Tonkin & Rojas
[2024] FedCFamC2F 358
•22 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tonkin & Rojas [2024] FedCFamC2F 358
File number(s): HBC 524 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 22 March 2024 Catchwords: FAMILY LAW – parenting – final orders – parental responsibility – impact of father’s mental health and alcohol use disorder – order for sole parental responsibility disputed – parties agree that children should live with mother – orders for one of the two children to spend time and communicate with father and otherwise in accordance with her wishes – negative alcohol detection test result required by father prior to time with child – practical barriers to in person time due to location of parties residences.
FAMILY LAW – property – final orders – disputed ownership of liabilities – alleged negative contributions argument – greater parenting contributions by mother – initial financial contribution by mother not matched – 71/29 adjustment of net non-superannuation assets and superannuation in favour of the mother.
Legislation: Family Law Act 1975 (Cth) Cases cited: Aldridge & Keaton [2009] FamCAFC 229
Benson & Drury [2020] FamCAFC 303
Bevan & Bevan (2014) FLC 93-592
Bulow & Bulow [2019] FamCAFC 3
Chapman & Chapman [2014] FamCAFC 91
Ferraro & Ferraro [2010] FamCA 142
Goode & Goode [2006] FamCA 1346
Harris v Caladine [1991] HCA 9; 172 CLR 84
In the Marriage of Hickey (2003) 30 Fam LR 355
Isles & Nellisen [2022] FedCFamC1A 97
Jabour & Jabour [2019] FamCAFC 78
Kowaliw & Kowaliw [1981] FamCA 70
Krotofil & Krotofil (1980) FLC 90-909
MRR & GR [2010] HCA 4
Polonius & York [2010] FamCAFC 228
Sebastian & Sebastian (No.5) [2013] FamCA 191
Slater & Light [2011] FamCAFC 1
Stanford and Stanford [2012] HCA 52
Wagstaff and Wagstaff [2018] FCCA 927
Division: Division 2 Family Law Number of paragraphs: 170 Date of last submission/s: 17 November 2023 Date of hearing: 13-15 November 2023 Place: Hobart Counsel for the Applicant: Mr Flanagan Solicitors for the Applicant: Murdoch Clarke Counsel for the Respondent: Mr Mead Solicitors for the Respondent: Mead Family Law The Independent Children's Lawyer: Ms Jacobs, Jacobs Family Law ORDERS
HBC 524 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TONKIN
Applicant
AND: MR ROJAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
22 MARCH 2024
THE COURT ORDERS THAT:
Parenting
1.The parenting Orders made by the Federal Circuit and Family Court of Australia in City B on 4 May 2022 be discharged.
Parental responsibility
2.The Mother have sole parental responsibility for X, born 2012, and Y, born 2015 (collectively “the children”).
3.The Mother must message the Father by the Our Family Wizard app of any decisions that she intends to make that concern ‘major long-term issues’ at least twenty eight (28) days prior to those decisions being made, major long-term issues being issues of a long term nature about:
(a)either of the children’s education (both current and future); and
(b)either of the children’s religious and cultural upbringing; and
(c)either of the children’s health; and
(d)either of the children’s name; and
(e)changes to either of the children’s living arrangements that make it significantly more difficult for either of the children to spend time with the Father.
4.Within 14 days of the date of any message sent by the Mother (or her nominee) by the Our Family Wizard app to the Father pursuant to Order 3 of these orders, the Father may respond in no more than 2 Our Family Wizard messages, setting out his feedback in a polite and business-like manner, on her notice of the major long-term issue which has arisen.
5.The Mother upon receiving the Father’s communication pursuant to paragraph 4 herein, must acknowledge receipt and give genuine consideration to the Father’s feedback.
6.Fifteen (15) days after providing written notice referred to in paragraph 3 herein, the Mother may then exercise her parental responsibility and must notify the Father in writing of the decision taken by the Our Family Wizard app.
Live with / spend time with
7.The children live with the Mother.
8.The Father spend time and communicate with Y in City B, Tasmania as follows:
(a)The Father shall see Y each Saturday and Sunday between 10:00am – 6:00pm on each day, with visits occurring on one weekend in every eight.
(b)The Father spend time with Y on Christmas Day in 2024 between 10:00am – 6:00pm, and each alternate year thereafter during the same hours.
9.The Father will meet all the costs of travel associated with spending time with Y.
10.Changeover for the purposes of any spend time with arrangements will be at C Contact Service, and for this purpose:
(a)The parties shall do all such acts and undertake all such steps and follow all directions as may be required by staff at C Contact Service so as to be able to utilise the said Service for the purposes of providing changeover as specified herein.
(b)The parties shall pay to C Contact Service as and when required such remuneration for the provision of it service from time to time. It being noted if the nominated times are not available with C Contact Service the times shall be the nearest most available time offered by the said Service.
(c)Each of the parties have leave to provide a copy of this Order to that service.
11.In the event C Contact Service is unable to facilitate changeover, changeover will take place between the Father and a third party nominated by the Mother at Hungry Jacks on E Street.
12.In the event the Father is unable to spend time with Y on any occasion, he will notify the Mother at his earliest convenience using the Calendar function on the Our Family Wizard app.
13.In the event the Father fails to spend time with Y for four consecutive visits, his time with Y will be suspended.
14.Within three days of travelling to Tasmania, the Father will engage with his local pathology service to perform a blood or supervised urinalysis test for alcohol with test results to be communicated via the Our Family Wizard app prior to 9:00am on the Saturday on which time is due to commence. The Father will not pay for additional medical services to assist the Mother in interpreting any result provided. If the test results return a positive result for the presence of alcohol, or the Father does not undertake the test, the Father’s time with Y shall not occur on that occasion, and the Mother is not obliged to provide make up time.
15.In the event X expresses a genuine desire to either or both of the parties to spend time and communicate with the Father:
(a)The party to whom X has expressed that wish to will cause the other parent to be notified through the ‘Our Family Wizard’ app and provide details and context of when and how the genuine desire was expressed;
(b)After receiving the notification in paragraph 15(a) herein, the parties will forthwith arrange an appointment between X and Dr F (or her treating psychologist if not Dr F) and request feedback in writing from the psychologist as to the issue.
(c)If the psychologist does not express any concern, then X may spend time or communicate with the father at any time Y does, and the Mother shall facilitate this.
16.Y have a video call with the Father by Our Family Wizard each Sunday from 5:00pm – 5:30pm Tasmania time.
17.Y have a video call with the Father by Our Family Wizard on “special days” from 5:00pm – 5:30pm Tasmania time, “special days” to include:
(a)Y’s birthday;
(b)Christmas Day, in odd years;
(c)Father’s Day; and
(d)Any other “special day” as agreed in writing by Our Family Wizard.
18.In respect of communication, if the Father has not joined the call by 5:15pm Tasmania time, the Mother is not obliged to cause Y to remain connected past that time on the Our Family Wizard app.
19.If the Father is unable to communicate with Y on any given day, he will provide notice to the mother at his earliest convenience through the calendar function of the Our Family Wizard app.
20.In the event the Father is affected by alcohol at the time of the call, he will not attend the call.
21.The Father shall be permitted to send a postcard or letter to Y and/or X on one occasion per month and the Mother must provide that postcard or letter to Y and invite X to read the card or letter, encourage Y to reply and facilitate Y or X replying, in the event they express a wish to do so.
22.The Mother will notify the Father in writing of any intended travel she intends to take with the Children in the event it coincides with the Father’s time according to this Order and for that purpose the Mother shall:
(a)Cause the Father to be provided information regarding the holiday departure and return date and the holiday location; and
(b)Provide the Father with makeup time on days and times agreed in writing between the Father and the Mother.
Communication between the parties
23.All communications and recordings of written agreements pursuant to these Orders must be by the Our Family Wizard app and the parties are to:
(a)Ensure their subscriptions and accounts remain active at all times;
(b)Only communicate in respect of arrangements to give effect to these Orders; and
(c)Confine communications to child focused and parenting related matters pursuant to these Orders.
24.Each of the parents shall cause the other to be notified of any changes to their contact information within seven (7) days of any change to same and the changes are to be notified via the Our Family Wizard app.
Restraints and injunctions
25.Pursuant to s 68B of the Family Law Act 1975 and for the personal protection of the parents and the children, the parents are restrained from committing any act of family violence toward the other or toward the children or exposing the children to any form of family violence.
26.The Father is restrained by injunction from drinking alcohol or using illicit substances during or within 24 hours prior and during spending time with or communicating with either child.
27.The parents will use civil and respectful language when communicating with each other or other members of each other’s households.
28.Either parent be at liberty to attend extra-curricular events, school sporting events, school concerts or similar of the children.
29.Each of the parties have liberty to provide a copy of these Orders to Dr F, the treating psychologist for X or any other treating psychologist for either of the children or their own treating psychologists or counsellors.
30.The appointment of the Independent Children’s Lawyer is extended for 30 days and the Independent Children’s Lawyer is to meet with the children to explain the final parenting orders and explain any questions they may have.
31.All extant applications be dismissed.
AND THE COURT NOTES THAT
A.the Applicant’s representative required additional time to make submissions in relation to the proposed property orders identified by the Court at delivery of judgment AND the proceedings have been adjourned to 25 March 2024 to receive those submissions, at which time final property orders consistent with the Reasons for Judgment will be pronounced.
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
JUDGE TAGLIERI:
These parenting and property proceedings concern Ms Tonkin (“the mother”) and Mr Rojas (“the father”), who were married in 2008 and in a relationship between 2004 and 2018. The parties’ children are X, born 2012, and Y, born 2015.
The parties had previously reached agreement about parenting orders and the Court made final Orders by consent in May 2022. However, it was later alleged that the father had not fully exercised his time with the children in accordance with the Orders. The mother was concerned that his inconsistency was due to relapse into alcohol abuse.
The mother commenced property proceedings in June 2022 and by amended initiating application, also sought alternate parenting orders to those made in May 2022. Ms Jacobs, who had been the independent children’s lawyer (“the ICL”) in the previous proceedings, was reappointed to represent the children’s interests.
In November 2023, the parties participated in a defended hearing at which time both were legally represented, and Ms Jacobs appeared as the ICL.
The father now resides in Western Australia and has re-partnered. The mother has also re‑partnered but does not live with her partner. The mother and children reside in the former matrimonial home in Suburb D in Tasmania.
The parties were in dispute about what orders should be made for parental responsibility and the father’s time with the children. There was agreement that the children should live with the mother as they had done since separation in around 2018.
In the property proceedings the mother sought an adjustment of the parties’ net assets on the basis that she received 90%. The father instead sought a 60/40% adjustment in favour of the mother. Both parties agreed the Court should make orders pursuant to s 79 of Family Law Act 1975 (Cth) (“the Act”), but differed greatly in relation to the precise terms of the orders the Court should make. The father did not seem to object to transferring the former matrimonial home in Suburb D to the mother but disagreed with her proposed cash adjustment to him.
DOCUMENTS RELIED UPON BY THE PARTIES
Several documents were tendered or taken as read in the mother’s case during the hearing and marked as exhibits by the Court, namely:
·Exhibit A1: Financial statement completed by the mother dated 8 June 2022;
·Exhibit A2: Affidavit of the mother dated 25 October 2023;
·Exhibit A3: A list of entries made by the mother and forwarded by Murdoch Clarke to the other parties in proceedings on 30 November 2022;
·Exhibits A4 and A5: Affidavits of two lay witnesses, Mr G and Ms H, filed 31 October 2023 and 3 November 2023 respectively;
·Exhibit A7: Specific Issues Report prepared by Ms J, the Court Child Expert in the proceedings, dated 13 October 2023;
·Exhibit A8: Affidavit and report of Dr K, clinical psychologist, dated 10 November 2023; and
·Exhibit A9: Father’s bank statements containing transactions of expenditure at bottle shops and venues which sell alcohol.
An affidavit and report of Dr F, affirmed 14 October 2023, was tendered by the ICL (Exhibit ICL1).[1] The ICL also relied on several documents from Dr L, a psychiatrist, being: an affidavit affirmed 3 April 2020 and attached report dated 29 March 2020 (Exhibit ICL2), an affidavit dated 4 February 2021 and attached report dated 19 January 2021 (Exhibit ICL3), and a report dated 16 April 2020 (Exhibit ICL4).
[1] Exhibit ICL1 was initially marked as Exhibit A6 but later amended to be given an “ICL” reference to reflect that Dr F had been called by the ICL, rather than the mother.
The father relied on, and the Court read into evidence, his trial affidavit affirmed 9 November 2023 and financial statement filed 21 July 2022, which were marked as Exhibits R1 and R2 respectively.
THE MOTHER’S EVIDENCE AND WITNESSES
The mother adopted the terms of Exhibit A2 and was cross-examined. She said that when the final orders were made in May 2022, they were agreed and made with the benefit of input from experts, including Dr L.
The mother also agreed that the current proceedings commenced as property-related only and it was only afterwards that she sought to vacate the final Orders made in May 2022, which provided for the father to spend time with the children and had been made in the best interests of the children.
The mother explained that during financial disclosure for the property proceedings, she observed bank statements and believed that the father had been spending money on alcohol, contrary to claims of being abstinent. This suggested to her that when he had not spent time with the children post May 2022, it was not for the reasons he had claimed, such as having “gastro”.
The mother’s evidence in respect of the parenting proceedings
Cross-examination of the mother about parenting issues, in summary, elicited the following evidence:
(a)The mother maintained that she believed considerable alcohol continued to be used by the father.
(b)The mother stated that there had been intermittent Zoom communications between the father and the children and that during a Zoom call in July 2023, the father sounded like he had been drinking alcohol. After the call ended the odd and concerning messages referred to in her affidavit were received.[2]
[2] Affidavit of the mother filed 25 October 2023 at [122]-[129] and annexure G.
(c)The mother rejected the suggestion that she had influenced X’s views about spending time with the father, saying that X had strong views about things and was “black and white” at times. She was firm that X’s views were her own and that Dr F had been of assistance to X in being able to understand and express her views.
(d)She agreed that her relationship with the father lasted almost 15 years and said she recognised there were two sides to a story, but firmly maintained that her memory of the impact of his drinking on her and the family was “vastly different” to his.
(e)The mother agreed that the father had been given a range of mental health diagnoses, had engaged with general practitioners and psychologists, acknowledged a problem with alcohol and attempted to deal with the problem by engaging with a program, which showed insight on his part.
(f)She confirmed that she thought the father would regularly leave the home to drink alcohol and said he had admitted this. When it was put that this was so not to expose the children to his drinking, she said “possibly” but said that he also drank in the home.
(g)The mother essentially rejected the suggestion that her belief the father’s relapse into alcohol abuse in July 2023 was unfounded. She added that when she saw the bank statements showing the expenditure at bottle shops and pubs, she felt she had been “punched in the stomach”.
(h)She agreed that Dr L had expressed the opinion that the father had capacity to abstain from alcohol but did not accept that the alcohol testing showing negative CDT result meant that he was abstaining.
(i)Her beliefs and concerns about the father’s use of alcohol were based on conduct she knew from the past, the expenditure on bank statements and a view that a negative CDT test did not equate to abstinence.
(j)She agreed that she would not press for supervised time if the Court ordered that the father wear a detection bracelet which detected alcohol consumption through sweat.
(k)The mother conceded that Y had a meaningful relationship with her father but said she remained concerned that his alcohol consumption posed risk of harm.
(l)She denied that Y had “no reservations” about spending time with the father, saying she displayed some anxiousness which impacted her.
(m)The mother agreed that she also drank alcohol during the relationship but said that she rarely did so now.
(n)She stated that she remained of the view that she did not want her fears to get in the way of the children’s lives or of Y seeing her father.
(o)She had not thought about whether a monthly CDT test would satisfy her concerns about use of alcohol by the father, since he proposed he would see Y once a month when he was on days off.
(p)The mother agreed that the father had been diagnosed by Dr L with an alcohol use disorder, a medical condition that is not his fault, however added that the “way he handled it in the last few years was not great”.
The ICL cross-examined the mother about the causes of and impact on the children of intermittent compliance with the May 2022 spend-time orders. The mother confirmed her view that the father had not been honest about missed time and stated that Y was “not fussed” by the missed Zoom calls and had still enjoyed time with the father until time July 2023. However, the mother added that after being told to resume the Zoom calls, Y also became reluctant even though nothing inappropriate had been said.
The mother said X had told her she felt uncomfortable about the calls and said she had always answered questions when asked but the father became annoyed at her for being quiet or seeming uninterested. The mother also said X told her that once the father had hung up on her and told her they did not have to do the calls if she did not want to.
The mother stated that she was guided by the experts about what was best for the children’s time with the father. Further, that she did not have confidence that the father would contact her if he was not travelling well psychologically and say that things needed to vary. The mother was concerned that Y could not gauge if unsafe circumstances arose but said that X could.
The ICL also asked the mother about difficulties obtaining passports and she replied that the father had become combative about everything, but the Court was left to understand that the passports had eventually been obtained for the children.
The mother’s evidence in respect of the property proceedings
In summary, the mother’s oral evidence in respect of the property proceedings during cross‑examination was as follows:
(a)She maintained that the money used as a deposit for purchase of the former matrimonial home was saved by her alone, with no contributions from the father.
(b)She agreed that there may be an equalling out of contributions in long relationships but disagreed that this was the case in the parties’ relationship.
(c)The mother conceded that the father’s income exceeded hers for much of the relationship.
(d)She stated that putting an exact figure on how much the father spent on alcohol was difficult because he had done, for example, cash jobs. She maintained he had spent a substantial amount of money.
(e)She agreed that she has had access to the business account and credit card since 2014.
(f)When it was put to her that she had not produced sufficiently detailed information to support her contentions regarding various debts, such as tax debts, the mother maintained that she never had access to those records or been involved in the tax side of the parties’ former business.
(g)She conceded that she had limited the father’s access to money by limiting his access to bank cards but said this was only from the end of 2016, denying she had limited it any earlier than this. She said the limitations at the end of 2016 were because of an agreement following a counselling program.
(h)She agreed that, in the last two years of the relationship, she used the business credit card to pay for all expenses, including her own business and the household ones, but said when she used it in such a way, she would transfer money back from her own accounts to cover that.
(i)She said the debt owing on the M Finance credit card was the father’s responsibility because it has been in his name since separation, and she could not make payments towards it. She maintained that this card was “maxed out” with expenses relating to the business.
Other witnesses in the mother’s case
Two lay witnesses were called in the mother’s case: Mr G and Ms H. Both knew the parties during their relationship, and they generally corroborated the mother’s evidence about the father’s alcohol misuse, and the resulting arguments and anger. Their evidence was not materially displaced by cross-examination and was brief. However, the weight to be given to is influenced by their alignment with the mother.
The overall impression of their evidence was that the father’s drinking was problematic for the family dynamics and the business, but not as pervasive as conveyed by the mother’s evidence. For example, Ms H often left her children in the parties’ household, which seems incongruous with the father’s alcohol misuse constantly adversely impacting on the mother, children or their household dynamic.
Mr G stated that he had advised the mother to takeover some of the business tasks “to take the load off the father and benefit the business”, not because he was always or frequently intoxicated and unable to function.
THE FATHER’S EVIDENCE
The father adopted his trial affidavit dated 9 November 2023 and was cross-examined. In substance and effect, his evidence was:
(a)In 2004, he was drinking alcohol on most days.
(b)He lost his driver’s licence in 2003 due to drink-driving.
(c)He agreed that his loss of licence impacted on the mother who would then drive him for work purposes, but he added that this was because she did not want him to incur the cost of taxis and it was her choice.
(d)His drinking negatively impacted on the children and family finances, but he claimed that he always went to work when he had a hangover.
(e)He had subsequent periods of disqualification for about two years at a time in 2010, 2013 and 2017.
(f)The father rejected that the business could have been more profitable if he had not lost his licence and had to engage in an in-house alcohol rehabilitation program. He added that he could still organise jobs and only had to offer one customer compensation when the job was stopped partway through.
(g)He agreed that the business income was about $81,004 and that he had gone into alcohol rehabilitation in 2014, but disagreed that the business income reduced to $18,000 in the 2015 financial year. He stated that there had been a mistake made in the preparation of the 2015 tax return that related to an automated account system and how it treated GST. When asked whether the error had been corrected, he stated that it had been “left as it is” and “will be cleared up when the tax debt is sorted out”.
(h)He disagreed that he had begun drinking alcohol within two months of exiting the rehabilitation program, stating it was more like eight months and due to an incident in Region N.
(i)The father stated that he and the mother had agreed he would not have access to the credit card but disagreed this was to limit his drinking, adding that it was more to control the business finances.
(j)He agreed that in 2016 he was drinking alcohol but not “heavily”. Rather, he stated that there were cycles of relapse on about three-monthly intervals. He said he would abstain for three months and then have a sixpack once per month for a couple of months, but then conceded that there were times when he had more than a sixpack.
(k)He agreed that he would have drunk more than a sixpack when he was charged with drink driving in 2016.
(l)He agreed he was hiding his drinking from his family to a degree at this time.
(m)The father conceded he had continued drinking alcohol since separation in 2018 but said that he ceased social drinking in January 2023 and progressively reduced his drinking from a couple of sixpacks per week to total abstinence in June 2023, which he said he had continued.
(n)He said that following the orders being made in May 2022 and January 2023 he was drinking a few sixpacks per week, in social situations and otherwise.
(o)The father seemed to concede that a negative hair follicle test was not perfect and stated he would be prepared to do urinalysis and blood testing. However, he said it would need to be manageable, meaning that he would have to do a test before a visit with the children and send the results through the communication app. He thought that the longest wait for the results of such a test would be two to three days.
(p)When challenged about what purchases he was making at bottle shops as reflected in his bank statements, he maintained that the largest purchases were for cigarettes and other things, not alcohol.
(q)He agreed that going into bottle shops was probably not a good idea and risked relapse into alcohol misuse.
(r)He agreed that he had made purchases of alcohol at bottle shops since June 2023 but only small volumes, and said he considered that level of drinking was “still abstinence”.
(s)He stated he had not seen a request for copies of a Commonwealth bank account in his name for the period 2020 to 2023, that he had provided his lawyer with what he had been asked for and that he could not obtain all records from his Netbank.
(t)When asked about specific entries showing expenditure from bottle shops in July and September 2023, he agreed he had purchased alcohol and cigarettes.
(u)He was not working in 2020 and recommenced work in 2021 on a salary of $102,000 per annum, which is approximately what he has earnt since.
(v)In respect of the family violence allegations, he disagreed that the mother’s evidence was all true but admitted that, on occasion, he had used physical force to leave the house and sent abusive messages.
(w)He denied his consumption of alcohol was the primary aggravating factor for his aggression. He also denied that he had smashed windows and five iPhones while drinking excessively, adding that he had broken some iPhones (two or three) when they had fallen out of his pocket while working.
(x)He denied simply not showing up for Zoom calls with the children. Instead, he stated that there had been communication problems regarding the link and that his lawyers and the ICL had been trying to resolve this. However, he agreed that there was an eight‑week period without Zoom calls.
(y)He denied that he would drink alcohol during Zoom calls but agreed he had lied about having gastro on an occasion when he had not spent time with the children.
(z)When he had lied about having gastro, he was having a particularly difficult time around visitation and experiencing depression and anxiety that led to him purchasing alcohol.
When asked to clarify what he had told the Court Child Expert about prescription medication, the father stated that he had told her that he had seen his doctor and asked about a medication and if it would be appropriate to use it as part of his sobriety regime with the City O facility. He is now taking that medication but is not on medication for ADHD or any anti-depressants.
The father was asked about his partner’s daughter and stated that she lives with him and his partner and stays with her grandparents one or two nights monthly.
The ICL cross-examined the father about parenting matters. He stated that he accepted the opinion of Dr F about X suffering anxiety. He agreed that he had exhibited frustration with X but said it was not directed at her, rather at the situation where he is not able to spend time with the children. He agreed that there had been no successful Zoom calls with X for 12 months and said he did not press for spend time or communication parenting orders concerning her. The father indicated he would be an agreeable to an order that he be spend time with him according to her wishes, either expressed to him or Dr F.
Concerning Y, the father stated that there were no concerns for her about the Zoom calls, but that missed links occurred due to confusion about the link. He added that there was difficulty facilitating the links/calls due to time differences between City B and Western Australia and that a good time for the communications would be Sundays at 6:00PM City B time. He said there was no facilitation of alternative time by the mother when he could not make the call due to work.
When cross-examined by the ICL about a limited number of topics, in summary the father’s evidence was that:
(a)He wants to try communicating with Y via a messenger app, such as Our Family Wizard, and that if there was an order requiring postcards or letters from him to be passed on, he would like to resume sending these to Y.
(b)He disagreed with Dr L's opinion that he was not in remission from alcohol use and said that since June, he'd only bought alcohol twice and only two cans of beer each time, and this still counted as remission.
(c)The father agreed he would be supportive of the mother's partner, Mr P, acting as a third person assisting with their communication.
The father’s evidence in respect of the property proceedings
Concerning the property proceedings, the father was cross-examined about disputed values for assets in the balance sheet referred to in the mother’s case outline. He stated that he:
(a)Disagreed that the value of the mother’s Motor Vehicle 1 was $2,500 according to the Redbook value. Instead, he said that a figure of $5,000 had been agreed but that she had changed her mind.
(b)Maintained that he did not have his own vehicle, as his employer provided one. He stated that Motor Vehicle 2 was previously owned by the family business, Q Company, and had been sold for $5,000.
About the purchase of the former matrimonial home in Suburb D, he denied that the mother had saved the entirety of the deposit alone. He stated that the savings had been held in her bank account but those funds had come from both the Q Company business account and the mother’s money.
The father agreed that the property at Town R, in which the mother has a 50% interest, was used as security to purchase the former matrimonial home and that they would not have been able to purchase it at that time without using the Town R property as security.
He appeared to accept that the mother only had one superannuation fund as Superannuation Fund 1 had rolled over into Superannuation Fund 2.
Concerning the mother’s involvement in the business, the father stated that after the 2015 financial year, the mother was responsible for the bookwork and organising the tax agent. He said that she was paid from the business to “run the books”.
The father denied that the mother personally paid for the home loan, childcare, shopping bills and the like, stating that although the payments came from her personal account, the funds for those payments came from the business. The father seemed to disagree that the mother returned money she took out of the Q Company business account. When asked about entries on bank statements showing transfers from her account to the business account, he said this was a “temporary lodgement of funds” that was later returned to her account.
The father agreed that he had not paid child support between 2019 and 2023, nor had he made any mortgage repayments since separation.
The father accepted that he has not made repayments toward the credit card liability but said the liability was disputed and responsibility for payment would be determined by these proceedings. The father maintained that although the credit card was in his name, 90% of the time the mother used it for household expenses and the debt should be shared, I infer equally.
The parties evidence makes it sufficiently clear that when they referred to the credit card debt, they are referring to the M Finance Debt in the common balance sheet received by consent at the conclusion of the hearing. For identification purposes, the common balance sheet was marked as Exhibit C1.
THE EXPERT EVIDENCE
Dr F, clinical psychologist
The ICL tendered an affidavit of Dr F, a clinical psychologist, filed 9 October 2023, which annexed her report of 13 March 2023. Dr F reports she had been treating X since October 2020, pursuant to a mental health care plan.
Dr F reported that X presented with a range of anxiety symptoms but has seen significant improvement with treatment. However, she reported that X experiences isolated periods of increased worry and anxiety directly related to contact and/or visits with her father. She states that X expressed a wish not to see her father and has been able to express clear reasons for this,[3] including memories of his behaviour when she was young and not being presented with any behaviour from him to build trust. Dr F states that X is very vocal about wishing to have control over contact with her father and feels pressure and guilt from him as he has no understanding of her wishes.
[3] Exhibit ICL1, report of Dr F dated 13 March 2023, p 2.
Dr F expressed her belief that without the father demonstrating considerable change in behaviour and a resultant positive change in the father-daughter relationship, X will continue to be distressed by contact with him. She has concerns that if X is forced to go and see her father, she will run away and pose a safety risk. X’s views are reported to be consistent and that she has become more able to advocate for herself.
When cross-examined by the father’s lawyer, Dr F’s views remained firm and she stated that X wants to see her father do what he says he will do and be consistent, and then things may change.
When it was suggested to Dr F that X’s views were influenced by her mother either consciously or subconsciously, Dr F disagreed. She stated that the mother supported X’s mental health and she had observed the mother actively encouraging X to spend time with her father. She had not seen the mother as obstructive.
Asked what role the father should play in improving his relationship with X, Dr F stated that the biggest recommendation she could give is consistency and reliability on his part. She stated that his inconsistency was confusing and destabilising for X. Dr F added that she did not believe family therapy would be helpful and did not recommend it. She suggested that if the father could settle his work roster and be consistent with time, and X saw that happen with Y, then this may contribute to a change in her attitude.
Ms J, Court Child Expert
Ms J, the Court Child Expert (“the CCE”) had assessed the family and prepared a Specific Issues Report dated 13 October 2023, which was received in evidence.[4] In substance, her evidence through cross examination was as follows:
(a)Although the father denied sending abusive messages,[5] the CCE agreed that some messages he had sent through the parenting app were abusive.
(b)Regarding alcohol addiction,[6] the father had stated when interviewed in October that he was taking a medication that made him sick if he took it while drinking alcohol. Further, she had understood that he wanted to continue taking the medication.
(c)She clarified her views at [44] of the Specific Issues Report, stating that the father’s relationship with alcohol was complex and if his use negatively impacted the children then time would need to return to being supervised. When it was suggested that his time should be supervised because he was not abstinent, the CCE stated he did not need to be abstinent when not seeing the children, but for his own well-being he would be best placed to be abstinent at all times due to risk of adverse effects. She gave the example that if he had a relapse because of drinking when not seeing the children, that would likely negatively impact his relationship with Y.
(d)The CCE stated that the father should continue to seek help with his alcohol addiction and that providing head follicle testing or carbohydrate deficient transferrin (“CDT”) testing as part of the risk avoidance regime should continue.
[4] Exhibit A7.
[5] Exhibit A7 at [20].
[6] Exhibit A7 at [40].
When asked about the main considerations for the Court when making parenting orders in these proceedings, the CCE stated they were:
·The need to have clear lines of communication between the parents;
·Ensuring each parent had sufficient information about the children to understand what was going on with them. Children benefit from knowing their parents are interested.
·Consistency, safety and security; and
·Ensuring the orders were practical and workable, which may mean that one parent needs to bear inconvenience.
The father’s representative asked the CCE to express a view about the Our Family Wizard messages. She agreed that interpreting what was written was in the eye of the beholder and we all have subjective views about what is reasonable.
Dr K, clinical psychologist
The affidavit of Dr K, clinical psychologist, affirmed 10 November 2023 was received in evidence.[7] It annexed a report dated 6 November 2023 that was prepared at the request of the mother’s solicitors. Dr K has been the mother’s treating psychologist since 2018 and has not interviewed the father or the children.
[7] Exhibit A8.
Dr K’s views were that the mother presented with anxiety and panic attacks relating to the father’s mental health and the relationship breakdown. She described the mother as resilient, competent and as putting the needs of the children ahead of her own. Dr K said the mother has activated coping skills to continue her employment and maintain a sense of normality for the children, as well as being proactive in seeking help. She said the mother regularly sought advice in relation to managing distress and worry about parenting matters and communication with the father.
In Dr K’s opinion, communication between the mother and father has had a significant impact on the mother’s coping and wellbeing and, despite use of strategies, she continues to feel distressed and unsafe. Because of this, Dr K states that effective and safe navigation of parenting decisions may continue to be very difficult for the mother and are likely a source of unwelcome distress.
Dr K stated that the mother’s prognosis for the future is good because she is resilient, capable, independent and child focused. She also described the mother as insightful and proactive for herself and the children. Despite this, Dr K states that she will need continuing support to debrief, acknowledge her feelings and activate coping strategies, and that she would benefit from semi-regular psychological support.
In cross examination, Dr K agreed that the mother’s capacity for work and day-to-day life was good but communications with the father were a trigger that impacted this. When asked whether communication through a third-party would be of assistance and improve things for the mother, she stated that it would because managing communication safely and consistently was important.
Dr K agreed that rules and parameters governing communication were necessary, and that predictability and consistency were important for the children to reduce surprises and avoid rapid changes in plans. She agreed that both the mother and father appeared to be satisfied with the mother’s new partner assisting with communications between them. Dr K described him as a “buffer” that would assist.
Dr L, psychiatrist
Dr L, a consultant and forensic psychiatrist, had been engaged as a single court expert in the earlier proceedings. His reports described at [10] of these reasons were received by consent. Dr L had not reassessed either parent but instead had been asked by the ICL to read their trial affidavits filed in the current proceedings, two annexures to the father’s affidavit and the previous parenting orders made by the Court in May 2022.
Dr L was asked by the mother’s representative about the father’s risk of relapse if he were, on occasion, buying small quantities of alcohol. He confirmed that to “abstain” means not having any alcohol at all and people with an alcohol use disorder who were not abstaining had an increased risk of relapse because of the temptation to increase their use if things were not going well in their life.
When asked to explain the statistic that 30% of people with an alcohol dependency relapse in the first 12 months, Dr L confirmed that this 12 month period began when the abstinence began and reset with each relapse. He stressed that this was not a linear statistic.
Dr L agreed that visiting a bottle shop to buy cigarettes was a behaviour most people with a history of alcohol misuse would avoid if they could, because they wouldn’t want to put themselves in the path of temptation. Although he noted that someone with a long history of abstinence may be confident in resisting such temptation.
When asked to predict the impact and magnitude of a relapse by the father, Dr L stated that it would be difficult to predict and dependent on a range of factors. Significant relapse was far more likely if the father was in a situation with “nothing to lose”, whereas being in a functional relationship or appreciating the risk relapsing posed to his relationship with the children were given as examples of protective factors.
Dr L agreed that the more protective factors in place, the less likely it was that a significant relapse would occur. He also agreed that a third party could be an effective means for the parties to communicate, implying this was a protective factor.
The father’s representative asked Dr L to confirm his understanding of the father’s diagnosis, to which the reply was that the father had an alcohol use disorder, which was in remission, according to the definition in the DSM-V. Dr L’s opinion was that the father’s personality vulnerabilities were severe enough to warrant a diagnosis of a personality disorder but that they did not fully align with the particular traits of one specific category of personality disorder.
Dr L stated that individuals who had difficulty with emotional regulation, such as the father, are more prone to substance misuse as alternative means of regulating their emotions. He agreed that the focus should be on management of the alcohol use disorder, not on a “cure”, and gave therapy as an example of such management.
Dr L agreed that alcohol use disorder is a medical condition and explained the constraints it placed on a person’s decision-making capacity. He agreed that the father has demonstrated the capacity to abstain from alcohol when he is motivated and speculated that having the children in his care, when it was on an occasional basis, would amount to such motivation.
The father’s representative asked for Dr L’s opinion in respect of various tests or devices for measuring alcohol use. Dr L noted the limitations of CDT testing (being that it is more effective for measuring heavier use, over six standard drinks per day) and although he stated that being required to wear the Sober Safe device would be unlikely to attract stigma, he opined that its use may heighten the mother’s anxiety as something she may feel she needed to check all the time.
I asked Dr L about whether urinalysis may be an appropriate form of testing, in a situation where there was a regular regime for the father to spend time with the children on a once monthly basis. He agreed and confirmed it was an accurate form of testing for lower/moderate levels of alcohol, although he noted the results were accurate for a shorter time period (of approximately 1-2 days) and stated that he was less familiar with this test than others.
After I questioned him on the interaction of the father’s personality vulnerabilities and his alcohol use disorder, Dr L confirmed that it was “two way”: alcohol exacerbates the lack of control in people experiencing difficulties regulating their emotions but people with this difficulty are also more likely to use substances to change their emotions. He agreed that there needed to be a focus on the father improving his emotional regulation skills, referring again to therapy as a potential avenue for this.
The ICL asked Dr L whether he would class the father’s drinking of three to four beers in an evening as his being “in remission”. His answer was that this represented a partial remission, given it was someone with a history of alcohol use disorder. Dr L confirmed that where someone had a relapse or partial remission, undertaking a refresher therapy course was recommended.
On the risk of relapse, the ICL also asked Dr L to list any other protective factors and, in addition to those listed above at [57]-[58], he stated that steady employment, maintaining contact with his children and engaging in therapy, preferably with someone who could provide therapy as well as drug and alcohol counselling. Dr L explained that effective therapy would likely be an initial period of skill development where sufficient insight was gained such that if there was a risk of relapse in the future, they had the skills to resume therapy.
Finally, when asked about the text messages referred to by the mother in her affidavit,[8] Dr L agreed that the differences between these messages and others sent by the father would make him concerned for the father’s mental health.
[8] Discussed above in these reasons at [14](b).
EVALUATION AND FINDINGS – PARENTING
Although the children likely had a meaningful relationship with the father in the past, it is uncontroversial, and the father accepts, that his relationship with X has deteriorated and presently she does not wish to have contact with him.
The evidence of both parties was consistent in relation to Y and that she shares a reasonable relationship with the father and wishes to spend time with him. This is the case despite the fractured pattern of contact that occurred since final Orders were made by the Court in May 2022.
The father has a troubling pattern of alcohol use over many years and although he claims to have abstained at times, I consider it has been for brief and intermittent periods. I find that he has not sustained permanent abstinence and continues to drink alcohol but is in partial remission.[9]
[9] Accepting the evidence of Dr L referred to at [65] of these reasons.
I find that the mother’s evidence about the extent of alcohol abuse by the father is somewhat exaggerated. Although I do not doubt that the father drank either daily or most days, it did not constantly render him incapable of work, constantly abusive or unable to participate in family life.
Despite the finding above at [71], I accept that during the parties’ relationship the father on a significant number of occasions abused alcohol to the point of rendering him irritable and prone to aggression and verbal abuse, which in turn caused serious arguments between the parties, some of which were likely witnessed by the children.
Nevertheless, I accept and find that the father is aware of his alcohol abuse and has some insight into the adverse effects of it, particularly on his relationship with his children. Despite this, he seems unable to abstain from using alcohol consistently and permanently, and at times he is likely to abuse it.
I find that it is only when he is abusing alcohol – meaning drinking it daily or more than three or four standard drinks on any one occasion – that his behaviour with the children and interactions with the mother present the risk of harm as explained by Dr L and the CCE, whose views I accept.
Accordingly, I find that the father does pose a risk of emotional harm to the children by virtue of his alcohol abuse disorder, but I do not accept that the risk is an unacceptable one. Importantly, I find that the risk can be mitigated and managed.
On the evidence before the Court, which is either uncontroversial or which I prefer, I find as follows:
(a)The mother has a loving and close relationship with both children. As their primary carer for the entirety of their life, they are bonded with her and look to her for protection, guidance and safety.
(b)The father has a loving relationship with the children but has at times behaved in a way to make them (X to a greater extent) worried, frustrated and emotionally hurt because of his:
(i)Irritable and aggressive conduct when abusing alcohol; and
(ii)Inconsistency in maintaining contact.
(c)The mother has fully participated in decision making about long-term issues for the children and has spent time and communicated with them fully, consistent with her role as their primary carer and their mutually meaningful relationship.
(d)The father’s relationship with the children is inferred to be consistent with a hardworking father challenged by mental health and alcohol disorder. However, due to excess use of alcohol for periods, I find that he did not always participate to the fullest extent in the children’s daily routines and activities. I find that he also likely left it to the mother to make and arrange medical appointments, school and extra-curricular activities, although he had some input.
(e)No major change in the children’s circumstances is proposed by either party and it is agreed that the children should continue to reside with the mother in City B.
(f)As the father now resides in Western Australia and works on a rotating four weekly roster, I find that there is practical difficulty and expense relating to in-person time between the children and the father. However, electronic communications may be used despite the limitations relating to this, as highlighted by the evidence of both parties.
(g)I accept the evidence of Dr F and Dr L that although the father may try to provide for the emotional needs of the children, at times he is simply incapable of doing so due to limitations in his own mental health and his alcohol abuse disorder.
(h)X has developed maturity and is strong-willed and opinionated. It is important for her emotional wellbeing that her wishes and concerns about her father are acknowledged. I give her views considerable weight.
(i)X has expressed the attitude that currently she does not wish contact with the father and the father accepts and respects this.
(j)Y is likely to be more emotionally resilient, but the parenting orders made by this Court must be tailored to minimise the risk of emotional or physical harm that she may be exposed to by the father.
(k)Y is open to spending time with the father and has enjoyed doing so to varying extents in the past.
(l)The father has not paid child support according to an administrative assessment. He explained that this is because the mother had sought an exemption on grounds of family violence. This is not disputed by the mother and her representative did not challenge the father about the evidence. I am not prepared to make an adverse finding in relation to s 60CC(3)(ca) of the Act because the mother has been legally represented for most of the post-separation period and there is no evidence that she has sought to pursue child support. In the circumstances, I treat this consideration as neutral, including because I have not found the father’s family violence to have been as pervasive as claimed by the mother.
(m)Due to alcohol abuse disorder and other mental health conditions, the father has committed family violence in the nature of verbal abuse, derogatory taunts, verbal threats of harm and physical outbursts damaging property, including post-separation.[10] However, I do not accept this was pervasive and ever-present conduct, rather it was intermittent and occurred when the father was seriously abusing alcohol or suffering mental health compromise.
(n)I find that the father’s perpetration of family violence and alcohol abuse has likely caused some symptoms of anxiety for the mother because I accept the evidence of Dr K, which was not undermined.[11] However, the anxiety has not and does not affect her parenting or work capacity.
[10] See, eg, father’s affidavit filed 9 November 2023 at [111].
[11] Referred to above in these reasons at [47]-[52]
LEGAL PRINCIPLES – PARENTING
In parenting proceedings, the paramountcy principle applies and the Court is required to make orders that are in the best interests of the child/children.[12] Express direction is provided in s 60B(1) of the Act that this object is to be achieved by ensuring that the child has the benefit of both of their parents having meaningful involvement in their life, to the maximum extent consistent with the child’s best interest. The Court is to inform itself of the child’s best interests by the considerations in ss 60CC(2) and (3) of the Act.
[12] Section 60CA of the Act.
Section 60CC(2) of the Act requires the Court to make orders that are conducive to a child having a meaningful relationship with both parents, but not if this would detract from necessary protection of the child from physical or psychological harm or exposure to abuse, neglect or family violence. The assessment required also involves consideration of the many considerations in s 60CC(3) as relevant to the circumstances of any given case, but there is no ranking of importance or order of consideration of the relevant considerations.[13]
[13] See Aldridge & Keaton [2009] FamCAFC 229 and Slater & Light [2011] FamCAFC 1.
The Court is also to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility.[14] This presumption accords with the objective referred to in s 60B(1) of the Act. The meaning of parental responsibility is expressly but not exhaustively provided for in the Act.[15]
[14] Section 61DA(1) to 61DA(4) of the Act.
[15] Sections 61B and 65DAC of the Act.
Except in the case of consent orders, if the Court is satisfied that the presumption of equal shared parental responsibility applies and is not rebutted it must first consider if the child spending equal time with each parent would be in their best interest and if practicable, make such an order.[16]
[16] Section 65DAA of the Act.
If not persuaded to make an equal spend time with order, the Court must then consider whether the child spending substantial and significant time with each parent would be in the child’s best interests and if so and it is reasonably practicable, an order for substantial and significant time should be made. The meaning of “substantial and significant time” is provided for in s 65DAA(3) of the Act.
In MRR & GR [2010] HCA 4, the High Court provided guidance in relation to how the provisions in s 65DAA of the Act are to be applied and I have had regard to that authority. I am also mindful of the required decision-making pathway established in Goode & Goode [2006] FamCA 1346. All the considerations in s 60CC of the Act are to inform what is in the best interests of a child, which is relevant to making an order for equal shared parental responsibility if the presumption in s 61DA(1) of the Act does not apply by virtue of s 61DA(2), or making orders about equal or significant time when the presumption has been rebutted.
The approach to be taken in applying s 60CC(2) of the Act was discussed in detail in the first instance and appeal judgments in Isles & Nellisen [2022] FedCFamC1A 97 in the context of the assessment of risk where the mother of a child alleged that the father had sexually abused the child. The principles stated in my view are applicable to assessment of the nature and extent of risks to the child in these proceedings.
DISCUSSION AND CONCLUSION – PARENTING
It was apparent by the parties’ closing submissions that in relation to parenting there had been some movement in the parties’ positions. This led to me inviting the legal representatives to formulate an agreed minute of orders. The parties jointly provided a proposed minute of orders sought which identified agreed orders, orders that were sought by the father but not agreed by the mother, and orders sought by the mother but not agreed by the father.[17]
[17] Minute of Orders Sought sent by email on 17 November 2023 (“minute of orders”). Whether the ICL agreed to each party’s proposed orders was also identified.
The parties all agreed that the children should live in the primary care of the mother and in view of the findings above at [68] to [76], I am satisfied that this is in the best interests of the children.
The mother seeks sole parental responsibility, and the father seeks equal shared parental responsibility. Given the findings at [76](m) that the father has committed family violence, the presumption of equal shared parental responsibility is rebutted.
Further, I am persuaded that the mother should have sole parental responsibility and that this is in the best interests of the children because:
(a)The mother is the children’s primary carer and has proven her capacity to make major decisions for the children;
(b)It can be foreseen that that at times of mental health compromise or lapse into alcohol abuse, the father will not be able to effectively participate in joint decision making; and
(c)There are practical difficulties with the father being reliably involved in making major decisions, including communication difficulties, which both admit. This makes it likely that joint decision making would be frustrated.
However, the father should be kept informed about major decisions and events concerning health, education and extra-curricular activities before they are made. There will be an Order requiring the mother to communicate intent to make a major decision at least 28 days prior to a decision being taken.[18]
[18] Noting that this is [4] of the minute of orders and is agreed by all parties in its terms.
Concerning the children’s time with the father, the parties had been far apart but the father conceded that he would not wish to force X to spend time with him in light of her firm views and the evidence of Dr F. In effect, he was agreeable to an order that X spend time with him in accordance with her wishes.
In relation to Y, the father maintained that he should spend time in person with her and in cross‑examination seemed to concede that the time occur only in Tasmania. The parties now agree that the father should spend time and communicate with Y in City B on one weekend every eight weeks, for daytime periods on Saturday and Sunday.[19]
[19] Minute of orders at [10].
Noting the experts’ views referred to in these reasons, as Y’s attitude towards the father is being tested but because there is likely a meaningful relationship, I consider it in her best interests to spend regular time with the father in City B every eight weeks. There will be an Order largely consistent with the what the parties sought by agreement in the minute of orders.
The conclusion at [91] above is reinforced by my findings about the risk of alcohol abuse relapse, the distance between Tasmania and Western Australia and the fact that there is no evidence that Y could or would be able to self-protect and would be isolated if time occurred in Western Australia.
In his evidence the father conceded that there was a need for him to demonstrate sobriety immediately before and during time he spends with the children. He acknowledged the emotional toll on the children and mother due to their experience of him when abusing alcohol or suffering poor mental health.
I am persuaded by the evidence of Dr L that an accurate method of demonstrating sobriety and safety for the children in the father’s care is urinalysis testing. The father’s own evidence ultimately was that he would be prepared to undertake urinalysis testing prior to spending time with Y, providing this was practically available and manageable to ensure that the results were available for the mother prior to a visit.
The results of the testing will need to be communicated to the mother prior to commencement of time and if that has not occurred, I consider it reasonable and necessary for the mother not to facilitate time with the father due to the need to protect the children from risk of emotional harm, which I consider to be moderate. In arriving at this view, I accept the evidence of Dr K that the mother will facilitate time with the father, providing it is safe for the children.
It will be a pre-condition to the father spending time with Y that he demonstrate sobriety and abstinence from alcohol use. The minute of orders provided to the Court demonstrates a slight difference in approach by each party, but their common intent is that the father should demonstrate a negative test result for alcohol before spending time with Y.
As the parties agree that the father should spend time with Y on Saturday and Sunday every eight weeks, he will be required to produce a negative supervised urinalysis test or CDT blood test result for a test taken within three days of commencement of time with Y. The parties were not in agreement about the specific terms of the alcohol testing order.[20] In order to demonstrate sobriety at the time of a visit with Y, it is necessary to specify that the test be undertaken within a period of time close to the date of the visit. Simply specifying that the test be “prior to travelling to Tasmania” is inappropriate as it will not demonstrate proximate sobriety and will not permit a result to be communicated to the mother at a time shortly prior to the visit commencing.
[20] Minute of orders at [23].
The testing referred to above at [94]-[97] is necessary to mitigate the risk of emotional and possibly physical harm posed by the father’s medical conditions.[21] In the minute of orders there appeared to be dispute as to whether urinalysis testing should be undertaken on a supervised basis. To ensure the accuracy of a result, supervision of provision of the sample and chain of custody evidence is absolutely vital. For these reasons, supervision is required, consistent with usual orders made in this Court.
[21] See above in these reasons at [70], [74]-[76](b) and (g).
The father must then communicate the test result, regardless of what it is, to the mother via the Our Family Wizard app by 9:00am on the Saturday on which time is due to commence. Unless the result is communicated prior to the commencement of time, both the mother and consequently Y are likely to be adversely impacted due to fears of the father not complying with the spend time with order and/or being affected by alcohol such that the risk of harm caused by his conditions are more possible. It is in the best interests of Y that time only proceed if the father has provided a negative test result.
Given X’s strong views about not having contact with the father and the evidence of Dr F, which was not disputed, the only order about X spending time with the father that will be made is that it be at her election to participate.
Although it was suggested that the mother’s partner, Mr P, could facilitate communication to and from the mother, he did not provide evidence to the Court. By the minute of orders provided to the Court, the parties agree to an order in the following terms:
THAT [Mr P] provide an Undertaking to the Court to act as a third-party intermediary in communication between the Father and the Mother. This will be in regards to all relevant matters of communication between them.
I am unwilling to infer that Mr P is able and prepared to be the conduit for communications. As observed during the hearing, depending on how the father and Mr P approach communications, this could create more problems than it solves.
If Mr P attends Court at delivery of judgment and satisfies me that he understands his intended role and is comfortable and confident he and the father can effectively and politely communicate, I may be persuaded to accept an undertaking from him in relevant terms, but the Court does not have power to make an order in the terms expressed by the parties as Mr P is not a party to the proceedings. If the Court accepts a suitably expressed undertaking from Mr P, I could then make an order in terms requiring the parties to communicate via Mr P and specify what subjects and means of communication are to be.
It is apparent that the parties recognise the need for alternate orders about electronic communications between the father and the children. The agreed orders the parties propose as set out in the minute of orders at [17]-[21] inclusive are reasonable and they address the emotional risk issues in this case, so will be made in the children’s best interests.
There are some orders sought in the minute of proposed parenting orders provided by the parties that I am not persuaded to make. In particular:
(a)Proposed order 12 of the minute is unreasonable as it would mean that the child/children never spend Christmas day with the father. Christmas is a special time and a significant holiday and there should be some opportunity to share this with the father and the paternal family.
(b)Part of proposed order 14 involves an option of using S Family Services as the changeover venue for Y’s time with the father in City B. There will be sufficient costs incurred by the father in travelling to City B and I do not see the justification for use of an alternate service to C Contact Service, which poses an additional cost. Instead, the changeovers can be safely and adequately managed using a person nominated by the mother at Hungry Jacks.
(c)The mother seeks an injunction pursuant to s 68B of the Act restraining the father from entering the property at which she and the children reside. Noting that the father resides in Western Australia and that I have found the family violence by the father not to be as pervasive as claimed, I consider this injunction to be unnecessary.
LEGAL PRINCIPLES – PROPERTY ADJUSTMENT
The relevant statutory provisions and legal principles which govern proceedings for property adjustment under the Act are not contentious and are well-established.
The ultimate objective and task of the Court is to make a determination as to whether it should make orders adjusting property interests on the basis of what is just and equitable. Considerable guidance has been given by various authorities, but for present purposes it is sufficient to note the useful summary provided by Judge Reithmuller in Wagstaff and Wagstaff [2018] FCCA 927 (“Wagstaff”) from [118] to [137], referring to Stanford and Stanford [2012] HCA 52 (“Stanford”) and In the Marriage of Hickey (2003) 30 Fam LR 355 (“Hickey”).
In adopting the approach referred to in Stanford, I accept that the parties are in agreement that they were in a relationship for at least 14 years. Each party seeks orders to adjust their joint and respective interests in property and I am satisfied that it is in all the circumstances just and equitable to make orders pursuant to s 79 of the Act for the reasons expanded on below.
It is also necessary to take the well-known four step approach explained in Hickey and summarised in Wagstaff, being to:
(a)Identify the assets and the value of the assets in the property pool;
(b)Determine the contributions made by each of the parties to those assets, both directly and indirectly and in financial and non-financial terms;
(c)Determine whether any adjustment is required for s 75(2) factors; and
(d)In light of those findings, determine what orders for the division of property is just and equitable.
In view of the submissions on behalf of the mother, I also note relevant principles that are well settled in relation to what is typically argued to be wasteful conduct or negative contributions by a party warranting adjustment. In an often-cited passage, Baker J stated in Kowaliw & Kowaliw [1981] FamCA 70 at [10]:
As a statement of general principle. I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
EVALUATION AND FINDINGS - PROPERTY
Assets, liabilities and superannuation of the parties
The parties were agreed about the composition of their assets, liability and superannuation and most of their values. By reference to the common balance sheet,[22] I find that they are as follows, either by agreement or for the reasons given at [112], [113], [114], [118]-[119]:
[22] Exhibit C1.
Ownership Description Agreed Value ($) Assets 1 J[23] T Street, Suburb D 550,000 2 W U Street, Town R (half share) 90,000 3 W Motor Vehicle 1 – Value disputed 4,000 4 W CBA Account #...72 39,071.12 5 W CBA Account #...94 – Value disputed 1,261 6 H CBA Account #...13 3,118 7 H CBA Account #...19 (Q Company) 0 8 H CBA Account #...48 0 9 H Motor Vehicle 2 – Value disputed 5,000 Total non-superannuation assets: 692,450.12 Liabilities 10 J Mortgages secured over T Street, Suburb D & U Street, Town R 285,000 11 J ATO debt – BAS & income tax (Q Company) 87,353.16 12 J ATO debt – superannuation 28,416.61 13 W Loan to Mr & Ms G 20,000 14 J M Finance debt 20,782.28 15 J Judgment debt (secured by caveat) 7,500 16 J Debt owing to V Company 7,000 Total non-superannuation liabilities: 456,052.05 Superannuation Name of Fund Type of Interest Agreed Value ($) 17 W Superannuation Fund 2 Accumulation 72,183.39 18 H Superannuation Fund 3 Accumulation 17,952 19 H Superannuation Fund 4 Accumulation 14,662.92 20 H Superannuation Fund 5 Accumulation 6,965 Total superannuation: 111,763.31 [23] Use of “J” in the Ownership column denotes the finding by the Court that ownership of the item is joint. “W” refers to the mother/wife and “H” to the father/husband.
The values of items at lines 3, 5 and 9 were disputed. Regarding Motor Vehicle 1, the mother asserted that its value at trial was $2,500 according to the Redbook. However, no documentation from Redbook was tendered or is before the Court. Rather, there is sworn evidence from the mother in the financial statement filed 8 June 2022 that the estimated value of Motor Vehicle 1 is $5,000.[24] It is reasonable to infer that the passage of over one year would depreciate the value of the car and in the absence of any reliable valuation evidence of current value, I attribute $4,000 as the value of Motor Vehicle 1.
[24] Exhibit A1.
The father claimed that the value of savings in the “CBA Account [#...94]” was $2,033.34 and the mother claimed it was $489. I have no current bank statement for this account at the date of trial. In these circumstances, as the parties have not assisted the Court I consider the only approach open is to attribute the sum of $1,261 (rounded), being the median value for the purposes of identifying the parties’ assets in the balance sheet.
The evidence about Motor Vehicle 2 is scant and unhelpful. In the common balance sheet, it appears that the parties agree Motor Vehicle 2 was the father’s vehicle, but his evidence was that it was owned by the business.[25] Counsel for the mother did not put to the father that he received the $5,000 as proceeds from the vehicle when it was sold, but in all the circumstances I infer that the father more likely sold the vehicle and had the control, and therefore benefit, of the funds. The father certainly did not say that the funds went into the business to extinguish debt. Doing the best I can with the state of the evidence as it is, I infer that the value of Motor Vehicle 2 to be included as an asset of the relationship is $5,000 and that the father received those sale proceeds.
[25] See [29](b) of these reasons.
The existence and value of liabilities to the ATO, M Finance, V Company and a judgment debt secured by caveat were agreed, but “ownership” of these liabilities was disputed by the mother. In her case outline, she submitted that taxation and credit card debts should be excluded from the asset pool either because they were incurred due to recklessness by the father in financial management of the business or because she had paid off credit card liabilities since separation, but the father had not.
Importantly, the mother did not dispute the existence of the liabilities or that most of those debts initially arose during the relationship and some related to the family business which ultimately failed.
The submissions on behalf of the mother referred to above at [115]-[116] were expanded upon in written submissions filed on her behalf pursuant to Order 5 of the Orders made on 15 November 2023 at the conclusion of the defended hearing. The submissions became that the Court should take into account various factors as negative contributions either during or post-separation.
The submissions on the mother’s behalf are frankly confusing and there still is a lack of clarity about how it is argued the Court should treat the liabilities. As best as I can discern, the liabilities are conceded to be liabilities of the relationship but the mother argues that the father’s negative contributions in respect of the debts, and other factors, warrants a 10% adjustment in her favour and she no longer seeks that they be assigned solely to the father.
If I am wrong about the intended interpretation of the mother’s position and she still seeks that the liabilities referred to above at [115] be assigned solely to the father, I reject that submission because it is plain that the liabilities initially arose during the relationship and were related to the business, which provided the income for the family’s support. To the extent the liabilities have not been reduced post separation, this is addressed in my reasoning below.
Contributions - Financial
The parties agreed that neither had any assets of significant worth at the commencement of the relationship and I find accordingly.[26]
[26] Mother’s affidavit filed 25 October 2023 at [24] and father’s affidavit filed 9 November 2023 at [36].
The mother claimed that her financial and other contributions during the relationship were greater than those of the father. Particularly, that her half-interest in the property at Town R, now valued at $90,000, had enabled the parties to secure finance to purchase the former matrimonial home at Suburb D.[27]
[27] Mother’s affidavit filed 25 October 2023 at [25] and [29].
However, as the Title search referred to in the father’s affidavit shows, she acquired her interest in the land in 2009 and the only mortgage registered on the title to the land was registered at the same time. As this was some five years prior to the purchase of the Suburb D property, it is difficult to accept that the loan for the former matrimonial home at Suburb D was formally secured against the land at Town R. The mother stated in her evidence that there were two loans secured against the land regardless of what the Title said.
The father’s evidence was to the effect that the mother’s interest in the land enabled them to obtain the loan required to purchase the former matrimonial home.
I find the mother’s interest in Town R represents a financial contribution that was not matched by the father and permitted the purchase of the former matrimonial home. The mother’s contribution in this way was early in the relationship which lasted some 14 years and this impacts on the weight of the contribution.[28] I allow a 5% adjustment for the early financial contribution by the mother as discussed above.
[28] Jabour & Jabour [2019] FamCAFC 78 at [51]-[57].
The mother submits the Town R contribution represents 44% of the net non-superannuation assets.[29] This does not appear to assist in assessing contributions holistically according to the required approach. It verges on a mathematical approach, which is not consistent with the authorities.[30]
[29] Mother’s case outline filed 13 November 2023, p 8 at [7].
[30] See Chapman & Chapman [2014] FamCAFC 91 at [39]; Harris v Caladine [1991] HCA 9; 172 CLR 84; and Ferraro & Ferraro [2010] FamCA 142.
The mother also claimed that the deposit for the Suburb D property was made using money she had saved from earnings after returning to work after X’s birth and was in an account in her sole name. The father agrees the deposit may have been paid from her account but strongly maintained that the source of the savings was income from both parties’ earnings.[31]
[31] Father’s affidavit filed 9 November 2023 at [41].
It seems likely that the savings were made by the mother but only possible because the parties collectively applied their respective incomes to meet the expenses of their household and family. In the absence of forensic evidence that permits a finding to the contrary, I am not satisfied that the deposit was solely from, and only because of, the mother’s earnings. No allowance in the mother’s favour is made on the basis of this contention.
The mother asserted that she was the main financial contributor during the relationship.[32] Without objective original records in evidence, such as tax returns or notices of assessment proving her earnings and those of the father, I am not inclined to accept the assertion. Indeed, the table presented at [46] of her affidavit filed 25 October 2023 reflects at best for her that between the 2010 and 2013 financial years she earned more, but in the 2014 to 2018 financial years, the father earned more.
[32] Mother’s affidavit filed 25 October 2023 at [38].
The father states, and it was not disputed, that he qualified as a tradesperson in 2002, worked at W Company as a contractor and then later operated the business Q Company and worked at Z Company.
Taking into account the father’s evidence at [52] onwards of his affidavit filed 9 November 2023, which was not particularly challenged, collectively the parties evidence establishes that their incomes fluctuated and at various times one earned more than the other,[33] but holistically assessed there is no basis to make a finding that the periodic or income contributions of one party exceeded those of the other. The parties appear to have collectively worked and pooled their efforts to provide sufficient income for the welfare of the family and no adjustment is warranted,[34] subject to the finding below at [144].
[33] Mother’s affidavit filed 25 October 2023 at [46]
[34] See Bevan & Bevan (2014) FLC 93-592; Chapman & Chapman (2014) FamCAFC 91; and Bulow & Bulow [2019] FamCAFC 3.
The mother alleges negative financial contributions by the father,[35] on the basis that he:
·Spent money on alcohol misuse;
·Did not always work due to being hungover or because he was in rehabilitation or out drinking rather than being at work;
·Damaged phones and tools, which needed replacement; and
·Did not have a driver’s licence during periods of disqualification.
[35] See mother’s case outline filed 13 November 2023 at [8] and affidavit filed 25 October 2023 at [44].
The mother submitted in her case outline that a 70/30% adjustment on a contributions basis alone was justified. I sought clarification of this and made an Order giving both parties leave to file additional written submissions about this topic.[36] The mother’s solicitors did so but the father’s solicitors did not reply, although given liberty to do so. The mother’s written submissions addressed only financial contributions to explain the 70/30% adjustment sought on a contribution’s basis.
[36] Order 5 of the Court’s Orders made 15 November 2023.
Ultimately the mother’s submissions relating to financial contributions can be summarised as follows:
·That the father’s expenditure on alcohol and cigarettes is to be considered as part of the miscellany of contributions.
·That the evidence before the Court demonstrates that, in effect, the father conceded during cross-examination that between April 2020 and September 2023[37] he spent $40,000 at venues that sold alcohol and cigarettes and of that spending, 10% of $13,500 or $1,350 was for cigarettes.
·That the Court should infer and find that about $38,650 was spent on alcohol by the father and that this was comparable to the expenditure during the relationship as stated by the mother.[38]
[37] Approximately 176 weeks.
[38] Being an average of about $200 per week, per the mother’s affidavit dated 25 October 2023 at [43].
Although the evidence referred to in the mother’s post-hearing submissions is not rebutted, I have carefully reviewed the evidence given by the father about the entries in his bank statements. I do not accept that I should infer that he spent $38,650 on alcohol between April 2020 and September 2023. During cross-examination, the father repeatedly referred to also purchasing other items such as food at the venues cross examined about. Further, the father has had full control of his spending post-separation whereas during the relationship, at least from 2016, the uncontested evidence is that the mother restricted the father’s spending. Accordingly, it is not logically open to extrapolate from spending post-separation a figure for pre-separation spending on alcohol.
The father frankly conceded that he lost his licence and that the mother drove him to work at times. He also admitted periods of rehabilitation but otherwise disputed and denied the wide‑ranging allegations relating to negative contributions. The overall effect of his evidence was to acknowledge that his alcohol use had some adverse impact on the family finances but deny it was to the large extent implied by the mother.
The mother gave examples of the negative impacts of the father’s alcohol misuse, which have clearly been ingrained in her memory, but the record of earnings set out in her affidavit are inconsistent with widespread and pervasive negative financial impacts caused by the father’s alcohol-related problems as he was able to work and derive considerable income.
The evidence does not persuade me that the father was negligent, reckless or wanton in relation to expenditure on alcohol or not working and earning. Further, the unchallenged evidence is that his alcohol use was due to psychological conditions that were not his fault and, in my view, cannot be characterised as negligent, reckless or wanton.
The written submissions for the mother also invited the Court to draw a negative inference due to the non-disclosure of bank statements from the date of separation to April 2020. The father was unrepresented for part of these proceedings, and he stated that he provided his current lawyers with the documents they requested of him. In these circumstances, I am not satisfied that he was motived to conceal expenditure on alcohol, which is the effect of what was submitted on the mother's behalf.
I am not prepared to accept the contentions that the father caused the business, Q Company, to be unprofitable or less profitable or incur liabilities that have not been properly met by him. Where the mother’s own evidence is that she became involved in the business in 2016 and was at least in part responsible for its administration and management, it is unpersuasive to shift all the failings of the business to the father alone. Put simply, the evidence fails to persuade me that the business failed solely due to the father’s reckless, negligent or wanton actions.[39]
[39] Polonius & York [2010] FamCAFC 228.
In any event, I prefer the submission of counsel for the father that the business was a family one and both parties collectively worked to run it, for the most part as best they could except for the father’s mental health and alcohol abuse disorders. I do not consider that the authorities cited in support of the mother’s contentions stand for the proposition that where a party with psychological disorders mismanages or underperforms in a business, they are to be taken to have made a negative contribution or for the other party’s contribution to be greater in the overall assessment of contributions.
The evidence does not permit findings that he would have otherwise earned more in the business if he did not suffer the disorders, noting that profits are impacted not only by income, but a multitude of factors, including flow of work, potential cost over-runs, unexpected liabilities etc. Secondly, there is controversy about why the business got into financial difficulty.[40] In essence, the mother says it was because of the father’s alcohol misuse and related behaviours and the father says it was because of poor management and administration. He also suggests that the mother took payments to contribute to superannuation rather than pay liabilities, but there is no probative forensic evidence about either parties’ allegations.
[40] Mother’s affidavit filed 25 October 2023 at [45]-[53] and father’s affidavit filed 9 November 2023 at [58]-[73].
The simple fact is that the business failed during the relationship, leaving considerable liabilities. In my view, the burden of this is to be shared given the nature of the family business and the involvement of both parties in various ways in running it and benefiting from it. I am not persuaded that the business failed because of intentional, negligent, reckless or wanton conduct by the father. Further, to the extent that the father’s alcohol use may have caused him to work or earn less than optimally, it was most likely due to his psychological conditions.
The authority of Krotofil & Krotofil (1980) FLC 90-909 (“Krotofil”) at [14] was cited in support of the submission that an adjustment in the mother’s favour was warranted for the reasons referred to at [131]-[133] of these reasons when assessing financial contributions. However, the factual circumstances of that case are very different to this one. The Court had made a finding that the mother and another family member had been “mainly running the business” due to the father’s alcohol abuse. There is no evidence in this case that the mother was mainly running the business. Further and in any event, the allowance made by the Court in Krotofil for alcohol misuse by the husband was only “slightly more”.[41]
[41] At [15].
Noting the father’s concessions referred to at [135] of these reasons, I consider it appropriate to allow, in a broad-brush way, a very small adjustment of 1% in favour of the mother for the matters referred to at [131] of these reasons when assessing financial contributions.
The mother also contended that an allowance should be made in her favour for:
(a)The failure by the father to reduce debt post-separation; and
(b)The father’s expenditure on cigarettes pre and post-separation.
I took these submissions to be similar to, and consistent with, those relating to alcohol use and that it was to be considered in the “miscellany” of contributions.[42]
[42] Jabour & Jabour [2019] FamCAFC 78 at [136].
I was not directed to any authority relating to expenditure on cigarettes being a factor to be weighed negatively in the assessment of contributions. Smoking is a habit or past-time, it is indistinguishable, although markedly more harmful to health, than the cost of other habits or past-times, such as attending a gym, holidays, dance classes or eating out. Unless shown to be wildly excessive and disproportionate in the context of the family finances, I do not accept that such expenses, are a legitimate basis for negative allowance in the “miscellany of considerations”. Factually, this case is markedly different to authorities that have found expenditure on luxury cars or holidays by a party to be wasteful and extravagant and so taken them into account pursuant to s 75(2)(o) of the Act.[43]
[43] See, eg, Sebastian & Sebastian (No.5) [2013] FamCA 191 at [958]-[963].
The father admitted that he had not reduced post-separation debt. The evidence before the Court about the father’s post-separation income is:
(a)That immediately post-separation his mental health was very poor, and I infer he was not earning significant sums for a period.
(b)During Covid, from early 2020 until early 2021, the father was out of work. He said he had access to his superannuation and some Centrelink benefits during this time.
(c)That he has earned, on average, $102,735 per annum since early 2021.[44]
(d)In 2022, he was earning about $1,600 gross per week, but his expenses were about $1,200, leaving modest excess for savings consistent with the sum disclosed in the Financial Statement in evidence.[45]
[44] See father’s affidavit filed 9 November 2023 at [15], which was consistent with his oral evidence.
[45] Exhibit R2.
The evidence referred to at [147] above persuades me that the father could have applied his modest excess income from at least 2022 towards reduction of matrimonial debt but did not do so. I accept that this has led to interest accruing on the various matrimonial debts identified at [115] of these reasons. However, the mother has savings and at the time of filing her Financial Statement in 2022 had a surplus of income over expenses of about $400 per week, similar to the father. As [67]-[68] of the mother’s affidavit was not contested, I accept that she applied some of her superannuation and monies borrowed from her aunt and uncle to reduction of matrimonial debt. However, the reduction of debt from superannuation and borrowing from aunt and uncle merely transferred the burden of the debt, it did not reduce it. I make no allowance for the failure of both parties to reduce matrimonial debt to the greatest extent possible.
I accept the mother alone paid the mortgage repayments, either principal and interest or interest only after separation, but she had the benefit and comfort of living in the matrimonial home.
In the circumstances described at [145]-[149] I am not persuaded that an adjustment for or against any party is required when assessing financial contributions.
Non-financial contributions
The mother’s evidence was that she was the main contributor by way of homemaking and parenting during the relationship.[46] In his lengthy trial affidavit, the father does not dispute this and it was not challenged in cross-examination. I therefore accept the mother’s evidence and find accordingly.
[46] Mother’s affidavit filed 25 October 2023 at [54].
The father’s own evidence was that post-separation he struggled with his mental health and experienced periods where he required rehabilitation treatment. I infer that he was probably less available either physically or emotionally to care for the children at times. The mother’s greater homemaking and parenting contributions pre and post-separation require an adjustment of 7% in her favour.
On a contributions basis alone, the adjustment in favour of the mother required is 13%, being 5% for initial financial contributions,[47] 1% for the small impact of the father’s alcohol use on family finances,[48] and 7% for non-financial contributions.[49]
[47] See [124] of these reasons.
[48] See [144] of these reasons.
[49] See [152] of these reasons.
Future needs and other s 75(2) considerations
The parenting orders that will be made mean the mother will indefinitely be the primary carer of the children. This will require an allowance pursuant to s 75(2)(a) to be made, but as the children are approaching 14 and 9 years of age, they will be gaining more and more independence and the demands on the mother should logically reduce somewhat.
The parties are a similar age and apart from the evidence about the father’s psychological/medical conditions, there is nothing to suggest that they will not work and exercise earning capacity. Despite the mother’s emotional challenges that were the subject of Dr K’s evidence, I accept that she is resilient and about to work effectively.
The mother’s income and earning capacity into the future is likely to be modestly less than that of the father, given the disclosed and uncontested evidence about their respective earnings.[50]
[50] Mother’s affidavit filed 25 October 2023 at [14]-[15], mother’s financial statement filed 8 June 2022 at p 3, father’s affidavit filed 9 November 2023 at [15]-[16], and father’s financial statement filed 21 July 2022 at p 2.
Neither party adduced specific evidence about limits on their capacity to earn in the future because of health, age or other reasons. However, the evidence of Dr L and the father which was not challenged about his psychological/medical conditions leads me to infer that there may be short periods when he has relapses, and his earning capacity may be impacted.
Balancing the findings made about the considerations at [155]-[157] of these reasons, I am not persuaded that there is reason to make an allowance in favour of one party pursuant to s 75(2)(b).
There is uncertainty about how and when the father will contribute to the financial support of the children, and this is potentially relevant pursuant to s 75(2)(d). However, in view of his earnings as disclosed he ought to be contributing and this would occur if the mother sought an administrative assessment of child support. The nature of the findings of family violence are such that I do not accept that the mother should avoid applying for such an assessment and asking that it be collected by the Child Support Agency on a garnishee if required.
Both parties have formed new relationships, and I reasonably infer that they each receive some support emotionally and financially from their new partners.
Taking all the above matters into account pursuant to s 75(2) of the Act, I am of the view that the adjustment necessary for relevant considerations in s 75(2) is 8% in favour of the mother.
Neither party made submissions about other considerations in s 75(2) of the Act being relevant and so I reasonably assume that they are not relied upon.
Although the mother contended in her case outline that her experience of family violence during the relationship made her contributions more arduous,[51] the submission was not expanded upon in any meaningful or useful way during the oral closing submissions at the hearing.
[51] Mother’s case outline filed 13 November 2023 p 7, at [4].
To the extent that the mother purported to rely on a “Kennon adjustment”, it is important to highlight that simply referring to family violence making contributions more arduous is not helpful or probative in assessing contributions and adjusting the parties’ assets, liabilities and resources. In Benson & Drury [2020] FamCAFC 303, Justices Strickland, Watts and Austin conveyed this in the following terms:
We pause to note that although sometimes, in the context of the Kennon argument, words such as “adverse impact”; “more arduous” or “more onerous” are used, the guideline requires the conduct of one party to have had a significant adverse effect on the contributions of the other or to have had made that party’s contributions significantly more arduous than they ought have been. The conduct has to have had a discernible impact upon the contributions of the other party (Kennon at 906).
The guideline has been repeatedly adopted and consistently applied over many years (see for example: S & S [2003] FamCA 905 (“S & S”); Hill and Hill [2005] FamCA 42; (2005) FLC 93-209 at [70]–[71]; Stevens and Stevens [2005] FamCA 1304; (2005) FLC 93-246 at [52]–[67]; Baranski v Baranski and Anor [2012] FamCAFC 18; (2012) 259 FLR 122 at [250]–[263]; and Maine v Maine [2016] FamCAFC 270; (2016) 56 Fam LR 500 at [52]).
Although I have found that the father perpetrated family violence and accepted it caused the mother some anxiety,[52] I have not accepted that it was widespread and pervasive,[53] and though it had some impact on the mother and children, it has not been shown to have had a significant impact on the mother’s contributions. Indeed, Dr K stated the mother was resilient and able to effectively parent and work.
[52] See [76](n) of these reasons.
[53] See [76](l) and (m) of these reasons.
CONCLUSION – PROPERTY
The total required adjustments in favour of the mother described in the Court’s findings and reasons results in a 71/29% adjustment of the net assets. Viewed holistically in light of all the relevant considerations I have discussed, this outcome is just and equitable in my view.
The overall 90/10% adjustment sought in favour of the mother is disproportionate and not warranted given all the findings I have made. This is particularly so because the relationship was a relatively long one and the number or extent of negative contributions submitted by the mother have not been established.
The parties have not formulated the orders they seek in the property proceedings in a manner that is specifically referrable to the assets, liabilities and superannuation identified at [111] of this judgment. Nor have they addressed whether there should be a one pool or two pool approach. There is no feature of this case warranting different adjustments of the net non‑superannuation and superannuation assets.
Co-incidentally, the value of the mother’s superannuation interest is only about $7,000 less than 71% of the total value of the parties’ superannuation. In the mother’s proposed orders, she sought an order that each party retain their own superannuation, but I do not know if that was intended or whether she sought an adjustment by other means or a superannuation split order to give effect to the Court’s determination of what is just and equitable.
It will be necessary for me to hear submissions about this before the Court pronounces final orders pursuant to s 79 of the Act.
I certify that the preceding one hundred and seventy (170) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 22 March 2024
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