Vanetti & Harrison (No 2)
[2023] FedCFamC1F 563
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vanetti & Harrison (No 2) [2023] FedCFamC1F 563
File number(s): MLC 11706 of 2019 Judgment of: BENNETT J Date of judgment: 12 July 2023 Catchwords: FAMILY LAW – PARENTING – where parties agree that children aged 9 and 6 years are to live primarily with the father and spend time with the mother – where mother is assessed as having Adjustment Disorder with Anxious Mood in the context of a vulnerable personality style with Borderline Features – where mother refutes diagnosis and has not undertaking any therapy to address her behaviour – where mother has consistently negative and critical views of father.
FAMILY LAW – PARENTING – where there is a very high degree of parental conflict – where parental conflict is assessed by the family report writer as endangering the immediate, medium and long-term emotional health of the children.
FAMILY LAW – PARENTING – where mother seeks equal shared parental responsibility and father and independent children’s lawyer seek that father have sole responsibility for major long term decisions about health and education – where presumption in favour of equal shared parental responsibility is rebutted by evidence that equal shared parental responsibility is not in the best interests of the children and there a reasonable belief that the mother has engaged in family violence toward the father and one of the children – where court considers allocation of parental responsibility at large and orders that the father have sole parental responsibility in relation to health and education.
FAMILY LAW – PARENTING – where it is in the children’s best interest to minimise interaction between the parents in the presence of the children and spend time orders are made accordingly.
FAMILY LAW – PARENTING – where in relation to specific issues – where eldest child has special needs – the mother’s application for an injunction against the father continuing the treatment of the eldest child with his current paediatrician and psychologist is refused – where changeovers are minimised and ordered to take place any from either parent’s home – where injunction granted preventing the mother from travelling overseas with the children including to her country of origin, Country D – where injunction granted to prevent mother from causing eldest child to sleep overnight anywhere other than her home during spend time periods save with written consent of the father – where court is satisfied that it is not in the best interest of the eldest child to be enrolled in Country D language school at this stage.
FAMILY LAW – PARENTING – where parties seek and order to facilitate parenting coordination – where court considers a conservative approach is required in the absence of specific evidence about parenting coordination – where court refuses to make order for the parties to engage a parenting coordinator.
FAMILY LAW – FINANCIAL – where the only legal and equitable interests of the parties are in personal effects and the father’s superannuation – where mother’s contributions are globally assessed at 10% and no factors under s75(2) require an adjustment – where a splitting order is made for a base amount of $20,000.
Legislation: Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) Cases cited: B & B: Family Law Reform Act (1997) FLC 92-755
Dickons (2002) FamCA 154.
Horrigan & Horrigan [2020] FamFC 25 [35]
Jabour & Jabour (2019) FLC 93-898
Division: Division 1 First Instance Number of paragraphs: 315 Date of last submission 31 May 2023 Date of hearing: 28 February 2022, 2 to 4 March 2022, 2 to 5 August 2022, 19 August 2022 Place: Melbourne (via MS Teams) Counsel for the Applicant: Ms Johnson Solicitor for the Applicant: Fair Family law Counsel for the Respondent: Mr Thompson Solicitor for the Respondent: Melbourne Family Lawyers Counsel for the Independent Children's Lawyer: Ms Hutchings Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 11706 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VANETTI
Applicant
AND: MR HARRSION
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
6 JULY 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.Parental responsibility for X born 2014 and Y born 2017 (together, “the children”) be allocated between the parents in the following manner:
(a)The father have sole parental responsibility for the children in relation to:
(i)the children’s health; and
(ii)the children’s education;
noting the father shall consult with the mother in relation to any issues arising in relation to the children’s health and/or education and the parties shall make a genuine effort to come to a joint decision about any such issues however if no agreement is reached, then the father shall make the final decision and advise the mother in writing of any such decision.
(b)The parents otherwise have equal shared parental responsibility in relation to all other matters excluding the children’s health and the children’s education.
3.The children live with the father.
4.The father provide a copy of any report by a medical practitioner or allied health professional about either or both of the children to the mother promptly on receipt.
5.The children spend time with the mother as follows:
(a)Commencing immediately:
(i)each Thursday from the conclusion of school or 2:00 pm if a non-school day until 6:00 pm on Friday; and
(ii)each alternate Sunday from 10:00 am until 6:00 pm.
(b)Commencing October 2023:
(i)each Thursday from the conclusion of school or 2:00 pm if a non-school day until 9am on Saturday; and
(ii)each alternate Sunday from 10:00 am until 6:00 pm; and
(c)Such other times as agreed by the parties in writing.
6.The time the children spend with each parent be suspended to allow the children to spend the time with the mother on the following special occasions:
(a)On Mothers’ Day from 10:00 am to 6:00 pm;
(b)On the children’s birthdays:
(i)if it is a school day from the conclusion of school to 6:00 pm;
(ii)if it is a non-school day from 1:00 pm to 6:00 pm.
(c)On the mother’s birthday:
(i)if it is a school day from the conclusion of school to 6pm;
(ii)if it is a non-school day from 1pm to 6pm.
(d)For Easter from 12 noon on Easter Saturday to 12:00 noon on Easter Sunday;
(e)On the feast for immaculate conception celebration, from the conclusion of school/childcare to 8:00pm;
(f)For Christmas Eve/Day:
(i)in 2022, and each alternate year thereafter, from 12:00 noon on Christmas Day to 12:00 noon on Boxing Day; and
(ii)in 2023, and each alternate year thereafter, from 12:00 noon on Christmas Eve to 2:00 pm on Christmas Day.
(g)For New Year’s Eve/Day:
(i)from 2:00 pm on New Years’ Day until 4:00 pm on the day immediately following New Year’s Day in even numbered years; and
(ii)from 4:00pm on New Year’s Eve until 2:00pm on New Year’s Day in odd numbered years.
(h)At such further and other times as agreed by the parties in writing.
7.The time the children are with each parent pursuant to this Order be suspended to allow the children to spend the time with the father on the following special occasions:
(a)On Fathers’ Day from 10:00 am to 6:00 pm;
(b)On the children’s birthdays from 6:00 pm to the commencement of school;
(c)On the father’s birthday:
(i)if it is a school day from the conclusion of school to 6:00 pm; and
(ii)if it is a non-school day from 1:00 pm to 6:00 pm.
(d)For Easter from 12 noon on Easter Sunday to the commencement of school.
(e)For Christmas Eve/Day:
(i)in 2022 and each alternate year thereafter, from 10:00 am on Christmas Eve to 12:00 noon on Christmas Day; and
(ii)in 2023 and each alternate year thereafter, from 12:00 noon on Christmas Day to 2:00 pm on Boxing Day;
(f)For New Years’ Eve/Day:
(i)from 4:00 pm on New Year's Eve until 2:00 pm on New Years’ Day in even numbered years; and
(ii)from 2:00pm on New Years’ Day until 4:00 pm on the day immediately following New Years’ Day commencing in odd numbered years.
(g)So as to enable the father to travel with the children to City E, NSW provided that:
(i)The father advise the mother in writing no less than fourteen (14) days prior to any such travel;
(ii)The time the children were to have spent with the mother pursuant to these Orders shall be made up on days agreed between the parties and within 60 days of the children returning from City E.
(h)At such further and other times as agreed by the parties in writing.
8.Changeovers be effected as follows:
(a)At school on school days and at school times;
(b)Otherwise, at the Caltex Service Station in Suburb F.
9.The mother be and is hereby restrained by injunction from allowing X to spend time overnight in any place other than her residence without first obtaining the Father’s prior written consent.
10.The mother be and is hereby restrained by injunction from enrolling the children or either of them in, or taking the children to, any new extra curricula activities without first obtaining the Father’s written consent.
11.The mother be at liberty to communicate with the children by telephone or FaceTime each alternate Monday between 6:00 pm to 6:30 pm when they are not in the mother’s care that day or such other times as agreed between the parties and the father shall do all things necessary to facilitate such communication.
12.Each party immediately inform the other party of any serious illness and/or injury sustained by the children or either of them whilst in the parties’ respective care and provide full particulars of the treatment received by the children or either of them and the name of the treatment provider to provide details of the treatment to the other party. This order does not entitle the mother to attend the place at which the child is being treated other than on invitation by the father (who has sole parental responsibility in relation to health issues).
13.Each party keep the other party informed at all times of their residential address, postal address, email address, and telephone number.
14.The parties, their servants and their agents, be hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating each other or their respective family members to the children or either of them or in the presence and/or hearing of the children.
15.The parties be permitted to provide a copy of the following documents to the mother’s treating practitioners and for so long as the mother is spending time with the children, and she is at liberty to provide any new practitioners treating her with:
(a)psychiatric assessment reports by Dr C dated 14 February 2020 and 22 April 2021;
(b)family reports by Ms B dated 3 March 2020 and 11 May 2021; and
(c)a copy of the reasons for decision and this Order.
16.The mother be solely responsible for any and all school tuition fees for the entirety of Y’s attendance at G School (“the G School fees”) and shall indemnify the father in relation to same.
17.In the event, at any stage, the mother falls into arrears and/or defaults in her payment of the G School fees, then Y shall forthwith attend H School and the father shall do all acts and things necessary to enrol Y in H School.
18.The father do all acts and things necessary to authorise the mother to receive, directly from X and Y’s respective schools, information such as school reports, newsletters, school photographs together with any and all such information normally sent to parents, and any notification that the mother is in arrears and/or in default of the G School fees.
19.Each party be at liberty to attend any school event, function or meeting to which parents of children would normally be entitled to be present.
20.There be an Airport Watch List in the following terms:
(a)Each of the mother, MS VANETTI born 1979, and the father, MR HARRISON born 1977, and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the children X, male, born 2014 and Y, male, born 2017 (or either of them) from the Commonwealth of Australia.
(b)X, male, born 2014 and Y, male, born 2017 be and are hereby restrained from leaving the Commonwealth of Australia.
(c)IT IS REQUESTED that the Australian Federal Police give effect to the preceding sub-paragraph (b) by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order.
21.Both parents be and are hereby restrained by injunction from applying for and/or renewing passports for the children or either of them without first obtaining the prior written consent of the other parent or an order of this Honourable Court.
22.The parties be permitted to provide a copy of this Order to the children’s respective schools and treating medical and allied health practitioners.
23.The independent children’s lawyer be discharged as and from one month after delivery of these reasons and it is requested that Victoria Legal Aid give favourable consideration to funding the extension of legal assistance to the ICL.
24.Paragraphs 25 – 29 of this Order are binding on the trustee company of Superannuation Fund 1 (“the Fund”).
25.That in relation to the father’s superannuation entitlements in the Fund:
(a)The father, Mr Harrison born 1977, is a member of the Fund, member number …04.
(b)The mother, Ms Vanetti born 1979, is not a member of the Fund.
(c)The base amount to be allocated to the mother from the father’s interest in the fund is the amount of $20,000.
26.Pursuant to s 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of Mr Harrison in the Fund, the trustee pay to Ms Vanetti the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation Regulations) 2001, using the base amount and there be corresponding reduction in the entitlement of Mr Harrison.
27.Paragraph 26 of this order has the effect from the operative time.
28.The operative time for the purposes of paragraph 26 of this Order is 4 business days after the date of service of a certified copy of this Order upon the trustee of the Fund.
29.That unless otherwise specified in these orders and save for family photographs including photos of or including the children and for the purpose of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of all other to all other property including motor vehicles (and including choses-in-action) in the possession of such party as the date of these orders unless otherwise specified in these Orders;
(b)monies standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is help and the proceeds of any joint bank accounts are to be divided equally;
(c)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)Insurance policies remain the sole property of the owner names therein;
(e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(f)any joint tenancy of the parties in any personal estate is hereby expressly severed.
30.If a contravention or other application is filed within 24 months, any party filing the application or response thereto may request that the application be placed before me for directions as soon as possible without any intervening appearance or hearing before a Registrar.
31.That pursuant to ss 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.
32.I reserve liberty to apply in relation to the implementation of this Order and or for any relief sought pursuant to the slip rule.
33.Otherwise all extant applications be and are hereby dismissed and this matter be removed from the docket of the Honourable Justice Bennett.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
[1]
THE HEARING
[5]
ONUS OF PROOF AND FINDINGS OF FACT
[10]
DOCUMENTS RELIED UPON
[12]
THE RELATIONSHIP
[22]
THE CHILDREN
[27]
X
[27]
Y
[32]
THE MOTHER
[35]
THE FATHER
[46]
THE LAW IN RELATION TO PARENTING
[53]
THE PARTIES’ PROPOSALS FOR PARENTING
[61]
SOME RELEVANT HISTORY
[63]
EXPERT EVIDENCE IN RELATION TO PARENTING
[145]
First psychiatric assessments by Dr C (both parents)
[145]
First family report by Ms B (psychologist)
[150]
Second psychiatric assessment by Dr C of mother
[166]
Second family report by Ms B (psychologist)
[171]
Dr J (mother’s counsellor)
[178]
Ms K (mother’s psychologist)
[183]
APPLICATION OF THE LAW TO THE FACTS
[189]
Primary considerations
[189]
Additional considerations
[197]
Children’s views
[197]
Children’s relationships
[198]
Practical difficulty and expense of spending time
[200]
Parental capacity
[201]
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child
[213]
The extent to which each of the parents have fulfilled or failed to fulfil his/her obligations to maintain the children
[218]
The likely effect of any changes in the children’s circumstances
[219]
Any family violence involving the children or any member of the children’s family and family violence orders
[223]
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children
[227]
PARENTAL RESPONSIBILITY
[229]
SPEND TIME ORDERS
[236]
SPECIFIC ISSUES
[239]
Medical issues
[240]
Changeovers
[252]
Extracurricular group
[255]
Country D language lessons
[263]
Sports lessons
[266]
Travel to Country D
[268]
Parenting co-ordination
[283]
PROPERTY
[297]
COSTS
[315]
BENNETT J
INTRODUCTION
These are final parenting and property proceedings following the breakdown of the parents’ almost six year marriage. The children are X who is 9 years old and Y who is 6 years old.
The mother seeks equal shared parental responsibility and the father seeks that parental responsibility for the children vest solely in him. The parents agree that the children will live primarily with the father but there is a dispute about the mother’s time with the boys. Other parenting issues to be considered include the location of changeover, whether the mother can take the children to Country D, whether the mother can take X on overnight extracurricular excursions, whether X should attend Country D language classes and sport. The mother seeks to restrain the father from taking X to his current psychologist and paediatrician, and from the paternal grandfather having any contact with the children’s health or allied health professionals. The father resists those restraints.
My determination of the parenting issues is mostly consistent with the outcomes sought by the father and supported by the independent children’s lawyer, I am confident that the outcome reflects what is in the children’s best interests, individually and together. The mother adores the children and they love her. But the mother has a very negative view of the father. It is in children’s best interests to have care which is consistent and predictable. Because I have no confidence that the parents can work cooperatively in parenting X and Y, I find that the needs of the boys will be best met if responsibility for major decisions for health and education vest in one parent.
By way of alteration of property interests, the mother seeks that each party retain what possessions they have and there be a splitting order in relation to the father’s principal superannuation interest for $60,566. The father opposes the splitting order. I have made a splitting order for a base amount of $20,000. I have exempted family photographs from the standard catch all order with the effect that jurisdiction in relation to family photographs has not been exercised.
THE HEARING
The final hearing proceeded on the courts’ MS Teams platform before me over ten days from 28 February 2022 to 4 March 2022 and was then adjourned part heard for another four days of evidence from 2 to 5 August 2022. Ms Johnson of Counsel appeared on behalf of the applicant mother, Mr Thompson of Counsel appeared on behalf of the respondent father and Ms Hutchings of Counsel appeared on behalf of the independent children’s lawyer. The mother’s representation was pursuant to s102NA of the Act. The father is paying privately. The independent children’s lawyer is in receipt of legal aid. The first day was spent hearing preliminary evidence from the private family report writing and refining the cases of all parties. Day ten was spent in final submissions. The balance of the days was devoted to evidence.
At the conclusion of evidence on 5 August 2022, I declined a request from counsel to restrict final submissions to written submissions. I directed that each party, including the independent children’s lawyer, would have 45 minutes to make closing submissions. Accordingly, all counsel were on notice as to how the available court time would be divided, including allowing for questions by me. I did not make a ruling that there could be no written submissions whatsoever, just that I would not confine the parties to submissions in writing.
Final submissions were made on Friday 19 August 2022 commencing at 10:00am and concluding at about 4:00pm. Counsel for the father and the independent children’s lawyer each prepared submissions in writing to which they spoke. The submissions were very well prepared and, in the case of the independent children’s lawyer, exemplary as to content and obviously taking many more hours in preparation than her grant of legal aid would have allowed. As mentioned later in these reasons, the mother’s written submissions were received subsequently. The mother’s s102NA representation ceased on the completion of the hearing. The mother wrote her own submissions. English is not the mother’s her first language, there are grammatical errors but I am confident that I understand the gist of what the mother intended to convey.
The mother will be upset at the outcome of this case. I have requested that the ICL be funded for a further month. I sincerely hope that Victoria Legal Aid will extend funding accordingly as, I predict, that the interests of the children will benefit from the ICL being retained for at least a month.
This decision has been reserved for a significant time. I apologise to the parties. The parties received notice that this decision would be delivered. None made any application to re-open to adduce any further evidence.
ONUS OF PROOF AND FINDINGS OF FACT
Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
A statement of fact, including the aforementioned jurisdictional facts, is a finding of fact.
DOCUMENTS RELIED UPON
The trial was run with e-Brief with which all counsel were proficient.
The mother relied on:-
(a)her Outline of Case dated 21 February 2022;
(b)her Amended Application for Final Orders dated 20 May 2021;
(c)her Further Amended Financial statement dated 20 May 2021;
(d)affidavit of Dr J affirmed 22 May 2022;
(e)her affidavit of 14 February 2022;
(f)her affidavit of 19 June 2022;
(g)her affidavit of 1 July 2021
(h)her updating affidavit of 1 August 2022;
(i)affidavit of Ms K affirmed 26 May 2021; and
(j)her trial affidavit dated 20 May 2021.
The father relied upon:-
(a)his Outline of Case dated 20 February 2022;
(b)his Amended Response filed 8 June 2021;
(c)his trial affidavit filed 8 June 2021;
(d)his affidavit filed 4 February 2022
(e)his updating affidavit filed 26 July 2022;
(f)his Financial Statement filed 8 June 2021;
(g)the affidavit of Dr L filed 12 December 2019; and
(h)the affidavit of Ms M filed 12 December 2019.
The independent children’s lawyer relied upon:-
(a)the psychiatric assessment report of Dr C dated 14 February 2020;
(b)the Family Report by Ms B dated 3 March 2020;
(c)the updated psychiatric assessment report of Dr C dated 22 April 2021;
(d)the updated Family Report of Ms B dated 11 May 2021.
My Chambers received written submissions by the father and the independent children’s lawyer on 18 August 2023. On the same day, my Chambers received correspondence from counsel for the mother objecting to the written submissions of the other parties. The matter was listed on 19 August 2023. Counsel for the mother was given time to read the two sets of submissions in their entirety and, importantly, to obtain instructions from her client, not just as to the evidence relied upon by the other parties but how the evidence was said to support the outcome they sought. The objection to any reliance on written submissions was renewed by counsel for the mother. The basis of her objection was twofold. First, it was submitted that “there is greater weight in written submissions”. I do not understand that submission. The most persuasive submissions are frequently those most briefly stated. Second, by allowing the other parties to refer to and incorporate their written submissions, replete with many footnoted references to more evidence, the court was facilitating the other parties being able to rely on more evidence than they could possibly canvass in 45 minutes of oral submissions. That is correct. However there was nothing to stop the mother’s counsel from preparing written submissions and speaking to them. Notably, counsel for the mother did not seek an adjournment of final addresses to prepare written submissions for the mother. Counsel for the mother informed the court that the mother was familiar with all of the evidence in the case and, in particular, did not seek any further time to discuss the written submissions with her client or her opponents.
I permitted counsel to rely on their written submissions and to refer to them in the course of their oral submissions. The written submissions of 18 August 2022 of the applicant father were tendered as an aide-memoire and marked exhibit “F21”. The independent children’s lawyer’s submissions were marked “Exhibit 20”. I heard the oral submissions and the matter concluded on 19 August 2022 with my decision being reserved. This is that reserved decision.
From Sunday 21 August to Thursday 25 August 2022, the mother sent numerous submissions which she had written herself, some amended submissions and an addendum. The submissions run to a total of about 90 pages. Ultimately, the other parties consented to the mother being able to rely on the submissions referred to (Exhibits “W14” and “W15”). Exhibit “W14” is in two parts. The first part has a headnote and is titled “Closing Submissions of the Wife”. The second part has a headnote and is titled “Justice Bennett Prior Her Final Orders”. I directed that the mother’s submissions be identified and could be relied upon and that “no further communications or attachments will be read, considered, placed on the court file or shown to her Honour”. On 31 May 2023 the independent children’s lawyer and the father’s solicitors stated in correspondence that they had no objection to the mother also being able to rely on certified extracts of intervention order proceedings dated late 2022 which had been sent to my Chambers by the mother in the intervening period. The effect of allowing the certified extracts of the intervention order proceeding was to inform the court that each parent had withdrawn his/her application in the magistrates’ court and there was no intervention order in force between them.
I have had regard to the written submissions of the mother referred to above and to the information dated late 2022 about the intervention order proceedings. For the avoidance of doubt, I have not had regard to correspondence sent by parties or any of them to my Chambers unless it has been marked as an exhibit or I referred to as being in evidence.
There were many exhibits.
I have taken an opportunity to refresh my memory of the affidavits, oral evidence and documents having regard to the time which has elapsed since the hearing concluded. I have not recited every fact or argument relied upon by the parties in these reasons but that does not mean that I have not taken all contentions of fact and the arguments of each party into account. I believe that I have had regard to all of the evidence and the submissions of the parties.
THE RELATIONSHIP
The father is 46 years of age, was born in Australia and is employed as a professional. The mother is 44 years of age having been born in Country D and is employed as a receptionist.
The father and mother (“the parties”) met in 2012 while the father was working in Country D and commenced a relationship in early 2013. They were married in 2013 in Country D. The parties relocated to Australia in 2013. The mother is a permanent resident of Australia.
The parties separated in early 2019 when Victoria Police obtained an Intervention Order under state domestic violence laws against the mother and naming the father and the children as protected persons. The children have resided primarily with the father since separation and have spent regular and incrementally increased time with the mother. At the time of the trial, the operative order for the mother to spend time with the children was the Order made by Judge Riley on 10 June 2020. It provides for time during school terms and school holidays so that the mother spends time with both children from 12 noon to 8:00pm each Saturday and Sunday. Further, both boys spend time with the mother from the conclusion of school until 8:00pm each Tuesday and Thursday save that Y stays overnight with the mother on Tuesdays. The operative order provides for X and Y to spend time with the mother at Christmas time, on each of the boys’ birthdays, and at such further and other times as agreed between the parents in writing. It is common ground that, since Orders were made on 10 June 2022, the mother has not always availed herself of time consistently with the order in that she has chosen to forgo time so, she says, she can have some time for herself.
The parents were divorced in 2021.
At the time of the trial, neither parent had re-partnered. Each parent’s household is within easy access of the boys’ schools and of each other.
THE CHILDREN
X
X was born in 2014 and is 9 years old. At the time of the hearing, he was in Grade 3 at N School in Suburb P where he commenced as a primary school student in late January/early February 2020. It was the father’s evidence at trial that X had recently commenced travelling by bus to and from school departing at 8:00 am and returning home at approximately 3.30 pm on school days. Neither parent proposes to change X’s school.
It is common ground X has special needs. The mother says, and the father agrees, “[X] suffers from [developmental delays] and [a medical condition], and has been on medication for this condition since 2016. Following an autism assessment [in] September 2019, [X] has been diagnosed with intellectual disability he is required to attend a specialist developmental school”. The father adds “[X] was diagnosed with an intellectual disability in the mild range, as per a ‘Cognitive and Adaptive Behaviour Assessment Report’ dated […] September 2019 by psychologist [Ms Q]. After this diagnosis, he underwent, at [Ms Vanetti’s] insistence, a ‘Multidisciplinary Developmental Assessment’ at the [R Hospital] [in] September 2019 that confirmed this diagnosis”. The mother disputes having received a copy of Ms Q’s Assessment until she saw it annexed to the father’s Affidavit filed in the Children’s Court in November 2019. It was the father’s evidence that the mother attended the appointment for the assessment and was aware of the report, however he could not specifically recall providing the report to the mother but believed he had done so. The Mother seeks to restrain the father from continuing to engage Ms Q as X’s psychologist.
A copy of the R Hospital Report is in evidence and the conclusions and recommendations are set out at page 12 of the report as follows:
1. [X] needs a specialist educational setting and should start school in 2020. The specialist school closest to his home address is [S School].
2.In light of [X’s] history of [a medical condition] and his intellectual disability further genetic investigations may identify an underlying genetic disorder to account for his presentation. We do not have access to test results from investigations done by [Dr T] privately. Any test results would be important to have on the [R Hospital] medical file especially as [X] often presents to the emergency department here.
3. Occupational therapy and speech therapy is valuable. More frequent therapy sessions than what is currently occurring are not required.
4. No other therapies are indicated. Each parent suggested a number of other therapies on top of the current input […]. None is appropriate or necessary at this time.
5. Parenting support for each parent should focus on uniting them in providing consistent and predictable interactions with [X]. The conditions of the Order made in May stipulated that both parents must receive all reports and session notes from each therapist and from medical practitioners so both are informed and can cooperate in implementing professional recommendations. This is vital for [X]. Consistency across all environments is most important for helping [X] to develop to his potential.
6. Long term supervision by a paediatrician and a paediatric [specialist] is recommended.
X sees numerous health professionals. They are described by the father as:
1. The [U Medical Centre], GP clinic, although [Ms Vanetti] has been taking the children to another GP clinic (the [V Medical Centre]), despite my objections;
2. His paediatrician, [Dr L], although [Ms Vanetti] has sought an Order that I be restrained from facilitating the children’s attendance on him (her Order 17);
3. His speech and occupational therapists;
4. [Specialist, Dr T]; and
5. Child Psychologist, [Ms Q].
X is in receipt of NDIS Funding. I will say more about X’s needs later in these reasons.
Y
Y was born in 2017. Y is now 6 years old and, at the time of the hearing, was in Prep at G School in Suburb F. Y was enrolled at G School pursuant to paragraph 2 of the Order made by consent in chambers on 6 October 2021. At trial the mother sought that “each parent be restrained from enrolling the children in any school…unless there is consensus between both parents”. The father seeks sole parental responsibility which, if granted, would result in him being able to decide.
The family report writer, Ms B, notes that Y is reported to be a healthy, happy child who is well socialised. At assessment, Y’s development was noted to be on track.
It is common ground that Y is (“largely”, according to the father) in good health. However, the father complains that the mother has unilaterally and without just cause arranged and attended various unnecessary medical appointments for and with Y. The mother maintains the appointments were necessary.
THE MOTHER
The mother is employed as an administrator. It was her evidence that she has recently been promoted. She declined to provide her professional address, citing safety concerns. However, she stated her professional address is approximately 20 minutes from her former residence.
It was the mother’s evidence that she requires one full day during the weekend to cook, clean and prepare for the week ahead. The mother described the preparation time as “Me Time”. This has resulted in the mother forgoing some of the weekend time to which she is entitled to spend with the boys under the Order of 10 June 2020.
The mother had previously given evidence that she is employed on a full time basis. However, she also conceded during cross-examination that her employment contract states she is employed “on a part time basis”. The mother’s evidence was that her (new) hours of employment are as follows:
(a)Monday from 9:00 am until 7.30 pm (previously 7:00 pm as at March 2022);
(b)Tuesday from 8:00 am until 2:00 pm (previously 1.30 pm as at March 2022);
(c)Wednesday from 10:00 am until 7.30 pm (previously 7:00 pm as at March 2022);
(d)Thursday from 8:00 am until 3:00 pm (previously 1.30 pm as at March 2022); and
(e)Friday from 8:00 am until 3:00 pm.
Notwithstanding the changes to the mother’s work hours, it was the mother’s evidence that she has not signed a new Contract of Employment.
In addition to her employment, the mother has recently commenced studying a qualification (“the course”). According to the mother, she commenced her studies in mid-2022. It was the mother’s evidence that she is undertaking the course online; the duration of the course is approximately one year with capacity to extend if need be, and the mother proposes to study one full day (approximately 8 to 10 hours) per week. The mother receives financial support from her parents in Country D.
Counsel for the father submitted that where the mother’s evidence differs from the father’s evidence, I should have no confidence in the mother’s evidence, not just about practical matters concerning her employment, but about anything. He submitted that “Where her evidence differs from that of the father or other witnesses it should not be accepted”. When giving a response to simple questions she was often non-responsive, going off on a tangent to demonstrate that as the mother of the children she was speaking from a superior position to that of the father. At other times her responses to questions was garbled, incomprehensible and, in short, chaotic.
The mother was frequently a non-responsive witness but I attribute that to a lack of discipline rather than a lack of candour. She is proud, intelligent and quick-witted. She has a sense of humour and irony. She is combative. In life, those qualities may be beguiling but on an adult level in the witness box they can, and in this case do, justify some of the criticisms by counsel for the husband. The mother’s unresponsive or careless evidence encouraged more and more cross-examination with the result that the mother was cross-examined for 5 days from Day 2 to Day 7 of the trial.
The mother’s demeanour in the witness box is easily extrapolated to other scenarios such as how she would converse with professionals concerned with the children such as teachers and doctors which does not bode well for securing good outcomes for the children. I refer to the mother’s behaviour which led to the childcare centre being locked down.
Much was said by counsel for the other parties about the way the mother spoke to the father, her abusive messages on his voicemail at times sounding overly emotional, bordering on hysterical, and at other times addressing abusive content to him in a well-modulated calm voice. There was a lot of evidence in this trial but not much of it related to the parents as individuals and their relationship with one another, as opposed to their relationship as parents. At the trial, they clearly had a poor relationship as parents. However, in listening to the recordings due weight has to be given to the mother’s situation. English is not her first language. She may be proficient in English vocabulary and to a lesser extent English grammar but not yet mastered the nuances of our language. I have some disquiet about criticising the mother for using phrases and expressions which may be common place in Country D and, indeed, on popular television in Australia, and accepting that the father was offended. My impression is that he understands the disadvantages under which the mother operates and has very likely become habituated to them.
The mother does not appreciate boundaries within our legal system. Included in the first part of Exhibit “W15” is a letter by her dated 17 July 2022 to the magistrate who she thought would hear the intervention order proceedings between her and the father in late 2022. She asks to talk to the magistrate prior to the hearing to explain that the intervention order against her is unnecessary, unwarranted and is being used by the father to manipulate her and to prevent her having access to medical practitioners of the children or one of them. The mother’s communication would be extraordinary if I was satisfied that she is well versed in Australian civil procedure but I am not. There is no evidence of the function of magistrates in lower courts in the Country D justice system such as would enable me to draw an inference that it is inappropriate in Country D to contact an officer of the court referred to as “the judge” before the case is tried and without apparent notice to the other party to the proceedings. That said, it is doubtful that the mother would advertise a course of subterfuge in submissions in this court which, she would likely presume, would be read by the other parties and advising practitioners.
In sum, I find that the mother is not troubled about making conflated or exaggerated allegations about the father. From her perspective, he is to blame for so much that has gone wrong including her being displaced as the primary carer of the children. I fall short of finding that the mother gave evidence with an intention to deceive. I find that the mother was an overly emotional and frequently unresponsive witness. Her evidence is less reliable than the father’s evidence.
THE FATHER
The father is a professional employed on a full-time basis by W Ltd.
The father was cross-examined for about a day and a half on the eighth and ninth day of the trial.
It was the father’s evidence that his hours of employment are 9:00 am until 5:00 pm Monday to Friday and that whilst his employer is based in the city, he is able to work from home. When asked whether he intends to work from home in future and the father said “I believe so…maybe one or two days in the city. I can do my work from anywhere”.
Since the parties separated, he has employed nannies to assist him to care for the children, primarily via Z Company. The mother is very critical of the father’s reliance on nannies. She submits that there is an “unacceptable risk that the children do not develop a mindful relationship with the father will continue to delegate his parental responsibility such a preparation of the children breakfast to nannies and so on …”.
Over the past one-and-a-half to two years, two nannies have assisted with the children’s care on a regular basis (Ms AA and Ms BB), and a group of approximately ten or eleven (who have met the children) are called upon to care for the children from time to time either by the father in person or via Z Company. The mother’s opposition to nannies appears to be based on her willingness to care for the children herself. She refers to the nannies as constituting “an unacceptable risk that the children will develop a close relationship more with strangers the two ‘nannies’ than with the father”.
The father’s evidence is that he is typically assisted by a nanny each Monday, Tuesday, Thursday and Friday from 7.30 am until 9:00 am and from 4.30 pm until 6:00 pm. He cares for the boys on Wednesdays without the assistance of a nanny but with the assistance of an after school care program. The father’s evidence was that, when he is working from home without the assistance of a nanny but with the children in his care, he has a space allocated for the children within his work space to enable him to monitor the children until he concludes his work day. He stated that he has learned various routines and strategies from the nannies to enhance his parenting and to establish and improve the children’s routine. There is no evidence to suggest that the father’s use of nannies is anything other than responsible.
My impression of the father is that he was a believable and credible witness who was prepared to make concessions. He appears worn down by the proceedings and gave evidence with a flat demeanour. He appeared resigned rather than overwrought.
THE LAW IN RELATION TO PARENTING
The fundamental principle to be applied by the court in making any parenting order to regard the best interest of the child as the paramount consideration. In determining what is in a child’s best interests, the Court must have regard to primary considerations and additional considerations in light of the objects and principles in s 60B.
The primary considerations for the court are set out in s 60CC(2) and are described as follows:
(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 –
with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations are set out in s 60CC(3). I need only have regard to the additional considerations which are relevant. Appropriately, the evidence in this case focuses on the relative capacity of each parent to provide for the needs of the children, including the emotional and intellectual needs of the children but some other considerations are also relevant.
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
…issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
The implementation and mechanics of shared parental responsibility are conditioned by s 65DAC. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly. The holders of shared parental responsibility are required to ‘consult the other parent in relation to the decision to be made about that issue’ and to ‘make a genuine effort to come to a joint decision about that issue’. These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions for which parental responsibility is shared.
The Act provides that when making a parenting order, such as the orders sought in this case, the court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child. Relevantly, the presumption will be displaced if there are reasonable grounds to believe that a parent has engaged in abuse or family violence or if the court is satisfied that it would not be in the best interests of a child for the child’s parents to have equal shared parental responsibility. If the presumption is displaced, the court must then consider parental responsibility at large and make an order that is in the child’s best interests. Family violence is expansively defined in the Act.
If the court considers that it is in the best interests of the child for the parents to have equal shared parental responsibility, there are various mandatory considerations for the court in relation to equal, substantial and significant time with both parents. In so doing, the court must consider, amongst other things:
·the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time with each of the parents;
·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind (including the behaviour of a parent, such as their willingness and ability to facilitate and encourage a close, meaningful relationship between the child and the other parent and their attitude to the child and to the responsibilities of parenthood);
·the impact that an arrangement of that kind would have on the child; and
·such other matters as the court considers relevant.
If, after due consideration, the court is not satisfied that the child should spend equal time, or substantial and significant time with each of the parents, the court can consider parenting arrangements generally through the lenses of the primary and additional considerations in s 60CC(2) and (3). Parenting arrangements include with whom the children will live and spend time.
THE PARTIES’ PROPOSALS FOR PARENTING
The father and the independent children’s lawyer submitted a joint minute of proposed order as at 3 March 2022 marked exhibit “H20”. The orders sought were that the children live with the father and spend time with the mother from the conclusion of school on Thursday until 6:00pm on Friday and each Sunday from 10:00 am to 6:00 pm. The proposal further allowed for an increase in time to include overnight time on the Friday night commencing February 2023. There was also the provision for time on special occasions. The father seeks an order for sole parental responsibility and is supported by the independent children’s lawyer. The joint minute of proposed orders as between the father and independent children’s lawyer was amended as at 3 August 2022 and marked exhibit “H18”. The only amendment was to the mother’s weekend time so that it takes place each alternate Sunday as opposed to each Sunday in circumstances where the mother’s evidence was that she wishes to have each alternate weekend to herself.
The mother submitted a minute of proposed final orders on the final day of hearing which I marked exhibit “W17”. The mother sought that the parties have equal shared parental responsibility. The mother sought that the children live with the father and spend time with her in accordance with a 5/9 arrangement based on overnight time on Tuesdays and Thursdays and each alternate weekend from Saturday to Sunday. In accordance with paragraph 7 of the mother’s minute of proposed order she seeks to be permitted to travel overseas, in particular to Country D, with the children.
SOME RELEVANT HISTORY
Until February 2021, child protection in Victoria was known as the Department of Health and Human Services (“DHHS”). On 1 February 2021, DHHS was separated into two new departments and the child protection department was named Department of Families, Fairness and Housing (“DFFH”). For ease of reference, I will refer to DHHS and its successor DFFH as “child protection”. Child protection had frequent and significant involvement with the family well before separation. Child protection were instrumental in bringing about the separation or, more particularly, the exclusion of the mother from the family home in 2019. There are numerous reports by child protection in evidence before me as well as notes. Notably, no child protection officers were called as witnesses or required for cross-examination. I regard the evidence emanating from that source as not challenged and I draw on it for the purpose of this history.
In the course of these proceedings, the family was assessed twice by Ms B (March 2020 and May 2021) who is a private psychologist selected and paid for by the parties. The mother had two individual mental health assessments by Dr C, the first in February 2020 and the second in March 2021. The father was assessed in February 2020. Dr C is a psychiatrist who was chosen and paid for by the parties. Dr C and Ms B had ready access to each other’s assessments.
Ms B was called to give evidence briefly at the commencement of the final hearing to elaborate on her views. Neither Ms B nor Dr C were required for cross-examination. I regard their evidence as not challenged and I draw on it for the purpose of this history.
The assessments made by child protection, Ms B and Dr C provide valuable insights into the family. At the same time, the reports generated by child protection and the single expert witnesses, Ms B and Dr C, have provided the parents (and those who advise them) with multiple opportunities to reflect on how behaviour of each of them has been assessed and whether he/she should modify an aspect of his/her behaviour. It follows that the court can consider to what extent each parent has been willing and able to modify or address perceived shortcomings or inadequacies in his or her parenting capacity, his or her attitude to each child, the responsibilities of parenthood, their respective ability to manage conflict, their ability to work together and communicate with one another and, of course, concerns about family violence.
The mother has consulted various therapists. The mother relies on the evidence of Ms K and Dr J. Neither are single expert witnesses. They are persons (not medical practitioners) who have provided treatment to the mother within the meaning of rule 7.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Their evidence was challenged and each was required for cross-examination.
I will set out more or less in chronological order the history of the matter as it emerges from the parties’ evidence including the documentary evidence. To do otherwise would not convey adequately the intensity of the intervention by child protection and other agencies into this family’s life.
The parents met in Country D in 2012 whilst the father was employed in Country D. They married in Country D in 2013. They returned to Australia the following month. Their first son, X was born in 2014. Y was born in 2017. Prior to separation, the father was in full time employment with some flexibility to work from home. The mother was not employed outside the home.
In 2017 a family violence report was made to Victoria Police identifying the mother as an affected family member and the father as an alleged perpetrator. No further action was taken. Ms B, psychologist in her report filed 3 March 2020 records the parties had been arguing about the father’s management of X’s behaviour when police first attended the former family home in 2017. The father had kept X in his room by holding the door closed. The mother informed Ms B that she had contacted police as she believed the practice was punitive and posed a risk to X’s safety. At this time X was nearly 3 years old years old and Y was 5 weeks old.
The mother and children travelled to Country D, with the father’s consent from mid-2017 to late 2017. The mother claims that the father left her without money in the joint account. Counsel for the father tendered the mother’s personal CC Bank account for the period early 2018 to mid-2018, which discloses a balance in excess of $8,000 available to the mother in that period. (Exhibit “H1”). Counsel for the mother submitted that Exhibit “H1” referred to a later period during a second trip for the mother and children to Country D. That is correct. However, the father deposed that he was making regular payments to the mother during the first trip to Country D. The mother did not produce any bank statements to contradict the father’s evidence. At paragraph 54 of the mother’s trial affidavit the mother deposes that in mid-2018, during the second trip, the father returned to Australia and “only left $500 in our joint accounts for the remainder of our stay.” Exhibit “H1” contradicts the mother’s evidence in relation to the second trip.
The father’s evidence places reliance on messages left by the mother on his voicemail as evidence of her insulting remarks to him and threats that she would not return with the children to Australia. The voicemails were played in court and tendered in evidence (Exhibits “H6” and “H7”) and are transcribed at [101(a)] and [101(b)] of the father’s affidavit sworn 9 June 2021 respectively, as follows:
(a) Received [mid-2017]:
“So [speaks [Country D language]] I really have enough of you. I really have enough. You are lucky you are not in front of my face, otherwise I would have I really slap you and slap you until I don’t know, you have to go fuck off. You must fuck off. I really can’t stand you. You must transfer the money for myself and for the kids without no keep going with this story. It’s your responsibility and if you’re not capable okay to support financially your kids because you don’t fucking care about me, just tell me so and we will, we will pay the consequences. First of all, transfer enough money, I will we drove tomorrow because I have no money. I don’t rely on my parents okay. You are should be shame of yourself because you are not even proud of yourself. Say my parents have enough people and so you think they have to give me money, which is your role as husband, which is your role as a father. Fuck off, I hate you okay. Secondly, transfer this money and organise to the tickets be to change the flight tickets because I don’t want to stay til October, I change my mind and you pick me in [City DD] because they’re in, because you have to, I can’t, I cannot fly until [Country EE] with 2 kids okay? Annnnd that is so, start to transfer this fucking money because I have nothing. I have $20, it’s ridiculous. I don’t ask money to my parents okay?”
(b) Received [mid-2017]:
“Do you know what? I will not come back to Australia ok and you will not see the kids. You can easily call the police and get the Order and you will see how you can see your kids because you are not provide financially with support. Ok?! Fuck off you and your parents they are piloting you. Ok?!”
In early 2018 a further family violence report was made to Victoria Police identifying the mother as the affected family member and the father as the respondent, resulting in an application for an intervention order being applied for against the father. Ms B recorded that the mother had contacted police when the father had allegedly pushed her during an argument causing her to fall to the ground. The father provided a different account both to police and Ms B. He alleges he was defending himself from the mother’s threat to pour laundry detergent over him. Six weeks later on the first return date for the Intervention Order proceedings the mother withdrew the application for an intervention order. The mother claims she did so as a result of coercion by the father yet the father claims it was a mutual agreement. The case was closed with referral to Child FIRST.
In early 2018 the father was interviewed by Victoria Police regarding an alleged charge of unlawful assault. Due to insufficient evidence no further action was taken.
In mid-2018 the family travelled to Country D for a holiday. The father returned to Australia while the mother and children remained in Country D until late 2018.
In 2018 the children began attending FF Childcare in Suburb GG. At this time X was nearly 4 years old years old and Y was 1 year old.
In late 2018 a report was made to child protection raising concerns that the father was smacking X. It was further reported that 12 months prior the mother attempted to physically assault the paternal grandmother. The case was closed and the father referred himself to Child FIRST.
One week later a report was made to child protection raising concerns that X had presented at childcare with the mother whilst he was ill and notwithstanding the father had earlier contacted the childcare to inform them X would not be attending due to ill health. The mother allegedly was dismissive of concerns that X was ill. Ms M, the former manager of the childcare centre, gave evidence and recalled that X looked pale on arrival and that the mother became “argumentative” insisting the child was “fine”. The mother left the child. The mother was called by the childcare worker shortly after when X began vomiting. The case was closed at intake due to father’s self-referral to Child FIRST.
In late 2018 a family violence report was made to Victoria Police naming the father as an affected family member and the mother as the perpetrator. According to the incident summary report obtained pursuant to subpoena to Victoria Police the parties had an argument about the children and the state of the house. The father attempted to leave but believed the mother to have hidden his phone. It is alleged that the mother slapped and hit the father multiple times and attempted to kick him. The father left without his phone and attended upon Suburb F Police station to report the incident. Victoria Police applied for an IVO against the mother for the protection of the father and children. The mother was also charged with an offence as a result of the incident.
In late 2018 child protection received an afterhours report alleging that the mother had dragged X down the stairs at childcare. The report was made by Ms M, the then current manager of FF Childcare.
Ms M swore a witness statement as to the incident involving X and the stairs dated 4 August 2022 which was marked exhibit “H19”. She deposes:-
[In late] 2018, I was sitting at my desk which is directly in front of the staircase. As I turned around, I saw [X] running up the stairs. I went to get him as it led to the staffroom. His mother [Ms Vanetti] said she would get him. As she ran after him, I then witnessed her pull his arm. As she pulled his arm, he fell forward hitting his head and landing on his back upside down (legs in the air). She then dragged him down the stairs until reaching the bottom. She pulled him by the arm to get him up on his feet. At this point she was still holding his arm tightly so he was not able to move (he tried to run off again). I reported this to child protection after I had seen this incident happen. [Ms Vanetti] left the building. At approximately 5:45pm she called and emailed the centre with a photo of her son’s back with scratches and bruises. Attached is a copy of the photo. She asked me how this happened. I said words to the effect “that occurred when I saw her drag the child down the stairs”, to which she replied with words to the effect “okay, don’t worry’.
My colleague [Ms HH] who was sitting next to me also witnessed the incident. She made a statement to DHHS. I sent both my statement and [Ms HH’s] statement to DHHS with the photograph of [X’s] back.
Ms M’s evidence was that it was approximately 5:15 or 5:30pm that she contacted DHHS to report the incident, prior to having received the email from the mother. Attached to her witness statement provided to DHHS were two file notes dated late 2018. One being a file note prepared by Ms M and the other prepared by her second in charge, Ms HH.
According to Ms M the photo of X attached to the statement provided to DHHS shows vertical lines on the child’s back, thought to be caused by his back coming into contact with the safety treading on the stairs of the childcare centre. Ms M provided detail under cross-examination. She observed that X was dragged on his back during which his head was upside down and facing the stairs and that his body twisted. According to Ms M, X was dressed in a t-shirt and jeans at the time. The witness could not recall how long the incident took or whether the child’s t-shirt was pulled up during the incident.
A close up image of the childcare centre stairs was taken during the hearing and tendered into evidence and marked exhibit “ICL18”. I find that the photograph of the edge of the stair is consistent with the injury being inflicted by the mother in the manner alleged by Ms M. The mother maintained the bruise to X’s back was sustained before she picked him up from childcare. Child protection closed the case at intake.
Ms M was required for cross-examination by counsel for the mother and was cross-examined on the ninth day of the trial. Under cross-examination Ms M maintained that her personal views of the mother had not clouded her account of the stair incident or her reports to child protection. Indeed, her evidence was that she “remained professional” despite being fearful of the mother.
The mother made a number of complaints to the Department of Education and Training about FF Childcare. Ms M’s evidence was that she was aware of the complaints by the mother. The mother’s complaints were potentially disruptive of the children’s care at FF Childcare. One cannot take issue with a parent’s right to complain but the mother made herself a difficult parent. I have seen letters she wrote to the manager who succeeded Ms M. It was warmly received. However, the boys had moved on to school by that stage and the moment for reconciliation had passed.
In late 2018 child protection received a report raising concerns in regards to the mother’s treatment of X including allegations that she had yelled and dragged the child, forcibly, out of his car seat. It was alleged that the mother then pinched the child’s arm and forced his shoes onto his feet. The case was closed at intake with the family remaining engaged with Child FIRST.
The following month, a report was received by child protection raising concerns that X was acting aggressively and violently with other children including scratching, hitting and bitting. Both parties were interviewed separately by an integrated family support worker from child protection. The mother was observed by child protection to have lacked insight into the impact of family violence. Child protection officers were critical of the mother’s failure to acknowledge that family violence was present within the parties’ marriage. The mother was recorded as having told the support worker “a man needs a slap every now and again” or words to that effect. The case was closed and intake and parents remained engage with Child FIRST.
One week later the mother consented, without admissions, to a final safe contact intervention order for 10 months for the protection of the father and children.
The mother pled guilty to the charge against the father following the incident taking place in late 2018 and in early 2019 she signed a six month diversion plan.
In late 2018 a report was made to child protection raising concerns that X had presented to childcare with scratches and bruising. The case was closed at intake with Child FIRST remaining engaged with the family.
In early 2019 a report was received by child protection in relation to X and Y being exposed to verbal and physical family violence between the parties. The report included an allegation that the mother had pulled X’s hair and made threats about smashing the children’s heads into a wall. A further report was received by child protection the next day raising concerns that Y had sustained bruising around his right eye. The following day, child protection conducted interviews with the parents in their home. The mother was reportedly dismissive of protective concerns surrounding the children and her role in perpetrating family violence. The mother maintained that FF Childcare centre was responsible for the unexplained injuries to the children and claimed that the staff were making up the allegations against her in an attempt to cover up and shift the blame. The father’s recollection was that the bruises were sustained while at FF Childcare. The father further reported concerns for the children’s safety in the sole care of the mother for any extended period of time. In particular, concerns around the mother’s ability to manage the children’s behaviour. X was referred to JJ Medical Service the following day who advised that the bruise was consistent with age appropriate bruising and was most likely caused accidently but that they could not rule out the possibility it was an inflicted injury. A few days later Child Protection received a report that Y attended childcare with light bruising to his forehead and X with light scratches on his face.
In early 2019 a report was made to child protection alleging that the mother had requested information from FF Childcare of a record of the centre reporting to child protection. The mother allegedly started to yell at staff. Emergency services were called. Ms M’s evidence was the mother became “agitated” when told that she would have to wait for the documents she had requested to be sent from their head office. Ms M alleges that the mother walked around the reception desk and began screaming in Ms M’s face and swearing in the reception of the childcare. When the mother refused to leave Ms M contacted the police. I was informed that as a matter of protocol once an emergency call is made the centre is placed into mandatory lockdown. That is, all doors are locked and the curtains are pulled down. The activities of the children are disrupted. Ms M’s evidence was that, during her employment at FF Childcare, from 2009 to 2021, this was the only lockdown incident.
Ms M was cross-examined about her relationship with the paternal family. In particular, with the paternal grandfather, Mr KK. Ms M’s evidence was that she had a “professional relationship” with the paternal family. Counsel for the mother and Ms M shared the following exchange:-
Well, you became friendly in the sense that you would email Mr – or certainly the grandfather, [Mr KK], at times, wouldn’t you?---No.
So there’s no emails between – is it your evidence that there’s no emails between you and [Mr KK]?---Maybe there was one but there wasn’t numerous ones, like - - -
And is that – maybe one. Did you ever chat with him about [Region LL] or something like that or holidays in [Region LL]?---I don’t think so.
Did you ever express very warm feelings towards that family, that they were a lovely family or some sort of congratulatory words?---No.
An email trail showing emails between Ms M and the paternal grandfather was tendered and marked exhibit “M14” by the consent of all parties notwithstanding they were not put to the witness. The email trail which spanned four pages was friendly. However, it ultimately concluded with a sign off by Ms M of “Sending you all lots of love and well wishes”. I find that last sign off to indicate more than a strictly professional regard by Ms M for the father’s family members. I accept that Ms M understated the warmth of her regard for the father’s father but I find that her evidence about X’s injury on the stairs to be accurate.
I accept Ms M’s evidence of the mother’s behaviour. Specifically, I do not accept the submission by counsel for the mother that Ms M was motivated to portray the mother in an unfavourable light because she does not like the mother or is aligned with the father’s side of the family. Ms M impressed me as professional and conscientious.
In early 2019 a further report was made to child protection that X attended childcare with a bruise. The next day child protection arranged an assessment between JJ Medical Service and X with the consent of the father. The following day, the assessment was undertaken and advised that due to the cluster of bruising there was concerns the bruising was suspicious. A referral was made to the MM Program service with a view to, among other things, having the mother participate in a mental health assessment.
Two days later an application for an intervention order was made by Ms M in her capacity as the Centre Manager of FF Childcare, seeking an order against the mother.
Later that month child protection received a further report that X had presented at Childcare with bruises. Two days after the report a member of the MM Program team sighted the bruising to X and recorded they were light in colouration and did not raise concern. Five days later a review was completed by the MM Program team who recorded that no progress had been made as the children were still presenting with bruises. The mother was noted to be unwilling to cooperate with the childcare centre in a safe pick up and drop off routine.
Two days later a meeting took place between child protection, the father and a support worker. The father disclosed at the meeting significant family violence incidents perpetrated by the mother with themes of controlling behaviour, physical abuse and aggression. The father disclosed, among other things, an incident in which he alleges the mother broke holes in the walls of their former homes.
In early 2019 the application for an intervention order made by Ms M, in her capacity as the Centre Manager of FF Childcare and as the affected person, was withdrawn on the mother’s undertaking to the magistrates court at Suburb NN [Exhibit “H10”] (without admitting what was said in the application) that she would not:
·Commit prohibited behaviour towards the affected person(s);
·Contact or communicate with the affected person(s) by any means;
·Approach or be anywhere within 5 metres of the affected person(s);
·Be nowhere within 200 metres of [the address of FF Childcare in Suburb GG], or any other place where the affected person(s) live, work or attends school and the respondent can collect her children from the boundary of the centre (street parking) and 2 other staff will escort the children to the respondent;
·This undertaking does not prevent the respondent from;
·Communicating with an affected person through a lawyer or mediator or case worker; or
·Participating in a mediation by agreement with the affected person.
In early 2019 a meeting was conducted between child protection, MM Program and the parties. It was reported that the parties were participating in relationship counselling and that the mother had attended a 6-week anger management course.
A report by child protection in support of an Emergency Care application in late 2019 (exhibit "MV12" to mother's affidavit sworn 20 May 2021) notes that "[f]ollowing assessment, [MM Program] identified concerns regarding the impact on [X] and [Y’s] emotional wellbeing because of exposure to past family violence and the potential that this may continue when the IVO and the good behaviour bond expire. Concerns were raised about [Ms Vanetti’s] lack of acknowledgement of how past family violence incidents have impacted on and may continue to impact on [X] and [Y]. [MM Program] have noted concerns regarding [X’s] attachment to [Ms Vanetti], as he displays avoidant behaviour when arriving home from Childcare in the evenings including keeping his distance from [Ms Vanetti], turning his back to her and lashing out physically when she tries to show him affection. [MM Program] identified concerns regarding· [Ms Vanetti’s] mental health including inability to accept constructive criticism, empathise, compromise or negotiate and attempts to control [X] and [Y’s] behaviour".
In early 2019 Integrated Family Services (“IFS”) (to which child protection had referred the family) withdrew services to the family in part due to the mother's lack of cooperation. A report by child protection in support of an Emergency Care application in late 2019 notes that "[d]ue to the complexity of the parent's relationship it seems impossible for the family to be adequately supported by Family Services. [Mr Harrison] mentioned family violence on several occasions and has stated he felt 'stuck' and wanted options and has repeatedly stated he wants IFS to assist [Ms Vanetti] to make changes to her parenting. [Ms Vanetti] is not open to parenting support and insists there is nothing she needs to improve - despite several Child Protection reports, Ll 7's, ongoing child care concerns and [Mr Harrison’s] concerns. Family services is a voluntary service and without [Ms Vanetti’s] cooperation it is quite difficult to enact change".
The following month in early 2019, child protection received a notification in relation to a bruise on X's ear. Child protection conducted a home visit on the mother who informed child protection that the children had been staying with the father at the paternal grandparents on the days prior. The mother further reported that when she asked X what happened, he replied "gaga" (referring to Y). The father told child protection that he did not notice the bruise to the ear but was informed of a different bruise sustained at childcare. The paternal grandfather reported that neither he nor the paternal grandmother noticed the bruise to X's ear. The paternal grandfather raised concerns with child protection in regards to the mental health of the mother.
The next day X was accessed at R Hospital. The preliminary assessment was that the bruising was not explained by the accounts given by either parent. The bruising was reported to be consistent with “non-accidental injury”. On further examination distinct bruises were located on X’s back.
On the same day the mother vacated the former matrimonial home and moved into a hotel.
On the following day X was observed by SOCIT/ Victoria Police at FF Childcare as part of the investigation into the non-accidental injuries to the children. No disclosures were made.
The same day, child protection issued proceedings in the Children’s Court of Victoria whereby an Interim Accommodation Order was made for the children to live with the father and spend professional supervised time with the mother. Accordingly, the mother was required to leave the family home and not return prior to mid-2019.
The parties separated on this day (according to the mother) and the following day (according to the father). At this time X was nearly 5 years old and Y was 2 years old.
In mid-2019 child protection’s protection and disposition reports were published for the proceedings before the Suburb P Children’s Court. The protection report prepared by Ms PP, child protection practitioner records a history of child protection involvement with the family summarised as follows:-
There have been 7 previous Child Protection reports for both [X] and [Y]. There have been 3 s38 Consultations and 4 reports that closed at Intake. Concerns raised were in relation to multiple unexplained injuries for [X] and [Y] which have been assessed by [JJ Medical Service] as non-accidental, Family Violence primarily perpetrated by [the mother], [the mother’s] parenting capacity and limited insight into the protective concerns, [the mother’s] mental health and [the mother’s] previous non engagement with family support services.
Australia is not a member of the European Convention of Human Rights. We are cognisant of but not bound by decision of the International Court of Human Rights.
Australia is a member of the United Nations Convention on the Rights of the Child which entered into force generally on 2 September 1990 and for Australia on 16 January 1991.
Section 60B of the Act defines the objects of Part VII as to ‘ensure that the best interests of the 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.
The objects may be regarded as the core values of the legislation.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the 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).
Section 60B(4) of the Act provides that an additional object is to give effect to the Convention of the United Nations, Convention on the Rights of the Child[1] (“the Convention”). The four core principles of the Convention are:
·Non-discrimination;
·Devotion to the best interest of the child;
·The right to life, survival and the child’s full development — physically, spiritually, morally and socially;
·Respect for the views of the child; that children have a right to have their say in decisions which affect them and to have their opinions taken into account and have a right to participate fully in family, cultural and social life.
[1] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
In particular, the Convention provides:
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Reference to the Convention as an additional object under the Act when s 60B(4) was inserted under the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, some 21 years after Australia signed the Convention. The principles of the Convention are implemented as core values of our legislation rather than as provisions which create specific justiciable rights and responsibilities for individuals.
The significance of an object of the legislation being to give effect to the Convention, is that it provides a basis to interpret the Act within the context of international human rights principles (including the Convention) to the extent that is compatible with the express intention evinced in the legislation. However, an object does not give any legally enforceable rights to children[2] or parents. The Convention has been described as unlikely to be of great value in the adjudication of individual cases.[3]
[2] B & B: Family Law Reform Act (1997) FLC 92-755, 84, 233.
[3] Ibid 84, 220.
The mother’s case falls outside the European Convention of Human Rights. It is probably assisted by the Convention and the right to life, survival and the child’s full development — physically, spiritually, morally and socially which, in my view, could incorporate a right for the child to enjoy his cultural identity at close quarters. However, the paramountcy of the child’s best interests, as provided in the Act, means that the right to access cultural identity must be consistent with the child’s best interests. In this case it is not. To put it bluntly, the children’s inability to go to Country D at this time is a direct consequence of the mother’s lack of capacity to parent the children in a way that is psychologically safe.
Parenting co-ordination
The independent children’s lawyer and the father seek an order for parenting coordination and the mother agrees. The order sought is:-
The Mother and Father do all such acts and things to engage a Parenting Coordinator through [AL Services] with all costs to be shared and paid in equal proportions by the parties.
In Ms B’s second family report her final recommendation is “The parties are likely to require ongoing professional support to assist in their co-parenting of [X] and [Y], long after the proceedings conclude. It is recommended they engage a parenting coordinator such as that offered by [AL Services].”
In Ms B’s preliminary oral evidence on the first day of the hearing, she said in relation to the topic of parenting coordination as follows:
[MS B]: I guess that is the issue that springs to mind about that consulting process. That’s where, in my mind, I was thinking more about a forum where those issues could be discussed with that parenting coordination role. So discussions about, you know – I don’t know – a particular treatment for the children or a particular assessment, that could go to that forum, that parenting coordination forum, and that could, I suppose, be emblematic of all of those processes having been – having been undertaken. So the father could demonstrate, I have done X, Y and Z in that setting before arriving at the conclusion that I have, and I’m going to make this decision, in the absence of there being agreement around it.
Later, Counsel for the independent Children’s Lawyer put the following:-
MS HUTCHINGS The parties are likely to require ongoing professional support to assist in their co-parenting of [X] and [Y] long after the proceedings conclude, and it’s recommended that they engage a parenting coordinator such as that offered by [AL Services]. Now, that’s something that both parties seem open to, noting, of course, what her Honour has said in relation to delays around decision-making and the like. But, certainly to my mind, there’s a difference between an ongoing professional support and assistance from a family therapy perspective versus a targeted assistance to overcome specific issues that arise with the implementation and the operation of final parenting orders. To your mind, is there that difference?—
[MS B] ‑Yes. So – so, you know, parenting coordination would have a – there would be a therapeutic component in there, a helping, a healing component in there somewhere, but it – it wouldn’t sit at the apex. You know, it might be – it might be a secondary gain, that people feel better having gone there, but it’s – you know, it’s directed. You know, it’s not – it’s mediation. It’s coaching. It’s modelling. And so that’s quite different. There’s some overlap there with therapeutic endeavours, but not a lot, and – and in that setting, in a therapeutic setting, parents would be self‑determining, in a parenting coordination setting, the orders, the script. The orders set the scene for what is discussed. They set the parameters for what is discussed and what is not discussed. So they’re – they’re quite different in terms of their structure and their intent.
MS HUTCHINS: And so is there any place, in your view, for a family therapy in this particular matter, as opposed to a parenting coordination, that is, the parties working on their relationship or their co-parenting relationship in the aftermath of separation vis-à-vis working through specific issues with [AL Services]?
[MS B] ‑‑‑I – I – I don’t see – just based on what I’ve read and seen – I don’t see the value of a – of a family therapy type intervention, not at this stage, no.
HER HONOUR That goes to parental capacity, doesn’t it? Neither of them have the capacity at the moment to enter into that second-level form of negotiation and conciliation?—
[MS B] Yes. Yes
MS HUTCHINGS: And I suppose, following that, do I understand it correctly that there would need to be quite a lot of that in [Ms Vanetti’s] – on her personal development and growth and insight and understanding via the therapy methods you’ve recommended before such a therapy would be contemplated, if you like?
[MS B] ‑‑‑Yes. I mean, that’s the – that’s the guide, you know, is that you would – you would expect for there to be some growth and development in that arena first. But, you know, sometimes final orders can have a therapeutic effect on – on the – on the family. Sometimes, once you draw a line in the sand, people – you know, the reality of the situation is such that that’s enough to – to invite change. So that’s what I’m going to say, as a helping professional, that there are all these sort of different interventions that sit in the therapeutic, psychological space, but I know from experience that – that – that what helps families is not just the stuff that goes on there. There’s other stuff that goes on, like the making of final orders, you know, moving on, time and space, going on and parenting without all these professionals that you are seeking support from in order to co-parent. So once that falls away, a couple of things can happen: nothing, and the same pattern continues, or something, and there’s change. I don’t know, because I don’t see a lot of people post-order, so I don’t know, but I don’t think that we should just – we – we find ourselves limiting our – our discussion around change to these – this therapeutic setting, and it sometimes is a little bit overrated, in my humble opinion.
Correspondence between the mother and AL Services appears twice in the mother’s submissions. Save that the author recommends three parenting coordinators “who are all highly experienced lawyers, which (sic) I feel may be suited to your matter …” I know nothing of the parenting coordinators over and above that one charges $370 per hour. In the absence of evidence as to qualifications, expertise or training, personal suitability, frequency of service, confidentiality (if any), purported powers, how disputes are resolved and what happens if there is no resolution, costing and duration, I cannot be satisfied that such an order is going to be in the interest of the children by enhancing the parents capacity to co-parent or otherwise.
I received no evidence about “[AL Services].” I don’t know if it accredits parenting coordinators or merely recommends them. I don’t know how and by whom AL Services is, itself, accredited or recognised as an authority in this emerging area.
The correspondence from AL Services states, inter alia:-
Parenting Coordination is a way to extend the dispute resolution, and conflict education services to the back end' of the Court process where intractable conflict can see transitioning families return to Court multiple times for contravention and enforcement applications. PC uses parental education on the impact of conflict on child development, and offers strategies for an improved co-parenting relationship while monitoring communication between parties on an on-going basis. It offers dispute resolution for day-to-day issues to help with the Implementation of Orders while educating co-parents about how to improve communication and reduce conflict.
To my mind, this decision has resolved the disputes between the parties. It is up to the parties to reconcile themselves to the parenting arrangements provided for by these final orders. It is not for the parties to revisit controversies and extend the dispute resolution process further than has already taken place.
I am satisfied that at least the mother has in mind using a parenting coordinator to be an arbiter and interpreter of what is in the best interest interests of the children rather than facilitate adherence to the final order. As much is clear from her submission.
It paramount the order about the [AL Services] coordinator is made; a third party between as the also the role of supervision the parents to make sure the acting in the best interest of the children make sure that for instance in this case [Mr Harrison’s] attuite of manipulative behaviour around the children medical needs and denial of medical information will be monitoring by the [AL Services] coordinator. I will the first to raise it.
I have already commented that the mother does not appreciate boundaries in legal proceedings. I imagine that she would appreciate whatever boundaries apply to parenting co-ordination even less if, on when, the boundaries are explained to her.
I am reluctant to provide the mother with another forum in which to criticise the father and/or to undermine his role as the primary parent with sole parental responsibility over issues of health and education. The mother, father and independent children’s lawyer have had eight days of evidence, voluminous affidavits and two days of refining their respective cases and making submissions, where arguably the most spoken about issue was the parents ability to co‑parent. With four years of post-separation parenting to scrutinise, I have heard all of the evidence and have found that there is no capacity to co-parent on the most contentious issues. To suggest that there is capacity to co-parent and the parents can be assisted in that regard, is against the weight of the evidence of the single experts.
Parenting coordination may have been of some value with a sound practitioner and as an interim measure but, as presented to me, I see no role for “co-ordination” as part of a final order in this case. There may arguably be scope for the mother to receive life coaching from an appropriately trained and experienced practitioner, more likely to be social science trained than legally trained, but even that is highly doubtful in light of the mutual view of Dr C and Ms B that the mother should receive dialectical behaviour therapy.
These proceedings have been exhausting in financial and emotional terms for the parents. I have to take that into account as a toll of both of them. Each of the parties and the children deserve finality. As stated above finality does not preclude contravention and enforcement applications. All parties have had a very good opportunity to put their respective cases forward and they have now reached the end of the road. I do not want them to proceed to another forum in which they can further ventilate disputes. The father does not require a parenting coordinator to verify that he consulted with the mother before making a decision about health or education. If the cost of coordination is $370 per hour, I would also be loath to inflict that kind of ongoing expense on the parents. The costs of this trial to the father must be enormous in comparison to his resources. The parents have had four years to learn how to co-parent and have not managed to do so. I am satisfied that, without the mother getting the treatment recommended, her behaviour will not alter and co-parenting is aspirational.
Notwithstanding that all parties seek the aforementioned order, I decline to make the order to facilitate parenting co-ordination. That does not prevent the parties from going forward with parenting arrangements that include a “parenting co-ordinator” but they will not be compelled by an order of this court to do so.
PROPERTY
The financial aspect of this case is of narrow ambit.
By paragraphs 22 to 27 of the mother’s amended application, the mother seeks a splitting order in the sum of $60,566 against the father’s superannuation interest with Superannuation Fund 1 (“the Fund”). The father opposes any splitting order.
The mother also seeks a catch all order where each retains the personal property and choses in action they possess.
Section 90XC(1) of the Act provides that a superannuation interest is to be treated as property for the purposes of paragraph (ca) of the definition of matrimonial cause in s 4 of the Act. Accordingly, a superannuation interest does not become property or change in nature, it is merely treated as property for the purpose of an alteration in property interests.
Section 90XS(1) of the Act provides, inter alia, that in proceedings under s 79 with respect to the property of the spouses, the Court may also make orders in relation to superannuation interests of the spouses. There is no opposition to the catch all order sought by the mother and I will make it accordingly. As the catch all order is “with respect to the property of the spouses”, the Court’s jurisdiction to make an order in relation to the father’s superannuation interest is enlivened. The issue as far as the father is concerned is whether any order ought to be made.
The law in relation to an alteration of property interests is not contentious. I am required to identify the existing legal and equitable interests of the parties (or either of them) in property. In this case, the parties have no real property, they have chattels and personal possessions and the father has a superannuation interest. The father’s superannuation interest pre-dates the parties’ relationship but was contributed to by, and on behalf of, the father during the relationship and since separation.
The parties’ superannuation entitlements are set out in the father’s affidavit of 3 February 2022 at paragraph 106. He had a superannuation interest at the date of marriage about $58,815, at the date of separation about $122,600 and at the time of the hearing was about $201,770. The valuation of the father’s Superannuation Fund 1 is found at annexure “S29” of the father’s affidavit sworn 4 February 2022. There is a further interest, being a preserved Superannuation Fund 2 benefit of very little value. I was not addressed on the value of property under the catch all order. I regard it as being of some, but not much, value.
I have read in the mother’s submissions (“W15”) that she seeks the children’s photo albums which are in the possession of the father. No oral or other submissions were made. If an issue of photo albums has not been resolved it should be. They are easy to copy. I will exempt photo albums from the final property order.
I have to determine whether it is just and equitable to make an order altering the parties’ interest in property. In this case I am satisfied that, as a result of the choice made by the father and mother to end their relationship, their common use of property and mutual expectation of receiving the father’s superannuation upon his retirement, it is just and equitable that there be an alteration of property interests between them.
The next step requires me to assess the financial, non-financial and homemaker contributions to property (including property no longer owned by the parties) in accordance with s 79(4) (a), (b) and (c) of the Act. Counsel for the father submitted that the uncontested evidence is the father had superannuation entitlements at the time of marriage of about $60,000. During the parties’ relatively short marriage, it was further submitted, that the mother has made no direct or indirect contribution to the father’s superannuation up to the date of separation, when it was worth about $123,000. Further, she has made no contributions to his superannuation since separation. I accept that the mother made no direct contributions to the father superannuation interest but direct financial contributions are only one aspect of s 79(4).
The task for the Court is to weigh and assess the contributions of all kinds from all sources made by each of the parties throughout their period of cohabitation, and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment. It is important “to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship”.[4] The assessment of contributions is not a mathematical exercise. It involves the identification and assessment of the parties’ respective contributions in all capacities across the course of the relationship and in the post separation to the point of assessment in a holistic way[5]. There is nothing in this case to indicate that the contributions of both parties should not be viewed holistically.
[4] Dickons (2002) FamCA 154.
[5] Horrigan & Horrigan [2020] FamFC 25 [35] in which the Full Court, comprising Strickland, Kent and Tree JJ referred to various authorities including Jabour & Jabour (2019) FLC 93-898.
I take into account the father’s pre-cohabitation contribution to his superannuation interest. I take into account that the mother may now have a very modest superannuation interest if she has continued in paid employment. I take into account that the father has been the primary carer of the children since separation and his contribution in that regard has exceeded that of the mother.
Taking into account the contributions by the parties in all respects up to this time, including their respective contributions as homemaker and parent, I assess the mother’s contribution at 10%.
I do not consider the superannuation splitting order I contemplate will affect the earning capacity of either party.
I have regard to matters referred to in s 75(2) of the Act. The mother’s Financial Statement sworn 19 May 2021 describes her car as being worth $5,000 and total superannuation interest of $197. At Item 20 she deposes to making no current superannuation contributions. Her total average weekly income is $412 by way of a JobSeeker, she receives money from her parents and had just started employment as a receptionist. The father’s Financial Statement sworn 8 June 2021 describes his car as being worth $2,000 and his total superannuation interest being valued at $187,049. At Item 20 he deposes to making no current superannuation contributions. His total average weekly income is $2,092.
I find the father’s superior position in relation to superannuation and income earning capacity to be balanced against the ongoing commitment he has to support the children of whom he is the primary carer. The mother pays no child support. I do not understand that there has been an assessment. She does pay some school fees and extra expenses. I make no adjustment under s79(4)(c) or (g) of the Act.
Finally, I need to be satisfied that the order which I propose to make is appropriate within the meaning of s 79(1) of the Act. The split will be for a base amount of $20,000. It is a modest alteration of property interests but one that should be made to recognise the matters that I am required to take into account. I am satisfied that the order is appropriate.
By letter dated 17 June 2021, which has been made (Exhibit W18), the superannuation trustee acknowledged having been accorded procedural fairness of the mother’s application (which was for an amount in excess of my orders), I will make an order in those terms.
COSTS
Any party wishing to make an application for costs may do so in accordance with the Rules.
I certify that the preceding three hundred and fifteen (315) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 12 July 2023
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