VALDEZ & FRAZIER
[2019] FamCA 12
•18 January 2019
FAMILY COURT OF AUSTRALIA
| VALDEZ & FRAZIER | [2019] FamCA 12 |
| FAMILY LAW – CHILDREN:- With whom a child lives – With whom a child spends time – With whom a child communicates - Application by father seeking a change of child’s residence and that initially mother not spend any time with the child for a period of three months – Application opposed by the mother – Mother alleges the father poses an emotional and psychological risk to the child and that the only way for the child to be protected is to spend less time with the father – Orders that child live with the mother – Orders that Mother have sole parental responsibility for the child – Orders that father spend time with the child – Specific Issues orders – Injunctive orders. FAMILY LAW – PROPERTY - De facto property settlement – Contributions – Small asset pool -Superannuation – Orders made in circumstances where Court is satisfied it is just and equitable to do so. |
| Family Law Act 1975 (Cth) ss 31(1)(a)(aa), 60B, 60CC, 65(Y), Family Law Amendment (De Facto Financial Matters & Other Measures) Act 2008 (Cth) ss 4, 4AA(1), 90SB |
| C & B [2007] FMCAfam 539 Norton v Locke [2013] FamCAFC 202 |
| APPLICANT: | Mr Valdez |
| RESPONDENT: | Ms Frazier |
| FILE NUMBER: | SYC | 2226 | of | 2013 |
| DATE DELIVERED: | 18 January 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 17, 18, 20, 21 & 24 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Mr Longworth with Ms Shea |
| SOLICITOR FOR THE RESPONDENT: | GG Attorneys |
PARENTING ORDERS
All previous parenting orders in relation to B born … 2011 (‘the child’) be and are discharged.
Ms Frazier (‘the mother’) shall have sole parental responsibility for making decisions in relation to the child.
The child shall live with the mother.
The child shall spend time with Mr Valdez (‘the father’) as follows:-
School term
(a)During school term from after school Friday until before school Monday (or before school Tuesday in the event that the Monday is a public holiday or a student free day) every alternate week.
(b)Such alternate weeks commencing the first week after the end of the school holidays if the child was with the mother at the end of the preceding school holiday period or the second week after the commencement of school term if the child was with the father in the last week of the preceding school holidays;
School holidays
(c)for one half of the mid-term school holidays being the first half from after school Friday (or if a student free day, non-school day or Good Friday then 3.00pm Friday) to 12.00 noon the Saturday in the middle of the holidays in odd-numbered years and from 12.00 noon Saturday in the middle of the school holidays to the commencement of school Monday (or Tuesday if the Monday is a student free day) in even numbered years;
(d)in a week about arrangement in each of the Christmas/New Year school holiday periods commencing the first week in odd numbered years and the second week in even numbered years (the numbering of the years to be determined by reference to the year in which the December holiday commences).
(e)If the spend time period commences the first week of that Christmas/New Year school holiday the child to be collected by the father from after school on the last day of term. Irrespective of the week about arrangements the child shall be returned to the mother three days before the first school day of term 1;
(f)the changeover day shall be 12.00 noon on the second Saturday after the commencement of the Christmas/New year holiday period such that the child lives with or spends time with one or other parent for week about;
Special occasions with the father
(g)if the child is not otherwise spending time with the father from 10.00am on the Saturday preceding Father’s Day until the commencement of school on the Monday following Father’s Day;
(h)if but for this order the child is living with the mother on his birthday then on that day he shall spend time with the father as follows;
a. if a weekday, from after school (or if the child is not at school from 3.15pm) until 6.00pm; or
b. if a weekend from 10.00am to 2.00pm;
(i)if the child is not otherwise spending time with the father, from afterschool until 6.00pm on the father’s birthday, if a weekday, or 10.00am to 5.00pm on the father’s birthday, if a weekend.
Special occasions with the mother
The time the child spends with the father shall be suspended as follows and that the child lives with the mother on the following occasions:-
(a)if the child is not otherwise spending time with the mother, from 10.00am on the Saturday preceding Mother’s Day;
(b)if but for this order the child is spending time with the father on the child’s birthday then on that day the child shall spend time with the mother as follows;
i.if a weekday, from after school (or if the child is not at school from 3.15pm) until 6.00pm; or
ii.if a weekend, from 10.00am to 2.00pm;
(c)if the child is not otherwise spending time with the mother from after school until 6.00pm on the mother’s birthday, if a weekday, or 10.00am to 5.00pm on the mother’s birthday, if a weekend; and
(d)for up to twenty eight (28) days in the Christmas school holidays if the mother takes the child overseas and that if she does so that the child spend substituted time with the father, at the election of the father by either requesting time:-
i.on consecutive weekends (the number to correspond with the number of weekends missed by the father) immediately following the child’s return to Australia, or
ii.for 28 days over the following Christmas New Year holiday period.
Notice for such extra time shall be at least six (6) weeks in advance of the proposed travel.
Religious occasions
Notwithstanding the above orders:-
(a)In every odd numbered year the child will live with the mother or spend time with the father as follows:-
i.With the mother:-
1.After day care/pre-school/school on the first night of the Jewish Passover (Pesach) until 8.00am the next morning;
2.After day care/pre-school/school on the first night of the Jewish New Year (Rosh Hashanah) until 8.00am the next morning; and
3.From after day care/pre-school/school on the eve of the Jewish Day of Atonement (Yom Kippur) until 8.00am the next morning.
ii.With the father:-
1.From 4.00pm on the second night of Jewish Passover (Pesach) until 8.00am the next morning; and
2.From 4.00pm on the second night of Jewish New Year (Rosh Hashanah) until 8.00am the next morning;
(b)In every even numbered year the child will live with the mother or spend time with the father as follows:-
i.With the mother:-
1.From 4.00pm on the second night of the Jewish Passover (Pesach) until 8.00am the next morning; and
2.From 4.00pm on the second night of the Jewish New Year (Rosh Hashanah) until 8.00am the next morning;
ii.With the father:-
1.After day care/pre-school/school on the first night of the Jewish Passover (Pesach) until 8.00am the next morning;
2.After day care/pre-school/school on the first night of the Jewish New Year (Rosh Hashanah) until 8.00am the next morning;
3.From after day care/pre-school/school on the eve of the Jewish Day of Atonement (Yom Kippur) until 8.00am the next morning;
Changeovers shall occur at the child’s school, but if it is not a school day the father or his nominee shall collect the child from the outside the mother’s residence at the commencement of the child’s time with him and the mother or her nominee shall collect the child from the father at the entrance to Coles, Suburb N at the conclusion of the child’s time with him.
The father is given liberty to obtain from the child’s school copies of the child’s school reports, school bulletins and notifications of any events which involve the child.
The mother shall authorise the child’s treating doctors, dentists, therapists and any other professional with whom the child may consult from time to time, to provide to the father copies of any reports relating to the child and to discuss any medical, dental or other similar issues relating to the child.
Each parent shall notify the other as quickly as practicable if the child is involved in any accidents, is seriously ill or is hospitalised.
The father shall notify the mother as quickly as practicable if the child is taken to the child’s general practitioner when the child is in his care and shall provide the mother with the date and time of attendance, and a copy of any prescriptions and referrals provided for the child at that attendance.
Neither parent shall denigrate the other in the presence of or in the hearing of the child.
That the father shall ensure and cause the child to attend all the child’s extra-curricular activities, sporting events, camping trips, birthday parties and other similar functions to which the child is invited, at such times as the child spends with the father.
The father is restrained from:-
(a)dressing the child in any religious attire (except on occasions when the child attends Synagogue or other Jewish function requiring the child to wear headwear, or after the child turns the requisite age);
(b)attending functions (except for school functions to which parents are invited or expected to attend) which occur during the time that the child lives with the mother;
(c)bathing or showering with the child;
(d)sleeping in the same bed as the child; and
(e)taking the child to any medical or health practitioner, including any therapist or counsellor other than the child's general practitioner (nominated by the mother) or in the case of an emergency, to the hospital, except with the mother's prior written consent (which can be by way of text message);
Both parents shall be restrained from changing any part of the child’s name without written agreement or an Order of a Court exercising jurisdiction under the Family Law Act 1975 (Cth).
The mother shall be permitted to:-
(a)solely request and apply for the renewal of the child's passport; and
(b)take the child overseas during the child's time with her for holidays provided she provides to the father no later than six (6) weeks before the overseas travel written notice of the intended travel, including providing the father with a copy of the child's itinerary, address and telephone number of where the child may be contacted except in the case of emergency travel in which event the mother shall provide the father with written notice of same as soon as practicable.
That if either parent changes his/her address, telephone number email address that he/she shall provide to the other parent the details of the new home address and/or telephone number within twenty four (24) hours of the date of change of same.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Within seven (7) days from the date of this order a copy of the order and the reasons upon which the orders are based shall be forwarded by the parties to the Director of Court Counselling Services Sydney and a family consultant who has had no previous involvement in these proceedings, shall be appointed to explain these parenting orders to the child.
For the purposes of order 19 the family consultant shall, within fourteen (14) days from the date of receiving the orders and reasons, make an appointment to see the child to explain the orders to him.
For the purposes of orders 19 and 20 herein the mother shall bring the child to the family consultant for the purposes of the orders being explained to the child.
All extant parenting applications be and are dismissed other than costs, and any costs applications are to be dealt with in accordance with the Family Law Rules 2004 (Cth).
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same at the end of the appeal period.
PROPERTY ORDERS
Pursuant to s 90XT(1)(b) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable from the superannuation interest held by Mr Valdez, born in 1970 ('the father'), in D Super, the trustee of D Super pay to Ms Frazier ("the mother") 100 per cent of each splittable payment and that there be a corresponding reduction in the entitlement the father would have had but for this Order.
Simultaneously with the super split referred to in Order 1 taking effect that the Flagging Order made on 12 September 2016 be lifted and Order 1 of the Orders dated 12 September 2016 discharged.
Orders 1 and 2 herein have effect from the operative time, which is upon the date of service of this Order upon the trustee of D Super.
The trustee of D Super do all such acts and things and sign all such necessary documents in order to:-
(a)calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created by Order 1 of these Orders; and
(b)pay the entitlement referred to in Order 1 to the mother whenever a splittable payment becomes payable out of the interest of the father in D Super.
Each party and the trustee of D Super have liberty to apply on not less than three (3) business days' notice, in respect to the implementation of the super splitting orders.
A superannuation splitting Order be made in relation to the interest of the father in the E Super, using a base amount of $139,719 (‘the base amount’) to be allocated to the mother out of the father's interest in the fund.
Whenever a splittable amount in respect of the superannuation interest of the father is payable in the E Super:-
(a)under section 90XT(1)(a) of the Family Law Act 1975, the mother be entitled to be paid the base amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)there be a corresponding reduction in the entitlement of the father in the said fund.
Orders 6 and 7 be binding on the trustee of the E Super and have effect from the operative time which is 4 business days after the date of service of these Orders on the trustee of the E Super (‘the Operative Time’).
Except as provided above and as between the parties, each party retain to the exclusion of the other party, all other assets registered in his or her name or in his or her current possession or control, including each of their superannuation entitlements.
Except as provided above and as between the parties, each party retain to the exclusion of the other all liabilities in his or her name.
All extant property applications be dismissed other than costs except costs applications, if any, which are to be dealt with in accordance with the Family Law Rules 2004 (Cth).
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valdez & Frazier has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: SYC 2226 of 2013
| Mr Valdez |
Applicant
And
| Ms Frazier |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
1.Mr Valdez (‘the father’) and Ms Frazier (‘the mother’) are intelligent, thoughtful and well educated people. They have one child, B (‘the child’), who is presently aged seven.
2.I urge the parents in this case to put aside the tools of litigation, their mutual disrespect, hate and distrust.
3.I urge these parents to seek psychological advice as to how they can minimise their conflict before it swallows up the whole of their son’s childhood.
4.I urge these parents to give this child relief from the psychological and emotional burden which they have thrust upon him.
5.If the conflict stops, here and now, this little boy may have some part of his childhood free of this awful parental conflict and he is more likely to achieve the potential that his parents see in him.
6.I urge that these parents look at ways of building bridges rather than tearing them down.
7.The mother and father lived together for around two years and separated about fifteen months after the child was born. Having heard and considered all of the evidence, I am satisfied that the mother is and was at all times the primary carer of the child.
8.The parties initially separated under the same roof in early November 2012 and then physically separated in early January 2013.
9.The father considered and still considers that he has an especially close relationship with the child. He regards himself as able to pacify the child where at times he believes the mother is unable to do so.
10.Shortly after physical separation the mother engaged solicitors to assist her in putting in place parenting arrangements. The father sent an email to the mother on 14 March 2013, as follows:- [1]
[1]Exhibit E3 - father’s annexure book pages 200, 201 and 202.
Dear [the mother]
Just to let you know that in the next few weeks I will be relocating to the Eastern Suburbs to establish a new home, to be closer to [the child], so that I can resume my regular and complete relationship with him.
I would like to discuss with you [the child’s] care arrangements, ready for when I have found a new home for us.
I sincerely believe that isolating him from me does not serve his best interests.
Please let [the child] resume more contact with me, as I do see it as important for his happiness, well-being and development.
[The mother], I trust you will rely on your knowledge of me and my character that you know from the years we have been together and trust that my motivation in all of this is neither to be self-serving nor to undermine you, but to establish for us an environment in which [the child] is allowed to grow and be nurtured by each of us.
I would also once more plead with you to allow [the child] to see me on this Sunday.
As far as I am aware you have not accepted the invitation to start developing a parenting plan for [the child].
In case you have any unexpressed reservations about [F Group], I have contacted [G Group] to ask them to invite you to engage in a process mediated by them.
Kind regards
[The father]
11.A few days later the mother’s solicitor replied as follows:-
18 March 2013
Dear [the father]
Re: [the mother]
We refer to your email of 14 March 2013 to [the mother].
[The mother] has requested, for the time being, any communications you may wish to forward to her dealing with matters of substance, should come via this office and not directly to her.
In relation to the matters you have raised [the mother] refutes the suggestion that she has sought to ‘isolate’ [the child] from you. The time [the child] is spending with you is, in [the mother’s] view, appropriate and, for the time being, in [the child’s] best interests. She does not see an expansion of that time, as you appear to be proposing, to be necessarily to [the child’s] benefit.
[The mother] does not seek to minimise or marginalise your relationship with [the child] or your importance to him. She believes, however, [the child] is at a stage of his life where he simply cannot cope with more or significantly more time than that which [the child] presently spends with you.
With respect to mediation, [the mother] is very reluctant to participate in same through [G Group], given the fact that she is very well known within the … community. She believes, notwithstanding the apparent benefit of using their services, there is significantly greater risk of your circumstances becoming known throughout the … community if their services are used. You should also appreciate [the mother] will not participate in face-to-face mediation with you.
We will respond in more detail on this issue upon the return of [XXXX] (who has the primary carriage of this matter on [the mother’s] behalf) to the office in the next week or so following extended leave.
We understand that [the mother] has already responded to you in relation to your proposal for time with [the child] last Sunday.
Yours faithfully
XXXXX LAWYERS
12.The child at this time was aged about eighteen months. The correspondence from the father and the mother’s solicitors were moderate, conciliatory and outcome focused.
13.The father took umbrage at the mother engaging lawyers and, what he saw as, reducing the time he spent with the child. The mother took umbrage that the father was alleging she was isolating the child from him.
14.People always have disagreements; that is the nature of human interaction. In children cases it is when parents resolve their disagreements in a civil, respectful and child focused way that is the hallmark of good co-operative post separation parenting. The conflict of these parents is the antithesis of good co-operative post separation parenting.
15.In March/April 2013 the child’s maternal grandfather died in Country H. The mother travelled to Country H with the child to attend her father’s funeral. She did not inform the father before leaving. She returned after a few weeks absence. This unilateral action by the mother combined with the mother taking legal advice, incensed the father.
16.The parenting conflict exploded into life and has not since moderated, if anything it has become more entrenched.
17.The father commenced court proceedings in April 2013 and interim orders were made. A final hearing came before Judge Walker of the Federal Circuit Court on 17, 18 &19 March and 2 April 2014. Her Honour delivered reasons and made final orders on 24 July 2014 in respect of the then two, almost three, year old child.
18.Since 2013/2014 there has been a tsunami of litigation between these parties in respect of the child. It is the father’s view that the Federal Circuit Court and the Family Court have conspired to undermine and minimise his relationship with the child.
19.He asserts, and it is likely the case, that on many occasions when changeover occurs with the child moving from him to the mother, the child becomes highly distressed. He says that the current arrangements which have developed, being five nights a fortnight with him and nine nights with the mother and half the school holidays, are inadequate in terms of the child’s relationship with him.
20.The father’s solution to these beliefs is that the child should live with him for three months with no overnight contact with the mother, unless requested by the child and that this will eventually devolve into an arrangement where the child will end up living comfortably with both the mother and the father.
21.The father asserts that the mother and those who represent her have been deceitful and dishonest in the running of this ongoing proceeding.
22.The mother’s case is that there has been significant ongoing litigation since these proceedings were commenced in mid-2013. She contends that over five years there have been about 54 applications, including the father’s applications in a case and an appeal and that there have been numerous applications for Judges to disqualify themselves. Her case is that the father represents a risk to the child in terms of emotional and psychological damage to the child, who consequently needs to be protected from that risk by spending less time with the father.
23.The mother does not suggest that there be no time with the father. The mother is concerned about the father’s mental state, particularly given his approach to litigation and what she sees as the father moving the child to be becoming an intensely religious child, being isolated from his family, friends and peers and being enmeshed in what she contends is the father’s delusional beliefs as to the mother, the Courts and likewise. On the evidence, there is significant objective material upon which the mother can base those concerns.
24.I listened very closely to the evidence of both parents in relation to this child. What is absolutely clear is that each of the parents loves the child and wants the child to reach his full potential in life. The evidence is that the conflict, to which this child is exposed, is impacting adversely on him.
25.If each of these parents exhibited more insight and if each of these parents was less confrontational and respected the other parent and the significant role that the other parent plays in the life of this child, I have no doubt that the issues between these parents would not be those which confronts this Court. There would instead be a negotiation as to when the child would fall into an arrangement of equal time between parents. However, that is a different world to that in which this child lives.
26.This Court may be able to craft fine orders and orders designed to meet the needs of the child, having taken a snap shot of the life in which this child currently exists as at the time of this hearing, but it cannot remove the child from the awful conflict which is and remains a day to day feature of his life.
27.If that conflict continues the outcome for the child, described by Dr C (‘the single expert’), is not good. If the child is taught to hate and disrespect his mother he may in fact hate and disrespect himself and have trouble forming personal relationships in later life. If the child comes to believe the mother’s view of the father the same must inevitably occur.
28.There are two parts to these proceedings: first as to the parenting arrangements sought by each of the parties. The second is the property issues which remain unresolved.
29.The father seeks orders set out in his case information document[2] and the mother seeks those set out in her case outline.[3]
[2] Exhibit E1.
[3] Exhibit E2.
30.The credit of each of the parties is significantly in issue.
31.In terms of parenting, there is the issue as to whether the child spends less time with the father as proposed by the mother and in many ways supported by the single expert through her report or whether the child live with the father and the child be ‘detoxified’ of the mother.
32.In regards to the psychological health of the father, it is in issue as to whether he lacks insight generally and in terms of religious education and whether he is alienating the child, in a practical sense, from the mother.
33.There are also property proceedings. Apart from a number of liabilities of the father and the value in a bank account (an amount of about $10,000 is in dispute with regard to the bank account) there is general agreement as to the pool of property. The father and mother both agree that there was a de facto relationship within the meaning prescribed under the Family Law Act 1975 (Cth) (‘the Act’), but the father says there should be no adjustment of property and each should retain their property and superannuation.
34.The mother seeks a division of the superannuation property as to about 70 per cent and to her and about 30 per cent to the father.
35.There are issues as to contribution, future needs and what is just and equitable.
BACKGROUND
36.The mother is aged 49 and she was born in Country J. The mother migrated with her family from Country J to Country H in 1979 and the migrated to Australia in 2001. She now works as a manager and asserts that she earns about $1,538 per week. Apart from the pressure and stress of these proceedings she is in good health.
37.The father, at hearing, was aged 48 and he was born in Country K. The father migrated to Australia in 1986 and has resided in Australia since that time. In recent times he has been working as a contractor. His employment contracts were tendered in evidence.[4] He deposes that he earns about $138,000 per annum.
[4] Exhibit E9.
38.The father is in good health apart from the stress of these proceedings and his current view is that he is somewhat overweight.
39.The parties agree that they commenced a de facto relationship in October 2010.
40.The child was born in 2011 and the parties separated in November 2012; the mother asserts 3 November 2012. In any event the parties had been living together in a de facto relationship for more than two years.
41.At the time of separation the parties remained living under the same roof until early January 2013 when the father left the joint home.
42.In April 2013 the mother took the child to Country H without notice to the father and without his permission. This was because her father had died. The child and the mother returned to Australia after a few weeks. I accept the evidence of the mother that this travel was sudden given her father’s death.
43.On 26 April 2013 the father commenced parenting proceedings in the Federal Circuit Court. On 25 July 2013 orders were made in the then Federal Circuit Court putting the child on the airport watch list, making provisions that the child spend time with the father, but providing no overnight time.
44.The mother provided a chronology of the general procedural history of this matter in her chronology.[5] I have accepted that procedural history as generally accurate. It contained the following:-
[5] Exhibit E11.
26 Apr 2013
Father files Initiating Application seeking Parenting Orders
3 Jul 2013
Hearing - directions
23 Jul 2013
Mother files Response to Initiating Application re: Parenting Orders
24 Jul 2013
Father files an Amended Initiating Application for Parenting Orders
25 Jul 2013
Orders made. Airport Watch List Order. Spend time with Orders
12 Aug 2013
Father files a second Amended Initiating Application for Parenting Orders
3 Sep 2013
Hearing - directions
11 Nov 2013
Father files a Contravention Application in respect of Parenting Orders
15 Nov 2013
Father files Application in an Appeal seeking leave for extension of time to appeal the Orders of 23 July 2013
19 Nov 2013
Orders made. Appointment of single expert
4 Dec 2013
Mother files Response to Application for Extension of Time
4 Dec 2013
Mother files Amended Response to include Property Orders
11 Dec 2013
Judgment reserved
2014
Mother starts consulting with Dr AA
6 Feb 2014
Orders made. Father's Application dismissed
11 Feb 2014
Father files Amended Initiating Application
25 Feb 2014
Mother files Application for Costs
11 Mar 2014
Judgment reserved
19 Mar 2014
Orders made. Adjournment for written submissions
30 Apr 2014
Orders made. Mother's Application for Costs dismissed
9 Jun 2014
Father makes oral Application for Judge Henderson to disqualify herself because of, in essence, apprehension of bias
11 Jun 2014
Father files Application in an Appeal seeking an extension of time to file a Notice of Appeal in relation to Orders made 26 February 2014, dismissing his Contravention Application
17 Jun 2014
Father files Application for Special Leave to the High Court on 17 June 2014 to appeal Full Court Orders made 6 February 2014
3 Jul 2014
Mother files Response to Application for Extension of Time
8 Jul 2014
Father files Application in an Appeal to adduce further evidence
21 Jul 2014
Father files Application in a Case seeking to re-open the substantive proceedings and adduce into evidence research, the deletion of parts of Dr L report, and various Parenting Orders
24 Jul 2014
Father files Application in a Case seeking Orders sought in his Application filed 21 July 2014
24 Jul 2014
Orders made. Application filed by father on 24 Jul 2014 dismissed
Hearing – Judgment - Judge Walker in the Federal Circuit Court made final Parenting Orders in essence as follows:
· That the mother have sole parental responsibility for [the child's] education.
· That [the child] live with the mother.
· That [the child] spend time with the father
o in week 1 from after school Thursday to before school Tuesday
o in week 2 from after school until 6.30pm on a Thursday.
· That [the child] spend Mother's Day with the mother and Father's Day with the father.
· That [the child] spend time with the parent who is not caring for him on his birthday from after school until 6pm on a school day, or 9.00am to 5.00pm on a non-school day.
· That [the child] spend half of each school holiday period with each of the parents.
· That [the child] spend time with each of the parents during Jewish religious festivals.
18 Aug 2014
Orders made.
Costs Order made against father for $12,125 - paid
20 Aug 2014
Father files Notice of Appeal against the Orders made 24 July 2014, amended on 28 October 2014 and 12 December 2014
21 Aug 2014
Father files Notice of Appeal
8 Sep 2014
Father files Application in an Appeal seeking to consolidate appeals, obtain expedition, and an immediate change to the Parenting Orders;
15 Sep 2014
Father files Application for Special Leave to appeal to the High Court in relation to Orders made by the Full Court on 18 August 2014
21 Oct 2014
Mother files Response to Application in an Appeal
21 Oct 2014
Orders made - procedural. Appeals to be heard together
28 Oct 2014
Father files Amended Notice of Appeal
3 Nov 2014
Father files Application in an Appeal seeking that the Full Court vacate the Orders of 18 August 2014 or stay the Orders pending determination of his Special Leave Application to the High Court
12 Dec 2014
Father files Amended Notice of Appeal
19 Dec 2014
Father files Application in an Appeal, seeking an urgent hearing of his appeals, orders for subpoenas, a Watch List Order for [the child], and:
1 Disclosure of the names of the Judges who will be allocated to hear the Appeals.
2 That the Justices allocated to the appeal disclose various matters including:
3 Research and studies “… consulted or taken into account…” in parenting Orders
4 contractual arrangements between the Courts and a named expert.
5 Payments made by the courts to a named expert.
6 Correspondence between the justices and a named expert or any other author or researcher.
7 Conferences and seminars which have been attended by the Justices.
8 The various bases, whether statutory, common law or scientific, underlying the application of evidence and making of parenting orders.
9 The basis for the court’s Justices expertise and/or qualifications.
26 Dec 2014
Mother files Response to the father's Application for Stay
13 Jan 2015
Father files Application in an Appeal seeking that the Application filed 19 December 2014 be heard urgently and in the parties' absence
20 Jan 2015
Father files Application in an Appeal seeking judicial review of the Registrar's decision not to hear the Application in an Appeal filed 19 December 2014 urgently and in the parties' absence
29 Jan 2015
Orders made. Father's Application dismissed
Costs Orders made against father for $2,463 - paid
16 Feb 2015
Mother files Response to father's Application in an Appeal
17 Feb 2015
Hearing – father's Application of 13 January 2015 withdrawn
Orders made. Father's Application of 20 January 2015 dismissed
Costs Orders made against father for $3,300 - paid16 Mar 2015
Orders made. Part of Appeal filed by father on 19 Dec 2014 dismissed Various Applications dismissed
Costs Order made against father
27 Jul 2015
Father files Application in an Appeal seeking disqualification of Justice Strickland
Aug 2015
The father seeks the mother allow additional time for [the child] to spend with him in the school holidays
4 Aug 2015
Mother files Further Amended Response in accordance with Orders made by Judge Henderson in the Federal Circuit Court on 9 June 2015
4 August 2015
Father files Amended Application in an Appeal
5 Aug 2015
Judgment reserved
7 Aug 2015
Mother files Response to father's Application in an Appeal 27 July 2015
29 Sep 2015
Orders made in Chambers for assessment hearing
12 Oct 2015
Father files Application in a Case seeking Parenting Orders for [the child] to live with him and only have time with [the mother] as per the father's discretion, and other parenting matters, injunctions, a Watch List Order, Subpoenas, 'information' as to judicial officers and disqualification of Judge Henderson;
12 Oct 2015
Father files Contravention Application asserting the mother contravened Orders made 23 July 2013 and 25 July 2015
16 Oct 2015
Father files Application for Review of Registrar's decision (not to file 12 Oct Application)
22 Oct 2015
Father files Application in a Case seeking disqualification of Judge Henderson;
22 Oct 2015
Orders made. Application for Review filed 16 Oct 2015 dismissed
28 Oct 2015
Orders made. Father's Application filed on 27 Jul 2015 dismissed
29 Oct 2015
Judgment reserved
29 Oct 2015
Father files Application for Review of Registrar's decision (not to file 23 Oct Application)
2 Nov 2015
Orders made. Father's Application for Review filed 23 Oct 2015 dismissed
5 Nov 2015
Mother files Response to father's Application in a Case
10 Nov 2015
Mother files Amended Response to father's Application in a Case seeking in essence that the father be declared a vexatious litigant
11 Nov 2015
Proceedings transferred to Family Court
8 Dec 2015
Costs Assessment Order made against father for $12,125
8 Feb 2016
Hearing – adjourned
Father makes oral Application for Justice Le Poer Trench to disqualify himself based, in essence, upon apprehension of bias
15 Feb 2016
Orders made. Father's Application for Justice Le Poer Trench to disqualify himself dismissed
16 Feb 2016
Father files Notice of Child Abuse, Family Violence or Risk of Family Violence by mother
16 Feb 2016
Father files Application in an Appeal seeking leave to reopen the Appeal, leave to adduce fresh evidence, and seeking the Full Court "quash" the orders made 23 July 2014, 24 July 2014 and 25 July 2015;
24 Feb 2016
Father files Amended Application for Contravention
1 Mar 2016
Orders made. Father's Contravention Application dismissed. Variation Application dismissed
11 March 2016
Father files Notice of Appeal in relation to Orders made by Justice Le Poer Trench on 15 February 2016
15 Mar 2016
Orders made. Father's Application for Justice Le Poer Trench to disqualify himself dismissed
22 Mar 2016
Father files Reply seeking restraining Orders against mother, including restraining her from instituting further parenting, property or other proceedings against the father
22 Mar 2016
Father files Notice of Appeal against Orders made by Justice Le Poer Trench on 1 March 2016
23 Mar 2016
Father files Application in a Case seeking Review of Registrar's decision not to accept his Reply for filing
23 Mar 2016
Father files Application in a Case for a stay of Orders 5 and 6 of Orders dated 1 March 2016
15 Apr 2016
Orders made
Father's Appeal of the final Parenting Orders made by Judge Walker on 24 July 2014 dismissed
Father's Application that the Honourable Justice Strickland be disqualified dismissed
Costs Order made against father for total of $31,090.68 - paid20 Apr 2016
Mother files Response to an Application in a Case seeking Security for Costs
3 May 2016
Father files Notice of Discontinuance with respect to Application in a Case
5 May 2016
Mother files Application in an Appeal seeking costs
10 May 2016
Father files 2 Applications for Special Leave to Appeal in the High Court to set aside all the Orders made by the Full Court on 15 April 2016, and the Parenting Orders made by Judge Walker on 24 July 2014, that there be a rehearing of the parenting proceedings in the Family Court and that each party pay his/her own costs of the proceedings
12 May 2016
Orders made by consent by Le Poer Trench J including, amongst other things, that by way of vexatious proceedings Order pursuant to Section 102QB of the Family Law Act the father be prohibited from instituting proceedings under the Family Law Act against or in relation to the mother or [the child], born … 2011 without first having been granted leave by the Court to commence those proceedings pursuant to Section 102QD of the Family Law Act
Costs Order made against father for $16,000 – paid after Third Party Debt Notice issued to father's employer
13 May 2016
Father files Notice of Discontinuance of mother's Response to Application in a Case filed 20 April 2016
25 May 2016
Father files Application in an Appeal seeking a stay
25 May 2016
Orders made – procedural – Appeals to be heard together
16 June 2016
Mother files an Application in an Appeal for Security for Costs in relation to the father's Notices of Appeal.
27 June 2016
Father files Application in an Appeal seeking a stay of Order 2 of the Orders made by Strickland J on 15 April 2016 and a stay of Orders 6 and 10 of the Orders made by the Full Court on 15 April 2016.
29 June 2016
Mother obtains a Third Party Debt Notice against the father regarding Costs Order dated 12 May 2016
6 Jul 2016
Father files Application in a Case seeking leave to make the Application, the withdrawal of the Third Party Debt Notice, the disqualification of Registrar Bastiani, a stay of the property application, various financial restraints, and disclosure
6 Jul 2016
Father files Amended Application in a Case
18 Jul 2016
Orders made in relation to the father's Application filed 27 June 2016. Certain Orders stayed pending determination of father's Applications to the High Court
30 Jul 2016
Father films a video of [the child’s] moaning/crying.
Jul 2016 – ongoing
Mother says it has become more and more difficult to return [the child] to a settled emotional state after he returns from spending time with the father, especially following longer periods of time with father in school holidays and that [the child] becomes stressed or anxious out of the blue
5 Aug 2016
Father files Amended Notice of Appeal
9 Aug 2016
Father files Response to mother's Application for Security for Costs
16 Aug 2016
Orders made, amongst other things, that Father pay security for costs, otherwise the Appeals be stayed.
Costs Orders made against father for $5,968 - paid
30 August 2016
High Court dismisses the father's 2 Applications for Special Leave to Appeal in the High Court
31 August 2016
Mother files Application in a Case seeking superannuation Orders including flagging Orders
12 Sep 2016
Superannuation Flagging Orders made in relation to the father's superannuation fund with [D Super]
14 Nov 2016
Father files Application in an Appeal to file further evidence
28 Nov 2016
Father files Application in an Appeal seeking leave to rely on Affidavits and Exhibits and a review of the Registrar's Order relating to the conduct of the appeal and to reverse the Registrar's decision to reject for filing part of the Application filed on 14 Nov 2016 and leave to amend the Appeal to set aside the Orders of Justice Le Poer Trench
30 Nov 2016
Costs Order made against father for $6,323.10 - paid
14 Feb 2017
Orders made. Father's Application for review dismissed
17 Feb 2017
Costs Orders made against father for $5,420.69 - paid
17 Feb 2017
Father files Application for Special Leave to appeal to the High Court
9 March 2017
Father files Application for Special Leave to appeal to the High Court
10 March 2017
Father files Application in an Appeal including, amongst other things, Orders for transfer of proceedings to Supreme Court
13 April 2017
Father files Application in an Appeal seeking that Order 2 of the Orders dated 17 February 2017 be stayed
28 April 2017
Ms R produces a report (contained in the Affidavit of Ms R of 18 October 2017)
3 May 2017
The High Court dismisses the father's 2 Applications for Special Leave to Appeal in the High Court.
10 May 2017
Father files Application in an Appeal seeking an adjournment and that Chief Justice Bryant, Justice Murphy and Justice Ainslie-Wallace disqualify themselves based, in essence, on apprehension of bias
14 June 2017
Father files Amended Application in an Appeal
5 Oct 2017
Orders made. Father's 3 Applications dismissed and leave refused for one Application to be filed. Appeals EA30 … and EA38 … dismissed.
Costs Orders made against father (assessed on 10 July 2018 in the amount of $25,500 – paid)
18 October 2017
Mother files Application in a Case seeking sole parental responsibility, that [the child] live with her, and spend supervised time with the father
27 Oct 2017
Father files Response to an Application in a Case
30 Oct 2017
Mother's Application in Court before Senior Registrar Campbell and case adjourned to the short matters list.
13 Nov 2017
Father files Amended Application in a Case (re: Application he filed 12 October 2015)
10 Jan 2018
Hearing before Justice Benjamin – trial directions- Costs reserved
5 Feb 2018
Father files Notice of Appeal against Orders of 10 January 2018
8 Mar 2018
[The child] tells the mother that he is going camping in [S Town] (school camp)
16-18 Mar 2018
Scheduled dates for [the child’s] school camp
20 Mar 2018
When asked how the camp was [the child] tells the mother "My friends weren't there. We didn't go to [S Town]. Dad and I went to [O Town] because it is a powered camping site and [S Town] isn't." I accept this evidence as being reliable.
3 Apr 2018
[The child] says to the mother "I'm not going to tell you why I didn't eat my lunch because dad says everything I tell you, you tell the judges." I accept this evidence as being reliable.
12-13 Apr 2018
[The child] spends time with the father prior to the school holidays
13-21 Apr 2018
[The child] spends time with the mother in the school holidays
14 Apr 2018
[The child] attends a playdate at home. When asked to pick up his toys from the pool, [the child] begins to box and hit the mother.
14-29 Apr 2018
[The child] spends time with the father in the school holidays
16 Apr 2018
Orders made for Security for Costs as sought by mother
24 April 2018
Father files Application in a Case seeking stay of Orders of 10 January 2018
29 Apr - ongoing
[The child] displays tics such as grunting, picking the skin around his nails, and neck stretching. I accept this evidence of the mother as to what she observed as being reliable.
May/Jun 2018
Mother notices that the frequency of [the child’s] grunting has increased significantly. I accept this evidence of the mother as being reliable.
23 May 2018
[The child] says to the mother "Dad says I can change my name to [father’s surname]." I accept this evidence of the mother as being reliable.
6 June 2018
Mother files Submitting Notice in relation to the father's Appeal filed 5 February 2018
7 June 2018
[Dr C's] single expert report released to the parties
14 June 2018
Father files Amended Notice of Appeal against Orders of 10 January 2018
21 Jun 2018
Orders – father's Application filed 24 April 2018 dismissed
27 June 2018
Parent/teacher meeting
2 July 2018
Father files Application in a Case re: releasing [Dr C's] report to a number of third parties
2 July 2018
Father files Notice of Discontinuance of his Appeal against Orders of 10 January 2018
July school holidays 2018
[The child] spends the first half of the July 2018 school holidays with the mother – he is happy and affectionate and displays no aggression towards mother. I accept this evidence of the mother as being reliable.
11 Jul 2018
Mother files Application for Costs of the Appeal filed by father on 5 February 2018 which he discontinued on 2 July 2018
16 July 2018
Mother files Response to an Application in a Case re: releasing [Dr C's] report
26-30 Jul 2018
[The child] spends time with the father
30 Jul 2018
Mother collects [the child] from school after spending time with the father. [The child] says to the mother "I wonder why I like dad more than you." I accept this evidence of the mother as being reliable.
3 August 2018
Orders made in relation to the father's Application filed 2 July 2018 – father does not attend – Orders made as sought by the mother. Costs reserved
24 August 2018
Father files Further Amended Application in a Case for Parenting and Property Orders and Vacation of hearing on 24 September 2018
10 Sept 2018
Orders made by the Appeal Division of the Family Court that the father pay the mother's costs as sought in her Application in an Appeal, filed 11 July 2018 in the amount of $3,807.36 - paid
13 Sept 2018
Father has paid total amount of costs of $111,997.83 to mother as a result of Costs Orders
17 Sep 2018
First day of trial
45.The father conceded the procedural history and having heard and assessed the evidence the parties, I am satisfied that the mother’s recall of the facts set out in the chronology, which she confirmed was true, are accurate. On 24 July 2014 parenting orders were made that the mother have sole parental responsibility for the child, the child live with the mother and spend time with the father, later increasing to five nights per fortnight.
46.The father filed an appeal in relation to those orders which was dismissed by order of the Full Court made 15 April 2016.
47.On 12 May 2016 orders were made by consent by Justice Le Pour Trench, including an vexatious proceedings order pursuant to s 102QB of the Act prohibiting the father from instituting proceedings under the Act in relation to the mother or child without obtaining leave of the Court pursuant to that part of the Act.
48.The mother had filed an amended application to seek property orders in December 2013 and they were not dealt with in the Federal Circuit Court.
49.On 11 November 2015 these proceedings were transferred from the Federal Circuit Court to the Family Court
50.On 12 September 2016 flagging orders were made in relation to the father’s superannuation with D Super following an application in a case being filed on behalf of the mother the previous month.
51.The property proceedings being ongoing on 12 October 2015, the father filed an application in a case seeking parenting orders that the child live with him. This was shortly before the proceedings were transferred to the Family Court.
52.Relevantly for the purpose of the parenting proceedings, the mother filed an application in a case on 18 October 2017 seeking sole parental responsibility with the child to live with her and spend supervised time with the father.
53.On 10 January 2018 these proceedings came before me and the matter was listed for hearing in terms of the parenting and the property issues.
54.During the hearing, the father’s cousin, Ms Q, assisted him as a McKenzie friend. Ms Q helped the father deal with the processes during the trial and provided the father with support in managing his documents, cross examination and his submissions. The father regularly looked to her for assistance and guidance. From my observations, Ms Q was a positive influence in enabling the trial to be conducted in a calm and constructive manner and assisting the father in presenting his case in a cogent and constructive way.
55.The father was unrepresented and needed to deal with the mother’s competent counsel and instructing solicitor over the period of the trial. The father does not have a law degree, although given the history of the proceedings is not wholly inexperienced in Court processes. However, in considering the various issues and making the necessary determinations, I have had regard to the fact that the father was an unrepresented litigant. As best I could, I provided procedural guidance to him throughout the trial.
56.In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context in which it is provided.
THE LAW REGARDING PARENTING
57.The provisions of the Act that deals with children is set out in Part VII. In particular s 60B articulates the objects and the principles underlying them as follows:-
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
58.A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
59.If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
60.Section 60CA, provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.
61.In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
62.I will endeavour to apply the principals of law to the facts in this case.
EVIDENCE
63.The father relied on the following affidavit evidence:-
(a)his further amended application in a case filed 24 August 2018;
(b)his affidavit filed 24 August 2018;
(c)his financial statement filed 24 August 2018;
(d)an affidavit of Ms M, the child’s great aunt filed 24 August 2018;
(e)an affidavit of Ms T, the father’s mother filed 24 August 2018; and
(f)an affidavit of Ms U filed 20 July 2014
64.The father also relied upon his financial statement which was annexed to his affidavit.[6]
[6] Exhibit E3, Annexures 50-67 page 328 to 341.
65.The mother relied upon the following documents:-
(a)her application in a case filed 18 October 2017;
(b)her affidavit filed 24 August 2018;
(c)her financial statement filed 24 August 2018; and
(d)an affidavit of Ms X Frazier, the maternal grandmother, filed 24 August 2018;
(e)an affidavit of Ms V, the mother’s solicitor filed 24 August 2018. Ms V was not required for cross-examination. Her affidavit provided details of her correspondence with the father’s D Super superannuation fund and evidence that procedural fairness had been provided to the trustees of the relevant funds. I am satisfied there was procedural fairness; and
(f)an affidavit Ms R, the mother’s treating clinical psychologist filed 18 October 2017.
66.A series of documents were tendered:-
(a)Exhibit E1 - the father’s case information.
(b)Exhibit E2 - the mother’s case outline.
(These documents were not treated as admission of the facts or concession of the facts contained in them except in so far as the chronologies were consistent). I had regarded the statement of the orders the parties sought and contained in those documents as indications of the orders that the parties sought (subject to any variations at the conclusion of the hearing).
(c)Exhibit E3 - the annexures to the trial affidavit of the father.
(d)Exhibit E4 - three volume tender bundle prepared by the father.
I said to the parties and had them acknowledge that I would only go to those parts of that volume and the material to which I was taken and a few pages on either side if necessary to give context to that particular document. I expressed to the parties that it was only that material to which I would have regard to and that it was open for them to raise objections to further material in those documents as the hearing progressed.
(e)Exhibit E5 - single expert report prepared by Dr C (‘the single expert’) dated 7 June 2018 together with her curriculum vitae.
(f)Exhibit E6 - a memory stick with a video recording of the child expressing unhappiness at a changeover (this was viewed by me).
(g) Exhibit E7 - P Bank statements produced by the father.
(h)Exhibit E8 - the agreed balance sheet showing agreement to most, and disagreement as to personal loans and the amount in item 2 (P Bank account in father’s name).
(i)Exhibit E9 - the temporary workers agreements (referred to earlier).
(j)Exhibit E10 - the father’s Notice of Risk of Family Abuse filed in this Court on 16 February 2016 which described about 51 allegations of any acts or omissions which the father contended constituted abuse.
(k)Exhibit E11 - the mother’s chronology. The chronology prepared by the legal representative for the mother was tendered in evidence. It provided a list of the proceedings which had occurred from 26 April 2013 to date. I indicated that I would accept the procedural history as evidence unless I heard to the contrary from the father.
I have treated the procedural history contained in that chronology as not contentious unless raised by the father.
During the course of the hearing I invited the father to go through the procedural chronology provided in Exhibit E11. The father did so, although went much further over the weekend. As such I permitted him to tender, as part of Exhibit 11 part 11A. I indicated to the father that I would only have regard to that in respect of the procedural matters and I would check them against each other. I did so.
(l)Exhibit E12 - liabilities claimed by the father. It is evidence of the ANZ loan of $14,731, the P Bank MasterCard which supported the father’s claim of $1,440; a statement from the child’s paternal grandmother, Ms T (the father’s mother) of $38,000 and a loan from Ms M (the father’s aunt) of $5,000.
(m)Exhibit E13 - the father’s financial records.
(n)Exhibit E14 - the father’s brokerage accounts.
(o)Exhibit E15 - the mother’s W Bank account as at October 2017.
(p)Exhibit E17 - a cost letter produced by the mother’s solicitors in accordance with the Family Law Rules 2004 (Cth). The letter showed that as at 14 September there was money in the solicitor’s trust account and the mother had spent $598,529 with her current solicitors. It is estimated that the total cost of the mother’s solicitors at the conclusion of this trial will be some $663,355. The source of the funds have been from the mother, monies borrowed from her mother and costs paid by the father (referred to elsewhere).
(q)Exhibit E18 - a letter from the father’s aunt evidencing a loan of $5,000. I accept this loan.
(r)Exhibit E19 - a letter from the father’s mother saying that she had loaned him $38,000.
(s)Exhibit E21 - written submissions prepared by the father over the weekend before the last day of the substantive evidence and submissions and he tendered those. I have had regard to them.
The father
67.The father relied upon his affidavit filed 24 August 2018, which included his financial statement as an exhibit. I have carefully read that lengthy affidavit, much of which is irrelevant to the current proceedings.
68.The father spent a significant amount of time essentially asking the Court to reconsider the decision made in the Federal Circuit Court in July 2014. In fairness, so did the mother.
69.The father relied upon the evidence of his mother and his aunt to claim loans of some $38,000 and $5,000. As to his aunt and mother, I accept that both of those loans need to be repaid, and I will treat them as liabilities.
70.The father gave evidence that he wanted no adjustment of the property, which evidence I accept and took to be his case in relation to the adjustment of property.
71.The father asserted that he was truthful in his cross-examination. The father was cross-examined about his wage and I am satisfied that he earns or has the capacity to earn somewhere between $133,000 and $150,000 per year.
72.He said that his present income was about $2,574 per week, although given this hearing he was currently not on a contract. I am satisfied given his evidence, that he has the capacity to earn at least $2,574 per week.
73.In his evidence the father was extraordinarily critical of the mother. An example of this is easily set out in paragraphs 110 through to 129 which are critical of the mother and endeavoured to shift the blame for the current circumstances wholly to her. His affidavit is littered with such comments and this was at times reflected in his oral evidence.
74.The father was cross-examined about the fact that, if his application was successful, no overnight time would occur between the mother and the child for three months. When pressed on this he prevaricated and endeavoured to avoid frank answers to those questions.
75.The father believes that the mother constitutes a risk of harm to the child.[7]
[7] Exhibit E10 Notice of Risk of Abuse filed 16 February 207.
76.The father still bears a grudge and anger at the mother removing the child for a few weeks from Australia shortly after separation when her father died. I accept that that was not the mother’s finest hour; she should have told the father. However she went, she came back and instead of letting that pass and getting on with the task of parenting, the father still grinds away at that assertion, claiming it is illegal. It was thoughtless, but it was certainly not illegal as proceedings had not commenced at the time the mother left.
77.The father tendered in evidence the recording of the child, which was made in about July 2006. It arose over a family function where the poor communication between these parties was highlighted.[8]
[8] Father’s trial affidavit paragraph 140 to 157.
78.The father initially said that on 30 July 2016 his mother had decided to, on the spur of the moment, start recording. The father subsequently amended this evidence and said that he asked his mother to do it at the time. I have carefully considered the father’s evidence, his mother’s evidence and the recording. I am satisfied that it was pre-planned, which is inconsistent with what the father said in his affidavit filed 13 November 2017, when he said:-
36.My mother videoed a scene that she had witnessed many times, that was happening every time the [mother] came to pick him up. I had become convinced during my various representation to court that no one was believing what was happening. [The child’s] distress was not being heard.
37.The court’s conduct made this video necessary. The video was not made by me, but by my mother on that day, on the day that I could do not work or have any involvement in its making. It was done in the light of, and made necessary by this honourable court (sic) conflict of interest on this topic to show evidence of the reality of [the child’s] unhappiness. I do not believe the Federal Court faces the same conflict of interests the Family Court faces.
79.Reading all of that material, I am satisfied that the father arranged to collect this evidence and to use it in the hearing. His various explanations of it being on the spur of the moment, initially by his mother and then by him, are fabrication and are inherently unreliable.
80.The father was cross-examined in relation to a video he made of the child expressing to someone that he wanted to spend more time with the father. The father said he deleted this video the same day, but it was clear that the child assumed this was for further purposes.
81.Similarly and worryingly was the evidence in relation to the school social camp in 2018. The parents of some of the children arranged to go to a camp at S Town in New South Wales. The arrangement was that the child would attend. However, the father, changed the arrangement and took the child on his own camp and spent that time with the child by himself. He did not inform the mother of this until afterwards.
82.The father deflected, prevaricated, dissembled, expressed confusion about the dates and which camp. He was being untruthful. He decided this was a time not for the child to spend with the child’s peers but to spend with him. It is also consistent in terms of the father engaging the child in chess rather than have the child do chess as an extracurricular activity.
83.In a similar fashion, the father took the child from a football match in which the child was participating with his peers and instead he himself played football with the child.
84.These are indicative of the father’s lack of candour in giving evidence and the father’s desire to isolate the child and enmesh the child in his beliefs about the mother and the context in which the child came into the mother’s care.
85.The child was invited to a birthday party at the time of the videoing incident. It was the child’s first year in primary school and the father agreed that the child enjoyed birthday parties. I am satisfied that the father allowed the child to go, but in many ways, having regard to paragraph 64 of the mother’s trial affidavit, gave control to the child. In dealing with these events the father again dissembled and obfuscated.
86.His desire was to keep the child with him and he seemingly at times ostracised the child from his broader peer group.
87.So, what do I make of the father’s evidence? He is a very intense man, and is anxious to make a positive impression. He is thoughtful and careful in his evidence, but I am not convinced that he is a reliable witness.
88.I am satisfied that at times the father has at times fabricated, exaggerated or minimised evidence to suit his perceived needs and objectives. I will treat his evidence with a great deal of care.
89.In his trial affidavit the father asserted at paragraph 74, that when he read the mother’s statement about the impact on the child he was appalled and said:-
Never once in any of the appearances before this Court over my concern for [the child’s] distress has the mother voiced any such concern for [the child].
90.He was asked about the comments regarding this sort of behaviour in his affidavits of 23 July 2013 and 5 March 2014. He prevaricated in relation to his explanation and it is clear that the assertions in paragraph 74 of the father’s trial affidavit were bluster and at times fabrication.
91.I accept that the father has in many ways endeavoured to treat the child as a baby. I am satisfied on the evidence that he carried him to the door until the child was aged about six and said to the child on many occasions that his behaviour made the mother ‘sad’ and further troubling he invited the child to be ‘big and brave’ when he went to see the mother. The only implication for this is that staying with his mother involved some terrible impact on the child.
92.I am satisfied on evidence that he likely kept the child in nappies beyond the time that the child was toilet trained. The father offered some explanations, but did not fully address the constancy of it.
93.It was only when the mother sent an email in November 2016[9] when the child was five years old that this stopped.
[9] Mother’s trial affidavit - paragraph 44.
94.The father was cross-examined in relation to co-showering and gave various explanations, such as the beach or coming from someone’s swimming pool or time running tight. He was evasive in his answer and I am troubled by his evidence.
95.An example of the father’s continuing to co-shower with the child, despite concerns expressed over a period of time, is demonstrated in paragraph 47(b) of the mother’s trial affidavit.
96.Similarly, I am satisfied that the father continues to co-sleep with the child. He offers explanations and dissembles in that evidence. However, he did say during his evidence ‘there is nothing wrong with [the child] sleeping in my bed’.
97.There is evidence that the father has engaged with the child in relation to equal time, telling the Judge that the child wants more time. This reflects the views of the father and I am satisfied, on balance, that these are not simply the views of the child. These are the views of the child that have been taught either overtly or subliminally by the father.
98.Each of the parties has been rigid in their approach and the child has suffered as a response to that.
99.One curious piece of evidence was in relation to the child’s invitation to a party in December 2016 (‘the December 2016 birthday party’). The mother provided evidence of this, including emails and expressions, yet the child did not attend. The child apparently said that the ‘father forgot to take me’.[10]
[10] Ibid - paragraph 89.
100.In re-examination the father gave an impassioned plea for the child to live primarily with him. It was a very powerful and emotional plea in which the father displayed significant distress, and showed that he deeply loves the child. I have no doubt that the child deeply loves him.
101.What he did do, however, was keep shifting blame to the mother.
102.I am satisfied that the father decided for his own purposes and not the child’s that the child would not attend this birthday party.
103.I am satisfied that the father puts the closed relationship between he and the child ahead of other relationships such as the chess club, the soccer game, the camping and the like. I do not intend to repeat all of the evidence, but it is clear that the father does not take the child to pre-arranged social events with his peers in favour of the father and the child spending one-on-one time together. This is the approach adopted by the father, and when challenged on this he prevaricates or fabricates. Some of his explanations are inherently implausible, such as his assertion that he did not remember not taking the child to the birthday party in December 2016.
104.The father said he had completed a Parenting after Separation Course, another course at the religious centre and a Keeping in Contact Course.
105.As to the Judges who had dealt with this matter in the past, the father was critical and asserted that they had engaged in almost Machiavellian actions against him.
106.An example of this was when a listing occurred of which he was apparently not notified or was notified late. The father asserted that this was an endeavour by a Federal Circuit Court Judge to have a trial in his absence and that there was some form of conferencing between the mother and that Judge. I reject the father’s interpretation of this event. If there was an administrative mix up, well, it was just that. It was not some perverse plot by a judge and litigant to deny the father procedural fairness. It was an example of the father exaggerating an otherwise innocuous event.
107.I am not convinced that the father is a reliable witness. An example of this is where in paragraph 137 of his affidavit he says:-
[The mother’s] only fear is based on her irrational fear that [the child] might not choose her as a parent. She told [the child] ‘no one will ever take you away from me’ and that unwarranted fear is her overriding fear to this day.
108.Yet when taken to the affidavit at paragraph 32 and read in context that is not what was said. The father uses parts of quotes out of context to give support to his opinions.
109.With examples set out above, at times when giving evidence the father dissembled and prevaricated. Some of his evidence, such as the explanation as to the video recording of the child, had a sense of being fashioned to create a result rather than to be frank to the Court.
110.Consequently, I have been cautious in assessing the evidence of the husband in terms of the various issues of fact.
Ms M
111.Ms M is the father’s aunt and is the child’s paternal great aunt. She gave evidence in terms of her affidavit filed 24 August 2018.
112.She has a good relationship with the child and provided evidence of what she saw during the course of the parenting and in terms of the father’s interaction with the Court. I have had positive regard to that evidence.
113.Ms M said that she would be concerned for the well-being of the child if his time with the father was significantly reduced. She said it would be awful for the family and it would be difficult for them to maintain a continuing strong relationship with the child.
114.I accept her evidence in relation to the loan she made to the father being repayable to her.[11]
[11] Exhibit E18.
115.Ms M gave her evidence clearly and frankly and I am satisfied that she is a straight forward witness, although her evidence is coloured by her support of the father.
116.I generally accept her evidence as being reliable.
Ms T
117.Ms T is the child’s paternal grandmother (‘the paternal grandmother’) and she provided evidence in terms of her affidavit filed 24 August 2018. This witness lives in Western Australia, but travels regularly to spend time with the father and the child. She has done so since the child’s birth and clearly has a close relationship with him.
118.She provided evidence of the father’s care of the child and the difficulties with changeovers.
119.This witness was quite upset about the videoing of the child and its impact on these proceedings and on her.
120.I am satisfied that she is a straight forward witness and is generally reliable. She is supportive of her son and her evidence is coloured in that respect.
121.Her evidence is generally reliable, including her belief that the father will repay her the $38,000[12] (at least), which money she has lent to him.
[12] Exhibit E19.
The mother
122.The mother relied upon her trial affidavit and financial statement both filed 24 August 2018. She gave evidence that the chronology contained in Exhibit E11 was accurate.
123.The mother was cross-examined by the father as to the amount of his contributions to her business. The mother gave a straight forward explanation that she ran her business and that the father helped, but not in a significant way as was asserted by him. I prefer and accept the mother’s evidence to that of the father in this respect.
124.The mother claimed $25,000 by way of payment to the father which was not in fact paid directly to him. I have had regard to that circumstance in the adjustment of property.
125.The father asserted to the mother that he left his university job because she insisted that he do so. The mother said that he left because he chose to do so. I prefer her evidence in that regard.
126.As to the parties’ finances, at and around separation the mother acknowledges that the father had applied for Centrelink benefits and said that she had learnt around the time of separation that he had exhausted his savings. The mother was aware that there had been financial difficulties at that time.
127.The father cross-examined the mother as to the December 2016 birthday party and the 2018 S Town camp and the mother expressed her concern that the child was being isolated by the father. This was a cumulative effect through various arrangements such as missing the birthday party which the child had arranged to attend in December, taking the child on a camp with the father solely, and other such issues.
128.The mother gave evidence of the type of salute exchanged between the father and the child and said it was not a ‘wave’ as asserted by the father. It seems to be a continuous type of salute with the father and the child holding each other’s eyes until the child is out of sight. This is supportive of the concerns raised by the single expert and I prefer the evidence of the mother to that of the father in relation to the nature of the salute.
129.I accept that it prolonged the changeover for the child from the father to the mother. Similarly, the issue with the barking was not an example of fun. According to the mother; she said there was no happiness or joyfulness and she categorised it as isolationist, given the mother’s evidence and the evidence of the removal from school camp and the like, and I accept that categorisation as part of the father’s approach in isolating the child when in his care.
130.The mother was cross-examined in relation to her emails. Her evidence was that polite emails did not give rise to a response. Direct and frank emails did. An example was the communication regarding the washing of clothes, which were often placed in a dryer and shrank.
131.The mother was cross-examined on the chess club and the co-sleeping, which were again indications to her of the father isolating and enmeshing the child. The mother confirmed that she said to the expert:-[13]
… that she was concerned that [the child] was experiencing a high degree of conflict and anxiety and she was worried about his emotional well-being. She said that she felt the father was “cocooning” and isolating the child and that, over the years since Final Orders were made in 2014, it was taking longer to calm him down to baseline and he was becoming more difficult to manage, after changeovers.
[13] Exhibit E5 page 3.
132.I accept that this was what the mother said to the expert and I accept that was the mother’s clear view of the father. Given the evidence it is a concerning behaviour on the part of the father.
133.The father’s co-sleeping with the child has the capacity to inhibit the child’s move to independence. The father’s evidence in this respect is at times inconsistent.
134.I accept that the father co-sleeps with the child when his mother visits and previously co-slept significant amounts of the time. Given the focus of the Court on him I am satisfied that the co-sleeping has become limited in recent times although still occurs. There is a similar situation regarding the showering.
135.It was put to the mother that the child’s behaviour and difficulties, particularly in mid-2016 when her mother came to Australia, was as a result of the maternal grandmother’s arrival. It is likely this had some interaction, but very little compared to the conflict and the behaviour displayed by the parties to the child over many years.
136.The mother presented as straight forward and frank. She answered the questions carefully and thoughtfully. She was not seriously shaken in cross-examination. In assessing the mother I took into account that the father was unrepresented and did not have the forensic skills for cross-examination.
137.However, I am satisfied the mother endeavours to truthfully answer questions and gives evidence frankly.
Ms X Frazier
138.Ms X Frazier is the maternal grandmother of the child (‘the maternal grandmother’). She provided evidence in terms of her affidavit filed 24 August 2018.
139.This witness lived in Country H until about July 2016 when she moved to Australia to be closer to the mother and the child. She has lived with them since then, up to and at the present time.
140.Prior to coming to Sydney she would visit the mother at least once, sometimes twice, per year for approximately three to four weeks.
141.She provided evidence of the interactions between the child and the family, particularly shortly after her arrival and some of the child’s ‘acting out’.
142.She was a careful and thoughtful witness and, like the paternal grandmother and the paternal great aunt, seemed straightforward and reliable although her evidence was coloured by her support of her daughter.
Ms U
143.The father relied upon an affidavit of Ms U filed 20 July 2014 in the Federal Circuit Court. That affidavit was read into evidence without controversy. This witness said that he was a friend of the father and had known him for two years and had met him at the Synagogue. He provided evidence that in 2014 the father seemed to have a good relationship with the child and that when the father tried to return the child to the mother the child made distressing sounds. In many ways it is in the form of a character evidence. The father’s character was not in issue, it was his parenting that was in issue.
Ms Y
144.Ms Y provided evidence of a loan she made to the father in July 2018.[14] This witness gave evidence via telephone-link from Western Australia. I found the witness to be frank and her evidence was not in any way impeached by the cross-examination.
[14] Exhibit E20.
145.I am satisfied that she lent $10,000 to the father in July 2018 which was passed to him in August 2018. She anticipates the money being repaid.
The single expert
146.The single expert gave evidence on the first day of the hearing and was cross-examined by the father and on behalf of the mother. The material contained in her affidavit, report and curriculum vitae[15] was read into evidence, subject to weight.
[15] Exhibit E5.
147.There was a challenge to the expertise of the single expert. Not in terms of the qualifications of the expert, but in terms of the inexact science that is psychiatry.
148.I am satisfied that the single expert was qualified by reason of her training and experience to give the expert evidence in respect of the child, the father and the mother.
… Handovers in the school holidays are to take place via a school holiday programme of the choosing of the parent in whose care [the child] is in on that morning. The remaining parent will pick up the child from the chosen activity.[49]
[48] See Order 37 of the orders sought by the father in his final submissions see Exhibit E21.
[49] Ibid Order 38.
301.I do not intend to require father to see Dr DD or the child to see a psychologist. The problems for this child are his parents and their litigation. I have suggested that the parents seek psychological help, but it is a matter for them.
302.I have considered changeover, and with the orders I will make, much of that will occur at school. The others are at a relatively safe public place.
303.Neither party sought particular orders about electronic communication. Apparently, that is happening in the absence of orders. I note from the order made 24 July 2014 that no such orders were made. Accordingly, I will make no such orders.
304.There is no reason why the child cannot be removed by the mother from Australia, given my earlier comments. Consequently, I will make such order, but with a requirement that the father be given notice. The father may travel with the child with the mother’s consent.
305.I am satisfied that the child is likely to be at increased emotional and psychological risk if the father has more time with him or shares in parent responsibility. Given the evidence of the single expert and the factual matrix of the circumstance of this child and his parents that outcome seems more than likely.
306.Similarly, I have concerns about the ability of the father to meet the emotional and psychological needs of the child or fostering the child’s relationship with the mother.
Informing the child about the orders
307.There was general agreement that the child should be informed of the orders to be made by someone other than the parents. There were various suggestions as to who should inform the child of the orders including: the single expert, which the father opposed; Dr DD, which the mother opposed; and various other suggestions. I had raised with the mother whether the child’s general medical practitioner could undertake the task. The mother was initially attracted to this, but said that she was concerned it might undermine the therapeutic relationship between the child and this health practitioner. I accepted that evidence.
308.The parents agreed that this ought to be undertaken by a family consultant who has not otherwise been involved in these proceedings and that should be based upon the family consultant having read these reasons.
309.Accordingly, I will be making an order that the child be informed of these reasons by a family consultant who has not otherwise been involved in these proceedings after that family consultant has read these orders and the reasons upon which they are based. I will be making an order under s 65(L) of the Act that the mother bring the child to the Court for a family consultant to explain the order to him.
310.Having considered all of the facts, findings and circumstances I have made the orders as set out in these reasons as being in the best interest of this child.
PROPERTY PROCEEDINGS
311.It is not in issue that the parties were in a de facto relationship from about October 2010 until they separated under the same roof in November 2012, a period slightly in excess of two years. As I have indicated earlier, there is one child of the relationship.
312.This Court has both the power and obligation to determine jurisdiction in terms of whether there is a relationship within the meaning of the Act. The Full Court in Norton v Locke [2013] FamCAFC 202 said in relation to the question of jurisdiction under Part VIIIAB of the Act:-
43. This court, does, however, plainly have jurisdiction to determine if it has jurisdiction – in this case the jurisdiction to embark upon proceedings which seek to establish or deny the relevant jurisdictional facts. This court has the power to make orders that are necessary for the determination of issues relevant to that jurisdiction. Those powers include the power to control its own process; “[t]he power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of the injustice…” (Cocker v Tempest (1841) 151 ER 864 at 865 by Alderson B, cited by Gaudron J in Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612, at 638). More specifically, this court has the power to, as Menzies J put it in Ex parte Bevan, “protect […] its function as a court”.
44. Within that jurisdiction and within the ambit of powers just described, this court has the power to make what this court has described as “holding orders” pending the determination of the jurisdictional facts necessary to found jurisdiction. Orders of that type can include, specifically, orders for interlocutory injunctions (see, for example, Ex parte Green; Re LSH; and, Jackson v Sterling Industries Pty Ltd at 617, per Wilson and Dawson JJ). In both the High Court and this court orders of that type have been expressed as orders “preserving the status quo” pending resolution of the question of jurisdiction.
313.The Family Law Amendment (De Facto Financial Matters & Other Measures) Act 2008 (Cth) introduced the concept of “de facto financial cause” to the legislation. Sections 4(1) of the Act, relevantly defines a de facto financial cause to mean:-
(a)proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship; or ….
(b)proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them; or …
314.Section 4AA (1) of the Act provides:-
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5)For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
315.Once there is found to be a de facto relationship with the meaning provided under the Act this Court may make an order or a declaration in relation to a de facto relationship only if the Court is satisfied that one of the four criteria set out in that section has been met. Section 90SB provides:-
A court may make an order under s 90SE, s 90SG, or s 90SM, or a declaration under s 90SL, in relation to a de facto relationship only if the court is satisfied:-
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii)a failure to make the order or declaration would result in serious injustice to the applicant; or
(d)that the relationship is or was registered under a prescribed law of a State or Territory.
Note: For child of a de facto relationship, see section 90RB.
316.The jurisdiction to hear de facto property proceedings in the Family Court is provided by s 31(1)(a)(aa) of the Act which relevantly provides:-
Original jurisdiction of Family Court
s 31(1) Jurisdiction is conferred on the Family Court with respect to:
(a)matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act; and
(aa)matters arising under this Act in respect of which de facto financial causes are instituted under this Act; and …
317.Section 39A of the Act provides jurisdiction for de facto financial proceedings to be instituted in the Family Court.
318.Section 4 of the Act implements the requirement that a de facto relationship must have existed between the parties and there has been a breakdown of that de facto relationship to enable the jurisdiction of the Court to be enlivened. These requirements are repeated in s 90SM(1) of the Act.
319.Section 4AA(1) of the Act also sets out the circumstances which give rise to a de facto relationship. If there is no de facto relationship then the Act will not apply as the Court has no jurisdiction.
320.The reason for these provisions is that the power to deal with maintenance and property in respect of parties to a de facto relationship was created as a Commonwealth power by way of limited referral of these State powers to the Commonwealth by some, but not all, State Governments.
321.In this case the parties resided in New South Wales and its State Government, by reason of the Commonwealth Powers (De Facto Relationships Act) 2003 (NSW), referred powers to the Parliament of Commonwealth of Australia in respect of financial matters relating to de facto parties arising out of the breakdown (other than by the reason of death) of de facto relationships.
322.The Commonwealth accepted the referral of power by the passing of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth).
323.I am satisfied that the parties commenced cohabitation in October 2010. Their relationship subsisted as a genuine de facto relationship, having regard to the definition under the Act, from October 2010 until November 2012 and that this relationship has come to an end. The parties lived in Sydney from October 2010 until separation in February November 2012, which occurred in Sydney.
324.Consequently, I am satisfied that it was a de facto relationship within the provisions of the Act. As such the Court has jurisdiction to determine property arrangements between the parties.
325.In this matter my task is to:-
a)Identify, according to ordinary common law and equitable principles, and then value the property, assets, financial resources and liabilities of the parties;
b)Determine whether it is just and equitable to make an order altering those interests and if so:-
i)Identify relevant contributions pursuant to s 90SM(4)(a)-(c) of the Act and assess them;
ii)Consider relevant matters referred to in s 90SM(4)(d)-(g) of the Act; and
c)Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.
326.In Stanford v Stanford (2012) 247 CLR 108 the High Court set out the first step requiring the identification of the existing legal and equitable interests in property of the parties.
327.Thereafter the Court must determine whether it is or is not just and equitable to make an order altering the parties’ property interests. Often, given the circumstances of the parties, that step will be uncontroversial; as is the case here where the parties separated in November 2012 and given the property applications of both. Consequently, having regard to all the facts, circumstances and findings, I have no difficulty in concluding that it would be just and equitable to make a property settlement order as between these parties and I find that it is just and equitable to consider the making of a property settlement order.
328.The father made it clear in these proceedings that he seeks no adjustment of property. He says the property in his name and the liabilities in his name should remain the same. On the other hand the mother seeks no orders in relation to the non-superannuation property and seeks a splitting order in relation to each of the father’s significant superannuation funds.
329.The mother seeks no adjustment of non-superannuation property. She seeks about 70 per cent of the parties’ total superannuation. To do this the orders she looks to put in place are for 100 per cent of the D Super which has an agreed value of $83,293 and seeks a split in relation to the E Super of $140,256 which her counsel asserts amounts to a split of the superannuation as to about 70 per cent to the mother and 30 per cent to the father.[50]
[50] Exhibit E2 mother’s case outline pages 12 and 13.
330.Similar to the father, the mother submits that each party should retain the non-superannuation property and their liabilities. For the reason set out I intend to make that order.
THE PARTIES PROPERTY
331.The mother tendered a balance sheet:-[51]
[51] Exhibit E8.
Property of the parties
Bank - ANZ – father
$18,980
Bank – P Bank #96 - father
$7,057
Bank - P Bank #27 - father
$246
Bank Account in the United States (USD) – father
$9,000
Bank – W Bank – mother
$156
Bank – ANZ – mother
$250
Bank – GG Trust Account – mother
$31,605
Motor vehicle 1– mother
$13,000
Motor vehicle 2 – father
$13,000
Shares – HH Pty Ltd (100) – mother
$100
Shares – II Pty Ltd (100) – father
$100
Shares – KK Pty Ltd (100) – father
$100
Shares – JJ Pty Ltd (100) – father
$100
Household contents – mother
$5,000
Household contents – father
$2,000
Total Assets
$100,694.00
332.The liabilities are:-
Liabilities
Personal loan maternal grandmother – mother
$120,000
Personal loan – ANZ– father
$40,731
Personal loan – P Bank – father
$22,122
Personal loan – LL Pty Ltd – father
$15,932
Personal loan – MM Pty Ltd – father
$38,000
Personal loan – Aunty & Uncle – father
$10,000
Personal loan – PP – father
$5,000
Credit card ANZ Visa – mother
$0
Credit Card P Bank MasterCard – father
$1,440
Total Liabilities
$253,225.00
333.Superannuation was agreed:-
Superanuation Agreed
FF Masterkey – father
$242
E Superfund – father
$280,491
D Super – father
$83,293
FF Masterkey – mother
$106,020
Total superannuation
$470,046.00
Gross Assets and Liabilities
334.The gross assets of the parties less liabilities of the parties are:-
Gross Assets
$100,694
Gross Liabilities
($253,225)
Net Assets before superannuation
($152,531.00)
Gross superannuation
$470,046
Net Assets
($142,531)
Net Assets and superannuation
$327,515.00
Loans from relatives
335.The father asserted loans from his mother of $38,000, his aunt and uncle in the sum of $10,000, Ms Y in the sum of $10,000 and his aunt in the sum of $5,000. Each provided written evidence of the advances and each were cross-examined. I am satisfied that the monies were advanced and I am satisfied that there is a real expectation that the sums be repaid. As such they will be included in the balance sheet.
336.The maternal grandmother advanced $120,000 to the mother: $20,000 for a car and $100,000 towards legal costs. I accept that the maternal grandmother probably provided far more than the amounts she claimed as a debt, up to $300,000. However, I accept the liability claimed by the mother to her mother of $120,000.
CONTRIBUTIONS
337.The mother gave evidence that she had savings of about $333,000 as at the date the parties commenced cohabitation.[52] I am satisfied that this was the case. I also accept the mother’s evidence that she had a Motor vehicle 3 with a value of about $3,000 and superannuation with a total of about $50,000. As such she had assets to the value of about $383,000.
[52] Exhibit E15.
338.The mother’s money was effectively used for living expenses and in the costs of the litigation. I accept that the mother has spent approximately $600,000 on legal costs in these proceedings.
339.The mother says the father had total property of about $251,106 at the start of cohabitation. The father says his contributions are set out in his annexure to his affidavit.[53] He says that he had savings of about $194,000 and superannuation of $54,000. Given the evidence of the E Super as at the following year, I accept that assessment as to about $250,000 at cohabitation.
[53] Annexure 64 pages 302 to 303.
340.The mother’s non-superannuation contributions were greater than the father’s. The parties’ superannuation contributions were roughly similar.
341.As to the father, he had a self-managed superannuation fund called E Super.[54] Since cohabitation there seem to have been relatively modest direct financial contributions to the superannuation funds. Over those periods there were virtually no monies paid into the E Super apart from the fluctuation of the investments operated by the fund, through the investment strategies of the father. As such his initial contribution in relation to that fund was quite modest.
[54] Exhibit E13 Trust Deed established 2006 showing the father as a member.
342.The financial records of that fund show that as at 1 July 2011 the father’s entitlement to that accumulation fund was $42,741. That sum fell to about $34,500 in June 2012 and then increased to $172,261 in June 2013 then to $448,562 in June 2014 and then fell to $329,431 in June 2015. I have factored into the adjustments the financial contribution of the father in this funds’ investments.
343.The father was cross-examined in relation to his December 2013 financial statement. The father did not disclose his entitlements to his D Super Fund. The father said, and I accept, that he simply forgot.
344.Similarly, the father disclosed in his financial statement that he had about $6,452 in US dollars. They were the funds held by him in his US brokerage account and he conceded that it should be approximately $9,000 Australian dollars. I make no adverse finding against him in relation to that.
345.It is not in issue that the father has, in the litigation with the mother, been ordered to pay some of the mother’s costs of these proceedings totalling about $108,190. The father has used savings and loans to fund these amounts. This includes part of the $30,000 he borrowed from P Bank which was used to pay a liability of $16,385 and the other borrowings were to assist him in payment of those cost orders.
346.In 2018 the father withdrew $35,365 from his brokerage account (leaving the $6,452 US dollars) which is referred to in the balance sheet. He applied about half of that towards the payment of a costs order.
347.The mother has the following property:-
W Bank account $156
ANZ Bank $250
GG Trust Account $31,605
Motor vehicle 1 $13,000
HH Pty Ltd Shares (100) $100
Household contents $5,000
TOTAL $50,111
Liabilities
Loan to maternal grandmother $120,000
Net property ($69,889)
348.The mother is left with net non-superannuation property of negative $69,889 and superannuation property of about $106,020.
349.The father has:-
Bank - ANZ – father
$18,980
Bank - P Bank #96 - father
$7,057
Bank - P Bank #27 - father
$246
Bank Account in the United States (USD) – father
$9,000
Motor vehicle 2 – father
$13,000
Shares – II Pty Ltd (100) – father
$100
Shares – KK Pty Ltd (100) – father
$100
Shares – JJ Pty Ltd (100) – father
$100
Household contents – father
$2,000
Total
$50,583.00
350.The father has liabilities as follows:-
Personal loan – ANZ– father
$40,731
Personal loan – P Bank – father
$22,122
Personal loan – LL Pty Ltd – father
$15,932
Personal loan – MM Pty Ltd – father
$38,000
Personal loan – Aunty & Uncle – father
$10,000
Personal loan – PP – father
$5,000
Credit Card P Bank MasterCard – father
$1,440
Total
$133,225.00
351.The father has used loans and assets to pay about $108,190 in legal costs to the mother. Given that the mother ought not to be required to indirectly pay costs orders made to her advantage, nor should there be any hidden order for costs.
352.The father has net non-superannuation property of about negative $82,642 and superannuation property totalling $364,026.
353.The father, in his submissions, applied compound interest calculators and other statistical material in terms of those funds. I have considered his submissions in that regard, however as the parties were at times working and at other times not working and each engaged in domestic activities from time to time. I do not believe that using such statistical or arithmetical approach in relation to those monies is appropriate in these particular proceedings.
354.The father’s savings have been dissipated in legal costs in significant quantities of fruitless litigation to the extent that he was declared, albeit by consent, a vexatious litigant.
355.It was submitted that I ought to take into account the costs expended by the mother as either a contribution factor or an s 75(2) factor. As indicated, the mother expended almost $600,000 in costs. She has applied for a series of costs orders and has received between $108,000 and $111,000 back from the father, which has been paid. It is also open for the mother to make a costs claim at the conclusion of the proceedings. Whether that is or is not successful, I need to be aware of the possibility of such a claim. There are a number of costs orders which are reserved. As such, I do not accede to the waste argument put by counsel on behalf of the mother.
356.In her written submissions the mother asserted that you could under this factor. Section 90SF(3)(r) says:-
any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
357.I have had regard to the financial impact on the mother of having such a volume of litigation imposed upon because of the multiplicity of litigation between these parties.
358.I have looked at the separate contributions of each and the contributions by the mother. I accept that the mother’s capital non-superannuation contribution was significantly greater that the father’s non-superannuation contribution.
359.I am satisfied, having made the adjustment regarding the father’s debt, that the parties have contributed equally to property over the short period of their relationship, both in terms of superannuation and non-superannuation.
360.The parties’ relationship was brief, it existed for about just over two years.
361.I have had regard to the mother’s significantly greater financial contribution, her role as the primary carer of the child, and her assistance with the father’s business. During the post separation period each party has suffered losses. The mother’s superannuation has gradually increased and the father’s superannuation fluctuated significantly up and down. I am satisfied in all the circumstances to treat them as a single pool.
362.What does all this mean? In terms of non-superannuation assets the mother contributed more than the father at the commencement of the relationship. The relationship was over a period of two years and I am satisfied that in relation to non-superannuation contributions the parties contributed equally, apart from the initial contribution by the mother.
363.Following separation the mother has been the primary carer of the child and has been in paid employment. The father has been in paid employment and has spent time with the child, in later times on a significant and substantial basis. His income earning capacity has been greater than that of the mother, however, I can give little weight to that given the funds that he has spent on litigation.
364.What does this mean in terms of the non-superannuation property? The answer is clearly not much as neither party seeks an adjustment of that property and, given that approach, as I have said earlier, I have determined that there ought not to be an adjustment.
365.As to superannuation the father commenced the relationship with about $54,000 and the mother about $50,000. Given the fluctuation of the father’s superannuation, I have treated that initial contribution as roughly equal. Over the years the mother’s contributions to the superannuation fund and the growth of the fund itself has increased her $50,000 to about $106,000. She has made direct contributions to that fund as a consequence of her work. She has made indirect contributions to both funds in terms of her primary care of the child, both during and after the relationship.
366.As to the father’s superannuation funds, they fall into two parts: the first being D Super which currently has an agreed value of $83,293. Given the father’s evidence, I am satisfied that this is simply the growth of that fund over the period of time since the parties commenced their relationship.
367.The second fund is the E Superannuation fund. There is no evidence before me as to the precise break-up of the $54,000 which the father had at the time the parties commenced cohabitation.
368.There is evidence in relation to the E Fund that in July 2011 it had a value of $42,741. This figure was the figure about nine months after the parties’ commenced cohabitation. That fund had a roller coaster ride over the following years, diminishing to $34,500 in June 2012, increasing to $172,261 in June 2013, moving to $448,562 in June 2014 and $329,431 in June 2015. It now has a value of $280,491.
369.It is not in issue that the father has made virtually no direct financial contributions to this fund. It had massive rises in 2012/2013 and in 2013/2014. The fund has now collapsed from the high of 2014 being a reduction of about one third of its value. No objective evidence was supplied as to why it suddenly increased in value over those middle years. It is impossible for me to tell whether it was the vagaries of the market or as some investment strategy of the father. His trial affidavit is of no help in that regard.
370.The onus to establish that the fund was other than the vagaries of the market, particularly in the light of the concession by the father that he has not contributed directly to the fund, must rest with the father. He has not established any broader direct or indirect contribution by him. In many ways I am satisfied that this is because he has been focused on these proceedings.
371.As a consequence I am satisfied that the mother’s contributions was slightly greater than the father’s contributions.
372.Neither of the parties are seeking adjustment of the non-superannuation property.
373.The parties have also asked me to make orders that they retain property assets and liabilities in their respective names. I intend to do that and I will treat that as the non-superannuation property adjustment for the purpose of this proceeding.
374.Given all of the facts and circumstances, I assess the relative overall contributions of the parties to the acquisition, conservation and improvement of their respective superannuation funds on the basis of 55 per cent by the mother and 45 per cent by the father.
THE OTHER FACTORS
375.Having considered what each party would receive as a result of that analysis, I will deal with s 90SM(4)(d)-(g) considerations on an overall basis.
376.I have applied the relevant s 90SF(3) factors to the whole of the superannuation and non-superannuation property. To do otherwise would not be just and equitable in the circumstances, particularly having regard to the liabilities of the father and/or the diminution of his non-superannuation property arises significantly from the costs orders that he has paid to the mother and it would not be just and equitable for her to be contributing in any way, shape or form to his funding of the legal costs to which she has been entitled.
377.The parties’ relationship was brief, a period of about two years. The father and mother are of about the same age and there are no significant health issues claimed by either party.
378.Each of the parties is gainfully employed. The father earnt in 2017/2018 about $133,000 and has the capacity to earn a similar amount of up to about $150,000 in the current year. The mother earns about $88,000 per year. The father is clearly in the stronger earning position.
379.I am satisfied that the mother has and will continue to have the primary care for the parties’ seven year old child, although the father provided significant care during the course of the relationship.
380.Given that circumstance, the mother’s earning capacity will remain less than that of the father, as she has the primary care of the child.
381.I have had regard to the parenting orders made in this proceeding.
382.The mother receives voluntary child support from the father of $368 per month by way of child support.
383.Neither of the parties are seeking adjustment of the non-superannuation property and each have overall debt.
384.In his exhibit to his affidavit[55] the father asserts payment of rent, purchase of furniture and other expenses. I have had regard to that material in the context of the parties each spending monies for their family over that period of time.
[55] Pages 302 to 303.
385.The mother gave evidence as to her financial contributions in her trial affidavit.[56] I accept that evidence as being reliable.
[56] Paragraphs 157 to 169.
386.The father contends that his property and financial resources are a consequence of his training prior to the relationship and work experience in the relationship. I accept that he has the capacity to earn the income to which I have earlier referred. Both parties worked hard during the relationship. I had regard to the father’s financial acuity in terms of his superannuation.
387.It was argued that I ought to take into account the significant legal costs incurred by the mother as a consequence of the incessant litigation commenced by the father. I have done so on the other factors. The amount expended of by the mother is at least $600,000. The need for the mother to deal with a tsunami of litigation in respect of this relationship breakdown is a relevant factor which I taken to take account.
388.In doing so I need to have regard to the costs orders which have been made and paid, and to ensure that I do not double count that against the father. Litigation is more than simply money spent on lawyers. The litigation involves a significant emotional and psychological impact on parties.
389.I accept the submission that in many ways the father’s litigation has been a crusade and I accept that, given the amount of costs incurred and that having regard to what is just and equitable, I ought to have regard to that history of litigation.
390.My task is to assess these so called future needs and I have applied it to the whole of the property as I indicated earlier, notwithstanding that the parties are not seeking adjustment of the non-superannuation property other than each retaining their own debts and other than each retaining the property and household effects in their control. That is in itself an adjustment of non-superannuation property. The significant factors in the adjustment fall into the areas I have discussed earlier. First the earnings and earning capacities of each of the parties. I am satisfied that the father’s current earning capacity is greater than that of the mother and that the mother’s is likely to remain less than the father for the medium terms given her primary responsibility to care for the child.
391.In assessing this I have had regard to the father paying voluntary child support of about $368 per month. The second issue which I have considered is the parenting of the child. The mother will be primarily responsible for the parenting of this child into the foreseeable future. This is likely to be made more difficult by the ongoing litigation. Notwithstanding the plea to the parties I made at the commencement of these proceedings, I am satisfied that the level of litigation is likely to continue into the future. This will be an added burden for the mother in the context of these parties. They are the facts and circumstances to which I have had regard under s 90SF(3).
392.Considering all of the facts and circumstances, I am satisfied that there ought to be an overall adjustment on the other factors having regard to the separate endeavours to which I have earlier alluded on the basis of equality and in terms of future needs. I am satisfied that there ought to be an adjustment in favour of the mother of 15 per cent. Making an overall adjustment of 70 per cent of the superannuation to the mother and 30 per cent of the superannuation to the father.
JUST AND EQUITABLE
393.What I have done in relation to the property is first of all determine whether there ought to be an order for alteration of property at all. Having considered the facts and circumstances of this case I have determined that there ought to be such an adjustment. I then determined what that adjustment ought to be having regard to the relevant factors.
394.The effect of the orders sought by each of the parties means that the father and mother would each be left with overall debt.
395.As to superannuation the father would be left with about $141,014 and the mother $329,032. I am satisfied that in all of the circumstances this outcome is just and equitable.
396.I am satisfied that there ought to be no adjustment in relation to the non-superannuation property only declarations, which I intend to make.
397.I will so order.
I certify that the preceding three hundred and ninety-seven (397) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 18 January 2019.
Associate:
Date: 18 January 2019
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Remedies
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Jurisdiction
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