Tarelli & Langley
[2023] FedCFamC1F 386
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tarelli & Langley [2023] FedCFamC1F 386
File number(s): PAC 4311 of 2014 Judgment of: BERMAN J Date of judgment: 18 May 2023 Catchwords: FAMILY LAW – PARENTING – With who a child lives with and spends time with – Where the father engaged in overt family violence up to the parties’ separation in 2014 – Where the mother has PTSD as a result of the family violence – Where the mother was the primary carer up until 2017 – Where Orders were made in 2017 reversing the primary care arrangements – Where the child has lived with the father since 2017 and not spent time with the mother – Where further Orders were made in 2020 to again reverse the primary care arrangements – Where the handover was demonstrably unsuccessful – Where the single expert opined the failed handover was considered to be a cruel procedure, traumatic and likely solidified the child’s negative perception of the mother – Where the mother seeks orders that the child live with her and spend virtually no time with the father – Where the mother, by reason of her unresolved PTSD, cannot spend time with the child should he remain living with the father – Where a third change in the primary care is likely to cause the child extreme distress and a deleterious mental health outcome – Where there is scant evidence as to the process required to effect a transition or how to deal with the psychological and emotional sequelae that would likely result – Where the evidence supports a finding that there is no viable process to effect a change in the child’s primary care – Where there is no evidence that the mother could cope with spending time with the child if he remains living with the father – Orders.
FAMILY LAW – PROPERTY SETTLEMENT – Contributions – where the parties cohabitated for four years – Where the mother made significant financial contributions – Where the maternal grandmother has also made significant financial contributions on or for the behalf of the mother – Where the father has the sole care of the child – Where the mother is likely unable to return to paid employment arising from her PTSD – Consideration of family violence – Orders.
Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2)(a),60CC(3), 90SM, 90SM(4)(a), 90SM(4)(b), 90SM(4)(c), 90SF Cases cited: Baglio & Baglio [2013] FamCA 105
Beckham & Desprez [2015] FamCAFC 247
Bevan & Bevan (2013) FLC 93-545
Blanding & Blanding [2016] FamCAFC 21
Champness & Hanson (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330
Dickons & Dickons [2012] 50 Fam LR 244
Gosper & Gosper (1987) FLC 91-818
Harridge & Harridge [2010] FamCA 445
Jabour & Jabour (2019) FLC 93-898
JEL & DDF (2001) FLC 93-075
M v M (1988) 166 CLR 69
Mallet v Mallet (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513
N & S & the Separate Representative (1996) FLC 92-655
Pascoe & O’Keefe and Ors [2018] FamCAFC 243
S & S [2003] FamCA 905
Sigley & Evor [2011] FamCAFC 22
Stanford & Stanford (2012) FLC 93-495
Tarelli & Langley (No.4) [2020] FamCA 1095
Vasser & Taylor-Black (2007) FLC 93-329
Division: Division 1 First Instance Number of paragraphs: 327 Date of hearing: 25, 27 and 28 July 2022; 13, 14, 15 and 16 September 2022; 18 April 2023, 19 April 2023 Place: Sydney & Parramatta Counsel for the Applicant: Mr Shaw Solicitor for the Applicant: F W Ewart & Ewart Counsel for the Respondent: Mr O’Brien Solicitor for the Respondent: Adam Jones Solicitor Counsel for the Independent Children’s Lawyer: Ms Shea Solicitor for the Independent Children’s Lawyer: Legal Aid NSW, Parramatta Family Law ORDERS
PAC 4311 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TARELLI
Applicant
AND: MS LANGLEY
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
18 may 2023
THE COURT ORDERS THAT:
1.Within ninety (90) days of this order, Ms Langley (“the mother”) shall pay to the trust account of F W Ewart & Ewart, for and on behalf of Mr Tarelli (“the father”), the sum of FIFTY ONE THOUSAND THREE HUNDRED AND EIGHT DOLLARS ($51,308) (“the settlement sum”) and she shall arrange to refinance the mortgage secured over the property at B Street, Suburb C in the state of New South Wales (“the Suburb C property”) to enable it to be discharged such that the father is no longer liable in respect of same.
2.Contemporaneously with the payment of the settlement sum the father shall do all things and sign all documents necessary to cause the transfer of his right, title and interest in the property at the Suburb C property to the mother.
3.In the event that the mother is unable to refinance the Suburb C property, the parties shall do all things and sign all necessary documents to effect the sale of the Suburb C property as follows:
(a)the Suburb C property shall be listed for sale with such real estate agent as is agreed between the parties, and failing agreement within fourteen (14) days, the real estate agent will be as nominated by the President of the Real Estate Institute of New South Wales or his or her nominee, at the request of the parties or either of them;
(b)the list price shall be such amount as is agreed between the parties and failing agreement within fourteen (14) days, the list price will be as nominated by the real estate agent;
(c)the parties cooperate with the real estate agent in relation to the marketing of the Suburb C property for sale including, making and giving access to the property readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection of any prospective purchaser; and
(d)the proceeds of sale of the Suburb C property shall be paid in the following manner and priority:
(i)to discharge the mortgage;
(ii)in payment of the agent’s commission and advertising or other expenses, if any, payable in relation to the sale;
(iii)in payment of legal costs relating to the sale;
(iv)the payment of the settlement sum to the father; and
(v)the balance to be paid to the mother.
4.As between the mother and the father, they are each declared to be the sole legal and beneficial owner of all other property currently or beneficially owned by them, in their respective possession, within their sole or partial control, including but not limited to real property, superannuation entitlements, cash, funds held in bank accounts, motor vehicles and other items of personalty.
5.The parties each irrevocably indemnify the other against all liabilities held in their name or jointly with a third party including but not limited to mortgages, credit cards, personal loans, overdrafts, tax liabilities, unpaid school fees, rates and utilities.
6.In the event that either of the parties refuse or neglect to sign any document required by them to be signed, the Registrar of the Court shall and is hereby empowered to sign such documents on behalf of that party pursuant to s 106A of the Family Law Act 1975 (Cth).
7.The father shall have sole parental responsibility for D (“the child”) born 2013.
8.The child live with the father.
9.In the event the child shall express a wish to spend time with the mother, then the father shall inform the mother forthwith of the child’s request.
10.In the event that the child shall express a wish to speak to the mother, then the father will facilitate the child being able to communicate with the mother via telephone, FaceTime or such other electronic communication format on a telephone number as may be provided by the mother.
11.The father will facilitate the child providing letters, cards and/or gifts to the mother at the address as may be provided by the mother.
12.The mother shall be at liberty to forward letters, cards and/or gifts to the child at the address as may be provided by the father.
13.The father shall authorise the child’s school to provide the mother with school reports, school photographs and such other information as may be reasonably provided by the school to a parent provided that any cost incurred in doing so shall be at the sole expense of the mother.
14.The father shall advise the mother in writing as to the name and address of any proposed change of school enrolment for the child.
15.The parties be restrained and an injunction be granted restraining each of them from attending within 100 metres, or entering upon or remaining in any place of residence or employment of the other.
16.The father shall notify the mother of any illness, accident or any other issue whether medical or otherwise in respect of the child including, the name and address of any medical or treating practitioner or hospital.
17.The mother shall be at liberty to communicate with and obtain information or direction concerning the child’s physical and/or mental health and welfare from any specialist, medical practitioner, psychologist, psychiatrist or any other health professional.
18.The order for the appointment for the Independent Children’s Lawyer (“ICL”) be discharged.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Tarelli (“the father”) and Ms Langley (“the mother”) are the parents of D (“the child”) born 2013.
The parties have not been able to reach agreement in respect of the future parenting arrangements for the child. The proceedings were commenced by the father on 10 September 2014 wherein he sought orders that the child live with him and spend time with the mother. The mother opposed the orders sought by the father and by her Response to Initiating Application filed 8 July 2015, she sought orders for sole parental responsibility and that the child live with her and spend no time with the father.
Critical to the conduct of the early history of the proceedings and the tragic events which later followed, was the intervention in 2015 by the Department of Family and Community Services (“FACS”).
Following the intervention of FACS, interim orders were made for the child to live with the mother and spend supervised time with the father.
On 16 December 2016, the father filed an Amended Initiating Application seeking final orders that there be a change in the primary care of the child from the mother to him with the child to spend time with the mother as the Court may determine.
The competing applications of the parties were listed for final hearing on 23 October 2017.
A pivotal court event occurred on 8 September 2017, when leave was given for FACS to bring an Application seeking that the Minister have sole parental responsibility for the child but with the intention that the child would be placed in the primary care of the father.
There is some contention as to what occurred at that hearing but it is not controversial that the mother was unrepresented and that the interim hearing was heard despite her submission that she did not have notice of the application, that the orders sought by the Department were opposed and that there be an adjournment to enable her to obtain representation.
The outcome of the interim hearing was that FACS was successful in the orders sought and the child was placed in the father’s care. The mother was able to spend time with the child as directed by the Secretary or Minister’s delegate of FACS.
The final hearing was heard over six days between October and November 2017. Judgment was delivered on 27 June 2018 (“the 2018 final orders”) which provided for FACS and the father to have shared parental responsibility and then over a period of twelve months to transition to the father having sole parental responsibility and primary care.
The mother’s time was subject to the consideration of the father and the Minister over a period of twelve months. Thereafter, the involvement of FACS would cease, leaving the child to live with the father and spend supervised time with the mother.
Critical to the mother’s presentation was an assertion by her that during the relationship with the father, she was the victim of entrenched and grievous family violence perpetrated by him. The mother asserted that the consequences of the father’s egregious conduct was that she suffered from Post-Traumatic Stress Disorder (“PTSD”) with the distressing sequelae that she was not able to spend time with the child if he lived with the father.
On 15 February 2019, the mother successfully appealed the 2018 final orders and the matter was remitted for further hearing but on the basis that the Orders made on 8 September 2017 were reinstated with the consequence that the child remained in the father’s sole care and the mother, by reason of her PTSD, was not able to spend time with the child.
There were significant delays in re-listing the matter for final hearing. Orders were made on 15 November 2019 pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) based upon the mother’s allegations that the father was the perpetrator of serious family violence involving physical assault.
Justice Henderson reheard the matter in August 2020 and delivered judgment on 18 December 2020.
Whilst not the central focus of the proceedings, the substantive applications of the parties also sought that there be orders by way of property settlement in respect of a relatively modest pool of property predominantly focused on the most significant asset being a property situate at B Street, Suburb C (“the Suburb C property”) registered in the name of the father but given the financial provenance by which it was acquired, the mother has remained in sole occupation.
The Orders of her Honour made on 18 December 2020 (“the 2020 Orders”), are summarised as follows:-
(1)That all previous orders are discharged;
(2)That at the expiration of two weeks from the date of the 2020 Orders, the child shall live with the mother who shall have sole parental responsibility;
(3)That the mother or her nominee, shall forthwith advise the father by email of any serious and/or major medical events in relation to the child together with the name of the treating medical practitioner/s and/or hospital and the father is permitted to make direct contact with those treatment providers to ascertain the medical status of the child;
(4)The father spend supervised time with the child on one occasions per month for a period of four hours commencing on a date to be determined by the parties and that the father’s time with the child be supervised either by a paid professional, or occur at a Contact Centre with the father to meet all costs of supervision;
(5)That the child spend time with his half sibling sister, BD born 2018, at a venue nominated by the mother for a period of not less than two hours each week and the father is restrained from being within 3 kilometres of that venue;
(6)Within 48 hours of the date of the 2020 Order, the mother and the maternal grandmother (if she wishes), is to make an appointment with Mr M to receive therapeutic assistance and advice as to the transition, age appropriate communication with the child in relation to the child’s parental circumstances and his change in living circumstances from the father’s primary care to the mother’s primary care;
(7)Within 48 hours of the date of the 2020 Order, the father, and Ms S (if she wishes), is to make an appointment with Mr M to receive therapeutic assistance and advice as to the transition, age appropriate communication with the child in relation to the child’s parental circumstances and his change in living circumstances from the father’s primary care to the mother’s primary care;
(8)Both parties will accept the reasonable direction and advice of Mr M as to the age appropriate manner in which the child will be advised of his pending change of his residential circumstances by each of them;
(9)The mother shall authorise Mr M to consult with Dr G from time to time;
(10)Both parties are to continue to work with Mr M until Mr M discharges that party from further attendance;
(11)The mother shall authorise Dr G to consult with Mr M from time to time; and
(12)The mother shall ensure the child continue his primary education at BC School at Suburb BG.
Orders were also made in respect of the property issues as between the parties such that the father transfer to the mother, all of his interest in the Suburb C property and provided that the mother refinance the existing mortgage to the exoneration of the father, each party keeps their separate property and superannuation entitlements free of claim by the other.
It is not controversial that the intended transition of the child from the father’s care to the mother’s was disastrous and could not be effected.
The father appealed the 2020 Orders of the trial judge. The appeal was heard on 12 April 2021. On 5 July 2021, the Full Court allowed the appeal against the 2020 Orders and the matter was remitted for a further hearing.
Whilst the father raised 14 grounds of challenge, the Full Court were only required to consider Ground 1 in the following terms:-
That her Honour in reaching a decision that [the child] would be able to cope with the dramatic change in his custodial care to be effected by her Honour’s orders failed to have sufficient regard to the expert evidence of [Professor TT] in her report dated 30 July 2020, that a withdrawal of the child from his current family consisting of his father, [the father’s new partner] and [the child’s half-sister] would have long term implications of attachment disruption for [the child] “who has already experienced one significant disruption in his care” that being the loss of his relationship with his mother and grandmother three years ago so that a second grievous loss would have a serious effect on [the child’s] further development …
The Full Court considered that Ground 1 had merit and the appeal was allowed.
Specifically, and whilst somewhat verbose, the appeal ground raised the need to consider what is in a child’s best interests and in particular, s 60CC(3)(d) of the Act. The detailed consideration of the Full Court is adequately encapsulated in the following paragraphs:-
31.This ground as argued contended that in determining that the child should move from his father’s to his mother’s care, the primary judge failed to take into account or have sufficient regard to the effect on the child of that change.
32.In determining what is in a child’s best interests, s 60CC(3)(d) of the Family Law Act 1975 (Cth) (“the Act”) requires a court to consider:
(d)[T]he likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living…
33.Principal to her Honour’s decision and peppered throughout the evidence and indeed her Honour’s discussion of it, were expressions of concern by the experts as to the effect on the child of a move from his father’s household where he was, on all the evidence, well settled and doing well, to that of his mother from whom he had been separated for years.
Given that her Honour’s determination of property settlement was at least in part predicated upon a change in the primary care arrangements for the child, the success of the father’s appeal resulted in the Full Court also remitting, albeit by subsequent order, a rehearing as to property settlement.
Whilst not required to dispose of the appeal, the Full Court considered the submissions of the Independent Children’s Lawyer (“ICL”) as to the efficacy of her Honour’s judgment being delivered on 18 December 2020 with the parties and the ICL having three minutes notice of the delivery at 5.15 pm.
The gravamen of the submission of the ICL was that the significant change for the child arising from the proposed transition into the mother’s care, required psychological support and assistance which, by sheer dint of timing over the Christmas period, was unable to be undertaken. The remitted hearing commenced on 25 July 2022 with final submissions and judgment being reserved on 16 September 2022. On 22 February 2023 the mother filed an application seeking to adduce further psychiatric evidence from various witnesses.
The mother has been unable to countenance spending time with the child since 8 September 2017, predominantly because the mother’s PTSD is triggered and exacerbated by the father’s continued involvement and primary care. It is not a contention of the father that but for the PTSD the mother would be unable to have a relationship with the child nor does he suggest that the mother would present as a risk to the child.
BACKGROUND
I adopt the detailed procedural and historical chronology as set out by Henderson J in Tarelli & Langley (No. 4) [2020] FamCA 1095. The circumstances of the parties have not changed significantly since the hearing before her Honour and the father’s appeal on 5 July 2021.
The father pleaded guilty to multiple counts of assault and entered into a statement of agreed facts presented to the Court. The father was sentenced in 2020 to a period pursuant to an Intensive Correction Order (“ICO”). The father did not spend any time in prison but rather served the ICO within the community.
It is not disputed that the ICO was discharged in or about early 2020.
The mother was successful in obtaining an Apprehended Domestic Violence Order (ADVO) which named her as the protected person. That ADVO expired in mid-2022.
The father continues to reside with his partner Ms S, a relationship now of about seven years duration.
The child has lived with the father and Ms S since 8 September 2017. The child has not spent any effective time with the mother since that date.
The father and Ms S continue to parent their daughter, BD. For her part, the mother has continued with ongoing therapeutic assistance with an apparent focus of better enabling her to ameliorate the more florid symptoms associated with her diagnosis of PTSD. In particular, the mother seeks to reconcile that even if she is successful in resuming the primary care of the child that the child would need to spend more time with the father and Ms S than the few hours per month as contemplated by the mother in the orders she seeks.
PROPOSALS OF THE PARTIES
The father seeks the following orders:-
(1)That the father have sole parental responsibility;
(2)That the child live with the father;
(3)That the child spend time with the mother as determined by the Court in accordance with her own wishes but that the mother’s time with the child be supervised for the first six months after the making of this order at a Contact Centre and thereafter, as recommended by the single expert Professor TT; and
(4)That the Suburb C property be sold and following the discharge of the mortgage loan, conveyancing costs, costs of sale and agent’s commission and adjustments, the balance be divided equally between the parties.
The mother initially sought that the child live with her and spend four hours per month with the father.
The mother now seeks that after the expiration of six weeks from the date of the order, the child shall spend such time with the father as determined by the Court. Such an order is problematic in that it provides limited assistance to the Court but leaves the eventual outcome at my discretion. I consider that such an approach is problematic in that the exercise of my discretion is informed by the evidence not my personal or preferred outcome.
The mother contemplates that during the six week period, the child will need therapeutic assistance to prepare him for the transition and upon coming into the mother’s care the child will then attend upon weekly therapy sessions involving the mother and a therapist to assist with the reunification and stabilisation of the relationship of the mother and the child.
By way of settlement of property, the mother seeks that the father transfer his interest in the Suburb C property to her conditional upon a discharge of the mortgage currently in the father’s name.
In the event that the mother is unable to refinance the Suburb C property to the exoneration of the father then it is to be sold with the mother to retain the net proceeds of sale.
DOCUMENTS RELIED UPON BY THE PARTIES
The father relies upon the following documents:
(1)Further Amended Initiating Application filed 29 June 2022;
(2)Affidavit of the father filed 3 June 2022;
(3)Financial Statement of the father filed 3 June 2022;
(4)Affidavit of Ms S filed 3 June 2022;
(5)Affidavit of Mr II filed 3 June 2022;
(6)Affidavit of Mr VV filed 3 June 2022;
(7)Affidavit of Ms AU filed 3 June 2022;
(8)Affidavit of Mr AV filed 3 June 2022;
(9)Affidavit of Ms AX filed 3 June 2022; and
(10)Psychiatric Report of Professor TT dated 25 July 2020.
The mother relies upon the following documents:
(1)Affidavit of the mother filed 22 July 2020;
(2)Affidavit of Ms OO filed 20 July 2020;
(3)Affidavit of Mr M filed 16 July 2020;
(4)Affidavit of Dr G filed 16 July 2020;
(5)Affidavit of Ms AW filed 12 July 2022;
In addition, the mother seeks to rely upon the transcripts of hearing before Justice Henderson.
The ICL relies upon the following documents:-
(1)Psychiatric Report of Professor TT dated 25 July 2022; and
(2)Psychiatric Report of Professor TT dated 30 July 2020.
At the commencement of the proceedings, all parties and the ICL provided Case Outline documents that they sought to rely upon. The Court was also assisted by the parties’ written submissions.
The issue of the mother’s reliance upon previous evidence in respect of cross examination of witnesses at the earlier trial was a matter of discussion at the commencement of the proceedings. There was no opposition by the father or the ICL to the mother adopting what was an unusual approach.
As considered, it was understood by the mother’s counsel that any specific reliance upon earlier evidence would need to be identified rather than an expectation that I would read and digest the entirety of the tendered transcripts. There was an acknowledgment that the inability of the father and the ICL to cross examine the mother may well adversely impact on the weight that may be given to her evidence.
SUMMARY OF ARGUMENT
The father contends that the child is content and happy in his household and identifies the child’s relationship with Ms S and his half-sister BD as of particular importance.
The father concedes that he perpetrated family violence towards the mother but that it occurred prior to 2014 and following his plea of guilty to the charges, he was sentenced to a term of imprisonment in 2020 however, the sentence took the form of an ICO. The order lapsed in early 2022 and there is no suggestion that the order was the subject of breach. The father relies upon the evidence of Ms S that there has been no conduct which would be consistent with the father perpetrating family violence either towards her or the child during the period of their relationship.
The father rejects any proposition that he has been active in dissuading the child from resuming a relationship with the mother. The father contends that his position is that the child should have a relationship with the mother and subject to an initial period of supervision, it would be in the child’s best interests to resume a relationship with her. This is of course subject to the mother’s capacity to contemplate the child spending time with her in circumstances where the father remains the primary carer or at the very least that there would be a continuation of a significant ongoing relationship with him.
The child has formed a close bond with Ms S and his half-sister, BD. The child no longer has a significant bond with the maternal grandmother.
Whilst the attempted transition from the father’s care to the mother was distressing to the child, the father still considers that significant weight should be given to the child’s wishes to remain in the father’s household and on that basis, he considers that there could be an opportunity to resume spending time with the mother.
The mother considers that the choice for the Court is limited to the following options:
(1)That the child live with the father and spend no time with the mother; or
(2)That the child live with the mother and spend time, albeit limited, with the father.[1]
[1] Mother’s Summary of Argument filed 16 September 2022.
The mother contends that her diagnosis that she suffers from PTSD was as direct result of the violence inflicted upon her by the father. As a result, the mother is not able to contemplate an outcome other than the two options that she puts forward.
If the child remains in the primary care of the father, then it is the mother’s contention that the child will never have a relationship of significance with the mother irrespective of whether the Court finds that the father’s home is an environment where the child is exposed either to negative views of the mother or the lack of any commitment to foster the child’s relationship with her.
It is further argued that whilst a transition from the father’s care to the mother’s would be difficult and distressing, if appropriately managed such an outcome could be achieved with appropriate therapeutic assistance for the child.
The mother’s proposal is predicated upon consideration that the child had a primary attachment with her in the early years of his development and as such, that relationship could be rekindled if done in a sensitive and considered approach. Moreover, the mother considers that her diagnosis of PTSD arising from the father’s violent and abusive conduct resulting in the tragic outcome that the mother cannot now countenance the child remaining in the father’s care, should not be used as a barrier to the Court making an order that restores the child’s relationship with the mother.
On the one hand, the father seeks to retain the child’s primary care but supports the child resuming a relationship with the mother if she is capable of doing so whereas the mother seeks the primary care of the child and offers limited orders that would support the child’s relationship with the father, BD and to a lesser degree, Ms S.
At one level, it is a linchpin of the mother’s case that the proposed transition can be achieved in circumstances where the advantage to the child returning to the mother’s primary care outweighs the apparent certainty of the child experiencing a high level of distress, anxiety and potential opposition to any such move.
For reasons highlighted by the Full Court, the issue to be considered are the advantages and disadvantages to the separate proposals of the parties.
APPLICATION TO ADDUCE FURTHER EVIDENCE
By Application in a Proceeding filed 22 February 2023, the mother sought leave to reopen the proceedings and to adduce further evidence by affidavit from the following:
(1)Dr G, Child, Adolescent and Adult Psychiatrist;
(2)Dr AY, Psychiatrist; and
(3)Ms AZ, Psychologist.
The mother did not press evidence from Ms AZ and on 19 April 2023, the following Orders were made without opposition from the father or the ICL:
1.That the following affidavits filed on behalf of the mother be received into evidence without the need for cross examination:
(a) Affidavit of [Dr G] filed 22 February 2023; and
(b)Affidavit of [Ms Langley] filed 17 April 2023 (including the annexed reports of [Dr G] and [Dr AY]).
Neither the father nor the ICL pressed for either Dr G or Dr AY to be called for cross examination.
THE EVIDENCE
The father
The father confirmed that he remains in a committed relationship with Ms S which commenced in late 2016. The father and Ms S are the parents of BD who was born in 2018.
Consequent upon an Order by Justice Foster on 8 September 2017, the child came into the father’s primary care.
The father has enrolled the child in a public school in Suburb BA. At the time of the hearing, the child was in year four. Ms S takes the child to school most mornings.
The father conceded that whilst the parties were living together, the mother was the primary carer although he had some doubts about her parenting abilities.
The father conceded that he had not spent much time with the child whilst the parties lived together although he considered that the mother had tried to minimise the extent of the child’s relationship with the father.
The father was shown a text message sent by him to the mother in 2013 which extolled the mother’s virtues as a good parent to the child. (“Exhibit 1”)
The father was asked whether he was aware that according to Ms S, in January 2021 the child drew a picture of the mother on a piece of paper and included the word “loser”. [2] According to Ms S, the child then taped the mother’s picture to his boxing bag and punched it repeatedly telling Ms S that it helped him feel better.
[2] Affidavit of Ms S filed 31 May 2022, paragraph 73.
The incident observed by Ms S occurred after the distressing attempt to have the child transition from the father’s care to the mother’s on 1 January 2021, pursuant to the Orders made on 18 December 2020.
The father said that he did not see the child put a picture of the mother on the punching bag but when he was informed by Ms S of the child’s conduct, he then spoke to the child. The father could not elaborate on the manner in which he spoke to the child nor the precise content other than it was the wrong thing to do. The father’s evidence was unconvincing and it is a reasonable finding that the father was not disposed to supporting the child’s relationship with the mother.
The father conceded that he did not tell the child that consequent upon the 2020 Orders, he would live with the mother. The father considered that it was unnecessary given the involvement of Mr M on 23 December 2020. The father agreed that Ms S was demonstrably upset about the change of the child’s care and it would have been likely that the child would have picked up on her distress and upset.
A report that the child was at risk of serious harm was made to the Department for Communities and Justice prior to the child being handed over to the mother.
Exhibit “2” in the proceedings is correspondence from the father’s counsel, Mr John Shaw, to the Crown Solicitors Office advising that the father intended to appeal the Orders made on 18 December 2020 and that:-
In the circumstances, my instructions are that no steps will be taken to effect a changeover of the child on 1 January 2021 from the care of my client to the care of the respondent mother.
This means that it would be necessary for the Secretary of the Department of Communities & Justice to retain sole parental responsibility until the proposed Appeal has been heard and determined.
The father denied that he had instructed his solicitor to send the letter to the Crown Solicitor but that eventually Mr Shaw did tell him that he must comply with the Order.
The father confirmed that he was not present at the handover on 1 January 2021. He acknowledged initially the handover was to be at a park but then it was changed to his home. The father said goodbye to the child and left the house.
The father conceded that the child was not well prepared for the handover given that there had not been a proper opportunity to engage with Mr M in circumstances where the child had made some alarming remarks about the mother and had threatened to harm her and himself.
The father agreed that at the handover venue, there were a number of people present including friends of the father, Ms S and Mr Shaw together with either his secretary or his paralegal/ associate.
The father had not engaged the child in active discussion as to why he was going to live with his mother nor that once it occurred, he would still be able to see the father, Ms S and his sister.
There was also uncertainty as to how it was decided who would be present at the handover. In particular, the father could not remember inviting Mr Shaw to attend.
I find that the involvement of Mr Shaw and his associate/ paralegal was unnecessary and in any event, unhelpful. There was no objection raised by Mr Shaw when the father disavowed of any invitation to Mr Shaw to attend. Given the absence of any objection, I accept the father’s evidence that Mr Shaw was an uninvited observer. At best, Mr Shaw’s conduct is curious and at worst, unprofessional.
The father was adamant that he does not speak to the child about the proceedings nor does he present a negative image of the mother. He does however deny the raft of allegations made by the mother in respect of sexual and other assaults.
The father acknowledged that he entered a plea of guilty to multiple charges identified in the Statement of Agreed Facts. In addition, the mother obtained an Apprehended Domestic Violence Order (“ADVO”) which expired in mid-2022.
The father’s evidence was that even though he had pleaded guilty to serious counts of assault, he nonetheless remained in fear of the mother and he alleged that in early 2014, the mother had approached him with two large kitchen knives taken from a knife block. The father’s fear was such that he allegedly ran to a nearby police station dressed only in a shirt and underwear.
The father wanted the Court to accept that whilst the mother had asserted he was the perpetrator of family violence, the reverse was a more accurate reflection of the current circumstances namely, that it is the father who remains fearful of the mother.
The father denied that he had ever told the child that he should never see his mother again or that there is reason for him to be fearful of her. The father’s contention that he remains fearful of the mother was unconvincing. The father’s evidence does not provide any basis to reach a different conclusion about the father’s conduct towards the mother than was determined by Justice Henderson. The father’s engagement with the mother was violent and aggressive. The relationship with the mother prior to separation was redolent with serious family violence.
The tragedy of the proceedings is that inherent in the 2018 Order which placed the child in the care of the father, the mother’s allegations that the father perpetrated family violence was disbelieved.
The ICL explored the child’s current school arrangements. The father confirmed that the child had finished at BC School at the end of 2021, then he attended BV School until early 2021 and thereafter, he commenced attending at BX School.
The father considered that the child had adjusted reasonably well to the change in schools albeit with some hesitation. BC School was a country school whereas the child’s current school is smaller and required an adjustment. The father did not know the name of the child’s teachers but did understand that the child engaged in sports and activities as part of his co-curricular activities.
As at the date of trial, the child was attending upon a psychologist however the father conceded that it was Ms S who is involved in the child’s ongoing therapy.
The father presented as an unreliable witness and despite his protestations to the contrary, it is likely that Ms S has undertaken a significant and pivotal role in the child’s ongoing parenting.
Ms S
Ms S agreed that there were many people who were present at the handover on 1 January 2021. She was happy that there were other people present to support her in circumstances where the father was not present and she was having difficulty coping with the reality that the child was going to live with the mother.
Ms S considered that everybody was doing their best to encourage the child to go and in particular, she conceded that the child greeted the maternal grandmother fondly, they embraced and were holding hands. However, when Ms S attempted to get the child in the car, he ran back into the property and started jumping on a trampoline in an attempt to distance himself from the handover.
The events of the proposed handover was distressing and prompted Ms S to provide her mobile phone to a friend who started videoing what was occurring.
Not dissimilar to the father, Ms S did not know who invited Mr Shaw or why he was there.
Exhibit “5” is a USB of the video recording made 1 January 2021.
Ms S was challenged as to the extent to which she supported the child going to the mother or the maternal grandmother. It was put to her that the advice of Mr M was that she must be firm however, whilst she did her best, the child had said that he would kill himself if made to go.
Ms S reported the child’s concerns to DCJ but did not believe that the child was serious in his threat to self-harm.
The observation of the child punching his own drawing of the mother was distressing to Ms S. She was concerned about the child’s hostility towards the mother and that formed the basis of ongoing counselling and therapeutic assistance.
Ms S considered that she had been doing the best that she could but this was made difficult by the child constantly referring to the mother in negative terms.
Ms S believes that the child is functioning well but is still angry about what happened on 1 January 2021.
Exhibit “6” is an email sent by Ms S to Mr M advising him that compliance with the Orders would be difficult and in any event, she would find it personally challenging to carry out the recommendations of Mr M as may be needed to effect a successful handover.
Ms S demonstrated good insight into the needs of the child. She was responsive to the therapeutic needs of the child and it is apparent from her evidence that she has formed a close emotional attachment to the child. Her evidence enables a finding that her continued involvement with the child is integral to his welfare and development.
I consider that Ms S presents as a reliable and credible witness.
Professor TT
Professor TT holds the qualification of a Registered Medical Practitioner and Consultant Psychiatrist. She has additional qualifications in infant child and adolescent mental health and the treatment of trauma related mental health disorders and the area of parenting disturbance. She has experience in forensic assessment for the purposes of the preparation of medico-legal reports and has provided supervision and support for Child Protection Services and family law consultants. Her curriculum vitae is extensive and highlights numerous publications relevant to child development and the effect of parental conflict on children.
Professor TT confirms her knowledge of the appropriate Code of Conduct in the preparation of reports.
Professor TT provided a Psychiatric Report dated 25 July 2022 following on from her original report dated 30 July 2020 and sets out the extensive background, as included in her first report and in particular, her summary as follows:-
At that stage, I concluded that [the mother] demonstrates in her mood, emotional regulation and ongoing post-traumatic symptoms, (which she herself says are likely to be permanent), it would be difficult for her to focus on the needs of [the child] if he were to be returned to her on a full-time capacity.
It was my view, that if this were to be contemplated, it would be important to have a program initially of supervised contact and counselling for [the mother] around dealing with her symptoms. It would be important to monitor [the child], from the point of view of his capacity to rebuild trust in his relationship with his mother and to protect him from ongoing confusion and anxiety.
The opinion expressed in my report at that time was that [the mother] met the diagnostic criteria for a complex Post-Traumatic Stress Disorder which in and of itself, is not the result of a single event, or series of events. That diagnosis reflects the pre‑disposing vulnerability usually in the form of early childhood abuse and disruption of care that contributes to vulnerability to later, both interpersonal difficulties and also the capacity to recover from trauma. It is a complex psychological condition which impacts many areas of personality and emotional functioning which is chronic and complex in its impact and may have a wide variety of implications for parenting and for all interpersonal functioning.
A finding of Post-Traumatic Stress Disorder is not a sufficient explanation of the mother’s inability to spend time with the child. In addition to the symptoms which [the mother] is likely to experience when “triggered” (as she describes), it is also important to recognise that she will have underlying vulnerabilities and a particular proclivity to identify her former ex-husband with her father, thus experiencing a re-enactment of early trauma. In this sense, her early experiences are as significant as any isolated trauma even if severe.
Professor TT interviewed the child and found him to be cooperative with good recollection of his earlier engagement with her.
The child’s presentation to Professor TT is summarised in her Psychiatric Report dated 25 July 2022, in the following extract:-
[The child] disclosed to me, that he has been very upset and worried when he felt he might be returned to the care of his mother. He was keen to describe to me, his happiness with his current family arrangement and the connections he has with his stepmother’s extended family. He said that he had become angry and distressed and had felt that his wishes were not adequately taken into account. He felt alienated and angry and described this as feeling that he did not matter, whilst the Court proceedings, have been, from his perspective, complex and protracted. He described an episode, which he could not date when he became very scared and had run around screaming and that people were called to help. He now felt “much calmer” and safer.
Professor TT found the child to be intelligent and articulate and able to reflect on his situation. It is recorded that the child expressed a strong position not to see his mother and that even when pressed, he was categorical in not wanting to see either his mother or his maternal grandmother.
It was recorded that if required, the child would speak to his mother and maternal grandmother but that it would make him very unhappy. He expressed upset and anger that the Court proceedings were unrelenting and that whilst he considered that his mother was not a safe person, given that his recollection was that she made him scared and upset in his father’s home, he now sleeps well and feels safe.
The child also expressed to Professor TT that what he wanted was to speak directly to the Court so that his wish to remain in his father’s home and spend no time in the mother’s home would have greater impact.
The Psychiatric Report dated 25 July 2022, under the heading “Summary and Opinion”, was a theme that underpinned Professor TT’s evidence:-
In my opinion, [the child] is an articulate boy who has dealt with very complex and emotionally disturbing issues to the best of his ability. He has sophisticated vocabulary relating to his own internal states and feelings, but as is likely, in someone of his age (9 years), he is at risk of becoming easily overwhelmed and distressed by feelings of anxiety, particularly if he feels in a position where he is powerless and having no choice in his situation.
It is concerning that [the child] has felt the very strong need to have very firm opinions that he would like to communicate as clearly as possible, largely because of his view that he has not been a party in the legal proceedings. He appears to be very much supported in his current living arrangements and there are considerable risks involved in separating him from a stable network of relationships and the feelings of security that he experiences. It appears that his overall level of anxiety and his feelings of safety have increased more recently, and he is adapting to a new school environment.
Professor TT had been provided with further trial material including, Exhibit “5” being the video recorded by a friend of Ms S of the failed handover on 1 January 2021.
The proposals of the parties for the future parenting arrangements for the child were put to Professor TT. She was asked what would be the impact on the child if he remained living with the father and spent little or no time with the mother. Professor TT considered that this would be a solution to some of the conflict that adversely impacts the child. She reiterated the matters raised in her Psychiatric Report namely, that the child finds the situation of ongoing conflict to be difficult and he feels that he is trapped by the litigation.
The concern expressed was that the child will have long term adverse impacts of an arrangement that did not allow him to have any meaningful contact with his father.
There is also a potential consequence of the child not being able to have a beneficial relationship with his mother and grandmother.
Professor TT was asked to consider the potential for the father to revert to his previous conduct of significant family violence. Whilst that has not been assessed, Professor TT considered that whilst there always remains a risk of a person who has engaged in significant and damaging family violence, sufficient time has passed without there being a regression on his part which is likely to be a relevant and possibly promising consideration.
The gravamen of the child’s presentation is that he could not tolerate not being in the home of his father, stepmother and sister.
Professor TT considered that at his age, the child could not understand his predicament in that he does not know, nor does he have the necessary skills, to balance the competing considerations of his mother and his father.
Whilst the child does have limited insight of his confusing situation, he has an idea of what a mother should be and is scared of the way that he recollects his mother presenting herself to him.
Professor TT was asked to consider the mother’s proposal which was that the child would live in her primary care and spend four hours on the first Sunday of each month with the father and not less than two hours each week with his sister. Professor TT was categorical in her evidence that the child would experience a high level of distress. She considered that the child positively interacts with the father and is very close to Ms S and his sister. Professor TT opined that the child sees Ms S as his mother and feels safe in his father’s home. In summary, the child cannot understand why that should be disrupted.
The outcome of a change in the current primary care arrangements may well result in the child risking depression and anxiety. The consequences would be serious and he would likely have feelings of loss and anger and not be able to understand why he is not being heard. There is an increased risk of mental health difficulties. Professor TT gave the following evidence:[3]
The issue of the mother’s seeming lack of capacity just to see the [child] and offer him a maternal role, even if limited, because of her unresolved trauma issues, is very complex. There are many situations where a mother would feel that she would like to and could see the child but she has always taken that – that view. That, in itself, I think is very confusing for a child. On the one hand, he is told that his mother wants him to be there with her and largely with her exclusively. On the other hand, if her requirements are not met, he has no role anymore. That in itself is, I think – in my view, very confusing for a child. Either way, I think he would need psychological counselling in an ongoing way to try and understand that. His view appears to be currently, at least cross-sectionally, that he can’t tolerate this – this – the situation of not being in the family that he has recreated around him with his father and his other – other family – family members. And that feels safe for him. And I think he’s able to express that and feels fearful about going back to mum – his mother and grandmother in that way.
[3] Transcript 28 July 2022, p. 7 line 39.
Professor TT further considered the consequence to the child leaving the father’s home and gave evidence as follows:[4]
… So things he values as a – as a young – young boy growing up and in their new living – living area, which he’s finding very, very positive. He also is very close to his stepmother and sees her as his mother, and in a very clear way. He has expressed views that they are very close, which is – which is true. That he feels safe there and he cannot understand why that would be disrupted. And I think there’s a real – I think, an inherent risk in that situation of great distress, feelings potentially longer term of depression, a grief reaction. I mean, children whose attachment relationships are abruptly severed, if they are very important and sustaining positive relationships for them, which children can develop even if things have been through very difficult periods, which is the fact in this situation. Disrupting those attachment relationships is a traumatic experience. I would be concerned from a – a clinical point of view that this is a vulnerable child who has already experienced disruptions, feelings of rejection, confusion, so he would have quite a significant risk of acute distress in the short term and, again, be at greater risk going forward of having unresolved feelings of loss, grief and also anger directed at those who he feels are making – attempting to control him, if you like, or put him in a position that he feels not involved in or not heard. He repeated that to me on several occasions in our – in our discussion.
[4] Transcript 28 July 2022, p. 8 line 36.
The likely adverse consequences experienced by the child, if removed from the care of his father, is exacerbated by the significant disruption, upset and distressed experienced by the child upon his removal from the mother’s care in 2017.
It was the opinion of Professor TT that when children and adolescence get angry and are distressed, there could be a risk of self-harm and anger turned towards himself with a further possibility of oppositional behaviour.
The concern is that the mother might have difficulty in dealing with the child’s anger and not be able to deal with oppositional behaviour if the child is placed in her care.
A further risk is that any oppositional behaviour on the part of the child and expressions of anger may well trigger emotional dysregulation with the mother given her emotional fragility.
Professor TT was asked to consider if there were to be a transition from the father’s care to that of the mother, how might this be best achieved. Her opinion was that it would be difficult and at least six months would be required to enable the child to be better prepared. At present, the child remains negative and highly resistant to a transition. A quick transition was considered by Professor TT to be the option that would most likely place the child at the highest risk of emotional harm.
Having seen the vision of the ill-fated handover, Professor TT considered that the event had likely solidified the child’s feelings of uncertainty as he knew that the exercise was to take him from his father and require him to remain with his mother. It was considered to be a cruel procedure and the behaviour of the child in running away from the maternal grandmother was understandable in that the child was in such a state of distress that he had to take assertive action given he was not able to express himself.
Professor TT expressed a view that the child was at risk of running away, self-harm, suicidal threats and other negative conduct which would represent the child attempting to escape from an intolerable situation.
Whilst Professor TT considered that, if the circumstances were set up properly, there was a possibility that the child may well be reunited with the mother, however, it is likely that such a transition could only be achieved, if at all, if the child was able to spend significant and substantial time in the father’s home. Professor TT again emphasised the importance of the relationship with Ms S and further considered the mother’s proposed transition in the following extract:[5]
My immediate fear would be that the timeframe is somewhat unrealistic, given my observation of the child’s emotional state and – and position on the situation when I interviewed him. Six weeks, for a child who’s very vulnerable, is a very short period of time. It is, I would consider, rather precipitous. The other assumption that’s made in this is that the therapeutic involvement can – I mean, should oversee that. And it’s – I think his Honour made a very good point that it’s very hard to actually implement that. And you have specific views. Someone who has been the treating psychiatrist of the mother remains in that relationship with her, and it’s not a treating person for the child. So, in my view, that’s a rather confusing situation. If this were to be enforced, I – the only point I would make is that the child himself, in this situation, needs a therapeutic person who he can develop a relationship with, someone who supports independently of someone who supports the mother or the father in this situation. And that would be much clearer for the child who will have his own views. I – I would find this a high risk proposition in terms of the negative impact, potentially, on the child. I would want a therapeutic and clinical review or engagement with him around his capacity to actually tolerate this, and the systemic capacity around him to give him an explanation of this that actually makes sense to him. And that’s quite a complex situation.
[5] Transcript 28 July 2022 p. 14, line 41.
In evidence, Professor TT confirmed that she had looked at the video of the attempted handover and found the impact on the child to be traumatic and deeply concerning. It also had the potential or possibly the unfortunate outcome of having solidified the child’s negative perception of the mother.
Professor TT also gave evidence that confirmed her stated position namely, that the transition of the child from the father’s primary care to the mother could not be effected in less than six months, if at all. The transition was considered to be made more complex by the child being angry and having expressed strong feelings about any possibility of removal from his father’s home.
Professor TT was asked to consider the mother’s proposal that if she had primary care of the child then, as at the date of trial, she would be able to cope with the child spending four hours a month with the father. Her evidence was that four hours a month was insufficient for a child to continue to either build upon or to continue an ongoing relationship in this case with the father, Ms S and BD. Four hours was insufficient to maintain an ongoing attachment relationship and that much more would be required.
Professor TT presented as an impressive witness who brought considerable skill and expertise to her evidence.
The mother
The mother did not give evidence and therefore was not the subject of cross examination. She relied upon her previous affidavits together with her evidence given in the proceedings before Henderson J as is contained in the transcript of proceedings comprising exhibit “8”. Other than the further evidence of Dr G and Dr AY nothing else was heard as to the events and changes affecting the mother for the last two years.
Evidence of Dr G
Dr G has been the mother’s treating Psychiatrist since early 2017.
Dr G has provided a number of reports in support of the mother’s case but also outlining her diagnosis and prognosis.
The mother relied upon the affidavit of Dr G filed 22 July 2022. Dr G was not called to give evidence. A number of reports were annexed to his affidavit. Annexure “A” to Dr G’s affidavit is a Psychiatric Report dated 21 July 2022. The report provides the opinion of Dr G that the mother’s mental health was likely to deteriorate significantly if she was required to provide evidence at the hearing. At the time, the mother was observed to be distraught and gave a history to Dr G of sleep difficulties. At a hearing before Justice Foster (as he then was) in 2017, the mother collapsed in Court. Dr G considered that this was a decompensation and that the mother was at risk of a similar event. He was however mindful that the Court proceedings had not resolved after eight years and that this was likely to represent cumulative trauma for the mother.
In terms of the mother’s ability to parent the child, Dr G did not consider that she presented as a risk to the child. It was recorded in Dr G’s report of 21 July 2022 that the mother “impressed as a loving devoted and attentive mother, and [the child] in turn was very content in her company and thrived”.
Dr G did recognise that his observations of the mother and the child dated back to 2017 and that he has not seen the child for now several years.
Dr G’s evidence was further supplemented by his affidavit filed 22 February 2023 annexing a further Psychiatric Report dated 8 February 2023. The importance of the most recent Psychiatric Report is to confirm that the mother has continued to see Dr G on a weekly basis since the Court proceedings in September 2022 but more importantly, that she has entered into an innovative PTSD program at BY Clinic. The mother completed the course in January with the consequence that the mother is observed to be making every effort for the child to spend time with the father should he be placed in her primary care.
The concern for Dr G is that the discussion in respect of the father may well trigger a PTSD episode. Dr G is now more confident that with further therapeutic assistance and support, the mother may well be able to respond to the child’s wishes to see his father. In the Psychiatric Report dated 8 February 2023, Dr G summarises the mother’s current circumstances as follows:
I am more confident now that [the mother] will respond to [the child]’s wishes to see his father. [The mother] has made progress in therapy with me and she has progressively become more able to manage discussion around contact visits of [the child] with his father without becoming distressed by these discussions. It is feasible that visits with his father from [the mother]’s home will be less traumatising for [the mother] now. In my professional opinion, with ongoing support [the mother] will be able to cope with [the child] spending time with his father should he live with her. [The mother] now understands that [the child] would effectively have two homes.
The prognosis for the mother, consequent upon her continued involvement with the BY Clinic Program, is set out in Dr G’s report dated 17 April 2023, being Annexure “A” to the mother’s affidavit filed 17 April 2023.
Dr G considers that the mother has gained significant benefit from the program and has put into practice some of the practical steps that enables her to understand her trauma and how it arose and to prevent, or at least minimise, the prospect of a PTSD adverse event occurring.
The mother has returned to the program to complete another stage to reinforce strategies taught previously and to prepare for the final stage which involves a one-on-one trauma specific therapy.
Dr G was not called to give evidence. I accept that he has had a long standing therapeutic involvement with the mother and that his support of her entry into the PTSD program is beneficial and with more time, it is likely to result in the mother being better able to cope with the child spending more time with the father than was initially proposed by her.
I accept that the mother is unlikely to present a risk to the child.
The evidence of Dr G is however, constrained by the submission expressed clearly by counsel, that it only applies if the child is placed in the primary care of the mother with the issue then being the extent to which the child would spend time with the father. The evidence does not assist in a consideration of whether the mother would be able to spend time with the child if he remains in the primary care of the father.
Dr AY
Dr AY is the coordinator of the BY Clinic program. By report dated 17 April 2023 being annexure “B” to the mother’s affidavit filed 17 April 2023, Dr AY confirms that the mother enrolled in the next stage of the inpatient PTSD program in 2022 and has recently engaged in a program which commenced in early 2023. The import of Dr AY’s observation is that the mother was highly motivated to overcome her PTSD.
Whilst I have confidence in the opinion and evidence of Dr AY concerning the mother’s engagement in the PTSD program, I am not assisted by the views expressed in respect of the father and the possible adverse impact upon the child. Dr AY has not observed the child and knows nothing more of his circumstances other than from the history provided by the mother.
In relation to the specific question as to whether, and to what extent, the mother would be able to support the child spending time with the father, the following extract from the report dated 17 April 2023 is of assistance:-
Yes. It is likely to always be a source of fear and anxiety for [the mother] to have her son have visitation with someone who has hurt her in the past. However, with the passage of time, physical separation and intensive multimodal trauma therapy, she has developed a number of skills to help her manage her anxiety and panic response in the instances where [the child] engages with his father. In contrast, to the situation where [the child] lives with his father for the majority of the time, [the mother]’s trauma response is larger, more severe, and proportionate to the level of risk. Extended periods of ‘high risk’ results in the autonomic nervous system being ‘switched on’ for longer periods of time, and makes the strategies used to calm the nervous system less effective. With effective trauma treatment, the body is trained to recognise it is safe, and no longer at risk. Incidences of high stress are tolerated better for a shorter period of time. However, if instances of high stress are continued for extended periods of time, it becomes harder and harder, if not impossible, to switch off the acute stress response.
Consistent with the limitations placed on the evidence of Dr G, Dr AY confirms that whilst there can be some confidence that the mother could cope with the child spending time with the father beyond the four hours per month as initially proposed by her, it would be a bridge too far for the mother to be able to spend time with the child if he remained in the father’s primary care.
Mr M
Mr M had previously sworn an affidavit on 13 July 2020 for use in earlier proceedings.
Mr M has significant background and experience having been a Family Consultant combining middle level management, a combination of administrative supervision of family consultants and also clinical supervision. He held that role for 21 years. Mr M considers that he has been involved personally in about 15 or 20 cases that involved a reunification of a child who was adverse to spending time with a parent.
Mr M has had a relatively long involvement with the matter having met the child on two or three occasions when he was very young and then again in and around the events that occurred in 2021.
An earlier attachment assessment indicated the relationship between the child and the mother was secure. Mr M summarised his observations by noting that the child appeared to enjoy the mother’s company, there was good eye contact and together they were physically affectionate.
The extent of Mr M’s involvement in the matter is highlighted by his evidence that the mother had attended on him on almost 100 occasions from early 2015.
The tragedy of the child’s circumstances is highlighted by the following evidence:[6]
[Counsel]:And I think it was in September of 2017, and then effected a change of residence?
[Mr M]:---Yes, indeed. My most direct knowledge of that was listening to a tape provided by your client of her – of an interaction that occurred when they tried to make some connection between – having removed him from the school, they then attempted – the department – to make some connection between [the mother] and [the child], and there was a tape of that which I understand your client was responsible for, and he was – I have the transcript of that, as well. He was, at that stage, a distressed and confused little boy, traumatised, certainly. Tears, almost constantly. Questioning his mother then about abandonment, basically. Why did you leave me, why did you let this happen, which is what I would gather. He’s not saying that anymore, but he was certainly saying that at the time and it doesn’t surprise me at all given that irrespective of what issues there were with parenting capacity, there were none to the best of my knowledge that would have – that would make sense of that act.
[6] Transcript 15 September 2022, p.5, line 22.
Mr M was asked to consider his role in assisting the transition of the child to the mother’s primary care. It is a fair assessment that Mr M considered that the process was rushed and that it was going to be very difficult but that he considered he was obliged to do what he could by reason of the Court Order.
It is not surprising that Mr M considered that the process was too hurried, that the child was unlikely to be able to process what was happening and that a matter of only a few days was insufficient to provide the necessary therapeutic foundation for the child.
Mr M was asked to consider what would be an appropriate process to be undertaken in order to effect a transition of the child from the father to the mother. Mr M considered that at the very least, two months would be required and even with the best of intentions, the process would not be without its problems. It would require a uniformly supportive approach by all of those who are currently engaged with the child and even if that were to occur, the child may still question what would happen to his relationship with his father, his stepmother and BD.
Mr M did not think that he could provide further assistance given his involvement with the child and moreover, it would be difficult to find another expert or therapist who could undertake and provide the necessary therapeutic support for the child.
I accept the evidence of Mr M to be reliable.
PARENTING CONSIDERATIONS
Following the remarks of Finn J in Blanding & Blanding [2016] FamCAFC 21, where her Honour considered the Full Court decision in Beckham & Desprez [2015] FamCAFC 247, the Court now should focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
In Cotton & Cotton (1983) FLC 91-330, Nygh J considered that while it was both generally desirable for a child to maintain a meaningful relationship with both parents, there must be a possibility first of the existence of a meaningful relationship. His Honour said at 78,252:-
…that desirability only operates where 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’s 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 for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. …
In Sigley & Evor [2011] FamCAFC 22, the Court at [136] cited the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at 83,513:-
The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.
As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “…a chance of a meaningful relationship…which is beneficial to the child” was likely to be to the child’s advantage and that the absence of such a relationship had “the potential to cause [the child] harm in the long term”.
The child has lived with the father for almost six years. The only contact that has occurred between the child and the mother was as a result of the assessment process undertaken by Professor TT and the contact between the child and the maternal grandmother at the failed handover on 1 January 2021.
It is difficult to assess the relationship between the mother and the child but demonstrably there is no current physical relationship that exists and it is apparent from the report of the Psychiatrist, that any emotional relationship and attachment is at best, tenuous. There is a tension between the potential risk to the child of him remaining in his father’s home given that the father has been found guilty of significant and entrenched family violence perpetrated against the mother whilst they were together and the overwhelming distress and potentially damaging sequelae that the child may experience if he is removed from the father’s primary care to the mother’s care particularly given that at present, the mother is not able to contemplate the child spending anything other than limited time with the father and his family.
PRINCIPLES RELATING TO PARENTING
The child currently resides with the father and spends no time with the mother.
The evidence supports a finding that the father engaged in overt family violence leading up to the parties’ separation in 2014.
Each of the parties seek sole parental responsibility for the child. As discussed, the mother is not able, by reason of her unresolved PTSD, to contemplate either the child spending significant and substantial time with the father if living with her or that she could spend any time with the child if he remains in the father’s primary care.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests are to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I am cognisant of the primary and additional considerations in respect of the matters as set out in ss 60CC(2) and (3) of the Act.
I note the directions contained in s 60CC(2)(A) of the Act, and I have regard to the allegation of the mother that the father has engaged in serious family violence corroborated by his plea of guilty to multiple separate counts of assault.
I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by the parties;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child's best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely 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;
(5)Have regard to the additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced in respect of the particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised, then this must be the subject of delineation and comment.
Is the child at risk?
In M v M (1988) 166 CLR 69 (“M v M”), the Full Court gave consideration to the treatment of allegations of sexual abuse. The Court considered at [19], that treating an allegation of sexual abuse as the paramount consideration was an error, identifying that in all proceedings under part VII of the Act, the Court is enjoined to “…regard the welfare of the child as the paramount consideration” (s.60D)….”
In Vasser & Taylor-Black (2007) FLC 93-329, the Full Court considered that the High Court decision in M v M (supra) had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind.
The decision of the Full Court in N & S & the Separate Representative (1996) FLC 92-655 (“N & S & the Separate Representative”), assists at 82,713-4, where Fogarty J said:-
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In Harridge & Harridge [2010] FamCA 445, Murphy J, referred to N & S & the Separate Representative (supra), and proceeded to adopt the following list of inquiries with respect to risk assessment and analysis:-
73. ….
Risk assessment in any situation involves, in essence, the asking of the following questions:
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
(B. Mahendra ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569)
I adopt that passage as helpful in cases such as these in analysing the asserted risk.
Whilst the father did not support the full suite of allegations of family violence as made by the mother, he did plead guilty to multiple counts of assault. I found the evidence of the father to be unreliable and give no weight to his assertion that far from the mother being fearful of him, he remains in fear of the mother.
The contention on behalf of the mother is that it would be egregious for the child to remain living in the care of the father in circumstances where the DCJ did not believe the mother’s allegations and interpreted her conduct as being abusive. The benefit that would enure to the child of having a relationship with his father. The more accurate position is that the father’s violence should have resulted in the child being in the mother’s primary care.
Family violence must not be ignored. In Pascoe & O’Keefe and Ors [2018] FamCAFC 243, the Full Court supported the position that family violence must be given strong weight:-
46.… In cross-examination, the single expert discussed the deleterious psychological consequences for children of their exposure to family violence, which evidence was hardly a revelation. This Court has long-recognised its destructive effect on the immediate victim and those who are exposed to the violence including, most relevantly in this case, the child.
47.The fact a child may not currently manifest symptoms of exposure to family violence does not mean the exposure has not already been harmful or that more exposure in the future will not compound the harm. The mother’s false contrary assumption underpinned one ground of appeal, which must fail (Ground 8). Her submission that the risk of harm to the child is reduced because neither B nor C exhibit any tangible ill-effects of their past exposure to the second respondent’s violence is therefore rejected as fallacious.
(Citations omitted)
Meaningful relationship
Superannuation
DESCRIPTION OWNERSHIP FATHER’S VALUE MOTHER’S VALUE Super Fund 1 Father $101,047 $101,000 TOTAL $101,047 $101,000 Motor Vehicle 2
The parties are not agreed as to the value of the mother’s motor vehicle. The only evidence before the Court is a Redbook valuation which provides a range of between $500 and $3,000.
The valuation is dependent upon whether the vehicle is being sold privately or as a trade in. If a private sale valuation is contemplated, then the value is between $2,000 and $3,000. As a trade in, the vehicle has a value between $300 and $1,300. I propose to adopt the mid-point and bring the motor vehicle to account at the sum of $1,350.
The father’s interest in a unit in Country BF
There has been significant contention between the parties as to the status, if any, of the husband’s interest in an apartment in Country BF. For the purposes of previous proceedings, whilst treated as a financial resource, a value was attributed in the sum of $200,000.
The father relies upon a contract of sale which he says confirms that the unit is owned by his mother but that acting as her agent, he effected a sale to a third party in or about early 2021. Exhibit “11” annexes the contract. The original contract was in the Country BF language however, the exhibit is an English translation. It is not straight forward and the terms and conditions of sale are difficult to understand.
It seems that the property was sold for about $106,500 AUD. The terms of the contract reveal that the purchase price was to be paid in cash but that the father would transfer one half of the purchase price to his brother.
The father’s evidence differs from the contract in that he says he gave his brother $77,000 AUD and retained $33,000 AUD. The evidence is unsatisfactory. The father was aware from previous proceedings that the issue was a matter of contention. Whilst I accept that the total value of the unit at the time of sale was about $106,000 AUD I am not able to reconcile how the proceeds of sale were disbursed. The contract appears to confirm that the apartment was held by the father’s mother with the intention that upon sale, the proceeds would be divided between the father and his brother.
In the absence of evidence that enables a better determination, I propose to attribute the sum of $53,000 as retained by the father following the sale of the unit in Country BF.
ADJUSTED PROPERTY POOL
I find the adjusted assets of the parties to be as follows:-
Assets
DESCRIPTION OWNERSHIP VALUE B Street, Suburb C, NSW Father $1,450,000 Motor Vehicle 2 Mother $1,350 Proceeds of sale of vacant land in Country BF Father $53,000 Motor Vehicle 1 Father $2,500 TOTAL 1,506,850 Liabilities
DESCRIPTION OWNERSHIP VALUE CBA mortgage Mother $432,954 (as at 30 June 2022) Council and water rates Mother $5,808 TOTAL $438,762 Superannuation
DESCRIPTION OWNERSHIP VALUE Super Fund 1 Father $101,047 TOTAL $101,047
Each of the parties have significant additional personal liabilities. As to the mother, she has a loan to CA Finance for legal fees in the sum of $173,775 and a loan to her mother in the sum of $440,000. As to the father, he has a loan to Ms S of $25,000 and for legal fees in the sum of $375,649. The loan from the maternal grandmother to the mother in the sum of $440,000 is not proven and has been considered as a contribution in favour of the mother.
METHODOLOGY
The net non-superannuation pool of property is in the sum of $1,068,088. Only the father holds superannuation in the sum of $101,047 as at 30 June 2022.
The mother does not seek an order in respect of the father’s superannuation entitlement therefore it is to be treated as a financial resource for the father.
CONTRIBUTIONS OF THE PARTIES
The Court is required to make orders that are just and equitable when adjusting the interests of the parties in the division of property.
I am required to consider the direct and indirect financial contributions made by the parties to the acquisition, conservation or improvement of property (s 90SM(4)(a) of the Act), the contributions other than a financial contribution made directly or indirectly by the parties to the acquisition, conservation or improvement of the property (s 90SM(4)(b) of the Act) and the contribution made by the parties to the welfare of the family in their capacity as parent and homemaker (s 90SM(4)(c) of the Act).
The parties commenced cohabitation in 2012 and separated in 2016. There is one child of the relationship who currently lives in the full time care of the father.
The mother does not currently engage in employment. It is likely that she will suffer the significant consequences of her diagnosed psychological disorder of PTSD. Whilst the mother is actively engaged in therapeutic remediation, her future prognosis is at best, uncertain.
The father has re-partnered with Ms S and lives with her in her home. The father’s current occupation is that of a self-employed tradesperson. It is likely that he will continue in this occupation even though the father refers to some significant health issues which may adversely impact upon him.
In considering the evaluation of contributions of the parties, I am careful not to assume a starting point that presupposes the equality of contributions.
In Mallet v Mallet (1984) 156 CLR 605, Wilson J said at 79,126 as follows:-
… . However, equality will be the measure, other things being equal, only if the quality of the respective contributions of husband and wife, each judged by reference to their own sphere, are equal. The quality of the contribution made by a wife as homemaker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in every way or she may fulfil little more than the minimum requirements. Similarly, the contribution of the breadwinner may vary enormously and deserves to be evaluated in comparison with that of the other party. It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each. That will be appropriate only to the extent that the respective contributions of the parties are each made to an equivalent degree. …
In Norbis v Norbis (1986) 161 CLR 513, Mason & Deane JJ said as follows:-
16.Although it is natural to assess financial contributions under s.79(4)(a) by reference to individual assets, it is also natural to assess the contribution of a spouse as homemaker and parent either by reference to the whole of the parties’ property or to some part of that property. For ease of comparison and calculation it will be convenient in assessing the overall contributions of the parties at some stage to place the two types of contribution on the same basis, i.e. on a global or, alternatively, on an “asset-by-asset” basis. …
I am obliged to consider the contributions of the parties not at the date of separation but rather as at the date of trial. Circumstances may arise where pre-separation contributions will be treated differently to those made either prior to separation or after separation. It is not an arithmetical exercise.
In the decision of Jabour & Jabour (2019) FLC 93-898, the Full Court did not favour an approach which attempted to quarantine property contributions but rather considered that the contributions of each of the parties, especially in circumstances where there was a long period of cohabitation, should be a single exercise and not the subject of separate and individual assessment of each contribution.
In JEL & DDF (2001) FLC 93-075 at 88,334, the Full Court summarised the approach which should be taken when considering and evaluating the contribution made by the parties:-
152.It seems to us that the following general principles can be said to arise from the cases referred to in these reasons, namely:
(a) There is no presumption of equality of contribution or “partnership”.
(b)There is a requirement to undertake an evaluation of the respective contributions of the husband and the wife.
(c)Although in many cases the direct financial contribution of one party will equal the indirect contribution of the other as homemaker and parent, that is not necessarily so in every case.
(d)In qualitatively evaluating the roles performed by marriage partners, there may arise special factors attaching to the performance of the particular role of one of them.
(e)The Court will recognise any such special factors as taking the contribution outside the “normal range” in the sense that the phrase was understood by the Full Court in Maclay (supra).
(f)The determination of an issue of whether or not a “special” or “extra” contribution is made by a party to a marriage is not necessarily dependent upon the size of the asset pool or the “financial product”. When considering such an issue, care must be taken to recognise and distinguish a “windfall” gain.
(g)Whilst decisions in previous cases where special factors were found to exist may provide some guidance to judges at first instance, they are not prescriptive, except to the extent that they purport to lay down general principles.
(h)It is ultimately the exercise of the trial Judge’s own discretion on the particular facts of the case that will regulate the outcome.
(i)In the exercise of that discretion, the trial Judge must be satisfied that the actual orders are just and equitable, and not just the underlying percentage division.
The relationship between the parties was about four year’s duration. At the time of the commencement of cohabitation, the mother owned the Suburb CC property which was sold in late 2012 resulting in net proceeds of $376,493.
There has been some issue raised as to the extent of the mother’s outstanding chamber fees liability however, any residual liability at the commencement of cohabitation did not impact upon the father.
At the commencement of cohabitation, the father sold a modest share portfolio netting about $23,000.
It is not controversial that the father made no direct financial contribution to the purchase of the Suburb C property. The mother provided about $313,891 towards the purchase and was assisted by an initial deposit of $37,500 from the maternal grandmother.
The father contends that he assisted the mother in undertaking seven weeks of work on the Suburb CC property in preparation for its sale.
It is not significantly disputed that the father did some work however the extent of the renovations are not agreed.
It is likely that the father replaced and/or installed a new kitchen, a vanity basin and the replacement of flooring and skirting boards.
The father does not suggest that he paid for any of the improvements but it is likely that he and a friend undertook the work required. The mother would not have been able to undertake the renovations carried out without the father’s assistance and contact with various trade people.
The father did however reside with the mother without making other financial contribution. He did not pay rent.
The father contends that his involvement, and with the assistance of his friends, provided a benefit to the mother in that their work would have enhanced the attractiveness, marketability and possibly value of the Suburb CC property upon its sale. No evidence was presented that would enable me to quantify whether the father’s contention is justified.
The parties are not agreed as to the extent of the work undertaken to renovate and improve the Suburb C property upon its purchase. The father argues that the renovation works carried out were extensive. It is likely that significant work was undertaken to the property but the dispute is the extent to which the work was carried out by the father, the mother or the parties working together.
The further difficulty is that no evidence has been presented which would assist in quantifying the extent to which the value of the Suburb C property was enhanced by the work undertaken.
I find that whilst work was undertaken upon the purchase of the property, it was very much a joint endeavour and in any event was only made possible by the significant injection of funds from the maternal grandmother.
There is no challenge to the veracity of the evidence of the maternal grandmother nor is it suggested that she was not generous in her financial assistance to the mother and therefore to the parties.
Without the financial assistance of the maternal grandmother the mother would not have been able to effect the purchase of the Suburb C property.
Given the inability of the mother to return to paid employment arising from her PTSD, it has been the maternal grandmother that has maintained the mortgage on the Suburb C property and has paid other liabilities.
The mother accepts that the father came into the relationship with a share portfolio to the sum of $23,890. The father contends that those shares were sold and the proceeds used to purchase materials for the renovation of the Suburb CC property. The father concedes that the maternal grandmother has advanced funds to the mother of about $440,000. There is a further concession by the father that whilst not to be treated as a loan, the money provided by the maternal grandmother should be considered as a contribution made for or on behalf of the mother. (see Gosper & Gosper (1987) FLC 91-818).
The mother did contend that monies received from the maternal grandmother are to be treated as loans however there is no evidence of any ability for the money provided by the maternal grandmother to be repaid notwithstanding that the provision of financial support to the mother has resulted in financial detriment to the maternal grandmother by the significant increase in the mortgage over her property which has been defrayed by the property being rented.
Given the age of the child at the time of separation, the evidence that supports a finding that the majority of the parenting, primary care and home maker contribution was provided by the mother. Thereafter, the child remained in the mother’s primary care until his removal to the father’s care in October 2017.
I accept that the father paid Child Support however, that is not to be considered as a contribution but rather a discharge of his legal obligation to pay Child Support as assessed. It is not suggested that the father made other additional payments to assist the mother in the support of the child.
The mother also seeks to bring to account the father’s family violence during the course of the relationship.
Even though the father concedes that he pleaded guilty to multiple charges of assault he contends that during the course of the relationship but in particular leading up to the date of separation, the mother perpetrated acts of family violence by throwing plates at him, threatening him with a kitchen knife and damaging his laptop computer.
The mother refers to the evidence given in previous proceedings before Justice Henderson to support her assertion that the father perpetrated significant and ongoing family violence during the period of cohabitation.
Whilst the mother was not available for cross examination, I have found that the mother’s evidence as to the conduct of the parties during their relationship is to be preferred to that of the father. His evidence was evasive and whilst he pleaded guilty to charges of assault, his evidence had a flavour of attempting to minimise the significance of the convictions.
The mother contends that the father’s family violence made her contributions more onerous and therefore should be considered as a relevant factor in assessing the contributions of the parties.
I consider that whilst the father’s violent conduct towards the mother may well have relevance in the assessment of contributions of the parties, it must be treated holistically rather than by a separate assessment. (see Jabour & Jabour (2019) FLC 93-898 and Dickons & Dickons [2012] 50 Fam LR 244).
The issue is the extent and impact of the family violence and as was said by the Full Court in S & S [2003] FamCA 905 at [47] as follows:-
An insufficiency of evidence in the present case leaves the Court with a limited ability to deal with allegations in the context of section 79 proceedings. As Kennon has established, it is necessary to provide evidence to establish:
•The incidence of domestic violence;
•The effect of domestic violence; and
•Evidence to enable the court to quantify the effect of that violence upon the parties capacity to "contribute" as defined by section 79(4).
There is little doubt that the father perpetrated significant and unrelenting family violence throughout the relatively short period of cohabitation. To the extent that the father pleaded guilty to serious counts of assault, his admission should be seen as emblematic of his continuing adverse conduct towards the mother during the period of their relationship.
A consideration of text messages and other evidence supports the mother’s contention that she was the victim of entrenched violence by the father.
The consequences of the father’s conduct are manifest. I accept the evidence of the mother’s treating health professionals that as a result of the father’s conduct, she suffered PTSD which has had a debilitating effect on the mother’s day to day function, ability to engage in employment and of more tragic consequence, her inability to maintain a relationship with the child.
The adverse impact upon the mother was made more egregious by the Child Protection authority disbelieving her allegations which ultimately resulted in the child being placed in the father’s care.
The significance and weight to be given to the mother’s claim in this regard is however constrained by the shortness of the relationship.
It is also a relevant consideration that the value of the property has increased from about $750,000 from the time of purchase to the agreed figure of $1,450,000 as at the date of trial. Whilst the father makes the point that the mortgage has not decreased, the property has nonetheless been financially maintained by the mother with the assistance of the maternal grandmother and to that extent whilst the mortgage has not decreased, the value of the property has doubled.
I also acknowledge that whilst the circumstances by which the child comes to be in the father’s care are tragic, nonetheless he has financially maintained the child since October 2017 without financial assistance from the mother.
Bringing to account the differing contributions of each of the parties I consider that there should be an apportionment of 95 per cent in favour of the mother and 5 per cent in favour of the father.
SECTION 90SF FACTORS
The father is to retain the primary care of the child who is now aged 10 years. The father is currently a self-employed tradesperson and gains considerable financial assistance and benefit from residing with Ms S in her freehold home.
There is some uncertainty as to the extent to which the mother will resume a relationship with the child but there is no evidence which enables me to find that the mother will be able to return to paid employment and make a financial contribution to the ongoing care of the child.
As considered, the father is able to maintain modest employment however as a result of his conduct, the mother’s diagnosis of PTSD is likely to adversely impact her ability for employment into the foreseeable future.
The father has an obligation to contribute to his child with Ms S.
The circumstances of each of the parties is made more uncertain by the substantial and outstanding legal fees.
The mother would wish to retain the Suburb C property but if she is not financially able to do so then it will be sold.
The father is 45 years of age and whilst there is a period of about 15 years before the father would satisfy a condition of release, he does have a modest superannuation entitlement which is not the subject of claim by the mother.
There is also the uncertainty of the father’s residual interest in the proceeds of sale of the apartment in Country BF.
No evidence was presented as to the financial needs of the child and the extent to which the father will be responsible in that regard without assistance by way of Child Support or other payment by the mother.
I assess the s 90SF factors to result in a 5 per cent adjustment in favour of the father.
Accordingly, the property of the parties are to be divided as to 90/10 in favour of the mother.
CONCLUSION
The net property available for division is $1,068,088. At 10 per cent of the net pool the father is entitled to the sum of $106,808. However, he retains the following assets:-
ASSET VALUE Proceeds of sale of land in Country BF $53,000 Motor Vehicle 1 $2,500 TOTAL $55,500
The mother is to pay to the father a settlement sum of $51,308.
It is reasonable that she have 60 days to pay the settlement sum to the trust account of the father’s solicitor.
The mother will refinance the mortgage and pay out the outstanding council and water rates to the exoneration of the husband. If she is unable to refinance, the mother concedes the Suburb C property is to be sold.
I make orders as appear at the commencement of these reasons.
I certify that the preceding three hundred and twenty-seven (327) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 18 May 2023
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