Wheatley & Campbell

FEDERAL CIRCUIT COURT OF AUSTRALIA

Wheatley & Campbell [2021] FCCA 1337

File number(s):	NCC 1543 of 2019
Judgment of:	JUDGE TERRY
Date of judgment:	2 August 2021
Catchwords:	FAMILY LAW – parenting – dispute about parenting arrangements for a child aged 7 – where the child has been living with her paternal grandparents for over two years - where at the end of the trial there was agreement that she should continue to live with her paternal grandparents and that they should have sole parental responsibility for her – where the issue in dispute was the time the child should spend with her mother and her father – where both parents perpetrated family violence during their relationship and where the mother perpetrated family violence against the paternal grandparents after the relationship ended – where both parents have a history of drug use – where the family report writer who is a clinical psychologist raised a concern about the mother’s mental health which the mother failed to address at trial – where the Independent Children’s Lawyer proposed an immediate commencement of unsupervised time – where the paternal grandparents proposed that supervised time continue until June 2022 – where the court has reservations about whether the child will be safe in the mother’s unsupervised care – supervised time to continue until June 2022 and then unsupervised time to commence – whether an order should be made that the father spend no time with the child – where that order is not practical nor is it necessary – order for the father to spend time with the child if he is drug free but during the day only FAMILY LAW – property – de facto relationship of ten or eleven years – small pool – where contributions slightly favour the father where no adjustment is required for s. 90SF (3) matters
Legislation:	Family Law Act 1975 (Cth), ss 60CC, 61DA, 65LA, 90SF, 90SM
Cases cited:	Gosper & Gosper (1987) FLC 91-818 Robb & Robb (1995) FLC 92-555 Stanford & Stanford (2012) FLC 93-518
Number of paragraphs:	384
Date of last submission/s:	13 May 2021
Date of hearing:	1, 2, 3 February, 29 March and 13 May 2021
Place:	Newcastle
Counsel for the Applicants:	Mr Taylor (on 1, 2 & 3 February 2021 & 29 March 2021)
Solicitor for the Applicant:	Koulouris & Associates
The Applicants:	Appearing in person on 13 May 2021
Counsel for the First Respondents:	Ms Kennedy
Solicitor for the First Respondents:	Ferrys Law Firm
Counsel for the Second Respondents:	Mr Boyd (on 1, 2 & 3 February 2021)
Counsel for the Second Respondents:	Mr Guyder (on 29 March & 13 May 2021)
Solicitor for Second the Respondents:	Strive Family Law & Mediations (on 1, 2, 3 February & 29 March 2021)
Solicitor for Second the Respondents:	NLS Law (on 13 May 2021)
Solicitor Advocate for the Independent Children's Lawyer:	Ms Callander
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

ORDERS

NCC 1543 of 2019

BETWEEN:

MR WHEATLEY AND MS WHEATLEY

Applicants

AND:

MS CAMPBELL

First Respondent

MR B WHEATLEY

Second Respondent

ORDER MADE BY:	JUDGE TERRY
DATE OF ORDER:	2 AUGUST 2021

THE COURT ORDERS THAT:

PARENTING:

X born in 2013 (“the child”) shall live with her paternal grandparents MR WHEATLEY and MS WHEATLEY.
The paternal grandparents shall have sole parental responsibility for the child.
The paternal grandparents shall promptly advise the mother and the father of any decision they make about a major long term issue for the child.
The child shall spend time with the mother as follows:
a)   Until 30 June 2022 for not less than two (2) hours each alternate Saturday with such time to be supervised by C Contact Centre or another Supervision Service mutually agreed between the paternal grandparents and the mother and in default of agreement as nominated by the paternal grandparents. The location and time of the supervised time shall be mutually agreed between the paternal grandparents and the mother and if not agreed shall be as determined by the paternal grandparents.
b)   Thereafter until 31st December 2022 each alternate Saturday from 9.00am to 5.00pm.
c)   Thereafter each alternate weekend from 9.00am on Saturday until 5.00pm on Sunday.
d)   Such additional or alternate time as may be agreed between the paternal grandparents and the mother.
Changeovers for the purposes of Orders 4(b), (c) and (d) shall take place at McDonald’s Family Restaurant Town D or other location as agreed in writing between the paternal grandparents and the mother.
The child shall spend time with the father as follows:
(a)Until 30 June 2022 each Saturday where the child would not otherwise be spending time with the mother for a period of not less than two (2) hours to be supervised by the paternal grandparents. The location and time of that supervision to be mutually agreed between the paternal grandparents and the father and in default of agreement as nominated by the paternal grandparents.
(b)Thereafter unsupervised time each Saturday where the child would not otherwise be spending time with the mother from 9.00am to 5.00pm.
For the purposes of Orders 6(b) the father shall unless otherwise agreed in writing collect the child from and return the child to the paternal grandparent’s home.
For the avoidance of doubt the mother and the father’s time with the child in accordance with Orders 4 and 6 shall continue throughout the school holiday periods.
The paternal grandparents shall make the child available to contact the mother for telephone/FaceTime conversations between 6.00pm and 7.00pm each Wednesday, on her birthday and on Christmas Day and at other times as mutually agreed. Those conversations may be recorded by the paternal grandparents.
The paternal grandparents shall make the child available to contact the father for telephone/FaceTime conversations between 6.00pm to 7.00pm each Tuesday, on the child’s birthday and on Christmas Day and at other times as mutually agreed. Those conversations may be recorded by the paternal grandparents.
The mother is restrained and an injunction is granted restraining her from allowing the child to be left in the sole care of the maternal Aunty Ms E (also known as Ms E) and the maternal grandfather Mr F.
The mother and the father are restrained and an injunction is granted restraining them from using any illicit drugs during or for twenty-four (24) hours prior to spending time with X.
The mother and the father shall:
a) Submit to hair testing to be conducted by an authorised service to test for the presence of illicit drugs with such hair test to be completed before time in accordance with Orders 4(b), (c), (d) and 6(b) commences and for that purpose:
(i)The mother and the father must attend upon their general practitioner to take a sample of their hair and authorise him or her to forward the sample in accordance with the protocols of the testing laboratory.
(ii)The mother and the father must authorise the testing laboratory to carry out hair testing in respect of all drugs covered by the analysis.
(iii)The mother and the father must provide hair samples and do all acts necessary to cause the hair tests to be performed forthwith.
(iv)The mother and the father must authorise the testing laboratory to provide a copy of the results directly to the paternal grandparents.
b) Submit to chain of custody urinalysis of a sample provided under observation to test for the presence of illicit drugs under the supervision or their local General Practitioner at times as the paternal grandparents might randomly nominate in writing to the legal representatives for the mother or the father on no more than one occasion in each month until three years have passed from the date of the last positive result and the mother and the father must authorise the testing laboratory to provide a copy of the results directly to the paternal grandparents.
The time that the child spends with the mother or the father shall be suspended if any hair test or urinalysis test indicates the presence of any illicit drug or has sample integrity issues. The time with the child shall be suspended until the mother or the father produce a clean test result.
Any costs associated with supervised visitations and drug program/testing shall be the sole responsibility of the mother or the father where these Orders specifically apply to them.
All parties to these proceedings shall be restrained by injunction from denigrating the paternal grandparents, the mother or the father to the child or in the presence or hearing of the child or any third party.

AND THE COURT ORDERS WITH THE CONSENT OF THE PATERNAL GRANDPARENTS AND THE MOTHER THAT:

The mother shall promptly inform the paternal grandparents in writing of the name of any person who commences living in her home.

PROPERTY

The money held in the trust from the sale of G Street, Suburb H shall be paid:
(a)As to $89,564.73 the mother.
(b)As to $26,618.54 to the father.
Each party is otherwise declared the owner of all assets in their possession or under their control.
In the event that either party refuses or neglects or is unable to execute any instrument or document being an instrument or document the execution of which is provided for in these orders or is necessary to put into effect the provisions of these orders then at the request of the other party a Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute any such instrument or document in the name of the party refusing or neglecting or being unable to so execute the instrument or document.

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 under the pseudonym Wheatley & Campbell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE TERRY

PARENTING

Introduction

This matter involves a dispute about both parenting and property matters, and the parenting dispute concerns arrangements for X, who is 7.
X’s parents are separated. She has been living with her paternal grandparents since April 2019 and they proposed that this continue.
The father has always supported X remaining with the paternal grandparents. The mother was initially seeking an order that the child live with her but at the end of the trial she agreed that X should continue to live with the paternal grandparents, and the Independent Children’s Lawyer also supported that outcome.
It was also agreed at the end of the trial that the paternal grandparents should have sole parental responsibility for X.
Somewhat curiously the Independent Children’s Lawyer proposed that this should be conditional on compliance by the paternal grandparents with numerous other orders, including orders about X spending time with the mother, the paternal grandparents providing information to the mother and the parties not denigrating each other.
I cannot make an order for sole parental responsibility which is conditional on compliance with other orders. Third parties would have no way of knowing whether there had been non-compliance with other orders and would be left in a state of uncertainty about whether they should do what the paternal grandparents were asking them to do. If there is non-compliance with other orders then the appropriate course, if mediation cannot sort the matter out, is for someone to file a contravention application or an application to vary.
The issue in dispute at the end of the trial was the time X should spend with her mother and father.
The paternal grandparents said that they were concerned about X’s safety with the mother. They said as follows in their affidavit:
Since this date X has been living with us as we had grave fears that returning X to Ms Campbell would continue to expose her to Ms Campbell’s out of control drug use (ice and cannabis) and alcohol abuse, severe mood swings and threats of self-harm, reckless and dangerous driving with X in the car and malicious damage to their home and property, potentially putting X at imminent risk of danger. Ms Campbell had previously threatened to “tear you and your parents down”…[1]
[1] Paragraph 13 of the paternal grandfather’s affidavit.
They said that the mother’s failure to address at trial the concern about her mental health which was raised in the family report and her failure to provide any evidence about her new partner left them unconvinced that X would be safe spending unsupervised time with her and they were also unconvinced that she had ceased drug use. They said that the mother’s older daughter J had mental health and behavioural issues arising out of the mother’s care of her and they did not want X going down the same path.
The paternal grandparents acknowledged that the father was using drugs but proposed that he be able to spend time with X under their supervision and that he should be able to spend the same amount of unsupervised time with X as the mother if he was able to demonstrate that he was drug free.
The paternal grandparents proposed that X spend time with the mother:
(i)Each alternate Saturday for a period of not less than 1 hour supervised by C Contact Centre or another supervision service at a mutually agreed location until June 2022.
(ii)Then each alternate Saturday from 9.00am until 5.00pm with changeover at a McDonalds Family Restaurant until December 2022.
(iii)Thereafter each alternate weekend from 9.00am on Saturday until 5.00pm on Sunday with changeover at a McDonalds.
(iv)At such additional or alternate times as may be agreed between the parties.
The paternal grandparents said that they proposed that the time remained supervised until June 2022 because this was when the ADVO in place for their protection from the mother expired.
The paternal grandparents proposed the same regime for the father save that they proposed that during the period when supervision was required his time with X be supervised by them.
The paternal grandparents proposed that the parents’ time with X be subject to some conditions, namely that they keep the paternal grandparents advised of who else was residing with them, not consume alcohol in the presence of the child or for 12 hours before a visit and not use drugs and that they allow the child to return home if she was uncomfortable or unhappy, protect her from risk from any other person the child may come into contact with and take the child to her sporting or other commitments.
They proposed that the mother be required to engage with a psychologist in regard to her mental health and that the parents be required to do drug tests and that X’s time with them be suspended if they tested positive and remain suspended until they provided a clean drug test. They also proposed that the parents enter a drug and alcohol rehabilitation program.
They proposed that X have weekly telephone or FaceTime communication with each of her parents.
The Independent Children’s Lawyer submitted that the father should spend no time and have no communication with X. It was her case that the father was in the thrall of methamphetamine use and there was no sign that he was likely to overcome it, and he was also a perpetrator of family violence. She submitted that the paternal grandparents had a rose-coloured view of the father and might not keep X safe from him unless an order was made that they not permit any contact between X and the father.
The Independent Children’s Lawyer submitted that X should immediately commence spending unsupervised time with the mother. She said that the mother had a job and was caring for J and there was no evidence that she had recently used drugs. The Independent Children’s Lawyer said that it was disappointing that the mother had not addressed the concerns about her mental health raised by the family report writer but said that this was not sufficient reason to unduly restrict X’s time with her.
The Independent Children’s Lawyer submitted that the mother had been a victim of family violence at the father’s hands and that her future parenting capacity should not be judged by the way she behaved during the relationship.
The Independent Children’s Lawyer said that the court should be concerned about the willingness of the paternal grandparents to permit X to have a relationship with her mother. She said that there was no evidence that X would be unsafe in the mother’s care if she immediately commenced spending unsupervised time with her and the court should make orders which promptly allowed that to occur so that she could re-bond with the mother and her older sister J.
The Independent Children’s Lawyer proposed that X spend time with the mother:
(i)Until 10 October 2022 each alternate Sunday from 10.00am until 2.00pm during school terms and from 10.00am on the second Saturday of each school term holiday until 4.00pm on the following Sunday with changeovers to be supervised by C Contact Centre or K Contact Centre.
(ii)Thereafter and until 10 October 2023 from 3.30pm until 7.00pm each alternate Tuesday, from 3.30pm on Friday until 4.00pm on Sunday each alternate weekend during school terms and for two consecutive days including one overnight in each week of the Term 1, 2 and 3 school holidays and each alternate week in the Christmas school holidays.
(iii)Thereafter and until August 2024 the same arrangement during for the school terms and the Term 1, 2 and 3 school holidays but for 4 consecutive nights in each of the first three weeks of the Christmas school holidays.
(iv)Thereafter each alternate week from Tuesday overnight to Wednesday and each alternate weekend from Friday to Monday or from Friday to Tuesday if the Monday was a public holiday during school terms and for half of the Term 1, 2 & 3 school holidays and for two non-consecutive seven day periods during the Christmas school holidays until 2025 when the Christmas holidays would also become half-half.
She proposed that the mother be required to do drug tests at the request of the paternal grandparents and that her time with X be suspended if she tested positive for illicit drugs.
The mother’s counsel said that she agreed with the orders proposed by the Independent Children’s Lawyer but she proposed one additional order, namely that the mother notify the paternal grandparents in writing of the details of any person who moved into her home.
The mother’s counsel adopted the submissions of the Independent Children’s Lawyer.
The father supported the orders proposed by the paternal grandparents.

The evidence

The paternal grandparents relied on their affidavits filed on 21 January 2021.
The mother relied on her affidavit and financial statement filed on 14 January 2021.
The father relied on his affidavit and financial statement filed on 27 January 2021.
A family report was prepared by Ms L, a Regulation 7 family consultant.
A tender bundle was prepared and at the end of the hearing the court received a list of the documents from the bundle which each party asked the court to read.
I will need to make findings about a number of factual disputes, including allegations by the mother about violence perpetrated by the father; allegations by the father and the paternal grandparents about the mother’s drug use and violence; allegations by the paternal grandparents about the mother threatening and stalking them and the father after separation; the allegation by the mother, which she persisted with during cross-examination, that the paternal grandfather was involved with the father in growing cannabis at the home she and the father shared; and allegations by the mother that the paternal grandparents had breached court orders prohibiting their son spending time with X.

I will need to carefully evaluate the evidence about every issue in dispute but the credit of witnesses can be relevant when assessing the evidence about issues in dispute.
A possible credit issue with the paternal grandfather is that the family report writer commented in her report on his propensity to shut the paternal grandmother down. She said as follows:
It was noted that the paternal grandfather spoke over the grandmother on numerous occasions and would tell her not to say things to the Family Consultant. It gave the impression that he was not completely transparent or highly controlling of the grandmother.[2]
[2] Paragraph 119 of the Family Report.
A possible reason for this emerged at trial. It was apparent when the paternal grandmother was cross-examined, and also on occasions when viewing her reactions to things that were happening in court, that she had stridently negative views about the mother and was passionately supportive of her son. The paternal grandfather may have been engaging in image management out of a desire to ensure that X remained in the paternal grandparents’ care, the only place he considers her safe. Other than that issue the paternal grandparents presented a consistent and reliable case.
The father made an admission against interest in the witness box about current methamphetamine use and he was not caught out in inconsistencies during cross-examination, but he has considerable antipathy for the mother and was less than frank in his affidavit about his role in the family violence during the relationship which he admitted had occurred. I will need to carefully assess his evidence and weigh it up with other evidence in the case when I need to make findings about issues in dispute between the parents about what occurred during their relationship.
The mother said that she intended to plead guilty to a charge of planting evidence to try and secure the father’s conviction for breaching an ADVO, and her willingness to tell lies to achieve an outcome has implications in a hearing in which she could also be motivated by self-interest to be untruthful. Her refusal to budge from her assertion that the paternal grandfather cultivated cannabis with the father at the home she shared with the father, which she must know to be untrue, and the evidence she gave in an affidavit filed in Suburb M Local Court about something which occurred in court in Newcastle also give rise to significant concerns about her credit as a witness.

Background

The mother and father commenced a relationship in 2008 when the mother was 22 and the father 35. Their daughter X was born in 2013.
The mother has an older daughter, J, who was born in 2006. She was eighteen months old when the mother and father commenced a relationship and she calls the father “Dad”.
The mother said that J’s father Mr N was violent to her and had spent periods of time in jail and that as a result he had a limited relationship with J. There was no independent evidence which supported those allegations but there was no dispute that Mr N did not have anything to do with J during the parties’ relationship.
Between 2008 and either 2011 according to the father or 2008 and 2009 according to the paternal grandfather the mother and father lived in Sydney, but they then began renting a property at G Street, Suburb H which was owned by the paternal grandparents, and in March 2017 they purchased this property from them.
The mother said that she was X’s primary carer. The father said that the mother returned to work when X was 6 months old and that her care was shared between the parties. He said that he was an involved father with both X and J and taught them to ride bikes and pee-wees and was involved in picking X up from day care.
I accept that the father played a role in caring for X but I am satisfied that the mother was her primary carer. On the father’s own evidence for at least the last three years of the relationship he was working six days a week and commuting to Sydney. He said that he left home at 5.30am and returned at 5.00pm or 6.00pm on weekdays and at 3.30pm on Saturdays. According to the father’s own evidence the mother was working at Suburb H and was working 35 hours a week with 4 days onsite and one day working from home. She was clearly much more available to care for X.
X was born after the parents moved to the Region O and the paternal grandparents, who also live on the Region O, had regular involvement with her after her birth. She had her own room at their home and for a period of twelve months, until a disagreement with the mother, they were responsible for taking her to day care.
It is clear from the evidence of the parents and from documents tendered during the hearing that the parents had a dysfunctional relationship. They both used drugs, including ice, although the extent of their use was in dispute, and the mother alleged that the father grew and sold drugs.
There was also family violence although there was a dispute about who was the main perpetrator, and the father alleged that the mother also drank excessively and had mental health issues.
The events which precipitated the end of the relationship began on 14 January 2018.
The father said that he returned home at about 7.00pm to discover glass all over the floor in every room, holes in the walls and a large hole in the main bedroom door. He said that the mother was asleep in bed and the hot water tap in the shower was running and the shower door was ripped off its hinges.
The father said that he left and returned at 9.00pm to find the stereo blaring. He said that he turned it off and left and returned again at 11.00pm. He said that he lay on the bed and after an hour the mother awoke and got up and broke the bedroom door by slamming it 4 or 5 times and did the same to the sliding door on the ensuite.
The father said that he gathered up his work-clothes and left and that as he went out he saw that the children’s large TV was pulled to the ground and damaged.
The father went to work the next morning and while he was at work he received a text message from the mother to which was attached a picture of a burning pile of clothes in the living room. The message said as follows:
They will be better off now to. You’ll just tell them that I was crazy and they’ll grow up to hate me like you do. They’ll be happy I’m gone to.[3]
[3] Annexure D of the paternal grandfather’s affidavit.
The father said that he and some friends raced home and found smoke billowing from the windows and the mother sitting on the floor in the family room rocking back and forth crying. The father and his friends managed to get the mother outside and the father said that she began yelling and throwing bricks at the front security screen windows.
The father called the paternal grandfather who called police. They attended and the mother was taken to hospital.
X was staying with the paternal grandparents at the time and did not witness any of this.
The paternal grandfather viewed the substantial damage to the home and took photographs of it which he attached to his affidavit. They bear out the father’s evidence about the damage to the home including the fact that there was a hole in the bedroom door, the shower screen was ripped off its hinges and bricks were thrown through the window.[4]
[4] Annexure E of the paternal grandfather’s affidavit.
The mother agreed during cross-examination that she sent the text message and the photograph of the burning clothes. She agreed that she was responsible for the brick being thrown through the window. She denied that she was responsible for damage to the shower door, the bedroom door and other items around the home but I do not accept her denials. I am satisfied that the evidence given by the father and the paternal grandfather about what they saw and heard is an accurate account of what happened.
On 17 January 2018 the mother returned to the home. The father was at the home and he let the mother in and went to his parents’ home to sleep.
The father said that the following morning he returned to the home and when the mother saw him she began screaming. He said that a wrestling match ensued as he tried to get her outside the house and the police were called. He said that after the police arrived the mother settled down and the father allowed her into the home.
The paternal grandfather corroborated some of this evidence. He said that he dropped the father off at the house that morning and continued on to work, and had just arrived at work when he received a call from the father requesting help. He said that he could hear the mother screaming in the background. He said that when he arrived at the house he saw the mother and father wrestling with each other and he said that the father managed to get the mother outside.
The paternal grandfather said that he called the police and locked himself in his car awaiting their arrival.
The mother’s evidence was that this incident involved an assault on her by the father and the paternal grandfather who roughly dragged her and who both threw her out of the house. I do not accept that. The paternal grandfather was a witness of credit and I accept his evidence about what he saw and heard. The behaviour he described is also consistent with the frame of mind the mother seemed to be in at that time.
The police took no action after being called to the home and the parents continued to live in the home. The mother said that they were separated under one roof. The father did not concede that was the case but he did refer in his affidavit to a suggestion that he live in a separate part of the house and it seems more likely than not that the de facto relationship broke down in January 2018.
There were ongoing issues throughout 2018 and it must have been a miserable year for the children.
The paternal grandfather detailed a number of incidents which caused him to be concerned about the mother’s functioning and mental health. He said as follows in his affidavit:
I submitted nine (9) separate reports to Department of Communities and Justice (DCJ, who were then FACS) between 28 August 2018 and 8 September 2019 detailing numerous disturbing incidents. Concerns regarding Ms Campbell raised in these reports included but were not limited to ice and cannabis use, damage to property, mistreatment of J, threats and intimidation aimed at Mr B Wheatley, Ms Wheatley and myself such as the text message dated 5 September 2018 which said words to the effect of “My sole purpose in life is to tear you and your parents down” and “make you all suffer”.[5]
[5] Paragraph 39 of the paternal grandfather’s affidavit.
DCJ did not act on any of the notifications during 2018.
On 2 February 2019 there was an incident between the parents which led to the mother calling the police and on 4 February 2020 took out an ADVO for her protection from the father. Thereafter the father lived at the paternal grandparents’ home. He continued to spend some time with the children although I cannot make a finding about the extent of it.
The paternal grandfather remained concerned about X’s welfare. In March 2019 he contacted DCJ and said that J had told him that her mother had broken mirrors in the bedroom and cut her hands and feet on the glass and left a trail of blood. He said that DCJ informed him that they were unable to progress the matter and had other competing priorities.
He said that there was a further incident where an anonymous person called the police after hearing a female yelling at the premises and loud banging coming from within the residence. He said that when police arrived the mother was found with her hand wrapped in a t-shirt and blood on her shirt and that she later required surgery to repair tendons in her hand. There was also an incident, and I am unclear about whether it was the same incident, where J alleged that the mother had thrown a Dyson fan at a picture and been cut by glass.
On 17 April 2019 the father brought X to the paternal grandparents’ home and asked them to look after her. He said that he did so because the mother asked him to look after both children for the school holidays and he was unable to do that, and so he took X to the paternal grandparents’ home and took J to Sydney to stay with a maternal relative.
I cannot make a finding about whether the father is telling the truth about why he delivered X to the paternal grandparents. The mother has always alleged that he kidnapped her. However wherever the truth lies, once X was with the paternal grandparents they refused to return her to the mother.
On 21 May 2019 the paternal grandfather filed an application seeking parenting orders and on 29 May 2019 an interim order was made for X to live with the paternal grandfather and spend time with the mother supervised by P Children’s Contact Centre. There is mention in the order of the possibility of time supervised by the mother’s sister Ms E occurring if certain things happened but nothing ever came of that.
No order was made about the father spending time with X but an order was made that the paternal grandfather not leave X alone with him.
In due course an order was made adding the paternal grandmother to the proceedings as a joint applicant.
The paternal grandparents said that after X came into their care the mother stalked and threatened them and that her sister Ms E sent them a message threatening to harm them. They made complaints to the police and on in June 2019 interim ADVO’s were made protecting the paternal grandparents from the mother and the paternal grandparents from Ms E.
The mother made complaints about the father breaching the ADVO made for her protection. Some went nowhere but in or about October 2019 the father was charged with breaching the ADVO and was remanded in custody and remained in custody until 5 December 2019. On 14 November 2019 an order was made in this court restraining the paternal grandparents from allowing him to be present in their home when X was there or from having any contact with X. He was given liberty to apply for an order about spending time with the child upon his release from jail.
In November 2019 the mother’s time with X at P Contact Centre had still not commenced. The paternal grandparents alleged that this was because the mother did not take part in the intake procedures, but there is always a waiting list even once the intake procedures have been completed and I cannot make a finding about whether tardiness by the mother was part of the reason for a delay in time commencing at P Contact Centre.
As a result of the delay on 14 November 2019 an order was made for the parties to engage the services of K Contact Centre, a private supervision service. The mother was required to meet the costs and this time was to cease once a place became available at P Contact Centre. If I understand the evidence correctly no time happened as a result of this order because the mother said that she was unable to pay for it.
On 4 January 2020 the paternal grandparents made a complaint to police about the mother making four calls to his phone calling him a paedophile cunt and saying that she was going to kill him. I will refer to this again later but I accept his evidence that this occurred.
In January 2020 the mother was charged with a number of offences including destroy and damage property, stalk intimidate, using a carriage service to menace and harass and making false accusations with the intent to subject others to investigation and making a false representation resulting in a police investigation and with two counts of breaching an ADVO.
The charges of making a false accusation and a false representation arose out of the fact that the mother had made a complaint to police that the father had attempted to break into her home and told them she had evidence of it because he had dropped a packet of prescription medication with his name of it at her house. The father strongly denied the allegation and a subsequent investigation by the police revealed that the mother had planted a box of Panadeine Forte with the father’s name on it at the former matrimonial home to prove that the father had been there.
The mother was charged and in due course pleaded guilty to one of the charges in connection with that incident.
Supervised time between the mother and X commenced at P Contact Centre on 15 February 2020. However it was discontinued on 28 March 2020 due to Covid 19 issues and did not resume until 15 August 2020.
P Contact Centre only ever provide six months of supervised time, and the last visit at P Contact Centre took occurred on 5 December 2020. When the end was approaching the mother’s solicitor sent the paternal grandparents a letter proposing that X spend unsupervised time with the mother each alternate Saturday from 9.00am to 5.00pm.
The paternal grandparents said that in light of the criminal charges the mother was facing they would not agree to unsupervised time. They proposed that she spend time with X supervised at a contact centre run by Q Contact Centre at the mother’s expense.
The mother did not agree to this and when the trial commenced in February 2021 the mother had not spent time with X since 5 December 2020.
The trial was listed on 1, 2 and 3 February 2021 but it could not be concluded because the family report writer was not available for cross-examination. After some discussion an order was made on 3 February 2021 for X to commence spending time with the mother supervised by C Contact Centre, a private supervision service. There was some delay in this occurring but a supervised visit took place on 1 May 2021.
The family report writer was cross-examined on 29 March 2021 and submissions were made on 13 May 2021 and judgment was reserved.

The parties’ circumstances

The paternal grandparents are 69 and are in good health. They live at Town R on the Region O. The paternal grandfather is semi-retired and had been doing some contract consulting work. The paternal grandmother is engaged in home duties.
X attends S School in Town D.
The mother is living with J in a three bedroom townhouse on the Region O. She made no mention in her affidavit of having a partner but during cross-examination she said that she had a partner called Mr T. She said she had been seeing him for nearly a year and that he did not live with her.
The mother lost her job in November 2019 but in about May 2020 she commenced employment with the Employer U as a an office worker and she was still in that job at the time of trial.
J is 14. She has some significant problems which I will refer to later in the judgement.
The father is living in City V. He is not working. He is using methamphetamine and has been picked up for drug driving.

Specific Issues

Before making findings about the matters in s. 60 CC (2) & (3) of the Family Law Act I intend to consider the evidence about the following matters, because findings about them will be relevant to more than one of the s. 60CC (2) & (3) considerations:
(i)Drug use by the mother and father.
(ii)The nature and extent of violence in the mother and father’s home.
(iii)The mother’s mental health.

Drug use by the mother and father

The father has an extensive drug use history. He said that he began smoking marijuana when he was an 18 year old apprentice tradesman. He said that during his twenties he used ecstasy at nightclubs. He appeared in City W Magistrates Court in 2001 charged with possessing dangerous drugs. No conviction was recorded but he was fined $1,500.00.
The father said that he ceased using cannabis about four years before he met the mother but he later began using methamphetamine, or ice. He said that when he commenced a relationship with the mother he and the mother used ice together.
The father said that for most of the relationship the parties used ice sporadically and that there were long periods when he ceased using it. However he said that in the last six months they would smoke ice at night together after the children were in bed asleep and that they were both using ice heavily.

The mother alleged that the father grew cannabis at the Suburb H property and was involved in the sale of plants, leaves and equipment. She said that she did not see him regularly use cannabis but he would inject steroids and when she was pregnant with X in 2013 he began smoking ice from a pipe. She said that in the last year of their relationship he was using ice daily.
The mother provided minimal information about her past drug use in her affidavit. She admitted to some drug use during the relationship but not much. In her trial affidavit she said that she used ice with the father on around three occasions after X was born and after she had ceased breast-feeding her. She made no mention of using cannabis during the relationship.
The father alleged that the mother’s regular routine would be that when she woke in the morning she would go into the garage which had internal access and smoke marijuana.[6]
[6] Father’s affidavit paragraph 90
J told a case worker from DCJ who she spoke to during the relationship that she had seen the mother and father fighting over a bong, and during cross-examination the mother admitted that this had occurred.
There is evidence in the tender material that from around 2016 or 2017 the paternal grandparents were worried about drug use in the parent’s home. The paternal grandfather said that they began to suspect that the parents were using drugs because they found paraphernalia such as a glass pipe and could smell cannabis in the home. The paternal grandmother said that this was evident from about 2017.
On 2 July 2016 the paternal grandfather sent the mother a text message which included the following:
Both Ms Wheatley and I have made it very clear to you both that we do not condone drugs of any type, it would seem that the both of you have a problem that is spiralling out of control. The affect (sic) that this will have and is having on the girls is sad and unacceptable. Both of you are seriously jeopardizing the girls stability and future lives.
We have supported you and Mr B Wheatley over many years, making available our family home in Suburb H. We have even offered to provide you both financial support in order to purchase the home from us and provide your family with stability. We have reached the point whereby we insist on our property being free of illegal drugs and drug paraphernalia. Should you and Mr B Wheatley not be able to comply within a short period of time then we will have no option but to put the property for sale on the open market.[7]
[7] Exhibit I
The paternal grandmother said that she raised a concern about the mother’s drug use with the maternal grandmother, now deceased, but to no avail.
I do not accept that the mother was honest about the extent of her drug use prior to separation. She made no mention of using cannabis during the relationship but the implication in her affidavit was that she did, because when referring to the fact that she tested positive for cannabis in a hair test in November 2019 she said she used cannabis prior to the test and it was the only time she did so after separation.
The mother did a hair test in May 2019 which was negative for illicit drug use but as was pointed out to her at the time, the hair test was done by an organisation which stated that the results were anonymous and for personal use only and were not intended to be used in court or legal proceedings and I cannot place weight on that result.
The mother did a second hair test in November 2019 which was positive for cannabis. She did another test in June 2020 which was negative for illicit drugs.
The father alleged that he visited the former matrimonial on one occasion after he and the mother separated and the mother commenced a relationship with Mr Y he saw lines of cocaine on plates and other surfaces within the home. This is not evidence of the mother using cocaine and I can do nothing with that evidence.
There is no evidence that the mother is currently using drugs but she was not open and honest about her past drug use which makes it impossible for me to assess how likely it is that she will use drugs again in the future.
The father did a hair test on 5 February 2020 which was negative for illicit drugs and in his affidavit filed on 27 January 2021 he suggested that he had seen the light and no longer used drugs. However he admitted at trial that he had been charged with drug driving in 2020 and that had used methamphetamine only a month before the trial.
There is considerable force in the following observations by the family report writer:
Drug use has a deleterious impact upon parenting capacity and children raised by parents under the influence of drugs are unlikely to have their physical or psychological needs met and are often exposed to dangerous environments. Children can also be exposed to drug taking paraphernalia and associates of their parents who are affected by drugs which can bring a range of risks into the child’s world. It appears that J is aware of her mother’s drug taking and appears to believe Mr B Wheatley is a drug dealer. The subpoenaed material suggests that J has several concerning behaviours and it is likely that if X is raised in a similar environment her life path may take a similar trajectory. Efforts to protect X from exposure to a drug using environment and parents under the influence of drugs would be recommended. [8]
[8] Family Report paragraph 94

The nature and extent of violence in the mother and father’s home

In her trial affidavit the mother said that the father was violent to her throughout their relationship. She said that he was quick to anger and would yell and scream at her and the children and frequently broke things around the house. She said that his outbursts escalated into physical abuse, including kicking, hitting, choking and throwing her around the room. She said that he would pin her to ground by his knee and punch her repeatedly.
She said that the children were exposed to the violence and J often tried to intervene by jumping between her and the father when he was assaulting her. She said that the father would grab her roughly and push her out of the way.
She also detailed threats and verbal abuse. She said that the father controlled the money and she found it difficult to pay for necessities as groceries.
The mother said that on Christmas Day 2014 the father became angry because she did not have his underwear ready and that he threw her to ground and kicked her body. She said that she was so shocked and in pain that she started to have an asthma attack. She said that she thought the father was going to kill her. She said that both children were in the room and started crying and J was screaming at the father to stop.
She said that the father took both children and left and when he came home later that day he told the mother that it was her fault he had hit her.
On 7 July 2016 the mother sent the paternal grandfather an email alleging that the father had “beaten the crap out of her” and she had a fat swollen nose and was unable to walk.[9]
[9] Annexure 3 to the mother’s trial affidavit.
The mother said that on 28 December 2017 she and the father had an argument after she asked him to pay for some accident damage he had caused to her car. She said that he chased her into the bedroom, grabbed her by the throat and began slamming her against the metal shelving. She said that J and X ran into the room and were screaming and crying. She said that she was unable to perform neck-flexion movements for a week and the father would not allow her to leave the house until a week passed and her neck was better.
The parties had become engaged in 2017 and the mother said that in January 2018 they had an argument over the father’s lack of interest in planning the wedding which was due to take place in 2018. She said that he verbally abused her and told her to cancel the wedding and hit her on the face and nose using his hand in an upward movement. She also alleged that during that incident she was dragged and kicked by the father in January 2018 but I have made a finding about those incidents.
The mother said that toward the end of November 2018 she and the father had an argument because she had spent $75.00 on a Christmas present for J. She said that the father grabbed her and shoved her through a glass dining table. She said that she was stuck in the table for a while bleeding and had cuts all over her body and a large cut on her thigh. She said that the father pulled her out of the table and refused to let her go to the doctor.
The mother said that on Boxing Day 2018 she and the father argued and the father dragged her out of his man cave by her hair and face. She said that J and X heard her screaming for help and came running.
The mother said that the father left the house on 2 February 2019 but came back when she was sleeping and tried to get into bed with her. She said that she called the police and they asked him to leave. She said that he came back on 4 February 2019 and turned the mains power off to the house. She said that she called the police again and they attended and took a statement and said that they would apply for an ADVO.
The mother said that notwithstanding this and the fact that she put in various security devices the father continued to return to the house. She said that he cut holes through the gyprock ceiling and even the wall behind the fridge to gain access to the detached garage and man cave and that 15 breaches of the ADVO were reported to the police.
The father admitted that there had been family violence during the relationship and by implication that he had perpetrated some of it. However he alleged that the mother was the primary perpetrator. He said as follows in his affidavit:
I admit that there was substantial family violence during our relationship, and that both Ms Campbell and I failed to protect the children from the effects of that violence. Whilst it is my view that Ms Campbell was the primary perpetrator or initiator of that violence, I don't propose to set out here all the instances. The police were called to our home on numerous occasions, and presently both Ms Campbell and I are subject to Apprehended Violence Orders.[10]
[10] Paragraph 11 of the father’s affidavit.
The father alleged that the mother would become paranoid and fly into a rage. He said that there was an incident at Town Z in 2015 where the mother was yelling and screaming and was so out of it that she attempted to run people over at a bus-stop. He said that in 2016 she threatened in the presence of X and J to cut her hand off with a meat cleaver and that he had to forcibly remove it from her.
The father made no admission in his affidavit about any particular acts of violence he had committed and he said that the mother would make false claims that he had assaulted her. He said that on 23 January 2018 the parents had an argument over outstanding child care fees and the mother threatened to call the police and say that he had assaulted her. He said that in March 2018 they argued and she told him that she had called the police and told them he had been abusive to her. He said that she did call the police but they did not see anything which concerned them.
He alleged that on 18 May 2019 he had X in his care and J contacted him and asked him if he would meet her so that she could see X. He said that it turned out to be an ambush and that when he drove to the location the mother appeared out of bushes and tried to drag X out of the car through the window. He said that J was there and attempted to pick up a large rock and also proceeded to kick and damage his car. He said that she threw a rock at the car as he drove off.
The paternal grandfather alleged that the mother had used Instagram, Facebook, text and telephone messages to harass, belittle, bully, threaten and intimidate the father. He set out in his affidavit of number of examples of this abuse which included the mother saying things such as “you have fucked my life I want you fucking dead cunt” “you are violent, abusive, disgusting putrid excuse for a human” “just come here and kill me now please” “Congratulations, I give up on life now.”
The mother did not deny that on 5 September 2018 she sent the father text message which said:
My sole purpose in life is to tear you and your parents down and make you all suffer
The mother otherwise denied the allegations made by the father and did not admit sending the messages referred to by the paternal grandfather. She made some admissions as noted earlier about her actions in January 2018, which were acts of family violence, but it was her case that her behaviour was precipitated by the father calling off the wedding and should not be held against her.
Assessing where the truth lies about the allegations and counter allegations about family violence between the parents is difficult.
I do not accept the mother’s evidence about the father kicking or assaulting her during the January 2018 incident but the father was very circumspect in how he dealt with the other allegations about his actions during the relationship and there is likely to be some truth in them. On his own admission using ice extensively toward the end of the relationship and I cannot rule out the possibility that this fuelled violent behaviour and/or means that he does not accurately remember what happened.
J has told others that the father was violent. The family report writer said as follows:
J reported that the family home was happy before X was born. She reported that she missed the good moments with Mr B Wheatley but that there were lots of ‘bad moments’. She reported that after X was born, Mr B Wheatley would lash out and throw things at her mother and cause her mother to have an asthma attack. One occasion Mr B Wheatley reportedly grabbed her mother by the throat and dragged her to the front lounge room. She reported that her mother would push Mr B Wheatley lightly and that he would hit her mother back.
J reported that on one occasion, when she came home from school, Mr B Wheatley slammed her mother into shelves and dragged her mother onto the cement outside. [11]
[11] Family Report paragraphs 100 & 101
The family report writer also said as follows:
Later subpoenaed records begin to reference Mr B Wheatley’s violence to the mother. J stated that ‘Mr B Wheatley is violent and sells drugs’ and ‘I saw Mum choked and once Dad threw her onto a glass table’…[12]
[12] Paragraph 82 of the Family Report.
There is no doubt the father perpetrated family violence although I cannot make exact findings about it. The mother painted herself as always the victim and never the perpetrator but her behaviour in January 2018 was a prolonged act of family violence. It cannot be justified or explained by the father telling her that he was calling off the wedding, and she admitted sending a threatening message to the father.
The father’s evidence about the Town Z incident is credible in the light of the mother’s behaviour in January 2018.
The family report writer carefully reviewed the subpoena material and it contains references the mother behaving violently to J. The family report writer said as follows:
The mother does not appear to have protected the child from the violence and the overall picture appears to suggest that much of the home violence was the mother’s inability to regulate her emotions. The subpoenaed records from J’s school appear to indicate that the mother was violent in the home and referred to the mother’s drug taking and aggression. A quote from J on 13/9/2017 in her school records stated. ‘I’m scared of Mum. I hate Mum…Mum hit me with a spatula till I couldn’t breathe. My Mum hates me. I hate myself and want to stab myself to death. Everything is wrong at home. She’ll yell and smack me with lots of utensils … hits me across the head. I’ve tried running away six times because Mum is mean to me’.
Further, the DFACS subpoenaed material from 8/2/16 quoted J as stating, ‘Mum smacks me with a cake spoon anywhere on me … I don’t like it when she yells, when she hits and sometimes bites me. Sometimes she pulls my hair. Sometimes they fight over ‘the bomb’ but I’m not supposed to know…Mum is always cranky because of it and Dad does not like her having it… I’m worried about saying something I shouldn’t have.’ [13]
[13] Paragraphs 80 and 81 of the Family Report
The family report writer also said as follows:
The psychological impact to the mother is reported as her experiencing post-traumatic stress with constant fear and anxiety and panic attacks. However, it appears that pre-dates the relationship with the father and the mother’s medical records appear to indicate that she was in a physically violent relationship with J’s father. Her medical notes from Region O Area Health indicated that there was no violence in her relationship with Mr B Wheatley until 2018 and that Mr B Wheatley preferred to ‘walk away’. The notes stated that the mother said that she needs her outlet ‘so it doesn’t explode’. The notes stated that the mother said the father would ‘walk in during the damaging episodes with this look of self-righteous on his face and then I would get in another rage and smash up the house again’. This appears to indicate that the mother’s lack of emotional regulation is a key factor in the family violence and whilst it does not necessarily exonerate the father, it may indicate that the violence was initiated by the mother’s explosive reactivity.[14]
[14] Paragraph 78 of the Family Report.
The mother’s capacity for aggression is illustrated in a letter sent to her by Suburb H Public School on 9 August 2017. They said as follows:
I refer to an incident that occurred at school on the afternoon of the 8^th of August and again on the morning of the 9^th August 2017 when you entered onto the Suburb H Public School grounds. You became verbally aggressive towards Ms AA and other staff and displayed this aggression in front of other parents and new Kindergarten enrolments. Your behaviour was intimidating towards the staff, parents and young children who were present. Some of these children present were only 4 or 5 years of age. I also note that on the last week of Term 2 this year you were also verbally abusive towards Ms AA over the phone causing her great distress.[15]
[15] Exhibit “H”.
I am satisfied on the balance of probabilities that the mother also perpetrated family violence during her relationship with the father.
The family report writer said as follows:
The primary perpetrator of the violence is disputed. In this case it is difficult to ascertain the primary perpetrator as there are factors on each side. The overall pattern appears to be consistent with mutual couple violence. [16]
[16] Paragraph 125 of the Family Report.
The Solicitor Advocate for the Independent Children’s Lawyer urged the court not to accept that and to find that the father was the perpetrator of family violence during the relationship. She referred to the fact that he was either charged in Queensland in January 2010 or a Protection Order was made against him after an incident where he palmed the mother in the face.
However the conclusion by the family report writer that the relationship may have involved mutual couple violence gains considerable force from the material produced by Queensland Police about a series of incidents between the parents which led to the police becoming involved.
In the Facts Sheets presented to the court when the father was charged it was stated that on 2 January 2010 the parties had an argument and that the mother threw a book at the father who used a palm thrust to strike her several times to the head.
It was recorded that on 3 January 2010 another argument developed and the mother threw a jug of alcoholic drinks over the father. The father went upstairs to the parties’ room and went into the bedroom and blocked the door. The mother kicked the door open. The father came through the door and slapped the mother once to the left cheek.

The police noted that there was no record of any domestic violence incidents between the parties in Queensland and that the mother said that there had been no domestic violence interstate. Police also noted that the mother was injured during the incident.
I am satisfied on the balance of probabilities that the parties were both perpetrators of family violence during the relationship.

The mother’s mental health

The mother’s actions in January 2018 give rise to considerable disquiet about the state of her mental health, as do the father’s descriptions about her explosions of temper and some of the information in the subpoena material referred to by the family report writer.
The paternal grandparents said that there were some disquieting incidents after separation. The paternal grandfather said that on 15 March 2018 they were informed that J said that the mother had broken mirrors in the bedroom and cut her hands and feet on the glass and left a trail of blood and then smashed the front door.
The father said that on 17 April 2019 the mother cut her hands. He said that he had been told that the mother smashed her hand into a large glass picture frame after finding that X was staying with the paternal grandparents.
The paternal grandfather said that on 23 April 2019 when X was in their care a neighbour of the mother’s rang him and asked if X was safe. He said that he and his wife had been woken at 12.30am by loud, out of control screaming and banging and smashing.
The paternal grandfather said that on 29 April 2019 J told him that the mother had smashed the oven door and a big glass photo frame and had cut her hand and needed stitches. She also said that the mother threw a Dyson fan at the wall. Police were called to the home by someone on that occasion and the mother was found outside the premises with her hand wrapped in a T-Shirt with blood on the shirt.
I do not know what happened during the incidents the paternal grandfather was told about by J and a neighbour but the mother admitted that she cut a tendon although she said it was an accident. Although I cannot make findings about what happened this information when combined with uncontroversial information about the incidents in January 2018 and the information in the subpoena material by the family report writer raises a red flag and only emphasises how important it was for the mother to deal with the concerns raised about her mental health.
The paternal grandfather alleged that the mother committed other acts of property damage after separation including setting a fire in the games room which added to the concerns about her mental health. These allegations were insufficiently explored at trial for me to confidently make findings about them.
At the family report interviews on 14 January 2020 the mother told the family report writer that she had been diagnosed with complex PTSD with severe panic attacks. The family report writer is a clinical psychologist and after reviewing the subpoena material about occasions when the mother had been violent and explosively reactive she said as follows:
The mother presented as denying responsibility for her actions and stated that she only tried to fight back when the father was violent to her. She denied that she damaged property and claimed that the father damaged the property when he breached the ADVO’s and blamed her. When asked about the video of her hitting a garage door with an implement, she denied that this was her. The mother acknowledged that she set fire to items in the house but claimed that she was upset and had a fire extinguisher close at hand. It is the opinion of the Family Consultant that the mother would benefit intense ongoing psychological treatment and may be showing signs of a Cluster B Personality Disorder that would benefit from psychological therapy.[17]
[17] Paragraph 83 of the Family Report.
Later in her report the family report writer recommended that the mother have a full diagnostic review of her mental health before consideration was given to X spending unsupervised time with her.
The mother has engaged only briefly with a psychologist since the incident in January 2018 and she has not had a full diagnostic assessment and provided no independent evidence about her mental health at trial.
It was imperative that the mother put these concerns to rest. The incident in January 2018 involved significant property damage. A child present at such an event could have been injured and would at the very least have been severely psychologically distressed. It is not just disappointing that the mother failed to address the concerns raised about her mental health, it leads me to be considerably concerned about her parenting capacity and about whether X will be safe in her unsupervised care.

X’s best interests

Any orders I make about X must be orders determined by treating her best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act set out the matters to which I must have regard in order to determine her best interests.
S. 60CC (2) contains the primary considerations, which are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being exposed to or subjected to abuse neglect or family violence. S. 60CC (3) contains a number of additional considerations, and I am going to start by making findings about the additional considerations as they will inform my findings about the primary considerations.
The first additional consideration is 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 to be given to those views.
The family report writer interviewed X and said as follows:
When asked whether she would like living with her mother, X responded it would ‘not be good’ but did not explain why. When asked if she would like to spend time with her mother, X responded ‘I don’t want to spend time with Mum’. When asked about seeing her at the Family Assessment, X checked that the Family Consultant would be there before agreeing to see her mother. When asked to show card that indicated how she was feeling X chose scared and frightened cards.
When asked about her sister, X stated, ‘I’d like to see Mummy and J but it’s best living with Nanny. I miss J’. [18]
[18] Paragraphs 113 and 114 of the Family Report.
The family report interviews took place on 14 January 2020, some eighteen months ago, but there was no suggestion at trial, including from the Independent Children’s Lawyer who is tasked by s. 65LA(5) of the Family Law Act to bring this information to the court’s attention, that X now had different views.
The mother did not suggest that on any of the occasions X has spent time with her she asked about returning to live with her.
I must consider the nature of the child’s relationship with each of her parents and any other person including a grandparent of the child.
The paternal grandparents have always been involved in X’s life and she has a close and loving relationship with them. The family report writer observed a satisfactory interaction between them, saying as follows:
The paternal grandparents were attentive and relaxed with X. They were down on the floor playing with her in an age appropriate manner and she appeared happy in their company.[19]
[19] Paragraph 120 of the Family Report.
X interacted well with the mother and J at the family report interviews. The report writer said as follows:
The observation of the mother and the children indicated that the children enjoyed playing and interacting with their mother. The mother was loving and engaged with the X and was attentive to her needs throughout the session. The mother was visibly anxious and shaking and it was evident that J was striving to create a good impression and appeared to be somewhat over the top in her enthusiasm.[20]
[20] Paragraph 116 of the Family Report.
X was very happy to see her mother at the visit supervised by C Contact Centre on 1 May 2021 and the two hour visit went extremely well.
The father said that he had always been an involved parent and that prior to separation he did many activities with X and was involved in her day to day care. After she began living with the paternal grandparents in April 2019 he initially spent time with her at their discretion. However he was incarcerated for 70 days commencing in 2019 and on 14 November 2019 an order was made restraining the paternal grandparents from allowing him to spend time with X. He has been having weekly Face Time calls with her.
The father left the family report interviews before an observation between him and X could take place and I cannot make a finding about the nature of X’s relationship with her father based on the evidence available to me.
I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to maintain the child.
Neither parent is contributing in any meaningful way to X’s support. The mother was originally assessed to pay $66.00 per week but the paternal grandparents said that this had reduced to $8.49 per week.
It is unlikely that the father is paying child support and as a result the paternal grandparents are responsible for almost the entirety of X’s financial support.
This consideration is not relevant to the issue of the time X spends with but it is relevant to the payment of the costs of supervision if supervision is required.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the child, to spend time with the child and to communicate with the child.
This consideration does not assist me.
I must consider the likely effect of any change in the child’s circumstances including the likely effect of her separation from either of her parents or any other child or person including any grandparent or other relative of the child with whom she has/have been living.
All of the parties proposed that X spend regular time with her mother in the future and that in due course the time become unsupervised, although the paternal grandparents proposed a lengthy period of continued supervision and conditions not only about drug testing but about the mother having treatment for her alleged mental health issues.
X has spent disjointed time with the mother in the last two years and it has always been supervised, so this would represent a change for X. She has responded well to the mother at supervised visits, so spending regular time with her mother should not cause her a problem, but whether an immediate change to unsupervised time would be beneficial depends on a number of matters which I cannot yet make a finding about including whether the mother is using drugs or may relapse into drug use, whether the mother has a problem with excessive alcohol consumption, whether the mother has mental health issues which result in explosions of rage, whether J poses any risk of harm to X and whether the mother’s partner may pose a risk of harm to X.
The mother and the Independent Children’s Lawyer both proposed that the father spend no time with X. The paternal grandparents and the father proposed that the father spend the same time with X as the mother and subject to the same conditions.
I cannot make a finding about the likely effect on X of any of the competing proposals until I make a finding about the remaining s. 60CC (3) matters and the s. 60CC (2) matters.
I must consider 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.
The mother and the paternal grandparents both live on the Region O and at the time of trial were living about half an hour apart. Distance will not create a practical difficulty in X spending time with her mother but a requirement for any further supervision might.
The paternal grandparents and the mother have had difficulty organising supervised time. There was a delay in them going onto a waiting list at P Contact Centre. When time at P Contact Centre ceased they were unable to agree on an alternative supervisor. After the hearing was adjourned in February 2021 because the family report writer was not available an order was made for the mother to spend time with the child supervised by C Contact Centre during the adjourned period. This did not happen. A further order was made about this after the family report writer gave evidence and one visit supervised by C Contact Centre did take place after that order was made.
The paternal grandparents and the mother have a very poor relationship and the history of the matter suggests that if an order is made for further supervised time there is a risk that the parties will not be able to implement it.
I must consider the capacity of each parent and any other relevant person including a grandparent of the child to provide for the needs of the child including her intellectual and emotional needs.

The paternal grandparents

The paternal grandparents are well able to care for X on a day to day basis. They are attending to her education, have arranged for her to have support at school when she has needed it and have engaged her in extra-curricular activities.
There was no evidence that either of them are drug users, excessive drinkers or had mental health issues.
The mother has alleged on a number of occasions and continued to maintain at trial that the paternal grandfather was involved with the father in growing cannabis at the Suburb H property. That is a scurrilous allegation. There is evidence that the paternal grandparents are strongly opposed to illicit drug use and that they exhorted the parents to cease using drugs during their relationship, and not a shred of independent evidence that the paternal grandfather has ever been involved in the cultivation of drugs.

The mother

The father alleged that when the parties lived together the mother failed to keep the home clean, wash dishes or provide clean clothing for the children and that he did as much as he could when he was home from work and that the paternal grandmother also helped. The paternal grandparents gave evidence about the home being in a bad state between August 2018 and X coming into their care in April 2019.
The Independent Children’s Lawyer referred in submissions to evidence in the tender bundle about a home visit conducted by a caseworker from the DCJ. The caseworker said that the home was clean and tidy and the children were well presented and there was food in the fridge.
The paternal grandfather was a witness of credit but there was nothing to suggest that he visited the home often in 2018 and 2019 and I cannot safely make an adverse finding about the state of the house or find that whatever its state it was solely down to the mother.
The mother’s parenting capacity would be affected if she was regularly using drugs. She would be setting X a bad example, there may be issues with supervision and there could be issues with aggression if the mother was using drugs or craving the use of drugs.
There was no evidence at trial that the mother was using currently using drugs but she was not forthright about her past drug use and she could resume using drugs in the future. This issue could however be dealt with by a testing regime in relation to drug use.
The father alleged that the mother drank excessively on occasions but the evidence about this issue was very slight. I cannot make a finding on the state of the evidence that the mother has a problem with excessive alcohol consumption.
The evidence about the mother’s past parenting of J which I have referred to earlier gives rise to concern because J currently has significant issues.
In the DCJ material there is an entry dated 4 March 2019 expressing concern for J due to a persistent history of suicide ideation and self-harm demonstrated by her saying she wanted to jump off a building and previously saying that she wanted to stab herself and hurt herself.
A record from 9 August 2019 refers to J being observed to be cutting herself with scissors and a ruler and stating that she hates her life and wishes she wasn’t living anymore. Concern is expressed in the notes about whether the mother has been following up with engaging J with mental health services.
A report dated 16 March 2020 by Deputy Principal BB notes that J was due to return to school after a suspension which followed her being in the kitchen waving a knife around and threatening other students. It is stated that J has behavioural problems and struggles in a mainstream class and that she had only been at the school that year and had hardly been there due to 20 suspensions.
On 28 April 2020 the mother is recorded as saying that J had been seeing a psychologist at Head Space but didn’t really gel with them and had been referred to CC Psychology.
I cannot make a finding that the mother alone is responsible for J’s predicament. The father’s behaviour in the home may also have contributed. However J has told authorities about the mother harshly disciplining her with a spatula and I am satisfied that she did become violent and dysregulated in the past and it is impossible to believe that she has not had a role in the predicament J finds herself in.
The mother would no doubt say that now that she is no longer in a relationship with the father and is not using drugs she is not likely to treat either X or J poorly or fail to properly look after them, but the mother revealed at trial that she was in a new relationship and, has not had a mental health assessment which leaves me in a position where I cannot confidently find that the mother is likely to be a capable parent in the future.

The father

There is considerable force in the following observations by the family report writer:
The key factor that may impinge on the father’s ability to parent is the impact of his reported history of substance use. The father acknowledged a long history of polysubstance abuse and dependence although he has produced at least one clean drug screen since returning from prison. In addition, the father acknowledged that he stopped using drugs in jail but is reluctant to engage in rehabilitation services as he does not wish to be ‘with a bunch of junkies’. As such, given the chronic, relapsing nature of drug addiction and the father’s long term use since he was 20 years of age, long term sobriety is unlikely to occur unless the father seeks support services. If the father continues to use drugs, he places X at significant risk of physical and psychological harm.[21]
[21] Paragraph 63 of the Family Report.
I must consider 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.
This does not help me as a separate consideration.
I must consider any family violence involving the child or a member of the child’s family.
There are numerous allegations of family violence in this matter. I have made findings about the allegations about family violence between the mother and the father and in their home, but there were other allegations of family violence as follows:
(iv)Violence by the mother’s partner Mr Y to the father.
(v)Violence by the mother to the paternal grandparents.
(vi)Violence by the maternal grandfather and the mother’s sister Ms E to the paternal grandparents.
(vii)Violence by J’s father to the mother.

Violence by the mother’s partner Mr Y to the father

In 2019 the mother formed a relationship with Mr Y and in September 2019 he sent a series of threatening abusive text messages to the father. One of his threats was that he would put a bullet in the father’s leg if he came to the mother’s home.[22]
[22] Paternal grandfather’s affidavit Annexure I

Children are psychologically harmed from witnessing such behaviour and it is impossible to accept that J’s difficulties at school and with her own mental health are not attributable in some part to experiencing and witnessing her mother’s behaviour. The parents drug use and the father’s behaviour have no doubt played their part but so has the mother’s behaviour, and she has not taken ownership of that or accepted responsibility for it and she has sought no meaningful therapeutic assistance to address it.
After her relationship with the father ended the mother threatened and abused the paternal grandparents and she planted evidence to try and get the father convicted. She continued at trial to make scurrilous allegations about the paternal grandfather being engaged in cultivation of illicit drugs. She made no mention of her behaviour in her trial affidavit save to acknowledge that she faced some criminal charges. There was apology, no acceptance of responsibility and no remorse.
There is a high risk that the mother could behave in that way toward the paternal grandparents in the future if she feels frustrated and upset about something they have done which would be distressing and damaging for X and in circumstances where the mother has not had a mental health assessment it is impossible for me to be satisfied that J is no longer at risk from her, X could be at risk from her if the mother went off while X was with her, and the mother’s new relationship may heighten the risk. I cannot know one way or the other because the mother kept her partner hidden.
The fact that the mother has a job provides no comfort. She had a job during her relationship with the father and she still behaved in that way.
X may well be at unacceptable risk of psychological harm and potentially physical harm in the mother’s unsupervised care. She could easily be injured if items in the house including glass were broken or fires were lit.
I am deeply troubled about whether X can be protected against the risk of harm the mother poses other than by professionally supervised time but I will have to grapple with that.

Conclusion

The mother seems to have two sides to her personality.
On the one hand she is a person who has a good employment history and she can be pleasant and charming when she chooses. X has enjoyed interacting with her at the supervised visits and they had a warm and lovely interaction at the visit supervised by C Contact Centre on 1 May 2021.
That person attracted strong support from her legal team and from the Independent Children’s Lawyer during the trial.
It is hard to reconcile that person with the person J complained about to her school in 2017, the person who lit a fire in the living room of the former matrimonial home and threw a brick through the front window, the person who planted evidence in order to get the father charged with breaching the ADVO and the person who has rained vile abuse and threats down on the heads of the paternal grandparents.
Those aspects of the mother concerned the family report writer to the extent that she recommended that X live with the paternal grandparents. They may also explain why it is X’s preference to do so, and in the end the Independent Children’s Lawyer supported X remaining with her grandparents notwithstanding concerns she expressed about their willingness to support her relationship with her mother.
The Independent Children’s Lawyer nevertheless proposed that X immediately commence spending unsupervised time with the mother and that this progress eventually to substantial and significant time.
In her submissions she heavily emphasised the sunny side of the mother’s personality. She did not deal at all with the dark side nor did she make any attempt to explain why the following opinion in the family report should be disregarded:
Unsupervised time with the mother would not be recommended until such time as she has returned consistently clean chain of custody drug tests and has engaged in ongoing therapy with positive changes, the court has access to notes from supervised contact and the mother has had a full diagnostic review of her mental health.[27]
[27] Paragraph 130 of the Family Report.
The mother’s case was that the fact that she was a victim of family violence explained everything. I do not accept that. It does not adequately explain the mother lighting a fire, damaging property, telling vengeful lies and threatening and abusing the paternal grandparents. It does not remove the concern raised by the family report writer, a clinical psychologist, that the mother may have a personality disorder.
The family report writer considered that the mother’s mental health required investigation but that has not occurred. That is not just disappointing, it is a significant deficiency in the mother’s case. The mother has also not dealt in any way with the concerns raised about her explosive reactivity, which have resulted in her excessively physically disciplining if not assaulting J.
The mother failed to reveal that she had a new partner until she was in the witness box and expressed no remorse about her behaviour to the paternal grandparents and maintained her scurrilous allegation about the paternal grandfather cultivating drugs.
In the end the mother acquiesced in X continuing to live with the paternal grandparents but I have considerable concern that if she spends extensive time with her mother she may be exposed to unacceptable risk of physical or psychological harm as a result of the mother’s behaviour and that she might be at risk of psychological harm as a result of the mother saying things which not only may, but are designed to, undermine her relationship with her paternal grandparents and which undermine her feeling of security.
The Solicitor Advocate for the Independent Children’s Lawyer was critical of the paternal grandparents for their proposals for final orders but I am satisfied that they were carefully thought out with a view to ensuring that X had a relationship with her mother but was not exposed to risk. However even they do not necessarily protect X from risk. There is just a hope that if further time is allowed to pass and the unsupervised time when it is introduced is kept relatively short that the risk can be contained, can if you like become acceptable because although there will be a risk, it will be a reduced risk and a risk made acceptable when balanced against the benefit to X of having a meaningful relationship with at least one of her parents.
I intend to make orders similar to but not exactly the same as those proposed by the paternal grandparents.
I intend to make an order for X to spend supervised time with the mother until June 2022. The reasons for that are two-fold. I have considerable reservations about X’s safety during unsupervised time anyway, and I am concerned about the mother’s attitude to the paternal grandparents. The parties have been involved in litigation for over two years. It would be extremely unfortunate if the matter returned to court not long after the orders were made because of an incident between the mother and the paternal grandparents or because the paternal grandparents believed that something had happened which was frightening or unsettling for X.
I accept that there could be difficulties organising supervised time but there was a successful visit supervised by C Contact Centre prior to submissions so there is an identified private service who will do the visits. If that fails the mother will have to accept the proposal of the paternal grandparents in order to get through the next ten months.
The paternal grandparents proposed that unsupervised commence in due course. I intend to commence it in June 2022 for the period suggested by the paternal grandparents.
The mother did not make any effort to deal with the concerns the family report writer raised about her mental health prior to trial and I can have no confidence that she will voluntarily do so in the future. However putting off the commencement of unsupervised time is not going to achieve anything. A risk is going to have to be taken in the interests of X maintaining a connection with her mother.
In due course the time will be extended as the paternal grandparents propose and I do not intend to order any block holiday time. I also do not intend to make orders about special days save to provide that the mother may have a telephone or Face Time call with X on her birthday and on Christmas Day.
The mother was not frank during the proceedings about her drug use historically and she tested positive for cannabis in a test done in November 2019. She has since produced a clean hair test but I cannot be sure that she will not use drugs again in the future. For the protection of X I will order that the mother complete a hair test immediately prior to unsupervised time commencing and prior to the overnight time commencing and will give the paternal grandparents liberty to require the mother to urinalysis tests on no more than six occasions each year with a sunset clause of three years from the last negative test. .
I do not intend to order that the parents engage in drug rehabilitation. I cannot make a stand alone order for them to do this; the order would have to be that their time was conditional on them doing it. It is unlikely that the mother would be willing to do it because it is her case that drug use is not currently a problem for her, and the father is far from being at a point of confronting his own drug use issues.
The best that can be hoped for is that they both pass their drug tests.
I do not intend to make an order that either parent take X to her weekend sporting or other commitments on the weekends she is spending time with them. If they are willing to do it well and good, otherwise X’s time with each of her parents will have to take priority over her weekend commitments.
The paternal grandparents sought an order that the mother be restrained from allowing the child to be left in the sole care of the maternal grandfather or the mother’s sister Ms E. I intend to make that order.
Ms E is reported to have mental issues and to be a drug user. She filed an offensive application against the paternal grandparents in the Local Court and the mother provided an affidavit in support of her application. There might have been merit in a proposal that the child not be brought into contact with her at all. The maternal grandfather also weighed in to threaten the paternal grandparents during the proceedings.
There is a risk that X could be exposed to denigration of the paternal grandparents if she is left in their sole care and she could be at risk of physical harm if left with Ms E. My only concern is whether the mother being present is sufficient protection, but that is all that the paternal grandparents sought.
Unfortunately I cannot completely protect X from all risk. She will be at risk once she commences unsupervised time with the mother. However the paternal grandparents are very protective of her and if they are prepared to take that risk then I am prepared to make the orders. Regrettably this is a matter which could easily come back to court if it turns out that their faith is misplaced.
The Independent Children’s Lawyer proposed that there be a supervised handover between the mother and the paternal grandparents. She did not explain why this was proposed. Even if I had been prepared to make that order I would not have ordered that the cost be shared between the paternal grandparents and the mother. The paternal grandparents are largely financially supporting X. The mother is working and she should bear the cost of any supervision that is required. However I can see no utility in that order.
If the orders work well for X and the mother’s attitude to the paternal grandparents changes she might be able to persuade them in due course to agree to a variation of the orders, and if things do settle down mediation should be attempted to see if anything can be worked out. In a worst case scenario the mother may need to come back to court, but I cannot see clearly enough into the future to contemplate making the orders proposed by the Independent Children’s Lawyer.
I have grave concerns about the future of the matter. There are two risks for X that are difficult to guard against, and the first is the risk of the mother forming a relationship with an aggressive unsatisfactory individual.
The paternal grandfather sought an order that the mother tell him if anyone else was living in her home and the mother’s counsel said the mother would consent to that but it would not help. A new partner can be a regular presence in a home without moving in.
What am I to do? Require the mother to tell the paternal grandparents whenever she goes out with anyone?
I will make the order the mother’s counsel consented to notwithstanding my concern about its efficacy but if the mother does re-partner with anyone who causes dysfunction in her home or threatens the paternal grandparents the orders will quickly break down.
The second risk is the risk to X of J behaving in a dysregulated way.
I am not prepared to find that J would deliberately harm X but it would be distressing for X if J did some of the things she has done at school such as waving a knife, and if the paternal grandparents heard about anything of that nature they might decide that they had grounds to withhold X from the mother. There are no restraints I can effectively put in place to deal with that issue nor was I asked to do so but it is another issue which could result in the matter coming back to court.
The Independent Children’s Lawyer and the mother’s counsel both sought an order that the father spend no time with X. Their concern was his methamphetamine use and the fact that there was no sign that his drug use was likely to end. They were also concerned about the family violence he had perpetrated.
The mother’s counsel referred in submissions to the risk of the child being exposed to the father’s temper, but there is no evidence that this is a concern.
The paternal grandparents consider that they should be trusted to make a judgment about whether it would be safe for X to spend time with her father and they propose that he be subject to the same drug testing regime as the mother.
I do not accept that the court should make an order that the father spend no time with a child when that was not sought by the paternal grandparents, with whom the child is to live. There was no evidence that they had placed her at risk of harm from the father since April 2019. The proposal is also not practical and may lead to unnecessary contravention applications brought by the mother. The paternal grandparents are on good terms with their son and naturally want to see him and he may well attend their home. It would be all too easy for X to say something to the mother which she interpreted to mean that the orders had been breached even if the paternal grandparents had been at pains to ensure that their son only came to their house when X was not there.
The paternal grandparents’ proposal that the father spend time with X under their supervision and unsupervised if he did drug screens was part of the package they offered.
If there had been any evidence that this meant that X would be at risk of harm in their care then the mother might have argued that the package she offered should be preferred and pressed her case for residence of the child, but she did not. The mother’s counsel and the Solicitor Advocate for the Independent Children’s Lawyer both proposed that X continue to live with the paternal grandparents and with one exception I intend to make the orders about the father’s time with X which the paternal grandparents proposed.
I am mindful of the fact that the issue of the father’s propensity to be violent in domestic relationships has not been addressed and although I intend to order that he spend unsupervised time with the child if he is drug free but only for one day each alternate weekend, with no overnight time.
There is little likelihood of the father jumping the hurdles and qualifying to have unsupervised time with X in the immediate future in any event and whether he will ever do so has to be open to doubt given the evidence that he has been using drugs since he was 20. If he does however jump the drug use hurdle he will have to turn his mind to how he can satisfy the court about the family violence issue and bring another application if he wants more time with X.

PROPERTY

Introduction

The property matter involves a very small pool. The only significant non-superannuation asset is the remaining proceeds of sale of the former matrimonial home held in trust being $116,183.27. The father has superannuation of about $110,000.00 and the mother has superannuation of about $30,233.00.
Until the end of the hearing the paternal grandparents were parties to the property matter. They sought an order that $19,433.00 of the money in trust from the sale of the former matrimonial home in Suburb H be paid to them to reimburse them for repairs done to get the home ready for sale and in reimbursement of an amount they paid on the parties behalf in respect of a civil claim.
At the conclusion of submissions on 13 May 2021 the mother and father agreed to the court making an order for this to occur and the only issue I need to decide is how the remaining assets are to be divided between the mother and the father.
There was a significant dispute about the composition of the pool but the mother’s counsel submitted that the court should disregard all the flotsam and jetsam and simply divide between the parties the net proceeds of sale of the home and the superannuation.
The mother’s counsel submitted that contributions favoured the father because his parents gave the mother and the father money to assist them to acquire a home but that s. 90SF (3) matters favoured her because she had the care of a child from another relationship and would have to bear the costs associated with the parenting orders in the form of paying for supervised changeovers and drug testing.
The mother’s counsel proposed an overall 50/50 decision of the pool which would result in the proceeds of sale of the home being paid as to $110,000.00 to the mother and the balance of $6,183.27 to the father and that each party keeping their superannuation.
The father’s counsel handed up a lengthy and complex balance sheet but made no suggestion about how the court was to resolve the disputes about which items should be included and about their values.
He agreed that contributions favoured the father but said that s. 90SF (3) matters also favoured the father. He said that the mother had a job and the father was not currently working, and the mother may have hidden assets in the form of an inheritance from her mother’s estate which she received post-separation.
The father’s proposed that mother receive $6,183.27 from the sale proceeds and the father receive $110,000.00 and that each party keep their superannuation. He said that from his share of the sale proceeds the father would pay the debts which were still outstanding from the relationship.

The assets, liabilities & superannuation

The father’s counsel handed up a balance sheet which included items such as furniture removed from the home, gym equipment, two wine and beer fridges, two autographed framed prints, a motor bike, an engagement ring, a jewellery collection, an amount in a bank account at the date of separation and a shoe and handbag collection all of which he said were owned by the mother or were in her possession.
Leaving aside any other issues, no evidence of the value of these items was provided during the trial nor was the existence or possession of some of those items dealt with during cross-examination, and I do not intend to include these items in the pool.
The father also proposed that some money be added back, including $12,000.00 spent on cosmetic surgery for the mother. None of his proposed add-backs could even remotely be justified.

The father included motor vehicles, motor bikes and Jet Ski’s on his list. During the trial there was repeated reference to a Jet Ski and at one time each party had a motor vehicle and the father owned some motorbikes. As time went by there were allegations about items being damaged or going missing and neither party provided any evidence of the value of any of these assets making it impossible for me to do anything with these items.
There is merit in the submission by the mother’s counsel that the best the court can do is to ignore all the claims on both sides about assets they claim the other has in their possession and include in the pool only the superannuation and the balance of the proceeds of sale of G Street, Suburb H as the only relevant non-superannuation assets and I am satisfied that is all that I can do.
When the trial commenced the amount in trust from the sale of G Street, Suburb H was $139,616.27. On 3 February 2021 an order was made by consent that each parent be paid $2,000.00 reducing the amount in trust to $135,616.27.
During submissions on 13 May 2021 it was agreed that the paternal grandparents could be paid $19,433.00 in satisfaction of their claim which leaves $116,183.27 in trust.
In her trial affidavit the mother asserted that the father had something she called an DD Investment worth $90,000.00. The father was cross-examined about this and it appeared that the mother was referring to a fund set up to assist members of the construction industry if they are made redundant. The father denied that he had anything of value in this fund. The balance sheet the father’s counsel handed up during submissions on 13 May 2021 included an amount of $399.00 in DD Fund. It is de minimis and I do not intend to include it in the pool.
There are no liabilities which need to be considered. The father provided a list of liabilities which included items such the cost of replacement television for $5,000.00 and a loan for installation of air conditioning. I cannot even make a finding about the extent if any to which these debts are still owed and I do not intend to treat any of these items as relevant liabilities.
The mother has a HECS debt in the amount of about $12,290.00, but these debts are usually repaid by deductions from income once the income reaches a certain amount. They reduce a parties’ income but are not a relevant liability.
The parties have the following superannuation:

Description Ownership Value

Super Fund EE Father $110,000.00

Super Fund FF Mother $30,233.00

Total $140,233.00

The pool thus consists of a non-superannuation asset worth $116,183.27 and superannuation worth $140,233.00, a total of $256,416.27.

The applicable law

I am satisfied that the parties were in a de facto relationship for eleven years. They conceded as much and they lived in the same residence, had a child, mingled their finances and became joint owners of the G Street, Suburb H property.
The relationship took place entirely within New South Wales and ended after March 2019 and I have jurisdiction to hear and determine the property dispute.
S.90SM (1) of the Family Law Act1975 empowers the court to make such orders as it considers appropriate altering the parties’ interests in property.
S.90SM (3) provides that the court shall not make an order under this section unless it considers that it would be just and equitable to do so. In Stanford & Stanford[28] the High Court stressed that when an application for a property settlement was made the court must first identify the parties interests in property and then consider whether it was just and equitable to make an order altering those interests. It stressed that this question could not be answered simply by considering whether a party had made contributions as set out in s. 79(4) (and by implication s. 90SM(4)) of the Family Law Act.
[28] Stanford & Stanford (2012) FLC 93-495
I am satisfied that it is just and equitable to consider making property settlement orders. The parties cannot continue to make joint decisions about the use of the assets in the pool, including the money in trust from the sale of the G Street, Suburb H property, and they both asked the court to make property settlement orders.
The usual steps taken to resolve the question of what particular alteration of interests would be just and equitable are:
(i)to assess the contributions of the parties under s90SM(4)(a), (b) and (c) and to express those contributions as a percentage;
(ii)to consider the matters in s.90SM(4)(d), (e), (f) and (g), which includes the matters in s.90SF(3) so far as they are relevant, and determine whether any adjustment should be made as a result to the contribution based entitlements;
(iii)to consider the effect of those findings and resolve what orders are just and equitable in all the circumstances of the case.

Contributions

It was common ground that the mother had no assets at the commencement of cohabitation.
The father is a tradesman and worked full time throughout the relationship. When the parties met he was doing fly-in fly-out work. For the last three years or so of the relationship he worked in Sydney. If he had superannuation when the relationship commenced he failed to tell me about it in his affidavit.
The mother also worked during the relationship, at first part time in a restaurant while she obtained a certificate of qualifications, and then in 2009 as an office worker and a Customer Services Officer with Employer GG. The mother said that in 2014 she commenced employment with Employer JJ as a customer service officer which began as part time work because she was engaged in the care of X but which by November 2019 was full time work.
The parties commenced living at G Street, Suburb H in 2009. The father and paternal grandfather said that they paid a reduced rent but without independent evidence of market rentals at the time I cannot do much with that claim.
In March 2017 the parties purchased the property. The paternal grandparents gifted the parties $60,000.00 and they borrowed money from Bank HH. The mother said that she received an inheritance of $10,000.00 from her grandmother.
The paternal grandparents gifted the parties $60,000.00 to assist with the purchase. While it is true that they gifted it to them both and not just to their son, the gift was clearly made because of their relationship with their son and the father deserves some credit for bringing in this money.[29]
[29] Gosper & Gosper (1987) FLC 91-818
The parties purchased the G Street, Suburb H property from the paternal grandparents for $570,000.00. In his affidavit the father asserted that the property was in fact worth $710,000.00 but he did not provide any evidence to back this up and I can place no weight on his assertion.
The father also asked the court to take into account that in 2015 the paternal grandfather gave the parties $4,750.00 so that they could pay lawyers to defend them in connection with an incident outside their home. However this was part of the amount repaid to him by consent on 13 May 2021.
There did not seem to be any dispute that both parties contributed from their wages to pay mortgage payments, outgoings on the home and living costs. The father gave evidence in his affidavit about specific things he purchased including air conditioning and furniture and fittings but he used assets acquired during the relationship to make these purchases.
I accept the father’s evidence that he worked hard to complete extensions and renovations to the property and that he purchased materials but this was effort put in during the relationship when the mother was doing other things.
The mother was the primary homemaker and parent but I accept that the father made some contribution to the care of X and to the housework depending on his availability and that he was primarily responsible for outside work and repairs and maintenance.
There are no relevant post-separation matters. Insofar as the mother damaged the home, repairs were paid for by the paternal grandfather and he has been reimbursed for this.
The mother may have accrued some superannuation post-separation but no evidence was given about this.
Contributions favour the father because of the gift from the paternal grandparents but the pool is modest and all of the other contributions made by the parties must be weighed in the mix.
I assess contributions as 52.5% by the father and 47.5% by the mother. This would entitle the father to $136,618.54 from the combined pool and the mother to $121,797.73.

S. 90SM (4) (d) (e) (f) & (g) matters

I am required to consider the matters in S. 90SM (4) (d) (e) (f) & (g) of the Family Law Act. The only relevant subsection is (e) which requires the court to have regard to the matters in s. 90 SF (3) as far as they are relevant.

S. 90SF (3) matters

The mother is 35. She was working when the parties separated but was made redundant in November 2019. In about May 2020 she commenced work as an office worker employed by Employer U on a salary of $65,000.00 per annum.
J lives with the mother and she receives $70.00 per week child support from Mr N. She said that she was paying child support of $37.00 per month for X.
The mother said that she owed $16,000.00 to her father Mr F but there was no evidence about this was an immediately repayable loan. The mother has a HECS debt of $12,290.00. These debts are recoverable by deductions from salary once a person’s salary reaches a certain amount.
The mother revealed during cross-examination that she had a partner but that he did not live with her. Nothing is known about her partner.
The father is 47. At the time of trial he was unemployed and was in receipt of Newstart Allowance of $350.00 per week.
The father is a qualified tradesman with a good work history. He said that he injured his back in January 2019 and had been unable to work since then. He provided no medical evidence in support of this and whether it is the true reason he is not working I cannot say. At the time of trial he was living in City V and admitted that he was using methamphetamine. It is unclear if and when he will return to paid employment.
The father is supporting no one but himself. He is not in a position to make a contribution to the care of X.
In his affidavit the father referred extensively to his support of J and pursuant to Robb & Robb[30] the court is entitled to take this into account pursuant to s. 90SF (3) (r) which allows the court to take into account any other matter which the justice of the case requires it to take into account.
[30] Robb & Robb (1995) FLC 92-555
Whether the court does take this into account is a matter of discretion. There was no evidence that the mother failed to pursue the payment of child support which was available to her or misled the father about what his financial responsibilities for J were likely to be. The father willingly took on the care of the J and I do not accept that he should receive a retrospective adjustment for having done so.
Another potential s. 90SF (3) (r) matter referred to in the father’s filed material was that he alleged that after separation the mother sold his personal items such as an expensive speaker, a wine collection and gym equipment on Gumtree without his permission and continued to advertise the items for sale even after his solicitor contacted her. However there was no evidence on which I could place weight about the value of these items.
The father’s counsel submitted that the court should take into account pursuant to s. 90 SF (r) that the mother might have hidden assets. The maternal grandmother died in 2018 shortly before the parties separated and the mother was a beneficiary under her will. The father repeatedly requested information about the mother’s inheritance prior to the trial. The mother eventually acknowledged that she had received $74,134.00 from the sale of her mother’s home.
The mother was cross-examined about what happened to this money and was able to account for most of it. Most of it has gone. Some went into the purchase of a Jet Ski which was referred to extensively during the hearing. I am not satisfied that there is any evidence that the mother has any hidden assets.
The father claimed that the estate received additional money from the sale of a motor vehicle and a claim on a Death Insurance Policy. He alleged that the mother may be entitled to a share of an additional $68,028.00. No documents were provided to give any colour of credibility to this claim.
The mother’s counsel submitted that s. 90SF (3) matters favoured the mother but I do not accept that. She is in fact in a stronger financial position than the father and she does not have primary care of X and will be spending limited time with her in the immediate future. The fact that she might have to pay for drug tests or the costs of supervision from her salary is not a reason to make an adjustment in her favour in the property matter.
Even if the father is not working because of drug use, the fact is that he is not working and the mother has a good working history and has the care of only one child. I do not consider that there should be an s.90 SF (3) adjustment in favour of either party and they remain entitled to 52.5% and 47.5% of the pool respectively.
There is a large disparity in the superannuation entitlements of the parties but neither party sought a splitting order. I intend to apply a percentage to the combined pool. It will result in the mother receiving more cash and the father more superannuation but in light of the evidence about the father’s drug use this may be a good thing. He will not so easily be able to squander his superannuation.
The mother will receive:
Money held in trust: $89,564.73
Superannuation: $30,233.00
The father will receive:
Money held in trust: $26,618.54
Superannuation: $110,000.00
I am satisfied the outcome is just and equitable.

I certify that the preceding three hundred and eighty-four (384) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Terry.

Associate:

Dated: 2 August 2021

[2021] FCCA 1337

2 August 2021

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Costs

Consent

Remedies

Procedural Fairness

Description	Ownership	Value
Super Fund EE	Father	$110,000.00
Super Fund FF	Mother	$30,233.00
Total	$140,233.00