Ward & Casolani
[2022] FedCFamC1F 792
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ward & Casolani [2022] FedCFamC1F 792
File number(s): WOC 643 of 2019 Judgment of: SCHONELL J Date of judgment: 18 October 2022 Catchwords: FAMILY LAW – PARENTING – Where the mother sought sole parental responsibility of the children and that the father spend no time with them – Where the father sought time with the children – Where the father has a history of drug use and perpetrated family violence against the mother and children – Where the children have not seen or spent time with the father since the parties’ separation in May 2019 – Where the Independent Children’s Lawyer and the Court Child Expert recommended that interim orders be made for the father to spend supervised time with the children – Consideration of primary and additional considerations – Interim orders made for the father to spend supervised time with the children provided he undertake urinalysis testing and a psychiatric assessment.
FAMILY LAW – PROPERTY – Where the mother sought 65 per cent of the net asset pool – Where the father contended that the parties were not in a de facto relationship – Where the father could not articulate the financial orders he sought – Where the mother’s contributions were found to have been made significantly more arduous because of the family violence perpetrated by the father – Where a just and equitable outcome was found to be 60 per cent to the mother and 40 per cent to the father.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA, 79, 90SF, 90SM, 102NA
Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.04
Cases cited: Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (intervener) (2003) FLC 93-143; [2003] FamCA 395
Horrigan & Horrigan [2020] FamCAFC 25
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Omacini & Omacini (2005) FLC 93-218; [2005] FamCA 195
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Singerson & Joans [2014] FamCAFC 238
Spagnardi & Spagnardi [2003] FamCA 905
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 176 Date of hearing: 26 – 28 September 2022 Place: Heard in Sydney, delivered in Wollongong Counsel for the Applicant: Mr Duc Solicitor for the Applicant: Family First Lawyers The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Alexander Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
WOC 643 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WARD
Applicant
AND: MR CASOLANI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
18 October 2022
THE COURT ORDERS THAT:
1.The applicant mother (“the mother”) have sole parental responsibility for the children X born 2011 and Y born 2014 (“the children”).
2.The children live with the mother.
pending further order the court orders that:
3.The children communicate with the respondent father (“the father”) by telephone or video call each fortnight on the following conditions:
3.1.For a period of six months and such communication is to be supervised by B Services and may be recorded; and
3.2.Thereafter, such communication is not required to be supervised but may be recorded.
4.The children spend time with the father for four hours each month on the following conditions:
4.1.Such time will commence after no less than three months’ communication under Order 3;
4.2.Such time is to be supervised by B Services private supervision service or another similar service agreed by the parties; and
4.3.The father is at liberty to invite the paternal grandmother, the paternal aunt (Ms C) or the children’s paternal cousins (D and E) to spend time with the children on the following conditions:
4.3.1.The father must ensure that any such invitation has the approval of the supervised contact service;
4.3.2.The father must give consideration to the views and wishes of the children in relation to any such invitation; and
4.3.3.The father must give to the mother at least 7 days’ notice of any such invitation.
5.To give effect to Orders 3 and 4 above:
5.1.The father and the mother register and complete intake with B Services supervised contact service within 14 days of these orders; and
5.2.The costs of supervision under Orders 3 and 4 be paid by the father.
6.If the father is not able to spend time with or communicate with the children pursuant to Orders 3 and 4 above, the father is to give not less than 48 hours’ notice to the mother with such notice to include the reason for his inability to attend and, if the reason is health related, the father must provide a medical certificate within 48 hours of cancelling the relevant contact event.
7.Pursuant to r 7.04 of the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth), Dr G (“the single expert”) be appointed as the single expert for the psychiatric assessment of the father.
8.The father must:
8.1.Attend all appointments made by the single expert; and
8.2.Comply with all reasonable directions and requests made of him by the single expert to assist him in the preparation of the report.
9.In preparing the report, the single expert be requested to consider the following matters:
9.1.The state of the father’s mental health;
9.2.If any issue is identified, provide a diagnosis of such issue;
9.3.Provide an opinion as to the treatment or services which are recommended to treat those issues;
9.4.Provide an opinion as to the willingness of the father to address any issues;
9.5.Whether or not the father has a substance abuse issue;
9.6.Any impairment of the father’s cognitive abilities and parenting capacity and the extent of any such impairment; and
9.7.Any other matter the single expert considers relevant to the capacity of the father to meet the reasonable needs of the children;
10.The costs for the single expert be paid into the Legal Aid NSW Trust Fund by the father.
11.Upon notification that the funds have been transferred into the Legal Aid NSW Trust Fund, the Independent Children’s Lawyer (“the ICL”) must make enquiries as to the first available appointment for the interview and preparation of the report.
12.If the single expert is later required for cross-examination by any party, including the ICL, at any hearing in these proceedings:
12.1.The party that requires the single expert for cross-examination must fund the costs of the single expert appearing in the proceedings, whether in person or by audio-visual link.
12.2.If a party requiring the single expert is not in receipt of a grant of legal aid 42 days prior to any final hearing dates in the matter, then that party must do all acts and things to pay into their solicitor’s trust account, funds sufficient to cover any payments required to cover the single expert’s additional costs.
12.3.Any costs shall be paid within 7 days of receipt of a tax invoice from the single expert.
12.4.If there are funds remaining after payment of any invoices of the single expert, they must be returned to the party or parties which contributed funds, in proportion to their contribution.
13.Leave be granted to the ICL to provide the following documents to the single expert for the preparation of the report:
13.1.All trial material, including:
13.1.1.The mother’s Court Book;
13.1.2.The mother’s Tender Bundle, pages 1 – 267 (Parenting); and
13.1.3.Reasons for Judgment.
14.The father must do all acts and things necessary to authorise the single expert to speak to the father’s treating mental health practitioner, if any.
15.The report of the single expert is to be prepared and made available to the parties not later than 14 days prior to the resumption of the part-heard trial.
16.For a period of 9 months from the date of these orders and pending further order:
16.1.The father is to submit himself to random urine analysis on the request of the ICL within 48 hours of request.
16.2.Such urine analysis is conducted in accordance with the Australian/New Zealand Standard 4308:2008: Procedure for the collection, detection and quantitation of drugs of abuse in urine.
16.3.The father is to do all things necessary to authorise the testing laboratory to immediately provide to the ICL and the solicitor for the mother a copy of the drug screening report.
16.4.Such requests be made no more than once in any calendar month.
16.5.The father is solely responsible for the costs of testing pursuant to these orders.
17.The father attend upon W Services, F Services or a similar service and enrol into and complete the following:
17.1.Parenting after separation;
17.2.Kids in focus; and
17.3.Tuning into teens.
18.The mother will do all things necessary to ensure that the children are referred to and attend upon a counsellor or child psychologist until such time as the counsellor considers it unnecessary for the children to do so.
19.The mother or her agent will cause the father to be provided with information in relation to the children’s education (including but not limited to school reports, special achievements and school photos), medical reports and extra-curricular achievements.
20.The mother is to communicate such information by way of email and, where appropriate, by way of ordinary post.
21.If there is a medical emergency in relation to either of the children, the mother must authorise any treating medical practitioner to notify the father by telephone of any such emergency, treatment and medication prescribed for the child/ren.
22.The mother be permitted to travel with the children both interstate and overseas from time to time without the express permission of the father.
23.These orders provide the necessary authority for the mother to make an application to the Australian Passports Office for a passport to be provided to X born 2011 and Y born 2013 without the written authority of the father.
24.The mother and the father are restrained by injunction from physically disciplining the children.
25.The father is restrained by injunction from using illicit substances within 12 hours of spending time with the children and while spending time with the children.
26.Each party is restrained by injunction from denigrating the other party in the presence or hearing of the children or permitting any third person from doing so in the presence or hearing of the children.
27.Each party is restrained by injunction from speaking to the children or in the presence or hearing of the children about any subject matter relating to these Court proceedings and/or about the future parenting arrangements of the children and/or from showing or allowing the children to view any court documentation related to these proceedings.
28.The matter is stood over part hard for two days commencing 27 July 2023.
THE COURT NOTES THAT the parties have each been advised in the following terms:
A.There are allegations of family violence in the proceedings;
B.The requirements of s 102NA(2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in these proceedings by an unrepresented person;
C.That pursuant to these orders, neither party may personally cross-examine the other party;
D.That pursuant to these orders, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
E.The unrepresented party(s) has been advised as to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
F.That a copy of these orders will be provided by the Court to Legal Aid NSW, which administers the said scheme.
And the court orders that:
29.The requirements of s 102NA(2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings on or after 27 July 2023.
30.At least 12 weeks prior to the resumption of the part-heard trial, the father shall complete the “Scheme Application Form” and provide the completed form to Legal Aid NSW (…@...) for the allocation of a legal practitioner.
31.In the event that the father fails to avail himself of this order and he is unrepresented at the final hearing, then he will not be permitted to cross-examine the mother.
the court further orders that:
32.The parties, their agents, and servants be restrained from dealing with the property located at H Street, Suburb J, New South Wales being the whole of the land comprised in Title Folio Identifier … (“the Suburb J property”) otherwise than in accordance with these orders.
33.The mother is to within 28 days provide to the father the names of three solicitors together with a schedule of their estimated fee for acting as trustee who are prepared to act as trustee for sale of the Suburb J property.
34.The father is to within a further 14 days nominate to the mother which of the three solicitors is to be the trustee for sale. In the event that the father fails to nominate a solicitor, then the mother shall nominate one of the three and that solicitor shall be the trustee for sale.
35.The nominated solicitor shall be appointed trustee for the sale of the Suburb J property and that property shall vest in the trustee for the purpose of sale.
36.The trustee is empowered to take possession of the Suburb J property and require vacant possession in order to effect sale, without the consent of the father, of the Suburb J property.
37.That without limiting the trustee’s power under the terms of these orders, the trustee is empowered to do all things, acts and sign all documents necessary to effect a sale of the Suburb J property including, but not limited to:
37.1.Determining whether the sale be by private treaty or auction;
37.2.Determining the real estate agent with whom to list the property;
37.3.Determining the conveyancer or solicitor who is to carry out the settlement including completing client authorisation;
37.4.Determining the listing price from time to time, or the reserve price in the event of sale by auctions;
37.5.Determining all terms of sale;
37.6.Completing the vendor statement and contract of sale;
37.7.Completing discharge of mortgage documents;
37.8.Completing all documents in PEXA including transfer of land and withdrawal of caveat;
37.9.Completing State Revenue Office documents; and
37.10.Any other documents required to enforce the sale of the Suburb J property.
38.On settlement of the sale of the Suburb J property, the trustee shall do all acts and sign all documents necessary to direct the net sale proceeds to be paid in the following manner and priority:
38.1.Payment of trustees expenses, agent’s commission and advertising and legal expenses of the sale;
38.2.Any outstanding auctioneer’s expenses or valuation fees relating to the sale of the Suburb J property;
38.3.The usual council and water rate adjustment;
38.4.The sum required to discharge the mortgages secured over the property to the Commonwealth Bank of Australia;
38.5.The remaining funds to be distributed between the parties as follows:
38.5.1.60 per cent to the mother; and
38.5.2.The balance to the father after payment to the mother of $273,677.
39.That pending Order 38 being effected:
39.1.The father be solely responsible for the mortgage repayments, rates and other outgoings for the Suburb J property;
39.2.The father shall keep the Suburb J property in good state of repair;
39.3.The father shall keep the Suburb J property insured against all normal insurable risks in an amount recommended by the insurance company;
39.4.Each party is prohibited by injunction from further encumbering the Suburb J property without the consent of the other party or the existing mortgagee;
39.5.Each party is prohibited from drawing down on the Suburb J property mortgage or increasing the balance of the Suburb J property mortgage without the other parties’ consent, save for the accrual of ordinary interest and ordinary bank charges;
39.6.The trustee shall keep the mother and father advised of any prospective purchasers, offers made and expenses required to achieve a sale of any of the Suburb J property; and
39.7.The trustee shall provide the mother and father any documents received from potential purchasers with respect to the sale of the Suburb J property.
40.The father shall be solely responsible for and forever indemnify the mother with respect to any and all liabilities in the business called ‘K Pty Ltd …’ (“the company”) including but not limited to any income tax liability including penalties and interest and all debts and liabilities that the father may be liable to pay as a consequence of his involvement with the company.
41.Unless otherwise specified in these orders:
41.1.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;
41.2.Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
41.3.Each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;
41.4.All insurance policies are to become the sole property of the owner as named; and
41.5.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.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ward & Casolani has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings for parenting orders and financial adjustment. The parenting aspect of the proceedings relates to the parties’ two children, X 2011 and Y born 2013. It is not in issue that the children have not spent any time with the respondent father (“the father”) since shortly after the parties separated in May 2019.
The financial aspect of the proceedings arises as a consequence of the commencement by the applicant mother (“the mother”) of proceedings in June 2019 seeking financial orders pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”). On 11 July 2019, the father filed a Response to the Application for Final Orders in which he sought both parenting and financial orders. In particular, he sought orders that the property of the parties be divided in the proportions as to 70 per cent to the father and the balance to the mother.
The significance of this latter contention is that at the hearing the father asserted that the parties were not in a de facto relationship. As set out later in my reasons, I am satisfied that the parties were in a de facto relationship.
Both the mother and the Independent Children’s Lawyer (“the ICL”) were represented by counsel. The father had been legally represented but appeared without representation on the hearing. In that respect, the Court made orders on 24 February 2021, 12 April 2021, 16 November 2021, 13 December 2021, 5 May 2022 and 16 June 2022 under s 102NA(2) of the Act in relation to cross-examination in view of the family violence allegations. The father has retained at least five different lawyers throughout the proceedings, who have each for reasons that are unclear ceased to act for him.
At the commencement of the hearing, I made it clear to the father that he would not be able to cross-examine the mother. When asked whether he wished to continue to proceed with the hearing, he indicated that he did.
The mother relied upon the following documents:
(1)Further Amended Initiating Application filed 30 June 2022;
(2)Affidavit of mother filed 25 October 2021;
(3)Affidavit of mother filed 9 September 2022;
(4)Affidavit of Mr L filed 9 September 2022;
(5)Affidavit of Mr M filed 9 September 2022;
(6)Affidavit of Mr N filed 1 September 2022;
(7)Notice of Risk filed 24 June 2019;
(8)Financial Statement of mother filed 9 September 2022;
(9)Family Report dated 25 January 2021;
(10)Child Dispute Conference Memorandum filed 24 July 2019;
(11)Written Submissions; and
(12)Case Outline.
The father did not file a Case Outline. The father had, however, filed an affidavit and financial statement in contemplation of the hearing. I read the following documents in his case:
(1)Response to Application for Final Orders filed 11 July 2019;
(2)Affidavit of father filed 9 September 2022; and
(3)Financial Statement of father filed 9 September 2022.
Mr M, single expert, had prepared a valuation in relation to the parties’ former home. The father sought leave to rely upon another valuation obtained by him in relation to the home. This was opposed by the mother. Having heard brief submissions, I declined to grant the father’s application and indicated that I would give reasons in my judgment. Those reasons are set out below.
The mother was cross-examined by the ICL. Her father was cross-examined by the father. The father was cross-examined by the mother’s counsel and the ICL.
All parties indicated that they did not wish to cross-examine Mr N, who prepared a report in relation to the children’s wishes. The Child Court Expert, Ms O, was cross-examined by the mother’s counsel and the ICL. The father did not wish to cross-examine the Child Court Expert.
The father initially indicated that he wanted to cross-examine the single expert but made no arrangements for him to attend Court and when asked, he then indicated that he did not want to cross-examine him.
In her cross-examination, the mother conceded that she had been untruthful with the police when she informed them she had been assaulted by an unnamed assailant. In cross-examination by the ICL, she explained that she had in fact been assaulted by the father but that she lied to the police in saying it was someone else to protect the father. The ICL submitted that there were aspects of her evidence about which the Court should be troubled. He submitted that she told the Child Court Expert that the father had used drugs throughout the relationship, which was inconsistent with her oral evidence. He also submitted that the orders the mother maintains are inconsistent with what she conceded under cross-examination about supervised time between the children and the father and what she told the Child Court Expert. Notwithstanding the frank admissions by the mother, I otherwise found her to be a truthful witness. She listened carefully to the questions that she was asked and in most instances answered the question. I make this assessment in the knowledge that she has not been cross-examined by the father.
I have some significant concerns about much of the evidence given by the father in cross-examination. His was at times difficult to follow. He was tangential, disassembled and made inconsistent assertions saying one thing only to change his evidence three or four questions later.
The father was admitted to P Hospital in early 2019 with a diagnosis of a drug-induced psychosis. He denied that he had been diagnosed with a drug induced psychosis. He later admitted that such a diagnosis had been made. The clinical notes record the following:
Patient claims that his partner, [Ms Ward] has called the police for no reason. He thinks that the partner belive that he is depressed; but he believs it is other way round. Claims that the partner behaviours in a very suspicious way and she is manipulating his all valuable electronic data without his consent for no reason. Claims that thre was an argument with [Ms Ward] and she would have called the police for that.
Patient is thought disordered. …
(As per the original)
(Exhibit 1, page 19)
The father denied making this statement.
The clinical notes go on to record:
Claims that the wife got a devise to control his computer data, his mobile phones and all his invoices and other financial issues of the business. Also thinks she is monitoring his all movements by this device. Thinks his safety is at tisk because of this reason.
(As per the original)
(Exhibit 1, page 19)
He initially denied saying this. When cross-examined about this by the ICL, he admitted making this statement.
In a mental state examination under the heading ‘thought content’, the clinical notes record:
“Had a bit an argument with my girlfriend, I had asked a few things, 2 phones were supposed to be under the company but she changed them to her own name we have been together for 13years and we are engaged planning to get married soon”
(As per the original)
(Exhibit 1, page 25)
The father denied making such a statement. Such an assertion does not sit comfortably with his now assertion that the parties were not in a de facto relationship.
On discharge, the father was prescribed medication. He initially said he did not take it because there was no reason to. A few questions later he said he took a tablet once.
The clinical notes record an attendance by various medical staff in mid-2019. The clinical notes record:
Client states he is taking the meds – […] 10mg nocte. At first he felt drowsy for a few hours in am but now he feels normal. They are helping with sleep. He plans to continue taking meds – has 3 more doses so needs to see a GP. …
(Exhibit 1, page 56)
The clinical notes are inconsistent with the father’s oral evidence. The clinical notes put in issue the accuracy and reliability of the father’s oral evidence.
He was cross-examined on the 2020 financial accounts for his company K Pty Ltd. When taken to the balance sheet, which recorded the company’s assets having a value of $373,274, he contended the records were inaccurate and blamed his accountant. He said because of the inaccuracy he did not sign off on the financial statements. He was then taken to the directors declaration attached to the financial accounts and admitted it bore his signature.
His affidavit contended that the $138,000 he withdrew from the mortgage was spent as to about $38,000 on renovations and the balance paid to his father. He annexed to his affidavit receipts said to evidence the payment of renovations. The receipts all pre-dated the withdrawal of the funds. In cross-examination, he ultimately conceded that the $38,000 was not spent on renovations but rather on legal fees and other expenses.
The father said that he paid the mother child support between 2011 and 2015. The mother admitted that there were Child Support Agency (“CSA”) assessments in that period. She said they arose as a consequence of an earlier separation of the parties where she applied for child support. She said after they resumed their relationship, the CSA continued sending assessments. She said no moneys were ever paid. The father said he had evidence of payment that he would bring to Court. Despite being reminded on a number of occasions about whether he had any evidence, none was produced.
The father’s affidavit asserted that the mother’s name was not on a lease on a property which he leased for about two years and that she would occasionally visit the property and on occasions stay overnight. The father agreed in cross-examination that her name was on the lease as were her bank account details.
The father said in his affidavit that he had done everything possible to make arrangements to see his children in the period since separation. He agreed in cross-examination that he had not filed any interim application to see the children and that he had not complied with the recommendations of the Court Child Expert that he attend upon a psychiatrist to obtain a mental health assessment, that he undertake a hair follicle test, or that he do a post separation parenting course.
Blaming others was a feature of the father’s evidence. He said each of his solicitors were to blame for absences from his affidavits or for what he said were errors included in them. He also blamed his accountant for errors. He denied that he agreed to the appointment of the single expert real estate valuer despite evidence demonstrating that he was jointly appointed. Statements made by the children to the Court Child Expert with which he did not agree with were said to be made by them as a result of brainwashing.
He made a series of unsubstantiated allegations that the mother had in some way damaged his business and tampered with various electronic devices. The Family Report recorded as follows:
42.[Mr Casolani] explained that [Ms Ward] worked as the administrator to his business ‘[K Pty Ltd]’ and therefore had access to all of the business accounts and finances. [Mr Casolani] spent significant time throughout the interview discussing his belief that [Ms Ward] continues to hack his online accounts. He stated that she has changed his security questions and passwords and that she had made it so that they cannot be re-set. [Mr Casolani] claims to have spent $5000 on IT support to try and figure it out but that they have been unable too. He alleges that [Ms Ward] continues to take money out of the business account and is conspiring against him, in attempt to push the business into liquidation. [Mr Casolani] alleges that [Ms Ward’s] mother and father “are in on it” as they are very ‘tech savvy’. He further alleges that [Ms Ward] has bugged the children’s toys, linking them with Bluetooth and setting them up as listening devices. He believes that [Ms Ward] continues to ‘spoof’ his phone.
43.[Mr Casolani] stated that he continues to reside in the family home and works full time for his business ‘[K Pty Ltd]’. He stated that he no longer has an online presence due to [Ms Ward’s] alleged hacking and control of accounts. [Mr Casolani] stated that he receives work via word of mouth. He explained that his father works for him and that the business is going well despite [Ms Ward]’s ongoing attempts to ‘jeopardise it’.
…
51.In relation to mental health, [Mr Casolani] denied any struggle with Schizophrenia. He believes that [Ms Ward] ‘set him up’ and orchestrated his admission to [P Hospital] deliberately so that he would not discover her money laundering from the business. [Mr Casolani] explained the incident that occurred [in early 2019]. He stated that they were at the shops together and were planning to go to the bank. He suspects that [Ms Ward] feared he would discover that she had fraudulently taken money from the business accounts so called security, pretending that she was scared and in need of help. [Mr Casolani] recalled that the Police attended and took him to the station, where a psychiatrist spoke with him. [Mr Casolani] stated that after a four-minute interview, he was taken to ‘the psych ward and locked up’. [Mr Casolani] described feeling terrified, stating “they made me feel crazy and forced tablets down my throat”. [Mr Casolani] stated that he was discharged after a few days because “there was nothing wrong with me”. [Mr Casolani] acknowledged that it has been difficult not seeing [X] and [Y] and that this affects his mood but denies having significant mental health concerns.
…
72.In relation to the risk factor of mental illness, [Ms Ward] alleges that [Mr Casolani] has [an] untreated [mental health condition] and has refused treatment and medication historically. The Family Consultant cannot comment on [Mr Casolani]’s mental state due to limited medical information available and a lack of expertise in the area. However, it is noted that [Mr Casolani] did appear highly anxious and paranoid in interview about [Ms Ward’s] use of technology and he continued to divert conversation back to these issues. [Mr Casolani] seemed fixated in beliefs that [Ms Ward] has acted in a fraudulent manner by hacking into his accounts, ‘spoofing’ his phone and scamming him with the intention of ruining his company. As recommended in the Memorandum to Court dated 24 July 2019, a forensic analysis of electronic and computer equipment may be helpful to provide clarity in this situation. [Mr Casolani] would benefit from a psychological assessment to ascertain his mental health capacity including intervention and ongoing support if required. It is recommended that this assessment occur prior to any unsupervised time with [X] and [Y], if this is deemed appropriate by the Court.
The father said that he had evidence of the bugging of the children’s toys by the mother. As part of his evidence, he produced a report from an IT company. The report drew no such conclusion. He said he would bring to Court the next day the various toys that he had at home that contained the bluetooth devices, which he said were planted by the mother. The toys were brought to Court. A visual inspection by counsel for the mother and the ICL did not reveal any bluetooth devices. The father said that he was not alleging the mother planted any such device but that someone had. This was inconsistent with what he had said earlier and what he told the Child Court Expert.
The mother makes numerous allegations in her affidavit of family violence. The mother’s allegations include the father: grabbing her by the throat; physically preventing her from leaving; grabbing her head and rubbing her forehead across carpet; slapping her; pushing her onto a couch and pressing his knee into her face; pushing her into the wall and punching her; pushing her head into the engine bay of a car and smashing her front two teeth into the engine; putting his fingers in her mouth and pulling her cheek away from the top of her teeth; hitting her in the face; threatening to take her to the bush to sort her out; telling X to “find a hammer so your mother can tell me the truth” (mother’s affidavit, paragraph 67); driving erratically; keeping her and the children locked in the house, punching her in the ribs; holding her down until she could not breathe; biting her; tying her arms and legs together; and pushing her down the stairs.
The mother also contends that the father would physically push her around to get to the children when she tried to stop him from physically assaulting the children. She contends that he would yell at her to physically punish the children after they had done something wrong. The mother also contends that the father spoke to her in a derogatory and disparaging way, including the father contacting the Department of Communities and Justice and contending that the mother was working as a sex worker.
Whilst the father admitted that the parties had argued and that there were some ‘physical struggles’, he denied that he has ever been the perpetrator of family violence. The mother’s allegations are supported to some extent by various statements made by the children. In that respect, Mr N’s report records the following statements by the children:
13. When asked about how she would feel about further contact, [X] said: “Okay I guess, but a bit worried what he might say. I think he might say something rude – a swear word to Mum.”
14. After this comment, when I explored with [X] where this concern came from, she volunteered the following about her father: “He did despise [Y] and Mum before we moved. He despised most of the pets we had, the guinea pigs and cats. He was angry at [Y] and my Mum and would try to hurt the pets. He’d yell at the pets and try to push them out of the house.”
…
16. [X] told me that she was worried about her mother being hurt in the past. She said: “Once they had a tackle fight and they both fell down the stairs. Me and [Y] saw it with our own eyes. Mostly it was Dad getting angry.”
…
24. [Y] told me she felt “more safe,” following the move to [City Q] with her mother and sister. She said she felt safe “straight away” following the move. She explained that her parents were no longer fighting and before the move: “My Dad, he was a little bit rude, he would swear at my Mum.”
25. [Y] said she would normally be sleeping when she heard her parents fighting. She explained: “It would wake me up sometimes. I shared a room with [X]. She ([X]) would never go to sleep because she felt bad for Mum. I was worried about Mum too.”
26. When asked if she had seen her parents fighting, [Y] said: “He would normally hit her – I was in the playroom or my bedroom.” [Y] said she felt “scared” at these times.
The Court Child Expert recorded in the Family Report:
58.[X] spoke briefly about memories from when they lived with ‘Dad’. She stated, “I was awake all night worried for Mummy and sometimes for Daddy because there was lots of fighting”.
…
64.[Y] recalled negative memories stating, “I got scared because Mummy and Daddy used to get into fights”. She followed on from this comment stating “if I am with Mummy, I feel safe”.
…
68.In terms of risk factors, the allegations of family violence made by [Ms Ward] are severe and of great concern. [Ms Ward] provided a clear and specific account of the violent incidences perpetrated by [Mr Casolani] and the injuries she sustained. [Ms Ward] described being isolated from family and friends and identified feeling afraid of the ramifications if she reported the abuse to Police or spoke to anyone about what was happening. The potency and pattern of violence described by [Ms Ward], if accurate, indicates that the risk of family violence remains high if [Mr Casolani] were to have unrestricted or unsupervised contact with [Ms Ward], [X] and [Y]. [Mr Casolani] adamantly denies all allegations of family violence. A pattern of blame was observed with [Mr Casolani] taking no responsibility for actions that may contributed to [Ms Ward] leaving with [X] and [Y]. The Family Consultant acknowledges that it is difficult to ascertain the extent of family violence without third-party information or evidence. However, based on the information available at the time of this report it is recommended that [Mr Casolani] have supervised contact with [X] and [Y] until further assessments can be made to assure their safety in his care.
69.In relation to child safety and well-being, both [Ms Ward] and [Mr Casolani] acknowledged that the children have been exposed to their conflict but differed in their acknowledgement of the direct impact this has had on [X] and [Y]. [Ms Ward] described that [X] and [Y] were “afraid to be themselves” and stated that they became quiet when arguments were occurring. She stated that [X] was exposed to several significant incidences of family violence, including being awoken at night when [Ms Ward] was ‘tied up and interrogated’ by [Mr Casolani]. It is noted that [X] mentioned in interview, “I was awake all night worried for Mummy and sometimes for Daddy”. This incident, if accurate, would have been terrifying for [X] as she not only overheard significant violence but was also involved as she allegedly intervened, begging [Mr Casolani] to stop. [Y] also commented in interview that she “got scared because Mummy and Daddy got into fights”. [Mr Casolani] minimised the impact that the conflict has had on the children, stating that they were often asleep and ‘unaffected’. The short term and long-term impacts for children exposed to family violence cannot be underestimated. Children exposed to family violence often have difficulty expressing and controlling their emotions; they are at greater risk of developing depression and anti-social behaviours and may find it difficult to form healthy relationships long term. Currently, it appears that [X] and [Y] are in a safe and loving environment, with their well-being prioritised. In interview, [Ms Ward] demonstrated insight and understanding into [X] and [Y’s] emotional, physical and psychological needs. She spoke of the positive changes she has noticed since they moved to [City Q]. [Mr Casolani] stated in interview that [Ms Ward] yells at the children and smacks them. The accuracy and extent of this is unknown, however [Mr Casolani]’s comment of “they probably deserved it” was of concern. It seems that [Mr Casolani] was not actively involved in parenting and that the responsibility fell onto [Ms Ward]. [Mr Casolani] stated, “I would have a go at [Ms Ward] if the kids were going off their brains”. [Ms Ward] described feeling pressure to keep [X] and [Y] quiet so as not to provoke [Mr Casolani]. These comments made by each party appear complimentary and suggest a pattern of power and control in which [Mr Casolani] was uninvolved in parenting yet took out his frustrations on [Ms Ward] when [X] and [Y] were not behaving as he desired and expected. [Ms Ward] acknowledged in interview that she feels ‘relieved’ to be able to parent [X] and [Y] in a manner that supports their loud personalities and fun natured characters. There are currently no concerns noted about [Ms Ward’s] parenting capacity and it appears that she has acted protectively of [X] and [Y] throughout the separation process. [X] and [Y] spoke positively about their mother and were observed to smile when talking about activities they enjoy doing together. [Y] stated, ‘when I am with Mummy, I feel safe”. [Ms Ward] identified that she is not in a relationship and that she does not wish for anyone else to live in the home. Moving forward, if contact between [Mr Casolani] and the children were to commence there would need to be safety planning and protective measures in place to ensure that the children remain in a safe environment.
Notwithstanding the limitations imposed by the father’s inability to cross-examine the mother, I, on balance and in light of all of the above matters, prefer the evidence of the mother and statements contained in various business records to that of the father where it differs.
I find that the mother and children have been victims of family violence.
Proposals of the parties
The ICL submitted that the Court should make interim orders in relation to parenting matters and bring the matter back to the Court within approximately twelve months. The ICL proposed that the children should live with the mother, that she should have sole parental responsibility, and that the children should initially have supervised telephone and/or video contact with the father for a period of time, then move to face-to-face time and then to unsupervised time, provided that the father has undertaken some parenting courses, attended upon a psychiatrist, and undertaken urinalysis testing.
The mother sought orders that she have sole parental responsibility for the children and the children live with her and spend no time with the father. In addition, she sought that the children be permitted to relocate to an undisclosed location, albeit her counsel indicated that she had no present intention to relocate. She also sought orders that she be permitted to obtain a passport for the children and travel internationally without the father’s consent. Financially, she sought orders for a sale of the home and a division of the proceeds of sale as to 80 per cent to her and 20 per cent to the father. Her counsel indicated, however, that the percentage entitlement was predicated upon the basis of a pool of assets being somewhat greater than that which may ultimately be found by the Court.
The father, for his part, was not able to articulate a financial order. Despite repeated requests, he was unable to indicate to the Court what order, if any, should be made by way of financial adjustment. In relation to parenting orders, he was opposed to a sole parental responsibility order, which he described as unfair saying that the parties should have equal shared parental responsibility and that he did not know why the mother should get so much power in the relationship. He was prepared to accept supervision for a period of time but that time should progress to unsupervised much quicker than as proposed by the ICL. He was opposed to a psychiatric assessment, which he said was not needed and he that could not afford it. He was happy to do urine testing but not for twelve months and would not agree to a hair follicle test as he saw there was no reason for it.
Submissions by the ICL
The ICL submitted that the Court should have significant concerns about the father’s mental health. The ICL was of the view that, consistent with the recommendations of the Court Child Expert, the Court should consider making interim orders. Those orders, it was said, had a clear benefit to the children as they addressed the question of risk posed by the father’s mental health and drug use and the impact that might have on the children. The ICL submitted that the Court Child Expert was an impressive witness who recognised that supervision provided a protective mechanism for the children that moved the risk that the father posed to the children from unacceptable to an acceptable risk.
The ICL was of the view that the mother should contribute to the cost of supervision as it encouraged her to support the children in their relationship with the father. The ICL submitted that the father’s mental health has had a significant impact upon his capacity to engage with the children. The ICL identified that the Court Child Expert gave practical and pragmatic evidence including opining that if there was no time between the children and the father, then the children may grow up with an idealised view of their father. The ICL submitted that it was important that children learn to know their parents and that supervision provided a way of maintaining a relationship. The ICL submitted that the evidence of Mr N was supportive of the children wishing to see their father and that the children have some fond memories of their father.
The ICL submitted that the children deserved to be given a chance to have an opportunity of a relationship with the father in circumstances where one has not occurred in the period since the parties separated.
Submissions by the mother
Counsel for the mother was opposed to the orders sought by the ICL. The mother’s counsel identified that the father had not complied with orders in the past, making reference to orders being made on 21 November 2019 that directed the father to engage with B Services for an intake session which he did not comply with. He also identified that hearing dates had been vacated when the father had not complied with the s 102NA order. The mother was opposed to any interim order and her counsel submitted that there was an emotional strain and cost incurred by her and the children in further reports, further engagement with the father and further intervention by the Court.
The mother’s counsel submitted that the Court knows nothing about the father’s mental health and that he has not put evidence before the Court. Her counsel submitted that there is a risk that the father may say something to the children that would cause them harm even when supervised. In the event that there was to be time, then the mother’s counsel submitted that a hair follicle test should be undertaken before any time between the children and the father commenced.
Her counsel submitted that the Court Child Expert adopted an unsophisticated approach to the giving of evidence. He submitted that the Court Child Expert’s evidence should not be accepted given that she advocated for supervised time as adequate protection for the children notwithstanding very serious allegations of family violence. He submitted that nothing swayed the Court Child Expert from the view that the children should be given an opportunity to spend time with the father notwithstanding his violence and failure to engage. He submitted that little weight should be given to the children’s views when balanced against the risk arising from time with the father.
The mother’s counsel said that contributions should be found to favour the mother as to 55 per cent, which would include “a Kennon adjustment due to the significant family violence”, and that there should be a further adjustment under s 90SF of 10 per cent. Orders should be made to give effect to such findings for a sale of the home and a split of the proceeds of sale as to 80 per cent to the mother and the balance to the father.
Submissions of the father
The father sought to maintain a relationship with the children. He contended that there had been a lot of focus on his mental health, that he did not have a mental health problem, that he just wanted to have a relationship with his children, and that he had done all that he could to maintain a relationship with them. In relation to financial matters, the father was not able to articulate a position and maintained that the parties’ relationship after 2011 was merely a business relationship in which he provided the mother with a job.
Parenting
The mother seeks orders that the children have no time with the father.
The mother points to a significant history of family violence perpetrated by the father. She identifies that it appeared to be associated with the father’s use of drugs but also suggests that there are more significant underlying mental health issues affecting the father, including paranoia and persecution. The mother contends that because of the volatile nature of the father’s behaviour, the children are at risk and that supervision is not able to properly protect the children from such risk. As her counsel submits:
The overwhelming issues in this case mean that the risk is too high of the children being retraumatised as a result of any interaction with the Father.
(Mother’s written submissions, page 8)
There is no issue in the proceedings that the father has made no effort to see the children in the period subsequent to separation. Counsel for the mother points to orders being made by the Court recording that the father intended to make an application for time to see the children. The order directed the parties to attend B Services at City R. The mother went, but the father did not. Nor did he file an application. I am satisfied that the father has not taken the opportunity to spend time with the children in the period post-separation.
That said, the clear evidence of the Court Child Expert was that there was a benefit to these still quite young children of having a relationship with their father. I do not accept the submissions of the mother’s counsel that the Court Child Expert’s evidence should not be accepted. I found her to be an impressive witness who demonstrated a clear understanding of the issues, the risks associated with supervision as well as the risk to these girls of not having a relationship with their father. The Court Child Expert was empathetic of the mother’s profound distress arising from the graphic family violence to which she had been subjected but also, in a nuanced way, balanced the competing risks facing the children. She provided pragmatic advice and assistance to the Court. I accept her evidence and recommendations.
It was her clear evidence that the risk posed by the father could be managed by way of supervision, and that Mr N’s report demonstrated that the children retained some form of engagement with the father and wished to re-engage with the father albeit in a supervised setting. She identified that it was of benefit to the children that they know their parents and the reality of each of their parents and their limitations rather than the risk of forming an idealised view of an absent parent because there was no time arrangement occurring.
The Court Child Expert identified that there were risks attached to attempting to re-engage the children with their father. One risk was that the father either disengaged or was unable to engage and thus whatever hope and/or expectation might be raised in the children’s minds may be dashed. The Court Child Expert was, however, clear in her view that it was worth trying an arrangement, noting that no such arrangement has been tried to date. She remained of the view that supervision provided an adequate measure of protection to the children from the risks that were posed by the father.
Mr N prepared what is described as ‘Children’s Views and Wishes Report’ after having met with the children on 31 August 2022. He was not cross-examined. I accept his evidence.
In relation to X, he observes that she seemed well settled, is doing well at school and has close friendships. He reports:
10.… [X] said she has not had contact with the paternal side of the family since the separation. Her paternal grandparents “Nan and Pop,” as she referred to them, have been mostly absent from her life, consequently, as have her teenage cousins [E] and [D]. She seems to have enjoyed a good relationship with her cousins prior to the parents’ separation but has had no phone or other contact with them of recent years. She told me she was not sure how things were with her “Nan and Pop” and whether they were even still alive, particularly her Pop.
…
11. [X] told me she thought her father was living with his parents but wasn’t completely sure about this. She said “we rang him twice about a year ago” she thought. [X] said it was around her father’s birthday.
12. [X] said when she spoke with her father “he sounded happy, and I felt happy to call him. We spoke for about ten minutes.” She said: “It was an okay thing to do, it wasn’t easy or hard.” [X] said: “We were at Ma and Pa’s when we spoke in the ‘secret circular room’ – the theatre room. It hasn’t happened again I think because everyone’s been busy.”
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17. [X] remains anxious about her father’s anger. She said she felt contact with him “might not be a good idea,” because of this, and her lack of trust in him. She did say that if the time with her father could be supervised “I’d feel differently.” So, she was by no means completely closed to the idea of spending time with him. I asked [X] if her father had ever hurt her or her sister to which she replied: “No.”
…
20. [X] told me she was “not overly keen to have phone contact” because of her concern about her father swearing and generally being aggressive and rude to her mother. She said she would probably not want phone contact “anymore than once a fortnight” should this occur.
In relation to Y, Mr N observed as follows:
28. [Y] was able to recall a few phone calls with her father since the separation. She thought there had been “three.” When asked how she felt about these calls, she said: “I felt a little bit happy because I could hear his voice.” And “I would like to talk again on the phone.”
29. When asked if she would like to see her father she replied: “I don’t think I want to see him.” When asked why this was the case she replied after a pause: “I don’t know why.”
30. I asked [Y] if she would feel differently about this if someone else was present: “Yes, that would be better.”
Mr N provided the following summary of his observations:
32. In summary, the two children were seen to obtain and document their views and wishes regarding future parenting arrangements. They both spoke of being scared when their parents lived together and were fighting. They both spoke of relief when the separation occurred, as this brought an end to the distressing arguments between their mother and father. Both girls referred to being witness to the father being physically abusive, and of being worried about the mother’s safety, with this anxiety on occasions keeping [X] awake at night apparently. [X] spoke of concern about the father’s aggression toward the family pets.
33. The children expressed apprehension about seeing their father without the presence of a third party. They also appeared concerned that the father might express anger at the mother should they have phone calls with their father which might involve the mother.
The Family Report was prepared by the Court Child Expert in January 2021 following interviews on 11 January. In the Family Report, the Court Child Expert records as follows:
32.[Ms Ward] proposes that she have sole parental responsibility for [X] and [Y]. She proposes that the children live with her full time and have minimal to no contact with [Mr Casolani] due to fears for their safety. [Ms Ward] stated in interview that she would be open to supervised time with [Mr Casolani] if [X] and [Y] felt comfortable. [Ms Ward] stated that she would also be supportive of [X] and [Y] spending time with the extended paternal family, particularly the paternal Aunty, cousins and Grandmother. [Ms Ward] spoke about not wanting to ‘cut out’ [Mr Casolani] and acknowledged that he will always be their father. She reported that [X] and [Y] sometimes make comments about missing him or wanting birthday presents from him. [Ms Ward] stated that in these moments, she suggests they could call him, to which they seem initially keen but then change their mind and state they don’t want to speak with him. [Ms Ward] reported that she is open to them re-commencing a relationship with their father if it is within a controlled and safe environment. However, she has serious concerns about them spending time with him without supervision due to [Mr Casolani]’s alleged history of family violence and mental health concerns. She believes that he is unable to provide a safe and predictable environment for [X] and [Y] and therefore would require supervision if he were to spend time with them. [Ms Ward] stated that she is open to phone calls between [Mr Casolani] and the girls, on the condition that the calls are on speaker phone with her present. [Ms Ward] stated that the last phone call was very difficult for [X], due to [Mr Casolani] ‘interrogating her’. She expressed her hesitancy and concern that this could re-occur but feels confident to end the call if need be.
It is apparent that the mother’s attitude towards time between the children and their father has hardened. There was no adequate explanation provided in the course of the mother’s evidence as to why her position had changed. Following cross-examination of the mother by the ICL, the mother agreed that she would be open to some form of time between the children and their father in City R provided that it was supervised. She also indicated that she was open to some time between the father and members of his extended family but not the paternal grandfather.
Notwithstanding such view as expressed in the Family Report and in cross-examination, her position by the time of submissions remained the same as that when the case opened, namely one of no time. I am satisfied, having observed the mother in the witness box, that her parenting capacity would not be impacted by the children spending a limited form of supervised time with the father. She clearly contemplated as much in January 2021 as well as during the course of her cross-examination. I am confident that the mother expressed her true feelings in answers to questions that she could cope with a modest amount of supervised time between the children and the father, notwithstanding her stated position to the Court through her counsel.
The Family Report identifies that there are risks to the children arising from a re-commencement of time. The Court Child Expert reported:
45.[Mr Casolani] spoke about the current parenting situation with sadness and frustration. He confirmed that he has not seen [X] and [Y] since May 2019. [Mr Casolani] proposes that [X] and [Y] return to Sydney and spend time with him in an equal shared care arrangement. He further proposes that he and [Ms Ward] share parental responsibility for [X] and [Y]. [Mr Casolani] stated that he has respected [Ms Ward’s] request for privacy and space and has not attempted to see [X] and [Y] in [City Q]. He also expressed fear that [Ms Ward] would take out an AVO if he approached the school or her home. [Mr Casolani] believes that [X] and [Y] ought to return to [Suburb J] and re-enrol at the [religious] School they attended prior to moving. He stated, “this is where they grew up, they should be up here”. [Mr Casolani] expressed hesitancy about travelling to [City Q] if visits were to be established. He explained that it is a three-hour drive and “does not have time for that”. He stated that he would not be able to leave work to see them and reiterated that they should move back to Sydney. He proposes that [Ms Ward] remain in [City Q] and [X] and [Y] return to his home. In relation to the possibility of supervised contact, [Mr Casolani] stated that he is on the waiting list with [B Services] in [City R] but has not heard from them. He expressed resistance to the idea of supervised visits, stating that it is unnecessary and offensive. [Mr Casolani] spoke about [Ms Ward’s] application to be permitted to move to an ‘undisclosed location’ with [X] and [Y]. He believes this is not related to safety concerns, stating, “she is trying to hide and not be found out because of all the money she has taken”.
In relation to the children, the Court Child Expert observed the following:
57.When asked about the possibility of spending time with her father, [X] stated “it would be a bit scary but would make me happy’. [X] stated that she would not like to see him if her Mum was there also because they would ‘fight’.
…
62.[Y] stated that she was unsure if she would like to spend time with ‘Dad’.
63.[Y] recalled positive memories from when they all lived together, with ‘Dad’. She shared that she enjoyed swimming lessons and playing soccer. [Y] also spoke about a memory of going to [S Park] together.
In relation to the benefit of the children having a relationship with their father, the Court Child Expert reported as follows:
75.Whilst, at this time, it is not deemed safe or appropriate for [X] and [Y] to reside with [Mr Casolani], it is important for them to maintain a relationship with their father long term. It has been almost two years since they have spent time with [Mr Casolani]. This is a significant amount of time, particularly considering their young ages of nine and seven years. Having regular contact with their father will assist [X] and [Y] in their identity formation and sense of self as they process their parents’ separation. It is important for [X] and [Y] to know their father and be given the opportunity to develop a relationship with him. However, considering the risk factors raised, it is recommended that contact between [Mr Casolani] and [X] and [Y] be supervised, at this stage. [Mr Casolani] stated in interview that he is on the waiting list with [B Services] in [City R]. It is recommended that supervised contact commence as monthly, for a period of two hours with the goal to increase to fortnightly. It is also recommended that paternal family members be encouraged to attend some of these visits. In interview, [X] mentioned missing ‘Nanna’ (paternal grandmother) and their cousins. It is important for [X] and [Y] to be engaged with counselling support to monitor their reactions and desires in relation to time spent with their father.
The Court Child Expert made the following recommendations in the Family Report:
80.It is recommended that [X] and [Y] remain living with their mother.
81.It is recommended that [Ms Ward] have sole parental responsibility for [X] and [Y].
82.It is recommended that [Mr Casolani] commence monthly supervised contact with [X] and [Y] and that this increase to fortnightly within six months.
83.It is recommended that [X] and [Y] attend regular appointments with their school counsellor, particularly during the commencement of supervised contact with [Mr Casolani].
84.It is recommended that [Mr Casolani] attend a psychiatrist to obtain a mental health assessment and support plan if required.
85.It is recommended that [Ms Ward] and [Mr Casolani] undergo hair analysis drug testing.
86.It is recommended that [X] and [Y’s] previous school, [T School, U Town], be subpoenaed in addition to their current school.
87.It is recommended that [Ms Ward] attend a parenting after separation course, through [F Services], [City Q].
88.It is recommended that [Mr Casolani] attend a parenting after separation course, through [F Services] or [W Services], Sydney.
89.It is recommended that [Ms Ward] engage in counselling support to monitor her well-being and support post separation.
90.It is recommended that [X] and [Y] spend time with a child psychologist prior to unsupervised contact commencing with [Mr Casolani].
As referred to above, the father did not attend upon a psychiatrist to obtain a mental health assessment, did not undergo hair analysis drug testing, nor did he engage in a parenting after separation course. The father maintained the position at trial that he did not see a need for hair follicle testing or attendance upon a psychiatrist and also maintained that he could not afford it.
The applicable law
Parenting matters are governed by Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA of the Act mandates that the best interests of a child are the paramount consideration. The objects of the Act are identified in s 60B, which sets out not only the objects of the Act but the principles to be applied.
Section 60B of the Act provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Pursuant to s 61DA(1), the Court is required to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for him or her, but that presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence or there is evidence which satisfies the Court that it is not in the bests interests of the child for the presumption to be applied.
In the event that the Court is satisfied that the presumption applies, then pursuant to s 65DAA of the Act, the Court must positively consider whether orders should be made which result in a child spending either equal time or substantial and significant time with both of the child's parents.
Substantial and significant time is defined by s 65DAA(3) of the Act as follows:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(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 or 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.
In determining what time order should be made under s 65DAA(1) and (2) of the Act, the Court looks to whether spending equal time or significant substantial time is in the best interests of the child, and whether as a separate consideration it is reasonably practical.
The best interests of a child are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the child’s best interests. These primary considerations are:
60CC How a court determines what is in a child’s best interests
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(2) …
(a)the benefit to the child of having a meaningful relationship with both of the child's parents and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration set out in s 60CC(2)(b).
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. Those considerations will be discussed further below.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ stated:
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in original)
In reaching my decision, I have considered all of the relevant sections of the Act, albeit that I am not required as a matter of law to specifically address each such consideration.
Primary considerations
Meaningful relationship
It is ordinarily in children’s best interests to have a meaningful relationship with each parent.
The Full Court in Sigley & Evor (2011) 44 Fam LR 439 identified the following as important matters of guidance in relation to s 60CC(2)(a) at 463–464:
(a)“a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26];
(b)“the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)”: McCall & Clark (2009) FLC 93-405 at [118];
(c)“what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”: Godfrey v Sanders (2007) 208 FLR 287 at [36]; and
(d)“The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The courts obligation is to make orders most likely to promote the child’s best interests”: Champness & Hanson (2009) FLC 93-407 at [103].
By the mother’s application, she seeks that there be no time and thus she is of the view that there is no benefit to the children in having a meaningful relationship with their father. That, however, is not the end of the assessment. It is clear that the mother, both in the course of her cross-examination and with the Court Child Expert, was of the view that there was a benefit to the children in having a meaningful relationship with their father. I am of the view, and agree with the Court Child Expert, that there are benefits to the children in maintaining a meaningful relationship with the father. I am satisfied for the reasons I give and the orders I make that the children will have, to the extent possible and consistent with their best interests, a meaningful relationship with both of their parents.
As noted, however, the Court’s obligation is to make orders that are in the children’s best interests and the questions of risk and harm are not subordinate to the issue of meaningful relationship.
Section 60CC(2)(b) abuse and family violence
The primary focus of these proceedings has been the need to protect the children from harm. As indicated earlier, I am satisfied that the mother and children have been subjected to family violence. Thus, there are clearly issues of risk. I am satisfied that the father poses an unacceptable risk to the children in the event that they spend unsupervised time with him.
That unacceptable risk arises from his past behaviour, concerns about his mental health, concerns about his drug use, and concerns about his propensity to violence. I am not able to determine whether or not the propensity to violence is related to his mental health, his drug use, or arises entirely independent of those matters. However, for the reasons referred to, I am satisfied that the risk posed by the father can be managed by the orders that I propose to make.
Additional considerations
The Court must also have regard to such of the additional considerations under s 60CC(3) of the Act as are relevant. I will to the extent that I have not already done so address the additional considerations.
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The children are aged 11 and 8. Given their age some weight can be attracted to the children’s views.
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated:
34.In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
35.... whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed.
It is clear that the Court Child Expert was of the view that some weight should be given to the children’s views as did Mr N. They both record that the children wanted some form of engagement with their father.
(b) The nature of the child’s relationship with each of the parents and other persons
There is no issue that the children have a safe and nurturing relationship with their mother.
They currently have no relationship with their father in circumstances where they have not seen him for over three years. There is, however, the vestiges of a relationship.
It is also clear that at one stage the children had a close relationship with their cousins and other members of the extended paternal family. It is clearly to the benefit of the children to have as many persons in their lives who are interested in their welfare.
(c) Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; spend time with the child; and communicate with the child
The father has failed to take any opportunity to participate or spend time with the children in the period subsequent to separation.
(ca) Extent to which each of the parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The father has failed to meet even the most basic of obligations to maintain the children. It is no excuse that the mother has not made an application for financial assistance by way of child support. The father could, had he been so inclined, have provided some form of financial assistance to the mother and children.
(d) Likely effects of any changes in the child's circumstances including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The proposed orders would not see the children separated from the mother. They have already spent a significant period of time separated from the father and members of his family. The orders as proposed will, if complied with, ensure that the children do not remain separated from him or members of his family.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There remains a difficulty given the distance the parties live from each other. The mother lives in City Q and the father lives in the V Region. That said, the father was agreeable as was the mother to travelling to City R to ensure that the children could spend some form of supervised time with the father. The supervision will come at a cost. I do not propose to impose that cost on the mother in circumstances where the father is making no payment by way of child support. It is a matter for the father to meet that cost if he truly wishes to restore the relationship he says he wants.
(f) The capacity of each of the child's parents and any other person to provide for the needs of the child, including emotional and intellectual needs
I am concerned about the father’s capacity to provide for the children’s emotional and intellectual needs. He has in the past acted in a way that is the antithesis of a parent who has a capacity to meet a child’s emotional needs.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
No submission was put to me that this was a relevant consideration.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right
This is not a relevant consideration.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I have addressed this issue exhaustively above.
(j) Any family violence involving the child or a member of the child's family;
I have addressed this issue exhaustively above.
(k) Any relevant inferences that can be drawn from a family violence order, if it applies
There is no family violence order in place.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Ordinarily it is in the best interests of children that an order be made that would be one that is least likely lead to the institution of further proceedings. In this case, that is not possible. It is the clear recommendation of the Court Child Expert that interim orders should be made and I propose to follow that recommendation.
(m) Any other fact or circumstance that the court thinks is relevant.
There are no other facts or circumstances relevant.
Parental responsibility
Pursuant to s 61DA(1) of the Act, the Court is required to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility.
That presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence, or there is evidence which satisfies the Court that it is not in the best’s interests of the child for the presumption to apply.
I am comfortably satisfied that the presumption has been rebutted. These parents have no capacity to co-parent. The mother has been the victim of family violence. It would be entirely inappropriate that an equal shared parental responsibility order be made.
In light of my findings as to risk, I am of the view that the children’s best interests are served by an order for sole parental responsibility in favour of the mother.
Having made such a finding, I am consequentially not required to consider s 65DAA. I will now proceed to address what time the children shall spend with each parent.
Which parent should the child live with and what time should the child spend with the non-residential parent?
In view of my findings about risk and sole parental responsibility, then consistent with my findings the children should live with their mother. The question becomes what time the children should spend with the father and how it should be spent. As stated earlier, the mother proposed that the children should not spend any time with the father.
In Omacini & Omacini (2005) FLC 93-218, the Full Court said:
30.To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In DJM and JLM (1998) FLC 92-8l6 the Full Court said at 85,262:
“11. 6 For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.”
(b) Where there has been a premature distribution of matrimonial assets. In Townsend and Townsend (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:
“In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband's receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.”
(c) In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644:
“As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec 75(2)(0) to applications for settlement of property instituted under the provisions of sec 79.”
In Trevi & Trevi (2018) FLC 93-858, the Full Court observed:
27.The Full Court held in Omacini and Omacini that addbacks fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and “waste” or wanton, negligent, or reckless dissipation of assets.
28.However, the Full Court also made it clear that an addback does not necessarily occur whenever “a party has expended money realised from the disposition of assets that existed as at the date of separation”, the Full Court describing such a proposition as “unduly simplistic”. An earlier Full Court made the same point, saying that adding back is “the exception rather than the rule”.
29.The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, “the Family Court must take the property of a party to the marriage as it finds it” at trial. An important parallel proposition is that the parties do not “go into a state of suspended economic animation” after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
30.Two fundamental premises emerge from Omacini and the authorities preceding it. First, “adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.
(Footnotes omitted)
This was money withdrawn by the father against the parties’ joint mortgage without the consent of the mother. It led to an increase in their liability to the bank, diminishing the equity in the home. I am satisfied that within the exercise of my discretion it is consistent with notions of justice and equity that the funds be added back.
Accordingly, I find the pool the assets for division between the parties to be as follows:
Ownership Description Value ASSETS 1 J H Street Suburb J $1,350,000 2 W Bank Account CBA …17 Netbank Saver. $1,650 3 W Household Contents $E 2,000 4 W Motor Vehicle 2 $2,500 5 H Bank Account CBA …56 Everyday Offset $E 1,100 6 H K Pty Ltd $274,580 7 H Motor Vehicle 3 $800 8 H Household Contents $E 1,000 9 W Bank Account …39 Youthsaver - Y - $1,618 $E 0 10 W Bank Account CBA …20 Youthsaver X - $1,855 $E 0
Total $1,633,630
ADDBACKS 11 H Father's unilateral withdrawal from the joint mortgage account on 6 June 2019 in the sum of $ 138,000 $138,000
Total $138,000
LIABILITIES 12 J CBA Complete Home Loan …36 $306,409 13 J CBA Complete Home Loan …44 $353,087
Total $ 659,496
SUPERANNUATION Member Name of Fund Type of Interest Value 14 W Superannuation Fund 1 Accumulation $98,239 15 H Superannuation Fund 1 Accumulation $110,241
Total $208,480
FINANCIAL RESOURCES Ownership Description Value $
Total $1,320,614 Assessment of contribution
I have read all of the evidence relied upon in the proceedings including the Exhibits but do not propose to repeat all of it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447:
62. … A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not property considered the losing party’s case.
The assessment in a property case calls for the exercise of a discretion and a holistic value judgment of the respective contributions of the parties. The Court is required to consider all of the contributions of the parties as the Full Court in Dickons v Dickons (2012) 50 FamLR 244 makes plain:
24.…the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
25.Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “giving overzealous attention to the ascertainment of the parties’ contributions” (Norbis v Norbis (1986) 161 CLR 513 at 524 ; 65 ALR 12 at 18 ; 10 Fam LR 819 at 825 ; [1986] HCA 17) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
The Full Court reminds consistently, as stated in Horrigan & Horrigan [2020] FamCAFC 25, that it is:
35.… well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties respective contributions, in a holistic way across the course of the relationship and in the post-separation period to the point of assessment. …
I am also mindful of what the Full Court said in Singerson & Joans [2014] FamCAFC 238 at [66] that for the purposes of s 79 of the Act, there is nothing to suggest that any category of contribution needs to be quarantined and applied solely to particular assets. In my view, the authorities require evaluation of all contributions to the property of the parties, notwithstanding that the categories of property may be different. This view has been confirmed by subsequent Full Courts such as in Jabour & Jabour (2019) FLC 93-898, where their Honours observed that a primary judge should be cautious in emphasising the importance of an increase in value of a particular item of property at the expense of “the myriad of other contributions that each of the parties has made during the course of the relationship” (at [35]).
The consistent theme from the authorities is that the multifarious contributions over the relationship and subsequently of all types are to be assessed in aggregate.
Guided by such Full Court determination, I propose to assess the parties’ contributions.
Consistent with my earlier findings as to the duration and extent of the parties’ de facto relationship, it is clear that the parties commenced cohabitation in or about December 2005.
The mother gave evidence as to each of the parties’ respective initial contributions. In that respect, she contended that she had a motor vehicle, household furniture, superannuation entitlements and money in the bank. I do not place any weight upon her assertions as to value in circumstances where there is no evidence that she has the requisite qualifications and/or experience to express an opinion as to value. In the case of the father, there is no issue that he owned land at Suburb Z. In that respect, his unchallenged evidence is that he purchased the land in 2004 for $39,000 and sold it for $55,000 in 2011.
Both parties were working in full-time employment at or about the commencement of cohabitation, with the mother contending that throughout the relationships she undertook various administrative roles in various companies whilst the father worked as a transport worker.
There are two children of the parties’ relationship. The father conceded that the mother was the children’s primary carer. In that respect, the father contends the following:
27. During our relationship, the mother and I shared responsibility for the children, I worked six (6) days per week I would leave for work between 5,30am to 6.00am and returned home from work between 5pm and 6pm, my roles and responsibilities caring for my children was but not limited to, working full time to provide an income for my children.
In 2011, K Pty Ltd was established. The father was the sole director and shareholder of the company. I accept the evidence of the mother as to the work that she did in the business. Whilst the father took issue with some aspects of it, he did concede that she was employed in the business and worked within it. The mother contends that she did not receive any pay for the work that she did in the business until about late 2014 when she started to draw a wage. The mother contends that the business was profitable, pointing to the quantum of turnover. She identifies that the company had a number of vehicles that were parked on property owned by the father’s parents. She gives evidence as to the value of various items of machinery. I place no weight on her estimates as to value for the reasons given earlier.
In late 2016, the parties purchased in joint names a home at Suburb J. The purchase price for the home was $1,010,000 and the purchase was subject to a mortgage of $760,000. The mother contends that the parties had saved $250,000, which they contributed to the purchase. The father for his part contends that all of the money to contribute to the property was provided by him from his savings.
Whether they were joint funds or provided solely by him matters little. At the time of purchase in late 2016, the parties had as at that stage been in a de facto relationship for nearly 11 years. At the commencement of cohabitation neither party contends that they had any significant savings. Therefore, clearly, any money saved to apply to the purchase were funds that were accumulated during the course of the relationship.
The mother gives some evidence that a shed was constructed on the property to store equipment owned by the company. The mother gives some evidence of improvements to the home during the course of the relationship.
The parties separated in May 2019. In the period subsequent to separation, the mother left the home and moved to City Q. There is no issue that the father made no financial contribution to the support of the children after separation. Whilst the mother did not make an application for child support, that does not ignore the reality that the entire financial support of the children fell to her. It is not in issue in the period since the parties’ separation that the father has not spent any time with the children. Thus, the entire financial, emotional and physical support of the children fell to the mother. In the period subsequent to separation, the father has remained in occupation of the home albeit I accept his evidence that he alone paid the mortgage.
The mother contended that, as a consequence of the family violence perpetrated upon her, her contributions were made more onerous. I have referred to the evidence of the family violence earlier in these reasons and my acceptance of her evidence.
The mother’s allegations are said by her counsel to be relevant consistent with the obiter comments of the Full Court in Kennon & Kennon (1997) FLC 92-757 (“Kennon”). The adjustment arising as a consequence of allegations of family violence was addressed by their Honours in Kennon at 84-294 to the following effect:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
Further, at 84-294–84-295, their Honours said:
It is essential to bear in mind that the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct relating to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions). …
In Keating & Keating (2019) FLC 93-894, their Honours in the Full Court observed in regard to both the Full Court decision in Kennon as well as the Full Court decision in Spagnardi & Spagnardi [2003] FamCA 905 as follows:
39.… the Court in Spagnardi was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouse's contributions, how difficult it might be for the Court to draw inferences which would establish the evidentiary nexus (see Spagnardi at [42]). …
40.In any event, the primary judge gave no consideration to the inferences that might properly be drawn from the wife’s albeit limited evidence as to the effect on her of the husband's violence taken in conjunction with her evidence of the severity of the violence...
The Full Court directs that the necessary nexus between the alleged conduct and the contributions being made significantly more arduous can be established either by direct evidence or by inference. As their Honours in the Full Court in Britt & Britt (2017) FLC 93-764 observed:
74.The respondent submitted that the appellant’s evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.
In Benson & Drury (2020) FLC 93-998, the Full Court observed as follows:
50.… An inference is an assent to the existence of a fact which is based on the proven existence of some other fact or facts, drawn as part of the fact finding process as an exercise of ordinary powers of deduction and reason in the light of human experience, unaffected by any rule of law (G v H (1994) 181 CLR 387 at [4]). Obviously, the strength of the subject inference depends upon the quality of the underlying evidence. It must be reasonable to draw the inference from primary facts. Mere conjecture will not suffice (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275–278 per Spigelman CJ; Carr v Baker (1936) 36 SR (NSW) 301 at 306–307 per Jordan CJ). Importantly, the evaluation of the evidence from which the subject inference is sought to be drawn should be thorough and balanced. In the context of a Kennon argument, any factual controversies over the alleged misconduct of one spouse and its alleged deleterious consequential effects upon the other spouse should be resolved by familiar forensic techniques. Disputed but untested allegations, are not facts (Keating at [55]–[66]).
It would appear from the mother’s evidence that the family violence mainly occurred in two discrete periods. The first up to about 2011 and the second in 2019. It is not to diminish the significance of the family violence to address it in such way but her concessions in cross-examination reveal it to be so. Having carefully examined the mother’s affidavit and her evidence, I am not satisfied that there is direct evidence that her contributions were made significantly more arduous. I am, however, satisfied that I can infer that her contributions were made more arduous.
I accept that a person who is grabbed by the throat, physically prevented from leaving a room, who is slapped, pushed and punched and held down until she could not breathe, who has her front two teeth knocked out and is tied up, is one whose contributions are made significantly more arduous than they would otherwise be absent such conduct.
I note that these parties have each made contributions over the course of the 17 years between the date of commencement of cohabitation and the date of trial. I accept the financial contributions made by the father and the significant contributions made as a homemaker and parent by the mother both during the course of the relationship and more particularly post the parties’ separation. I also recognise her contributions were made more arduous by the father’s conduct.
Taking all of the above matters into account and assessing the contributions in a holistic way, I am of the view that assessment of the contributions of these parties during the course of this relationship and in the period post-separation is properly determined by a contribution based finding in favour of the mother as to 55 per cent and in favour of the father as to 45 per cent.
Section 90SF(3) adjustment
The mother contended there should be a 10 per cent adjustment to her for the various matters under s 90SF(3). The father, for reasons as previously articulated, did not make any contention as to any adjustment.
I am satisfied that, as a consequence of the orders I make, the mother will remain the primary carer of the parties’ children. The children are currently aged 11 and 8. The time proposed that they will spend with their father will, in all likelihood, continue to remain supervised for a significant period of time.
The father has no track record of paying child support and it is in all the circumstances likely that the mother will continue to bear the significant ongoing care of the children in both a physical, emotional and financial sense.
I am not satisfied that there is an income and earning capacity disparity between the parties. The father’s Financial Statement identifies that he has an income of $600 per week from the company K Pty Ltd. The mother for her part identifies that she is earning approximately $52,000 per annum in addition to which she receives various Centrelink benefits.
Both parties are in good health albeit that the mother contends that the father suffers from some mental health issues.
Weighing all of these matters in the balance, I am satisfied that an adjustment is warranted in favour of the mother in relation to her ongoing role in relation to caring for the children. I am of the view that it warrants a five per cent adjustment in favour of the mother.
The result is that the parties’ assets as determined by me will be divided in the percentages as to 60 per cent to the mother and 40 per cent to the father. I am of the view that that is a just and equitable outcome. There is no evidence before me that the father has the capacity to refinance the mortgage and pay the mother the amount necessary to give effect to my findings.
Therefore the home will be sold and the net proceeds divided as to 60 per cent to the mother. Excluding the home and its associated debt, the other assets of the parties total $630,110.
A division of those assets as to 60 per cent to the mother results in her receiving property having a value of $378,066. The mother has in her possession assets and superannuation totalling $104,389. Thus, there will need to be a payment to her from the father’s share of the net proceeds of $273,677.
The mother sought that she be appointed trustee for sale of the home given the father’s past difficulties. In that respect, she submitted that the father’s past conduct indicates that he would not be able to participate in the sale of the home. She points to the fact that the father has retained five separate lawyers, only to have each cease to act. She points to hearing dates being vacated because the father did not comply with s 102NA orders. I am not satisfied that it would be in the interests of these parties for them to be left to negotiate a sale of the home, particularly in circumstances where the mother has been the victim of family violence. I am thus of the view that it is appropriate that a trustee for sale be appointed.
Subsequent to the close of submissions, the mother proposed that her father act as a trustee. Whilst the father did not raise an objection to this course, I am of the view that it would be preferable to have an independent trustee.
The father agreed that if there was to be a sale, it was appropriate that there be a trustee but that it should not be the mother. I agree with his submission and will order that the home be sold by an independent trustee.
I am of the view that the above represents a just and equitable outcome.
I certify that the preceding one hundred and seventy-six (176) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 18 October 2022
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