just and equitable to make orders altering their interests in property.
Contributions
I am required to take into account the parties’ financial and non-financial, direct and indirect, contributions to the acquisition, conservation or improvement of any property of the parties.[42] I am also required to take into account the parties’ contributions to the welfare of the family.[43]
[42] Family Law Act 1975 (Cth), ss 79(4)(a-b).
[43] Family Law Act 1975 (Cth), ss 79(4)(c).
At the commencement of the parties’ cohabitation, Ms Stanley had a motor vehicle, savings of approximately $1,500 and some furniture and contents.
Mr Stanley then owned a property at C Street, Suburb R which had been purchased in 2000. It was subject to mortgage. He also had superannuation interests worth $23,237.
The parties lived in the Suburb R property for approximately six months during which time the parties undertook renovations including the installation of a new kitchen, carpet and tiling. Ms Stanley’s parents assisted with the renovations, including through removing tiles, floor coverings and rubbish, as well as cleaning, painting and gardening. It was then sold in 2002 generating net proceeds of sale of $50,000.
The parties and Mr G thereafter lived with Ms Stanley’s parents for approximately 6 months rent free. The provision of rent free accommodation is a contribution on behalf of Ms Stanley.[44]
[44] Pellegrino & Pellegrino (1997) FLC 92-789.
The proceeds of sale of the Suburb R property were applied to the purchase of land at S Street, Suburb O on which a home was built. In mid 2002, the parties moved into the completed home which had been financed by way of loan secured by mortgage.
In 2009, the S Street home was sold. The parties again stayed with Ms Stanley’s parents rent free for approximately 3 months until the Q Street property was purchased.
During the parties’ marriage, Ms Stanley’s parents provided funds to the parties totalling approximately $31,270. Those funds were applied to motor vehicle repairs, home improvements, mortgage repayments, children’s expenses and general living costs. Whilst Mr Stanley deposes to not being aware of those funds being advanced to Ms Stanley, he did not challenge Ms Stanley and her father’s evidence in relation to their provision. I find funds were advanced as asserted by Ms Stanley.
During the parties’ marriage, at various times they refinanced their home loan to fund the acquisition of motor vehicles, improvements and other expenses.
Mr Stanley was essentially employed as a transport worker during the parties’ marriage aside from periods of time when he was unable to work due to injury. He was in receipt of WorkCover payments for one such three year period from May 2010. He received a compensation payment of $15,000 in 2010 which was applied to the family and particularly items for the children.
Ms Stanley was initially employed as a customer service officer and then as a hospitality worker. She ceased employment in 2001 after an injury to her hand. She was thereafter primarily responsible for the care of the children given Mr Stanley essentially worked six days a week doing shift work.
After separation three years ago, Ms Stanley has been solely responsible for the care of the parties’ three children. After multiple disputes in relation to child support, the child support assessment was cancelled in March 2021. Mr Stanley has not thereafter contributed to any expenses for the children. Ms Stanley has been responsible for the children’s medical and extra-curricular expenses.
Mr Stanley has been responsible for servicing various liabilities in his name after separation, which then had a balance of approximately $67,000, although he has also applied the proceeds of sale of a motor vehicle and caravan to that purpose.
Over the course of the marriage that spanned approximately 19 years, I consider that a holistic assessment of the parties’ contributions leads to a conclusion that they should be considered equally. I do not accept that specific consideration of Ms Stanley’s post-separation contributions leads to a different result, noting the error that would be attendant upon segmenting or compartmentalising contributions and weighing one against the remainder.[45] Such an outcome would lead to the parties each retaining non-superannuation asserts worth
$106,953$101,953 and superannuation assets worth $98,220.[45] Benson & Drury (2020) FLC 93-998 at [35] and the cases there cited.
Paragraphs 79(4)(d, e, f and g) and Subsection 75(2) factors
Ms Stanley is currently 42 years old and studying. She has recently been employed for short periods of time as an administration officer and health care worker. Her taxable income for the last two financial years averaged approximately $35,000 per annum.
Mr Stanley is currently 48 years old and works as a contractor. He deposes in his Financial Statement to earning $580 per week. Contrary to his oral evidence, that is what he therein deposes to as being his gross earnings pre-tax. Prior to the commencement of trial, he provided no discovery of any source documents that would corroborate his alleged income, either invoices for work done, or bank statements for accounts into which he has been paid. He was previously supported by WorkCover payments. He also failed to produce any documents in relation to that income prior to his cross-examination. That he provided documents after the conclusion of his cross-examination prior to the conclusion of the trial does not detract from a conclusion that he deliberately failed to disclose documents. I should accordingly not be unduly cautious about making findings in relation to Mr Stanley’s income in favour of Ms Stanley.[46]
[46] Weir & Weir (1993) FLC 92-338 at 79,593; Kingston & Field (No 2) (2020) FLC 93-986 at [106].
It was Mr Stanley’s evidence that he works two to three days per week and is paid at the rate of $35 per hour for his 8 hour days. Even assuming he averaged two and a half days per week, his income on those figures would be $700 per week rather than the $580 per week he described. He was intentionally evasive in his evidence about whether he could be seen in social media posts showing him working. When asked whether that was him, he initially gave evidence that it “could be”. He then gave evidence that he did not know whether it was him, before finally confirming that it was in fact him.
Mr Stanley gave evidence that he works for Mr P and a few other people. Mr P’s evidence about Mr Stanley’s work was inconsistent with Mr Stanley’s. Mr P gave evidence that Mr Stanley sometimes works for him five days per week as well as occasionally as a transport worker for Company T based in Suburb O. Mr P gave evidence that Mr Stanley has on other occasions not worked with him due to court commitments.
I am satisfied that Mr Stanley is capable of working full time. It is agreed that his taxable income for the last financial year was $58,000. He has previously deposed to earning income of $1,800 per week, or approximately $93,000 per annum. I am satisfied that he is capable of deriving income closer to the latter figure given the absence of disclosure provided prior to the commencement of the hearing by Mr Stanley.
Mr Stanley pays no child support for the children. There is no evidence to suggest that position will change in the future. Ms Stanley is accordingly solely responsible for their care and financial support.
Ms Stanley deposes to the financial consequences to the parties of Mr Stanley’s motor vehicle accidents, both at work and returning from work. I am not satisfied the justice of the case requires those consequences to be taken into account. It is not suggested that the accidents were intentional.
Whilst Ms Stanley appears to suggest that Mr Stanley’s sale and acquisition of motor vehicles was in some way wasteful, I am also not satisfied that the justice of the case requires that to be taken into account. Mr Stanley’s evidence that the purchase and sale of the vehicles was always done by agreement was not challenged.
Ms Stanley gives unchallenged evidence that she was unaware of the purpose for which a number of Mr Stanley’s liabilities were incurred. Those liabilities now total $25,437. She also claims that she was not responsible for incurring several credit card liabilities. Nevertheless, she did not challenge Mr Stanley’s evidence in relation to them. Mr Stanley gave evidence that at the time of the parties’ separation, the parties owed $66,720.06 in liabilities in either joint or Mr Stanley’s name aside from their mortgage. Ms Stanley has not established that Mr Stanley incurred liabilities by embarking on a course of conduct designed to reduce or minimise the parties’ net worth or by acting recklessly, negligently or wantonly.[47] I am not satisfied that the circumstances in which those liabilities were incurred is relevant pursuant to paragraph 75(2)(o) of the Act.
[47] Kowaliw & Kowaliw (1981) FLC 91-092 at 76,644.
I conclude that a significant adjustment is warranted in favour of Ms Stanley on account of the relevant factors, particularly having regard to the modesty of the net value of the parties’ non-superannuation assets. I consider that an adjustment of 15% is warranted, leading to a differential between the parties’ non-superannuation positions of
$64,172$61,172.Conclusions
Having regard to the agreement reached by the parties’ in relation to their superannuation, I am satisfied that such an outcome is just and equitable. Ms Stanley will accordingly retain non-superannuation assets worth
$139,039$132,539 and superannuation assets worth $98,361. Mr Stanley will retain non-superannuation assets worth$74,867$71,367 and superannuation assets worth $98,078.
Given the parties’ liabilities are in their individual names, I consider it preferable to simply distribute the proceeds of sale of the former matrimonial home rather than order the repayment of debt prior to their distribution. I will accordingly order those proceeds be distributed such that Ms Stanley receive
$59,955$53,455 and Mr Stanley retain the balance. The parties will thereafter be liable for the respective liabilities in each of their names. I prefer the orders proposed by Ms Stanley which otherwise provide for the retention of the parties’ assets given their more comprehensive nature.
I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 9 November 2022
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