Sweet & Sweet
[2022] FedCFamC2F 676
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sweet & Sweet [2022] FedCFamC2F 676
File number(s): MLC 4622 of 2021 Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND Date of judgment: 27 May 2022 Catchwords: FAMILY LAW – PARENTING – Best interests of the child – Whether the children should spend time with the applicant father – Whether an order of equal or sole parental responsibility should be ordered – Where the father has significant mental health and substance abuse issues – Where there are allegations of family violence – Orders made for the mother to have sole parental responsibility and for the children to spend no time with the father until he has addressed his mental health and substance abuse issues.
FAMILY LAW – PROPERTY – Settlement in relation to a marriage – Assessment of contributions – The impact of family violence – Adjustment made pursuant to the Kennon principle – Adjustments made to consider future needs of mother due to sole parental responsibility – Orders made for 70 per cent adjustment in favour of the mother and 30 per cent adjustment to the father.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79 Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 25
B and B (1993) FLC 92-357; [1993] FamCA 143
Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124
Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Blinko & Blinko [2015] FamCAFC 146
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
C and C (2005) FLC 93-220; [2005] FamCA 429
Cotton & Cotton (1983) FLC 91-330
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5
DJM & JLM (1998) FLC 92-816; [1998] FamCA 97
Dovgan & Dovgan [2021] FamCA 306
Drewett & Drewett [2012] FamCA 320
Efthimiadis & Efthimiadis (1993) FLC 92-361; [1993] FamCA 15
G & C [2006] FamCA 994
Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236
Goddard Elliott v Fritsch [2012] VSC 87
Graf-Salzmann & Graf [2015] FCWA 68
Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143; [2003] FamCA 395
Hughes v Egger [2005] NSWSC 18
Jabour & Jabour (2019) 59 Fam LR 475; [2019] FamCAFC 78
Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235
Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Kildea v Kildea (2007) 38 Fam LR 347; [2007] FamCA 1524
Kowaliw & Kowaliw (1981) FLC 91-092; [1981] FamCA 70
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69; [1988] HCA 68
Manolis v Manolis (No 2) [2011] FamCAFC 105
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
Masters Home Improvement Pty Ltd v North East Solution Pty Ltd (2017) 372 ALR 440; [2017] VSCA 88
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Morgan v Bell [2011] VSC 302
AJO and GRO (2005) FLC 93-218; [2005] FamCA 195
Perrin & Perrin (No 2) [2018] FamCAFC 122
Russell & Close [1993] FamCA 62
S & S [2003] FamCA 905
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Stott & Holgar [2017] FamCAFC 152
Townsend & Townsend (1995) FLC 92-569; [1994] FamCA 144
Division: Division 2 Family Law Number of paragraphs: 298 Date of hearing: 5-7 April 2022 Place: Sydney (via videoconference) Counsel for the Applicant: Mr Howe Solicitor for the Applicant: MMH Lawyers Counsel for the Respondent: Ms Damon Solicitor for the Respondent: Cahill & Rowe Family Law Counsel for the Independent Children's Lawyer: Ms Mansfield Solicitor for the Independent Children's Lawyer: Perisic Lawyers ORDERS
MLC 4622 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SWEET
Applicant
AND: MS SWEET
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
DEPUTY CHIEF JUDGE MCCLELLAND
DATE OF ORDER:
27 MAY 2022
THE COURT ORDERS THAT:
Parenting
1.All previous parenting orders made in this matter be discharged.
Parental Responsibility
2.MS SWEET (“the mother”) have sole parental responsibility in relation to the children, X born in 2013 and Y born in 2015 (collectively, “the children”).
3.The mother is to provide updates to MR SWEET (“the father”) regarding the children’s care welfare and development as follows:
(a)via the Parenting Application “Talking Parents”;
(b)upon the children receiving all government recommended vaccinations in relation to COVID-19;
(c)of any medical emergency requiring treatment from, or consultation with, a medical practitioner or health professional;
(d)the names and contact details of all medical practitioners and health professionals treating or consulting the children from time to time.
4.Both parents be permitted to obtain copies of any school reports, school photograph order forms, newsletters and other documents and correspondence normally sent by the school to parents.
5.The mother authorise the children’s school to provide to the father, at the father’s expense if any, information in relation to the children’s education (including but not limited to school reports, school photograph order forms, notices and access to the school portal).
6.The mother be at liberty to provide a copy of these Orders to the school/s attended by the children.
Live With
7.The children live with the mother.
Spend time and communication
8.The children spend no time nor communicate with the father until such time as he has met the requirements set out in Order 10.
9.Upon the father providing to the mother (or her solicitor if she has engaged legal representation) the reports as set out in Order 10, the children re-commence spending time with the father as follows:
(a)professionally supervised by B Contact Centre, City C or such other professional supervisory organisation as agreed between the parties (“the supervisor”);
(b)at the expense of the father;
(c)on a fortnightly basis at times and days as can be accommodated by the supervisor;
(d)with the parties completing enrolment and intake forms no less than 14 days after the receipt of the reports from the father.
10.The father obtain reports and certificates of completion as follows (“the reports”):
10.1Father’s mental health treatment
(a)That the father will commence attending upon a registered clinical psychologist and the father follow all lawful recommendations of such psychologist;
(b)The father’s psychologist be provided with a copy of the following:
(i)The Family Report of Ms D dated 7 March 2022;
(ii)The two psychological assessments of Dr E both dated 12 October 2021;
(iii)A copy of these Orders and the judgment of his Honour, Deputy Chief Judge McClelland;
(c)After a period of no less than 12 months from the initial period of engagement, the father obtain a report from his treating psychologist addressing the following:-
(i)Confirmation that all the documents referred to in 10.1(b) have been provided to the treater;
(ii)The father’s attendance, compliance and engagement with the treater’s directions for attendance and treatment;
(iii)Whether the father is suffering from any mental health illness and the regime of treatment;
(iv)Confirmation that the father’s mental health and any mental health condition impacting upon his parenting capacity is stable; and
(v)Any medications the father may be prescribed for treatment of his mental health.
10.2Drug testing
(a)The father undertake a hair follicle test to cover the period in the immediate past 6 months, and the testing occur in terms as set out in Annexure A of these Orders;
(b)Such drug test is clean for all illicit substances, save for THC/CBD oil or such other similar substance; and
(c)The cost of the drug test is to be met by the father.
10.3 Analysis of drug testing
(a)Upon the receipt of a positive hair follicle test (“the drug test”), the father obtain a report from a suitably qualified expert, such as a biochemist or toxicologist from the Victorian Institute of Forensic Medicine, as to:
i.the levels of marijuana/cannabis/THC/CBD oil noted in the drug test and an estimate as to the usage and frequency of use of the drug/s by the father;
ii.analysis of any differentiation, if it exists, between medicinal cannabis and recreational cannabis use;
iii.any impact on the father’s daily functioning and his ability to operate a motor vehicle in light of the estimated use of the drug detected; and
iv.any other matters that arise from the drug testing worthy of comment in the opinion of the expert.
10.4 Tuning Into Kids and Post Separation Parenting courses
(a)The Father complete a Tuning Into Kids Course and Post Separation Parenting courses run through the Region F or similar service and obtain a certificate of completion.
10.5Drug and alcohol counselling
(a) The Father attend on a drug and alcohol counsellor for the purpose of treatment and diagnosis of possible substance abuse disorder and to obtain a report of his engagement and prognosis.
11.There be liberty to apply to either party with respect to compliance of Orders 9 and 10 herein.
Communication
12.Within 48 hours and prior to the father’s legal representative filing a Notice of Ceasing to Act, the father’s solicitor confirm that the father has downloaded the Talking Parents Application.
13.The parents shall utilise the Talking Parents Application for the purposes of communication as to:
(a)the children’s care welfare and development;
(b)for the purposes of the father to provide information as set out in Order 10 herein;
(c)any change to their residential address or telephone number within 24 hours of such change;
(d)the provision of information pursuant to Order 10 and arrangements for time spent in Order 9.
Counselling/Parenting Courses
14.Within 14 days, the mother shall enrol in and subsequently complete a Tuning Into Kids course run through the Region F or similar service and thereafter provide a copy of her certificate of completion to the father.
15.The mother be at liberty to provide to her treating psychologist copies of the following:
(a)The Family Report of Ms D dated 7 March 2022;
(b)The two psychological assessments of the parents prepared by Dr E dated 12 October 2021;
(c)A copy of these Orders and the judgment of the Honourable Deputy Chief Judge McClelland.
Injunctions
16.The mother and father by themselves, their servants and agent/s be, and are hereby, restrained from:
(a)being under the influence of or consuming alcohol to reach a blood alcohol level above 0.05 while the children are in their care or while spending time with the children;
(b)using or being affected by illicit drugs at any time while the children are in their care or while spending time with the children (including prescription medication for which they do not hold a valid prescription);
(c)driving with the children under the influence of alcohol, illicit substances or any substance which may cause them to fail a road side drug test (including THC/CBD oil);
(d)being in the possession or control of, or exposing the children to, illicit drugs or drug paraphernalia, including marijuana plants;
(e)physically disciplining the children, or allowing any third party to do so;
(f)committing family violence against the children, or allowing any third party to do so;
(g)abusing, insulting, belittling, rebuking or otherwise denigrating the mother (or a member of the mother’s family, including the maternal grandmother and any partner of the mother) to, in the presence of, or within earshot of, the children, and allowing the children to remain in the presence of, or within earshot of, any third party engaging in such behaviour;
(h)discussing these proceedings with, in the presence of, or within earshot of, the children, and allowing the children to remain in the presence of, or within earshot of, any third party engaging in such behaviour, save for explaining time arrangements pursuant to these Orders;
(i)showing to, or leaving accessible to the children, any document connected with these proceedings; and
(j)showing to, or leaving accessible to the children, messages, emails or other written communications between the parties.
17.The father be, and is hereby, restrained by injunction from:
(a)attending the children’s school and extracurricular activities;
(b)attempting to follow the mother or keep her under surveillance;
(c)publishing on the internet, by email or other electronic communication, any material about the mother;
(d)contacting or communicating with the mother by means other than by the Talking Parents Application or, if not available, an email to an email address nominated by the mother;
(e)approaching and/or remaining within 5 metres of the mother;
(f)going to or remaining within 200 metres of the mother or any other place where the mother lives or works;
(g)asking another person to do anything the father must not do under these orders.
18.The Independent Children’s Lawyer is requested to meet with the children, as soon as practicable upon the delivery of reasons for judgment, and explain the orders for any spend time arrangements and why such time may be delayed.
19.Thereafter, upon completion of the meeting with the children, the Independent Children’s Lawyer is discharged.
20.Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create, the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto, and these particulars are included in these orders.
Property
Payment
21.Within one hundred and twenty (120) days of the date of these Orders ("the Date"), the mother pay to the father the sum of $33,271 ("the Payment").
Transfer
22.Contemporaneously with the Payment:
(a)the father transfer to the mother all his right, title and interest in the property situated at and known as G Street, Suburb H in the State of Victoria ("the real property") and the parties each engage a representative who is a subscriber for the purposes of the Electronic Conveyancing National Law at their sole expense and each party shall be responsible for the costs associated with their respective use of the PEXA platform; and
(b)the mother discharge and refinance the J Mortgage (account number …71) ("the mortgage") into her sole name and be liable for and indemnify the father against all rates, taxes and outgoings with respect to the real property.
Default sale
23.In the event the whole of the Payment has not been made by the Date, the real property be placed upon the market for sale ("the default sale") and, upon the completion of the default sale, the proceeds of sale be applied as follows:
(a)Firstly, to pay the costs, commissions and expenses of the sale;
(b)Secondly, to discharge the mortgage or any other encumbrance affecting the real property; and
(c)Thirdly, so much of the Payment as is then outstanding together with interest thereon at the rate of 7 per cent per annum adjusted monthly from the Date to the father; and
(d)Fourthly, the balance to the mother.
24.Pending the Payment or completion of the default sale;
(a)the mother have the sole right to occupy the real property and pay all instalments pursuant to the mortgage and all rates, taxes and similar apportionable outgoings in relation to the real property as they fall due;
(b)the parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)neither party encumber the real property without the consent of the other party in writing.
25.The default sale be conducted on the following terms and conditions:
(a)within seven (7) days of the date of the default, the mother nominate three potential agents to conduct the default sale;
(b)within seven (7) days thereafter, the father elect an agent from the list provided by the mother and, failing election by the father within those seven (7) days, the mother elect an agent from the list within a further three (3) days ("the agent");
(c)within seven (7) days from the date of the default, the mother shall nominate three potential conveyancers to conduct the conveyancing;
(d)within seven (7) days thereafter, the father elect a conveyancer from the list provided by the mother and, failing election by the father within those seven (7) days, the mother shall select a conveyancer from the list within a further (3) days;
(e)the method of sale be by way of private treaty. unless otherwise agreed between the parties; and
(f)in the event the real property has not sold by private treaty within 30 days after being placed on the market for sale, the real property be listed for auction within 60 days thereafter.
26.The parties have liberty to apply in respect to the implementation of the default sale.
Other
27.The mother retain and, where necessary, the father make available for collection by the mother within seven (7) days:
(a)the funds held in the joint Bank K Account …44 and the parties do all such acts and things thereafter to close the account;
(b)the bank accounts and monies therein in her sole name;
(c)her personal effects and jewellery;
(d)her passport;
(e)her birth certificate;
(f)the children's passports;
(g)the Marriage Certificate;
(h)three L ornaments;
(i)two M framed pictures of the children;
(j)the children's silver jewellery boxes;
(k)each child's gold crucifix charm necklace; and
(l)each child's gold engraved bracelet gifted to them by the maternal grandmother.
28.The applicant father retain (with items (b)–(q) already being in the father’s possession):
(a)his bank accounts and monies therein in his sole name;
(b)his tools;
(c)the computer;
(d)the pinball machine;
(e)the buffet dresser;
(f)coffee table;
(g)kayak;
(h)bedside tables;
(i)camping gear;
(j)bar equipment;
(k)butcher’s knife set;
(l)games;
(m)surf board:
(n)fishing rods;
(o)wall mirror:
(p)Christmas tree; and
(q)hair clippers.
29.Unless otherwise specified in these Orders:
(a)each party be solely entitled, to the exclusion of the other, to all other property (including choses in action) in the name and/or possession of such party as at the date of these Orders;
(b)each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;
(c)insurance policies remain in the sole property of the owner named therein; and
(d)any joint tenancy between the mother and father in any real or personal estate is expressly severed;
30.Each party be solely liable for and indemnify the other against any liability:
(a)encumbering any item of property to which that party is entitled pursuant to these Orders: and
(b)in their sole name, including but not limited to, credit cards, loans, lease agreements and charitable commitments.
31.In the event of the mother wishing to apply for an order for costs, she will be entitled to make written submissions supporting such an order within 14 days of the date of these orders. In the event of the father opposing such an order, he will have an additional period of 14 days to respond through written submissions.
NOTATION
A.Having observed the father give evidence in these proceedings and having heard the abusive language that he has used against the mother, the Court shares the safety concerns voiced by the Independent Children’s Lawyer for the mother’s future safety. Accordingly, to avoid doubt, these orders are not intended to displace or override any Intervention Order (IVO) currently in force or which will be made in the future, by a State or Territory Court, for the mother’s protection.
ANNEXURE A
That the father make an appointment with the Australian Workplace Drug Testing Services (“AWDTS”) (by telephoning 1300 37 84 83) and attend for hair collection at an AWDTS Clinic or nominee for hair drug testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:
(a)The father is required to maintain his head hair at a length of not less than four (4) centimetres in the 6 months in the lead up to the testing; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(b)Each party or their legal representatives is at liberty to provide AWDTS with a copy of these orders;
(c)The father is to attend at an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from him at the earliest available appointment time within seven (7) days of receiving written notice to undertake hair collection for hair drug testing purposes from the mother or her legal representatives;
(d)Written notice to undertake hair collection for hair drug testing purposes may be sent to the father care of the email address …com and this shall be deemed to have been received by the father at the date and time it is sent via email;
(e)The father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of the test to both parties, the father and the mother, the Independent Children’s lawyer and/or their legal representatives upon receipt of such test results;
(f)The hair drug test may screen for drugs of abuse including but not limited to:
(i)amphetamine-type substances and metabolites,
(ii)cannabis and metabolites,
(iii)medicinal cannabis (in the forms of THC oil or CBD) as found in over the counter and prescription pharmaceuticals;
(iv)cocaine and metabolites,
(v)opioids and metabolites and any other drug specified in this order as required;
(g)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available.
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 Sweet & Sweet has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MCCLELLAND:
INTRODUCTION
These are parenting and property proceedings between the applicant father, Mr Sweet (“the father”) and the respondent mother, Ms Sweet (“the mother”).
The parties have two children, X born in 2013 (eight years old) (“the older child”) and Y born in 2015 (7 years old) (‘the younger child”) (collectively, “the children”). At the commencement of proceedings, the children were living with the mother and spending no time with the father.
In respect to parenting proceedings, the father seeks that the parties have equal shared parental responsibility, with a weekabout shared care arrangement to enable him to be an involved and active father. The mother originally sought for the parties to have equal shared parental responsibility, for the children to live with the mother and for the children to spend time with their father for two hours each alternate week in a supervised capacity. The mother also originally contends that she has been the subject of family violence perpetrated by the father but believed that it is important that the father is involved in the making of long term decisions for the children due to the children’s close and loving relationship with the father.
The mother also had significant concerns in relation to the father’s ongoing use of marijuana and his refusal to participate in court ordered urinalysis testing. As will be discussed in this judgment, the father gave implausible reasons for not participating in the required urinalysis testing and showed little insight into his conduct and its overall effect on the physical and emotional wellbeing of the children.
Therefore, during the course of the proceedings, it became apparent that it is currently not in the best interests of the children to spend time with the father. The mother adopted the proposal of the Independent Children’s Lawyer (“ICL”) for the mother to have sole parental responsibility and for the children to spend no time with the father until he addresses his mental health and substance abuse challenges.
For reasons which I set out in this decision, I have found the mother’s allegations and concerns are of substance and that finding, together with other considerations, has influenced both the parenting and property orders that I have made. In summary, I have made orders for the children to live with the mother and spend no time with the father until he can address his mental health and substance abuse issues. I have also determined that the property of the parties should be adjusted such that the mother receives 70 per cent and the father receives 30 per cent of the overall property distribution. In so doing, I have included an adjustment as a result of the consequences upon the mother of her being subjected to family violence perpetrated by the father including verbal abuse and coercive and controlling behaviour. Further, I have made an adjustment of 18 per cent to reflect the required future needs of the mother in caring for the children in a full time capacity.
BACKGROUND
The father was born in 1976 and is currently 45 years of age, while the mother was born in 1980 and is currently 41 years of age.
The parties commenced a relationship in 2009. The father contends that the parties separated in November 2019 and the mother contends that the parties separated on 30 October 2020. For reasons which I explain, in circumstances where the father’s evidence is in conflict with that of the mother, I prefer the mother’s evidence. I accept that the parties separated on or about 30 October 2020, at which time the mother ceased to sleep in the master bedroom and slept on a foldout bed in the children’s bedroom.
It is agreed that, following their separation, the parties continued to live under the one roof until 19 February 2021, at which time the mother applied for a family violence intervention order (“IVO”) in circumstances that will be outlined in greater detail below.
In 2011, the father sold his property located in Suburb N, Victoria which he had purchased prior to cohabitation. The sale proceeds were used to discharge the mortgage and the parties agree that the balance of $100,000 was applied to purchase the former matrimonial home. The father contends that an additional amount of approximately $23,000 was applied, from the net proceeds of sale, for the purchase of furniture for the former matrimonial home. The father has not, however, provided evidence of such purchases.
In 2011, the parties purchased the former matrimonial home situated at G Street, Suburb H, Victoria for $365,000 including stamp duty.
In 2012, the parties married.
During 2013, the father sustained a carpal tunnel injury to his wrist at work.
During 2015, the father had surgery on his wrist. He has not returned to work after undergoing that surgery.
In 2016, the mother resumed full-time employment after the birth of the children and has continued to work on a full-time basis since then.
In late 2019, the father received a disablement payout from his superannuation fund totalling $254,000. Documents have not been produced in respect to the payment, however, it did not appear to be disputed that the payment was made up of between approximately $100,000 and $105,000 in respect to total and permanent disablement of his right hand and the balance of $154,000 being superannuation benefits and interest which he had accumulated up until that point in time. There is a significant dispute as to how those funds have been applied by the father. However, it is not in dispute that, initially, the father paid an amount of at least $234,000 into an Bank O investment account.
As at March 2020, the amount held in the Bank O investment account remained at $234,000.
As at 15 July 2021, the amount in the father’s Bank O investment account was $200,000, as recorded in the father’s financial statement filed at that time. The father contends that those funds have been expended and his Financial Statement dated 4 April 2022 does not include reference to any such funds.
The children did not spend time with the father in respect to the period from 19 February 2021 until June 2021.
The father initiated proceedings in the then Federal Circuit Court of Australia on 27 April 2021.
On 8 June 2021, interim orders were made for the children to spend time with the father on condition that the paternal grandmother was required to be in substantial attendance. The time and communication provided for in those orders was:
·each Wednesday from the conclusion of school or 3.10 pm until 7 pm
·each Saturday from 9 am until 2 pm
·communication by telephone on Monday from 6 pm.
On 19 July 2021, interim orders were made by consent for the children’s time with the father to increase as follows:
·in week one from the conclusion of school on Wednesday until 6.30 pm and from the conclusion of school on Friday until 6.30 pm Sunday.
·in week two from the conclusion of school on Wednesday until 6.30 pm and
·by telephone on Monday from 6 pm.
On 3 September 2021, correspondence was received by the mother from the O superannuation fund in respect to a request she made for the purposes of these proceedings. The correspondence indicated that the father had the following amounts in the fund:
·as at 22 February 2021 – $231,725.55
·as at 17 August 2021 – $116,490.80
·as at 3 September 2021 – $117,230.24
On 19 October 2021, interim orders were made, with certain orders by consent, which provided as follows;
(1)Order 5 of the Orders of 19 July 2021, requiring the Father’s overnight time to occur at the Paternal Grandparent’s home be discharged.
(2)Upon the Father completing two supervised urine drug screens for illicit substances and producing two clean results, during the long summer holidays the children X ("X") born in 2013 and Y ("Y") born in 2015 (“the children”) shall spend time with the Father in accordance with orders 2 and 4 of the orders made 19 July 2021, noting that the Wednesday time shall be extended to be overnight each week, to conclude at 6 pm
(3)Provided that the Father has;
(a) Completed two supervised urine drug screens for illicit substances and produced two clean results, and
(b) Commenced attendances upon a psychologist:
Then commencing at the resumption of the 2022 school year, the children spend time with the Father as follows:
(i) In Week One:
A. Wednesday from the conclusion of school (or 3:10 pm if a non-school or home-school day) to 6:30 pm; and
B. Monday (via telephone) with the Mother to place the call at 6:00 pm to the father’s mobile.
(ii) In Week Two:
A. Each Friday from the conclusion of school (or 3:10 pm in a non-school or home-school day) to the commencement of school on Monday (or 3:10 pm if a non-school or homeschool day).
(4)In the event that the Father does not commence attending upon his psychologist, time shall occur pursuant to the orders made by consent on 19 July 2021.
THE COURT FURTHER ORDERS BY CONSENT THAT:
(5)For Christmas the children will spend time:
(a) from 2.00pm on Christmas Eve to 2.00pm on Christmas Day with the Mother; and
(b) from 2.00pm Christmas Day to 2.00pm Boxing Day with the Father.
(6)For X and Y’s birthdays, the children will spend time with the parent whose care they are not ordinarily in from the conclusion of school (or 3.10pm if a non-school day) until 6.00pm.
(7)The children will spend time with the Father on his birthday from the conclusion of school (or 3.10pm if a non-school day) until 6.00pm.
(8)For the purpose of drug screen requestions the Independent Children’s Lawyer is requested to issue her first drug screen request of the Father prior to 8 November 2021 and the second prior to 10 December 2021.
(9)The Father be in substantial attendance during all time spent with the children.
(10) The children are not to be left without adult supervision
(11)The children have their own bed and a room to sleep in during their time with the Father.
(12)All changeovers which do not occur at the children’s school occur at the parties’ homes, with the Father to collect the children from the Mother’s home at the commencement of the Father’s time and the Mother to collect the children from the Father’s home at the conclusion of time.
(13)The Mother and Father continue to attend upon their treating psychologists and provide the Independent Children’s Lawyer with an update as to their progression, number of sessions attended and if possible, a report, by 1 February 2022.
(14)The parties shall provide the Independent Children’s Lawyer with the details of their treating psychologist within fourteen days of the date of these Orders.
(15)The Independent Children’s Lawyer is authorised pursuant to these Orders to contact the psychologists of the parties and make any enquiries deemed necessary.
(16)The Independent Children’s Lawyer be permitted to provide the following to each of the parents treating psychologist:
a.A copy of Dr E’s reports;
b.Child Inclusive Memorandum;
c.Any relevant Interim Orders
The father has not attended for drug screening in accordance with those orders. That issue has significance in these proceedings and the father’s stated reasons for failing to do so will be set out in greater detail below.
On 1 November 2021, the father’s lawyers filed a Notice of Ceasing to Act.
On 16 November 2021, the father arranged to collect his belongings from the former matrimonial home.
On 7 February 2022, the mother applied for, and on 8 February 2022 obtained, a further interim IVO from the Magistrates’ Court of Victoria against the father and his new partner, following an incident that occurred on 5 February 2022 at the former matrimonial home where the mother lives with the two children. The parties were extensively cross examined in respect to this issue and their evidence will be set out in greater detail in the body of this decision. The IVO suspended the operation of the 19 October 2021 interim orders.
On 23 February 2022, the parties attended interviews with a Regulation 7 family consultant, Ms D.
On 7 March 2022, a Family Report prepared by Ms D was released to the parties.
DOCUMENTS RELIED UPON
The father relied upon the following documents:
·Affidavit of the father filed 4 April 2022
·Further Amended Initiating Application filed 4 April 2022
·Financial Statement of the father filed 4 April 2022
·Family Report of Ms D dated 7 March 2022.
The mother relied upon the following documents:
·Further Amended Response to Initiating Application filed 18 March 2022
·Affidavit of the mother filed 18 March 2022
·updated Financial Statement of the mother filed 18 March 2022
·Affidavit of Dr E filed 14 October 2021
·Notice of Child Abuse, Family Violence and Risk filed 4 June 2021.
The ICL relied upon:
·Family Report of Ms D dated 7 March 2022
·Affidavit of Dr E (Father’s Report) filed 14 October 2021
·Affidavit of Dr E (Mother’s Report) filed 14 October 2021
·Child Inclusive Conference Memorandum dated 8 October 2021
·Materials produced pursuant to s 69ZW from Department of Families, Fairness and Housing dated 18 June 2021.
APPLICATIONS
By Further Amended Initiating Application filed on 4 April 2022, the father sought the following orders:
Parenting
1.THAT all previous Orders be discharged, including that appointing the Independent Children’s Lawyer.
2.The parents have equal parental responsibility for the children X born in 2013 and Y born in 2015 (collectively “the Children”)
3.That the children live with and spend time with the Mother and Father on a weekabout basis with changeover to occur each Monday at the conclusion of school (or 3:30pm if not a school day) unless otherwise agreed between the parties in writing.
4.That during school term and long summer holidays the children continue to live with each party on a weekabout basis in accordance with paragraph 3 unless otherwise agreed between the parties in writing.
Holidays and Special Occasions
5.The above care arrangements be suspended to allow for the following, unless otherwise agreed between the parents in writing:
a.during the Easter long weekend, time be suspended from 9.00am Easter Friday until 5.00pm Easter Monday, with the children to spend time with both parents as follows:
i.from 9.00am Easter Friday until 5.00pm Easter Saturday with the Mother and from 5.00pm Easter Saturday until 5.00pm Easter Monday with the Father in 2022, and each even numbered year thereafter; and
ii.from 9.00am Easter Friday until 5.00pm Easter Saturday with the Father and from 5.00pm Easter Saturday until 5.00pm Easter Monday with the Mother in 2023, and each odd numbered year thereafter.’
b.for the purposes of Christmas, from 9.00am 24 December until 5.00pm 26 December, with the children to spend time with both parents as follows:
i.from 9.00am 24 December until 2.00pm 25 December with the Father and 2.00pm 25 December until 5.00pm 26 December with the Mother in 2022, and each even numbered year thereafter; and
ii.from 9.00am 24 December until 2.00pm 25 December with the Mother and 2.00pm 25 December until 5.00pm 26 December with the Father in 2023, and each odd numbered year thereafter.
c.on the Children’s birthdays:
i.if this falls on a school day, they shall spend time with the parent with whom they will not be staying that night from the conclusion of school until 6.00pm;
ii.if this falls on a weekend or non-school day, they shall spend time with the parent with whom they will not be spending that night from 9.00am until 1.00pm.
d.on Mother’s Day, unless otherwise already in the care of the Mother, the Children shall be in the care of the Mother from 5.00pm the night prior until 9.00am Monday;
e.on Father Day, unless already in the care of the Father, the Children shall be in the care of the Father from 5.00pm the night prior until 9.00am Monday; and
f.at further times or dates as agreed between the parents in writing.
g.Both parents be permitted to attend any school or extra curricular activities and events to which parents are usually invited.
Changeover
6.Handover shall occur at the Children’s school if this occurs at the commencement or conclusion of a school day and otherwise be supervised by B Children’s Contact Centre (‘B’), unless otherwise agreed between the parents in writing, with any costs associated with B to be equally paid by the parents.
7.Both parents are to do all acts and things to register the family with B for the purposes of supervised handover.
Communication and Information
8.The parents shall utilise the Talking Parents Application, for the purposes of non-urgent communication as to changes to handover or care arrangements or updates as to the Children’s education, health and wellbeing.
9.Both parents are to notify the other immediately via text message of any significant medical illness suffered by the Children whilst in their care, and to provide information as to the nature of the illness, proposed or received treatment, details of the treating medical or allied medical practitioner and shall otherwise authorise such treating professional to communicate with the other parent.
10.The Mother is to advise the Father within 48 hours of any change in medication or treatment to be received by both or either of the Children and the Father be permitted to contact the Children’s treating medical practitioners to seek information as to any diagnosis or treatment proposed or received by the Children.
11.Both parents are to notify the other of any change to their residential address or telephone number within 24 hours of such change by way of the Talking Parents Application.
12.Both parents be permitted to contact the Children’s schools to request copies of any school reports, school photograph order forms, newsletters and other documents and correspondence normally sent by the school to parents.
Restraints
13.Without admission as to need, both parents are restrained by injunction from:
a. being under the influence of, or consuming illicit substances (including prescription medication for which they do not hold a valid prescription) 24 hours prior to or during the time spent with the Children;
b. exposing the Children to third parties whom are under the influence of or consuming illicit drugs;
c. being under the influence of or consuming alcohol to a level above .05 during the time spent with the Children;
d. physically disciplining the Children or allowing a third party to do so;
e. transporting the Children in a vehicle without them being seated in any fitted car seat as prescribed under the Australian Safety Standards; and f. denigrating the other parent, or their family member(s), or allowing a third party to do so, to or within the sight or hearing of the Children.
14.Without admission as to need, both parents are restrained by injunction from being in the possession or control of, or exposing the children to, illicit drugs or drug paraphernalia, including marijuana plants.
15.Both parents are restrained by injunction from attending handover with a third party adult, unless otherwise agreed with the other parent.
Provision of Orders
16.Both parents shall provide a copy of these Orders to:
a. The children’s school(s);
b. The parent’s counsellors; and
c. Any medical or allied medical person engaged to assist the Children.
17.Within 14 days, both parents are to provide a copy of the Family Report of Ms D dated 7 March 2022 and a copy of their assessment report of Dr E filed under Affidavit filed 14 October 2021, to their counsellor(s).
Omnibus
18.Pursuant to ss68Q and 68P of the Family Law Act 1975 (Cth) the Court declares that, to the extent that any of these orders conflict with an extant Family Violence Intervention Order, then the Family Violence Intervention Order is invalid but only to the extent of the conflict.
19.That the application of the Application of the Father and the Response of the Mother be otherwise dismissed.
20.Pursuant to s.65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet and these particulars are included in these orders.
Property
1.All previous orders be discharged.
2.The wife pay to the husband the sum of $250,000.00 (“the payment”) within 60 days of the date of these orders (“the date”).
3.Contemporaneously with the payment:
a.the husband do all such acts and things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all of his right, title and interest in the real property situate and known as G Street, Suburb H in the State of Victoria (“the G Street, Suburb H property”);
b.each of the parties do all such acts and things and sign all such documents as may be required to refinance the mortgage encumbering the G Street, Suburb H property into the wife’s sole name or as otherwise directed by the wife so long as the husband’s name is removed from the mortgages associated with the G Street, Suburb H property; and
c.the wife indemnify the husband against all payments and liability pursuant to the mortgage and all apportionable rates, taxes and outgoings of or with respect to the G Street, Suburb H property of whatsoever nature and kind.
4.In the event that the whole of the payment has not been made by the date then the husband and wife shall do all such acts and things and sign all documents necessary to sell the G Street, Suburb H property (“the default sale”) on such terms and conditions as agreed between the parties and in default of agreement the parties have liberty to apply to the Court as to the terms and conditions of the sale.
5.On settlement of the default sale, the proceeds of sale shall be paid in the following manner and priority:
a.firstly, in payment of all costs and expenses of the default sale including conveyancing costs and disbursements, agents commission and auction expenses;
b.secondly, in payment of council and water rates and all other state and/or federal government fees, charges and/or taxes, in relation to the default sale;
c.thirdly, so much of the payment as is then outstanding together with interest thereon at the rate prescribed by the Family Law Rules 2004 per annum adjusted monthly from the date to the husband;
d.fourthly, the balance to the wife.
6.Pending payment or completion of the default sale, whichever is the later:
a.the wife have the sole right to occupy the G Street, Suburb H property and that during such right of occupation the wife pay all mortgage payments, rates and taxes and like apportionable outgoings of the G Street, Suburb H property as they fall due;
b.b. the parties hold their respective interests in the G Street, Suburb H property upon trust pursuant to these Orders; and
c.neither party encumber the G Street, Suburb H property, except for the purpose of making the payment to the husband, without the consent in writing of the other party.
7.The applicant husband otherwise retain, to the exclusion of the respondent wife and indemnify her in relation to:
a.all bank accounts in his name;
b.his superannuation entitlements, work related benefits or entitlements; and
c.his personal belongings and effects.
8.The respondent wife otherwise retain, to the exclusion of the applicant husband and indemnify him in relation to:
a.all bank accounts in her name;
b.her superannuation entitlements, work related benefits or entitlements;
c.her personal belongings and effects.
9.In the event either party fails, refuses or neglects to sign or execute and return a document required to be signed by them to give effect to these orders within seven days of a written request to do so then a Registrar of the Melbourne Registry of the Federal Circuit Court is hereby appointed under section 106A of the Family Law Act 1975 to sign or execute such document on behalf of the defaulting party upon lodgment of such document and the filing of an affidavit of a solicitor on behalf of the complying party as to the said failure, neglect or refusal.
10.Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these Orders:
a.each party otherwise be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;
b.each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
c.money standing to the credit of either party in any bank, building society or investment account shall be the sole property of the owner named thereunder;
d.all insurance policies shall be the sole property of the owner named thereunder;
e.each party shall be solely liable for and indemnify the other in respect of their individual debts; and
f.any joint tenancy of the parties in any property real or personal is hereby severed.
11.All extant applications be otherwise dismissed and the matter removed from the pending cases list.
(As per the original)
By Further Amended Response to Initiating Application filed 18 March 2022, the mother sought the following orders:
1.That all previous parenting orders made in this matter be discharged.
2.The Applicant Husband and the Respondent Wife have equal shared parental responsibility for the children of the marriage X born in 2013 and Y born in 2015 (“the children.
3.The children live with the Respondent Wife.
5.The Applicant Husband spend time with the children:
5.1 for two hours each alternate week. such time to be supervised. at the expense of the Applicant Husband. by a supervision service provider as is agreed in writing between the parties and failing agreement by B Children's Contact Services ("the service provider") at times to be agreed between the parties and the service provider: and
5.2 by telephone on Monday from 6.00pm. with the Respondent Wife to place the call to the Applicant Husband's mobile and the Applicant Husband to ensure he is available to receive the call at that time,
6.The Applicant Husband, by himself or his agent/s, be. and is hereby. restrained from:
6.1 being under the influence of or consuming alcohol to a level which would take him above 0.05: while the children are in his care;
6.2 using or being affected by illicit drugs at any time while the children are in his care (including prescription medication for which he does not hold a valid prescription):
6.3 being in the possession or control of or exposing the children to illicit drugs or drug paraphernalia, including marijuana plants:
6.4 physically disciplining the children or allowing any third party to do so:
6.5 committing family violence against the children, or allowing any third party to so;
6.6 abusing, insulting, belittling, rebuking or otherwise denigrating the Respondent Wife (or a member of the Respondent wife’s family, including g the respondent wife’s mother and any partner of the respondent wife) to, or in the presence of, or within earshot of the children, and allowing the children to remain in the presence of, or within earshot of, any third party engaging in such behaviour:
6.7 discussing these proceedings with or in the presence of or within earshot of. the children and allowing the children to remain in the presence of or within earshot of, any third party engaging in such behaviour, save for explaining time arrangements pursuant to these Orders:
6.8 showing to or leaving accessible to, the children, any document connected with these proceeding and
6.9 showing to or leaving accessible to, the children, messages. emails or other written communications between the parties.
7.That the father make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services AWDTS Clinic or nominee for hair drug testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample, Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:
a.The father is required to maintain his head hair at a length of not less than four (4 centimetres);·neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
b.Within seventy-two (72) hours of the date of these orders , the father is required to make an appointment with AWDTS by telephoning 1300 37 84 83 for the purpose of providing a hair sample for hair drug testing (specify) purposes;
c.Each party or their legal representatives is at liberty to provide AWDTS with a copy of these orders;
d.The father is to attend at an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from him at the earliest available appointment time within seven (7) days of receiving written notice to undertake hair collection for hair drug testing purposes from the mother or her legal representatives;
e.Written notice to undertake hair collection for hair drug testing purposes may be sent to the father care of the email address ...com and this shall be deemed to have been received by the father at the date and time it is sent via email;
f.The father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDJS or nominee to provide the results of the test to both parties, the father and the mother. the Independent Children's lawyer and/or their legal representatives upon receipt of such test results;
g.The hair drug test may screen for drugs of abuse including amphetamine-type substances and metabolite, cannabis and metabolites, cocaine and metabolites. opioids and metabolites and any other drug specified in this order as required;
h.AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body: AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, costs and time required for results to be made available; and
i.The cost of the hair drug test is to be met by the father.
8.That in the event that:
a.A hair drug test result of the father detects a substance referred to in order 7(g) other than a lawfully obtained current prescription or over-the-counter medication; or
b.The father fails to provide a hair sample in accordance with these orders within the timeframe provided for in these orders;
c.The father’s hair is not maintained as referred to in order 7(a);
then the father’s time with the children will be suspended until such a time as a negative hair drug test is provided by him.
9.That the Father will forthwith commence attending upon a psychologist and will provide the Mother with evidence of his attendance and ongoing compliance with all recommendations in the form of a letter from the said psychologist within seven (7) days of the Mother requesting same and the Mother shall not make this request more than once every six (6) months for a period of two years from the date of these Orders.
10.That in the event that the Father complies with the terms of paragraphs 7, 8 and 9 above the Father shall spend time and communicate with the children in such arrangement as the Court deems appropriate.
11.Each party be at liberty to provide a copy of these Orders to the school/s attended by the children.
12.That the Respondent Wife authorise the children's school to provide to the Applicant Husband, at the Applicant Husband's expense, information in relation to the children's education (including but not limited to school reports. school photograph order forms and notices).
13.That each party:
9.1 notify the other of any change of address, telephone number or email address within twenty-four hours of such change;
9.2 keep the other advised at all times and as soon as practicable of any medical emergency illness or injury requiring treatment of or consultation with a medical practitioner or health professional suffered by the children while in his / her care:
9.3 keep the other advised, at all times of any medications prescribed for or administered to the children;
9.4 keep the other advised at all times of the names and contact details of all medical practitioners and health professionals treating or consulting the children:
9.5 do all such acts and sign all such documents, as may be required to authorise as soon as practicable such medical practitioners and health professionals to communicate directly with the other party about the children; and
9.6 do all such acts, sign all such documents and provide all such authorisations necessary to facilitate the children receiving all government recommended vaccinations in relation to COVID-19.
10.the parties communicate with each other in relation to the children via text messaging only.
Property
11.That for the purposes of these orders:
11.1 “the Superannuation Fund” is the Super Fund P;
11.2 The Respondent Wife is the member spouse (member number …39)
11.3 The Applicant Husband is the non-member spouse; and
11.4 “the Trustee” means the trustee(s), person(s) or corporation(s) responsible from time to time for the management or investment of the Superannuation Fund;
12.That paragraphs 13 to 15 of this Order are binding on the Trustee.
13.That in accordance with Section 90XT(4) of the Family Law Act 1975 that the base amount to be allocated to the Applicant Husband out of the Respondent Wife’s interest in the Superannuation Fund is $80,000 (“the Base Amount”).
14.That in accordance with Section 90XT(1)(a) of the Family Law Act 1975 whenever the trustee makes a splittable payment from the interest held by the Respondent Wife in the Superannuation Fund the Trustee shall pay to the Applicant Husband the amount which is calculated in accordance with part 6 of the Family Law (Superannuation) Regulations 2001 using the Base Amount (provided that such base amount shall not exceed the value of the interest determined under Section 90XT(2)), and there be corresponding reduction in the entitlement that the Respondent Wife would have had but for these Orders.
15.That paragraph 14 has effect from the operative time.
16.That the operative time for the purpose of paragraph 14 is the beginning of the fourth business day after the day on which a certified copy of the sealed Orders is served upon the Trustee.
17.That the Trustee and the parties in accordance with the obligations set out under the Family Law Act 1975 the Family Law (Superannuation) Regulations 2001 and the Superannuation Industry (Supervision) Act and Regulations 1994, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement and make the payment in accordance with these Orders.
18.That the Applicant Husband shall do all things necessary, including but not limited to, exercising his request pursuant to r.7A.07(2) of the Superannuation Industry (Supervision) Regulations 1994 for the payment of the transferable benefits out of the Respondent Wife’s interest in the Superannuation Fund to the Applicant Husband in accordance with r.7A.13 of the Superannuation Industry (Supervision) Regulations 1994.
19.That until the happening of any of:
19.1 the establishment of a separate account in the name of the Applicant Husband in the Superannuation Fund;
19.2 the transfer or “rolling over” into another superannuation fund or superannuation account of the payment split created by paragraph 14 hereof; or
19.3 the Applicant Husband satisfies a condition of release and is paid the payment split which was created by paragraph 14 hereof; or
19.4 the Applicant Husband executing a waiver of rights within the meaning of Section 90XZA of the Family Law Act 1975 in relation to the payment split created by paragraph 14 hereof;
The Respondent Wife be and is hereby restrained by herself, her servants or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or thing which would render any part of her interest in the Superannuation Fund a “not splittable payment” within the meaning of Regulations 12 or 13 of the Family Law (Superannuation) Regulations 2001.
20.That the Court notes:
20.1 that the value of the transferable benefits from the Respondent Wife’s interest to the Applicant Husband’s interests are calculated in accordance with r.7A.13 of the Superannuation Industry (Supervision) Regulations 1994;
20.2 that the value of the transferable benefits from the Respondent Wife’s interest to the Applicant Husband’s interests are calculated in accordance with r.7A.13 of the Superannuation Industry (Supervision) Regulation 19;
20.3 pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from the Respondent Wife’s superannuation interest in the Superannuation Fund made after the Trustee has created a new interest in the Applicant Husband’s name in the Superannuation Fund, as contemplated in this order, are not splittable payments.
21.Each party and the Trustee have liberty to apply in relation to the implementation of the orders affecting the Respondent Wife’s superannuation interest.
22.That a certified copy of these orders be served forthwith upon the trustee.
23.That within one hundred and twenty (120) days of the date of these Orders (“the date”), the Respondent Wife pay to the Applicant Husband the sum of $110,000 (“the Payment”).
24.That contemporaneously with the Payment:
24.1 The Applicant Husband transfer to the respondent wife all his right, title and interest in the property situate at and known as G Street, Suburb H in the State of Victoria (“the real property”) and the parties each engage a representative who is a subscriber for the purposes of the Electronic Conveyancing National Law at their sole expense and each party shall be responsible for the costs associated with their use of the PEXA; and
24.2 the Respondent Wife discharge and refinance the J mortgage (account number …71) (“the mortgage”) into her sole name and be liable for and indemnify the Applicant Husband against all rates, taxes and outgoings with respect to real property.
25.That in the event the whole of the Payment has not been made by the date the real property be placed upon the market for sale (“the default sale”) and upon the completion of the default sale, the proceeds of sale be applied as follows:
25.1 firstly, to pay the costs, commissions and expenses of the sale;
25.2 secondly, to discharge the mortgage any other encumbrance affecting the real property; and
25.3 thirdly, so much of the Payment as is then outstanding together with interest thereon at the rate of 7 percent per annum adjusted monthly from the date to the Applicant Husband; and
25.4 fourthly, the balance to the Respondent Wife.
26.That pending the Payment or completion of the default sale:
26.1 the Respondent Wife have the sole right to occupy the real property and pay all instalments pursuant to the mortgage and all rates, taxes and like apportionable outgoings in relation to the real property as they fall due:
26.2 the parties hold their respective interests in the real property upon trust pursuant to these Orders; and
26.3 neither party encumber the real property without the consent of the other party in writing.
27.That the default sale be conducted on the following terms and conditions:
27.1 within seven days from the date of the default the Respondent Wife nominate three potential agents to conduct the default sale;
27.2 within 7 days thereafter, the Applicant husband elect an agent from the list provided by the Respondent Wife and failing election by the Applicant Husband within seven days, the Respondent Wife elect the agent within a further three days (“the agent”)
27.3 within seven days from the date of the default the Respondent Wife shall nominate three alternate conveyancers to conduct the conveyancing;
27.4 within seven days thereafter, the Applicant Husband elect a conveyancer form the list provided by the Respondent Wife and failing election by the Applicant Husband with seven days, the Respondent Wife shall select 1 of the conveyancers;
27.5 the method of sale be by way of private treaty, unless otherwise agreed between the parties; and
27.6 in the event the real property has not sold by private treaty within 30 days after being placed on the market for sale, the real property be listed for auction within 60 days thereafter.
28.That the parties have liberty to apply in respect to the implementation of the default sale.
29.The Respondent Wife retain and, where necessary, the Applicant Husband made available for collection by the Respondent Wife within seven days:
29.1 the funds held in the joint Bank K Easy Transaction Account …44 and the parties do all such acts and things thereafter to close the account;
29.2 the bank accounts and monies therein in her sole name;
29.3 her personal effects and jewellery;
29.4 her passport;
29.5 her birth certificate;
29.6 the children’s passports;
29.7 the Marriage Certificate;
29.8 three L ornaments;
29.9 two M framed pictures of the children;
29.10 the children’s silver jewellery boxes;
29.11 each child’s gold crucifix charm necklace; and
29.12 each child’s gold engraved bracelet gifted to them by the maternal grandmother.
30.The Applicant Husband retain:
30.1 his bank accounts and monies therein in his sole name;
30.2 his tools;
30.3 the computer;
30.4 the pinball machine;
30.5 buffet dresser;
30.6 coffee table;
30.7 kayak;
30.8 bedside tables;
30.9 camping gear;
30.10 bar equipment;
30.11 butcher’s knife set;
30.12 games;
30.13 surf board;
30.14 fishing rods;
30.15 wall mirror;
30.16 Christmas tree; and
30.17 hair clippers.
Items 30.2 to 30.17 already being in the Applicant Husband’s possession.
31.Unless otherwise specified in these Orders:
31.1 each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the name and/or possession of such party as at the date of these Orders;
31.2 each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;
31.3 insurances polices remain the sole property of the owner named therein; and
31.4 any joint tenancy between the Respondent Wife and Applicant Husband in any real or personal estate is expressly severed;
31.5 each party be solely liable for and indemnify the other against any liability;
31.5.1.1 encumbering any item of property to which that party is entitled pursuant to these Orders; and
31.5.1.2 in their sole name, including but not limited to, credit cards, loans, lease agreements and charitable commitments.
(As per the original)
At the hearing of this matter, the ICL sought the following orders:
PARENTING
1.That all previous parenting orders made in this matter be discharged, including the appointment of the Independent Children's Lawyer, upon meeting the children following the delivery of His Honour, Deputy Chief Judge McClelland's decision in this matter.
Parental Responsibility
2.The Mother have sole parental responsibility in relation to the children, X born in 2013 and Y born in 2015 (collectively "the children").
3.The Mother is to provide updates to the Father regarding the children's care welfare and development as follows:
a. via the Parenting Application;
b. upon the children receiving all government recommended vaccinations in relation to COVID-19;
c. of any medical emergency requiring treatment of, or consultation with, a medical practitioner or health professional;
d. the names and contact details of all medical practitioners and health professionals treating, or consulting, the children from time to time.
4.Both parents be permitted to obtain copies of any school reports, school photograph order forms, newsletters and other documents and correspondence normally sent by the school to parents.
5.That the Mother authorise the children's school to provide to the Father, at the Father's expense if any, information in relation to the children's education (including but not limited to school reports, school photograph order forms, notices and school portal).
6.The Mother be at liberty to provide a copy of these Orders to the school/s attended by the children.
Live With
7.The children live with the Mother.
Spend time and communication
8.The children spend no time nor communicate with the Father until such time as he has met the requirements set out in Order 10.
9.Upon the Father providing to the Mother or her solicitor (if she has engaged legal representation), reports as set out in Order 10, then the children re-commence spending time with the Father as follows:
a. professionally supervised by B Children's Contact Service, City C or such other professional supervisory organisation as agreed between the parties ("the supervisor");
b. at the expense of the Father;
c. on a fortnightly basis at times and days as can be accommodated by the supervisor;
d. with the parties completing enrolment and intake forms no less than 14 days after the receipt of the reports from the Father.
10.The Father obtain reports as follows ("the reports"):
10.1 Father's mental health treatment
a. That the Father will commence attending upon a registered clinical psychologist and the Father follow all lawful recommendations of such psychologist;
b. The Father's psychologist be provided with a copy of the following:
i.The Family Report of Ms D dated 7 March 2022;
ii.The two psychological assessments of Dr E both dated 12 October 2021;
iii.A copy of these Orders and the judgment of His Honour, Deputy Chief Judge McClelland;
c. After a period of no less than 12 months, from the initial period of engagement, the Father obtain a report from his treating psychologist addressing the following:-
i.Confirmation that all the documents referred to in 10.1 b. have been provided to the treater;
ii.The Father's attendance, compliance and engagement with the treater's directions for attendance and treatment;
iii.Whether the Father is suffering from any mental health illness and the regime of treatment;
iv.Confirmation that the Father's mental health and any mental health condition is stable; and
v.Any medications the Father may be prescribed for treatment of his mental health.
10.2 Drug testing
a.The Father undertake a hair follicle test to cover a period in the immediate past 6 months, and the testing occur in terms as set out in Annexure A of these Orders;
b.Such drug test is clean for all illicit substances, save for THC/CBD Oil or such other similar substance; and
c.The cost of the drug test is to be met by the Father.
10.3 Analysis of drug testing
a.Upon the receipt of a positive hair follicle test ("the drug test"), the Father obtain a report from a suitably qualified expert, such as a biochemist or toxicologist from Victorian Institute of Forensic Medicine, as to:
i.the levels of marijuana/cannabis/THC/CBD Oil noted in the drug test and an estimate as to the usage and frequency of use of the drug/s by the Father;
ii.analysis of any differentiation, if it exists, between medicinal cannabis and recreational cannabis use;
iii.any impact on the Father's daily functioning and his ability to operate a motor vehicle, in light of the estimated use of the drug detected;
iv.and other matters that arise from the drug testing worthy of comment in the opinion of the expert.
10.4 Tuning Into Kids and Post Separation Parenting courses
a.The Father complete a Tuning Into Kids Course and Post Separation Parenting courses as run through Region F or similar service within the preceding 3 months of provision of a certificate of completion.
10.5 Drug and alcohol counselling
The Father attend on a drug and alcohol counsellor for the purpose of treatment and diagnosis of possible substance abuse disorder and provide a report of his engagement and prognosis.
11.There be liberty to apply to either party with respect to compliance of Orders 9 and 10 herein.
Communication
12.Within 48 hours and prior to the Father's legal representative filing a Notice of Ceasing to Act, the Father's solicitor confirm that the Father has downloaded the Talking Parents Application.
13.The parents shall utilise the Talking Parents Application, for the purposes of communication as to:
a.the children's care welfare and development;
b.for the purposes of the Father to provide information as set out in Order 10 herein;
c.any change to their residential address or telephone number within 24 hours of such change ;
d.the provision of information pursuant to Order 10 and arrangements for time spent in Order 9.
Counselling/Parenting Courses
14.Within 14 days, the Mother shall enrol in and complete a Tuning Into Kids Course run through Region F or similar service and thereafter providing a copy of her certificate of completion to the Father.
15.The Mother be at liberty to provide to her treating psychologist copies of the following:
a.The Family Report of Ms D dated 7 March 2022;
b.The two psychological assessments of the parents prepared by Dr E dated 12 October 2021;
c.A copy of these Orders and the judgment the Honourable, Deputy Chief Judge McClelland.
Injunctions
16.The Mother and Father by themselves their servants and agent/s, be and are hereby, restrained from:
a.being under the influence of or consuming alcohol to a level which would take him above 0.05 while the children are in their care or spending time with the children;
b.using or being affected by illicit drugs at any time while the children are in their care or spending time with the children (including prescription medication for which they do not hold a valid prescription);
c.driving with the children under the influence of alcohol, illicit substances or any substance which may cause him to fail a road side drug test (including CBD/THC Oil);
d.being in the possession or control of, or exposing the children to, illicit drugs or drug paraphernalia, including marijuana plants;
e.physically disciplining the children, or allowing any third party to do so;
f.committing family violence against the children, or allowing any third party to so;
g.abusing, insulting, belittling, rebuking or otherwise denigrating the Mother (or a member of the Mother's family, including the maternal grandmother and any partner of the Mother) to, or in the presence of, or within earshot of, the children, and allowing the children to remain in the presence of, or within earshot of, any third party engaging in such behaviour;
h.discussing these proceedings with, or in the presence of, or within earshot of, the children, and allowing the children to remain in the presence of, or within earshot of, any third party engaging in such behaviour, save for explaining time arrangements pursuant to these Orders;
i.showing to, or leaving accessible to, the children, any document connected with these proceedings; and
j.showing to, or leaving accessible to, the children, messages, emails or other written communications between the parties.
17.The Father be and is hereby restrained by injunction from attending the children's school and extracurricular activities.
18.Pursuant to section 68Q of the Family Law Act 1975, the Court declares that to the extent that any of these Orders are inconsistent with any intervention Order involving the parties (whether interim or final) the intervention Order is invalid to the extent that it is inconsistent and this Order prevails over the interim intervention Order to that extent only.
19.The ICL is requested to meet with the children as soon as practicable upon the delivery of His Honour, Deputy Chief Judge McClelland's reasons and explain the orders for any spend time arrangements, and why such time may be delayed.
20.Pursuant to s.65DA(2) and s.62B, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
(As per the original)
In final submissions, the mother agreed to and supported the orders sought by the ICL. Additionally, both the mother and the ICL raised potential safety concerns as a result of the demeanour of the father in the witness box and the derogatory statements which he made regarding the mother. In light of those concerns, it was agreed by the mother and the ICL that it would be appropriate for restraints to include injunctions replicating, in part, the terms of the interim IVO made on 8 February 2022.
LEGAL PRINCIPLES - PARENTING PROCEEDINGS
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
For reasons which I set out in this decision, regrettably, unless and until the father takes steps to address his mental health and substance abuse challenges, I have found that the children would be placed at an unacceptable risk of harm in spending time and communicating with the father, such that having a meaningful relationship with their father would not be in their best interests.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. As a result of the pattern of abusive and coercive and controlling conduct engaged in by the father towards the mother, I have determined that it is not in the best interests of the children for the presumption to apply.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
However, that desirability only operates when there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
(Emphasis added)
In McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, [122], the Full Court said:
…No doubt in the majority of cases there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
(Emphasis added)
In McCall and Clark at [117], the Full Court also cited, with approval, the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that the enquiry “requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child” (emphasis added).
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
(Emphasis added)
In Loddington Cronin J further added at [173] that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering.”
Issue of risk
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.
The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists is assisted by having regard to the following principles:
·In devising tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access: see M v M (1988) 166 CLR 69 (“M v M”) at 78; B and B (1993) FLC 92-357 at 79,778.
·It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M at 77.
·Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 at [146]–[148].
·The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at 81,890-81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
·Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62.
For reasons which I set out below, I have determined that there is an unacceptable risk in the children spending time with or communicating with the father unless and until he takes steps to address his mental health and substance abuse issues.
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. To assist analysis, those considerations can conveniently be grouped under the following headings:
Issues relating to the children – their views, level of maturity, culture and relationships:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Other relevant matters:
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
CONSIDERATION – PARENTING DISPUTE
Credit
During the hearing of this matter, the father failed to give responsive answers to questions on a number of occasions and, instead, took the opportunity to editorialise on the answers he gave to make critical and derogatory comments about the mother. The father generally failed to accept any wrongdoing on his part in respect to his interactions with the mother or in the discharge of his parenting responsibilities. At times, the father became emotionally dysregulated, shifting from mock laughter to crying, to angry gestures and shouting. His evidence was coloured by his stated perception that he has been the victim of unfair conduct perpetrated by the mother and the family law system, including the Court and lawyers who practice in it. On one occasion, when asked to repeat what he said, he advised the Court that he was talking to himself. He was a most unsatisfactory witness.
My assessment of the father’s credibility has also been influenced by the implausible evidence he provided regarding his assertion that he has ceased using marijuana, which I set out in greater detail below.
Further, for reasons which I subsequently set out, much of the evidence given by the father regarding circumstances where he attended the former matrimonial home on 5 February 2022 is also implausible. That incident is significant because it led to the mother applying for an IVO and resulted in the children not spending time with the father in the period subsequent to that date.
The mother, on the other hand, gave answers which were directly responsive to questions asked of her and lacked the same animus that was reflected in the father’s responses. In my opinion, she did the best she could to answer questions directly to the best of her ability without hesitation or unreasonable elaboration.
Significantly, the mother acknowledged that, in the past, she has engaged in inappropriate conduct in terms of, on occasions, being moody and also in respect to statements that she made to the father. Unlike the father, she indicated that she was prepared to render an apology to the father for inappropriate things that she has said to him in the past.
The mother’s answers were consistent with her affidavit evidence and other supporting documentation and they were also internally consistent with evidence she gave during the course of these proceedings.
Accordingly, wherever there is a dispute in the evidence provided by the parties, I have preferred the evidence provided by the mother.
APPROACH
To ensure that all relevant s 60CC considerations are addressed, in this matter I deal with those matters set out in s 60CC(3) before addressing the primary consideration set out in s 60CC(2).
Issues relating to the children – their views, level of maturity, culture and relationships
I accept the mother’s unchallenged evidence presented in her affidavit filed 18 March 2022 that the older child is in grade three at Q School, progressing at the required level and otherwise doing well at school. The younger child is in grade one at Q School and I also accept that she is progressing at the required level and otherwise doing well at school.
In the Family Report of Ms D dated 7 March 2022, it was observed at paragraph 124 that the younger child “seemed to be meeting her developmental milestones.”
Ms D cautioned at paragraph 125 that, given the children’s ages, great weight should not be placed upon their views. I accept that is the case.
The younger child reported to Ms D that she “enjoys her time with her mum” and that she has a “good” relationship with her sister, although they fight sometimes. The younger child further reported that she likes living with her mother and the maternal grandmother who moved into the former matrimonial home in February 2021.
At paragraph 131 of Ms D’s report, the younger child explained that she “also enjoys her time with her dad”, however also said “I can’t remember what I do with dad”. It is further noted at paragraph 132 of the Family Report that she likes spending time with the father, Ms R (the father’s partner") and her three children. However, again, the younger child said that she could not remember what she plays with them.
Ms D reported, at paragraph 136, that the older child also appeared to be meeting her developmental milestones. The older child noted that she liked living with her mother, maternal grandmother and the family’s two cats (paragraphs 135 and 140). She further stated that she gets along well with her younger sister despite having arguments sometimes (at paragraph 142).
The older child also stated that she enjoys spending time with her father, his current partner and her three children, but when asked about the time she would like to spend with the father, stated at paragraph 150 that it would be “OK to see dad again”, and when asked how that would occur she stated that she wanted the time spent arrangement to “stay how it is” (paragraph 148).
The Child Inclusive Conference Memorandum of Ms S dated 14 October 2021 recorded that the children advised her that they enjoy their father’s company and wanted to continue spending time with the father.
Ms D reported at paragraphs 151–152 that the children “appear to have a normal and loving sibling relationship” and “both girls also appear to enjoy spending time with their stepsiblings.”
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility
There is a dispute between the parties as to who was the primary carer for the children when they were young. In circumstances where I prefer the evidence of the mother, I accept that the mother took approximately six months maternity leave after the birth of the older child before returning to work in 2014 in a full-time capacity (paragraph 9 of mother’s affidavit).
I also accept the evidence of the mother that, following the birth of the younger child, she remained on maternity leave for a period of approximately 12 months before returning to work on a full-time basis (paragraph 10 of mother’s affidavit).
At paragraph 28 of the father’s affidavit, he attests to managing the home duties for the former matrimonial home, including the care of the children, since their respective births. However, the fact that it was the mother who took maternity leave and not the father who took paternity leave is consistent with the mother’s evidence that she was the children’s primary carer from their birth. The father also attests that in the period subsequent to the mother returning to full-time work in 2016 he cared for the children “exclusively.”
The father’s account that he cared for the children “exclusively” after the mother returned to full-time work in 2016 is clearly an overstatement. In circumstances where the mother has provided extensive particulars of the care she provided and I have found her to be a credible witness, I prefer the evidence of the mother as to the extent to which the parties respectively cared for the children.
The mother is 41 years of age and suffers from a degenerative condition in her back, necessitating her taking some pain relief on a daily basis. The mother reported to Dr E at paragraph 15 of the report that she has degenerative discs and has had three fractures in her back. The father acknowledges the mother has had surgery for her back problem.
The mother acknowledges that she has had, in the past, mental health challenges but she was not challenged on her evidence as set out in paragraph 122 of her affidavit that her mental health issues, which include the impact of post-traumatic stress disorder and depression, are being appropriately managed.
To her credit, the mother does not contend that her back injury has impacted upon her employability or working capacity.
The father is 45 years of age and, as noted, suffered from a carpel tunnel injury to his right wrist which has been the subject of surgery.
Subsection (2)(b) – the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
At paragraph 150 of his affidavit, the father attested that he continues to suffer pain in his right arm due to his workplace injury. However, in her report dated 12 October 2021, Dr E noted at paragraph 21 that the father reported to her that “he did not have any physical health issues of note”. Dr E further records at paragraph 6 of the father advising her that he had “engaged in multiple different roles, including work at factories, customer relations, and trades.”
At paragraph 152 of his affidavit, the father attested to being unable to work on a full-time basis and that he did not envisage that would be a future possibility. During the course of cross-examination, the father indicated an intention to obtain a transport workers license, with which he anticipates being in a position to obtain employment in that capacity with earning prospects of $200,000 per year.
The father has produced no evidence to support the extent of the injury to his right hand and arm, which is acknowledged by the mother to have occurred. In the absence of evidence from a qualified medical practitioner as to the nature of the father’s injury and the impact that it has on the functioning of his arm and hand, the father’s assessment that he lacks capacity for full-time employment is inadmissible opinion evidence. In that context, the father has failed to provide evidence of attempting to obtain employment or trialling particular employment to ascertain how he can cope with what he claims to be the effects of the injury to his right hand and arm.
In contrast to the father’s assertions regarding his inability to obtain full time employment, during the course of these proceedings the father acknowledged that he owns and has the capacity to ride a high-powered motorcycle, despite his claimed injury to his hand and wrist.
The mother, to her credit, did not seek to take advantage of the assertion by the father that he has a potential earning capacity of $200,000 as a transport worker, which she acknowledged to be an unrealistic aspiration on his part. The mother was not challenged on her evidence, however, that during the course of the parties’ relationship, and in the period subsequent to the father sustaining his hand injury, she has observed him undertakings tasks including landscaping, basic construction work and garden maintenance. The mother further attests that the father, who is a qualified tradesman, has assisted family and friends to install and repair systems in their homes. The mother was not challenged on that evidence.
Having regard to the manner in which he presented in these proceedings, the father’s assertion that he has the capacity to potentially earn $200,000 working as a transport worker is, with respect, fanciful. I am nonetheless satisfied that the father has a significant earning capacity which he is currently failing to utilise.
In circumstances where, prior to the father ceasing work in 2015, he was earning an income comparable to that of the mother, I am satisfied that the parties both have an earning capacity which is approximately equivalent.
Subsection (2)(c) – whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
The most relevant s 75(2) factor in these proceedings is the fact that, pursuant to these orders, the mother will have the sole care and control of the parties’ children. During the course of the proceedings the father was adamant that, aside from paying the very small amount of child support which he is required to pay, he will not provide any further assistance to the mother or the children, including assisting the mother in respect of the children’s school fees.
Subsections (2)(d) and (e) – commitments of each of the parties that are necessary to enable the party to support himself or herself, and a child or another person that the party has a duty to maintain; and the responsibilities of either party to support any other person
The father attests that he has recently commenced living with his new partner and her children. The father’s evidence in respect to the employment circumstances of his partner was unsatisfactorily unclear. It appears, however, that until recently, the father’s partner had regular work in the allied health sector. The father’s financial statement has not disclosed the income of his partner, nor has he provided evidence as to the extent to which that income can be applied towards meeting some of his expenses.
The father did not contend that he is supporting his current partner, other than to the extent that he stated he lent his current partner some money, but that has been repaid.
Other than the mother’s ongoing commitments to support the parties’ children, it was not contended that either party has an obligation to support any other person.
Subsection (2)(f) – the eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or of another country; or any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party
The father is currently receiving social security benefits. I have not had regard to those benefits in assessing an appropriate s 75(2) adjustment, in circumstances where I have previously assessed that the father has an income earning capacity equivalent to that of the mother.
Subsection (2)(g) – where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
The father is only responsible for supporting himself, whereas the mother has, since February 2016, supported the family until the parties’ separation and, in the period subsequent to the parties’ separation, supported herself and the children. In circumstances where her income has been relatively modest, the standard of living for herself and the children has also been modest. The mother was not challenged on her evidence that meeting day to day expenses, including the children’s education, can be a struggle.
Additionally, I am satisfied that it is likely the father still has a sizeable portion of the lump sum disability benefit and superannuation payment which he received available to utilise to meet his day-to-day expenses and to purchase items of property to enhance his standard of living and recreational activities. I draw that inference in circumstances where the mother has provided evidence of amounts that had been deposited in the father’s O investment account, the funds held in the father’s O superannuation account and how the father has failed to disclose how those funds have been applied.
Subsection (2)(h) – the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
I have not regarded this consideration as being relevant.
Subsection (2)(ha) – the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant
I have not regarded this consideration as being relevant.
Subsection (2)(j) – the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
I am satisfied that, in the period subsequent to her return to work in 2016, the mother received some assistance from the father in caring for the children at those times that she was at work. The father is entitled to some recognition for that.
Subsection (2)(k) – the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
I have earlier set out the periods that the mother took by way of maternity leave. There is no indication, however, that the mother’s earnings or any capacity has been impacted by those periods of leave.
Subsection (2)(l) – the need to protect a party who wishes to continue that party’s role as a parent
The mother wishes to continue to be the children’s primary carer and, for reasons which I have earlier set out, having regard to the presentation and conduct of the father, it is imperative that she remains the children’s primary carer into the future.
Subsection (2)(m) – if either party is cohabiting with another person—the financial circumstances relating to the cohabitation
The father has failed to disclose the financial circumstances of his current partner with whom he has resided for a period of approximately one month prior to the date of the hearing.
Subsection (2)(n) – the terms of any order made or proposed to be made under section 79 in relation to the property of the parties; or vested bankruptcy property in relation to a bankrupt party
I have earlier set out the adjustment which I make to the parties’ property, which favours the mother by 52 per cent to 48 per cent to the father.
Subsection (2)(naa) – the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to a party to the marriage; or a person who is a party to a de facto relationship with a party to the marriage; or the property of or vested bankruptcy property in relation to a person covered by the categories aforementioned
I have not regarded this as a relevant consideration.
Subsection (2)(na) – any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
The father has met his ongoing child support obligations to the extent of approximately $8 per week, or $4 per child. The father indicated he would continue to meet that obligation. He firmly stated, however, that he refuses to make any additional contributions to the expenses of the children.
Subsection (2)(o) – any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account
Most relevant, in terms of this consideration, is the failure by the father to disclose how he has applied funds which he has received by way of a lump sum disability benefit and also lump sum superannuation. In that respect, it is noted that in March 2020 the balance of funds in the father’s Bank O investment account was $234,000. In his Financial Statement filed 15 July 2021, the balance in that Bank O investment account was $200,000. In his Financial Statement filed 4 April 2022, the father stated that he had a nominal amount in a Bank U account and did not declare any other property, save for his interest in the former matrimonial home. The father has failed to account for funds that had been held in his Bank O investment account, which I have noted as at 15 July 2021 totalled $200,000, save to the extent that he attested to paying approximately $50,000 in legal fees.
Additionally, records produced by the Bank O superannuation fund establish that, as at 22 February 2021, the father had a balance of $231,725.55 and that reduced to $117,230.24 by 3 September 2021. No explanation has been provided by the father as to how those funds have been applied.
Until approximately one month prior to the hearing, the father was living with his parents and paying $50 rent per week from his Newstart allowance of $300 per week. This, on its face, left a balance of $250 per week to be applied to day-to-day living expenses. In those circumstances, it is implausible that the father could have exhausted the funds held in his Bank O investment account or his superannuation fund solely on day-to-day living expenses. Further, while the father said he provided some funds to his current partner, he attested that those funds have since been repaid to him.
In Graf-Salzmann & Graf [2015] FCWA 68 at [287], Walters J noted:
… a judge is entitled to take a “robust view” in relation to findings regarding a party’s financial position (including a party’s capacity to meet any proposed order) where that party has failed to make full and frank disclosure of his/her financial position: see Chang v Su (2002) FLC 93-117 at [71] and [72].
In Efthimiadis & Efthimiadis (1993) FLC 92-361 at 79,804, the Full Court said:
So far as the wife is concerned, there is no doubt that she should be treated as substantially understating her income… The circumstance that the wife had a significantly greater income that she deposed to was very damaging to her on issues of credit overall and virtually ensured that she was put out of Court so far as s75(2) factors were concerned.
As noted in Goddard Elliott v Fritsch [2012] VSC 87 at [894]–[895] by Bell J:
When it comes to making findings on the evidence, the non-disclosure of a party, and the appropriation by a party of matrimonial property for themselves, may be taken into account when making findings on the evidence. The applicable principle was enunciated in In the Marriage of Weir:
This court has pointed out in a line of cases leading up to the recent decision of the Full Court, … that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs.… It is clear enough from his Honour’s findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
It seems to us that once it has been established that there has been a deliberate non disclosure, which follows from his Honour’s findings in this case, then the court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
It can be seen that the non-disclosure, like an adverse finding as to credit, is a reason “not to be unduly cautious” about making findings in favour of the innocent party. But it is not a basis, upon its own, for deciding an application against the non-disclosing party. There must be “an underlying body of evidence from which such conclusions can be drawn”.
In cases of non-disclosure, the court must still do the best it can, even if the findings have to be imprecise; further, the court may “err on the side of generosity to the party who might be otherwise be [sic] seen to be disadvantaged by the lack of complete candour”.
(Citations omitted)
Applying those authorities, I am satisfied that the mother is entitled to an additional adjustment of some significance in light of the father’s failure to provide proper disclosure of his financial circumstances. To avoid doubt, in taking into account the father’s non-disclosure of how those funds have been applied, I have not included the amount of $50,000 which the father attested to having paid for legal fees in respect to these proceedings and which has been included as a notional add back on the balance sheet.
Subsections (2)(p) and (q) – the terms of any financial agreement and any Part VIIIAB financial agreement that is binding on the parties to the marriage
This consideration is not relevant.
Evaluation of s 75(2) factors
The most relevant consideration in determining whether there should be an adjustment pursuant to s 75(2) is that the mother will, pursuant to these orders, continue as the children’s primary carer. Based on the evidence to which I have referred, I am satisfied she will receive minimal support from the father, with that support being limited to his basic child support obligations. The children are very young and the financial obligation of raising the children will be carried by the mother at least until the children turn 18 years of age.
Additionally, the mother is entitled to a significant adjustment in circumstances where the father has failed to disclose how he has applied funds that had been held in his Bank O investment account and how he has applied funds that had been held in his Bank O superannuation fund.
Having regard to those matters, I am satisfied that the mother is entitled to an additional adjustment of 18 per cent in her favour. In circumstances where I have found the parties’ property pool available for distribution, inclusive of superannuation, to be $661,865, this results in the mother receiving an additional amount of $119,136. While not insubstantial in the context of the parties’ combined asset pool, that amount is nonetheless significantly less than funds received by the husband by way of superannuation and disability payment, the disbursement of which has been inadequately disclosed.
OVERALL EVALUATION
I have adopted the one pool approach when determining what is a just and equitable adjustment of the parties’ property. That is, I have determined to include the parties’ superannuation in the one pool of property such that it constitutes property that is already in each party’s possession. In so deciding, I have had regard to the principles adumbrated in C & C, wherein the majority of the Full Court said at 79,646, [63]:
…we consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the regulations if a splitting order is sought in any application before the court or if no such order is sought that either according to the regulations or otherwise).
In Drewett & Drewett [2012] FamCA 320, Cronin J at [185]–[188] noted, by reference to C & C, that:
Their Honours said that whether or not a splitting order was sought on either party's application, their contributions to both the property as defined in s 4(1) and also the superannuation interests should be assessed. The other factors in s 79(4)(d), (e), (f) and (g) would then need to be considered. The s 75(2) factors would then be considered.
Similarly, the parties' future superannuation prospects, be they in capital or income form, would also need to be considered. The overall justice and equity of the ultimate award, including any proposed splitting order or the need for such an order, would then be considered. The Full Court then went on to set out how that pathway was to be followed. Their Honours then said:
In the context of the consideration of the matters referred to in subparagraphs (b) and (c) of a preceding paragraph in which they referred to the pathway the following matters may be relevant: the relationship between years of fund membership and cohabitation; actual contributions made by the fund member at the commencement of the cohabitation (if applicable) at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse's present and/or future entitlements under the fund.
Their Honours then said:
If this approach is adopted whereby superannuation interests are dealt with separately from properties defined in s 4, but are subject to the considerations in s 79(4) then not only will any contributions both direct and indirect by either party to such superannuation interests be more likely to be given property recognition, but the real nature of the superannuation interests in question can also be taken into account both in consideration of the s 75(2) matters and in the final assessment of whether the ultimate order is just and equitable.
The Full Court referred to the real nature of the relevant superannuation interest and by that they were referring to not just the value of the superannuation interests according to the regulations but also the relevant value to the party in the future. In this case, the parties have obtained and agreed upon the valuations of their respective interests and it was not suggested that I should examine what those interests will mean for them in the future. Initially therefore, I propose to simply assess their respective contributions and then make adjustments separately.
(Citations omitted)
Despite the fact that it will be a number of years before either party is likely to access their superannuation entitlements, no argument has been presented as to why the Court should apply anything other than the agreed valuations of their respective interests as being property in each of their possession. Moreover, the Court has not been provided with evidence that addresses those matters set out in the recommended pathway described by the Full Court in C & C. Accordingly, the parties’ superannuation will fall as it is. That is, the mother will retain superannuation in her name and the father will retain superannuation in his name.
For reasons which I have set, out I am satisfied that there should be an adjustment in favour of the mother of 2 per cent having regard to s 79(4) considerations and 18 per cent having regard to s 75(2) considerations, making a total adjustment in favour of the mother of 20 per cent.
This results in the mother being entitled to 70 per cent of the amount of $661,865 (including superannuation), which is equivalent to $463,305. Comparatively, the father is entitled to $198,560.
In circumstances where the mother will be the primary carer of the parties’ children, I am satisfied that it is appropriate that the mother be given the first option of acquiring the full title of the former matrimonial home by making an appropriate cash adjustment to the father.
According to the agreed balance sheet, the father currently has in his possession a Motor Vehicle 2 worth $5,000. In addition, he has superannuation funds agreed at $110,289. Additionally, I have determined that, in circumstances where the father has had the benefit of paying $50,000 for legal fees by using the matrimonial property, that amount should be credited as funds utilised by the father. Accordingly, with superannuation, the motor vehicle and funds notionally added back to the balance sheet, the father has and has had the benefit of a total amount of $165,289.
In circumstances where the father’s 30 per cent entitlement of disclosed property is $198,560, the mother will be required to make a cash adjustment to the father totalling $33,271.
This will leave the mother with the former matrimonial home, worth $650,000, and she will also have her superannuation entitlement worth $85,347. She will also retain the Motor Vehicle 1. The mother will have, however, the ongoing responsibility of meeting the mortgage on the former matrimonial home in the sum of $249,096. Additionally, the mother will have the responsibility of meeting the repayments on the Motor Vehicle 1 in the sum of $24,675. She will also be left with the additional responsibility of raising the sum of $33,271 to pay to the father.
While these orders result in the mother receiving the major portion of the parties’ property which has been disclosed, for reasons which I have set out above, it can reasonably be inferred that the father has, or has had, the benefit of funds previously held in his Bank O investment account and his Bank O superannuation fund. As noted, other than in respect to legal fees, the father has failed to provide disclosure as to what has happened to those funds.
Additionally, in proposed orders 29 and 30 of the mother’s further amended response, she proposes the division of the parties’ property which has not been included in the balance sheet. That property appears to be in the nature of personal items and not of substantial value. The father was not heard to speak against that proposed division of the parties’ personal property and personal effects as proposed by the mother. In circumstances where the orders proposed by the mother appear to be reasonable and are likely to minimise the prospect of further litigation, I propose making orders in terms of those proposed by the mother.
ORDERS AND COSTS
Accordingly, for all these reasons I make the orders as set out at the commencement of these reasons for judgment.
In the event of the mother wishing to apply for an order for costs, she will be entitled to make written submissions supporting such an order within 14 days of the date of these orders. In the event of the father opposing such an order he will have an additional period of 14 days to respond.
I certify that the preceding two hundred and ninety-eight (298) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge McClelland. Associate:
Dated: 27 May 2022
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