VINEY & RILEY

FAMILY COURT OF AUSTRALIA

VINEY & RILEY

[2017] FamCA 1014

FAMILY LAW – CHILDREN – Family violence – Scope of conduct constituting family violence – Characterisation of risk to the child – Whether risk substantiated – Capacity and willingness to foster a meaningful relationship between the child and each parent
FAMILY LAW – PROPERTY – characterisation of liabilities incurred post relationship

Baker & Baker [2014] FamCA 356

Davey v Lee (1990) 13 Fam LR 688
Rodgers & Rodgers (No 2) (2016) 55 Fam LR 167

Family Law Act 1975 (Cth) – ss 4AB, 60CC(2), 90SF

APPLICANT:

Mr Viney

RESPONDENT:

Ms Riley

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

7497

2015

DATE DELIVERED:

11 December 2017

PLACE DELIVERED:

Canberra

PLACE HEARD:

Melbourne

JUDGMENT OF:

Gill J

HEARING DATE:

18, 19, 20, 21, 22 & 25 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Vohra

SOLICITOR FOR THE APPLICANT:

Kenna Teasdale Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Levine

SOLICITOR FOR THE RESPONDENT:

Boutique Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

The father have sole parental responsibility for the child, the child B, born … 2013 (the child).
the child live with the father.
the child spend time with the mother as follows:
(a)On 11, 14, 18, 21, 25 and 28 January 2018, and 1 and 4 February 2018 between 12pm and 6pm;
(b)Thereafter, from 10am Saturday until 6pm Sunday each alternate weekend commencing 10 February 2018, and from after preschool or school, or if not at preschool or school, from 3pm until 6pm on each Thursday immediately following the Sunday that he has spent time with the mother, until the commencement of the third term of the Victorian school year in 2018;
(c)Thereafter, during school term time from after preschool or school, or if not at preschool or school, from 3pm Friday until the commencement of preschool, school, or if not at preschool or school, 9am Monday each alternate weekend, commencing each term on the weekend following the first day of school for that term, and from after preschool or school, or if not at preschool or school, from 3pm until 6pm on each Thursday immediately following the Sunday that he has spent time with the mother;
(d)From the commencement of the third term of the Victorian School year 2018 order (3)(c) is suspended during each school holiday period;
(e)From the commencement of the third term of the Victorian School year 2018, for half of each school holiday period, being the first half in even numbered years and the second half in odd numbered years,
(i)In even numbered years the time is to commence from 12pm on the first day of the school holiday period and end at 12pm on the Saturday closest to the mid-point of the holiday period;
(ii)In odd numbered years the time is to commence at 12pm on the Saturday closest to the mid-point of the holiday period and end at 12pm on the Sunday immediately before the recommencement of school;
From Christmas 2018, the child shall spend time with the parent that he is not spending time with on Christmas day from 10am on Boxing day until 10am the following day.
The child shall have telephone communication with the parent that he is not staying with, unless otherwise agreed, each Wednesday and Sunday at a time between 6.30pm and 7.00pm.
Changeover for all time between the child and the mother that does not occur at the child’s child care or school shall occur at O Contact Service in Suburb P at equal expense (if any) unless otherwise agreed in writing.
The parties may vary any of the arrangements for the child to spend time with the mother by agreement in writing, which may include agreement evidenced by text message.
The Independent Children’s Lawyer’s appointment be discharged six months from the date of the making of these orders.
The applicant pay to the respondent the sum of $210,426 (the payment) within 90 days.
That contemporaneously with the payment the respondent do all such acts and things and sign all such documents as may be required to withdraw caveats number … and number ...
The applicant otherwise retain, to the exclusion of the respondent, the following:
(a)Q Street, Suburb R;
(b)S Street, T Town;
(c)All shareholdings in his name;
(d)Utility motor vehicle;
(e)All bank accounts in his name or control;
(f)All furniture, chattels and personal possessions currently in his possession; and
(g)All superannuation benefits in his name.
The respondent otherwise retain, to the exclusion of the applicant:
(a)All bank accounts in her name or control;
(b)All furniture, chattels and personal possessions currently in her possession; and
(c)All superannuation benefits in her name
and the respondent indemnify the applicant against any and all liabilities associated with these assets.
That both the applicant and the respondent be responsible for and indemnify the other against all liabilities in their respective names.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Viney & Riley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: MLC 7497 of 2015

Mr Viney

Applicant

And

Ms Riley

Respondent

REASONS FOR JUDGMENT

Background

The parties were in a de facto relationship for approximately ten years, until 2015. They have one child together, the child B, who was born in 2013. Their dispute is as to whom the child should live with and whether he should have a relationship with his father at all. They also dispute how the property of the relationship should be dealt with, although both accept that it is proper that there be some adjustment of the property interests to the benefit of the mother.
The parties met in 2003 and commenced a de facto relationship in late 2005 or 2006. They separated on 16 June 2015. During the relationship the mother was the primary carer for the child, and since the ending of the relationship the father has been spending limited supervised time with the child.
The key issues in the resolution of the dispute between the parties as to what should happen with the child, involve the primary considerations, whether the father presents a risk of harm to the child through exposure to family violence and whether the mother will allow the child to have a meaningful relationship with his father and to receive the benefits of that relationship.
The mother’s case is that the risk presented by the father can be seen in injuries that the child has suffered spending time with the father and in the child’s reactions to that time. She contends that the father uses the child as a means to continue to inflict the family violence that she asserts he visited upon her in the relationship. She says that the violence during the relationship was characterised by sexual assaults, physical assaults and coercive control of the mother and after the relationship by means of harm to the child.
The father’s case is primarily that, while he will support the child having a relationship with the mother, if the child lives with the mother, she will not allow the child to have a relationship with him, despite whatever order the court may make.
The Independent Children’s Lawyer’s (ICL) position, like the father’s, is that the father does not pose a risk of harm to the child, and that if the child lives with the father he will be able to have a relationship with both parents, whereas if he lives with the mother, he will ultimately have no relationship with the father.
In relation to the property dispute between the parties, each accepts that the father’s contributions are superior to those of the mother. For the mother it is put that the father made her contributions more arduous by virtue of the controlling and coercive family violence that she alleges. For the father it is put that he continues to carry debt attributable to defending himself against the mother’s false allegations against him. While a significant factor will be the living arrangements for the child, the father has a greater current capacity to earn income than the mother, in particular given his accounting qualifications and his recently acquired Masters of Business Administration.

Material Relied Upon

At the final hearing the father relied upon the following documents:
·Further Amended Initiating Application filed 7 July 2017;
·His Affidavit filed 7 July 2017 (“the father’s Trial Affidavit”);
·His Affidavit filed 8 September 2017 (“the father’s Reply Affidavit”);
·His Financial Statement filed 7 July 2017;
·Affidavit of Ms D filed 7 July 2017 (who was not available for cross-examination);
·Affidavit of Mr C filed 7 July 2017;
·Affidavit of Mr U filed 6 July 2017;
·Affidavit of Mr V filed 7 July 2017;
·Affidavit of Ms V filed 7 July 2017;
·Affidavit of Mr W filed 15 August 2017;
·Affidavit of Ms X filed 4 September 2017;
·His Outline of Case filed 15 September 2017.
The mother relied upon the following documents:
·    Her Amended Response to Initiating Application filed 24 July 2017;
·    Her Affidavit filed 24 July 2017 (“the mother’s Trial Affidavit”)
·    Her Financial Statement filed 24 July 2017;
·    Affidavit of Mr Y filed 24 July 2017;
·    Affidavit of Mr Z filed 24 July 2017;
·    Affidavit of Ms AA filed 24 July 2017 (save for [5]-[56], part of [58] and [59] which were struck out prior to the commencement of the trial);
·    Affidavit of Mr BB Riley filed 24 July 2017;
·    Affidavit of Ms CC Riley filed 24 July 2017;
·    Affidavit of Ms DD Riley filed 24 July 2017;
·    Her Outline of Case filed 14 September 2017.
The Independent Children’s Lawyer relied upon the following material:
·    Sections 67, 67ZA Department of Human Services report (although referred to in the ICL’s outline of case, this material was not tendered in the case and so does not form a part of the evidence to be considered);
·    Affidavit of Dr F filed 17 August 2017;
·    Family Reports of Mr K, clinical psychologist dated 9 December 2015 and 22 August 2017.

Proposals

Father’s proposals

At the commencement of the trial, the father sought orders as set out in his Case Outline as follows:
1.The Father have sole parental responsibility for the child [B] born … 2013 ("the child").
2.the child live with the father.
3.the child spend time and communicate with the Mother as determined by the Court and to be particularised after the evidence of the professional witnesses. This crystallised at the end of the trial into a proposal that the child should not see his mother for a month or two, in order to allow the child to establish a primary carer relationship with the father.
4.Changeover for all time between the child and the Mother occur at the O Contact Service in Suburb P at equal expense (if any) unless otherwise agreed in writing.
5.The Applicant pay to the Respondent the sum of $50,000 (“the payment”) within 60 days, with the payment to be adjusted to reimburse the Applicant for expenses paid on behalf of the Respondent during these proceedings and for the costs Order made against the Respondent on 25 November 2016.
6.That contemporaneously with the payment the Respondent do all such acts and things and sign all such documents as may be required to withdraw Caveats numbered … and number ...
7.The Applicant otherwise retain, to the exclusion of the Respondent, the following:
(a)     Q Street, Suburb R;
(b)    S Street, T Town;
(c)    All shareholdings in his name;
(d)    Utility motor vehicle;
(e) All bank accounts in his name or control;
(f)    All furniture, chattels and personal possessions currently in his possession; and
(g)    All superannuation benefits in his name
and the Applicant indemnify the Respondent against any and all liabilities associated with these assets.
8.The Respondent otherwise retain, to the exclusion of the Applicant:
(a) All bank accounts in her name or control,
(b) All furniture, chattels and personal possessions currently in her possession; and
(c) All superannuation benefits in her name
and the Respondent indemnify the Applicant against any and all liabilities associated with these assets.
9.That both the Applicant and the Respondent be responsible for and indemnify the other against all liabilities in their respective names.
10.That the Respondent pay the Applicant’s costs in these proceedings.

The mother’s proposals

At the commencement of the trial, the mother sought orders as set out in her Amended Response to Initiating Application filed 24 July 2017 as follows:
1.That the Mother have sole parental responsibility for the child [B] born … 2013.
2.That the said child live with the Mother.
3.That the said child spend time and communicate with the Father be reserved.
4.That the Father do all acts and things that are necessary to transfer the property at [Q Street, Suburb R] to the Mother forthwith.
5.That the Father pay the Mother the sum of $350,000 within 3 months.
6.The Father pay the Mother the sum of $406.95 per week in spousal maintenance for 2 years.
7.That the Family Court make a departure order that the father pay child maintenance in the sum of $395 per week plus pay all medical expenses, maintain private school fees and all school fees.
8.That the Father pay the Mother's costs of and incidental to this Application.
When pressed at the commencement of the trial as to order 3 and the meaning of “reserved”, counsel for the mother clarified that the mother sought that there be no contact and that no order be made for the father to spend time with the child. The application for a departure from the administrative assessment for child support was not pressed.

The Independent Children’s Lawyer’s proposals

The ICL expressed a preliminary view, as set out the Outline of Case dated 15 September 2017, that the child live with the father and that he have sole parental responsibility for the child. In the event the child was to live with the father the ICL had a tentative view, that the mother’s time with the children be strictly supervised by a professional agency for a period of time before the commencement of any extended unsupervised time.

Parenting proceedings

The key factual issues identified by the parties to be determined in the parenting proceedings relate to the allegations of family violence levelled against the father by the mother, being sexual and physical violence, coercion and control, and abuse of the child by the father. The key issues are also whether the mother will allow a relationship between the child and the father, as informed by the mother’s history of non-compliance with orders and the significance of making the allegations of family violence if said allegations are not accepted.

Sexual violence allegations

A key point of contention within the case relates to allegations made by the mother that the father has sexually assaulted her on a number of occasions. She says that in 2008 there were three occasions where he had intercourse with her while she was asleep, under the influence of sleeping tablets. She says there was a further incident in Christmas of 2014 when the father groped her genitals and then, after she was asleep following consuming a sleeping tablet, had intercourse with her. She finally alleges that in March 2015 she woke, finding herself gagging, with the father having his genitals in her mouth while she was asleep. The father denies each of these allegations.
These matters are significant for a number of reasons. If the mother is correct in her allegations, then that provides a strong explanation for why she would be mistrustful of the father and concerned about his capacity to parent. Each example, if true, constitutes a strong example of family violence upon the mother. The history of family violence is relied upon by the mother to suggest that the father, in seeking to continue to behave in a controlling and coercive manner towards the mother, is now using the child as the means to do so. Finally, if the mother is correct in her assertions, then this has the capacity to amend the diagnosis made of the mother by Dr F. In the event that these allegations are true, he says that there is an impact upon his diagnosis of a Borderline Personality Disorder and the potential need to introduce a diagnosis of post-traumatic stress disorder.
In relation to the 2008 allegations, the mother says that there were three occasions on three sequential nights. The mother had been prescribed sleeping tablets. After taking the first sleeping tablet and waking in the morning she says that she had wet underwear, “could feel something had happened” and had a sore vagina[1]. This caused her to ask the father whether they had sex. He replied that they had not and she believed his response. It is noteworthy that the particular context of this response is that the mother accepted that on a number of occasions she would consume alcohol to the extent that she did not recall the parties having sex. In those circumstances she would ask the father whether or not they had sex and he invariably would tell her the details of their sexual activities that she was then unable to remember. That is, there appeared to be no reticence on his part in explaining sexual conduct or describing sexual conduct that the mother could not recall. This is not a pivotal matter, however, as there is a significant difference between sex that is consented to but not recalled as opposed to sex that is not consented to because someone is unconscious.
[1] At [10] of the mother’s trial affidavit dated 24 July 2017.
The following evening the mother says that she again took a sleeping tablet and awoke to wet underwear and the feeling that something had happened. Again she asked the father whether or not they had intercourse. He again said they did not. On this occasion she asked him to swear on her life. He, according to her, did so. On the following evening the mother again took a sleeping tablet and awoke with wet underwear and the feeling that something had happened. On this occasion she insisted that the father swear on his grandmother’s life. She says that he did not do this which she took to be an admission on his part. She immediately began verbally abusing and berating him and subsequently he apologised, although the terms of the apology and what was being said by the father were not given by the mother.
It is not apparent that either the apology while being abused or the failure to swear on his grandmother’s life constitute an admission. There is no evidence as to the particular significance to the father of swearing on his grandmother’s life nor the extent of the verbal abuse that resulted in an apology from the husband, nor what the apology was voiced to be for. There was a dearth of cross-examination of the father in relation to these matters. There was no cross-examination of him to the effect that the failure to swear on his grandmother’s life or the subsequent apology constituted some form of consciousness of guilt on his part. The evidence surrounding these assertions does not enable me to find that an admission was made.

Subsequently, about two weeks later, the mother moved out from the home that they were sharing. The father assisted her in this move. This sequence of events sits ill with the mother’s repeated assertions that the father controlled her to stop her leaving so that she would not divulge the secret of his sexual abuse of her. In contrast, it appears that he put her into a position, by assisting her to move out, where no such control was effectively able to be exercised. The mother, in her explanation for moving out, indicated that the reason did not relate to the alleged sexual abuse but rather related to the fact that the father would not ask her to marry him.
The mother says that in June of 2014 she made an allegation to the counsellors that the parties were jointly attending at the EE Institute. The father denies that such an allegation was made. No records were produced by the Institute to support the making of the allegation.
The mother says that this is a matter that was subsequently raised with Dr GG of the Mother and Baby Unit at FF Hospital who, on her account, did not take the matter seriously.[2] She says there was a conversation with him about sleeping tablets and that she told him that she could not take them because the last time she had, the father had raped her. The father disagrees as to the terms of the conversation but agrees that on the question of having sexual intercourse while the mother was under the influence of sleeping tablets, Dr GG said to him something along the lines of “you can’t do that mate”. There was no evidence that the father admitted having intercourse with the mother while she was unconscious. The father’s evidence as to the conversation with Dr GG was as follows:
[2] At [19] of the report of Mr K dated 9 December 2015.
MR LEVINE: And did [Ms Riley] state (to [Dr GG]) that she can’t take them (sleeping tablets) because, “The last time that I did, he raped me”?‑‑‑No, she didn’t.
And then [Dr GG] said, “You can’t do that, mate.” Did that conversation occur?‑‑‑There was a conversation where he – she basically said it had – wasn’t specific in relation to the sleeping tablets, but she raised the allegation with [Dr GG], to which [Dr GG] did say something to the effect of, “You can’t do that,” or “You can’t do things like that,” or something along those lines. He did say “mate”. I remember that. And I – I said, well, I don’t – “It didn’t occur so that’s fine.” I denied the allegation to [Dr GG].
Now, when you state that – firstly, what – you state that an allegation was raised. What allegation do you say was raised with [Dr GG]?‑‑‑That I had had sexual intercourse with [Ms Riley] while she was under the influence of sleeping tablets.
Okay. So that allegation was made to [Dr GG] at the time in your presence. Correct?‑‑‑I’m sorry, say that again. It was made in the presence of [Dr GG]?
It was made to [Dr GG] in your presence. You were there?‑‑‑Yes, that’s correct.
And [Dr GG] said words to the effect, “You can’t do that, mate”?‑‑‑Yes. It was something along the lines of, you know, “You can’t do things like that, mate,” or something like that. But – on the assumption that it was true.
Okay. Now, you have sworn an ‑ ‑ ‑
HIS HONOUR:   Just stop for a minute. So the conversation was about having sex with her while she had a sleeping tablet. That’s what the conversation was about, was it?‑‑‑It was. But there was no admission or any determination that that had occurred.
MR LEVINE:   You see ‑ ‑ ‑?‑‑‑And certainly no admission from me.
HIS HONOUR:   So I thought that you had earlier accepted that you had sex with the mother, not while she was asleep but after she had taken a sleeping tablet?‑‑‑I said there was a potential that I had, yes. I was unaware as to when she had or hadn’t taken them. On occasions she did mention to me that she had. On most occasions I would assume she probably didn’t.
On this account there was a raising of the allegation by the mother, in advance of any court proceedings. This is reflective of the belief formed by her in 2008 that the father had sexually assaulted her, a belief formed when he declined to swear on his grandmother’s life that they had not had sex. However, there was no admission by the father as to a sexual assault.
Dr GG then prescribed sleeping tablets for the mother in November 2014. The mother took those tablets on the basis that the father would be available and could be trusted to care for the child while she was incapacitated by the sleeping tablets.
The mother says that one of the occasions that she took a sleeping tablet was Christmas day 2014. She had been drinking, took a sleeping tablet and told the father that she had taken a sleeping tablet. In her affidavit evidence she thought that the father had sex with her while she was asleep. After waking, she asked him to swear on the dog’s life that he had not. Giving a different account in her oral evidence, the mother said that she woke to find the father having sex with her and she pushed him off, saying “stop it, don’t do that.” This constituted a significantly different account that undermines her assertion.
The mother said that she then initiated sex with the father the next morning. She said that she did not call the police as she wanted to protect the father (despite the fact that two days earlier she had been threatening to call the police on the father because of an argument that she regarded as insignificant). She further suggested that she did not call the police because things had been going well with the father. However, her evidence was that she had been threatening him with the police two days earlier, and had kicked him out of the house. The mother’s behaviour sits uncomfortably with her allegation. Accepting that people may not call police for a number of reasons under such circumstances, her patently untrue explanations of why they were not called undermines her allegation at this point.
The mother further alleges that in March 2014 the father sexually assaulted her while she was sleeping. She alleges that she awoke with his genitals in her mouth. The father was not cross-examined as to his denial in relation to this matter.
The mother said that the father made admissions as to his behaviour. In March of 2015 she alleges that he made an admission to a Mr HH who was a psychologist who had some dealings with the parties. She alleges that she told Mr HH that the father should be locked up for two years because he had raped her. The father was cross examined about this conversation.
MR LEVINE: And in relation to one of them, my client has deposed in her affidavit that she, in early 2015 – that she said:
[Mr Viney] should be locked up for this. He has broken his intervention order. He raped me. He should be locked up for two years.
Did she say that to [Mr HH]?‑‑‑Something of that nature but not that direct.
Okay. Then [Mr HH] said to you:
Is that what it was? Was it rape?
Do you recall that?‑‑‑I recall him asking a question similar, yes.
Then you said – you shifted in your chair and you said, “Yes.” Is that correct?‑‑‑That’s completely inaccurate.
Okay. What do you say you said?‑‑‑I didn’t answer the – I – I said to him, “You know, she alleges that this occurred but I – I don’t agree.” Something of that nature.
No evidence was taken from Mr HH about the admission that the mother alleges. The mother has apparently lodged a complaint in relation to Mr HH, in part for a failure on his part to file note such a conversation. I do not know the details of how this complaint was resolved, nor whether Mr HH has at any stage accepted that an admission was made. Although at one stage the mother thought that the father may have ‘paid off’ Mr HH, she did not now assert that to be the case. While it is clear that the mother has again made an assertion of sexual assault, I am unable to conclude that the father has admitted such behaviour.
At the wedding in June 2015 the parties attended immediately prior to the end of their relationship, the mother told Ms V that the father had raped her.[3] At this stage the mother had told the father she was leaving him (the circumstances being detailed later). There was no evidence from the mother as to why she made the assertion at this point.
[3] At [59] of the report of Mr K dated 9 December 2015.
On each of these later occasions of alleged sexual assault, the mother had the Interim Intervention Order (IVO) that she had otherwise used to exclude the father from the home on various occasions, including in relation to what she described as an insignificant argument. She did not use it on these occasions despite the allegation that she now makes of sexual assault.
A further matter that the mother brought to bear on the question of sexual assaults was the father’s deletion of messages from her phone. The father accepted that he had deleted some messages (the mother says three to six messages) in 2015. The father says he did so out of fear that they would be used to unfairly implicate him. It is not clear what they would have implicated him in and the mother has not outlined her assertion of what it is that the messages represented. It has not been put that they were admissions in relation to sexual conduct towards the mother. Further, in a context of the mother not setting out the content of the messages, she was asked by the police to provide the relevant telephones to the police to enable them, as part of the sexual assault investigations, to attempt to extract the texts from the telephones despite the deletion of the texts. The mother declined to hand the telephones over to the police, indicating that she wished to have the telephones examined by a privately engaged expert. From June to November 2015 the mother declined to hand the telephones over to the police. Her explanation was that she was worried about things going on with the police, which I infer to be a suggestion that there was a risk that the police may be incompetent or corrupt in their dealing with the telephones. Eventually the telephones were handed over to the police by the mother. The reluctance to hand over the telephones coupled with the failure to identify the terms of the messages means that it would be unsafe to draw a conclusion that the messages constituted admissions to sexual assault on the part of the father.
Examining the circumstances of the complaints of sexual assault from 2008, there is too fragile a basis to accept that acts of sexual intercourse took place. The father denies that they took place. The mother’s basis for the allegations is that she felt that something had gone on, had soreness and found her underpants to be wet. While those sensations may be consistent with sexual intercourse taking place, in the terms that they have been represented they do not show that sexual intercourse took place. What the mother took to be definitive, her inference of implied admissions on the part of the father, should not be taken to be implied admissions on his part. The father has denied the conduct. I do not accept the father sexually assaulted the mother in 2008.
Given the various weaknesses in the accounts of sexual assault post-2008 otherwise identified above, I am not prepared to accept that any of the allegations of sexual assault are true. The observations regarding the mother’s assertions of sexual assault also cause me to be cautious generally in relation to her credibility.

Controlling or coercive behaviour

In addition to allegations of physical violence, the mother alleges that the father engaged in various forms of controlling behaviour that she characterised as family violence.
The term “family violence” is defined at s4AB of the Act as meaning:
Violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Although the definition gives some indication as to the quality of the behaviour by the use of the terms “violent” and “threatening,” the categories of behaviour are not closed. The critical aspect of the definition is that it is directed to behaviour that is controlling, coercive or engenders fear.
Accepting that the definition of family violence goes well beyond physical assaults to encompass behaviours that, absent context may appear innocuous, but in context may be examples of coercion or control, the mere assertion that the conduct has the quality of being coercive or controlling does not make it so. It is necessary that the evidence, particularly where the behaviour may bear an innocuous explanation, be sufficient to allow a characterisation of coercion or control.
By way of example, a pattern of disagreements and criticism can form controlling or coercive behaviour. Whether they do or not must be derived from consideration of their form, intensity, context and the impact upon a person. The mere fact of disagreement or criticism does not automatically equate to family violence.
The mother accused the father of exercising control over her in relation to how tasks were completed around the house. She complained that he was critical of how much she fed the dogs and, when she adjusted the amount, was still critical. This evidence was given in a general fashion, and was not the subject of any cross-examination of the father. It was not possible to characterise it as an attempt to control as opposed to an example of disagreements between the parties on how much the dogs should be fed. For example, no material was provided to demonstrate a degree of unreasonableness in the disagreement, or as to the tone of the disagreement, such as to allow it to be characterised as coercive or controlling.
A complaint was made that the father’s re-arranging the linen in the linen cupboard or re-organising of grocery shopping in the cupboard was also a form of control. While such behaviour (if found to have occurred) could potentially be a part of relevantly coercive or controlling behaviour, the generalised nature of the evidence and the potential for the conduct being explained by the father being particular rather than controlling (supported perhaps by the fact that he was accused of redoing these chores rather than forcing the mother to), mean that it would be a significant leap to characterise the behaviour as relevantly controlling.
The mother also complained that the father yelled at her regarding dropping some small amount of food on the floor, in a context where the dogs were eating bones on the floor. Again, dependent upon frequency, and context, particularly with how it combined with other behaviour, this is a matter that may or may not be characterised as coercive or controlling. The evidence was not given sufficient context to allow such a conclusion to be drawn.
The mother also complained that the father had been controlling in a relevant manner by criticising her manner of dress and referring to her as “cheap” or as a “slapper”, and by not wanting her to speak to a particular male friend of hers who had said that he was interested in her. Again, in order to find that these are relevantly controlling or coercive behaviours, evidence would need to be led that allowed a proper assessment of the conduct. The generalised nature of the evidence did not allow that to occur.
Some focus was given to conduct by the father when the parties argued, where he would follow the mother when she walked away from the argument. This was behaviour that he said he tried not to engage in, but accepted that he did, in spite of advice from professionals not to do so. Such conduct could have the capacity to be coercive or controlling, but does not necessarily have that characteristic. Without more context there is insufficient to allow this to be characterised as coercive or controlling.
One specific example of this conduct is the incident that was the precursor to the mother obtaining an IVO against the father in May 2014. In that incident the parties argued, and the father following the mother from the room where he had put the child on the bed. The child rolled off the bed. The ambulance was called and the ambulance operator called the police who met the parties at the hospital and obtained the IVO against the father. Exhibit F7 records what appears to be the mother’s account to the police regarding what had occurred that evening. There were no threats of violence or assaults, and the mother had walked away from the father mid-argument. She was described as having “continued to bait (the father) some more.” The mother then reported that she found the father to be controlling. The particular description of this incident does not establish that the conduct was relevantly controlling or coercive.
While the parties disagreed over whether this was the same occasion (nothing in particular turning on whether it was or was not the same occasion), the mother identified an incident where the father video recorded her while she was in the shower. He accepted that he had done so, but explained that he had done so because of previous fits that the mother had, and advice that he should record those for medical assessment. His evidence was that the mother had previously entered into a trance-like state following arguments which he thought were the precursor for a fit. On this occasion the mother was seated in the shower and he thought that she was entering into such a state. He said that despite the fact that she was in the shower he recorded her in a manner not to be revealing. I am unable to determine that this incident constituted family violence.
The mother generally alleged physical violence by the father in assaulting her so that her head struck objects. The evidence was generalised. The father denied this conduct. I am unable to conclude that these incidents occurred, particularly given the reservations I have about the mother’s credibility.
Ms AA, the father’s aunt, but a close supporter of the mother, gave evidence of calls she received during the parties’ relationship, on occasions where the mother wished to leave him. She described the father as hysterical, wanting to change the mother’s mind. One occasion involved the father with-holding the car keys from the mother when she wanted to leave. Ms AA’s evidence was that she told the father that he must hand over the car keys or else he would be in breach of his IVO. The father disputed that such a conversation had taken place, although he accepted that at least a conversation had occurred where Ms AA had told him that if he prevented the mother from leaving it would be a breach of the IVO. Ms AA’s evidence leads to the conclusion that there was an instance that involved the father preventing the mother from leaving in the context of an argument. This incident can be considered to be controlling, but would only gain significance if combined with sufficient other instances.
In August 2012 each party agrees that an incident occurred between them at the football club. The parties argued in relation to the mother’s sister. At [15] of the mother’s 24 July 2017 affidavit the mother says that the father grabbed her and threw her against the wall, causing her to hit her head. This is not a matter addressed within the father’s affidavit material, although he denied it in his oral evidence. The father says the argument was because he was concerned that the sister had consumed alcohol and left the club with a man that they did not know. He says that the mother was dismissive regarding his concerns. He says that he was concerned for the sister’s safety. The mother says that the father assaulted her. If he had, the cross-examination of the mother revealed that it would have occurred in a very public place, outside the front doors of the club that had many people they both know inside. Ms CC Riley, the mother’s sister, gave affidavit evidence regarding this incident. She reports that the mother was crying and very distressed and told her that the father had physically harmed her and that she feared for their safety. This early report to her sister (who was not cross-examined on this matter) adds credence to the mother’s account. I accept that the father, physically hurt the mother on this occasion.

The mother alleges that the father accessed her Facebook account. No evidence was produced in support of this assertion. However, the father produced evidence showing the mother had accessed his Facebook account; including to post on his Facebook account in 2007 the description of the father as “a lying fuckhead prick.” The dated nature of this post gives it little significance.
Undermining the mother’s assertions that the relationship with the father was one characterised by control and coercion on his part, were the Viber messages between the mother and father during the relationship as produced by the mother. A number of these included requests by the father for the mother’s permission to stay out late at functions. While the mother asserted that there was no requirement for her permission, the fact of the requests undermines to a limited degree the notion that the father was behaving in a manner controlling of the mother.
The mother accepted that, with the benefit of the IVO, there were four or five occasions when she insisted that the father leave the home, which he did. One particular example was 23 December 2014 (shortly before one of the mother’s assertions that the father sexually assaulted her). The mother asserted that she had insisted that the father leave the home following an argument about something that was inconsequential. She annexed a series of messages from the father pleading to be let back into the home, and indicating that he climbed over the roof to try to get access through the back door. The father fairly points out that it meant that it was the mother who was able to, and did, exercise control. She demanded that he leave and he left. This counters the notion that the father was controlling of the mother. However, the message shows a high degree of insistence on the part of the father to seek re-entry after being asked to leave. The insistence may have been with the intention to control. If so it was not effective. On balance, this behaviour is to be characterised as controlling, even if ineffective.
The mother alleged that post-separation the father mistreated her pony in order to punish her. She annexed newspaper articles to support this contention. The father annexed veterinary reports that countered the notion that he had failed to care for the pony. I am not prepared to find that the father used the pony as a means to control or coerce the mother. In any event, the pony belonged to the mother and so it was not made clear why the father bore the responsibility to care for the pony, although it is apparent that he did.
In summary, although there is an instance of physical violence by the father to the mother, and two instances of attempts to control by the father, the interaction between the parties cannot be characterised as controlling and coercive. It is necessary that the instances are acknowledged by the Court, however they do not carry significant weight in assessing the parties and the relationship between them. They do not mean that the child’s exposure to the father would bear any significant risk of exposure to family violence, nor to the harm that could flow from such exposure.

The wedding incident

The parties finally separated following attending a wedding at N Town in June 2015. The day after attending this wedding the mother obtained an ex parte IVO removing the father from the home.
There are a number of aspects of significance to the wedding incident. The first is that the mother alleges that the father drove to the wedding in a manner to deliberately endanger them. The mother did not identify any particular aspects of the driving that showed such intent, but relied on a general assertion. She accepted that the father often drove quickly, particularly if running late for something, as he was on the day of the wedding. She accepted that he eventually slowed down at her request, after she had suggested people from the wedding might see his driving. Given general reservations about the mother’s credibility in describing the conduct of the father I am unable to conclude that he was driving in a manner to deliberately endanger himself, the mother and the child.
While at the wedding the mother discovered that the father had visited strippers on the buck’s night for the groom. She said that she was not troubled by the visit to the strippers (having organised strippers for a football event herself), but was troubled by the father lying to her about it. Shortly after discovering this the mother returned to her accommodation with the child, with the father remaining for the reception as he was the master of ceremonies. Annexed to the father’s affidavit are the texts between the parties, including the mother telling the father that their relationship was over. During the text exchange the mother suggested to the father that the compensation for his lie could be to pay for a Queensland holiday. There is nothing in the texts that reflects the mother’s assertions of being afraid of the father, or of being under his control. The content of the mother’s texts are abusive, the father’s conciliatory.
The father, notwithstanding the texts, returned to their accommodation that evening. He arranged for food to be sent to the mother. He says that the next morning the parties had sexual relations, which the mother denies. No finding is available about this particular matter.
The mother did not attend breakfast with the father, although they together went on a walk with the child before leaving the venue. It was on this walk that the mother alleges the father threatened serious harm to the child, in a manner that traumatised her. She described her level of trauma in extreme terms, saying that she was beside herself. The first aspect that she was concerned about was the father taking the child across a wooden bridge that she did not consider safe. Photographs of this bridge are contained at Exhibit F1. The bridge is unremarkable, presenting no likely risk. The mother accepted at trial that there was no reason for her to have been concerned regarding the bridge. If she was as concerned as originally indicated, hers was a complete overreaction, alleging an endangering of the child where there was no reasonable basis to do so. If her expression of concern was exaggerated then her credibility is further called into question.
On the father’s account he then wheeled the child through the air like an aeroplane, and jokingly threatened to throw the child into a dam. The child, on the father’s account, displayed no upset at this game, but enjoyed it. On the mother’s account the father used an “ordinary voice” when telling the child that he was going to throw him in. In these circumstances there appears to be no reasonable basis to see this behaviour as threatening. She asserts that she was terrified and that the child was screaming. The father denies that he was screaming. The mother asked the father to give the child to her. On her account he put the child down and they walked back holding his hands.
On the mother’s account this was a highly traumatic incident both for her and the child, creating a genuine fear on her part that the child would be thrown into the water and drowned. If the mother was traumatised in the manner she suggests, this trauma was not apparent to anyone who dealt with her that day. The father did not observe it. No other guests from the wedding apparently observed it. The friends who were visited on the way home did not see it. It did not interfere with the parties visiting display homes together on the way home.
I do not accept that the father either placed the child in danger nor that he threatened harm to the child.
The next day the father underwent planned surgery. Despite what the mother described as a traumatic event the previous day, she brought the child into the hospital and visited the father. She and the child were planning to return to visit the father again later that day, until she discovered that the father’s parents were visiting. This, she considered, represented further lies on the part of the father as he had told her previously that they did not know that he was to be in hospital and so would not be visiting. The mother then attended the police to obtain an IVO against the father, although she continued to message the father, including with pictures of the child. She did this, she said, to ensure that he did not leave the hospital and come home. After returning home the next morning the father was served with the IVO.

Invitation by the mother after obtaining the IVO

After obtaining the IVO the mother invited the father to her home for the child’s birthday.[4] She said that she did this despite being desperately scared of the father. She told the father it would be her and the child, however she told the court she intended to invite her father as well, although she had made no arrangements to establish that her father would have been able to be there. Her explanation for doing so, in the face the IVO and in the face of the history that she recounts, was that she had received advice that the Court would not view an application for sole parental responsibility favourably and might consider her to be vindictive. Given that the IVO was in place the father did not attend. The mother followed up his failure to take up her offer by asserting to the father that he was hurting the child by not coming. His solicitors responded suggesting that, because of the IVO, the time with the child should be supervised by someone other than the mother. The mother refused.
[4]At [25] of the report of Mr K dated 9 December 2015.
The next day the mother emailed the police to follow up on her complaints regarding the father. She told the police that their inaction made her feel that she had been raped all over again.
This sequence of events, particularly in a context where I do not accept that the father sexually assaulted the mother, further undermines the mother’s assertions of fear of the father.
The father was subsequently charged with numerous criminal matters, including sexual assaults upon the mother. Almost all charges were discontinued, save for three breaches of the IVO to which he pleaded guilty. Those breaches were set out in his affidavit of 8 September 2016 at PJV-1and relate to three breaches of the IVO by sending messages to third parties, asking them to tell the mother variously that he had not been near their house, that a friend who had a terminal illness had died, and that he wanted to see the child and get the coat for the mother’s pony so that it was not cold. The breaches are innocuous. They display no hostility, nor aggression, nor threat to the mother. They constitute breaches of the IVO, but not an attack upon the mother. No convictions were recorded for these breaches. In response to these the mother prepared a Victim Impact Statement, at PJV-2 of the father’s affidavit of 8 September 2016. Although the mother said that this was not ultimately the Victim Impact Statement that was tendered, which she asserted was a shorter version of this one, this still constituted a Victim Impact Statement prepared by her for the sentencing of the father. Accepting that family violence is insidious and corrosive, the Victim Impact Statement in this case appears highly exaggerated.

Abuse of the child during the relationship

The mother alleges that the father acted in an emotionally harmful manner to the child during the relationship. When asked how the father had been emotionally abusive to the child prior to separation, that is, when the child was aged 19 or 20 months, the mother identified two incidents. The first was that when the child was about 15 months old the father tore up paper that the child had been drawing on and held the child’s hand so that he would colour in within the lines. The second was that the father accused the child of not trying when he was playing a game on the iPad. The mother characterised these as instances of emotional abuse of the child. Whether or not these constituted an age appropriate understanding of the child, it has not been shown that they constitute emotional abuse.

Incidents alleged regarding the child between the two K reports

Between the two reports being prepared, that is, between 9 December 2015 and 22 August 2017, there were a number of incidents alleged by the mother, relating to allegations of injuries to the child, to disruption of and perceived behavioural changes in the child, and to things that the child has said. The mother, at [34] of her trial affidavit sets out problems that she says have accompanied the child spending time with the father.
On the issue of the disruption to the child, involving changes in mood and rude comments to the mother, Mr K thought that the behaviour described by the mother were not necessarily attributable to the contact that he has had with his father. He thought that the mother’s interpretation is influenced by her lack of trust of others with the child.
In relation to allegations of injury, the mother took the child in May 2015 to see the Victorian Police because of marks that she said appeared on the child during his time with his father. She thought that the father had tried to strangle the child because he was angry regarding child support issues. At about this time she said that he was assessed to pay $1800 per month and to make back pay, providing him, she thought, with motive to harm the child. Little evidence was led regarding this incident, the most prominent source being from the report of Mr K where he referred to records from the Victorian Police. These recorded that the child was observed by Detective Senior Constable Ness, who could not determine any obvious marks or injuries. The child was then apparently seen by Dr JJ who considered that the marks were not of concern. The police records indicate no obvious injuries.
Ms AA refers to an incident at the Suburb M hospital regarding bruising to the child’s neck. She asserts that the doctor there suspected the injuries were non-accidental. However, Ms AA asserted this to have occurred in May 2014 which, if correct, was before separation. Even if the date was mistaken, and this was a reference to May 2015, the essential evidence from the treating doctor or attending hospital was not produced. Little if any weight can be placed upon Ms AA’s description of an opinion by an unnamed doctor.
On 15 May 2016 the mother took the child to hospital following a visit with the father. She is recorded (Exhibit F9) as telling the hospital that she has a “gut feeling” that the father may be harming the child and enquired about drug testing. The basis appears to be that while in her car, after pickup, she observed the child to be rolling his head around, eyes rolling, which she thought was like coming out of an anaesthetic. The mother commented that one week prior the child had markings on his neck. She later asserted that the Suburb M hospital assessed those injuries as non-accidental. No hospital records were tendered in support of this assertion.
In relation to further injuries, the mother said that since November or December 2016 she has been taking pictures of the child’s arms, legs and face before each time he is to see his father, and then taking pictures to show injuries after such times that he is returned hurt. Despite alleging multiple occasions of the child being injured or marked in some way since that date, the mother has not provided the pictures that she has said that she took for the very purpose of documenting the injuries.
The mother says that, since December 2016 the following injuries have occurred:
a)On 1 December 2016 the child was returned with holes in his pants and cuts to his knees. The child said that he had been dropped. The mother accepted that this was accidental.
b)On 12 December 2016 the child returned with cuts, bruises, hives and a red mark, but said that he “can’t talk to” the mother when asked what had happened.
c)On 22 December 2016 the child returned with bruises to his legs, hips and a red bump on his face.
d)On 15 January 2017 the child returned with hives, rashes, scratches, bruises and a swollen eye.
e)On 29 January 2017 the child returned with bruises to his neck.
f)On 2 February 2017 the child was returned with hives and scratches.
g)In February 2017 the child was returned with toilet paper in his bottom.
h)On 26 February 2017 the child was returned with bruises to his thighs, legs and back, and eczema on his face.
i)On 27 February the child was returned with eczema and hives to his face.
j)On 20 April 207 the child was returned with marks to his leg and shoulder.
k)On 23 April 2017 the child was returned with red marks on is arms, back and torso and dried blood in his nose.
l)On 30 April 2017 the child returned with hives.
m)On 7 May 2017 the child returned with a head injury. The child had a seizure that resulted in the mother taking him to the Suburb KK Hospital. Exhibit F4 shows that the supervisor, Mr C, notified the mother that the child had fallen over while playing at the park and had bumped his eye. Although available for cross-examination, no questions were put to Mr C to suggest anything had occurred other than as reported by him to the mother. The mother was recorded as attending the hospital with the child (Exhibit F5), with the child having bruising and swelling inferolaterally under his left eye and multiple other bruises on his body. No significant difference is identified between what was reported by Mr C and what was observed by the hospital. Exhibit F5 are Emergency Department records from 9 May 2017, indicating febrile convulsions, but also suspicious markings on earlier presentation (presumably in relation to Exhibit F4). The mother denies that they were febrile convulsions, on the basis that no infection was detected and the child was not running a temperature at the relevant time. She accepted that the child was running a temperature at the time of his arrival at the hospital, but asserted this was caused by the convulsions, rather than causative of the convulsions. No expertise was advanced by her in relation to these assertions. Mr Z, who described himself as a friend of the mother’s, asserts that on collection he observed a red mark on the child’s neck, and when the then supervisor, Ms D, said that it was there on arrival, Mr Z asserted that to be a lie. The red mark does not feature in the hospital records.
n)On 27 May 2017 the child returned with a red mark and bruises to his back, arms, wrist and elbow.
o)On 11 June 2017 the child was returned with bruises to his arm, bottom, shoulders, legs and other marks and scratches.
p)On 12 June the child had marks on his wrist and shoulders.
q)On 16 July 2017 the child had a blood nose and what the mother describes as a stress rash.
When taken again for observation in relation to potential injuries in June of 2017, the bruising claimed by the mother to the torso and to the child’s legs was not observed.
Mr Z also asserts that on numerous occasions the child returns from time with his father with “marks, bumps and bruises to all parts of his body.” There was minimal description of these to allow any inference to be drawn as to their character. He further asserted that the child alleged that his supervisor was not present, by virtue of the child saying “no, she goes” in response to the question of whether Ms D was with the child all day. It is unclear whether this means that Ms D left wherever it was that the child and his father were, or simply that she was not in the same room at every point.
Given the failure of the mother to lead evidence that she says she obtained to demonstrate injuries suffered by the child, her evidence of the extent of the injuries should be approached with some caution. According to the mother she had the capacity to show that the child was not injured when he left to spend time with his father, and the extent of the injuries on his return. Her case is that the father uses the child as a weapon against her, harming him in order to harm her. It was incumbent upon her, if that was to be her case, to present the material that was within her power to present to support the proposition that the father was deliberately injuring the child, or at least not caring for him. Absent an understanding of the extent of the alleged injuries, there is little reason to infer that the injuries alleged by the mother represent either deliberate harm to the child, or represent a failure to adequately care for the child. This is particularly so where the father has been subject to supervision through this time and one of the supervisors, who was available for cross-examination, was not tested as to the mother’s case. Further caution in respect of the mother’s claims is indicated by virtue of the findings made regarding her call to the play centre that the father attended with the child, discussed below, which calls into question her credibility.

However, the T Town debt was also a post-separation debt. As identified above, no party has sought a notional adding back of this amount prior to division. This has the effect that the debt will, to some degree, be borne by both of the parties by virtue of the reduction in the pool.
Turning to an assessment of the contributions, it was conceded that the father’s contribution to the non-superannuation property exceeds the mother’s. He brought the T Town property into the relationship. He acquired the Suburb R property at about the time of the commencement of the de facto relationship.
Since the commencement of the relationship there has been a changing character of contributions. In the context of the mother retaining the use of her income for her own purposes at the start of the relationship, the father’s acquisition of, and payment for, the Suburb R property is a significant contribution. Although her contributions during the first part of the relationship were less than the father’s, it should not be thought that the mother made little contribution to the Suburb R property. She contributed both a lump sum amount of $6,000 to it, along with the non-financial contributions each made as they shared the house with the other. As the relationship continued, as primary carer for the child the mother’s contribution increased significantly, and continued after the end of the relationship. After the end of the relationship she had almost the sole care of the child. While the father continued to pay for the Suburb R property post-separation with the mother and the child living there, this should not be reckoned as a significant contribution on his part given that this was used to decrease the child support liability he otherwise bore.
On balance, due to the changes in contributions over the course of the relationship, reasonably equivalent contributions were made between the parties in the period from the start of the relationship until the hearing of the matter.
At the start of the relationship it appears that the T Town property constituted almost the whole of the value of the property pool. Now it constitutes more than half of the non-superannuation property of the parties. This contribution, solely attributable to the father, retains considerable significance. It may be seen that approximately half of the value of the property of the parties is referable directly to this contribution. Since the commencement of the relationship, as assessed above, the parties have contributed in a reasonably equivalent manner. Taking into account these two components of the parties’ contributions, it is appropriate to consider that contributions to the non-superannuation property favour the father to the mother in ratio of 75 per cent to 25 per cent.
The parties’ superannuation presents a different picture.
Given the conclusions reached about the reasonable equivalence of contribution from the start of the relationship until the hearing of the matter, given the commencement of the relationship at a time when the parties’ superannuation interests were likely to have been negligible and the duration of the relationship, it is appropriate to assess the parties’ contributions to this aspect of their property as equal.
However, neither of the parties sought an order for the splitting of the superannuation. The father sought an order to retain the superannuation interests as they are. The mother sought no order. Neither party addressed the issue of division of superannuation in submissions. Unsurprisingly then, no evidence was presented of any attempt to accord the trustees of the superannuation funds with procedural fairness in the event of such an order.
These factors would render a splitting order as procedurally unfair, the possibility of such an order having not been raised by any of the parties.
This, however, does not remove the need to consider the effect of the superannuation in making orders. It is property of the parties to which each has contributed in an equal fashion, however it is property that bears fundamentally different characteristics to the non-superannuation property. In particular, it is property that is unable to be accessed for many years, given the relatively young ages of the parties. It may be anticipated that property placed into the hands of a party now has a much more significant impact than property that will not become available for many years.
The parties’ superannuation could be equalised by a splitting order transferring an approximately $65,000 share from the father to the mother. This would reflect their reasonably equivalent contributions to this aspect of the property. However, to effect a cash transfer to the wife of the same amount would not reflect the different characteristics of cash as opposed to superannuation.
Noting the discussion of the nature of the consideration of contributions as set out by Foster J in Baker & Baker (2014) FamCA 356 at [55-58] and in particular his adoption of what McLelland J said in Davey v Lee (1990) 13 Fam LR 688 at 689 in relation to s 20 of the De Facto Relationships Act 1984 (NSW) that "the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind," and noting the repeated description of the assessment of contributions as not being a mathematical or accounting exercise, it is necessary to assign a qualitative significance to the superannuation reflected in present cash.
Noting that the superannuation is unlikely to become available to the parties for somewhere between twenty and thirty years, in lieu of an equalisation by transfer of a $65,000 interest in the father’s superannuation to the mother, it is appropriate that this amount be recognised by an adjustment of $20,000 to the mother. This gives the mother a significant increase in what she is to receive immediately.
Against any transfer of cash to the mother, the father has paid the mother’s share of a number of expenses related to the conduct of the Family Court proceedings for the preparation of expert reports. The amounts relating to experts attributable to the mother are $2,750 for the first K report, $2,800 for the Dr F report and $990 for the other property valuation. An approximation of these amounts should be deducted from the amount to be received by the mother in the sum of $6,500. Further, the father sought that the unpaid costs award in his favour from 25 November 2016 be deducted. This award was in the sum of $4,074. It is appropriate that this be deducted.
Turning to the s 90SF matters, the following considerations loom large. Each of the parties leaves the relationship with significant unsecured debt. The father’s approximately at $230,000, the mother’s approximately $82,000. The degree of burden of those future debts is difficult to predict. These debts have been incurred to related parties. No evidence was led as to the terms by which they would need to be paid back, or the degree to which the debts would be enforced.
As was emphasised in Rodgers & Rodgers (No2):[20]
…the manner in which a particular liability should be treated is, ultimately, dependent upon the nature of the liability, the circumstances surrounding the liability and the dictates of justice and equity shaped by each.
[20] (2016) 55 Fam LR 167 at 171.
Given the lack of evidence as to how the debts may be dealt with, and the large portion of the debts being attributable to legal expenses for the family law proceedings, this is a matter that should be given little weight.
The father’s future prospects of earning income are significantly superior to the mother’s. Against this, given the orders to be made in respect of the child, the father will bear the vast bulk of the responsibility for the support of the child.
Together these matters call for no further adjustment to be made pursuant to s 90SF.
The effect of this is that the father will retain the T Town and Suburb R properties. A 75 per cent-25 per cent split of the current property, taking into account the vehicles and shares, will require that a payment of $201,000 being made to the mother. A further payment of $9,426, reflecting the adjustment in respect of superannuation and reflecting the father’s payment of expert expenses and the mother’s unpaid liability for costs, should also be made to the mother.

Spousal maintenance

There was little, if any, evidence directed to the spousal maintenance application. The mother’s position was that payment ought to be made to enable her to retrain, as she has been out of the paid workforce for some time, although she has operated an internet based business to some degree. The evidence addressed neither a capacity nor an incapacity to support herself beyond her financial statement, other than to assert that “stress-related symptoms and illness” have prevented focus on finding employment, as has business in running her household. Incapacity to find employment to support herself was not established. The case failed to establish that the mother is unable to support herself adequately.

I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 11 December 2017.

Associate:

Date: 11 December 2017.

[2017] FamCA 1014

11 December 2017

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Fiduciary Duty

Costs

Injunction