Trafford & Cuthbert
[2024] FedCFamC1F 2
•12 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Trafford & Cuthbert [2024] FedCFamC1F 2
File number(s): BRC 11370 of 2020 Judgment of: BAUMANN J Date of judgment: 12 January 2024 Catchwords: FAMILY LAW – CHILDREN – Best interests – Where the children have spent limited time with the father since separation of the parents occurred in 2020 – Where the children have received significant therapeutic assistance – Where the mother expresses difficulty in facilitating the children’s relationship with the father – Where father seeks change of residence and moratorium of time – Where the mother seeks the children spend no time with the father – Final orders made for older two children to spend time with father in accordance with their wishes – Interim order made for younger child to obtain further therapeutic support in an endeavour to reunite with father
FAMILY LAW – PROPERTY – De facto property pool – Orders made that achieve justice and equity
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 90SF, 90SM(4) Cases cited: Goode & Goode (2006) FLC 93-286
Hickey & Hickey (2003) FLC 93-143
Stanford & Stanford (2012) 247 CLR 108
Trafford & Cuthbert (2022) FedCFamC2F 1180
Division: Division 1 First Instance Number of paragraphs: 109 Date of last submission/s: 5 April 2023 Date of hearing: 23-25 January & 5 April 2023 Place: Brisbane Counsel for the Applicant: Mr J Bunning Solicitor for the Applicant: Simonidis Steel Lawyers Counsel for the Respondent: Mr J Linklater-Steele Solicitor for the Respondent: Ritt Law Counsel for the Independent Children's Lawyer: Ms K Carmody Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 11370 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TRAFFORD
Applicant
AND: MS CUTHBERT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
12 JANUARY 2024
THE COURT ORDERS ON A FINAL BASIS:
Parental Responsibility
1.That the mother have sole parental responsibility for the long term-care, welfare and development of the children X born 2009 and Y born 2012 including but not limited to:
(a)the children’s health and medical treatment
(b)the children’s education
(c)the children’s religion and cultural upbringing;
2.That in the exercise of sole parental responsibility the mother will:
(a)Inform the father in writing of any decision to be made together with any supporting information or referral;
(b)Allow the father at least 7 days in which to reply, unless the decision to be made requires a shorter time frame;
(c)Genuinely consider the father’s written response when making the decision; and
(d)Advise the father as soon as possible in writing of that decision that his been made.
3.That the mother shall advise the father at least forty-eight (48) days in advance of her intention, if any, of relocating the residence of the children X born 2009, Y born 2012 and Z born 2017 (collectively “the children”) greater than 150 kilometres from the B Council region.
4.That the child Z attend C School from 2024.
5.That the children X and Y be at liberty to attend upon their current counsellors and/or psychiatrist who shall be provided with a copy of the Reasons for Judgment and the family report of Ms D.
6.That the mother be restrained from changing the children’s surname from Trafford.
Live with
7.That the children live with the mother.
Spend time with and communicate
8.That there be no Orders in relation to the time that the children X and Y spend time with the father.
9.That in the event X and/or Y express a wish either to the mother and/or their respective counsellors, who then inform the mother of the same, to spend time with and/or communicate with the father then the mother shall facilitate this by advising the father of the same in writing and arranging for time for communication to occur.
10.That the father and his family be at liberty to send letters and presents to the children for their birthdays and Christmas and the mother will ensure the letters and presents are given to the children.
Expectation of conduct of parents
11.That each parent shall be restrained from denigrating the other parent or members of their family to or in the presence or in the hearing of the child/children and will remove the children immediately from the presence of any third party seeking to do so.
12.That each parent will not discuss these proceedings, or the allegations raised in the proceedings with the children unless the same occurs in the company of and with the express recommendation of the children’s or any of the children’s counsellors, and will otherwise, unless in accordance with this order, will remove the children immediately from the presence of any third party seeking to do so.
Exchange of Information and Authorities
13.That these Orders are sufficient authority for any school attended by the children or any one of them, to release to the parties information in relation to the children’s/ child’s educational progress and other related activities and to supply each party with reports, photographs, certificates and awards as and when requested and at the expense of the party making the request.
14.That the Mother keep the Father advised in writing as soon as possible and at least within 24 hours of the event/information becoming available of all significant health issues experienced by the children and details of all relevant service providers and advise the Father immediately upon any of the-children experiencing any medical emergency including details of the treatment provided, the name of the relevant service provider/sand the location and by this order authorizes the release of information, reports and results to the Father, upon his request
15.That this Order be sufficient authority for any treating medical or allied health service provider to provide any information required by the parties from time to time in relation to the children and or any one of them, to and at the expense of the requesting party.
16.That the parents keep each other informed at all times of their residential address, email address and mobile/telephone number and notify each other within forty-eight (48) hours of any change to these details.
17.The parents communicate by email or letter or parenting app with the parenting app to be agreed as agreed in writing, in relation to arrangements regarding the care, welfare and development of the child/children and by text message in the event of any emergency.
18.That once the scrap book created by Z in sessions with Ms E (“the scrap book”) is available and released from the Court file (noting it is currently an Exhibit) that the father be entitled to obtain from the Court and retain the original copy of the scrap book.
19.That each parent has leave to provide a copy of the scrap book to any counsellor or psychologist upon whom Z may attend.
Dispute Resolution
20.That in the event that there is a dispute about the children or about the interpretation, implementation or enforcement of these orders, before making any further application to a court the parents will:-
(a)either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (as amended) or by the Commonwealth Attorney‑General; or
(b)participate in family dispute resolution (FDRC) with a family relationship centre or a person authorised under s 10g of the Family Law Act 1975 (as amended).
21.That a parent who seeks to vary these orders must first take the following steps:-
(a)Identify in writing to the other parent their proposed variation and seek a response in writing and
(b)If there is no response or agreement in writing, then the parent who seeks to vary this order will propose in writing to the other parent 3 (three) Family Dispute Resolution Practitioners (FDRP) identified for the purposes of attending family dispute resolution and request the other parent will select an FDRP within 7 days and advise the other parent in writing of their selection.
(c)If there is no nomination an FDRP within 7 days the parent who seeks to vary these orders may nominate an FDRP from the list forwarded to the other parent and then will advise the other parent in writing of the FDRP they have nominated.
22.That once an FDRP has been nominated, that both parents will within 7 days contact the FDRP to arrange for intake interviews and comply with all requests of the FDRP to arrange mediation and attend as and when directed by the FDRP.
23.That the parents will share the costs of Family Dispute Resolution equally for all joint sessions and preparation by the FDRP excluding intake sessions where each parent will pay the costs of their own intake with the FDPR.
THE COURT ORDERS ON AN INTERIM BASIS PENDING FURTHER ORDER:
24.That the parents shall have equal shared parental responsibility for the major long term decisions for Z born 2017.
25.That the child Z shall spend time with the father at F Contact Centre (or at such other contact centre as may be agreed between the parties) on the following conditions:
(a)The visits are to occur weekly for an initial period of up to two (2) hours on either a Saturday or Sunday, are the parties agree.
(b)The parties shall complete all necessary intake procedures within twenty-one (21) days from the date of this order.
(c)Subject to availability of the contact centre, the time shall commence after March 2024.
(d)The costs of supervision shall be paid by the father.
(e)F Contact Centre shall be provided with a copy of these Reasons for Judgment, the family report of Ms D and the affidavit and report of Ms E, by the Independent Children’s Lawyer.
26.That the Independent Children’s Lawyer be at liberty to apply to have the matter re‑listed.
27.That unless otherwise relisted, the parenting proceedings shall be listed for further Case Management Hearing before Justice Baumann at 9.30am on 12 June 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
Property
28.That these property proceedings be for pronouncement of property orders at 9.30am on 13 February 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
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 the pseudonym Trafford & Cuthbert has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
When the parents of three children separated in May 2020, it is unlikely they anticipated they would be consumed by over three years of strenuous litigation; numerous strategies seeking to establish enduring physical contact between the father and the children – none of which have frankly been successful.
The parties also were in dispute about how to adjust their modest pool of assets created mostly during their 12-year de facto relationship.
What orders are possible that are likely to create an enduring and sustainable change in the best interests of the children now aged 14, 11 and 6 has been an extremely difficult decision. The first part of these Reasons deals with the parenting dispute, with the later part dealing with the property dispute.
PARENTING DISPUTE
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the children.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
COMPETING PROPOSALS
Although, since the commencement of proceedings initially filed by the father in 2020, there have been many varied proposals, by the time of the final submissions delivered by Counsel – Mr Bunning for the father; Mr Linklater-Steele for the mother and Ms Carmody for the Independent Children’s Lawyer – the final positions contended for demonstrated why it has been impossible to resolve this matter by any other means than a trial – which began in January 2023 but was sadly delayed by the unavailability of Counsel until 5 April 2023, where final submissions were made. To this delay, the Court feels bound to accept and express its regret in the delay in the publication of these Reasons.
Independent Children’s Lawyer’s position
As revealed in Exhibit 26, the Independent Children’s Lawyer contends for the making of an interim order, as set out at Appendix One to these Reasons, the orders effectively differentiate between the 3 children and provide that:
(a)The children shall with the mother;
(b)There be no orders for the children X and Y to spend time with the father, unless they express a wish to do so;
(c)That after a moratorium of six months, the child Z shall commence spending supervised time with the father; and
(d)12 months after the orders the matter be listed for mention before me for further Case Management.
Counsel for the mother described the proposal of the Independent Children’s Lawyer as reflecting “hope and aspiration”, but with no chance of being successful, if crafted to establish a relationship between the father and any of the children.
Father’s position
Eventually the father contends that the only way the children can have a relationship with him and retain a relationship with the mother, is for there to be a change of residence which is his primary proposal. The father’s proposed minute is contained in his second Further Amended Initiating Application filed 9 January 2023. The minute contains an alternative, if the Court decided the children live with the mother. The proposals provide essentially that:
(a)If there is a change of residence, then there is a moratorium for 3 months, after which unsupervised time with the mother shall recommence each alternate weekend and for part of the school holidays (up to a total of 4 weeks); and special days.
(b)If there is no change in residence, then the children will spend unsupervised time with the father, increasing from 2 hours each Sunday and over 28 weeks until the time occurs each alternate week from after school and/or kindy Wednesday to before school and/or kindy Monday (a block of 5 nights). From Christmas 2023 school holiday time will occur.
The father’s proposals seek an order in similar terms (see proposed order 16 and proposed order 39) that the children attend upon “[Ms G] or such other person nominated by the father at all times as directed by [Ms G] and that the costs of the children’s appointments be paid by the father.” Later in these Reasons I discuss the evidence of Ms G.
Mother’s position
The mother’s position is simple and is set out in Exhibit 29, which I incorporate now:
1.That the Mother have sole parental responsibility for the long term-care, welfare and development of the children [X] born […] 2009 and [Y] born […] 2012 and [Z] born […] 2017 including but not limited to:
a. the children’s health and medical treatment
b. the children’s education
c. the children’s religion and cultural upbringing;
3.That the children live with the Mother
4.The children [X] born […] 2009 and [Y] born […] 2012 and [Z] born […] 2017 spend no time and have no communicate with the Father.
5.That each parent shall be restrained and shall refrain from denigrating the other parent of members of their family to or in the presence or in the hearing of the child/children or allow a third party to do so.
6.That these Orders are sufficient authority for any school attended by the child/children from time to time to release to the parties information in relation to the child/children’s educational progress and other related activities and to supply each party with copies of reports, photographs, certificates and awards as and when requested and at the expense of the party making the request.
7.That the Mother advise the Father immediately upon any of the-children experiencing any medical emergency including details of the treatment provided and the name of the relevant service provider/s and the location.
8.That the parties keep one another informed at all times of their residential address, email address and mobile/telephone number and notify one another within forty-eight (48) hours of any change of these details.
9.The parties shall communicate by email or letter in relation to arrangements regarding the care, welfare and development of the child/children and by text message in the event of any emergency.
(As per original)
In short, the mother seeks an order that the children spend no time and have no communication with the father.
To better understand how the 3 parties came to the conclusion that the orders they seek are in the best interests of the children, it is necessary to provide a contextual history of both the family history, as well as the somewhat torturous procedural history these parents have experienced.
MATERIAL RELIED UPON BY THE PARTIES
Applicant father
Apart from his oral evidence, the father relied upon the witnesses set out in his Case Outline, many of whom have provided affidavits in July 2022 before the ultimately abandoned trial before Judge Vasta. Apart from the paternal grandmother, Ms H, none of the witnesses were required for cross-examination before me.
The father relied upon an affidavit of Ms G – a social worker who claims to be a specialist in “parent-child alienation and child psychological abuse by alienation from a functioning parent, in the context of family separation”. Properly, Ms G acknowledged (at paragraph 6 of her affidavit) that she had not met the children or the mother and her comments “are general in nature” and further that she had not “formally assessed any member of this family for suitability” for the type of interventions she suggested. Importantly, apart from background provided by the father, Ms G had not read any of the reports from the other experts who have been asked to assess the situation or provide therapeutic counselling or assistance. In the circumstances where the Counsel for the father conceded the evidence was theoretical in nature it was not surprising no party wishes to cross-examine this Ms G. I can apply no probative insight to her speculative opinions in this case.
Respondent mother
In the Respondent mother’s Case Outline filed 18 January 2023, she similarly relied upon a number of witnesses who provided affidavits sworn to the first hearing before Judge Vasta. Apart from the experts (referred to next in the Independent Children’s Lawyer’s witnesses), the mother relied upon her recent affidavit and was cross-examined.
Independent Children’s Lawyer
The Independent Children’s Lawyer, as is the usual practice in Queensland, procured a number of expert reports, which both the mother and father refer to in their Case Outlines, as follows:
(a)Report of consultant psychiatrist Dr J, neither party wished to cross-examine Dr J;
(b)Mr K, who was the initial report writer and who produced 3 family reports filed on 12 February 2021; 13 July 2021 and 25 July 2022. As a new report writer had been engaged after the trial in Division 2 had been aborted, Mr K was not required for cross‑examination. As a result, his untested opinions are more historical in nature;
(c)Family report writer Ms D conducted interviews and some limited observations (but not between the father and the children), on 10 November 2022 resulting in a report published 16 December 2022. It appears from Ms D’s report that she did not read the earlier reports of Mr K (although she makes reference to Mr K at paragraphs 15, 17 and 23 of her report) – such information I infer coming from the Independent Children’s Lawyer’s letter of instructions dated 27 October 2022. Ms D was the subject of cross‑examination.
(d)Ms E: a social worker, engaged to provide some therapy to Z, and who was the author of a “reunification assessment report” dated 23 December 2022. Ms E was the subject of cross-examination;
(e)Pathologist Biochemist, Dr L, who provided opinions and produced a report “interpreting the CDT units performed by [M Pathology]” for the father. Dr L was not required for cross-examination; and
(f)Z’s kindergarten teacher Ms N, also not required for cross-examination.
Hopefully the abbreviated chronology of events set out next will assist with the context.
RELATIONSHIP HISTORY
Statements of fact which follow should be construed as findings of fact.
The father, now aged 42 years and the mother, now aged 43 years, commenced cohabitation in 2008; did not marry but separated on a final basis on 15 May 2020.
The couple were blessed with the birth of their children, X born 2009 (who is now fourteen years of age), Y born 2012 (who is now eleven years of age) and Z born 2017 (who is now six years of age).
Relevantly, the children were aged eleven, eight and two years respectively at separation.
The father filed his application for orders in August 2020, proposing that the children live with the mother but that he spends unsupervised time on a regular basis with the children. The mother’s response filed shortly thereafter identified the mother’s concerns with the father spending time with the children, effectively seeking orders for family therapy and also that the father undertake some personal counselling for what the mother broadly regarded as his anger issues and excessive use of alcohol.
Although the videos of interactions between the father and the three children at around and after separation did, in my view, reveal some fairly normal interaction between the children and the father (and no inappropriate comments by the father), the fact remains that X and Y have spent no physical time (and hardly any other communication has occurred) with the father since September 2020.
Z was the subject of a number of orders, however the last physical (although supervised) time she spent with her father was in August 2021. It follows that at the time of this judgment, X and Y have not spent any time or hard any meaningful interaction with their father for over three years and Z’s position is that she has spent no time for over two years – a great part of her life.
The reasons why this lack of interaction has developed, despite significant attempts designed (through Court Orders) to improve the relationship, was the focus of the case ultimately run before me. This is in circumstances where the father says (but the mother contests vigorously) that he felt he had a good relationship with the children at separation.
The mother initiated the separation and in cross-examination, she contended, from her perspective, the reasons why the relationship ended after twelve years were all related to the father’s behaviour, namely the fathers:
(a)Dishonesty;
(b)Lack of respect for the mother;
(c)The fact she didn’t feel safe when, particularly the father was drunk;
(d)Her loss of any trust in the relationship; and
(e)A need, as the mother, to protect the children.
There were the same combination of factors which caused her to prevent the children spending time with the father. She says, on separation, the children all were emotionally upset and claims they did not feel safe.
These was an incident at changeover for Z in August 2021, that occurred at the McDonalds Suburb P carpark (see the transcript marked as exhibit 2). The transcript is harrowing; the parental conflict was witnessed by X and Y (who never left the mother’s car). The transcript reveals, and in final submissions, all counsel submitted, the behaviour of both parents was poor. The father’s position that the mother, was refusing to facilitate handover for Z (then aged 3 years) I find to be correct. The mother’s comments, such as the following exchange, early in the event, is a clear example:
Father: Can you please put her in the car you’re not going to hand her over to me.
Mother: I’m not putting her into the car because that means forcing her against her will and restraining her into a car seat.
Father: There is an order that requires it [Ms Cuthbert].
Mother: No, the order does not say I force her against her will.
Father:No, I have asked you politely.
Mother:It says we co-operate with her until she calms, that’s what the professional advice has been.
Father:From whom
Mother:I have seeked the advice around the handover and it shouldn’t warrant her being forced.
Father: Well its been quite okay for the previous four weeks.
Mother: You have ripped her off me every week.
Father: No I haven’t.
The discussions got more heated – the children were all distressed and although Z eventually got in the car seat and departed with the father, that was tragically the last changeover. This incident was analysed by the family report writer in her report at paragraphs 168 to 171 and I agree with the opinions expressed by Ms D (who, like the Court, had considered the transcript).
Simply, I find that the memories for all three children arising from that exchange by these parents, both of whom could have done more to defuse the conflict, have been very negative in particular towards the father.
As the attempts to resolve the ongoing issues were mostly shaped by the continued efforts of the Court (through orders of Judge Vasta), it is helpful to look at what occurred after parenting proceedings commenced.
PROCEDURAL AND THERAPUTIC HISTORY
The following orders and the consequence of those orders can be summarised as follows:
(a)29 September 2020 – orders for the children to live with the mother, equal shared parental responsibility; for the children to communicate with the father no less than two times a week. The parents were ordered to facilitate family therapy with Ms Q and the children were ordered to continue to attend upon their respective therapists. By this date some voluntary counselling conducted by R Family Services had been suspended as the children were exhibiting a reluctance to spend time with the father. Despite the order for family therapy, and although the mother had completed an intake in November 2020, it became apparent by 3 December 2020 that the father desired a family report to be prepared rather than to engage in family therapy.
(b)3 December 2020 – orders were made for Mr K to be appointed as a Court expert (at the cost initially of the father) and for an exchange of Christmas gifts to occur before 23 December 2020. The paternal grandparents were entitled to attend the mutual exchange of gifts.
(c)17 December 2020 – Mr K began his interviews and observations resulting in a report dated 6 February 2021. Mr K said (at paragraph 115) that he did not require the children to spend time with their father, making that decision “because there is no current plan in place for when they might spend time with him, face to face, again. I also had in mind that their most recent experience with him face to face, was distressing for them.”
Mr K’s concluding opinion was for the mother and father (and the children, if it is determined to be helpful by Ms Q) attend upon Ms Q and otherwise could not make a further recommendation, but might be able to do so “after the family has engaged with [Ms Q] and I have communicated with her”. No therapy with Ms Q took place. Rather, on 15 February 2021, the father filed an Application seeking inter alia, that Mr K be removed as the Court expert and his report be excluded. That application was subsequently dismissed.
(d)23 February 2021 – orders were made again for attendance of the children upon Ms Q and that she receive a copy of Mr K’s family report. Importantly, the Court ordered that Z spend time with the father from 9.00am until 11.00am each Sunday. Although there was numerous exchanges between the parties lawyers, and excuses and blame directed, the fact remains that Z’s time with the father did not occur as ordered at that time.
(e)6 April 2021 – orders were made that the orders of 22 February 2021, remain in full force and effect, but specified changeover take place at McDonald’s Suburb P. The earlier orders did not specific a place for changeovers. Further, the Court ordered Mr K prepare an updated report and also have liberty to speak with Ms Q. Judge Vasta also dismissed the mother’s Application to suspend the time order made 22 February 2021. The mother continued to press for variations to the interim parenting orders, with her Application in a Case filed 8 July 2021 dismissed by the Court on 13 July 2021.
(f)13 July 2021 – orders were made for Z to commence spending time on 25 July 2021 each Sunday between 9.00am until 1.00pm. Some visits did actually occur, but ceased, as earlier mentioned, after the changeover incident in August 2021. Judge Vasta also ordered the parties attend Dr J for psychiatric assessment.
(g)18 & 25 October 2021 – Dr J had a consultation with the father and then the mother on these dates, resulting in the report dated 25 January 2022. The consultant psychiatrist opined that there was noting arising from his consultation and perusal of the documentation he had received to read, that would support any view that either parent was suffering from a psychiatric illness. Because of the significant differences in historical facts relied upon by each parent, personality assessment was difficult – it depended largely on the facts found by the Court. Dr J noted that:
If the mother's account is to be believed, the father was prone to difficulties in appropriately controlling his emotions, in particular anger, and of devaluing the mother and her role within the family in front of the children … and was continuing to deny serious excessive use of alcohol and emotional dysregulation that is likely to cause harm to the children…
If the narrative of the father is to be believed, the mother was prone to emotional instability during the relationship, and was controlling of the father's time and interactions with the children, and that postseparation has deliberately sought to alienate the children from the father…
If such behaviour was deemed factual by the court, it would suggest personality vulnerabilities in the mother , who on her own account “has struggled to protect the children from negative views and emotions she may hold towards the father, and to some extent devolves herself of responsibly to do the same, which appears to have raised concerns within the family therapeutic process, as well as the family report process, about the mother's ability to facilitate a meaningful relationship between the children and the father. I must admit that this was not the narrative provided to be by the mother, and that it was more of feeling defeated by the father essentially sabotaging family therapy process for insisting on the black and white application of the current court orders, and that she was in fact seeking for there to be some reconciliation between the children and the father through that process.
If the former however were found to be true, this may suggest an inability of the mother to separate her own feelings and emotions from that of the children, and I do note there has been some description of an enmeshment of the relationship particularly between the older child and the mother.
Dr J was not required for cross-examination, but I find his analysis set out above quite helpful.
(h)17 November 2021 – when the mother returned to the Court on this day, Judge Vasta was clearly made aware of the McDonald’s carpark incident and the fact that from that incident the mother in mid-2021 caused Police to obtain a Temporary Protection Order against the father. The father says, and I accept, the Police withdrew the Application in mid-2022 and as a result there are no current Domestic Violence Orders in place.
(i)17 December 2021 – on this occasion, Judge Vasta was clearly persuaded by the evidence of the failure to obtain any substantial momentum in reunifying Z and the father (at least), that he ordered an assessment be conducted by F Contact Centre, and if they deemed it appropriate, they were to facilitate changeovers. Part of that assessment was to “assess the child and ensure that the child can separate form the mother”. Orders directing how the parents were to attend and leave the changeover venue were made.
(j)18 January 2022 – it became apparent that issues again arise in having contact changeovers occur at F Contact Centre. Judge Vasta’s notations made on this day reveal he was also waiting the report of Dr J, which was filed subsequently on 11 February 2022.
(k)3 March 2022 – not surprisingly, by this date, and with time between the children and the father not occurring, the Court listed the matter for final hearing to commence on 26 July 2022. Additionally the Court further ordered that:
(i)The father was to spend time with Z at F Contact Centre subject it appears from the order that:
9.In the event that Lifecare deems it appropriate for the child to undergo therapeutic intervention sessions before supervised time with the father is to commence, then therapeutic intervention sessions are to occur, before any supervised time is to commence.
In my view, with the benefit of hindsight, it was not clear that both parents supported further attempts at “therapeutic intervention” and even if they did whether they agreed who should undertake that role. No supervised time commenced.
(ii)Mr K was to prepare an updated family report. At this time the Court, and the mother would have known that the Amended Application of the father filed 25 February 2022, for the first time, formally sought orders for a change of residence. On 8 March 2022, the mother’s Amended Response sought orders inter alia, that the father engage in therapeutic counselling for “alcohol abuse, gambling and anger management with the counsellor to provide a report” and for the first time, formally sought orders for de facto property division.
(l)1 April 2022 – the Court made standard property proceedings directions and for a Conciliation Conference to take place and, noted, that the Court was of the view that an Independent Children’s Lawyer is not required in this matter.
(m)26 July 2022 – the parenting trial (at least) commenced on 26 July 2022 and was adjourned part heard on 27 July 2022 for further hearing to 25 August 2022. It is not necessary, or indeed helpful, for me to discuss in these Reasons the circumstances which motived the father to file on 24 August 2022, an Application that Judge Vasta recuse himself and that the proceedings be transferred to Division 1.
(n)25 August 2022- for the reasons of complexity, Judge Vasta transferred this matter to Division 1 on 25 August 2022, but dismissed the father’s Application for his recusal (see Trafford & Cuthbert (2022) FedCFamC2F 1180). As a result of that order the matter came before me, as Case Management Judge on 8 November 2022. For completeness, I record that on 18 July 2022, Mr K provided an updated family report after interviewing the parents on 5 and 7 July 2022. Mr K (at paragraph 37) stated he chose not to involve the children in the preparation of this report – as it would “unreasonably involved” them in the dispute. In circumstances where Mr K was not cross-examined before Judge Vasta, and the trial before me proceeded with a fresh family report, I see no need to incorporate any other opinions of Mr K from the updated report in these Reasons.
(o)8 September 2022 - on this date, the Court was asked to consider an Application in a Proceeding filed by the father on 2 September 2022, seeking orders, inter alia that:
(i)An Independent Children’s Lawyer be appointed (which Order the Court made);
(ii)That X and Y commence reportable counselling with Ms S;
(iii)After three sessions of reportable counselling, X and Y spend time with the father each alternate Sunday (from 9.00am to 11.00am) and that Z spend time with the father each Sunday (from 9.00am to 1.00pm).
The matter was listed for trial for all matters (parenting and property) commencing 30 January 2023 (subsequently brought forward a week).
(p)28 September 2022 - with Ms Walsh having been appointed as the Independent Children’s Lawyer on 15 September 2022, the Court ordered a fresh family report be prepared, and relevantly, that Ms E undertake reportable counselling with a view to reunification between the father and Z.
(q)10 November 2022 - on the instructions of the Independent Children’s Lawyer, Ms D, an experienced psychologist, undertook interviews on 10 November 2022, resulting in a report dated 16 December 2022. As Ms D was cross-examined as the final witness in the trial before me, I deal with her evidence discretely below. I do record however, that the children were not observed with their father on the interview day, which Ms D stated was “due to [X’s] distress and [Y’s] refusal and [Z’s] apparent inability to copy with separating from her mother.” I also record that as a result of my orders, Ms E conducted some sessions with Z and the father, between 4 October 2022 and 25 November 2022, and her Reunification Assessment Report dated 23 December 2022 was filed, Ms E was also the subject of cross-examination. I deal with her evidence discretely below.
(r)23 January 2023 - The trial commenced and proceeded for three days before being adjourned. It was resumed on 5 April 2023, primarily because that was the earliest date all three Counsel were available.
I have felt it was important to set out this history, as it also demonstrates how the Court sought to create an improved situation for the children, but particularly, Z, so far as the relationship with their father is concerned. I have more to say about this history when discussing the bests interests of the children now, as is the time when findings will shape the Orders I now pronounce.
I intended to discretely deal with the following three issues, before considering the competing proposals relating to the children within the matrix of the relevant s 60CC(2) primary considerations and s 60CC(3) additional considerations. Those three matters being:
(a)The current emotional state of each child;
(b)The evidence of Ms E; and
(c)The evidence of Ms D.
CURRENT EMOTIONAL STATE OF EACH CHILD
In circumstances where the father has spent little time with the children since separation, and further where he simply does not accept (or trust) what the mother asserts to be the childrens current emotional state, the Court has also considered whatever independent expert or medical evidence it has been offered, to assist in understanding the challenges likely to be encountered and the effect on the children of the various parenting proposals. I deal with each child individually as follows:
(a)In addition to the wishes, feelings and presentation of X recorded by Ms D (at paragraphs 107 to 122 of the family report) and the mother’s evidence at paragraphs 22 to 55 about X, the Court notes the “summary” articulated by her general practitioner, Dr T in her referral letter to the then unnamed child and adolescent psychiatrist dated November 2022 (annexure “MC-01” of affidavit filed 16 January 2023). I accept that the background for the referral came from the mother. The doctor’s referral was “…for opinion and management. [X] has been having emotional difficulties since her parents separated in 2020…” and the Doctor reported that:
[X] tends to do well in between court dates, when there is minimal contact with her father, however, she has increasing anxiety around the time of court appearances, and more so recently, as her younger sister, [Z], is required to attend supervised visits. This is very distressing for [X]…
This is resulting in withdrawal, some school refusal due to low motivation and general low mood at times. [X] denies other issues, states she enjoys school and gets on well with her friends. She has had to adopt adult roles quite quickly within her family as a result of the changes, and feels very protective of her siblings.
(as per original)
Exhibit 25 is a letter from Dr U (described as a Senior Psychiatry Registrar) to the child’s general practitioner, dated February 2023 which provides little detail of the completed series of consultations, other than to note a working diagnosis of post traumatic stress disorder and chronic adjustment disorder. Dr U opined that as X’s “overall health appears to have improved compared to last year although remains vulnerable due to ongoing stressors with no clear resolution from family court”. X does not require psychotropic medications with a further review in 3 months’ time if necessary.
There has been no complete reports from the child’s treating counsellor Ms V since May 2022 (see annexure “MC-05”), although Exhibits 12 and 13 are notes of consultations in April and May 2021, some time ago, and reflecting the child’s expressed anxiety particularly around seeing her father and about her sister Z seeing her father. Furthermore the Court has historical data included in Exhibit 24.
(b)Y expressed his feelings and wishes to the report writer which are recorded at paragraphs 123 to 129 of the family report. The mother’s evidence about Y’s current issues are set out at paragraphs 56 to 71 of her trial affidavit, summarising him as a “highly sensitive child”, who has been previously counselled by Ms W. A report from this therapist at annexure “MC-04” to the mother’s previous affidavit relied upon and filed 20 July 2022 in these proceedings, is dated 3 June 2022 (building on an earlier report from psychologist Ms AA dated 16 February 2021). These reports gave little indication of the prognosis for improvement in what Y’s general practitioner described, when prescribing a mental health care plan in February 2022 as the child’s “adjustment disorder with anxious mood secondary to father’s alcohol abuse”.
(c)Z, as earlier noted, was quite young when the parents separated. The last independent assessment of her emotional state is achieved from considering the evidence of Ms E, which I now undertake.
EVIDENCE OF MS E
Ms E, a very experience social worker, was engaged to assess and, if possible, assist in reunification between Z and the father. Her report dated 23 November 2022 identified the nature of consultations with the parents and Z between 4 October 2022 and 25 November 2022. As was explored in cross-examination, Z’s presentation at the first session, where she was able to settle and separate from the mother, markedly changed by the second session and subsequently where the child would not separate from the mother and Ms E observed during cross-examination that, she “burrowed into the mother like a little animal going into a pouch”. In the first session Z stated, when asked about her family, that “I don’t have a Dad”, however with the use of a scrapbook (Exhibit 22) that included family photos, Z identified the father as “Dad”. Ms E spoke to the child’s kindergarten teacher who had also observed the difficulty Z had shown separating from her mother, identifying crying at drop-off, and the need to spend another year at kindy before proceeding to school.
In her report, under the heading “Evaluation”, Ms E opined that:
(a)The parents were co-operative with the therapy process;
(b)Family therapy sessions have reached a point where these are not assisting Z;
(c)Although, through the process Z has come to realise that she has a Dad and she can identify him in photos “she does not present as ready to meet with [Mr Trafford] at this stage I cannot forecast when she may be ready to do so”; and
(d)The father’s proposal for the children to live with him could not be recommended for Z “as it has potential to significantly stress and distress [Z]”.
In cross-examination, Ms E (whist acknowledging she had not met X or Y) said, and I agree, that the older sibling’s attitude to the father is “contextual” and Z’s comments reflect on her close sibling’s relationship with them.
Ms E expressed concerns that the child is being “over therapised” and that a “break” is necessary so that Z can be “a kid” as she may just work it out herself.
FAMILY REPORT
Psychologist Ms D conducted interviews and observations on 10 November 2022; was fully briefed (including it seems with the material from subpoenaed records that formed mostly Exhibit 24) but did not observe the children with the father as earlier noted.
Appropriately in my view, Ms D brought fresh eyes to the dispute, in that she did not read the earlier reports of Mr K. Based on her assessment, at paragraph 196, the report writer recommended that:
Based on this assessment, it is respectfully recommended that:
a. The children remain in their mother’s care;
b. The mother is responsible for future contact between the children and their father;
c. The father engages with a psychologist who is provided with this report, to support him to increase his insight into the children’s perspective, and compose letters to the children acknowledging their experiences and apologising for past hurt and fear caused;
d. The children are assisted to read and process the father’s letters with their mother in appointments with their psychologists;
e. The father writes a maximum of 2 letters to each of the children each year
In forming these recommendations, the experts report identified the following relevant opinions in my assessment:
(a)At paragraph 138:
…[X’s] account of her distress about the argument she witnessed and her general unhappiness, was sincere and genuine, and I share in that concern. Therefore, I believe [X] has a good sense of her own emotional needs, and the court should place a large degree of weight on her wishes.
(as per original)
(b)At paragraph 141:
…[Y] made it clear that he does not want to spend time with his father or have contact with him… it is certainly possible that [Y] felt hurt by his father’s focus on drinking and gambling, and that together with memories of threats of physical punishment, yelling and tension in the household, and [Z’s] distress at change-overs, he may genuinely fear spending time with his father again, and feel the need to emotionally reject him… despite the hurt and even fear that [the father] may have sometimes caused him, I believe [Y] may have had more of a bond with his father than he feels comfortable to admit in the context of his family environment.
(c)At paragraph 143: it is “extremely important” that the father apologise to Y and “acknowledge that his behaviour hurt and frightened him” and further “assure him that he does love him”.
(d)At paragraph 145: “[Z] appears to feel very attached to her mother and [X], and to feel particularly shy and reluctant to engage with adults she doesn’t know.”
(e)At paragraph 146: “The children appear to have a very close relationship with their mother, and each-other, to the point of enmeshment.” And at paragraph 149:
…it is clear… that the children have been affected by the tension and conflict between their parents before their separation, and by their involvement in the protracted litigation since then. It is also clear that the children believe that their father was the source of the tension prior to the separation. They reported experiencing him as short tempered and focused on drinking and gambling when he was at home
(f)As explained at paragraphs 150 to 156 of the family report, the expert concludes that she “assessed a risk to the children’s relationship with their father, a risk of interparental conflict, and a risk of harm to the children’s mental health.”
(g)At paragraph 155: “…[the father] has demonstrated that he no longer drinks excessively, and I do not believe he poses a risk to the children’s physical safety because of his drinking.” Accordingly, despite the children’s previous experiences of tension, conflict and anger which may have led them to feel hesitant, nervous, or even unwilling to spend time with their father (especially in X’s case), it is likely that Y and Z both had relationships with their father “which are worth saving” (see paragraph 156).
(h)Healing needs to occur in the children’s relationships with their father, which would allow and acknowledge past hurts, however forming a relationship now between the father and the children may not be possible because:
(i)Firstly, the time that has lapsed since X and Y have spent time with their father; and
(ii)Secondly, the children’s rigid opposition to spending time with him; and
(iii)Thirdly, because this would require the sincere efforts of both parents.
(i)The father is likely to struggle to accept the children’s perspective and it is unlikely Y and X would reconsider their perception of their father without their mother’s genuine encouragement to do so, and “I doubt that [Ms Cuthbert] is willing to do so” (see paragraph 162).
(j)At paragraph 163: the mother doubts the father’s:
ability to parent the children sensitively and focus his attention on them… and thus, she has not whole-heartedly encouraged or directed them, to give their father a chance. Additionally… [the mother] believes that the children’s mental health is suffering from the pressure they feel to have a relationship with their father, and she feels overwhelmed by the need to support the children.
(k)The mother’s concerns for the children’s distress are contributing to a “self‑perpetuating outlook within the family” (see paragraph 165) and further the mother’s difficulty in coping with current situation creates an environment, where the children “are likely to be sensitive to their mother’s emotional exhaustion and feel the need to protect and take care of, her and each-other” (see paragraph 166).
At paragraphs 182 to 192 of the family report, the expert comprehensively discusses the implications of the parents’ proposals, concluding that a change of residence, as the father proposes, would cause the children extreme distress and further “it is unlikely that the forced removal of the children from their mother’s care would lead to a constructive parenting relationship in the future” (see paragraph 187). The mother’s proposal also leads to a number of negative implications as it is likely “to validate and cement the children’s current aversion to connecting with their father and effectively result in his removal from their childhoods” which would be “a significant loss for all three of the children” (see paragraph 189). Particularly, at paragraphs 191 to 193, the expert explains why a “harm minimisation approach” needs to be adopted, namely:
191.In conclusion, I do not believe the children would cope with being removed from their mother’s care. Unfortunately, I also believe that [Ms Cuthbert] will not facilitate a relationship between the children and their father if the children don’t want this. Additionally, in my opinion, it may be harmful to attempt to facilitate [X] having contact with her father at this point, and [Y] is likely to react to any attempts for him to spend time with his father with anxiety and opposition. Finally, as previously mentioned, I believe any further attempts to facilitate [Z] spending time with her father would be met with heightened anxiety within the family unit, which would render the experience distressing for [Z] and make these attempts unlikely to succeed.
192.Therefore, I believe a harm minimisation approach needs to be adopted, and as [Ms Cuthbert] has been the children’s main carer and both her and [X’s] ability to cope seems to be at risk, the least harmful option is to cease attempts for the children to spend time with their father for the foreseeable future. I wish to express the extremely regrettable nature of this recommendation and emphasise that I have not come to this conclusion because of any concern that [Mr Trafford] represents a risk to the children’s physical safety.
193.I believe “the door should be left open” for the children’s relationship with their father to be re-established when they are less anxious about this, and that their mother needs to take the initiative for this to occur. I sincerely hope that [Ms Cuthbert] also establishes contact with [Mr Trafford’s] family, facilitates the children spending time with them, and genuinely directs these encounters to be friendly and pleasant. [Ms Cuthbert] needs to do this via the example of her own behaviour with the children’s extended paternal family, in order to allow the children to have the benefit of these relationships throughout their lives. I hope that if [Ms Cuthbert] makes contact with [Mr Trafford] or his family members, they will respond positively, with civility and restraint, and all adults involved will behave in a child-focused way.
In a final comment, Ms D (at paragraph 195), identified that if the Court decided to make another attempt to facilitate Z’s relationship with the father, the best option would be to consider the child spending time with the father in the company of Ms BB – as it worked previously – and could succeed if Z “was allowed to gradually overcome her shyness about being around her father over an extended period of time, and was not required to be alone with him until she feels totally comfortable in his company”.
The Court is not bound by the opinions or recommendations of an expert, but in my assessment the opinions I have extracted, many tested during cross-examination, are supported by the evidence I heard in this case. I broadly adopt and accept each of those expressed opinions.
The difficulty remains however, namely in this complex and difficult current situation what orders are likely to be in the best interest of the children. To answer that question, as the Court is compelled to do, a narrative examination of the relevant s 60CC(2) and 60CC(3) considerations is undertaken and now follows.
PRIMARY CONSIDERATIONS
Although the mother submits that there is no benefit to the children in having a meaningful relationship with the father, I disagree. The fact that X and Y may not yet have the maturity to understand the importance in their life journey of having a relationship with not only the father but the wider paternal family (provided it is safe to do so) is not the point. Whilst relationships nurtured prior to becoming an adult often shape positive (or negative) relationships past reaching 18 years of age – history and life experience reveals that this is not always the case. Being able to identify with the parent and the roots of that parents life is important to most people – and these three children, and despite the stressors leading up to separation and the events since then, I am not pursuaded that the father offers no value to the children. The difficulty is how orders made now might facilitate a possible long term relationship.
S 60CC(2)(b) – the need to protect children from harm, abuse and neglect – must be given greater weight than s 60CC(2)(a). On all the evidence I find that leading up to the final separation of the parents, the father was drinking to excess; presented to the children at times as short tempered and did not always demonstrate the deserved respect to the mother – both as a mother and as a partner. My sense is that financial pressures also played a part. I find that the father, although not necessarily with intent, was more distracted and disengaged from the day‑to-day obligations of family life. He sought out emotional support from male friends and personal activities such as sport and gambling. He was less available emotionally and physically to both the mother and the children. For the reasons explained by the mother leading up to separation and certainly since then, the mother chose to cope with her own feelings of anger, frustration and disappointment by even more obsessively meeting the children’s needs (physically and emotionally) without seeking assistance of the father initially. Her perception of “protecting” the children meant that more and more the father was excluded from their lives. The children, I find, were not encouraged by the mother to genuinely work through their perceptions and concerns (some totally valid on my assessment) of their father – which has lead to X and Y expressing now some strong and entrenched views.
Both parents could have done better – and sadly this is a case where although some strategies to try and improve the situation were both designed and attempted – the parents individually were not able to separate their feelings from what was in the children’s best interests.
Simply stated, at separation, the difficulties should not have resulted in the situation we now find to be evident. Some of the public events, where the parents interpersonal conflict was on show to the children (particularly the McDonald’s changeover incident) only reinforced the older children’s views of the father – which I find the mother did little to balance in her household.
The evidence of the father and the evidence of the pathologist biochemist Dr L persuade me that the children at not at risk of harm in the father’s care as a result of his current use of alcohol.
I do accept the father shows some limited insight into his contribution to the current situation. Although Ms D, for example, opined that Y would benefit from receiving a genuine apology from the father (whether the father regards it as necessary or not), the father has shown no capacity to adopt that recommendation. This lack of emotional attunement presents as a concern. I am not satisfied that the father is currently able to quash his disappointment (even anger or frustration) as to how the children, who I accept he desperately loves, are not a part of his life. Whilst his feelings are understandable, there is an absence of evidence that is he has obtained therapeutic support, that has assisted him. My impression from his evidence is that he very much regards himself as the “victim” and the mother is very much the “perpetrator” of all his woes.
The mother deserves criticism, in my view, as she could have genuinely done more to smooth the way forward for these children – rather, through an entirely empathetic approach she has not encouraged the children to work through their fears and disappointments with the father. Although these older children have had plenty of counselling it seems to me that from separation (and in the absence of any real impact from the father) the children’s therapy has only reinforced their feelings. The mother says, and I accept, she has always followed professional advice. However, where the focus of the professional advice is based on only one version of the faces from one parent, this can sometimes lead to less ideal long-term outcomes.
In short, the ongoing parental conflict; lack of mutual respect and trust creates an environment that is difficult for these children to navigate. As Ms D correctly opines, unless both parents are prepared to change, no different outcomes for these children is likely to result.
ADDITIONAL CONSIDERATIONS
I have already referred to the wishes expressed by X and Y. In her fragile state (although improving) ignoring X’s strongly expressed views is likely to be extremely problematic. I also take into account her position about the need to “protect” Z from the father – a very difficult context for Z to navigate when her big sister is so negative.
Y, for the reasons given by Ms D seems to be possibly more available to exploring a relationship with his father – who remains at this time, the most likely male role model for him, if the opportunity to do so results. Z is too young to express definitive views, however her somewhat enmeshed relationship with her mother and close bond with her siblings, presents a significant hurdle – as the evidence Ms D already demonstrates.
The children sadly have no relationship with their father and the extended paternal family, which results in the mother being the centre of the children’s life and security. It is hardly surprising considering the history, that their relationship with the mother is very strong. There is an absence of evidence as to the extent to in which the children have ongoing relationships with the mother’s extended maternal family.
Since separation, the father has been given little opportunity to participate in decision making for the children – whether relating to counselling, medical appointments or school events and sports. I am satisfied the father has made numerous attempts to do so – but even when he sought shortly after separation to observe or participate in public sporting activities for the children – his hopes were dashed. Often the mother said this is because of the childrens wishes – however early on, this could have provided an opportunity to naturally engage – which was lost.
The father has maintained his responsibilities to support the children financially, through payment of significant child support.
I deal with the effect of any changes in the childrens circumstances (s 60CC(3)(d)) later in these Reasons which of course in this case, is a critical consideration.
I rely upon what findings I have already made about the parent’s attitude and capacity to parent. Whilst I accept that the mother raises concerns about the father’s capacity. I do not accept that the father is unable to meet the children’s psychical needs. Because of the hurt he currently carries from this litigation (and this focus on the mother’s behaviour in particular), I do hold concern about his current capacity to meet the children’s emotional needs.
S 60CC(3)(l) requires the Court to consider “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.” As noted, the Independent Children’s Lawyer contends for an interim order – which would prolong and continue the litigation. I am mindful that the Court was informed the mother has expended $500,000 approximately in legal fees (I infer obtained from her parents), and the father has paid around $200,000 – I infer from his post separation income. If the proceedings in some form continue, there is a real likelihood that these parties will not be able to afford lawyers. I deal with this issue of an interim order, in the face of both parents seeking final orders, shortly.
PARENTAL RESPONSIBILITY
The Independent Children’s Lawyer proposes that the mother exercise sole parental responsibility for X, and for 6 months sole parental responsibility for Y and Z, after which equal shared parental responsibility will again vest in the parents. This is based on an anticipated positive outcome from Z spending time with the father after 6 months and, I infer, a warming in the relationship between the child Y and the father.
I am conscious of the need to establish a principled reason to depart from the statutory presumption of equal shared parental responsibility. If the mother has sole parental responsibility (as she seeks in respect of all three children) then the father will not only feel excluded from major long-term decision making – he effectively will be.
In my assessment, orders about parental responsibility should be made in the context of where the children live and in circumstances where the only communication that has occurred between the parents has been via their lawyers. As the correspondence that passed reveals (see for example Exhibit 5) this has often been ineffective.
DICUSSION ABOUT FINAL PARENTING ORDERS
Mr Bunning of Counsel for the father in well considered and articulated final submissions submits that:
(a)The father is a reluctant candidate for residence, which he only formally sought in February 2022;
(b)His Application was not a catalyst for the current situation but represented the only available option if the father is to have a relationship with his children;
(c)The root cause of the current situation is the mother’s enmeshed relationship with the children and her consistently demonstrated wish to prevent any of the children having a relationship with the father. This is also evidenced by how the children’s relationship changed with their father “instantly” on separation;
(d)The mother is a significant emotional risk to the children;
(e)If there is not a change of residence, the children will never have a relationship with their father.
Mr Linklater-Steele for the mother urged the Court to make final orders, the effect of which will be certainty and resolution for the children and the mother. His submissions emphasised that the mother’s position is that the children need relief from the torment they have experienced since separation – he went as far as to colourfully describe the attempts to create relationships a “cascade of complete stuff-ups”. He contended, in opposition to the Independent Children’s Lawyer’s proposal, that it is regrettably not possible to craft an order that will not damage the children. The mother continues to maintain the father is an emotional risk to the children.
The mother contended, despite what the father says and the evidence of the short videos (Exhibit 7), that the children’s relationship with the father was fractured at separation because of this unavailability – and particularly his conduct when under the influence of alcohol. The Father, it is asserted, got the answer early from Ms Q, but simply did not like it as has done nothing personally (with therapy) to change his behaviour or gain insight.
The mother says there is no evidence to support the likely success of the orders proposed by the Independent Children’s Lawyer and the only thing the Court can do, in the children’s best interests, is to take the pressure of the children by making final orders contended for by the mother.
FINAL CONCLUSION
The opinion of Ms D at paragraph 156 of her report that at least the relationship between Y and Z is “worth saving” rings loud in my ears.
Based on my findings about risks above; the wishes expressed by X and Y and at least the expert evidence of both Ms E and Ms D, the orders which appear at the commencement of these Reasons seek to achieve the following, which I regard as in the best interests of the children:
(a)There will be a final order for X and Y to live with the mother; for her to exercise sole parental responsibility for these children but with an obligation to consult; for the father to be able to send cards and gifts to the children and for the children to have any request they make to spend time with the father facilitated.
(b)In circumstances where, for Z, there has been a moratorium of some 12 months now since her engagement with Ms E ceased – I see it is in her best interests to attempt supervised time with the man she identified as her father. To this end, I propose to order the “scrapbook” be released to the father, so it can be a tool to use during supervised visits.
(c)I am not satisfied any further order for Z to undertake therapy is likely to achieve anything – other than reinforcement of what her mother’s (and perhaps X’s) views of her father is. She needs a chance to begin to explore that relationship safely – at a supervised contact centre like F Contact Centre. In anticipation that the child will commence formal school in January 2024, my view is that supervised visits should not commence until the beginning of March 2024, on a weekly basis initially for 2 hours. The costs of this supervised time shall be met by the father who has superior income.
(d)Otherwise I adopt some of the Independent Children’s Lawyer’s collateral orders as I regard are appropriate.
In essence, whilst I have found that the mother could have done more to facilitate and encourage the older children’s relationship with the father, the effect of a change of residence is likely to be emotionally catastrophic and not in the children’s best interests. It is not appropriate to visit upon the children, the failings of the mother – such an approach is inconsistent with the jurisprudence of this jurisdiction.
I have taken into account that ordering Z in a way to ultimately spend time with the father, could upset Y but particularly X. However, Z is an individual child with quite different developmental needs and deserves the opportunity to reconnect with her father – and the mother is required to support and encouraged that relationship.
Whilst I do not ignore the possibility that Z spending time with the father could (I put it no higher) cause Y to seek some time with the father as well in the future, I am not using Z as a catalyst for such desirable outcome. I accept X’s views as a teenager are so entrenched, nothing is likely to change for her, and her interests as she gets older will be elsewhere than reconnecting with her father. It is hoped however, that X will allow and not undermine Z’s exploration of her father (and perhaps even Y) but there is no certainty she has the mature insight to not interfere. Only the mother has a realistic opportunity to moderate X’s negative interference on her younger siblings.
PROPERTY
The property aspects of these proceedings were not the subject of significant evidence or cross‑examination, with the parties focus understandably directed to the parenting issue.
Furthermore, the issues were narrow, and really the dispute related to what weight should be applied to the contributions of the parties and the relevant s 90SF factors.
The usual four step process identified as relevant and usual for married couples under s 79(4) of the Act (see Hickey & Hickey (2003) FLC 93-143) applies to de facto relationships where the substantive law is prescribed by s 90SM(4). Consistent with the High Court decision in Stanford & Stanford (2012) 247 CLR 108, the Court must not make an order under s 90SM unless it is just and equitable to do so, and in this case, both parties content it is, and I agree (s 90SM(3)).
In this part of the Reasons, I refer to the Applicant as the “husband” and the Respondent as the “wife”, even though I accept the parties did not marry during the period of their 12 year relationship which began with cohabitation in 2008 and ended with separation in May 2020.
It is efficient to deal with the history of contributions when discussing the weight to be applied to basically agreed facts, before turning to an analysis of the reverent s 90SF(3) factors. Finally, it is mandated that the Court consider what orders achieve justice and equity for both parties.
POOL OF INTERESTS
The Respondent wife’s draft Balance Sheet was marked Exhibit 27 and tendered on 5 April 2023. At the time of final submissions, the Court was informed the former family home at CC Street, Suburb P had been sold with settlement due in early 2023. A copy of the Contract of Sale was not produced, and as a result there was an uncertainty as to how much nett proceeds of sale were available. It was agreed (and ordered on 5 April 2023) that the nett proceeds of sale would be held in a solicitor’s trust account pending Judgment.
Furthermore, and appropriately considering the Applicant husband has been in occupation of the home and during his occupation the husband decided not to maintain the mortgage payments and local authority rates, a concession was made by the husband’s Counsel Mr Bunning, that the husband would pay any arrears of mortgage payments and rates from his share of the nett proceeds of sale. The Court has not been informed of the amounts calculated to represent “arrears of mortgage and rates”, and as I mention later in these Reasons, if the parties having read these Reasons for Judgment are unable to agree on how the nett proceeds are to be divided, then the Court will take further submissions on that issue.
The husband contended that the Balance Sheet (exhibit 27) was broadly accepted, save for two issues which I deal with now, namely:
(a)The husband does not accept the wife’s assertion that the husband’s DD Bank account at separation had a balance of $13,376. Simply the husband’s submission is that the husband does not know the balance. Separation occurred on 15 May 2020, and although the wife tendered copies of bank statements for the period 1 October 2022 to 17 January 2023, no statement is produced at the time of separation. The wife at paragraph 223 sets out an asserted “asset pool” but in respect of the DD Bank Account …63, the wife says she was awaiting disclosure. However, despite the wife deposing to lack of disclosure by the husband, she does concede the husband had a number of credit card liabilities including a Westpac credit card with a balance outstanding of around $4535 at separation (see paragraph 226) and an EE Finance Mastercard. The wife says she took over the liability on that FF Bank credit card. On the evidence I can not be satisfied that the husband’s working account at separation was $13,376 and even if it was, the use of any funds post separation and the purpose so used, is unknown. I do not find any injustice in these circumstances in not including the husband’s bank account or any credit card liabilities.
(b)It is not disputed that the husband, on his redundancy post separation, received a payment of $15,913 which, however calculated, arose from his employment maintained during the relationship. The wife says the funds should be notionally “added back” whilst the husband says the nett funds were used by him for living expenses as he was entitled to do so. I agree with the husband’s submissions but will take into account the benefit the husband received post separation, when discussing contributions.
On the basis of these findings, but again acknowledging some lack of certainty about the actual nett proceeds of sale (and any interest that has accrued on the invested funds) as well as an uncertainty as to the hopefully agreed estimate of arrears of mortgage and rates, I find the pool of interests to be approximately:
Ownership
Description
Amount
Joint
Proceeds of Sale ($670,000 – mortgage of $396,547)
$273,453
Husband
Motor Vehicle 1
$20,450
Husband
Motor Vehicle 2
$1,500
Husband
Superannuation Fund 1
$203,000
Wife
Superannuation Fund 2
$69,194
$567,597
Husband
GG Bank car loan
$17,359
Combined nett assets
$550,238
Neither party asserted that the parties’ modest superannuation entitlements should be included in a separate pool, and accordingly the interests are included in the one pool.
CONTRIBUTIONS
When the parties commenced cohabitation, the husband was aged 26 years and the wife slightly older aged 28 years. At paragraph 183 of his trial affidavit the husband estimated the parties respective nett initial contributions as:
(a)Husband - $49,500; and
(b)Wife - $30,000.
The wife, at paragraph 149 to 160 gave details of her acquisition, prior to the relationship of the home at HH Street, Suburb JJ in 2008 for over $350,000 with a mortgage of $339,000. On this basis the wife had an equity of approximately $20,000 – which by 2013 (when the home was sold for over $350,000) had increased to approximately $38,000. I accept the parties joint income was used to pay the mortgage payments between cohabitation and the sale of the Suburb JJ property.
The wife says that the husband had a “sizeable” HECS debt – which the husband did not mention in his affidavit. On balance, I find the parties initial contributions were approximately equal with the husband’s entitlement to superannuation his biggest “asset”. The loans the husband brought into the relationship (which he estimated – before allowance for any HECS debt) totalled $35,500 and I find were also met from the future joint income generally.
With the birth of X in 2009 and followed by the birth of Y in 2012 and finally Z in 2017, the parties’ roles in the relationship, they both accept, became somewhat traditional for the times – the husband being the “breadwinner” and the wife the primary caregiver and homemaker. I accept that the wife did contribute income from employment and the husband also made contributions as a parent, but they maintained their primary roles throughout the relationship.
The former family home at CC Street, Suburb P was purchased in 2016 for approximately $400,000 in joint names, with some of the nett proceeds of the Suburb JJ property used as a deposit – although the wife says (and I accept) that the parties still had to borrow 95% of the purchase price and pay lenders mortgage insurance.
In 2019 the parties refinanced the loan and drew down a further sum of $55,000 of equity in order to reimburse the wife’s parents for funds provided by them to discharge the remaining HECS debt and a car loan and various other accumulated debts. The husband says, at paragraphs 239 to 247, that improvements were made to the Suburb P property which I take into account.
Apart from some assistance from the wife’s parents and the husband’s brother Mr KK, this couple did not benefit from any significant gifts, inheritances, or financial windfalls – they achieved what they accumulated by hard work and joint effort although in different roles.
Post separation, the husband remained in the home and after his redundancy in late 2022 the husband says he struggled to maintain the housing loan repayments, rates and other expenses even though he received the redundancy payment. He has agreed any arrears of these expenses should be deducted from his share of the proceeds of sale of the home.
Post separation the wife, as the parenting Reasons demonstrate, has maintained almost exclusively the role as parent for the three children – not without some vigorous opposition by the husband.
Taking all these contributions of a diverse character, both direct and indirect and both financial and non-financial into account, I find the contribution based entitlements of the parties at the time of final hearing to be equal.
S 90SF(3) FACTORS
The parties are of a similar age and do not have any significant health issues.
The most significant factor of differentiation between the parties is the superior income and earning capacity of the husband compared to the wife. The husband has a salary of $200,000 (gross) per annum in a statewide management role, which also comes with employee benefits (not forgetting employer superannuation contributions). The wife, has nothing like the husband’s work history or skills. She works as an educator and at the time of the hearing her part-time wage was only $10,000 per annum. Whilst I accept, in time, the wife will be able to secure further hours and would like to do so, she will never be able to achieve a salary anything similar to that of the husband. The husband estimated early highest earnings for the wife of about $400 per week. It has often been said that one of the most important and enduring benefits a person can take out of a relationship is the capacity to earn an income. The husband is in that position.
The other significantly relevant factor is the responsibilities the wife will continue to bear from her primary care role of the three children – now aged 14, 11 and 6 years. The wife wishes to maintain that role and this must be taken into account.
The husband deposed to an administrative assessment of child support at $2818 per month which was up to date. I accept he will pay significant child support to the wife.
It is necessary to consider what is the actual effect of any adjustment to the contribution based entitlements – not just the parentage adjustment. In a modest nett pool calculated by me to be approximately $550,000 the husband contended for an adjustment of 10% ($55,000) whilst the wife contended for an adjustment of 25% ($137,559).
In my view, both submissions reflect the need for a sizeable adjustment, which will impact on the way the “cash” funds are distributed – a matter I turn to next.
WHAT ORDERS ACHIEVE JUST AND EQUITY
The husband contended that, in effect, the non-superannuation interests – estimated to be approximately $295,500 should be distributed in the proportions of 60% to the wife and 40% to the husband with an equalisation of the superannuation interests.
The wife contended that the wife should receive most of the cash available together with a superannuation split of the husband’s superannuation in her favour of $141,791.
The differential in income and caring capacity compels, in my view, that the wife receive a significant portion of the cash. The additional superannuation she will obtain by a superannuation splitting order will provide her little immediate benefit because of her age. The Husband on the other hand, will benefit from annual employee contributions that will secure his ultimate retirement – although many years in the future.
I would not regard it as just and equitable for the husband to leave this relationship with no cash. In my view, adjustments in the following way will achieve justice and equity:
Husband
Share of proceeds of sale
$60,000
Motor vehicles
$21,950
$81,950
Less car loan
$17,359
$64,591
Plus remaining superannuation
(after superannuation splitting order)
$92,000
$156,591
Wife
Share of nett proceeds of sale
$213,453
Current superannuation
$69,194
Additional superannuation (split from husband’s entitlement)
$110,000
$392,647
These distributions effect a percentage alteration of the estimated pool of $550,238 in the approximate proportions of 28.5% to the husband and 71.5% to the wife.
I regard the orders which effect such alteration of interests as just and equitable to both parties.
I am not satisfied that procedural fairness has been afforded to the husband’s Superannuation Trustee. The solicitors for the wife are directed to prepare within 14 days, a minute of order to give effect to the property alteration set out in these Reasons and provide procedural fairness to the husband’s Superannuation Trustee, and provide same to the husband. With an endeavour to ensure these directions are carried out, the matter will be listed before me at 9.30am on 13 February 2024 for formal pronouncement of the property adjustment orders at which time evidence of procedural fairness should be available.
If the parties are able to agree on the form of order that is consistent with these Reasons (noting there is some current uncertainty as to the actual nett proceeds of sale available and the quantum of the agreed payments and rates), and they submit the agreed form of order to chambers with evidence of procedural fairness, then the orders will be considered in chambers and if made, the next date will be vacated.
Finally, although the wife sought orders for spouse maintenance of $500 per week for three years in her Further Further Amended Response filed 9 January 2023, no submissions were made orally seeking such an order – and therefore no reply by the husband (who asserted he had no capacity to pay) was delivered by his Counsel.
No cross-examination of either party on the spouse maintenance issue was undertaken by me.
For completeness, although I regard the was this aspect was concluded as effectively the wife abandoning her application for periodic spouse maintenance, an examination of the wife’s Financial Statement filed 16 January 2023 reveals she is unable to adequately support herself, when income tested by Government Benefits are ignored, as they must be.
The husband’s Financial Statement filed 16 January 2023 asserts gross income of E$3845 per week and expenses of E$4223 per week – which includes $500 per week mortgage payments and $75 per week rates payments. Even though the house has now been sold, he will have an obligation to pay rent. On this basis the husband says in his affidavit that he does not have the capacity to pay the wife spouse maintenance.
In my view, considering the uncertainties identified, I believe the wife’s application for periodic spouse maintenance should be dismissed, unless otherwise persuaded.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 12 January 2024
Appendix One
BY WAY OF INTERIM ORDER
PROPOSED ORDERS OF THE INDEPENDENT CHILDREN’S LAWYER 05.04.2023 – as per 14.03.2023 but adopting handwritten amendment agreed on 14.03.2023 to #24 re the scrap book.Parental Responsibility
1.That for a period of 6 months from the date of these orders that the Mother have sole parental responsibility for the long term-care, welfare and development of the children [Y] born […] 2012 and [Z] born […] 2017 including but not limited to:
a.the children’s health and medical treatment
b.the children’s education
c.the children’s religion and cultural upbringing;
2.That in the exercise of sole parental responsibility the Mother will: - a. Inform the father in writing of any decision to be made together with any supporting information or referral;
a.Allow the Father at least 7 days in which to reply, unless the decision to be made requires a shorter time frame,
b.Genuinely consider the Father’s written response when making the decision
c.Advise the Father as soon as possible in writing of that decision that his been made.
3.That after a period of 6 months from the date of these orders that the Mother and Father have equal shared parental responsibility for the long term-care, welfare and development of the children [Y] born […] 2012 and [Z] born […] 2017 including but not limited to:
a.the children’s health and medical treatment
b.the children’s education
c.the children’s religion and cultural upbringing;
4.That from the date of these orders that the Mother have sole parental responsibility for the long term-care, welfare and development of the children [X] born […] 2009 including but not limited to:-
a.the children’s health and medical treatment
b.the children’s education
c.the children’s religion and cultural upbringing;
5.That the Mother advise the Father at least 48 days in advance of her intention, if any, of relocating the children’s residence greater than 150 kilometres from the [B Council] region.
Schooling
6.That the child [X] born […] 2009 attend [LL School], unless otherwise agreed in writing between the parents
7.That the child [Y] born […] 2012, attend [C School] for 2023 and 2024 unless otherwise agreed in writing between the parents.
8.That the child [Z] born […] 2017, attend [MM Early Learning Centre] in 2023 and attend [C School] from 2024.
9.That the children [X] born […] 2009 , [Y] born […] 2012 be at liberty to attend upon their current counsellors [Ms V] of [NN Health Centre] and [Ms W] of [PP Psychology].
10.The child [X] born […] 2009 be at liberty to attend upon the psychiatrist in February 2023.
11.That the Mother be restrained from changing the children’s surname from [Trafford].
Live with mother
12.That the children live with the mother.
No orders to spend time with and communicate directly with the Father
13.That there be no Orders in relation to the time the child [X] born […] 2009 and [Y] born […] 2012 and that after a moratorium period of 6 months that the CHILD [Z] born […] 2017, commence to spend supervised time with the Father at [F Contact Centre] (or at such other contact centre as may be agreed between the parties) with the costs to be shared equally by the parents and that the matter be listed for mention before Justice Baumann for case management on a date to not before 12 months of the date of these orders.
14.That in the event the children or any one of them express a wish either to the Mother and or their respective counsellors who then inform the Mother of the same, to spend time with or communicate with the Father that the Mother facilitate this by advising the Father of the same in writing and arranging for time or communication to occur
Father liberty to send letters and parcels
15.That the Father and his family be at liberty to send letters and presents to the children for their birthdays and Christmas and the Mother will ensure the letters and presents are given to the children. a. In the alternative That the Father be at liberty to send to the children’s counsellor/psychologist/psychiatrist a letter/message to be shared with the children in the discretion of and support of the respective counsellor.
Father at liberty to attend children’s counsellor/s
16.That each parent shall be restrained and shall refrain from denigrating the other parent or members of their family to or in the presence or in the hearing of the child/children and will remove the children immediately from the presence of any third party to do so.
Expectation of Conduct of Parents
17.That each parent shall be restrained and shall refrain from denigrating the other parent or members of their family to or in the presence or in the hearing of the child/children and will remove the children immediately from the presence of any third party to do so.
18.That each parent will not discuss these proceedings or the allegations raised in the proceeding with the children unless the same occurs in the company of and with the express recommendation of the children’s or any of the children’s counsellors, and will otherwise, unless in accordance with this order, will remove the children immediately from the presence of any third party to do so.
Exchange of Information and Authorities
19.That these Orders are sufficient authority for any school attended by the children or any one of them, to release to the parties information in relation to the children’s/ child’s educational progress and other related activities and to supply each party with reports, photographs, certificates and awards as and when requested and at the expense of the party making the request.
20.That the Mother keep the Father advised in writing as soon as possible and at least within 24 hours of the event/information becoming available of all significant health issues experienced by the children and details of all relevant service providers and advise the Father immediately upon any of the-children experiencing any medical emergency including details of the treatment provided, the name of the relevant service provider/sand the location and by this order authorizes the release of information, reports and results to the Father, upon his request
21.That this Order be sufficient authority for any treating medical or allied health service provider to provide any information required by the parties from time to time in relation to the children and or any one of them, to and at the expense of the requesting party.
22.That the parents keep each other informed at all times of their residential address, email address and mobile/telephone number and notify each other within forty-eight (48) hours of any change to these details.
23.The parents communicate by email or letter or parenting app with the parenting app to be agreed as agreed in writing, in relation to arrangements regarding the care, welfare and development of the child/children and by text message in the event of any emergency.
24.That once the scrap book created by [Z] in sessions with [Ms E] (“the scrap book”) is available and released from the Court file (noting it is currently an Exhibit) that the father be entitled to obtain from the Court and retain the original copy of the scrap book.
25.That each parent has leave to provide a copy of the scrap book to any counsellor or psychologist upon whom [Z] may attend.
Dispute Resolution
26.That in the event that there is a dispute about the children or about the interpretation, implementation or enforcement of these orders, before making any further application to a court the parents will:-
a.either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (as amended) or by the Commonwealth Attorney‑General; or
b.participate in family dispute resolution (FDRC) with a family relationship centre or a person authorised under s 10g of the Family Law Act 1975 (as amended).
27.A parent who seeks to vary these orders must first take the following steps:-
a.Identify in writing to the other parent their proposed variation and seek a response in writing and
b.If there is no response or agreement in writing, then the parent who seeks to vary these order will propose in writing to the other parent 3 (three) Family Dispute Resolution Practitioners (FDRP) identified for the purposes of attending family dispute resolution and request the other parent will select an FDRP within 7 days and advise the other parent in writing of their selection.
c.If there is no nomination an FDRP within 7 days the parent who seeks to vary these orders may nominate an FDRP from the list forwarded to the other parent and then will advise the other parent in writing of the FDRP they have nominated.
28.Once an FDRP has been nominated, that both parents will within 7 days contact the FDRP to arrange for intake interviews and comply with all requests of the FDRP to arrange mediation and attend as and when directed by the FDRP.
29.That the parents will share the costs of Family Dispute Resolution equally for all joint sessions and preparation by the FDRP excluding intake sessions where each parent will pay the costs of their own intake with the FDPR.
(As per original)
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