VANZANT & BLANK

[2019] FCCA 1785

FEDERAL CIRCUIT COURT OF AUSTRALIA

VANZANT & BLANK [2019] FCCA 1785

Catchwords:
FAMILY LAW – Parenting and property dispute – father entirely denying mother’s serious allegations of family violence – father’s denial wholly rejected by the Court – children not at risk of assault by father despite earlier family violence – children wanting to spend more time with the father – orders made as sought by the Independent Children’s Lawyer – small property pool – pool significantly diminished by father’s conduct – entirety of pool awarded to mother together with an equalisation of superannuation.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Goode v Goode [2006] FamCA 1346

Stanford & Stanford [2012] HCA 52

Applicant: MR VANZANT

Respondent: MS BLANK

File Number: MLC 7254 of 2017

Judgment of: Judge Burchardt

Hearing dates: 10, 13 &14 May 2019

Date of Last Submission: 14 May 2019

Delivered at: Dandenong

Delivered on: 12 July 2019

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Mr Devries

Solicitors for the Respondent: Marcou & Associates Pty Ltd

Counsel for the Independent Children's Lawyer: Mr Goddard

Solicitors for the Independent Children's Lawyer: Altavilla Family Law

ORDERS

Parenting

1. All previous parenting orders be discharged.

2. The mother have sole parental responsibility for [X] born … 2009 and [Y] born … 2010 (“the children”).

3. Notwithstanding order 2 hereof, in the event that the mother intends making major long-term decisions in relation to the children, the mother shall, wherever practicable:

   (a)Advise the father of the need for such a decision and invite him to provide his views;

   (b)Consider any views expressed by the father prior to making any such decision.

4. The children shall live with the mother.

5. The children shall spend time and communicate with the father as follows:

   (a)During school terms, each alternate weekend from after school on Friday until the commencement of school the following Monday or Tuesday if Monday is a non-school day, commencing 19 July 2019;

   (b)During school terms, each alternate Wednesday from the conclusion of school until 7.00PM, commencing 24 July 2019;

   (c)For one week in each of the Victorian gazetted school term holidays, from after school Friday (or 3.30pm if a non-school day) until 3.30pm on the first Friday of the school holidays;

   (d)For two non-consecutive weeks of the Victorian gazetted long summer school holidays as agreed and failing agreement for the first and third week from 3.30pm on Friday or the conclusion of school until 3.30pm the following Friday, subject to the specific orders herein regarding Christmas;

   (e)At Christmas as follows:

   (i)In odd years commencing 2019, from 3.00pm Christmas Day until 3.00pm Boxing Day;

   (ii)In even years commencing 2020, from 3.00pm Christmas Eve until 3.00pm Christmas Day;

   (f)On the children’s Birthdays if the children are not already spending time with the father as agreed and failing agreement the mother shall ensure the children communicate with the father by telephone by ringing his mobile number between 5.30 and 6.00pm;

   (g)On Father’s Day if the children are not already spending time with the father, from the preceding Saturday at 5.30pm until 5.30pm on Father’s Day.

   (h)At any other times as may be agreed in advance by the parents from time to time in writing including by text message.

6. The father’s time with the children pursuant to Order 5(a) and (b) shall be suspended during the school term holidays and the long summer holidays and the father’s time with the children pursuant to Order 5(a) and (b) will resume after the conclusion of the school holidays in the same order as if the school holidays had not occurred.

7. The father’s time with the children shall be suspended as follows:

   (a)On Mother’s Day if the father is spending time with the children from the preceding Saturday from 5.30pm until 5.30pm on Mother’s Day.

   (b)On the children’s birthdays is the children are spending time with the father as agreed and failing agreement the father will ensure the children communicate with the mother by telephone by ringing her between 5.30pm and 6.00pm.

   (c)For Christmas as follows:

   (i)In odd years commencing 2019, from 3.00pm Christmas Eve until 3.00pm Boxing Day and each year thereafter; and

   (ii)In even years commencing 2020, from 3.00pm Christmas Day until 3.00pm Boxing Day and each even year thereafter; and

8. Changeover shall occur at the children’s school if the children are attending school that day and otherwise shall occur at the Suburb A Police Station unless agreed otherwise by the parents in writing, including text message.

9. The father be permitted to contact the children by telephone between 4.30pm and 5.00pm on the Monday he does not have the children, or at any other times as agreed in advance and in writing by the parents.

10. The parents shall communicate with each other concerning issues pertaining to the care and welfare of the children including logistical issues as to changeover and spend time with arrangements by text message.

11. In the event that the father moves to within half an hour’s drive from the children’s schools the time in Order 5(b) shall be extended to before school Thursday.

12. The mother and father shall each:

    (a)Inform the other immediately of any serious illness or injury to either of the children;

    (b)Inform the other immediately of any hospitalisation of either of the children;

    (c)Keep the other informed of any medical practitioners or other health professional treating either of the children;

    (d)Keep the other informed of any extra-curricular activities they intend to enrol the children in; and

    (e)Keep the other advised of a mobile telephone number of for the purposes of communicating with the other parent.

13. The mother and father shall cooperate to ensure the children attend any agreed extra-curricular activities and shall each be at liberty to attend such activities.

14. The mother and father, by themselves, their servants and/or their agents, be restrained by injunction from:

    (a)Denigrating the other in the presence or hearing of the children and/or allowing the children to be in the presence or hearing of any other person who is doing so;

    (b)Discussing these proceedings or any other proceedings relating to the children or between the parties with or in the presence or hearing of the children and allowing the children to be in the presence or hearing of any other person who is doing so.

15. The children shall continue to attend counselling either at school and/or privately with their current counsellors, as required and each parents shall be at liberty to communicate with their counsellors.

16. The father shall be at liberty to receive reports from the children’s schools as to their educational progress and this order shall serve as authority for same.

17. The father shall be at liberty to contact and communicate with any doctor or health professional the children attend regarding the children’s condition, diagnosis and treatment and this order shall act as authority for same.

18. The father shall be at liberty to attend parent teacher evenings provided that the father shall ensure he attends a separate appointment on an evening when the mother is not attending, subject to the policy of the children’s school.

19. The parents each be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of illicit drugs during any time the children are in their respective care or 24 hours preceding the children coming into their care.

20. In the event a dispute arises between the mother and the father in respect to these orders that cannot be resolved between the parents, the parents shall attend upon Victoria Legal Aid’s Family Dispute Resolution Service, or any other accredited family dispute resolution service, to participate in family dispute resolution mediation and both the mother and father are to make a genuine effort to resolve any disputes and attempt to come to an agreement about any issues in relation to the children before any further parenting application is made.

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

22. Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

Property

1. All previous property orders are hereby discharged.

2. The net proceeds of the sale of the former matrimonial home situate at Street B, Suburb C, in the State of Victoria, and more particularly described in certificate of title folio identifier volume … Folio … being in sum of $11,047.08 together with any interest thereon, shall be paid to the Respondent Mother by way of lump sum spousal maintenance within 7 days of the date of these Orders.

3. For the purposes of these Orders:

   (a)Mr Vanzant, is the member de facto partner (member number …);

   (b)Ms Blank, is the non-member de facto partner;

   (c)The Superannuation fund is Super Fund K; and

   (d)The Trustee means the trustee(s), person(s) or corporation(s) responsible from time to time for the management or investment of the Superannuation Fund.

4. That paragraphs 27 to 33 of these Orders are binding on the Trustee.

5. That the base amount to be allocated to the non-member de facto partner out of the member de facto interest in the Superannuation Fund is $31,583 (“the base amount”).

6. That in accordance with Section 90MT(1)(b) of the Family Law Act 1975, whenever the Trustee makes a splittable payment from the interest held by the member de facto partner in the Superannuation Fund the Trustee shall pay to the mom-member de facto partner the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of 100% and there is a corresponding reduction in the entitlement that the member de facto partner would have had but for these orders.

7. That paragraph 27 has effect from the operative time.

8. That the operative time for the purpose of these orders in the beginning of the fourth business day after the day on which a sealed copy of these orders is served upon the Trustee.

9. That the Trustee and the parties in accordance with the obligations set out under the Family Law Act 1975, the Family Law (Superannuation) Regulations 2001 and the Superannuation Industry (Supervision) Act and Regulations 1994, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement and make the payment in accordance with these Orders.

10. That each party and the Trustee have liberty to apply in relation to the implementation of the Orders affecting the member de facto partner’s superannuation interest.

11. That until the happenings of any:

    (a)The establishment of a separate account in the name of the non-member de facto partner in the fund;

    (b)The transfer or “rolling over” into another superannuation fund of the payment split created by paragraph 27 hereof;

    (c)The non-member de facto partner satisfying a condition of release and being paid the payment split which was created by paragraph 27 hereof; or

    (d)The non-member de facto partner executing a waiver of right within the meaning of Section 90MZA of the Family Law Act 1975 in relation to the payment split created by paragraph 27 hereof;

    (e)The husband be and is hereby restrained by himself, his servants or agents from executing a death benefit nomination in favour of any other person or doing any other act of thing which would render any part of his interest in the fun a “non splittable payment” within the meaning of Regulation 12 or 13 of the Family Law Act 1975.

12. That within seven days of the date of this Order the solicitors for the member de facto partner shall serve a sealed copy of this Order on the Trustee Fund.

13. The member de facto partner’s solicitor to provide confirmation in writing to the non-member de facto partner’s solicitor that Order 35 has been complied with within 7 days.

14. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

    (a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders.

    (b)Each party be solely entitled to the exclusion of the other party to any motor vehicle(s) in the name and possession of such party as at the date of these orders.

    (c)Monies standing to the credit of the parties in any joint bank account are to be divided equally and the account closed.

    (d)Monies standing to the credit of the parties in any bank account (that is not a joint account) to be the property of the party in whose name such bank account is held.

    (e)Each party hereby forgoes any claims they may have to any insurance benefit owed by the other. Insurance policies to remain the sole property of the owner names therein.

    (f)Each party forgo any claim they may have to any superannuation benefits belonging to or earned by the other save for the superannuation split proposed in order 27 above.

    (g)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.

    (h)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

15. The father shall be solely responsible for the loan of $130,000 to be repaid to the paternal grandmother and the father hereby indemnifies and holds indemnified the mother against any liability in relation to that personal loan.

16. Each parent shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of these order within 14 days of being requested to do so.

17. In the event either party refuses or neglects to comply with any provision of these Orders a Registrar of the Federal Circuit Court of Australia at Melbourne is hereby appointed under section 106A of the Family Law Act 1975 to sign or execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these orders;

    (a)For the purpose of this order, an affidavit setting out the defaulting party’s failure to comply with the orders shall be sufficient evidence of neglect and default.

    (b)A defaulting party shall pay the other party’s taxed costs of and incidental to such request and production of documents to the Registrar.

18. Both parents have liberty to apply as to implementation or enforcement of these orders upon the giving of 7 days’ notice to the other.

19. That all extant applications be dismissed and removed from the pending cases list.

THE COURT NOTES:

A.Pursuant to Section 81 of the Family Law Act 1975 (Cth), the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings.

B.The real property sold for $509,000, and settlement occurred on 15 April 2019. The net proceeds of the sale of the real property was in the sum of $11,047.08 which was placed into the Respondent Mother’s solicitor’s account on 17 April 2019.

C.The Trustee of the father’s Superannuation has been provided with procedural fairness and letter from the relevant Trustee dated 2 May 2019.

IT IS NOTED that publication of this judgment under the pseudonym Vanzant & Blank is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7254 of 2017

MR VANZANT

Applicant

And

MS BLANK

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting and property dispute between a couple who were together from 2003 to 2017 and who have two young children, [X] born … 2009 and [Y] born … 2010.

2. The applicant father seeks that the children live with him and the mother on an equal shared time basis, which is strenuously resisted by the mother who seeks that there be no increase to the extant time regime. 

3. The Independent Children’s Lawyer proposes that the children live with the mother and spend time with the father each alternate weekend with half school holidays.  For the reasons that follow I am going to make the orders proposed by the Independent Children’s Lawyer. 

4. It should be noted that there is also a property component of this dispute.  The amounts involved are, however, very small not least because of the father’s effective dissipation of funds. I am going to order that the mother receive the net proceeds of the sale of the former matrimonial home and, as she seeks, that there be an equalisation of superannuation.

Agreed or uncontroversial matters

1. Although there are significant matters in dispute in this proceeding, perhaps most particularly in relation to the mother’s allegation of the father’s family violence and controlling behaviour, there are a number of agreed or uncontroversial matters. 

2. The father was born on … 1970 and presently lives with his mother who has it appears recently started to suffer from dementia.  When the proceeding commenced in 2017 the father was earning some $65,000 per annum as a tradesman, albeit that he is not now working. 

3. The mother was born on … 1982 in Tasmania where all of her family live.  She came to Melbourne in 2003 and met the father with whom she rapidly commenced a relationship.  The parties were together save for an alleged period of separation between 2011 and 2014 asserted by the father but not stressed in the proceeding, until final separation on 3 May 2017. 

4. The parties bought the matrimonial home in what the father described as late 2012.  There have been various arguments about the value of that property and the contributions made to it but these have all crystallised in net proceeds of sale held in trust amounting to $11,047.08.

5. The father has asserted that he was bankrupted in 2007 and discharged from bankruptcy in 2015.  He asserts that it was for that reason that the former matrimonial home was bought in the mother’s name.  The mother does not challenge the fact of the bankruptcy but asserts, as she indeed does globally in relation to financial matters, that she was kept entirely ignorant of all aspects of the parties’ finances.

6. The father has an extensive criminal history dating back over many years, much of it to do with infractions related to motor vehicles.  He has also been convicted of numerous breaches of Intervention Orders taken out by the mother, the first of which appears to have been immediately after separation on 8 May 2017.  He has also been convicted of an assault (see B8 - to the wife’s first affidavit filed 28 August 2017) at the time of separation. 

7. The wife following the separation moved out to a refuge and only returned to the matrimonial home on 7 July 2017.  She stayed in the matrimonial home until 5 February 2018 when the husband re-entered into the property which took until January 2019 to sell.

8. There have been interim orders made for spending of time which it is not necessary to traverse at this point, save to note that by consent on 4 July 2018 it was ordered that the children spend time with the father each alternate Friday from the end of school or otherwise at 3.30 pm until 5.00 pm Sunday and each alternate Wednesday from 3.30 until 6.30 pm together with half of the school holidays. 

The parties’ affidavits

1. I have, of course, read the file carefully and have regard to the affidavit material the parties have filed.  In large part the matters contained in those affidavits is summarised in the agreed or uncontroversial matters immediately above.  I note that the tenor of the parties’ affidavits can be characterised, albeit somewhat generally, on the part of the mother to assert significant and serious family violence over a substantial period of time together with associated extremely controlling behaviour both in financial and other ways on the father’s part.  The affidavits lay stress upon the Intervention Orders taken out from time to time and the father’s repeated breaches thereof by the sending of inappropriate text messages.  The father’s material by way of contrast points to the sadness he has felt since separation and his general denials of the mother’s assertions made against him.  In the particular circumstances of this case, however, it is in my view more profitable to concentrate on what the parties have actually said at court. 

The section 11F report

1. Family consultant [L] prepared a Child Inclusive Conference memorandum following interviews on 7 September 2017.  It was noted on the first page of the report that the parties had agreed for the children to remain in the primary care of the mother and spend increasing periods of time with the father until, ultimately, Friday after school until Sunday 4.00 pm was achieved, together with each Wednesday.  The report noted the various complaints the parties made of one another, including the mother’s allegations of physical violence which the father denied.  I note that [X] spoke positively about both her parents in general terms.  [X] denied having being present on an occasion when her mother had told her that her father had tried to hurt the mother’s face.  [X] was concerned that her father would be going to jail and would be sad if that happened as she loved him very much.  The report noted that [X] did eventually meet the father and appeared more relaxed and proactively engaged in play after a brief introductory period.  [Y] responded extremely enthusiastically to seeing his father. 

The family report of Ms C dated 15 January 2019

1. The report commenced with details of the then current arrangements.  The report noted the essentially unremarkable good health of the children although it was noted at paragraph 3 that [Y] awaited assessment by a paediatrician for behavioural issues including, most particularly, aggressive behaviour towards [X].  I note that at paragraph 4 the report detailed that the children were attending personal counselling which the mother indicated the father was not aware of because he would be likely not to support such counselling.

2. The report noted the interim orders which established the spend time regime to which I have already referred.  The report noted that on 22 August 2018 (paragraph 14) family violence orders were granted for two years to the mother and the children.  In that paragraph it was also noted that the police had applied for a family violence protection order on behalf of the mother’s new partner following concerns that the father’s behaviour was increasingly erratic towards him.  It was noted that Mr Vanzant denied all allegations made against him.

3. The report went on to traverse the mother’s allegations of violence and breach of the Intervention Orders.  I note that at paragraph 19 the father raised no concerns for the children’s safety when in the mother’s care and at paragraph 20 no concerns on the father’s part about the mother’s use of alcohol or non-prescribed drugs.  The mother had concerns about all of these matters on the father’s part. 

4. At paragraph 26 the report observed:

   Mr Vanzant and Ms Blank impressed as having come out of their relationship with their own personal concerns for the other parent’s behaviours.  However, the writer had no information to indicate that Mr Vanzant’s sense of grief and loss in relation to missing the children, or Ms Blank’s tension and stress during parental interactions with Mr Vanzant, was placing the children at risk.  Both parents impressed as seeking appropriate counselling support to develop coping skills to increase their ability to interact with each other in an effective parental relationship in the future. 

5. I note that at paragraph 34 the father reported a concern that the mother and her new partner kiss on a regular basis in front of [Y], which upset [Y].  The father also reported that [Y]’s bedroom was next to his mother’s room and [Y] had informed him he was kept awake at night by the noises he heard from his mother’s room when her partner spent the night with her.  At paragraphs 35-37  the report continued:

   Mr Vanzant said he asked Ms Blank to speak with her partner to request he respect his son’s right to privacy and refrain from interactions with the children’s mother that stressed the children when [X] and [Y] were at home with them.  As Mr Vanzant spoke, the tension in his body and communication pattern increased, and he impressed as believing he had the right to protect his son from the level of discomfort he believed [Y] was experiencing in his mother’s care.  Mr Vanzant advised he had not attempted to speak with Ms Blank directly about his concerns at the time, given the limitations of the Intervention Order.  Ms Blank in session reported her partner had not spent any overnight time with her when the children were in her care. 

   The writer does not consider this specific issue to be a concern for the children’s safety.  However, the writer believed the parents’ respective reports about the impact of Ms Blank’s new relationship on the children’s wellbeing is illustrative of the ongoing depth of feeling for Mr Vanzant in terms of his protectiveness of the children when they are not in his care.  It also demonstrates a lack of parental communication currently available to Mr Vanzant and Ms Blank to discuss concerns for the children when in their or the other parents’ care.  The parents’ attendance at the Parenting Orders Program will assist them to develop effective parental communication strategies to discuss important aspects of the children’s care and develop a shared response to the care needs of the child.

   Should it become apparent that Ms Blank’s partner has not spent overnight time with his mother when [Y] was at home in her care, the writer would be concerned that [Y] may be over involved in the parental conflict.  Should this be the case it would be important that [Y]’ parents are supported to reduce the conflict in the parental relationship that the children are exposed to.  It will also be important that the children attend their own counselling to support them to remain independent of the parental conflict and retain strong and healthy relationships with either parent. 

6. The report noted the concerns expressed by each of the parents but at paragraph 40 the writer identified no concerns in the parents’ respective reports about the children’s care that would indicate the children were at risk when spending time with either the father or the mother. 

7. The report noted the different perspectives of the parties as to the alleged family violence.  At paragraph 44 the report noted that the father identified he was a physically big man at the time.  That in itself would have been intimidating.  Nonetheless, he believed he had not acted in a violent manner towards Ms Blank within the relationship and he was in denial that she had been obviously distressed by his behaviours or unable to act independently of his wishes during the relationship.

8. Paragraph 45 of the report noted:

   Ms Blank reported throughout her relationship she felt overwhelmed of Mr Vanzant’s responses to her and at risk should he become angry or upset towards decisions she made on behalf of the children.

9. The father sought that changeovers move from the police station to a community setting, something adamantly opposed by the mother. 

10. At paragraph 50 the report noted the children engaged well with their mother.  At paragraphs 51-58 the report details the interview with [X].  Relevantly, at paragraph 52 she said that she wanted to see her father more.  At paragraph 54 she identified that [Y] gives her a hard time.  Also at paragraph 55 [X] raised no concerns about either parent’s discipline regime when she was in their care.  [X] was happy to spend time at home with her mother and would like to spend equal time between her mother and father’s home in the future (paragraph 56).

11. The interview with [Y] is recorded at paragraphs 59-61.  [Y] appeared to suggest that he wanted equal time with his parents (paragraph 60) and his remarks about his sister suggested that he regarded the relationship as being not without difficulty.  At paragraph 61 the report noted:

    It will be important the children remain involved in counselling and that their parents work with the counsellor to support the children develop more successful ways to manage their not unusual sibling conflict. 

12. The observations of the children with their father was unremarkable.  [Y] was observed to respond to pressure somewhat tensely (paragraph 63).  At paragraph 65 the report noted:

    The writer has placed importance on the children’s wishes to see their father.  The writer was concerned that should the children continue to miss their father, their sense of loss of a relationship with him may reduce their capacity to settle into their mother’s future care and they may expend unnecessary emotional energy managing their distressed feelings in relation to their father’s absence in their lives.  However, the children are not aware of the difficulties in their parents’ relationship that impact on Mr Vanzant and Ms Blank’s ability to communicate effectively with each other.  Therefore, the writer has balanced the children’s wishes in this matter with the issues in the parental relationship and issues of safety, given Ms Blank’s reports of family violence and the current Intervention Order.

13. At paragraphs 72-73 the report noted:

    The writer identified no information to indicate either parent’s mental health or drug and alcohol use represented a risk to the children’s safety.  The writer identified no specific risk issues for the children when with either parent that require consideration when writing recommendations about the children’s future care.  Mr Vanzant and Ms Blank in interview raised concerns for the manner in which the other parent cared for the children when in their respective care.  Mr Vanzant was worried that the children were exposed to inappropriate adult behaviour between their mother and her new partner.  Mr Blank reported her partner did not spend overnight time at the time with her and the children when they were together which would indicate Mr Vanzant’s concerns are unfounded.  In the circumstances, there is some reality to the concerns that [Y] identified with his father, the writer remains of the belief that whilst these issues are uncomfortable for [Y], they do not represent a significant risk to his safety.  In this circumstance the writer is concerned that [Y] is unable to speak with his mother about his worries, should they be real, and in this circumstance counselling for the children and their parents would be indicated as an appropriate response. 

    Ms Blank was concerned that Mr Vanzant did not provide the children with a reasonable routine when they were in his care to support the children spending long periods of time in his care.  The writer again assessed this concern to be best addressed by the Parenting Orders Program counselling that the parents are engaged in. 

14. The report noted that the parties had a different understanding as to whether family violence had occurred during the relationship and following separation.  At paragraph 76 the report observed:

    Should the Court determine Ms Blank’s reports are accurate, the writer would be concerned that Mr Vanzant has acted in a manner that is a high risk indicator of future violence towards Ms Blank.  In this circumstancs it would be difficult for the writer to recommend that the parents work toward improving their parental relationship until Mr Vanzant has attended personal counselling.  The purpose of such counselling would primarily be to understand the risks of such behaviour represents to his and Ms Blank’s improvement in their future parental relationship and identified behavioural changes to manage his impulse to engage with the children and their mother when they’re together.

15. The report went on to note that should the Court not accept Ms Blank’s account then the matter should proceed through the Parenting Orders Program (paragraph 78).  Once the parties had engaged and completed that program the report recommended time with the father increase during the alternate week during the school term to an overnight visit, with changeover being at school rather than the police station.  The report went on to recommend at paragraph 80 that the children’s time increase by a further overnight visit each alternate weekend on Sunday night and equal time during the holidays.  The report recommended that changeover continue at the Suburb A police station until the mother was comfortable with changeovers moving to an address in the local community. 

The report of Dr D

1. Dr D’s report was filed on affidavit sworn on 22 April 2019.  On page 3 of 6 of the report Dr D noted “in terms of insight, he acknowledged suffering from a period of depression triggered by the loss of contact with his children”. 

2. The report noted on page 5 of 6 that the father had been convicted of three breaches of an Intervention Order and four more contraventions of which two were made out.  The report noted that the father has a large amount of traffic offences going back at least until 1999 and that he had been charged in 2017 for driving a vehicle without number plates and negligently dealing with proceeds of crime and handling and receiving stolen goods. 

3. The report noted the mother’s accounts of the alleged physically abusive relationship but noted at page 6 of 6:

   Mr Vanzant denied the physical aggression but stated that there were times where they did have verbal arguments and he is regretful of this.

4. The report went on to note under the heading “Opinion and recommendations” that the father had suffered from a major depressive disorder single episode following the end of the relationship.  Dr D was of the view that the episode had largely resolved.

5. At paragraphs 4 and 5 on page 6 of the report noted:

   Mr Vanzant has acknowledged a problem with verbal aggression and I note that the physical aggression is in dispute but, in any case, Mr Vanzant has had intervention in relation to aggression and recognised his verbal aggression from the past.  I note that the breaches of Intervention Order show a degree of impulsivity and emotional reactivity.  In my opinion, this is not indicative of mental illness, but rather personality traits, short of being a personality disorder, that would be important for him to address in psychological therapy. 

   In my opinion, there are no current significant impediments in terms of mental illness on Mr Vanzant’s ability to care for the children.

The submissions made and evidence given at court

1. What follows is taken from my notes.  It is self-evidently not a transcript but records aspects of the matters put that struck me of being of significance. 

The opening and evidence of the father

1. The father, who was self-represented, said in his opening that his first priority was the children.  He was relying upon the family report and sought the orders recommended in it. 

2. So far as property was concerned, he was 50 years old and not very healthy.  He had walked out of the relationship with nothing and had gone in with a lot.  He sought a fair settlement.  He had cleaned the property up prior to sale and sought reimbursement of $4820 paid to Suburb A Skips in respect of which he tendered the invoice, exhibit R1.  He said that his mother and father had put in $130,000 to buy the property but they were not seeking this back as it was a gift.  So far as sole parental responsibility was concerned he wanted a clause that he be included in relation to major decisions and if there was no agreement there be a mediation.  He also wanted to be able to attend all events at school.

3. When called the father adopted his affidavits and Financial Statement as true and correct. 

4. Under cross-examination by counsel for the mother the father said he was presently living with his mother.  He was not living with a cousin in Suburb M although he did do so for one week in May 2017.  The children spend time at his mother’s home or at Town N which is his sister’s holiday home.  There have been changes since 2017.  His attitude to the mother has changed.  His financial situation is destitute.  When it was put to him that his Financial Statement disclosed three cars he said he now owns a Motor Vehicle O on which he has over $16,000 to pay.  It is owned by his employer Company J (see exhibit C1).  The father is a subcontractor to Company J. 

5. The Motor Vehicle O was bought in about June 2018 and registered to his name but he paid nothing for it.  He presents invoices to Company J and half of the balance of the invoice is allocated to pay for the car.  He said he had earned between $25,000 and $30,000 in the last six months.  His last tax return was in either 2015 or 2016.  He has paid no child support for the last six months.  He agreed that he an outstanding liability in respect of child support in excess of $12,000.  He said he had receipts for school uniforms and stationery. 

6. When it was put to him that he had paid no child support since separation the father said he had not paid directly to the mother but he had paid bills.  He wanted to pay school fees.  He asserted that once he gets his latest tax return his child support assessment is likely to decrease.  He is waiting to get money to pay for his accountant for tax returns.  He hopes to pay his child support in full.  I note that he asserted that he gave the mother groceries on Sundays but he denied seeking to control the mother by not paying child support.

7. When it was put to him that his Financial Statement dated 18 July 2017 showed an income of $1200 per week he said this was prior to breakdown.  The relationship broke down in May 2017.  For the first three months he had not worked at all.  His last pay from work was $1250 prior to separation.  He asserted that no one had asked him what his wage was since then.  I should interpolate and say that this evidence was given under observable pressure of speech and the father’s denials about his previous income were, in my view, palpably unbelievable. 

8. The father conceded that he had attended court on 1 August 2018.  He was given a $200 fine or two month bond.  This was for text messages sent in breach of an Intervention Order.  He had not paid the fine and had attended court in April 2019.  His time to pay was extended until August 2019.  He is before the court for a breach of the bond but knew this was the case in mid-April 2019.

9. When it was put to him that he had been charged with numerous breaches of the Intervention Order the father said that four was not a large number.  He conceded that there were, however, a large number of texts. 

10. When it was put to him that the mother was scared of him and scared when she saw him at school the father said he had been to the school on many occasions since the Intervention Order.  He had heard she said she was scared.  He understands that she says he had assaulted her.  He agreed he had a problem with verbal aggression and a degree of impulsivity.  He agreed with Dr D.  When it was put to him that Dr D had described him as having emotional reactivity the father said he had read this.  He said he did not know what psychological therapy means.  He is seeing a psychologist at the moment which is Suburb E Psychology.  He had 16 treatments available from a mental health plan but these ran out.  He is going to get another 10 in some two to three weeks.  His issues are loneliness and confusion and 100 per cent around the lack of his time with the children.  He knows what he has to do but has not the will to do it.  It is an ongoing issue.  He is not seeing the children.  The confusion is about the way the relationship broke up.  They had 15 years of life together.  He did not see the children for nine whole days.  He needs to see the children to adjust better than he is. 

11. There was some cross-examination about drug use but in the light of the family report it is not necessary to traverse this. 

12. When it was put to him that the children are grumpy with the mother after they spend time with him and complained about the rules in the mother’s house the father said the children do not do homework on weekends.  He has spoken to Ms F at the school about this.  He washes the children’s uniforms and folds them up and gives them to the mother.  He denied that this was only a recent innovation.  I would interpolate and say that this evidence was given with conviction and I accept it. 

1. When he was asked how he would get the children to school the father says that he is usually at work between 6.00am and 6.30am but he can adjust his hours.  He is not paid an hourly rate and will organise after school care if necessary.  He has not arranged anything thus far.

2. The father was cross-examined about his attendance at court.  He confirmed that he had parked in a no park standing zone because he did not have the money for parking.  He had not filed any tax returns since 2015.  He was bankrupt for over 10 years until he exited the bankruptcy in 2017.  He had problems complying with his trustee.  He earns $1250 per week but is not paying tax and not saving anything.  He denied that he had not paid any of the bills in relation to the former matrimonial home from February 2018 until its sale.  When he was asked why the mortgage and body corporate fees were in arrears together with rates and water rates which had to be paid out of the sale price he conceded that this was correct.  He asserted that between February and June 2018 he had paid $17,000 to stop the house being sold by way of default.  The father was cross-examined about his contributions in respect of school fees but I found his answers unpersuasive.  It was put to the father that the house was in good condition when he moved in but left in a state of disrepair but he denied that.  Photographs were tendered by both parties, if I recall the matter correctly.  The photographs tendered by the parties are in my view inconclusive.

3. The extensive cross-examination as to the state of repair of the property, in my view, has been well and truly overtaken by events given that the property is now sold with only a small net profit. 

4. Tellingly, when pressed about his finances, the father said that his funds were strategically placed so that he has enough to pay for the children.  He can borrow from his sister to see him through.  He said he gave the mother $800 for his son’s birthday after separation and provided a car for her in 2018 (this was however ordered by the court).

5. The father said that not seeing his children was stopping him from functioning as he always has.  He has not had problems organising himself through his life.  He conceded he was bankrupted over a debt of $1,609 and it took him eight to 10 years to get out of his bankruptcy. 

6. When it was put to him that he would not get the children to school or collect them on time he said that was incorrect.  The father was cross-examined about the failure of the children to do their reading when with him.  It is sufficient to say that I found his answers completely unbelievable. 

7. The father was cross-examined about [Y]’s alleged complaint about noises from the mother’s bedroom.  He said he trusted his son.  He appeared to regard it inherently offensive for a child to see adult displays of affection. 

8. When asked what his accommodation was given the matrimonial home had settled the father said this was dependent on the outcome of the proceeding.  If he gets to take the children to school he will get somewhere closer.  At the moment it’s better at his mother’s.  He does not want the children to go to Suburb E on Wednesday.

9. Under cross-examination by counsel for the Independent Children’s Lawyer the father confirmed that he wanted the recommendations in the family report.  In a perfect world he would want more.  It was not in the children’s best interests to live with the mother.

10. He had in mind to revisit the question over Wednesday overnight in the alternate week in 2021. 

11. When it was put to him that the mother was a good mother the father said that on the whole he was satisfied that the children live with the mother and that there were no risks in her care.  The children are at school in Suburb A.  The matrimonial home was at Suburb C next to Suburb A. 

12. On Sunday evening it takes 30 to 35 minutes to drive to Suburb A from Suburb E but when it is busy it takes 40 to 45 minutes.  School starts at 8.50 and he leaves at 7.45 am to be safe from Suburb E.

13. The father confirms he had undertaken the Parenting Orders Program.  He had had six sessions of which four were one on one he had also had six group sessions.  He said changeover would be better at school as there had been incidents at the police station (not involving the parties but third parties).  When pressed about the commuting distance to school the father’s answers were, in my view, prevaricating and had all the appearance of being made up on the run.  At present on Wednesdays he takes the children to a play centre and they go to Suburb F Play Centre and then to a café for dinner.  He had moved to Suburb E prior to Christmas.

14. When questioned what he meant by the mother having sole parental responsibility the father said where they go and what they do when not with him.  He wanted to be notified of emergencies.  When it was put to him that the mother has made decisions about school and health the father said he wished to leave the children at their school but wanted input if they changed.  His answers at this point, I should observe, were given with extraordinary pressure of speech.  [Y] sees Mr P at school and a psychologist Mr Q.  The father has had no contact with Mr Q at all.  He has spoken with Mr P and [X] but this stopped about one month ago.  Mr P was concerned but it was the mother’s decision.  He had had no discussion with the mother about this. 

15. He had read the mother’s affidavits detailing family violence which he denied.  He admitted there had been arguments with name calling and the children would have overheard this.  He said the children would have feared him and the mother before separation.  He said he was never physical to the mother.  Counsel very properly put to the father in terms the allegations of violence in the mother’s affidavit from paragraph 66 to 81.  He roundly denied all family violence but he did admit punching a hole in a wall.  He said there were a few occasions where he punched a hole in the wall in the mid-1990s but his relationship with the mother commenced in 2002-3.  He could recall arguments about bills and could have said to the mother, “Why can’t you just shut up.”  He denied all assaults. 

16. The father was cross-examined about the events at separation.  He said the assault charge was struck out and an Intervention Order was made on May 2017 without admissions.  A full final Intervention Order was made which included the children on 22 August 2018 for two years.  When it was put to him that he had been charged with four separate breaches with separate counts the father said he was sending multiple emails and pleaded guilty.  Twenty-three charges had gone down to three, two to one and one to one.  He is presently charged with a breach in relation to payment.  He obtained a good behaviour bond on 8 April 2019 and has an extension to pay his fine until 1 August 2019. 

17. The father conceded he had had trouble with the law before.  He was convicted in 2017 of charges relating to a stolen trailer.  He was convicted in 2008 of theft of a car because he overheld a rental car. 

18. The father was cross-examined about an argument in McDonald’s in March 2017.  His version of the events was entirely self-exculpatory and I note that he denied making a gun gesture towards the mother.  It was his version that he had called the police himself.  He did not recall being told to watch his language around the children. 

19. The father was cross-examined about his attendance at the Parenting Group in October to December 2018.  The mother had undertaken the same course at a different branch in Suburb R.  When asked what he had learned the father said a lot.  It is about communications with the children and the mother and not to include the children in adult issues.  They must tell the children it is not their fault.  The father was cross-examined about an incident recorded at paragraph 57 of the family report.  He said he had spoken to his daughter about this and said he was sorry that she had to see it.  He denied, however, that [X] had overheard the matters recorded.  He noticed that [X] overhears the mother with her lawyers.  She had read their mother’s allegations.  He quizzes the children and he has tried to find out about their life.  They bring up their concerns about Mr G and kissing.  [Y] hears noises.  [X] had told him that she was quizzed by Mr G about her time with the father.  [X] feels that Mr G disrespects her.  He bangs on the table.  He burps out loud.  He overheard the mother on the telephone demeaning him. 

20. The father was cross-examined about his behaviour after separation.  He has said that he has struggled to cope with the separation and was admitted into hospital on 4 October 2018.  He is not now struggling.  He has a small amount of time with the children.  The mother complies with court orders and the children enjoy their time with him.  The mother had facilitated his time since September 2018.  When it was put to him that if he moved closer to the school things might get better he could not say. 

21. In further, brief cross-examination, by leave, by counsel for the mother it emerged that contrary to his earlier assertions the father had no invoices to Company J.  There was no re-examination. 

The evidence of Ms C

1. Ms C’s evidence was interposed by agreement.  She adopted her report as exhibit M1. 

2. Under cross-examination by counsel for the Independent Children's Lawyers Ms C confirmed that where the father lives is a key issue in relation to time.  The most important thing is getting the children to school.  The father has told her he would live close to the school.  The father must live within a reasonable commute of the school which, in Ms C’s opinion, meant up to half an hour’s drive.

3. When cross-examined about paragraph 57 of the report Ms C confirmed that [X] had said that the parents were a good couple.  For Ms C this was not what a child would say.  Ms C confirmed that she recommended an increase in time after the parents had undertaken the Parenting Orders Program.  She did not understand that the course undertaken by the father was a Parenting Orders Program which she understood would be undertaken in a group setting.  There would be counselling after this also.  The mother had enrolled in Suburb R but not started when she saw her.

4. When cross-examined about changeover and noting that the father opposed the police station Ms C said the children need to know their parents are secure.  It was better to continue with the police station because of the mother’s fears.  Supervised changeover would be better but they cannot do Sunday but can do Saturdays at Community Plus.  If the father does not move then overnight time would be at weekends.  Time in Suburb A would be better than no time.  The best option would be to continue the midweek time with changeover at a police station.  She had read the report of Dr D but this had not changed her views.  She had already assumed that the mental health issues would not be given particular weight.

5. When cross-examined about [Y], Ms C noted that both parents said [Y] exhibits challenging behaviour towards his sister, hitting her.  [X] said this was ongoing and had occurred on the morning of the interview.  In observation [Y] was quite determined.  His emotions are quick to rise.  Counselling would be really useful for him and help him cope with the transition between different households. 

6. The children’s view that they wanted more time with the father reflected their genuinely held view.  The parents need the same counsellor rather than two.

7. Under cross-examination by counsel for the mother Ms C said that the DHHS report October of 2017 did not change her recommendations.  The children are seeing the father and do miss him.  The children have a very busy enjoyable time with the father and do not get the full impact of how much he missed them.  This may lessen somewhat if the father obtains overnight time. 

8. Mr Vanzant elected to put no questions to Ms C. 

The opening and evidence called on behalf of the mother

1. Counsel confirmed that he relied upon the case outline.  The pool is the $11,047 from the home together with the wife’s superannuation of $4198 and the husband’s $72,960 plus the husband’s car.

2. By leave Mr G was interposed.  He is a public servant who adopted his affidavit as true and correct.

3. Under cross-examination by counsel for the Independent Children’s Lawyer Mr G confirmed he had been in a relationship with the mother since January 2018.  He has children and they live in the outer east suburbs and spend time with him every three to four weeks.  He works shift work.  He has no plans to move from where he lives in the Region H.  [X] is a bit negative to him sometimes and gives him dirty looks and sometimes misbehaves.  He gets along pretty well with [Y].  He ran into the father once at a supermarket and the father followed him towards his car for a short distance.  The police took out an Intervention Order but not at his request.  The father was interviewed by police for an offence.  Mr G proposes to apply to extend the Intervention Order when it expires.  The father had followed him around this court giving him dirty looks over the past few days.  He hangs around the door of the room in which he and the mother were and he had heard the father say “Fuck” in the main entrance.  He was not sure if he would complain to the police about this. 

4. Under cross-examination by Mr Vanzant, Mr G said it was not true that he interrogated the children.  He asked them what they did on the weekend and that is it.  He had not told [X] not to tell the father about his new number plates.  He does not spend time at the mother’s home but has spent time with her at Town S.  It is a large house and the children’s bedrooms are at the other end of the house.  He has not spoken to Mr Vanzant. 

The evidence of the mother

1. The mother adopted her affidavits and Financial Statements as true and correct.  She has taken the children to solicitors once or twice and they wait in the waiting room.  The door is shut. 

2. Under cross-examination by counsel for the Independent Children’s Lawyer the mother said that she had no future plans to move to the Region H at this stage.  The children will finish their primary school at Town S.  [X] is in grade 4 and [Y] grade 3.  She is renting. She agrees it takes 45 minutes to drive from Suburb E to Suburb A.  The father picks the children up from school and is not late.  She is concerned that he cannot get them to school in the morning.  He moved to Suburb E after the property sold which was in April 2019.  The children were in care from 7.00 am until 6.30 pm when OSHCare closes.  The children enjoy OSHCare in small doses both before and after school.  The father could use OSHCare.  The mother still has concerns about the father dropping the children off.  She took the children to school when they were together and he only did this once or twice.  Her experience is that the father is late often.  She agreed that Suburb A Police Station was not ideal for changeover but should be continued for her safety.  It might in time be possible to move to Suburb A Shopping Centre in Suburb A.

3. The mother confirmed that she was seeking that [X] and [Y] live with her and that time continue on Sunday and a Wednesday.  This time was in the children’s best interests.  The children spent half school term and two weeks in the long summer holidays with the father.  They are safe with him and enjoy their time.  It is in their best interests that they have a strong relationship with the father and see him frequently.  They do miss him and do want more time.  She has practical concerns about more time.  When it was put to her that if the father moved closer to the school overnight time might be acceptable the mother said that she was still concerned that this would be disruptive to their routine but it might benefit them.  It makes sense the children see the father as a good time dad with orders as they are and it might be better for him to have more time.

4. When cross-examined about the family violence the mother confirmed that the incidents she alleged did occur.  The images are stuck in her mind forever and are not easily forgotten.  As to the incident on 3 May 2017 the letter from the policeman stated that the father had been sentenced.  He had an $800 fine.  There was family violence in McDonald’s.  [X] was in her arms.  She had made a statement to the police about the father stalking because she saw him near her home and shops.  This was at the place before the one she is at now.  She is confused as to what is happening.  The father had not threatened her on those occasions.  The texts that constituted the breaches and Intervention Orders were not threatening.  The father is not threatening at changeover.

5. Under cross-examination by Mr Vanzant the mother was adamant that the home was pristine when she left it.  She had not cleaned the oven before vacating.  She had not cleaned the pergola or garden.  The kitchen rangehood disclosed in exhibit A3 was not as bad as that. 

6. Some cross-examination about the Motor Vehicle T car showed that it had been sold at auction for $1500.

7. The father put it to her that her police statement, exhibit A5, did not mention physical violence but the mother said she had made many statements.  She had made a statement to the police about the McDonald’s incident and to her it all happened very quickly.  She was adamant that the father had made a gun motion towards her, even though it was not in the statement.  Her body was filled with adrenalin and she had a distraught child.  There were two points missed from her statements which became apparent one month later.  The father had made a gunshot motion and mouthed the words “You’re dead”. 

8. The mother was cross-examined about [Y]’s school report and accepted that there were a number of late arrivals in one semester which was not outstanding.  She accepted that the father was punctual to work.  When asked by the father as to whether he had been a good father the mother replied that he loved his children and had never hit them. 

9. In re-examination the mother confirmed that she had got rid of the Motor Vehicle T because it was unsalvageable with an excessive cost of repair.  When asked about late arrivals in the first semester the mother confirmed the children had had a hard time and did not want to go to school because of safety concerns.  She also had difficulties with transport. 

The closing submissions for counsel for the Independent Children’s Lawyer

1. The Independent Children’s Lawyer’s proposed final parenting orders were handed up.  Changeover at school would be better than at a police station but account had to be taken of the mother’s fears.  The children have a strong relationship with the father and Wednesdays should be left as it is.  The mother was overall prepared to facilitate a relationship between the children and the father and the dispute was narrowed.  The father accepts there are problems with drop offs.  It is better for the father to get the children to school and the mother can see that the father might be able to do this and collect the children on time.  There was a clear benefit to the children having a relationship with their father and all parties accepted this.  There was a need to protect the children from him although the mother conceded the children were not at risk of direct harm from the father.  There was a risk of exposure to family violence directed at the mother by the father.  Joint parental responsibility was not in the children’s best interests and it was not practical.  Counsel did not support an increase of time in 2021 as recommended by the family report.  The children had told the Independent Children’s Lawyer and the family consultant and the mother that they wanted more time with the father.  They have a strong relationship with both parents and the mother is the primary carer.  The father has sought to spend time with the children but fails in child support.  The mother has had to bring the children up on her own.  So far as the capacity of the parents to meet the needs of the children are concerned Dr D said that there is no personality disorder and that the father can look after the children.  Nonetheless, Dr D makes it clear that the father was suffering as a result of the breakdown and found it hard to adjust.  He had been hospitalised in 2018. 

1. The father’s attitude to his responsibilities as a parent were a failure.  There is no criticism to be made of the mother.

2. So far as family violence is concerned the Intervention Orders were breached.  The breaches were not necessarily family violence.  Counsel pointed to the two police statements.  He submitted that final orders were desirable.

Final submissions of counsel for the mother

1. Counsel referred to the case outline.  The father’s time should increase when the father moves closer to the school.  The Independent Children’s Order, order (11), was unworkable and a recipe for more conflict. 

2. The father finds it hard to leave the children and there are problems with drop off at school.  The father finds it hard to get his act together.  Getting the children to school properly prepared is problematic.  The father does not pay child support and this shows his controlling attitude to the mother.  His attitude is further shown by the breaches of the Intervention Order, his parking in a no parking zone and his attitude towards the court’s orders.  The father’s assertion that he had paid the mortgage and related household expenses were simply not true.  Time should not increase for the therapeutic benefit of the father.  The mother has never said the father assaulted the children.  The family consultant has pointed out that it is inevitable that he is a good time father.  This is not the time to risk progression of time.  The father should change his residence before time is increased.

3. So far as property is concerned the pool is very limited.  The mother wants the whole of the proceeds of the matrimonial home and the father seeks that $4800 be paid towards the skip company.  Counsel has submitted this should be paid, if at all, to child support arrears.  The mother is dependent upon Centrelink and part-time work.  It is clear from exhibit R3 the statement of adjustments from the sale proceeds that the net proceeds have been reduced by the failure of the father to pay outgoings.  The mother and the children live in rental property. 

4. So far as superannuation is concerned this should go to the mother.  Procedural fairness has been given to the trustee.  There may be some access to hardship payments.  The father was dishonest about coaching the children and the evidence as to his tax returns was unsatisfactory.  The mother’s assaults asserted since 2017 have never been the subject of formal reply. 

The final submissions of the father

1. The father submitted that he sought the Independent Children’s Lawyer’s orders apart from order 5(b) where he was seeking that time be from Wednesday overnight from 2021 as recommended in the family report.  He would prefer order 5(a) (for weekend time) when his accommodation is sorted close to the school within a 20 kilometre radius.  He is trying to find somewhere between his mother and his family.  He sought time on Christmas because this was a family tradition.  He sought also to attend the children’s school for their performance and sports’ days and said he would abide by all orders.  Referring to order (9) as to telephone time he sought that this be at 5.00 pm because on Sundays he is usually travelling for his work on Mondays.  The father continued to deny any physical assaults on the mother.

2. So far as property was concerned he had sought three extensions as he wanted to clear the property out.  He asked that the invoice be paid out of the settlement fees otherwise he agreed that the mother obtain the balance.  He said the outstanding outgoings were before he was there. 

3. So far as superannuation was concerned he left that to the court.  He asked the court to keep in mind his age which is almost 50 and that he is walking away with nothing. 

Some brief observations about the credit of the witnesses

1. Ms C was a professional witness giving evidence within her area of expertise.  While I do not necessarily accept all her conclusions I have no hesitation in saying that she was a witness of truth. 

2. Mr G was also clearly a witness of truth.  His evidence was given directly and straightforwardly and, in my view, was entirely credible. 

3. The mother’s evidence was given, in my view, directly and responsively.  She presented with dull affect, if I might so describe it, and appeared somewhat overborne by the entire procedure.  She was, however, clearly tellingly giving honest evidence to the best of her recollection.

4. I have already commented once or twice before in negative terms about the father’s evidence.  He was a poor witness.  His answers were self-serving on occasions and putting the matter shortly where there is a conflict of evidence between him and the mother, having seen both of them give their evidence over a reasonable period of time, I prefer that of the mother.

Findings about the disputed facts

1. During this long relationship the father was controlling and domineering over the mother who was very substantially younger than him.  I accept that she had little, if any, idea as to the parties’ finances.  She appears to have been kept largely in the dark even about the father’s protracted bankruptcy. 

2. The father’s incompetence in handling his affairs is well illustrated by the bankruptcy.  He went bankrupt over an amount of money that would scarcely would have crawled over the minimum amount to give rise to a bankruptcy at that time.  He was bankrupt for the better part of 10 years because of his incapacity to properly cooperate with the trustee.  This failure says much about his capacity to organise his affairs. 

3. I entirely accept the mother’s assertions of violence perpetrated by the father despite his denials.  I have heard her evidence and I believe it.  This was part of his controlling, jealous and domineering personality.  He may well believe his own denials but I do not. 

4. Following separation, and consistently with his general financial incompetence, the father failed to pay the various outgoings on the matrimonial home after he moved back into it, thus significantly dissipating the net amount ultimately available.  He has not lodged any tax returns since 2015.  He is making quite substantial amounts of money but paying no tax.  I entirely accept, as he said, that he places his money strategically and by this I took him to mean, and I certainly mean, that he makes sure it is somewhere that the wife has no capacity to get at it in terms of child support.  He has major child support arrears and has paid nothing by way of child support since separation. 

The statutory pathway

1. Having made these findings, I turn to the statutory pathway.  The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends and holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.     The child’s best interests remain the overriding consideration.”

Parental Responsibility

1. In my view, the mother should have sole parental responsibility for the children.  This is the position of the Independent Children’s Lawyer and I agree.  The orders proposed will require the mother to advise the father and consider his views but not be bound by them.  Given the domineering role and personality of the father any order for joint parental responsibility will only lead to conflict which is not in the children’s best interests.  The presumption as to equal shared responsibilities, in any event, is rebutted by the family violence that I have found. 

2. Notwithstanding this, given that all parties agree the children should spend time with the father, it is appropriate to consider the spend time regime.

The primary considerations

1. Everybody agrees that it is to the benefit of the children to have a meaningful relationship with both of their parents.  It is, however, necessary to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  There is no doubt in my mind that at the very least the children would have overheard the arguments between their parents before separation in which the father as I find would have played clearly a dominant part.  Notwithstanding this, and the findings of family violence that I have made, the fact is that there is no suggestion the father has ever hit the children or would ever be likely to do so.  Dr D expresses the view that while the father needs to control his impulsivity, he is not a risk to the children. 

The additional considerations section 60CC(3)(a)

1. Both of the children have made it clear that they would wish to spend more time with their father.  It is equally clear, however, that they wish to live with their mother.  Although [Y] has expressed a nascent view as to equal time no one suggests that this is what he really wants.  The children are, in any event, young and their views must be approached with that in mind. 

Section 60CC(3)(b)

1. The children have always been in the primary care of their mother.  They have also an excellent relationship with their father whose current spend time regime necessarily means that he is what the parties have referred to as a good time father.  Unsurprisingly, they have really enjoyed their time with him as he is only, so to speak, the fun time with none of the drudgery that every day life gives rise to.  There is no evidence as to the children’s relationship with extended family members but there is no reason to doubt that these are other than good to the extent that they obtain.

Section 60CC(3)(c)

1. The mother has, of course, made the major decisions about long term issues in relation to the children and been their primary carer.  While the father’s conduct in respect of long term decisions may not have been complete, there is, however, no doubt that he has made every proper endeavour to spend time and communicate with the children and has, indeed, prosecuted his case to judgment. 

Section 60CC(3)(c)(a)

1. The mother’s conduct in this regard is wholly praise worthy.  As the Independent Children’s Lawyer correctly submitted, the father’s conduct in supporting his children has been a major failure.  Indeed, such initiatives as he has undertaken (such as providing groceries) only go to confirm the controlling behaviour that I have found to exist.  His failure to pay any child support when it is clear that he has at least at some times been in a position to do so is lamentable. 

Section 60CC(3)(d)

1. Given the nature of the dispute between the parties which is really only as to relatively minor disputes as to the spend time regime, as counsel for the Independent Children’s Lawyer rightly submitted, this subsection has little work to do.  Plainly any increase of time will be disturbing to the mother who retains vivid concerns about the father’s conduct, but that concern has to be weighed against the fact that the father despite his various failings appears to have the children’s best interests clearly in mind. 

Section 60CC(3)(e)

1. The long journey from Suburb E to Suburb A at the times at which it is likely to be undertaken represents a significant practical difficulty in relation to the children spending time with the father while he continues to live in Suburb E.  There is no meaningful suggestion that the expense presents as any real difficulty.

Section 60CC(3)(f)

1. The mother is plainly well able to look after the children and to provide for their needs.  The father for all his failings appears likewise to be well able to do so.  Dr D has already opined that there are no risks associated with his mental health to make it inappropriate for the children to spend time with him. 

Section 60CC(3)(g)

1. In my view, the lifestyle of the mother and her background strongly suggests that she is well able to care for the children.  The father is in some ways, in my view, immature.  His controlling and volatile personality is a distinct difficulty, but while I have regard to it, it is not decisive bearing in mind the overarching good relationship he has with the children and their eagerness to spend time with him. 

Subsection 60CC(3)(h)

1. This is not relevant.

Subsection 60CC(3)(i)

1. The attitude to the mother of the children is exemplary as is her attitude to the responsibilities of parenthood.  The father’s attitude to the children is to an extent concerning.  There is a strong emphasis in his presentation (what he said and how he said it) that suggests that he needs the children for his own wellbeing rather than an emphasis on the benefit to the children of a relationship with him.  I should make it clear that I do not accept his assertions that the mother has engaged in inappropriate sexualised conduct in front of [Y] or [X] and this brings into play the reservations expressed in the family report were I make a finding to this effect. 

Section 60CC(3)(j)

1. There has, of course, been significant family violence in the relationship as I have found.  Nevertheless, the children still love their father deeply.  What is also, however, an extant result of the family violence is the mother’s understandable and ongoing fear of the father.  It is entirely understandable that she is terrified of him. 

Section 60CC(3)(k)

1. There are, indeed, family violence orders extant in this case but in particular circumstances they add nothing to the other materials referred to. 

Section 60CC(3)(l)

1. It is plainly desirable to make final orders. 

Section 60CC(3)(m)

1. There are no other relevant matters.

2. The orders proposed as to spend time by the Independent Children’s Lawyer are, in my view, generally entirely appropriate.  The fact is that the move to changeover on Mondays will benefit the children who will not have to attend a police station with all the concomitant difficulties that gives rise to, and will accommodate the children’s desire for more time with their father. 

3. I am not prepared to make the orders that the father seeks in relation to Christmas Day.  While he may well have some family tradition, and I would respect that, the fact is that there is both insufficient evidence to support the father’s position which was only put in passing in final submissions and, in any event, there is no reason why the children should not spend time this festive time with their mother and her family where practicable (bearing in mind that they are all in Tasmania and this may be relatively rare).

4. I accept counsel for the mother’s submission that order (11) in its current form is unworkable.  I will simply provide that in the event the father moves within half an hour’s drive of the children’s schools that the time on alternate Wednesdays conclude on Thursday morning. 

5. It should be noted I am not prepared to make an order permitting the father to attend school events generally.  I do not accept that he would be able sufficiently to control himself.  Even his presence would be likely to make the mother extremely uncomfortable.  Otherwise, the orders posed by the Independent Children’s Lawyer are, in my view, entirely appropriate. 

Property issues

1. Here as in so many cases contemplated by the decision of the High Court in Stanford & Stanford both parties do actually want a property adjustment and it is plainly just and equitable there be one.

The pool

1. The pool consists of the net proceeds of sale of the house which are only marginally over $11,000.  The father’s car should not be included in the pool.  It is, effectively, subject to a hire/purchase agreement that the father is still paying off with the considerable assistance of the Company J.  The exact nature of his interrelationship with Company J remains entirely unclear but it does not seem to me he has any equity in his car. 

2. Really the only other assets of the parties are their superannuation in respect of which the mother seeks 100 per cent of the father’s superannuation and the father leaves the matter to the court.

Contributions

1. The question of contribution really has been largely overtaken by the final outcome.  I am quite satisfied, however, that the relatively low net proceeds of the sale of the matrimonial home is very substantially due to the father’s feckless failure to pay the outgoings on the property while he was in possession of it. 

Future needs

1. The mother has the two young children and will have the primary care of them on an ongoing basis with no child support assistance from the father, who owes over $12,000 in this regard.  While the father is substantially older than the mother he is not yet of advanced years and both he and the mother appear to be in unexceptionable health.  The mother has had, in effect, to expend all her superannuation or almost of it on hardship claims not least because of the father’s lack of financial assistance.

1. In these particular circumstances it is plainly just and equitable that the mother receive all of the net proceeds of sale of the family home. 

2. The father’s claim the $4800-odd should be repaid to the skip owners is scarcely even made out on the evidence as it is by no means clear to me that he has actually paid it but whether that is so or not it is a bill that he himself should pay alone. 

3. Turning to the question of superannuation the mother’s claim is, in my view, excessive.  It seems highly probable that most of the parties’ superannuation was accrued during the relationship and there is certainly no evidence that would enable the court to determine how much of that of the father was accrued before the relationship started.  It is true he is coming up to 50 and the mother is much younger.  The mother has had to spend all her superannuation through hardship. The sale value of the matrimonial home, the parties’ sole significant asset, has been significantly diminished by the father’s conduct.  In all the circumstances there should be an equalisation of superannuation.  I do not seem to have up to date figures to enable the equalisation to be calculated, and will hear the parties as to this matter. 

Conclusion

1. In the circumstances where there is so little to divide this outcome overall is, in my view, just and equitable.  I have drawn orders to reflect these conclusions but will give the parties an opportunity to study them in case there is anything I have overlooked.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 12 July 2019