TARELLI & LANGLEY AND ANOR

[2018] FamCA 522

FAMILY COURT OF AUSTRALIA

TARELLI & LANGLEY AND ANOR [2018] FamCA 522

FAMILY LAW – CHILD ABUSE – Welfare of child – Where the Single Expert identified serious risks to the development of the child due to the mother’s personality and mental health difficulties – Where the mother is capable of meeting the child’s basic, intellectual and developmental needs but there is instability in her capacity to meet the child’s emotional needs – Where the father has personality dysfunction but is open to learning and wanting the child to have the best of his mother – Where the Single Expert attributed the child’s behaviour to an emotionally and behaviourally dysregulated environment during his infancy – Concluded there is a need to protect the child from physical or psychological harm.
FAMILY LAW – CHILDREN – Parental Responsibility – Where FACS intervened – Where the mother became increasingly unwilling to cooperate with FACS making that relationship unworkable for the benefit of the child – Ordered the father and the Minister shall share parental responsibility for the child for 12 months, then for a further 12 months the Minister and the father shall share parental responsibility only for time and communication between the mother and child and thereafter the father shall have sole parental responsibility.
FAMILY LAW – CHILDREN – With whom a child lives – Where approximately 6 weeks prior to final hearing FACS removed the child from the mother’s care placing him in the care of the father – Where the child is happy and settled in the care of the father and his partner – Where the mother chose not to read the report of the Single expert thus depriving herself of a pathway to the child remaining in her care – Concluded the mother lost the ability to put the needs of the child before her own – Ordered the child shall live with the father.
FAMILY LAW – CHILDREN – With whom a child spends time – Where the Single Expert states that unsupervised time between the mother and the child would be harmful – Ordered the child shall spend time with the mother for a period of 12 months as agreed between the Minister’s delegated officers and the father in consultation with the mother and thereafter on no less than one occasion per month for up to four hours supervised by a supervision service.
FAMILY LAW – CHILDREN – Family Violence – Where if the mother had been sexually assaulted by the father as alleged the Court cannot accept she would have travelled overseas with him, stayed in his family home overseas or considered reconciliation – Concluded the evidence does not support the mother’s allegations against the father of alleged criminal conduct and sexual assaults on her amounting to rape.
FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where the mother was in a vastly superior financial position to the father and made the overwhelming financial contribution to matrimonial assets – Where the principle asset of the parties is the former matrimonial home – Where the father has minimal assets – Where the mother is a qualified professional – Where the mother does not presently pay child support – Concluded that recognition that the child will grow up in the care of his father and also of the disparity of income earning capacity between the parties must be made – Concluded an adjustment is just and equitable – Ordered that the mother pay to the father the sum of $257,912 and for the father transfer to the mother all his rights in the former matrimonial home – Ordered that the application for departure from the current Child Support Assessment is dismissed.

Family Law Act 1975 (Cth), ss 60CC, 64B, 90SM, 90SF

APPLICANT: Mr Tarelli

RESPONDENT:	Ms Langley
INTERVENER:	The Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

FILE NUMBER: PAC 4311 of 2014

DATE DELIVERED: 27 June 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Parramatta

JUDGMENT OF: Cleary J

HEARING DATE: 23-27 October; and 13 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Shaw

SOLICITOR FOR THE APPLICANT: B David & Associates

COUNSEL FOR THE RESPONDENT: Mr Priestley SC

SOLICITOR FOR THE RESPONDENT:	Gordon & Barry Lawyers Pty Ltd
COUNSEL FOR THE INTERVENER:	Ms Barnett
SOLICITOR FOR THE INTERVENER:	Crown Solicitors Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Messner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

Orders

1. That all prior parenting orders made in the Federal Circuit Court and in this Court in relation to D born … 2013 (“the child”) are discharged.

Parental Responsibility

1. The father and the Minister shall share parental responsibility for the child for a period of 12 months from the date of these orders.

2. Thereafter, the father shall have parental responsibility for the child in respect to all matters other than time and communication between the child and the mother, for which specific issue parental responsibility shall be shared between the Minister and the father for a further period of 12 months.

3. Thereafter parental responsibility for arrangements for time and communication between the child and the mother is allocated to the father.

4. Until the expiry of Order 2 the Minister shall advise the mother in writing (which includes electronic communication) of decisions taken in relation to long term issues involving the welfare of the child including the school in which he is enrolled, specialist medical treatment and religious instruction.

5. After the expiry of Order 2 the father shall advise the mother in writing (which includes electronic communication) of decisions taken by him in relation to long term issues involving the welfare of the child including the school in which he is enrolled, specialist medical treatment and religious instruction.

Residence

1. The child shall live with the father.

Time

1. The child shall spend time with the mother as follows:

   (a)For a period of twelve (12) months supervised time with the child as agreed between the Minister’s delegated officers (“the delegates”) and the father in consultation by the delegates with the mother.

   (b)Thereafter, supervised by a supervision service:

   i.On not less than one occasion per calendar month and failing agreement otherwise the first Saturday of each calendar month, for a period of up to four hours supervised by a supervision service with all associated costs to be shared equally between the parties.

   (c)At such other and additional times as agreed to in writing between the parties.

Release of Documents

1. In the event that the mother consults or continues to consult a psychologist she has leave to provide to that therapist a copy of the following documents:

   (a)       Report of Dr H dated 27 June 2016;

   (b)       These orders and reasons for judgment.

2. The father has leave to provide to any psychologist whom he consults a copy of:

   (a)       The report of Dr H dated 27 June 2016;

   (b)       These orders and reasons for judgment.

3. The mother shall provide to the father within 7 days of the date of these orders the address (which may be an electronic address) which she nominates for receipt of information pursuant to Order 6 herein.

4. The parties shall keep each other advised of current residential address, email and telephone number.

Specific Issues

1. The father shall authorise the school which the child attends to provide to the mother, at her cost if any, copies of the child’s school reports, newsletters and order forms for school photographs.

2. The mother is restrained from attending the school at which the child is enrolled unless by way of prior written agreement with the Minister’s delegated officer and with the father after he assumes sole parental responsibility for the child.

3. The appointment of the Independent Children’s Lawyer is discharged.

Property

1. A Declaration is made that a de facto relationship existed between the parties between May 2012 and March 2014.

2. There is one child of the de facto relationship namely the child D born … 2013.

3. That the respondent mother pay to the husband the sum of $257,912 within 60 days of the date of these orders and in default that the property at B Street, Suburb C, being the land in Certificate of Title folio identifier …, be sold and the net proceeds of sale divided 77.3 per cent to the respondent mother and 22.7 per cent to the applicant father.

4. The de facto husband transfer to the wife all his right, title and interest in the property at Suburb C.

5. Each party otherwise retain the personal property, superannuation interests and other assets currently in his and her possession.

6. That the application of the respondent is dismissed.

7. That the application for departure from the current Child Support Assessment is dismissed.

8. All other outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tarelli & Langley and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: PAC3411/2014

Mr Tarelli

Applicant

And

Ms Langley

Respondent

And

The Department of Family and Community Services

Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for both parenting orders and adjustment of interests in de facto property.

2. The parties lived together from approximately mid-2012 until about March 2014; a period of a little less than two years.

3. The parenting orders relate to the one child of the parties’ relationship, the child aged four years and nine months at date of trial.

4. Since 8 September 2017, by way of interim order made in this Court, the Secretary of the Department of Family and Community Services NSW (“FACS”) has had sole parental responsibility for the child who has lived, as directed by FACS, with the father.

5. Each of the parents seeks an order for sole parental responsibility and residence for the child and such orders for time and communication with the other parent as the Court considers appropriate.

6. The mother spends time with the child as directed by FACS and is otherwise restrained from approaching him. Supervised time between the child and the mother had been taking place since that change of residence.

7. In respect of property a declaration is sought by the father pursuant to s 90RD Family Law Act 1975 (Cth) that the relationship falls within the definition of a de facto relationship. Both parties seek orders for adjustment of financial interests.

8. The trial was allocated five days in October 2017 but extended to a sixth day in November 2017 and subsequent written submissions.

The Parties

The Applicant Father

1. The applicant Mr Tarelli is the father of the child.

2. I will refer to him as “the father” in the context of both parenting and de facto property adjustment.

3. The father has just turned 40. He was born in Europe and his family of origin live there still. He completed two degrees in Europe.

4. In 2003, aged about 25 years, the father immigrated to Australia. He has remained living here since.

5. Within two or three years of arrival in Australia the father obtained work as a supervisor for a company. He worked there for ten years. He developed Carpal Tunnel Syndrome [explained by Dr H as “nerve entrapment syndrome in the wrist”[1]] and was off work receiving workers compensation payments. He had surgery twice.

   [1] Single Expert Report dated 27/06/2016, par 58

6. During this time off work the business of his employer closed down.

7. Over the past one to two years the father has been developing a business. He had found it hard to find employment and turned to self-employment.

8. For the past three years the father has been in a romantic relationship with his current partner, Ms S. The father has been living with Ms S in her property at Suburb E, a south western suburb of Sydney, for about 18 months.

9. The father had the assistance during the trial of an interpreter. His spoken English is heavily accented but he was reasonably easy to understand. For more complex words and concepts the father turned to the interpreter for assistance. The interpreter was present throughout the six days of trial; first interpreting in the witness box and later sitting beside the father quietly interpreting as and when he required her help.

The Respondent mother

1. The respondent Ms Langley is the mother of the child.

2. I will refer to her as “the mother” both in relation to parenting and the de facto property dispute.

3. The mother was 43 at date of trial. She was born in Australia. Her parents met in Australia. The maternal grandmother had emigrated from Europe as an 18 year old and met the maternal grandfather in Australia. He had a son from a prior marriage.

4. The mother was the only child of her parents’ marriage. She described to the Single Expert “a difficult childhood.”  Her father was “an alcoholic”.[2]

   [2] Single Expert Report dated 27/06/2016, par 251

5. In 1996 when the mother was 18 her father stabbed her mother. Police were called. The maternal grandmother declined to give evidence. Based on what the mother told him and had in the past told her own therapists (Ms L and Ms BB)[3] the Single Expert concluded as follows:[4]

   … that the mother’s PTSD symptoms began to emerge during her childhood, were present in her adolescence and young adulthood, then have been exacerbated during the parental relationship and since that time.

   The “trauma” resulting in the mother’s PTSD was thus initially her experience of the maternal grandfather’s aggressive, violent and emotionally abusive behaviour towards herself and the maternal grandmother, then subsequently her experience of the aggressive, violent and emotionally abusive nature of the parental relationship.

   [3] Single Expert Report dated 27/06/2016, par 227

   [4] Single Expert Report dated 27/06/2016, pars 225 and 226

6. The mother has a number of degrees. She was at first a full time student, then completed her final degree while working.

7. The mother worked as a qualified professional. She started her professional career in late 2010 and enjoyed about 18 months of employment before ceasing due to her pregnancy in mid-2012. The mother has not engaged in paid employment since although she has retained her business offices and may resume her career.

Short History of Relevant Events

1. In early 2012 the parties met on an on-line dating site.

2. On the first occasion that they met in person in April 2012 the subject child was conceived. Within two months the father had moved in to live with the mother in her apartment in Suburb CC (the Suburb CC apartment), a northern beaches suburb of Sydney, which she owned through an inheritance from her late father.

3. As soon as she had learned of her pregnancy the mother reduced her work load.

4. Because the father was undertaking some maintenance/minor alterations in the Suburb CC apartment the mother moved out to live with her own mother.

The Suburb C property

1. In September 2012 the mother chose to purchase a property in Suburb C, a south eastern suburb of Sydney, for the parties to live in. She elected to put the title to the property in the sole name of the father. She does not allege that she was put under any pressure from the father to do so.

2. The mother was at all times through the relationship in a vastly superior financial position to the father. She was aware of the disparity and knew that the father could not have financed the purchase of a property alone.

3. The mother had prescription medication for her anxiety and depression which she ceased taking for a period of months due to her pregnancy. The relationship between the parties was fractious.

4. On 11 October 2012 at the request of the mother, the police escorted the father out of the home in Suburb CC which by then had been sold.

5. On 3 December 2012 there was a dual settlement of the sale of Suburb CC and the purchase of the Suburb C property.

6. In 2013 the subject child was born.

7. Each party was individually delighted with the birth of the child but the relationship between themselves was fragile.

8. The parties travelled for a holiday to Europe which was not particularly enjoyable for either of them.

9. The mother was again pregnant but this pregnancy did not proceed.

10. The mother began to consult a psychologist at the DD Group (Ms BB) and a psychologist (Ms L) through the antenatal clinic at the EE Hospital.

11. In November 2013 the mother contacted FACS. This was the first notification of a risk of serious harm to the child. The mother reported that she “could not do anything when he was crying”.

12. In December 2013 there was a strange and unpleasant incident where the mother placed one of the child’s dirty nappies in the father’s soup. She then threw the wet and dirty nappy across the table where the father was sitting.

13. In January 2014 the mother began engaging with Ms FF at AA Group a program supported by FACS. By that time the domestic relationship had sharply deteriorated.

Allegations of sexual assault

1. In her affidavit the mother sets out allegations of sexual assault on her by the father. The mother referred to herself as somebody who had been repeatedly raped by the father.[5] The evidence of the mother is that she told her psychologist, Ms BB on 9 January 2014 that the father was “being intimate with me in bed and I don’t want to have sex with him”. The mother sets out in some detail the episodes of alleged sexual assault where she asserts that the father initiated sexual intimacy which she rejected, the father ignoring her response.

   [5] Affidavit of the mother filed 20/10/2017, pars 94-99

2. The father denies any sexual assault whilst conceding a wish for the sexual relationship between the parties to have continued during the relationship.

3. On 21 January 2014 after such an alleged incident the mother said that she was able to turn her body away from the father, push him off her and run into the child’s room where she spent the night. On her own evidence there was no further attempt at sexual intimacy by the father. The next morning the father came into the child’s room where the mother was sleeping. The mother said to him “You raped me, get out”. The response of the father was to leave the room as requested. He later came back and there was an argument about whether his work boots had been left outside.

4. The mother said she felt traumatised by the father trying to have intercourse with her on four occasions in January 2014.[6]  The mother said she “did not report the rapes on me by [Mr Tarelli] to the police. I did consider going to the police at the time and on numerous occasions after that”.

   [6] Affidavit of the mother filed 20/10/2017, par 100 noting the reference to 2013 is incorrect and should be January 2014

5. It is apparent from the evidence that the father was unaware at the time that the mother regarded him as having sexually assaulted her nor that she had contemplated reporting his conduct to police.

6. On balance the incidents do not contain the elements of criminal assaults. It is probable that the physical presence of the father became distasteful to the mother and attempts at intimacy more so.

7. On about 8 February 2014 a matter of a week or two after the most recent incident complained of by the mother the parties travelled together to Europe to attend the funeral of the paternal grandfather. The mother said she understood that the father wanted the child to travel with him to Europe, that she was not willing to allow the child to be away from her, that she felt pity for the father who was grieving the loss of his father and so they all went together.

1. After the funeral there followed a strange episode in Europe where the parties and the child stayed with the mother’s aunt. The mother insisted on leaving the house in the middle of the night. The father complied although he did not wish to and thought it was dangerous to drive on icy roads in darkness.

2. The behaviour of the father is inconsistent with an overbearing and abusive man. The behaviour of the mother is somewhat irrational in that she would insist on leaving her relative’s home in the middle of a winter’s night. Her only explanation being that she needed more food and formula for the child of a particular kind.

3. The parties drove through the night and crossed the border. The parties argued, lost their way and the car swerved. The mother alleges that the father then went on to deliberately attempt to crash the car, having threatened to kill her and the child.

4. Further, that he threatened he would cut her body into pieces and bury it so that no one could find her. Strangely the mother said that she confronted the father immediately with having tried to kill her and the child and he apologised.

5. The only way to understand this incident is to assume that each party had an entirely separate reality to explain their version of events.

6. Subsequently the mother directed the father to sign a handwritten statement created by herself making various confessions and concessions about his behaviour.[7] The father complied.

   [7] Affidavit of the mother filed 20/10/2017, Annexure KL11

7. Again his willingness to sign such a document is inconsistent with his being overbearing and abusive.

8. On 20 February 2014 the mother was looking for that document and perhaps others. She picked up two kitchen knives and threatened to kill the father if he did not give her the documents. The father grabbed his keys and left the home in his underwear and ran to the local police station. The mother was arrested over this incident and an Apprehended Violence Order (“AVO”) was taken out by police for protection of the father.[8]

   [8] Affidavit of Ms HH filed 21/12/2016, Annexure AK-1, pages 6-14

9. There was a risk of serious harm report (“ROSH”) to FACS over the child who was asleep in the house during this episode.[9] Subsequently the risk assessment was reduced to moderate because the mother had agreed to engage with AA Group.

   [9] Affidavit of Ms HH filed 21/12/2016, Annexure AK-1, pages 2 of 5

10. The parties separated, the father having become concerned for his physical safety.

11. The mother was not so intent on separation. In her oral evidence she said that in May 2014 she was considering trying to reconcile with the father.

12. I conclude that the mother was in retrospect describing the alleged assaults and incidents of January 2014 in a much darker and more abusive light than was justified. The mother is an intelligent, capable person with a reasonable degree of experience in law, including criminal law. I cannot accept that if the mother had been sexually assaulted by the father that she would have travelled overseas with him and the child and stayed in his family home, nor that she would have considered reconciliation in May 2014.

13. In April 2014 there was another strange incident where the mother left the child with a man called Mr II, a friend of the father’s.[10] It appears to have been the case that the mother’s stance was that if the father wanted to see the child, as he said he did, she would leave the child with his friend for that to happen. There is a disturbing heartlessness in the way she went about it.

    [10] Affidavit of the mother filed 20/10/2017, par 155

14. On 19 April 2014 the police came to the mother’s home in regard to that incident with particular reference to the fact that the child had not been anticipated or willingly accepted by the father’s friend Mr II. The mother had simply made the decision to leave the child there, in his presence.

15. On 21 May 2014 an officer of FACS again came to the mother’s home in relation to risk of serious harm through the child being left alone in the mother’s home.

16. Between May and July 2014 the father travelled overseas for about seven weeks.

17. In September 2014 the father filed his Initiating Application. He sought an order that the child live with the mother and spend time with him from Friday to Sunday each week. He also sought declarations and adjusting orders in relation to property. Clearly, from the father’s perspective, the relationship had ended.

18. By December 2014 the mother was reluctant to allow the father to spend time with the child.

19. The father visited the former family home and in arriving without notice, frightened the maternal grandmother.[11] A provisional AVO against the father for the protection of the maternal grandmother was put in place.

    [11] Affidavit of the mother filed 20/10/2017, par 185

20. In February 2015 there was another odd incident. The maternal grandmother had been looking after the child and there was an arrangement between the mother and her mother that the she would be home about 2.00 pm. The mother says she arrived home at 2.00 pm but remained in the car outside the home speaking on her phone to an officer at AA Group for about 20 minutes. The mother said she assumed that her mother would have stayed with the child until she got home.

21. In fact, the father had earlier gone to the home and found the child there unsupervised. He went straight to the police station. In her affidavit[12] the mother says this:

    I accept that I should have been home at 2.00 pm and gone into the [Suburb C] property straight away. It was not safe for the child to be unattended.

    [12] Affidavit of the mother filed 20/10/2017, par 195

22. The mother was critical of the father for entering her home in her absence but nevertheless when she entered the house she found the child was gone, telephoned her own mother and then realised that the father must have come to collect him.

23. In March 2015 an order was made in the Federal Circuit Court, by consent, for the child to be placed on the Airport Watch List and for the parties to contact Sydney Contact Centre to arrange for supervised time between father and child.

24. In April 2015 the mother began consulting an experienced child and family psychologist who regularly prepares forensic reports for this Court and the Federal Circuit Court. His reports were annexed to her affidavit.

25. On 8 July 2015 the mother filed her Response document seeking sole parental responsibility for the child, residence and for the child to spend no time with the father. There was provision for receipt of gifts and cards and information only.

Orders in the Federal Circuit Court - 8 July 2015

1. Orders were made in the Federal Circuit Court on 8 July 2015 in respect to parenting and property. The matter was then transferred to this Court.

2. In summary orders were as follows:

   Leave for FACS to intervene;

   The child was to live with the mother subject to her allowing intervention of FACS in her home;

   There was supervised time for the father facilitated by FACS with restraints on the mother approaching during those periods of time;

   The mother to remain in occupation of family home provided she meet all outgoings and arrears of mortgage; if not, sale of the home.

3. That day after Court the mother telephoned her psychologist and attended on her GP who prescribed Valium.[13] The reaction of the mother to those orders is described by her as follows:

   My fear that [the child] might be harmed by his father or myself had impacted upon me, both psychologically and physically.

   [13] Affidavit of the mother filed 20/10/2017, par 210

4. On the day after the orders were made:

   I physically and psychologically shut down and found myself on the floor in a foetal position.

5. The mother went on to describe being unable to walk without holding onto the wall and experiencing disabling flash backs of events during the marriage. The mother rang the JJ Centre and a worker attended her home. An ambulance was called and the mother spent the remainder of the day until early evening in hospital. The child remained in the home with the maternal grandmother.

6. The state of the mother’s mental health continued to be poor. She also became physically ill with “flu/cold which developed into bronchitis”. The child, who also became sick, missed the first visit.

7. On the first occasion that the child was transported for time with his father [25 July 2015] the mother said she smiled as she put him into the FACS worker’s car but immediately afterwards “I had a panic attack (hyperventilating, flashbacks and nausea) and broke down again in a foetal position in the lounge room).”

8. Thereafter the mother was extremely fearful about time between the father and child taking place anywhere except at the library. On her own evidence her levels of stress and anxiety rose at the suggestion of supervised time in the park.

9. The consequences for the child were detrimental immediately. He was, unsurprisingly, hard to contain in the library and more seriously he was affected by his mother’s state. The mother describes him holding onto her legs and screaming when she took him to his child care place which he had previously enjoyed.

10. In September 2015 the visits ceased when the father travelled overseas and then had surgery on his hand.

11. The mother began to feel much better herself and describes the child returning to being his “normal, independent and confident self.”[14]

    [14] Affidavit of the mother filed 20/10/2017, pars 236-238

12. I conclude that the mother felt confirmed, by these positive changes in herself and the child, in her belief that the visits for the child were harmful and destructive and that the child would be better off not seeing his father at all.

13. Later in 2015, when FACS began to raise with her arrangements for the visits to resume, the mother describes as becoming seriously unwell immediately:

    My anxiety returned and I stared hyperventilating, experiencing palpitations, flashbacks and disassociation, my vigilance was again heightened and I felt paralysed with fear.[15]

    [15] Affidavit of the mother filed 20/10/2017, par 241

14. I further conclude that the mother did not attribute the cause of her ill health to anything other than the father’s conduct towards her.

15. The mother began to avoid communication with FACS knowing it would lead to discussion of time for the child with the father.

16. On 11 December 2015 the matter was back before the Court. A report by a Single Expert was ordered. There was discussion on that day, but no agreement, about the resumption of time. The matter of dates and times had been left, in my view, to the direction of FACS by the July 2015 Orders. There was no explicit order. The mother resisted any time strongly.

17. On 11 March 2016 the mother filed an Application in a Case seeking suspension of Orders for time. The father filed a Response in opposition.

18. Time continued to pass with the child not seeing his father at all.

19. On 27 June 2016 the Single Expert Report was released. I accept the evidence of the mother on this point that she did not read all of the report. She probably read parts of it. By taking this dismissive attitude the mother missed the opportunity to properly consider what the Single Expert was recommending.

20. The recommendation at that time was that the child live with the mother and that she have sole parental responsibility with a clear process for providing information to the father defined in the orders. In relation to time with the father the Single Expert recommended a defined gradual build-up of time with an end point well less than equal time.

21. There was also a lengthy detailed recommendation for both parents to “consult a therapist skilled in providing parenting advice and family and individual child therapy.”[16]

    [16] Single Expert Report dated 27/06/2016, pages 42-43

22. On 18 July 2016 the Court noted that the recommendation [for family therapy] would take place

23. On 10 October 2016 directions were made for trial in June 2017. The parties had put back the starting date to enter Family Therapy to 23 September 2016.

Father applies for residence December 2016

1. On 16 December 2016 the father, by his Amended Application, sought an order for sole parental responsibility and the child to live with him.

2. I conclude that the father had lost confidence in the possibility of a therapeutic solution to the parties’ conflict over the child or even the negotiation of any time for the child with himself at all. Almost 18 months had passed.

3. The mother did read the application of the father and his trial affidavit. She reports experiencing, in response to what was written, a migraine and paralysis of her right arm. She was hospitalised for three days and referred to a neurologist for review.[17] The maternal grandmother cared for the child.

   [17] Affidavit of the mother filed 20/10/2017, par 273-274

4. Had the mother read and really considered the Single Expert Report she may have been able to at least predict the change of application by the father. After  an observation of the father with the child the Single Expert noted:

   The father did not express any judgments or concerns about maternal care of the child. There was a lightness, and child-focus and a lack of partisan engagement with critique of maternal parenting or with the pathos of maternal disruption of the child-father bond.[18]

   At the level of intention, the father has shown a consistent and in fact quite intense and idealised commitment to the child and to his responsibilities as a parent.[19]

   [18] Single Expert Report dated 27/06/2016, par 472

   [19] Single Expert Report dated 27/06/2016, par 476

5. Taking those comments together (and despite reservations about the father expressed elsewhere in the report) the Single Expert was expressing the opinion that the father was deeply committed to the child and also positive about the mother’s care, despite her refusal to allow him to spend even supervised time.

6. I conclude that in March 2016 when interviews took place, the father just wanted to spend time with the child and was hopeful that would happen.

7. Nine months after those interviews the father had given up and was asking for residence.

Mother loses her Legal Aid Grant

1. In February 2017 the mother’s grant of legal aid was withdrawn. She lodged an appeal.

2. The mother began to receive a weekly food hamper from a community service. In March 2017 workers at the service were affronted by the mother’s conduct. She spoke in a critical and somewhat entitled way when a hamper with a particular item (a leg of lamb) in it was not put aside. When another family, with several children, was given priority for that item the mother asked rhetorically “Is it ok then for one child to die?” The child was with her at the time.

3. The mother in her affidavit expressed regret for her reaction. However I conclude that at least at that time the mother saw herself as resourceless and helpless. Given her professional qualifications, the support of her mother and her own assets it is hard to see why.

4. In April 2017 the June trial dates were vacated.

5. The appeal of the mother in respect of legal aid was unsuccessful.

6. In July 2017 further trial dates were allocated commencing 23 October 2017.

7. On 8 September 2017 FACS filed an Application in a Case seeking parental responsibility for the child. Subject to favourable assessment the Minister was proposing that the child live with the father.

Change of residence

1. On that day orders were made granting the application including that the child be removed from the mother’s care and spend time with her as directed.

2. Since then the child has lived with the father and his partner.

3. These orders cannot have been anything other than a bitter blow for the mother.

4. Her conduct during supervised visits thereafter is consistent with her loving the child and desperately wanting him back but also with having lost the ability to put the needs of the child, particularly his emotional needs, before her own.

5. FACS made the decision to have an interpreter present due to the mother speaking to the child in her native language over the opposition of the supervisor.

6. On 18 October 2017 there was a visit with an interpreter present. When the mother attended the bathroom with the child she is reported to have asked him:

   Mother:      the child do you tell the truth?

   Child:No.

   Mother: Who said you don’t have to tell the truth?

   Child:I don’t remember. Now I want to talk to Baba [the maternal grandmother] a little bit.

7. Then, as the mother was feeding the child she questioned him in in her native language. The interpreter informed the supervisor that the mother had said to the child, “Where do you want to live the child?” The child did not respond.

8. There was an intensity in both the questioning of the child and in the way he was fed both with food and a bottle of milk, (although by then he was four years old) that is a reflection of the mother’s distress over the child being removed from her care. She was treating him like a much older child with her questioning and as an infant by feeding him with a bottle. At best it would be confronting and unsettling for him.

9. On 13 November 2017 there was an oddly reproachful exchange between the mother and the child which started with the child slapping the mother’s hand whilst they were playing cards. She withdrew and demanded an apology. The mother refused to play with the child until he apologised and told the child he had made her sad. The mother pursued the issue and the child would not respond. When she asked him whether he wanted his mother to be sad he responded “Yeah”.

10. Again, the mother pursued the issued about being sad as a result of the lack of apology. He continued to refuse to offer one. The mother then challenged him, “Is that what you’re learning? Not to say sorry?”

11. Again, there was an intensity in the observation and exchanges between mother and child which appeared to make the child unsettled and naughty. Nevertheless, the farewells were affectionate and cheerful although the mother felt unable to assist the child to leave with the supervisor.[20]

    [20] Exhibit 23

12. When the Single Expert was called for cross examination he was told that the mother had not read any of the contact reports relating to her contact with the child. In her affidavit[21] the mother sets out her views on the child being distressed and traumatised by being separated from her, stating that on the first visit he was crying and inconsolable the whole time. That is inconsistent with the report.

    [21] Affidavit of the mother filed 20/10/2017, pars 298 and 299

13. The Single Expert also heard that the mother had not read his report or recommendations. He expressed concern about that, describing the mother’s strength as having engaged in therapy with Ms L and Ms BB in the past. I infer that he was referring to her previous willingness to confront painful issues.

14. The Single Expert considered the possible solutions for the child. One would be that the child return to live with the mother which would relieve the mother’s stress to a great extent. If he spent no time with the father the risk that was that the child would grow up fully aware of the mother’s narrative of the father. This reference is to the mother’s statements that the father is a dangerous and abusive man and has been both to her and to the child.

15. The Single Expert was very clear to say that unsupervised time with the child would be harmful, that there was a risk of flight by the mother with the child, a risk of harm to the mother herself at her own hands and a risk that more allegations would be raised on behalf of the child against the father based on what the child was saying to her.

16. The Single Expert went on to say that it would be “such a blessing to the child if the mother could adapt to the current situation and see the child in an accepting way.”

17. It was a clear view of the Single Expert that if the child lived predominantly with the mother the Court must accept that there would be no contact with the father.

18. On behalf of the mother, the possibility was raised that the maternal grandmother would be an ameliorating influence. The Single Expert agreed that the maternal grandmother was a positive person and another person in the home who could help the mother and assist the child but it was not enough, in his view, to overcome some difficulties experienced by the maternal grandmother herself with emotional dysregulation and perhaps some reliance on alcohol use.

1. There would, the Single Expert said, be no secure way to find out if things were going wrong for the child in that household. It is a significant consideration.

2. The ultimate recommendation of the Single Expert was that there be infrequent, supervised time, perhaps once per month for the child with the mother, for a minimum period of two years. He described the child as vulnerable and needing a significant time for healing.

3. The Single Expert also recommended that the father should take a copy of his report to a therapist to try and understand his part in the chaos that had been the relationship between the parties.

4. When told that the father had spoken of not understanding the mother’s mental health problems when he first met her, the Single Expert expressed the view that had been a progression for the father, a good one, and that it meant he had reflected on his own historical lack of understanding.

5. In the view of the Single Expert the father was bemused by the concept of a non-functioning person. I observed that the father was both tearful and appeared sad throughout this evidence.

Evidence

1. The documents relied on in respect of the application were as follows:  

The [Applicant] father Mr Tarelli

(a)Amended Initiating Application filed 16/12/2016;

(b)Financial Statement of the father filed 16/12/2016:

(c)Consolidated Affidavit of the father filed 16/12/2016;

(d)Affidavit of the father filed 16/10/2017;

(e)Affidavit of Ms S (the father’s partner)filed 16/10/2017;

The [Respondent] mother Ms Langley

(f)Amended Respond filed 11/08/2017 varied by Minute of Orders dated 13/11/2017;[22]

[22] Exhibit 34

(g)Financial Statement of the mother filed 24/10/2017;

(h)Affidavit of the mother filed 20/10/2017;

1. Affidavit of the mother filed 29/07/2016;

(j)Affidavit of Ms KK filed 17/10/2017;

(k)Affidavit of Professor LL filed 17/10/2017;

(l)Affidavit of Mr MM filed 17/10/2017;

The Intervener – The Department of Family and Community Services

(m)Affidavit of Ms HH, caseworker filed 21/12/2016;

(n)Affidavit of Ms NN, caseworker filed 16/10/2017;

Reports

(o)Report of Single Expert - Dr H: Child Adolescent and Family Psychiatrist dated 27/06/2016.

The Law

Parenting

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

1. The proposal of the intervener was that FACS continue to exercise parental responsibility for a period of six months with the father and the minister to share parental responsibility for a further period of six months. Thereafter the father to have sole parental responsibility.

2. This position was generally supported by the ICL and the father.[23]

   [23] Exhibit 3 – Case Outline of the Intervener

3. The mother proposed sole parental responsibility for herself with the Court to determine what time the child would spend with the father.

4. In this situation the child has experienced significant loss in his short life. His parents separated when he was still an infant of about 12-15 months. He lived with his mother, spent minimal and irregular time with his father. Then in September 2017 he moved full-time into his father’s care.

5. The Secretary of the Department of Family and Community Services NSW has been guiding the decision making. First of all, while the child was still in the care of the mother through the AA Group Program and since September 2017, by direct involvement with the father.

6. The mother had become increasingly reluctant to cooperate with FACS which made that relationship for the benefit of the child unworkable.[24]

   [24] Affidavit of Ms NN filed 16/10/2017, pars 7-28

7. The father has been responsive to assistance and made a serious commitment when FACS asked whether he would be prepared to have the child full-time in his care. The father has welcomed guidance and been cooperative.

8. The observation of the caseworker is that the child is happy and well settled in the care of the father and his partner, Ms S. The mother has been inclined to doubt the reports back to her by the caseworker that the child is doing well and is happy.[25]

   [25] Affidavit of Ms NN filed 16/10/2017, pars 60-62

9. There are benefits to the child continuing in his current arrangement in the care of his father. This year he will probably have started school, subject to advice about readiness. By date of trial in October and November 2017 he was already well settled with his father and enjoying time with his mother.

10. One reservation to the latter remark is that he had begun to speak to the father’s partner, who told the current caseworker[26] about having been hit by the mother and “saved by Bubba” [the maternal grandmother] in the mother’s home.

    [26] Affidavit of Ms NN filed 16/10/2017, par 58

11. Very serious risks to the development of the child have been identified by the Single Expert due to the mother’s personality and difficulties with her mental health.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The child does have a loving relationship with the mother, although there was some ambivalence in his attitude. Nevertheless the mother has provided a high level of physical care and undoubtedly loves the child. It is a benefit to him to maintain that relationship although for his own physical and emotional safety, the time between them needs to be supervised.

2. The child had a rapidly developing relationship with his father at time of trial. He has also come to know and enjoy a relationship with the father’s partner.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. There is a need to protect the child from physical or psychological harm. The mother quickly after separation came to the position that the child would do best spending no time whatsoever with the father.

2. It is apparent that she does not see a value for the child in a relationship with the father. At the same time her evidence was that the father had a history of abusive and dangerous conduct towards both her and the child. In particular, the incident where the mother asserts that the father intended to kill her and the child in Europe.

3. The evidence does not bear those allegations out. The father enjoyed spending time with the child, caring for him, feeding, bathing and changing him as an infant and was bewildered by the mother’s conduct towards him, accusatory and at times threatening.

4. On his own evidence the father did not understand why the mother behaved as she did. He simply reacted to it, naming what was probably depression as laziness and speaking harshly about the mother’s willingness and ability to manage the child and the household.

5. The father has come to understand that the mother has problems which he did not appreciate when he so quickly entered into a relationship with her and conceived a child. He is willing to explore that for the benefit of the child and to understand his own role.

6. The Single Expert identified a complex situation for the child. His analysis of the mother is that she has borderline personality dysfunction with narcissistic and antisocial personality traits. He explained that this manifested in the mother as having a sense of superiority and entitlement. She can be interpersonally exploitative, lack empathy or be unwilling to identify with the feelings and needs of others and can show arrogant behaviours.[27]

   [27] Single Expert Report dated 27/06/2016, pars 289-290

7. Of central significance is that the Single Expert noted some identification by the mother with her own violent father. The mother described him to the Expert both as “a violent beast” and also as “the architect of the family’s privileged wealth, as intelligent, (and the source of her own intelligence), as ‘wonderful ... delightful … kind’, whereas the maternal grandmother was described, without personal attributes, as “a victim”.

8. In his oral evidence the Single Expert made this simple statement about the mother, which I interpreted as a challenge to her position that her difficulties were all caused by the father:

   She does need to address her own behaviour toward others; not just others’ behaviour towards her.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The child, who was just over three years at the time of interviews with the Single Expert was not interviewed. He was observed to enjoy time with both his parents.

2. Since September 2017 the child has been in the care of his father. He has mostly enjoyed supervised visits with his mother.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The mother provided most of the care of the child for the first four and a half years of his life although the father was actively engaged with him until separation in February 2014. There was a very close loving bond between the child and his mother with occasional emotional lapses in the mother’s availability to him.

2. The child had a close loving relationship with the maternal grandmother who was a good source of comfort and security for him. Sadly, although the Intervener offered in these proceedings to facilitate regular fortnightly time for her with the child, the maternal grandmother declined in circumstances where the child was not living with his mother.

3. I conclude that the maternal grandmother was being loyal to the mother at the expense of her own loving feelings for the child and of his need to see her.

4. The child has a developing relationship with the father’s partner.

5. The child has extended family in Europe whom he barely knows.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The father has always wanted to maintain a relationship with the child. He would have been content to spend regular time with the child until he concluded that unless the child lived with him there would be no relationship at all between them.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. The child was abruptly removed from the care of his mother in September 2017 and placed into the care of his father whom he knew, but not well.

2. The child had already been removed from his child care centre by the mother.

3. The child experienced the loss of his mother and grandmother and his familiar home and usual patterns of activity.

4. The child settled well with his father and is being carefully brought in contact with his mother and grandmother through the work of FACS.

5. Stability for the child is crucial.

6. A change back to the mother would, on the evidence before me, mean the permanent loss of his father and partner from his life.

Practical difficulty and expense of a child spending time with and communicating with a parent

1. Both parents live in Sydney. Each can afford to contribute to costs of supervision.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. This is a critical consideration.

2. The capacity of the mother to meet the child’s needs was comprehensively discussed in the report of the Single Expert.[28] The Single Expert was recommending at that time that the child continue to live with the mother. He assessed her to be “richly capable” of meeting the child’s basic needs for food, shelter and protection from harm and also his intellectual and developmental needs.

   [28] Single Expert Report dated 27/06/2016, pars 364-384

3. However the Single Expert considered that there was some instability in the capacity of the mother to meet the emotional needs of the child for relations within the family and in society. The concern was emotional unavailability of the mother due to her own mental state.

4. At that time the Single Expert held the view that ongoing therapy would ameliorate that risk.

5. Subsequently in his oral evidence the Single Expert took a different view based at least in part on the mother’ withdrawal from her psychologist Ms L  and active resistance towards engagement with FACS.

6. In relation to the father the Single Expert identified significant personality dysfunction in the nature of personality immaturity. By that he meant lack of reflective functioning and of empathic attunement. Again there was a detailed analysis.

7. I infer that the ability of the father to form and maintain friendships and intimate relationships is a strength which moderates his inability to adapt to others when they are needy, demanding or critical of him. His response to perceived illogical conduct is a rigid opposition.

8. I also infer that the father was out of his depth in dealing with the behaviour of the mother and hurt her emotionally without intending to.

9. In relation to the child, the father’s capacity was noted to be similar to the mother’s in terms of his ability to meet basic needs with a likely struggle to meet more complex emotional needs. His strength was assessed to be making “good use of his broad friendship and community connections”[29] including the skills of his partner.

   [29] Single Expert Report dated 27/06/2016, par 482

10. My own observation accords with the father being open to learning and wanting the child to have the best of his mother, and the mother rejecting people with a contrary perspective to her own and wanting to “save” the child from the father.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The child is Australian with a cultural heritage from two European countries one from each parent. Both parents are at least bi-lingual and the child may also in time learn and speak the languages of his parents.

2. As a pre-schooler the child was observed by the director of his pre-school to be physically provocative and aggressive at times although not outside the limits of his age and gender.

3. The Single Expert observed the child to be intrusive and aggressive with his mother pulling her face towards him, pushing her face into his hand.

4. He also made this observation:[30]

   I observed the child to be quite physically dysregulated at times, moving about the room rapidly and bumping into or knocking over things, and also provocative, for example flicking the light-switch on and off, flicking the blinds, or stomping his foot and grabbing at a cup or toy.

   [30] Single Expert Report dated 27/06/2016, par 358

5. The father’s partner in her oral evidence said about the child “on many occasions he hits me on the bum”.

6. She works with children and expressed her view that “when children are hitting other children there is something going wrong with parenting.”

7. I agree with her following remark that “the child really needs a stable and calm home environment.”

8. All these observations are consistent with the assessment of the Single Expert that “the child has a greater than average degree of behavioural activation and poor body boundaries” which the Single Expert attributed to “an emotionally and behaviourally dysregulated environment during his infancy.”[31]

   [31] Single Expert Report dated 27/06/2016, par 489

9. I take from this that great caution should be taken by the Court to avoid further disruption in the life of this already vulnerable child.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. Both of the parents value the child very highly.

2. The mother has had lapses of judgment, leaving the child at least once as an infant unsupervised and leaving him with the father’s friend Mr II without prior arrangements in place. The child is said to have complained to his father that his mother “hits my bum and screams at me when she is angry”.[32] It is consistent with the mother’s own statements that she does not approve of corporal punishment in principle but has smacked the child on the bottom.

   [32] Affidavit of the father filed 20/10/2017, par 27

3. The father showed disrespect and poor judgment when he both watched the family home after separation and entered it to check on the child without the knowledge or invitation of the mother. His fears were not entirely groundless but it was not the best way to learn what was happening for the child.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. The mother has alleged criminal conduct, sexual assaults on her by the father amounting to rape. I have found that the evidence does not support findings of that kind.

2. The mother alleged that the father intended to kill both her and the child whilst driving in Europe in 2014. I have found that the evidence does not support such criminal intention.

3. The mother is alleged in 2014 to have threatened the father with two kitchen knives. She was arrested by police. An AVO was made provisionally and then on an interim basis. At the final hearing the father withdrew his complaint and the AVO was dismissed. His explanation, which I accept, was that he did not want the mother to go to gaol.

4. There was an AVO put in place for the protection of the maternal grandmother when she was startled and frightened by the father entering the former family home unannounced.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. The mother has shown formidable opposition to the idea that there are aspects of her personality and behaviour which are not helpful to the child.

2. Her unwavering case was that the father was the sole problem, that he was a violent, abusive man who represented a real risk of harm to the child and to her.

3. She chose not to read and consider the report of the Single Expert thus depriving herself of a pathway to the child remaining in her care whilst both parents addressed their difficulties in a manner carefully defined and explained.

4. The mother refused to co-operate with FACS who had been involved in the life of the child since November 2013 when the first notification was made about her parenting. Initially the mother did respond and engage with AA Group and the suggested parenting programs, to the benefit of herself and the child. Later, after the intervention of FACS in these proceedings in 2015, the mother treated FACS as the enemy and simply refused to allow time between the child and the father, clinging to what she regarded as an ambivalent court order in order to avoid it.

1. In 2017 the mother chose not to read the reports of her own supervised visits with the child.

2. All these decisions of the mother have been hers to make. However the consequences are that the course most likely to protect and promote the interest of the child is a conservative one. That is, continuing involvement of FACS for some time and monthly supervised visits ongoing.

3. It will be a matter for the mother to bring a fresh application if and when she considers that there is evidence of sufficient change in her circumstances to justify different orders for time and communication with the child.

4. The most appropriate course to ensure consistency of decision making for the benefit of the child is to maintain the parental responsibility as a shared exercise between FACS and the father for a long enough period for FACS officers to prepare him to manage alone.

5. I take the proposal of FACS that there be a further period of shared parental responsibility, followed by sole parental responsibility for the father, to be a reflection of optimism in the father’s capacity but recognition that he needs some support and assistance not having raised the child himself for almost the first three years of the child’s life.

6. An order will be made accordingly for continuation of shared parental responsibility by FACS with the father, before the father becomes solely responsible for all issues other than arrangements for time and communication for the child with the mother. A further period of twelve months shared responsibility for those arrangements will be ordered.

PROPERTY

Approach to alteration of interests in property

1. In considering applications for alteration of property interests and transfer of property the Court must:

   (i)Identify the existing legal and equitable interests of the parties in property;[33]

   (ii)Consider whether it would be just and equitable in the particular circumstances to make an alteration;

   (iii)

   If an alteration should be made, to consider the matters contained in

   
   

   Sections 90SM and 90SF(3) of the Act in coming to an adjustment; and

   (iv)Analyse and consider whether the adjustment under consideration would be just and equitable.

   [33] Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FamCAFC 116

1. Identify the assets and liabilities of the parties

1. The principle asset of the parties is the property at B Street, Suburb C, the former family home of the parties in the sole name of the father.

2. The net asset pool identified by the parties are set out in the Joint Balance Sheet (titled ‘Husband’s Balance Sheet’) as follows:[34]

   [34] Exhibit 17

O’ship			Description	Wife’s value	Husband value
ASSETS
1	F		B Street, Suburb C	$1,450,000	$1,450,000
2	F		Bank a/c CBA …33/NAB $628	Nil
3	F		Utility motor vehicle	$3000
4	F		Tools	$10,000
5	F		Half interest in land in Europe	NK	$3,000
6	F		Interest in apartment in Europe	NK
7	F		Interest in late father’s estate	NK	$15,000
8	M		Cash	Nominal	Nominal
9	M		Barristers Coop	$0
10	M		Gold MV	$1,500
11	M/F		Contents	$1,500	$1,000
12
13
14
15
16
17
18
19
20
Total				$1,482,000
LIABILITIES
21	H		Mortgage	$462,643	$474,268
22	H		Personal loan (Ms S)	$18,810
23	H		Legals: John Shaw	$48,000
24	H		Legals: Mr David	$38,000
25	W		Personal loan to Ms OO Langley	E $255,596
26	W		Barrister Coop	$49,575
27	W		Ratesetter loan (loan legal fees and disbursements)	$130,000	NK
28	J		Personal loan to Ms OO Langley	E $274,044
29	H		Visa Card NAB	5,000
NET (excluding super)				$897,922
O’ship		Description		Wife’s value	Husband’s value
SUPERANNUATION
30	F	PP Super		$89,298
31	W	QQ Super		$35,596

Alterations to the Balance Sheet

1. Items 2, 6, 8 and 9 are omitted with no value having been ascribed by either party.

2. Items 22 to 25 and items 27 to 29 being personal loans, legal costs and credit card debt, are omitted as personal to each of the parties.

3. Item 26 is omitted, the figure is said to be a liability in respect of Chambers.  There was no value for Chambers included in the assets category although the purchase price was said to be $60,000.

Revised Asset Pool

1. The Revised Asset Pool is as follows:

O’ship			Description	Wife’s value	Husband value
ASSETS
1	F		B Street, Suburb C	$1,450,000	$1,450,000
3	F		Utility motor vehicle	$3,000
4	F		Tools	$10,000
5	F		Half interest in land in Europe	NK	$3,000
7	F		Interest in late father’s estate	NK	$15,000
10	M		Gold MV	$1,500
11	M/F		Contents	$1,500	$1,000
Total				$1,484,000
LIABILITIES
21	H		Mortgage	$462,643	$474,268
NET (excluding super)				$1,009,732
O’ship		Description		Wife’s value	Husband’s value
SUPERANNUATION
30	F	PP Super		$89,298
31	W	QQ Super		$35,596
TOTAL FIGURES
Total of assets (Including Super)				$1,608,894
Liabilities				$474,268
TOTAL (Net)				$1,134,626

2. Would it be just and equitable to make an adjustment to interests in property

1. The parties wish to bring their financial relationship to conclusion. The title to the parties’ main asset, the former family home, is in the sole name of the father. The mother wishes to retain that property, which she presently lives in and she should have the opportunity to do so.

2. Adjustments to interests are required.

3. Consideration of ss 90SM and 90SF(3) of the Act in order to come to a just and equitable adjustment

Contributions under section 90SM

1. The Suburb CC apartment, owned by the mother, was the parties first home together.

2. The mother made the overwhelming financial contribution to matrimonial assets by contributing the equity in her Suburb CC property to the acquisition of the family home in Suburb C.

3. The mother ceased work soon after the relationship began and the father struggled to meet mortgage payments beyond his income. He paid what he could. The purchase was unrealistic.

4. The mother was the primary carer for the child during the short relationship and post-separation.

5. The father contributed to the care of the child less than he would have liked until he took on full time care.

6. Contributions overall favour the mother.

Relevant factors under section 90SF(3)

The age and state of health of each of the parties

1. The father is now 40 years. He has suffered from carpal tunnel in one wrist and has had remediating surgery. He is able to work self-employed.

2. The mother is now 43 years. The mother gives evidence that she has suffered from depression and anxiety since early adulthood. She has attended on psychologists and psychiatrists for treatment from time to time since 2004.[35] She experienced post-natal depression in 2013 and has had panic attacks in the years since. There is no evidence to support a finding of recent change in respect to her physical or mental health. Through these proceedings a child and family psychiatrist has identified dysfunctional traits to her personality and PTSD arising through childhood, which diagnosis the mother disputes.

The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment 

[35] Affidavit of the mother filed 20/10/2017, pars 22-33

The father

1. The father has the legal title to the former family home. The mortgage secured on the property is also in his name. Otherwise he has minimal assets. He has the financial support of his current partner through the provision by her of a home for them to live in together since June 2016. He has moderate income from his business.

2. There was evidence of the father having a proprietary interest in vacant land in Europe and a half interest in the estate of his late grandfather with a combined approximate value of $18,000.[36] These assets do not provide a benefit to him by way of income. Some or all have been turned over to family members in Europe.

   [36] Financial Statement of the father filed 16/12/2016, Part L

The Mother

1. The mother is a qualitied professional by occupation. She ceased working in late 2012/early 2013 for the birth of the parties’ child. Prior to that she had a blossoming career. Previously she had worked in a number of different professional occupations. The mother described herself as confident, happy and content with her career.

2. The mother clearly has the physical and mental capacity for an ongoing career. She is not presently in any paid employment.

3. Her personality and mental health have been adversely affected by events since the birth of the child.

Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years

1. The father has had the full time care and control of the parties’ now five year old child since September 2017. Pursuant to these orders that obligation will continue. His work, by choice will be around the needs of the child.

Commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain

1. Both parties have an obligation to support the child.

2. Neither party has the obligation to support any other person.

Subject to s 90SF(3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party

1. The father has superannuation interests of approximately $89,000. He will probably contribute as and when he can as a self-employed person in future.

2. The father does not receive a Commonwealth benefit.

3. The mother has a superannuation fund of about $35,000. If she returns to her professional career she will probably contribute to superannuation as and when she can.

4. The mother presently receives a Commonwealth benefit.

Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable

1. The parties struggled financially throughout their short relationship and continued to do so after separation. They were burdened with mortgage debt which was unaffordable from the outset of borrowing.

2. The mother remains living in the property and wishes to have the husband’s legal interest transferred to her so she can retain it.

The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration

1. This was a short relationship, just over two years from online meeting to final separation.

2. The mother contends that the relationship was characterised by family violence, assaults on her by the father and threats directed at her and the child. The father agrees that there was family violence, conceded insults by him and angry verbal exchanges between the parties but also threats and physical attacks on him by the mother.

3. The relationship had a detrimental effect on both parties and the child and their standard of living was diminished by it.

The need to protect a party who wishes to continue that party's role as a parent

1. Both parties wish to continue their role as parent.

2. The father willingly took on the role of primary carer when the child was placed into his care by FACS and wishes to continue with it.

If either party is cohabiting with another person--the financial circumstances relating to the cohabitation

1. The father is living with his partner. She has full time employment.

Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage

1. The father provided child support post-separation for a period.

2. The mother does not presently pay child support.

Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account

1. The decision of the mother to sell her property in Suburb CC, and borrow to buy another property in Suburb C in the father’s name is a difficult one to understand. She herself was preparing for an indeterminate period without income after the birth of the parties’ child. She must have known that the father would not be able to meet the mortgage payments and all other expenses of the household on his income. I accept that the father was guided by the judgment of the mother, relying on her knowledge and experience.

2. The consequence was expensive conflict, default proceedings in the Supreme Court and adverse consequences for the credit rating of the father.

Analysis

1. The mother potentially has a much higher earning capacity than the father both because she has superior qualifications and skills and because the father has the full time care of the parties’ young child.

2. At first there was some concession, in submissions on behalf of the mother that some adjustment should be made in favour of the father on account of the care of the child. Subsequently a document was submitted titled “Respondent’s Correction re Property Submission”.[37]

   [37]  This document, together with the covering email became Exhibit 36

3. The document withdrew the oral submission which had been made that 5 per cent of the net proceeds of sale of the family home should be paid to the husband.

4. Accordingly, the position of the mother returned to each party keeping assets and liabilities currently in possession, with the family home being transferred to her, subject to her taking responsibility for the mortgage debt. From the mother’s perspective, this represents a final result of 95 per cent of the asset pool to the mother and 5 per cent to the father.

5. The father proposed that there be a sale of the family home and equal division of net proceeds.

6. In my view both positions are unrealistic.

7. The mother made the overwhelming financial contribution first by the provision of her Suburb CC property as a home for the parties then by the provision of equity from the sale of that property contributed to the purchase of the family home.

8. There was a contribution to welfare by both parties in their care of the child during the year of his life before they separated, although the majority of care and supervision was provided by the mother and maternal grandmother.

9. Post-separation the mother did not allow time for the child with the father so all of the contributions to care were hers.

10. By these orders the child will grow up in the care of his father. Proper recognition of that factor, and also the disparity of income earning capacity between the parties must be made.

11. The mother made the substantial financial contribution which should be properly acknowledged. Balancing the capacity of the mother to earn high income but her present unemployment against the lower income of the father combined with his responsibility to care for and provide for the child the appropriate adjustment is a division of one third of the net asset pool to the father and two thirds to the mother.

12. A payment should be made by the mother to the father of $257,912 and in default, 26.5 per cent of the net proceeds of sale of the family home.

4. Analysis of whether the adjustment contemplated is just and equitable

1. The father will retain the following items and receive a cash payment of $257,912 which will cover outstanding legal costs and provide a small fund for the benefit of the father and child:

   (Item 3) – Utility motor vehicle  $3,000

   (Item 4) – Tools  $10,000

   (Item 5) – Half interest in land in Europe  $3,000

   (Item 7) – Interest in his late father’s estate  $15,000

   (Item 30) – Interest in the PP Fund  $89,298

2. The mother will acquire the family home and take on the associated debt if she so chooses or otherwise sell the property. She must raise a further amount of $257,912 to pay to the father. She will retain the following items currently in possession:

   (Item 1) – B Street, Suburb C  $1,450,000

   (Item 10) – Gold MV  $1,500

   (Item 11) – Contents  $1,500

   (Item 31) – Interest in the QQ Super Fund  $35,596

   (Item 21) – Mortgage  -$474,268

3. I am satisfied that the adjustment is just and equitable in the circumstances of this case.

4. Orders are made accordingly.

I certify that the preceding two hundred and sixty-eight (268) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 27 June 2018.

Associate: 

Date:  27 June 2018