Stanton & Crawford
[2023] FedCFamC1F 689
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stanton & Crawford [2023] FedCFamC1F 689
File number: WOC 944 of 2017 Judgment of: REES J Date of judgment: 17 August 2023 Catchwords: FAMILY LAW – PARENTING – Where the mother and the father each allege the other is a perpetrator of family violence – Where the child has been exposed to family violence – Where the mother was not a reliable historian – Where the father did not make any attempt to answer questions put to him in cross examination truthfully – Where the mother sought supervised contact with the father – Where the mother conceded that the child and the father have a strong bond and that the child wanted to see the father more frequently – Where the father’s questioning of the child was intrusive but has since improved – Where the single expert agreed to the sensitive reintroduction of time between the father and the child – Where the child’s primary attachment is to the mother – Orders made for the mother to have sole parental responsibility – Orders made for the child to spend time with the father on each Tuesday and Sunday afternoon commencing on 12 September 2023 – Orders made for the child to spend time with the father during school holidays and that overnight time be introduced at the end of Term 1 in 2024 – Orders made for the appointment of a parenting co-ordinator
FAMILY LAW – PROPERTY – Where the parties cohabitated for less than five years – Where the respondent brought significant assets to the relationship – Where the applicant made parenting and home making contributions – The applicant’s contributions is assessed at 15 per cent – Where the applicant’s income and earning capacity is less than that of the respondent – Where the respondent will retain substantial real property and superannuation – Where the applicant will have primary care of the child – Where the respondent pays child support as assessed – Adjustment in favour of the applicant of 10 per cent
FAMILY LAW – SPOUSAL MAINTENANCE – Where the applicant’s income from employment is not sufficient to cover her expenses – Where the respondent has paid spousal maintenance of $440 per week since 2017 – Orders made for the respondent to continue to pay spousal maintenance in the sum of $440 per week for another three years
FAMILY LAW – COSTS – Orders made for ICL’s costs – Applicant to pay the sum of $5,000 – Respondent to pay the sum of $10,000.
Cases cited: Kennon & Kennon (1997) FLC 92-757
Muschinski v Dodds (1985) 160 CLR 583
Division: Division 1 First Instance Number of paragraphs: 369 Date of hearing: 17-21 April & 8 August 2023 Place: Sydney Counsel for the Applicant: Mr Beckerling and Ms L. Reid (17-21 April 2023)
Ms L. Reid (8 August 2023)Solicitor for the Applicant: Hansons Lawyers (17-21 April 2023)
Williams Family Law (8 August 2023)Counsel for the Respondent: Mr Stapleton Solicitor for the Respondent: Bowral Legal Counsel for the Independent Children's Lawyer: Ms D. Reid Independent Children's Lawyer: Venus & Smart ORDERS
WOC 944 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS STANTON
Applicant
AND: MR CRAWFORD
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
REES J
DATE OF ORDER:
17 AUGUST 2023
THE COURT ORDERS:
1.That the applicant mother have sole parental responsibility for the long term care, welfare and development of the child X born 2012 (“the child”).
2.That the child live with the mother.
3.That before 12 September 2023, the mother cause the child to meet with Ms B so that Ms B can explain these orders to the child and that, thereafter, the mother shall ensure that the child meets with Ms B at least once in each school term and, before 12 September 2023, the respondent father shall attend upon Ms B to discuss the implementation of these orders.
4.That a copy of these orders may be provided to Ms B.
5.That the child spend time with the father, during school terms, as follows:
(a)Each Tuesday afternoon, commencing on Tuesday 12 September 2023, from after school until 7.00 pm, the child to be collected from school by the paternal grandmother and returned to the mother by the paternal grandmother.
(b)Each Sunday afternoon, excepting on Mothers’ Day, commencing Sunday 17 September 2023, from 1.00 pm until 7.00 pm, the child to be collected by the paternal grandmother and returned to the mother by the paternal grandmother.
6.That in the school holidays at the end of Term 3 in 2023, the child spend time with the father in accordance with Order 5, the Tuesday time to commence at 3.00 pm.
7.That in the school holidays at the end of Term 4 in 2023, the child spend time with the father in the second week, on Monday, Wednesday and Thursday from 9.00 am until 7.00 pm.
8.That in the school holidays at the end of Terms 1 and 2 of 2024, the child spend time with the father, in the first week of the holiday, on Monday from 9.00 am until 7.00 pm and from Wednesday at 9.00 am until Thursday at 7.00 pm.
9.That when the child spends time with the father as provided in Orders 5 to 8 inclusive, the paternal grandmother shall be present until the end of Term 3 in 2024.
10.That in the school holidays at the end of Term 3 in 2024, the child spend time with the father in the first week of the holiday from Tuesday at 9.00 am until Thursday at 7.00 pm.
11.That in the school holidays at the end of Term 4 in 2024 and each year thereafter, the child spend time with the father in the second, fourth and last week of the holidays from 9.00 am on Monday until 3.00 pm on Friday.
12.That in the school holidays at the end of Terms 1, 2 and 3 in 2025 and thereafter, the child spend time with the father in the first week from 9.00 am on Monday until 3.00 pm on Friday.
13.That where changeover does not take place at the child’s school, the paternal grandmother shall collect the child from the mother or her nominee and return the child to the mother or her nominee at the car park of Town C Railway Station.
14.That the child spend time with the father from 9.00 am until 7.00 pm on 26 December in each odd numbered year and on 24 December in each even numbered year and the paternal grandmother shall be present in 2023.
15.That the father shall provide the child with a mobile phone to be used for electronic communications between the child and each parent.
16.That the father pay the costs of maintaining the mobile phone.
17.That the child be permitted to call either parent using the mobile phone at any time.
18.That the father call the child each Wednesday when she is not in his care at 6.00 pm.
19.That the mother call the child each Wednesday when she is not in her care at 6.00 pm.
20.That the mother shall:
(a)Provide the father with the names and addresses of the child’s treating doctors;
(b)Provide the father with a copy of any report by any specialist medical consultant in relation to the child, within 14 days of the receipt of the report; and
(c)Both the father and mother shall separately be entitled to discuss the child’s condition with such treating doctor or specialist medical consultant.
21.That the mother shall ensure that the father is notified as soon as practicable if, while in her care:
(a)The child is admitted to hospital;
(b)The child is involved in a medical emergency; and
(c)The mother shall advise the father of the details of the medication required to be taken whilst the child is spending time with the father and provide the father with sufficient medication to cover the period that the child is to spend with the father.
22.That the father shall ensure that the mother is notified as soon as practicable if, while in his care:
(a)The child is admitted to hospital;
(b)The child is involved in a medical emergency.
23.That if the child is participating in a special event with school including but not limited to a concert, performance or competition both parents are permitted to attend all such events as normally attended by parents in accordance with the schedule below:
(a)In even numbered years the mother shall attend events in school terms 2 and 4 and the father is restrained by injunction from attending such events,
(b)In even numbered years the father shall attend events in school terms 1 and 3 and the mother is restrained by injunction from attending such events,
(c)In odd numbered years the mother shall attend events in school terms 1 and 3 and the father is restrained by injunction from attending such events,
(d)In odd numbered years the father shall attend events in school terms 2 and 4 and the mother is restrained by injunction from attending such events.
(e)The parents may vary the arrangement outlined in this Order by agreement in writing.
24.That the father is restrained from attending the child’s school except as otherwise provided by these Orders.
25.That each of the parents shall only enrol the child in any other extracurricular activity of the child’s choice if that activity falls during the time the child is in his or her care pursuant to these Orders.
26.That the father is restrained from attending any extracurricular activity arranged by the mother that falls during the time the child is in the care of the mother and the mother is restrained by injunction from attending any extracurricular activity arranged by the father that falls during the time the child is in the care of the father.
27.That the father is to ensure the child attends all representative sports games, tournaments, training sessions or additional events that the child is required to attend for the extracurricular activity in which she is presently enrolled, if that activity falls during the time the child is in the care of the father.
28.That within 7 days the parents shall register to use the Our Family Wizard parenting App and thereafter communicate with one another by the parenting app and are to ensure that they turn on all notifications on that App, and shall ensure that all communication between them is child focused.
29.That any variations to the arrangements in these orders are to be negotiated through and recorded in the parenting App.
30.That both parents are restrained from:
(a)questioning the child about the other parent or events in the other parent’s home or permitting any other person to do so;
(b)criticising or making derogatory statements about the other parent, the other parent’s parenting, the other parent’s partner or their family in the presence or hearing of the child or permitting others to do so;
(c)posting any comments (or allowing any to remain) about the other parent, their extended family and any partner on “Facebook” or any other social media, or asking or encouraging any third party to do so;
(d)questioning the child about her views regarding which parent she wants to live with, or encouraging the child to spend less time with the other parent, or asking or encouraging anyone else to do so.
31.That on or before 31 August 2023, the mother shall submit to the father the names of three suitably qualified persons to be retained as parenting co-ordinator and on or before September 2023 the father shall nominate the person to be retained.
32.That pursuant to s 13C (1)(c) of the Family Law Act 1975, the parties will, on or before 21 September 2023 jointly retain the person nominated as parenting coordinator (the “Parenting Coordinator”), for twelve (12) months (or as otherwise agreed) from the date of commencement of the parties’ meetings with the Parenting Coordinator as provided in Order 35 below, on the terms provided in this Order and in the form of the parenting coordination agreement endorsed by Parenting Coordination Australia (the “Standard PC Agreement”), provided that where terms of this Order conflict with the Standard PC Agreement, this Order will prevail.
33.That such intake occur as soon as practicable, and will complete the appointment of the Parenting Coordinator, including execution of the Standard PC Agreement, and remittance of all requisite retainers and deposits.
34.That such meetings with the Parenting Coordinator occur no more frequently than once per month commencing in September 2023 on a non-confidential basis.
35.That the Parenting Coordinator may assist the parties in the implementation of these Parenting Orders in the following manner and on a non-confidential basis, by building consensus between the parties, including, but not limited to, by:
(a)developing and instituting guidelines for the implementation of the parenting terms of this Order;
(b)developing and instituting guidelines for communications between the parties;
(c)identifying, creating and implementing strategies for resolving conflicts between the parties; and
(d)providing information respecting resources available to the parties for the improvement of their communication or parenting skills; and
(e)by issuing Recommendations and/or Proposed Protocols that the Parenting Coordinator believes would be in the best interest of the child in the implementation of the Parenting Orders and, in the event the Parenting Coordinator shall issue such Recommendation or Proposed Protocol, shall provide the parties with written reasons for that Recommendation or Proposed Protocol.
36.That the fees, disbursements and other charges of the Parenting Coordinator shall be shared equally between the parents.
37.That should the parties agree to extend the retainer of the Parenting Coordinator the terms of the engagement shall be in writing.
38.That a copy of these orders and reasons and the reports of Dr D may be provided to the Parenting Coordinator.
39.That, within three months of the date of these orders, the respondent pay to the applicant by way of property settlement, the sum of $331,842.
40.That in the event that the sum of $331,842 is not paid to the applicant by the due date, then the respondent shall do all acts and things required to sell the property at E Street, Suburb F and, from the proceeds of sale, to pay to the applicant the said sum together with interest thereon calculated according to r 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 from the due date until the date of payment.
41.That upon receipt of the sum referred to in Order 39, the applicant shall pay to Legal Aid NSW the sum of $5,000 on account of the costs of the Independent Children’s Lawyer (“ICL”).
42.That within three months of the date of these orders, the respondent shall pay to Legal Aid NSW the sum of $10,000 on account of the costs of the ICL.
43.That until 17 August 2026 the respondent shall pay to the applicant the sum of $440 per week by way of spousal maintenance.
44.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
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 Stanton & Crawford has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Ms Stanton (“the mother”) and Mr Crawford (“the father”) are the separated parents of X who was born 2012 and is now ten years old.
These proceedings concern the parenting arrangements for X, the division of the parties’ property and the mother’s application for spousal maintenance.
In order to give context to the issues in dispute, some brief background is necessary.
The mother had three children before she and the father met. The two oldest, then aged 19 and 16, had moved to New Zealand to live with the paternal family. The youngest child, G, who was born in 2005, lived with his father.
She did casual work.
The parties started living together in late 2011 in a property owned by the father at Suburb F.
At the commencement of the co-habitation, the mother had no assets of significance. The father had no children. He owned a number of properties:
·E Street, Suburb F
·H Street, Suburb J (subject to mortgage)
·K Street, Suburb L (subject to mortgage)
·M Street, Suburb N (subject to mortgage)
He deposed that he had savings, a motor vehicle and a share portfolio. He also had superannuation.
The Suburb L property was owned jointly with the father’s former partner but, on 23 November 2011, orders were made that she transfer her interest in the property to him, without payment, and that he indemnify her in relation to the outstanding mortgage.
The father was employed in industry and he worked shift work on Friday, Saturday and Sunday. He was otherwise available Monday to Friday.
X was born in 2012. The mother stopped working.
In early 2013, the mother sought an Apprehended Domestic Violence Order (“ADVO”) against the father. An interim order was made. The father was charged with common assault, stalk/intimidate and damaging property. The mother did not attend to give evidence in the substantive proceedings and the application was dismissed. The allegations contained in the application for the ADVO and the statements given to the police will be discussed later in these reasons.
The mother returned to part-time work in about the middle of 2013 and the father cared for X while she worked. The paternal grandmother assisted.
In about 2014, the father received an inheritance of $182,804 which he applied to the mortgage on the Suburb J property. He received another inheritance of $67,855 in 2015 which he also applied to the Suburb J mortgage. Later in 2015, he received an inheritance of $41,489 which was also applied to the Suburb J mortgage.
In 2016, the paternal grandmother sold her home for over $800,000. The father and the paternal grandmother assert that it was agreed that she would move into the Suburb L property, that the proceeds of her home would be used to discharge the mortgage over Suburb L and be applied to the Suburb J mortgage and that the paternal grandmother would acquire an interest in the Suburb L property.
In mid-2016, the mother presented at hospital with a broken arm, alleging that the father had pushed her off a balcony. The father alleges that the mother assaulted him on that occasion.
They finally separated on 10 July 2017, having had two previous separations in April 2013 and in 2016. The mother left the home with X and moved to rented accommodation.
There is a dispute about whether the father sought to spend time with X after the separation.
These proceedings were commenced in September 2017 by the mother seeking orders for property settlement. The father in his response, sought parenting orders.
In late 2017, the father paid out the loan on the mother’s car in the sum of $11,657.
On 13 November 2017, the father consented to an order that he pay spousal maintenance of $440 per week.
In late 2017, the father was referred to Dr P, a clinical psychologist with whom he has continued in therapy.
Until late December 2017, X spent time with the father from Tuesday until Thursday each week.
On 22 January 2018, the mother’s solicitors wrote to the father saying that the mother would not facilitate time with X until orders were in place. The father did not spend time with X between February 2018 and July 2018. On 12 July 2018, orders were made in the Federal Circuit Court (as it was then called) for the father to have supervised contact at O Support Services for two hours each Wednesday.
X started school in February 2018 and commenced a therapeutic relationship with Ms B, a psychologist.
On 26 June 2019, orders were made appointing Dr D, as single expert, to prepare a report. The father was ordered to pay the costs of the report. Interim orders were made restraining the father from questioning X during the supervised contact. The father’s contact with X was supervised thereafter by a number of different agencies.
In early 2022, the mother and X moved from City BB to Region Q. The father does not know where the mother lives.
At the commencement of the hearing, the father’s time with X continued to be supervised.
THE TRIAL
The mother relied on an affidavit sworn by her on 19 September 2022, a Financial Statement sworn the same date and an updated Financial Statement sworn on 13 April 2023 and an affidavit sworn by her psychologist, Dr R on 11 April 2023. She was not permitted to rely on a report of Dr R dated 6 April 2023 which dealt with matters outside those permissible for a treating therapist pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The father relied on an affidavit sworn by him on 24 February 2023, an affidavit sworn by him on 6 April 2023, a Financial Statement sworn 6 April 2023, an affidavit of his mother, Ms T sworn 24 February 2023 and an affidavit of his psychologist, Dr P sworn 24 February 2023.
An Independent Children’s Lawyer (“ICL”) had been appointed for X.
A single expert psychologist, Dr D had prepared two reports dated 15 March 2021 and 29 March 2023.
I propose to deal firstly with the parenting issues.
PARENTING
The father proposes equal shared parental responsibility for X and that she spend time with him, unsupervised, initially after school twice each week and progressing, after 11 weeks, to living with him from after school on Monday until Friday morning each week and for half the school holidays. The father’s proposal is essentially a change of residence for X.
The father also seeks a number of ancillary orders including an order that X attend a nominated high school.
The mother proposes that X live with her and that she have sole parental responsibility. Although throughout the trial, the mother sought orders that X have no contact with the father or, in the alternate, for limited, supervised contact with the father, that position was modified after the evidence concluded. The mother’s final position was that X spend time with the father, initially on alternate Tuesday after school until 6.30 pm; then on alternate Tuesday afternoons and alternate Sunday afternoon from 1.00 pm to 5.00 pm, continuing through the school holidays. From Term 4 of 2026, the mother proposed that X spend day time only periods with the father in the school holidays on three non-consecutive days in each of the first and fourth weeks of the holiday. The mother does not propose that X ever spend overnight time with the father.
Both parents proposed that they appoint a parenting co-ordinator which was strongly recommended by Dr D.
The most significant issue in the proceedings was the allegations of violence made by each parent against the other.
Those allegations will be examined in detail in these reasons. It is important to remember, in the consideration of the evidence of violence, that a finding that one party has been a perpetrator of violence does not exclude a finding that the other party has also been a perpetrator. As will become clear, in this case, both parties have been perpetrators of violence, each against the other.
The father asserts that the mother has not complied with orders for X to spend supervised time with him and that she has cancelled or not facilitated times when he was entitled to spend time with X and otherwise frustrated his spending time with X.
The mother alleges that the father has failed to pay Child Support as assessed and is frequently in arrears.
The mother alleges that the father’s interaction with X during supervised contact is inappropriate in that he interrogates her.
It is not in dispute that X loves her father and wants to spend time with him. The real issue to be determined is whether orders can be crafted that will allow X to have a meaningful relationship with her father and at the same time, protect her from harm caused by exposure to family violence, regardless of the identity of the perpetrator or perpetrators.
THE CHILD DISPUTE CONFERENCE MEMORANDUM
Both parents were interviewed by a Court Child Expert on 4 May 2018 and a report was prepared on the same day. X, who was then five years old, was not interviewed.
Each parent made serious allegations of family violence perpetrated by the other.
The mother alleged both emotional and physical violence towards her by the father. She reported two incidents of physical violence in 2013 and 2016 and told the expert that she had reported family violence to the police and other health professionals. She said she had ongoing fears for her safety.
The father denied the mother’s allegations which he categorised as tactical. He said she was physically violent towards him; that her moods were unstable; that she lashed out aggressively; grabbed him; kicked him and punched him. He said that, on one occasion, she hit him with a shovel. The father said that, on occasions, he was forced to defend himself against the mother.
Each parent asserted that the other had mental health difficulties.
The expert reported,
There is currently no communication between the parents. [The father] reports that he is unaware of [the mother] and [X’s] whereabouts. Both parents have spoken of volatility and violence in their previous relationship with one another. The parents present with different communication styles and [the father] reflected that he is more assertive and [the mother] more likely to retreat and shut down. Both parents became notably emotional and teary during their individual interviews when discussing the breakdown of the relationship.
The expert reported,
[The mother] reflected that [X] loves her dad and described [the father] having been involved historically in her care, calling him a “good dad”. She raised some concern about his ability to manage parenting stress or extended periods of caring for [X] independently. She also reports that [X] was present during parental conflict/violence, stating that she would initially cry and then “switch off” or otherwise attempt to intervene.
The report concluded,
A plan which is sensitive to the possible presence of family violence concerns and sheltering X from further exposure to this is considered very important.
FAMILY VIOLENCE AND X'S CONTACT WITH THE FATHER
It was a feature of the evidence of each parent that he or she minimised the seriousness of events that placed him or her in a bad light and maximised the seriousness of events that reflected badly on the other parent.
The father, in cross-examination, in answer to propositions put by counsel for the mother, consistently answered that he could not recall and did not remember what had occurred. This was in circumstances where he had sworn his trial affidavit on 24 February 2023, the hearing having commenced on 17 April 2023. In his trial affidavit, the father gave detailed and extensive evidence in relation to the incidents about which he was cross-examined. I do not accept that the father was then making any attempt to answer questions truthfully.
I did not regard either of them as a truthful witness and for that reason I am more confident in making findings where there is extraneous evidence that corroborates a version of an event.
The first significant allegation arose out of a trip made by the parties before they started living together. There is a dispute about when the trip occurred but nothing turns on it. They drove to City V and spent the night there. The next day, they drove to Town S via Region U.
The mother deposed that on the journey between City V and Region U the father verbally abused her, calling her a “dumb fuck” and a “piece of shit” and referring to her former partner, G’s father, as “that wog cunt”. She said that the abuse went on for over an hour. The father in cross-examination denied that he had been verbally abusive but I accept that he was. The father admitted that on other occasions he had referred to G’s father as a “wog” and when asked in cross-examination why he used that term he was unable to give any answer.
The mother deposed that when they reached Region U the father told her to stop the car and went into a hotel for an hour and a half. She remained in the car. They drove on.
On the way to Town S, about 30 minutes into the journey, the father went into a bottle shop and bought a case of bourbon and coke which he drank while the mother drove. The mother deposed that the father continued to abuse her saying,
27.You are a fucking terrible mother. No wonder your children do not want to live with you or have anything to do with you. You have nothing to be proud of. You are a fucking waste of space to everyone. No one loves you. You are a fucking dog for marrying that wog cunt.
She deposed that he said to her,
29.I can’t believe that you fucking had a kid to that wog cunt, why would you bring another wog cunt into this world. You betrayed [your children] by marrying that wog, what were you thinking?
The father in cross-examination simply denied that there was any abusive language at all on the trip. I do not accept his evidence. I accept that he referred to G’s father as the mother deposed. The asserted conversation is in similar terms to later conversations of which the father gave evidence.
When they arrived at their destination, they went into the bar of the hotel and ordered drinks. The father went to bed and left the mother in the bar. He deposed that they argued and the argument continued after they went to their room. The mother called him a “fucking idiot” and said “I fucking hate you”. They had both been drinking. It is likely that they argued as the father deposed. The father slept.
The mother deposed,
31.…[The father] wore me down; I began to believe what he was saying about me being a “bad mother”. I believed that I was useless and worthless as he said I was… I attempted to take my own life […]. I went to bed thinking I had successfully ended my life.
I note that when the mother told Dr D about this event, she reported, “She made an ineffectual assault on herself […]”. The mother minimised the seriousness of that attempt.
The father deposed that, in the morning, there was blood on the sheets, the floor and the bed. He went to a pharmacy and purchased dressings and tended to the mother’s wound. The mother refused to seek medical attention.
They continued on their journey and returned home the next day.
The mother attended at the hospital in mid-2011. The hospital notes record that the mother told them that the incident had occurred six days prior. The notes record:
Incident occurred on […]/11
[The mother] states she has become depressed and suicidal when her 2 children (16yrs and 19yrs old) moved voluntarily to their father’s place in New Zealand.
[The mother] states she also had other problems that culminated and impacted on the depression.
Stated [harming] herself is uncharacteristic and she has never done this before
States she now regrets [harming] herself, spur of the moment injury under the influence of alcohol
(As per the original)
I place more weight on the mother’s contemporaneous account of the event than on her later recollection, some 12 years after the event.
The wound was cleaned and sutured and the mother was referred to a clinic and for mental health assessment.
In mid-2011, the mother’s general practitioner referred her for psychotherapy for depression.
The co-habitation commenced in late 2011 when the mother moved into the father’s home.
In 2012, when the mother was pregnant with X, she consulted Dr W who referred her to the antenatal clinic. The referral letter stated,
On […]/12 [the mother] came to me revealing that she is in a very abusive relationship and after a long consult, I referred her to a clinical psychologist. She assured me that her partner has not been physically abusive, but very verbally so. Also he has thrown objects around her in the heat of their arguments.
At this time, Dr W noted “Can’t get hold of [the mother] and neither could clinical psychologist”. The mother had postponed her appointment with the antenatal clinic.
X was born in 2012.
In late 2012 Dr W notes in a surgery consultation with the mother, “has a supportive husband”.
A short time later, Dr W noted, “She assures me that he is only verbally abusive, not physically”.
There was an incident in early 2013.
The mother made a complaint to the police and made a statement about that incident. There are material discrepancies between what she told the police on the day of the incident and what she deposed to some ten years later.
The mother deposed that the incident began when she told the father that she wanted G to come regularly to visit. Previously, the mother had spent time with G away from the home. The mother deposed that the father became angry and said “That will never happen” and she said “Well, [X] and I can’t live here then”.
They went grocery shopping and the discussion continued. The mother deposed that, on the way to the car, she threw the groceries on the ground saying to the father “I have had enough” and he called her a “fucking psycho”. She deposed that he said “Our relationship will be over if you want to see [G]. I will get full custody of [X] and there is no way that little wog cunt will go near our daughter”. The father denied that G was not welcome in his house.
When they returned home, the argument continued. Each parent deposed that the other was verbally abusive.
The mother went to work, to start at 5.00 pm, leaving X in the father’s care. She returned home at about 9.00 pm.
The mother deposed that, on the next evening, there was a further argument about the care of X.
In her statement to the police, the mother said,
When [the father] came home he was in quite a good mood and I guess this aggravated me because my relationship was coming to an end and he was happy. He went into the kitchen and started preparing dinner which he never does so I said a sarcastic comment about it being nice to see. Then we discussed the care of [X] and what days each of us would have her. He wasn’t clear about his intentions and couldn’t tell me anything other than 50/50 custody.
In her affidavit, about this part of the incident, she deposed,
51.… [The father] said to me, words to the effect, “If you leave, [X] will live with me. I will have custody. You will never see her again.” I said to him, “Tonight will be the last night [X] and I live here with you”. [The father] said to me “You are a Wog lover… I am going to fuck your head over that much that I will ensure that you kill yourself”. [He] continued berating me, he said, “you’re a fucking disgrace for sleeping with a wog”. I said to him, “Well [X] must be a “wog” then, she has [Country Y] heritage, my Mum is [from Country Y]. You must be an idiot for sleeping with me. [The father] went over to [X], [X] was laying [sic] on the floor on a play mat, and he then spat on her as she was on the floor. He said to her, “Yeah that’s right. She’s gone. I don’t fucking care about her anymore”.
The mother in cross-examination could give no explanation for the two different versions. She denied that the version in her affidavit was exaggerated although it clearly was.
The father’s version of that conversation is different. He deposed,
45.… [The mother] kept yelling at me. [She] stood in front of me and faced up with her chin and chest out almost as to try and encourage me to hit her. We then had a conversation to the following effect:
[The mother] said: You can’t handle the fact that [X] has a wog brother.
I said: You fucked a wog who calls himself the [Country Z] mafia of [City BB].
[The mother] said: You have a wog daughter as she came from the same place.
I said: I spit at that and I spit at you for saying that.
I then made a gesture of spitting at the tiles on the floor which were in the opposite direction to where [X] was. It was not actual spit. I emphatically deny that I spat at [X].
In her statement to the police the mother said,
[The father] walked back towards where [X] was lying on the floor and spat on her saying, “yeah that’s right. She’s gone. I don’t fucking care about her anymore”.
Challenged in cross-examination, she said she couldn’t remember. When it was suggested that she might have made up the spitting she said “I might have” and “I don’t really know”.
The mother deposed that the father stood within inches of her face and said,
52.If I see that little wog cunt (referring to my son [G]), if he ever comes to my front door I will hit him over the head with a 4x2.
She started recording.
In her statement to the police, the mother said,
[The father] then went on to threaten physical violence towards [G]. I cannot remember exactly what he said but it was triggered me to think I needed to get something recorded.
There was then a tussle over the mother’s phone. In her police statement, the mother said,
… he saw that the voice recorder was on because it was face up. He picked it up and started abusing me for recording him and the betrayal. He told me that I would never be getting my phone back and that I would never be getting custody of [X]. He went to walk away from me … I desperately went after him trying to get the phone from his hands. He was constantly pushing me away and I was grabbing out at him, grabbing his shorts and shirt and basically anything I could get hold of. I didn’t want him to get away with the phone and I was thinking about the photo’s [sic] and stuff that was on my phone.
The father deposed,
48.[The mother] then started punching me, kicking me and scratching me. I defended myself with my left arm by holding [the mother] away from me whist trying to turn the phone off with my right hand.
49.I attempted to leave the house … with the phone and [the mother] chased me still scratching at my arms, face and continuing to kick and punch me.
The father annexed to his affidavit photographs which he said were of the scratches that the mother had inflicted on his chest, arm, back and torso. He deposed that the photographs were taken by his mother the next day. He was not challenged in cross-examination about the photographs and neither was his mother. I accept his evidence that he was assaulted by the mother as he deposed.
The father went back into the house and picked up X. He went with X out of the front of the house. The mother followed. In her statement to the police she said,
I heard him go out so I went back out the front and saw that he was out there holding [X]. I asked him again for my phone and he said “okay which one do you want?” implying [X] or the phone.
I said “Give me [X].”
Straight away he handed her over to me and I again requested the phone a number of times but he ignored me…
The mother called the police using the landline phone.
In her affidavit she deposed, of the same event,
53.I struggled for the phone. He threw it and it broke. He pushed me and shoved me back into the wall.
54.He let go of me, he then grabbed [X] and ran outside to the car. I followed them sobbing loudly saying to [him] “Stop don’t take her. Please don’t hurt her”.
55.He yelled out “… you are not on your meds. You haven’t taken your meds”. I was not on medication; he was shouting so I seemed like a crazy person running after him. I was terrified. I ran outside and [he] was holding [X], he would not let her go. He said, “Ok, which one do you want, the phone or the baby” I said “[X], give me back [X]”. He gave her to me.
The father then took X from the mother and locked her in his motor vehicle.
There is a discrepancy between their respective versions of what happened next. The father’s version is shocking enough. He deposed:
58.I said to [the mother] “I need to get her way from here. I will stop at [CC Centre]”.
59.I put [X] in her car seat. I acknowledge I did not strap [X] in because I was trying to leave before [the mother] hit me or grabbed [X]. I then ran around to the driver’s side and started the car. [The mother] ran behind the car and laid under the back tyre.
60.At this time I hear [the mother] yell “You’re not taking [X]. I will never see her, they won’t let me see her” to which I replied “… are you taking your medication. You need to take your medication.”
61.I then picked [the mother] up and put her on the gras and then got back into the driver’s side of the car.
62.[The mother] then again laid behind the tyre and again I picked her up and put her on the grass.
63.I then want back to the driver’s seat and [the mother] unsuccessfully tried to take the car keys off me.
64. Again [the mother] ran and laid behind the car.
65.I knew that I just needed five seconds to get the car and in turn [X] away from [the mother] so I
66.I got the belt off [the mother] her and I tied it around her feet jumped into the car and drove out of the driveway.
67.[The mother] continued to scream at me calling me “you can’t take my daughter off me” and whilst I could not see [her] at this point I heard a loud noise I suspect was [the mother] jumping onto the car. As I reversed, [the mother] slid off the car and I saw her on the asphalt with her mobile phone next to her. I stopped to see if she was okay to which she yelled at me “get fucked”.
(As per the original)
The father drove a short way. The police arrived. The father was arrested.
In her statement to the police, the mother said,
As a result of falling onto the roadway, I have some bruising and lacerations to my face, in particular on my forehead, nose and chin.
In her affidavit she said,
62.I think I broke my nose during this incident … I suffered severe cuts to my face and hands.
The mother left the home with X and stayed in a motel. An interim ADVO was made and the father was charged.
The mother deposed,
66.… in or around [mid] 2013, I drove past the home, and he came outside. I said to him, “Can we work things out. Can it be different next time?” [He] said, “Come home. [X] needs to come home. I can’t go to court, you have to drop the AVO”. I said “Ok I will”. He said, “Go to your Mum’s on the day of the AVO hearing and don’t answer your phone of the Police call”. I said “Ok”.
That is not what happened.
The matter was before the Local Court in early 2013. An order was made by consent which permitted the father to contact the mother in relation to their relationship and relationship counselling and arrangements for him to see X. The father’s time with X was to occur at the home and the mother was to bring X to the home and collect her from the father. That, in fact, happened.
In mid-2013, the mother made an application to vary or revoke the ADVO. In the application she stated, “We [are] still in a relationship, we are still living together and have a […] child together. We have already started relationship counselling”.
Some time later, the ADVO was dismissed. The charges against the father were also dismissed.
The mother was cross-examined about the different versions she gave of this incident. She was shown an affidavit she had sworn on 29 October 2020 in which the version she gave was also different from the trial affidavit and from the statement to the police. She conceded that there were now three different versions of the event from her and she said that she had chosen to tell parts of the truth but had left out other parts. She did not concede that she had left out anything that reflected well on the father. Pressed about which version of the event was true, she said they were all true.
The father arranged an event in 2015. He deposed that the mother drank excessively and was verbally abusive towards him in the presence of his guests. The father deposed,
89.When [the mother] and I returned home, I went outside and lit the fire pit to sit away from [her]. When I was sitting at the fire pit out the corner of my eye I saw [her] running at me.
90.I then felt a large hit to my head and saw [the mother] with a shovel in her hands. She waved it again in an attempt to further hit me and I got my arms and hands over my head just in time. [The mother] continued to hit me over the head with shovel whilst screaming “I am going to kill you. I will stab you while you sleep”.
The father deposed that he said to the mother, “You need help” and that he left the house and walked to his mother’s house where he stayed the night. When he woke the next morning he was bleeding from his ear.
Annexed to the father’s affidavit is a photograph showing a laceration to the father’s left ear and head.
The father deposed that, the next day, the mother telephoned and said, “When are you coming home? I know I have a problem and I will do whatever it takes to get the help I need”.
In cross-examination, the mother denied that any incident at all had occurred on that day. She said that she remembered the day and that she had not been drinking a lot. She said that the father had made up the incident.
No questions were put to the father in cross-examination about this allegation. His evidence was not challenged.
The paternal grandmother deposed that, at about 11.30 pm that night, the father came to her home and asked if he could stay the night, saying they would talk in the morning.
The next morning she noticed that the father was having difficulty opening a jar and asked him why. He said “You would have difficulty too if you were hit by a spade”.
The paternal grandmother deposed that the father had dried blood in both of his ears and around his ear. She took a photograph of the injury which is annexed to his affidavit. She tried to persuade the father to seek medical advice and to report the incident but he was unwilling.
The paternal grandmother deposed that, later that morning, she was in her kitchen with the father when he answered a call from the mother with his mobile phone on speaker. She deposed that she heard the entire conversation in which the mother said to the father, “When are you coming home? I know I have a problem. I’ll do whatever it takes to get help”.
After the father returned home, the maternal grandmother sent him a text saying, “being abused is not OK. Get out!” In cross-examination she said, that this was the first time she knew the father was the victim of violence, “before that I thought it was verbal abuse”.
I accept that the mother assaulted the father by hitting him about the head with a shovel as he alleged.
There was another violent incident in mid-2016. The father’s version of the incident, in his trial affidavit, is that they started to argue, the mother “ran at me and raised her knee to my testicles followed by kicking me to my legs”. The father deposed that he yelled at her to stop and pushed her onto the lounge. She kicked him again and he pushed her onto the lounge again. He walked away down the hallway and she followed, punching him in the head causing his glasses to fly off. “She then grabbed me on the testicles and pulled them to the point where I felt extreme pain”.
The father walked onto the back deck. The mother grabbed his diary and threw the diary and his glasses over the back fence, screaming at him “You’re a dog”. She picked up his […] trophy and threw it at him. It hit the deck and broke.
He deposed,
109.[She] came at me again. I pushed her away. She stood backwards onto the step which was made of deteriorated particle board and her foot went through it and she fell back and injured her arm.
The paternal grandmother deposed that he next day she received a telephone call from the father who asked her to come to his home. She deposed,
50.Whilst at [the father’s] house, I walked out the back door and I observed a broken back step on the back porch, and [the father’s] […] trophy which was laying [sic] broken on the deck.
51.At the back of [the father’s] home at [Suburb F], there are timber steps on the western side but there were two particle board steps at the back that were weather beaten. I observed on the first particle board step it was damaged and collapsed inward.
52.At that time, [the mother] walked past me and picked up [the father’s] broken trophy. She said to me at this time, “I fell down the steps”. The step looked as though someone had put their foot through it.
The paternal grandmother’s evidence that the back step was broken was not challenged.
The mother deposed that there was an argument and that the father pushed her onto the lounge several times. She denied that she had been physically violent towards him. She deposed that he followed her onto the back deck.
76.… He came after me and pushed me very hard from behind. I flew some 2 meters straight off the back deck and landed on my front and felt my elbow pop as I landed.
77.The deck is around 1.5 meters from the ground with no railing. I screamed out in pain. I felt my arm dislocate. I was crying. [The father] came down to me. I said to [him], “Leave me alone”. He said “Shut up”. As I laid face down, he grabbed my pants and shirt, from behind, he said, “Shut up,people will hear you”. He dragged me up the stairs off the deck and inside, this caused immense pain to my injured arm …
In cross-examination, the mother denied that she threw the trophy at the father; that she threw his glasses or that her foot went through the step, causing her to fall.
In cross-examination, the mother agreed that the deck was not 1.5 meters off the ground but possibly 822cm, or less than three feet.
The mother attended at the hospital on the next day, in mid-2016. The notes record,
allegedly pushed from decking by partner last night
landed on left arm
unsure of exact mechanism
(As per the original)
Also on that day, a registrar, Dr PP, noted of the mother, “feels safe to return to home…”
The next day, the mother was seen again at the hospital and interviewed by a social worker. The notes record,
… this has been a verbally abusive relationship which has recently escalated to physical violence. [The mother] reports they were arguing about general things and [the father] “shoved her”, she fell off the back deck and landed on her arm …
In cross-examination, the mother conceded that her contemporaneous report to the hospital was different from the version in her trial affidavit and that her assertion that she “flew some two meters straight off the back of the deck and landed on my front” is different from “fell off the back deck and landed on her arm”. However, she insisted that both versions were true.
It is likely that the assertion that the mother flew through the air for two meters is an exaggeration and I do not accept that it is true. I accept that the mother was also violent towards the father on that occasion and that she fell through the step after he pushed her, causing her to fall to the ground.
There is no dispute that the mother’s arm was broken in the fall. She was unable to work for six weeks.
The mother told the social worker she could leave the father if she wanted to and that she could go while he was at work.
It is not clear on the evidence before me whether they continued to live together until the mother left the home on 10 July 2017. Counsel for the father tendered a number of photographs of the father and the mother and X, and including G, taken after mid-2016, in early 2017 and before mid-2017. In cross-examination, the mother said that she had no concerns about X spending time alone with the father during that time and no concerns for G’s safety.
After the separation, the mother continued to take X to school near the father’s home and to stop for coffee and shop at places near his home. When it was suggested to her in cross‑examination that she knew she risked coming into contact with the father by so doing, she said that was a risk she was willing to take.
By mid-2017 there was an informal agreement that X would spent two nights each week, Tuesday night and Wednesday night, with the father.
These proceedings were instituted by the mother on 1 September 2017 when she filed an application seeking only financial relief.
The father continued to spend time with X after the separation. Records produced by the Department of Family and Community Services (“FACS”) note that in late 2017 the mother “advised she and the children were doing well and advised that her daughter [X] was still having regular contact with her father and there were no issues in regards to contact”. In cross‑examination the mother said that the reference to “the children” was a reference to X and G.
In early 2018, the father unilaterally retained X for an extra night, telling her he would return X on Friday. The mother’s solicitors wrote and informed the father that X would not be made available for contact until there were orders in place.
On 25 January 2018, the mother’s solicitors proposed that orders be made for the father to spend time with X on Tuesday and Wednesday evenings from after school until 6.30 pm. The father did not agree.
On 15 February 2018, the mother filed an application seeking orders that the father spend time with X on Tuesday and Wednesday afternoons. She subsequently filed an amended application seeking that the father’s contact with X be supervised.
A Child Dispute Conference was conducted on 4 May 2018.
On 9 May 2018, the father received, by way of disclosure, copies of the mother’s bank statements which disclosed her address. There is no suggestion that he made any attempt to attend at her address after that time.
On 12 July 2018, orders were made for X to spend two hours each week with the father, supervised by O Support Services. The first supervised visit occurred on 15 August 2018.
On 8 May 2019, in a supervised contact session, the supervisor reported,
I then heard [X] say “My diddle is sore”. [The father] said “[Ms OO]! Can you come in here?” I entered the toilet cubicle and [X] remained on the toilet while [the father] was kneeling in front of her on the floor. I asked [X] what had happened. [X] said, “My diddle is sore.” I said to [X] “Does diddle mean your vagina?” [X] said “Yes.” I asked [X] if her vagina was sore on the inside or the outside and [X] said “I think both.” [The father] informed me that the “underpants rule” had been broken. I asked [X] “Has the underpants rule been broken?” [X] looked to the ground and said “Yeah, I think so”. I asked [X] if she remembered where it happened or when. [X's] first response was “I don't remember.” After a few moments, [X] said “At school”. I asked [X] if she remembers who did it and she said “My brain doesn't remember”. [The father] hugged [X] for a long period of time…
The supervisor encouraged X to speak to another worker and the father encouraged X, saying “You can tell [Ms DD]. She is a safe person”. X had a discussion with Ms DD who asked her whether she had told her mother that her genitals were sore and X said that she had only been sore “today”. The supervisor told X that she would tell X’s mother after the visit.
In cross-examination, the father said that “the underpants rule” came from a book that he and the mother had given X, along with other material designed to educate children about sexual abuse. He said,
There's a jingle that goes with it.
“What’s under my underpants belongs only to me.
Nobody else can ask to see
and if they do you can run, kick and scream,
or tell mummy or daddy or a doctor or a teacher.”
X knew that off by heart.
The next visit was to be on 15 May 2019. When the father arrived at O Support Services he was told that the mother had informed the supervisor that visits were cancelled until further notice.
On 21 May 2019, the mother filed an application to suspend the father’s contact.
The mother alleged that the father attempted to remove X from her care in mid-2019.
She deposed that, on that day, she took X to the doctor and then to the EE Pharmacy to fill a prescription. While she was in the pharmacy, with X, the father walked in and greeted X. He took X’s hand. The mother stepped forward and took hold of X’s hand. The father let go of her other hand and the mother and X left the pharmacy. The mother does no assert that the father knew she would be at the pharmacy with X at that time.
The father deposed that the EE Pharmacy is his regular pharmacy. He deposed,
142.… I saw [X] and [the mother] while I was in the pharmacy. I did not know what to do. I could not just ignore [X]. I said hello. I gave her a cuddle and left. I did not try to leave with [X].
I do not accept that the father tried, on that occasion, to remove X from the mother as she alleged.
On 26 June 2019, orders were made for the father’s contact with X to resume and restraining the father from questioning X during the supervised contact.
In late 2019, the mother took X to a class at the CC Centre (“the centre”) at Suburb F. X was not enrolled in classes at the centre. This was a casual class. The centre is in a park which has a frontage on E Street, where the father lives. The City BB sports club is also located within the park and the father, as the mother well knew, regularly attended the sports club. His house is directly opposite the sports club. In cross-examination, she conceded that she knew the father might be at the sports club when she took X to the class. She also conceded that the father could not have known that she and X would be in the park. After the class, at about 5.00 pm, X played in the park with her friends and the mother talked to other parents in the park. The mother saw the father in the sports club grounds. She deposed, “He was looking at me”. She said to him, “You need to get out of here or I am going to call the police”. She did not explain why she did not simply leave if she were concerned. The mother deposed that the father saw X and started walking towards her. The father denies that he did so. The mother deposed that he might have waved to X. The mother said again, “You need to leave before I call the police”. The mother called X and they left the park. In cross-examination, the mother conceded that the father had not approached her and had not come within five meters of X. When challenged in cross‑examination, she said “He stopped when I asked him to stop”. I do not accept that the father approached X on that occasion and I do not accept that this was an incident of family violence.
In late 2019, the mother filed an application to suspend the father’s contact with X and wrote an email to O Support Services telling them that the father’s contact had been suspended. A few days later, O Support Services sent an email to the father stating,
I have been advised by [the mother] that the supervised contact visits between you and your daughter [X] have been suspended until further notice.
Therefore the visit scheduled for this coming Wednesday […] has been cancelled, and all future visits have been placed on hold.
The mother's application was heard on 19 November 2019. The father’s contact was not suspended.
The mother in cross-examination, said that she was justified in refusing to comply with the existing orders and that it was her right to do so. She said that she was entitled to suspend the contact because, on 26 June 2019, an order had been made in the following terms:
14.Leave granted to the mother to have the matter re-listed before the Senior Registrar on 7 days’ notice to each party to reconsider the question if it is demonstrated by a report from the contact centre that there is a continuation of questioning of the child of the volume and quality that the Registrar has found disturbing.
I do not accept the mother’s evidence. She was legally represented by solicitors and by counsel at the hearing on 26 June 2019 and I do not accept that the effect of the orders was not explained to her.
Orders were made to reinstate the father’s contact in November 2019.
The father contacted O Support Services and was told that, because the visits had been cancelled, there was no longer a spot available for him. The father was told that the waiting list for FF Support Service was a year.
In early 2020, the mother moved with X to Region Q. Her solicitors wrote to the father advising that X had been enrolled in a school in Town C. That enrolment was without the father’s consent. There is no evidence that the father has ever been to X’s school or that he has ever attempted to contact X at school.
The father’s solicitors wrote to the mother’s solicitors on 14 February 2020, explaining that O Support Services could no longer supervise and proposing that GG Support Service be the supervisor. The mother refused. In cross-examination, she conceded that she refused to agree to GG Support Service because FF Support Service was the agency nominated in the July 2018 orders. She was aware of the waiting period at FF Support Service. She did not consider that she had any obligation to facilitate the contact other than strict compliance with the orders of July 2018.
There was further correspondence but the issue was not resolved.
The father filed an application seeking to reinstate the contact and on 2 November 2020, orders were made by consent for the contact to be reinstated and supervised by JJ Support Service.
The father asked for the time to occur in a park so they could play. The mother refused. The mother insisted the contact take place in the library.
The father asked if the paternal grandmother could also attend the visits. The mother refused.
The father asked for an extra visit for Christmas. The mother did not respond.
The father has continued to spend supervised time with X for two hours each week on Saturday.
On 12 March 2023, the mother sent an email to FF Support Service in the following terms:
I’ve had a look at our current schedule and I’m not able to attend every Saturday at this stage. Also [X] has some [sport] commitments coming up that clash with the current schedule. I’ve broken it down in months as to how we can attend to see if you’re able to facilitate this.
The email indicated that X would not be available for three of the five visits in April; would not be available for one of the May sessions and “unsure” in relation to another session in May.
THE EVIDENCE OF DR R
The mother’s first appointment with Dr R was in September 2022. Her stated reason for seeking assistance from Dr R was, “that she had been in a very long and complicated legal battle with [the father]”.
Dr R diagnosed the mother as suffering from Post-Traumatic Stress Syndrome and stated that the mother also shows signs of “a reactive depression which should settle once she is able to gain proper closure with [Crawford]”. Dr R referred to the father throughout her report as “[Crawford]” and the mother as “[Ms Stanton]”.
Dr R concluded,
[The mother] requires weekly or fortnightly therapy while so ever matters of closure with [Crawford] are not concluded. Extensions to the closure processes have caused psychological damage and this needs to be attended to as a matter of urgency. My view is that she will recover fairly quickly once matters in Court are concluded so that she can get on with the rest of her life which includes ensuring [X’s] safety, and her own.
Dr R did not report that the mother had told her that she had been violent towards the father. She had not read the father’s affidavit in these proceedings.
In cross-examination, Dr R said that the mother told her that, in 2011, her depression was severe enough for her to attempt life-threatening harm and that her depression at that time was related to her two older children moving to live in New Zealand.
Dr R had not been told by the mother that, after separation, for some time, the mother had agreed that X could spend two nights each week with her father.
Dr R said that she would be extremely surprised if the mother exaggerated or overstated her case.
THE EVIDENCE OF DR P
Dr P is a clinical psychologist who has treated the father since late 2017. He provided a report dated 7 November 2021 and copies of his notes.
He stated that the father has attended all scheduled sessions and that he has engaged actively in treatment.
Dr P stated:
[The father] presents with complex post-traumatic stress disorder, and with ongoing treatment, he now experiences the symptoms of complex PTSD to a lesser degree now [sic]. The symptom cluster of complex PTSD includes all aspects of PTSD, with the addition of the following (of which [the father] has experienced with varying severity and frequency in the past four years); negative self-belief that tends to focus on feelings of shame and guilt, emotional lability or difficulty expressing emotions, feelings of emptiness, and problems maintaining relationship or completing [sic] avoiding them due to issues of trust.
The current and long-standing absence from his daughter’s life and the protracted legal issues surrounding custody and separation of assets has created a profound level of uncertainty in [his] life. The outcome of which has greatly increased his sensitivity to feelings of rejection and abandonment. In addition to this, he at times has become increasingly depressed an anxious in response to the ongoing separation from his daughter, resulting in variable levels of irritability and low frustration tolerance, particularly in response to his sense of helplessness and hopelessness.
Given [his] traumatic experiences as a child, he has developed an elaborate and sophisticated set of psychological defences that have been designed to keep him ‘safe’. It is also likely that these defences will be particularly obvious and activated in specific settings that may present a higher likelihood of possible psychological threat, such as circumstances that require an assessment of his personality structure, when persons of authority are present, and any formal mechanisms that require his participation in relation to current life stressors. His complex PTSD symptoms and the activation of associated psychological defences will likely to negatively augment the perceptions of others and their experience of his defences may at times feel difficult to tolerate. Potentially the conclusions they then draw, particularly in relation to his capacity to provide an emotionally stable and healthy environment for significant others may not resemble an accurate risk profile associated with [the father].
In the early stages of his therapy, [he] regarded most individuals to be untrustworthy (which is a core symptom of complex PTSD) and this belief had become quite pervasive in his interpersonal relationships. Fortunately though, he has been able to modify this unhelpful belief, which has been reflected in both his thorough engagement in the therapeutic process and the relationships with significant others.
[He] has demonstrated that he is ultimately aware of the unhelpful nature of the generalisability of this untrustworthy schema and is able to shift his thoughts and feelings to more healthy states even when the relationship is not deemed to be completely safe and nurturing. This also reflects the fact that [he] has the capacity to reduce his prior excessive reliance on a rigid thinking style to “protect” him from any feedback that may be contrary to his beliefs, which ultimately is testament to improved affect regulation.
Dr P conceded that a third party would experience the father’s defences as being “hostile, bitter and angry”. He wrote,
The hypervigilance that he endured in the past when he constantly “scanned” his environment looking for any possible evidence of being shamed or ridiculed by others resulted in his general anxiety increasing, becoming more chronic, and thereby exacerbating his psychological defences.
However, Dr P said, that in his sessions with the father, he had demonstrated empathy and a capacity “to engage and fully experience his emotions without fear of judgement or critique”.
Dr P concluded:
When [the father] is exposed to a safe, stable and non-judgemental relationship, he responds accordingly and presents with empathy and is actually quite curious about the internal world of others. Subsequently from his own intrapersonal growth, his capacity to provide and foster a secure attachment style in his daughter [X] [sic] is without doubt already present, and is likely not to change in the future. Even with features of complex PTSD symptoms, he has also demonstrated post traumatic growth, which further equips his ability to promote an environment that will ultimately allow [X] to explore the world and for [him] to provide a safe base for [X] [sic] to return to if the need requires.
THE EVIDENCE OF DR D
Dr D conducted interviews in February and March 2021 and prepared her first report dated 15 March 2021.
The mother’s position was that she have sole parental responsibility for X and that X spend time with the father as agreed. The mother told Dr D that unsupervised contact was unlikely ever to be viable and proposed professional supervision.
The father proposed that the parents have equal shared parental responsibility and that X live primarily with him and spend time with the mother as agreed.
Dr D identified family violence as the “key issue to consider in safe contact planning”.
The mother told Dr D that there was “a strong bond of affection between the father and the child” but that the father “would be emotionally abusive to the child with unsupervised contact”. She referred to the father’s “persistent badgering” of X. (I note that the supervisors’ reports do not refer to the father’s questioning X after July 2019.)
Dr D reported that the mother, “When asked to speculate about what her child would say … predicted that X would ask for more time with her father”.
In relation to the father, the mother told Dr D:
[The mother] conjectures that [the father] has “sociopathic tendencies” or some other mental disorder which makes him lack empathy for others. She contends that [the father’s] [injury] could be contributing factor and needs investigation. [The mother] described [the father] as someone who has a history of difficult, conflictual relationships – claiming that he had bullied and harassed work colleagues and this was on his employment record. [The mother] says that he cannot accept opposition and “snaps” if people do not comply with his demands or argue. She described his anger when thwarted as “intense.” [The mother] opined that as [the father] wants [X] to be “the child that he wants” he would treat her like human plasticine to fit her into his mould. [The mother] claims that since [the father] has little capacity for self-control (possibly as the result of a [his injury]) two hours of parenting stress would be the limit if [sic] his endurance before he became irritable. Therefore, [X] could be at risk of becoming the target of her father’s aggression, although [the father] has never hurt his daughter in the past. [The mother] said that [the father] is very close to his mother who excuses his bad behaviour. [The mother] does not consider that the paternal grandmother is sufficiently aware of her son’s violent potential to be a trustworthy visit supervisor.
…
[The mother] said that she still fears home invasion and attack by [the father]. She claimed that in the past he had broken into her home.
(I note that the mother does not give evidence in her affidavit that the father had broken into her home and further that he has been aware of her address since 2021 and has never made any contact with her).
[The mother] said her anxiety had reduced greatly since moving to [Region Q] although it was unnerving to know that as [the father] sometimes comes to [Town HH] to see his lawyer she might run into him. She cannot envisage meeting [the father] in public for handover or having him bring [X] to her door: it would be too terrifying. She opined that [the father] was restraining his aggression while Court proceedings were ongoing but that if he did not obtain the outcomes that he wanted – in particular, if she obtained anything in the financial settlement – he might retaliate violently. Q: “Would he harm [X] to punish you?” [The mother] said tearfully that she was unable to predict what [the father] would do because he was “capable of anything.” She opined that when he feel persecuted or disadvantaged [the father] “sees red and does not think” which is the basis of her fear. [The mother] agreed that the period just after Final Hearing might be dangerous for her and [X] but said that she had no flight plan.
(As per the original)
Of her interview with the father, Dr D reported:
In terms of justifying a change of residence, [the father] could not specify safety concerns. He made vague complains about the mother such as she made irresponsible decisions. He queried some marks and bruises that he had seen on [X]. In response to the question: “How do you know visits with the mother will be safe” he said: “[X] would tell me if anything was wrong.” He did not allege that [the mother] would physically attack her daughter but criticised her lack of maternal devotion. He alleged that [the mother] had been sexually abused as a child, that her older two children had been sexually abused in her care and that she had lost custody of 3 of her 4 children. He contends that [the mother] chose to renounce custody of [G] for financial advantage, and that [the other children] went to New Zealand to be with their father whom they preferred to their mother. He noted that he had expressed a concern about possible child sexual abuse of [X] to [O Support Services] who had made a notification which was not substantiated. He adhered to the view that it was his duty to raise the concern about “the underpants rule” having been broken, according to [X]. (This issue is described in documents before the Court).
She wrote:
When asked to detail his current concerns about [X] [the father] was tangential and over informative about his feelings without describing any specific instances of immediate risk of harm. He claimed repeatedly that [X] was emotionally neglected and traumatised because she had been alienated and isolated from him, so could become confused and prone to self-blame. He said that [X] wants to talk to him and had problems caused by not having him he [sic] around to help, claiming this was also the opinion of psychologist [Ms B]. [The father] said that his attempts to contacts [Ms B] were unsuccessful. He also expressed concern that [X] was very overweight, criticising the mother in terms of diet and lifestyle. He did not provide supporting evidence of substantiate risk of harm in the mother’s care or for his claim that he could provide a more caring home environment.
The father told Dr D that “he found it hard to know how to ask questions because he wanted to make sure that he knew about [X’s] welfare.” Dr D wrote:
… in response to questionnaire “What’s it like to parent this child” [The father] provided a long list of questions (below) he felt compelled to ask repeatedly due to his belief [X] was being inappropriately cared for by her mother, as he conjectured toileting issues might index.
•Tell me about what you are eating for dinner and lunch these days?
•Are you eating healthy food?
•Do you need to go to the toilet?
•Are you having issues going to the toilet?
•Do you know you can always talk to me about anything and I’ll always be here to talk with you and protect you?
•What are those scratches, bruises, and marks on you from?
•Are you safe?
•How is school?
•Why are kids bullying you?
•Do you feel happy or sad?
•How did you deal with the kids bullying you?
•Are you still seeing the Psychologist? You know that you can tell her anything
Dr D commented that, although the father had completed a number of parenting courses, “He could not tell me how he applied any specific insights from those courses to his time with [X] at visits”.
The report sets out the social history that the father gave Dr D:
[The father] is the only child of [Ms T] (71) who raised him as a single parent. His parent [sic] separated when he was a baby. He described his mother as normally nurturant and reported a happy childhood with her, denying maternal deprivation, neglect or maltreatment. (NB. On his intake form [the father] commented to the effect that he was sexually abused as a child which made him hyper-vigilant for any troubling signs in [X] as his [sic] is aware of the long-term impact of CSA. He contends that because he does not know where [X] lives or who comes to the house he is unable to protect her in person so much make many enquiries.) He reported normal academic progress with good peer relationships. After high school he trained as a [tradesperson] then worked as a professional [athlete] […] from 1999 until an […] injury in [mid] 2002 […] ended his sport career. He has since worked in industry. He denies that medical records would reveal any concerning on-going cognitive or behavioural disturbance due to […]. He denies past or present substance abuse, criminal or psychiatric or criminal [sic]. He reports continuing to see psychologist [Dr P] for supportive counselling. He denies FV in his relationship with [the mother] or any prior relationship, asserting that there is no history of prosecution and no AVO currently in force. [X] is [the father’s] only child. He too is an only child. His mother has had no contact with [X] for three years – a fact which he bemoaned and wants reviewed. [Ms T] lives at [Suburb L]. [The father] lives alone and has not re-partnered.
Dr D carried out a number of psychometric tests on both parents. In relation to the father, she stated, “He reported more mistrust in his interpersonal dealings that would be usual even in clinical samples and displayed a greater propensity for resentment than 95% of the population”.
In relation to her interview with X, Dr D reported that X was “cheerful, alert and animated” and that her interaction with her mother was “warm, relaxed and comfortable”. Asked to rate activities in order of preference, X gave the highest score to “spending time with Dad in the library”. Dr D reported:
Out of the blue [X] said “I’ve got a new idea. How about if I spend every second weekend with Dad on Friday and Saturday night? He could pick me up at school and take me back to Mum Sunday or to school on Monday.” She said that “It would be fun to go with Dad for the weekend, especially if we could walk […] in the park and had hot chocolate to drink.” She thought that school holidays could also be shared: the first week with Mum and the second week with Dad. [X] said her reason for suggesting this was so it would be “even to both parents.” Q: What about telephoning Dad? A: I am no quite sure.
X completed a test designed to rate how often a parent is “understanding, interested and helpful” and rated both parents equally, “indicating she trusts both parents to be consistently attentive and emotionally responsive”.
The applicant also seeks spousal maintenance in the sum of $900 per week for three years or, in the alternate, lump sum spousal maintenance in the sum of $140,400.
SECTION 90SM(3)
Both the applicant and the respondent seek orders dividing their property between them. The substantial assets of the parties are owned by the respondent.
In those circumstances it is just and equitable to make an order dividing the net property between them.
FACTUAL ISSUES
A number of issues need to be determined before the asset pool can be determined.
The applicant does not accept that the respondent’s mother, Ms T has an interest in the Suburb L property. The respondent asserts that Ms T is the beneficial owner of a 75 per cent interest in Suburb L.
The applicant asserts that the respondent has withdrawn money from re-draw facilities, significantly reducing the equity in those properties; further that he has not disclosed what he did with those funds or where they now are and that the withdrawals, after 17 September 2018, were contrary to and in breach of court orders.
What is the beneficial ownership of the Suburb L property?
Ms T deposed that, in 2015 she and the respondent had a conversation where she told the respondent that her property at Suburb LL was getting too much to manage and that she would like to sell and move to a smaller property by the beach. She deposed that the respondent said,
58.Would you be interested in living in the [Suburb L] house? We could build onto the back or a granny flat. We can live out the back and you at the front. That way you can spend time with [X] and when you get old I can look after you.
Ms T deposed that the respondent said,
58.Well my mortgage is about $800,000 and the place is worth about a million. Obviously I paid stamp duty. What if you pay out the mortgage and you can own 75% and I can own 25%?
The respondent deposed to a similar conversation.
The applicant, in cross-examination, said that she was not present at any time when the matter was discussed.
Ms T moved into Suburb L in 2015. With the respondent’s help, she did work on her Suburb LL home and sold it for $817,000. In early 2017, Ms T transferred $787,026 to the respondent.
It was not put to Ms T that she had simply given the respondent $787,026 as a gift prompted by the love and affection of a parent for a child.
The presumption of advancement applies when a parent gives money or property to a child, of whatever age. It is presumed that the parent intended to give the beneficial interest. The presumption can be rebutted by evidence demonstrating, on the balance of probabilities, that the parent did not intend the transaction to be a gift.
It is not disputed that Ms T paid $787,026 to the respondent. Her evidence was that she gave the proceeds of the sale of her home to the respondent on the basis that she understood she was acquiring 75 per cent of the Suburb L property.
In Muschinski v Dodds (1985) 160 CLR 583 Deane J, with whom Mason J agreed, held,
[614]Viewed in its modern context, the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle.
…
[616]Once its predominantly remedial character is accepted, there is no reason to deny the availability of the constructive trust in any case where some principle of the law of equity calls for the imposition upon the legal owner of property, regardless of actual or presumed agreement or intention, of the obligation to hold or apply the property for the benefit of another.
It would be unconscionable, in the present case, if the respondent were held to be the beneficial owner of the property having accepted the payment from Ms T, made with the intention on her part that she would thus acquire a beneficial interest.
Whilst I accept that the respondent has not, at all times represented to others that Ms T was the owner of the property as to 75 per cent, there is no evidence that Ms T has ever resiled from her contention that she owns a 75 per cent interest in the property. In cross-examination, she said that she has paid 75 per cent of the applicable rates. In so far as the respondent has drawn down on the mortgage facility in a sum that exceeds the agreed value of his interest in the property, Ms T was not aware that he had done so. In any event, the respondent’s actions and representations cannot affect Ms T’s interest. If Ms T acquired an equitable interest in the property at the time of payment, nothing that was done by the respondent after that date can deprive her of that interest.
Accordingly, the respondent is beneficially entitled to 25 per cent of the Suburb L property.
Has the respondent drawn down on re-draw facilities?
Two orders have been made which limited the respondent’s right to draw down on the mortgage facilities available on the mortgages over Suburb L; Suburb J and Suburb N properties.
On 17 September 2018 orders were made in the following terms:
1.That pending further Order and pursuant to section 114 of the Family Law Act the Respondent be restrained, by injunction, from redrawing, further encumbering or removing more than a total of $7,000 in any calendar month from any home loan or mortgage accounts held in his sole name, including but not limited to the following accounts held with [KK Bank];
(a) Account […29];
(b) Account […61];
(c) Account […52];
(d) Account […71].
The respondent’s evidence was that he understood those orders to restrain him from drawing more than $7,000 from each account in any month. I consider that interpretation is open on the wording of the order. Thus between 17 September 2018 and 17 December 2020 when a further order was made, the respondent was permitted by the orders to draw a total of $28,000 each month for 27 months or $756,000. Thus the applicant’s contention that the respondent has drawn funds contrary to orders is not made out for that period.
A second order was made by consent on 17 December 2020 in the following terms:
1.That pending further Order, and pursuant to Section 114, the Respondent, [Mr Crawford] is restrained, by way of injunction, from debiting, redrawing, accessing, removing, transferring or otherwise altering any funds currently held in any loan accounts, including but not limited to the following loan accounts:
(a) Account […61]
(b) Account […29]
(c) Account […52]
(d) Account […71]
2.That pending further Order, and pursuant to Section 114, the Respondent, [Mr Crawford] is restrained, by way of injunction, from further encumbering any real estate, drawing upon or extending any current loan facilities above any current balance as at the date of these Orders, allowing any loan facility to fall into arrears, and/or increasing any current liability held in any loan accounts in his name including, but not limited to the following loan accounts:
(a) Account […61]
(b) Account […29]
(c) Account […52]
(d) Account […71]
It is not clear why reference was made to specific accounts that are not the relevant mortgage accounts, but in any event the terms of the orders clearly relate to redrawing funds in any loan account and to extending any current loan facility.
How much has been drawn down?
The parties tendered an agreed schedule setting out the money drawn by the respondent from the various accounts as follows:
From the […00] account ([Suburb L] mortgage) $370,628
From the […00] account ([Suburb N] mortgage) $140,017
From the […00] account ([Suburb J] mortgage) $457,872
Total $968,517
Has the respondent accounted for those funds?
The applicant contends that, absent an adequate, or any, explanation of where those funds were paid and what was done with them, they should be added back or treated as a distribution to the respondent.
From those sums drawn down, the applicant received $450,000 and the respondent received $225,000, (a total of $675,000) each by way of an order for partial property settlement, leaving the balance of $293,517 to be accounted for.
It is agreed that the respondent paid interest in relation to the mortgages totalling $96,968. It is also agreed that the respondent also deposited funds in each of the mortgage accounts, the total deposited being $248,446.
The respondent deposed,
From the funds that I drew, I have paid some of my legal fees, I have paid the costs for [Dr D] to prepare her single expert report, I have paid for valuations, I have paid some land tax, I have paid back money owed to my mother and some has been applied to topping up my spending account.
I accept that the respondent drew funds from the mortgage accounts, in the period after the orders of 17 December 2020, contrary to the provisions of those orders, but I am not satisfied that the applicant has demonstrated that he failed to account for those funds.
The parties, at the commencement of submissions, provided a joint balance sheet setting out their respective contentions as to the assets and liabilities. That document, edited to remove those items with a value of “Nil” or “NK” and items crossed out, is reproduced below:
Ownership Description Applicant’s value Respondent’s value ASSETS 1 H E Street, Suburb F $ 1,050,000 $ 1,050,000 2 H H Street $ 1,175,000 $ 1,175,000 3 H K Street, Suburb L $ 1,925,000 $ 481,250 4 H M Street, Suburb N $ 1,025,000 $ 1,025,000 9 H KK Bank Account …83 $ 3356 $ 3356 10 W ANZ account …87 $ 1,081 $ 1,081 11 W ANZ account …31 $ 850 $ 850 12 H Motor Vehicle 1 $ 33,000 $ 33,000 13 H Motor Vehicle 2 $ 6,000 $ 6,000 15 W Motor Vehicle 3 $ 7,800 $ 27,000 16 H KK Bank Share Portfolio $ E350,993 $ E350,993 17 H Household contents $ 10,000 $ 10,000 Total $ 5,588,080 $ 4,163,530 ADDBACKS 28 H Total redrawn on loan accounts sought to be added back $ 293,518 $ NIL 29 W Partial property settlement $ 450,000 $ 450,000 30 H Partial property settlement $ 225,000 $ 225,000 Total $ 968,518 $ 675,000 LIABILITIES 33 H KK Bank Loan …00 – Suburb L $ 602,302 $ 602,302 34 H KK Bank Loan …00 – Suburb N $ 360,937 $ 360,937 35 H KK Bank Loan …00 – Suburb J $ 363,243 $ 363,243 36 H KK Bank Portfolio Loan …71 $ 290,535 $ 290,535 37 H MM Finance $ 12,802 $ 12,802 38 H Land Tax Liability $ 23,220 $ 23,220 39 H Capital Gains Tax Liability $ NIL $ 216,658 40 W NN Finance Service $ 1,245 $ 1,245 41 W Legal Fees owing to former lawyers Hansons Lawyers to be paid from property settlement ($129,000) $ See item 23a 41a W HECS liability $ 77,175 $ NIL Total $ 1,731,459 $ 1,870,942 SUPERANNUATION Member Name of Fund Type of Interest Applicants value Respondents value 42 H Superannuation Fund 1 Accumulation $ E652,754 $ 652,754 43 W Superannuation Fund 2 Accumulation $ E3,070 $ 3,070 44 W Superannuation Fund 3 Accumulation $ E3,808 $ 3,808 Total $ 659,632 $ 659,632
I will deal with the disputed items using the item numbers on the document.
Item 3 – the respondent’s interest in Suburb L
The respondent holds 75 per cent of the property on trust for his mother. The value of the respondent’s interest is $481,250.
Item 15 – applicant’s car
There is no evidence of the value of the car. It will be included at the applicant’s estimate which is the estimated value less the sum of $15,000 from her partial property settlement which she used for the purchase.
Item 28 – funds redrawn from mortgage facilities
As is explained earlier in these reasons, the applicant has not demonstrated that the respondent has not accounted for the funds. These items will be removed from the balance sheet.
Item 39 – Capital Gains Tax liability
There is no evidence to support this claim. I do not know how the amount was calculated or in relation to the sale of which property or properties the calculation has been made.
I accept that, in the event that the respondent needs to sell property in order to pay the applicant, capital gains tax may be payable. However, there will be no liability if he sells the Suburb F property. The respondent gave evidence that he will move to Region Q in order to spend time with X so the sale of Suburb F is a possibility.
This item will be removed from the balance sheet.
Item 40 – applicant’s NN Finance Service liability
There is no evidence about how these funds were used or why it should be taken into account as a liability.
This item will be removed from the balance sheet.
Item 41 – legal fees owed to applicant’s former lawyers
The applicant is entitled to spend what she chooses on legal services but this is not a liability that can be visited against the respondent. This item will be removed from the balance sheet.
Item 41(a) – Applicant’s HECS liability
There is no evidence that the applicant is currently required to repay this liability or whether and in what circumstances she will, in the future be required to repay it.
This item will be removed from the balance sheet.
I therefore find that the assets and liabilities are as follows:
DESCRIPTION VALUE R E Street, Suburb F $ 1,050,000 R H Street $ 1,175,000 R K Street, Suburb L $ 481,250 R M Street, Suburb N $ 1,025,000 R KK Bank Account …83 $ 3,356 A ANZ account …87 $ 1,081 A ANZ account …31 $ 850 R 2017 Motor Vehicle 1 $ 33,000 R Motor Vehicle 2 $ 6,000 A Motor Vehicle 3 $ 7,800 R KK Bank Share Portfolio $ 350,993 R Household contents $ 10,000 R Partial property settlement $ 225,000 A Partial property settlement $ 450,000 Total $ 819,330 LIABILITIES 33 R KK Bank Loan …00 - Suburb L $ 602,302 34 R KK Bank Loan …00 – Suburb N $ 360,937 35 R KK Bank Loan …00 – Suburb J $ 363,243 36 R KK Bank Portfolio Loan …71 $ 290,535 37 R MM Finance $ 12,802 38 R Land Tax Liability $ 23,220 Total $ 1,653,039 SUPERANNUATION Member Name of Fund Type of Interest Applicants value 42 R Superannuation Fund 1 Accumulation $ 652,754 43 A Superannuation Accumulation $ 6,878
The net assets (not including superannuation) are $3,166,291. Of that amount, for the purpose of this calculation, the applicant has assets of $459,731.
KENNON ADJUSTMENT
The applicant claims an adjustment pursuant to the principle enunciated in Kennon & Kennon (1997) FLC 92-757 (“Kennon”).
The applicant bears the onus of demonstrating, as the Full Court stated in Kennon at 84,294, that there was:
… a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contribution to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been…
…
It is essential to bear in mind the relatively narrow bank of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party.
This is not a case where the course of violent behaviour was “by one party towards the other”. Each of these parties engaged in violent behaviour towards the other on occasions.
In the circumstances of this case I do not consider that an adjustment is appropriate.
CONTRIBUTION
Neither party is specific as to the date on which they started to live together but it appears they agree that it occurred in late 2011.
At the commencement of co-habitation, the respondent owned the properties at Suburb F, Suburb N and Suburb J. By late 2011, he also solely owned the Suburb L property. The Suburb F property was unencumbered. The other three properties were mortgaged.
Thus the real estate assets that exist today are the assets which the respondent brought into the relationship.
The respondent also had a substantial share portfolio which was subject to a portfolio loan.
He asserted, but did not prove, that he had savings.
The respondent had an interest in superannuation. At 30 June 2012, the value of the respondent’s superannuation was $126,072. When they separated, the value of his superannuation was $343,519. The fund is now agreed to be worth $652,754.
The respondent brought significant assets to the relationship.
The applicant had no assets of significance.
The applicant does not assert that she made a significant financial contribution during the co‑habitation.
In her trial affidavit, the applicant deposed that, at the commencement of their co-habitation, she was earning a “minimum wage”.
The respondent earned a substantial income and he also received three inheritances during the co-habitation, totalling almost $300,000 which he applied to reduce mortgage debt.
They lived in the Suburb F property owned by the respondent. The respondent conceded that the applicant cooked and that she looked after the inside work at the Suburb F property while he did the outside work.
The applicant does not assert that she made any contribution towards the maintenance or conservation of the properties at Suburb L, Suburb J or Suburb N.
Because of the respondent’s unusual working hours, he was available to share the care of X who was born in 2012 until they separated on 10 July 2016. The applicant does not concede that the respondent assisted with X’s care at all but I do not accept that he did not. At the very least the respondent solely cared for X when the applicant worked casual shifts during the weekday or afternoon. The applicant solely cared for X while the respondent worked a night shift on Friday, Saturday and Sunday night.
The applicant’s evidence in relation to her contributions, other than her parenting and home making contributions, is found at paragraphs 285 to 298 of her trial affidavit. She deposed that she “assisted” with renovations to the Suburb F property before they started to live together although she does not say what she did. She deposed that she assisted with the application to extend the Suburb F property and was involved in the design and locating the builder. After X was born, she assisted the respondent building a deck at Suburb F.
In all, they lived together for less than five years.
After separation, the applicant was almost solely responsible for parenting X but the respondent paid child support and he also paid spousal maintenance, private health insurance and car expenses for the applicant so he made a financial contribution to the applicant’s household.
Overall I assess the applicant’s contributions at 15 per cent.
SECTION 90SF(3)
The applicant’s income and earning capacity is less than that of the respondent. However, it could not be argued that this discrepancy has arisen because of the duration of the de facto relationship or that the relationship has affected her earning capacity (s90SF(3)(k)). The applicant deposed that, at the time they started living together, she was “earning a minimum wage” in customer service and “assisting my sister with her business working part time”. After they started living together, she worked casual shifts. Her employment at the present time is somewhat more stable now than it was during the relationship.
I accept that for a time her capacity for employment has been curtailed because of her responsibilities to care for X who is now almost 11 years old.
The respondent will retain substantial real property and superannuation that will not be available to the applicant.
The applicant will have the primary care of X. The respondent pays child support as assessed, currently in the sum of $458 per week.
Having regard to those matters, there should be an adjustment in favour of the applicant of 10 per cent.
CONCLUSION
The applicant will receive 25 per cent of the net assets, or $791,573. She has, or has had, net assets of $459,731. Therefore the respondent must pay her a further sum of $331,842.
SUPERANNUATION SPLITTNG ORDER
Counsel for the applicant, in submissions, stated that, if the amount to be paid to the applicant was less than $850,000, then no superannuation splitting order was sought.
SPOUSAL MAINTENANCE
Counsel for the applicant made no submissions directed to this application but, since it was not formally abandoned, I have assumed that it is pressed.
The applicant seeks spousal maintenance in the sum of $900 per week for three years.
In support of her application she relies on a Financial Statement sworn by her on 13 April 2023.
In that Financial Statement she deposes to an income from employment of $413 per week and expenses (not including expenses for X) of $1,424.
The applicant was cross-examined about both her income and her expenses. She had filed a previous Financial Statement sworn 19 September 2022. In relation to that Financial Statement, she conceded that she had made no attempt to average her income over the past year and that, although she disclosed income from employment of $229, she received, from time to time, overtime which varied between $500 and $900 per week, although not every week. In relation to her expenses, she said that her Part N expenses were an average of what she spent but when asked over what time period she had averaged her expenses she said that there was no specific time period. It was put to her that her claimed expenses were “pretty much a guess” and she agreed. Asked whether her calculation of her expenses in the Financial Statement sworn 13 April 2023 was on the same basis, that is, “pretty much a guess” she agreed that was so.
I am unable to say what the applicant’s reasonable weekly expenses are but I accept that her income from employment at the present time is not sufficient to cover her expenses.
The respondent was cross-examined about his disclosed income and expenses. I do not understand there to have been any challenge to his income as he deposed but rather, and specifically, how he was able to fund a short fall of income over expenses of $2,363 per week as he claimed in his Financial Statement. His explanation was that a large part of his claimed expenses related to his investment properties and were tax deductible. I also note that he drew down $225,000 by way of partial property settlement which might also explain his ability to meet a shortfall of income over expenses.
Doing the best I can with the evidence before me, the respondent has, since 2017, paid spousal maintenance of $440 and, on his evidence, he has made those payments regularly as ordered. Whatever may be the shortfall of his income, I am satisfied that he has been able to make those payments and can continue to do so and I propose to order that he continue to pay spousal maintenance in the sum of $440 per week for another three years by which time X will be 14 years old and the applicant’s capacity for employment will not be encumbered by her care.
COSTS OF THE ICL
The ICL’s costs are $28,969. Neither party disputed the quantum of the assessment. The ICL seeks an order that the parents each pay half of those costs.
That application was opposed by the mother. The father’s position was that the mother should pay the ICL’s costs or, in the alternate, they should each pay half.
The mother’s financial position has been discussed earlier in these reasons when considering her application for spousal maintenance. However, she will receive $331,842 within three months of these orders and therefore will have funds from which to pay a contribution towards the costs of X’s representation.
I will order that the mother pay $5,000 of the costs of the ICL.
The father’s financial position is superior and he has demonstrated access to funds. The father will pay $10,000 towards the ICL’s costs.
I certify that the preceding three hundred and sixty-nine (369) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 17 August 2023
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