Freedom Law

Court ordered periodic child maintenance

Court ordered periodic child maintenance

The Federal Circuit Court and Family Courts may make orders for child maintenance payments for children who are not covered under the child support legislation. This includes parents whose children are over 18.

The Department of Human Services must be notified of all court orders about child maintenance, including orders made by consent, and any amendments made to earlier orders, within 14 days of the orders being made.

When a receiving parent tells the Department about a court order, they can also choose to have payments collected privately or through the Department.

There are limited reasons for a court order to be extended or ended.

Ending a court order for child maintenance payments

A child maintenance order may contain a provision that says it will end at a specified time, or when a particular event occurs, for example, when your child completes their specified tertiary degree.

Under the Family Law Act, a child maintenance order will end:

  • if the child dies
  • if the paying parent dies, unless the order expressly provides for it to continue after their death
  • if the receiving parent dies, unless the order expressly provides for it to continue after their death and another person is nominated to receive the payments
  • if the child is adopted, marries or starts a de facto relationship
  • when the child turns 18, unless the order says that it will continue after that
  • when the child finishes school, unless the order was made to enable the child to complete his or her education
  • if the child no longer has a disability where the order is for a child aged over 18 and was made because the child has a physical or mental disability

Child maintenance orders are often sought in relation to children who are engaged in tertiary education, particularly if their studies necessitate that they live independently from their parents.

“No Contact” Orders – A Recent Case

West & West [2015] FamCA 839 (8 October 2015)

Last Updated: 20 October 2015

FAMILY COURT OF AUSTRALIA

WEST & WEST
[2015] FamCA 839
FAMILY LAW – CHILDREN – mother to have sole parental responsibility – children to live with the mother – where the father is restrained from spending time or communicating with the children – injunction order made pursuant to section 68B and section 114 – authority to act pursuant to section 68C – where the father is an unacceptable risk to the children – where risk cannot be ameliorated by supervision – where the presumption of section 61DA is rebutted

 

Family Law Act 1975 (Cth) s 4, s 4ABs 60B, s 60CA, s 60CC, s 60 DA, s 60DAA, s 60DAC, s 61DA, s68B, s68C, s114, s122AA
Evidence Act 1999 (Cth) s 140
Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1
S v Australian Crime Commission [2005] FCA 1310; (2005) 144 FCR 431
Malcolm & Munro [2011] FamCAFC 16; (2011) FLC 93-460
Morgan& Miles [2007] FamCA 1230; (2007) FLC 93-343
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
K v R (1997) 22 FamLR 592
Re W (sex abuse – standard of proof) [2004] FamCA 768
Re Andrew [1996] FamCA 43; (1996) FLC 92-692
Blinko & Blinko [2015] FamCAFC 146
T v N [2001 FMCAfam 222
APPLICANT:
Mr West
RESPONDENT:
Ms West
INDEPENDENT CHILDREN’S LAWYER:
Mr T Newman
FILE NUMBER:
CSC
609
of
2014
DATE DELIVERED:
8 October 2015
PLACE DELIVERED:
Brisbane
PLACE HEARD:
Cairns
JUDGMENT OF:
Tree J
HEARING DATE:
13, 14, 15 April 2015 and 18, 19 and 20 August 2015

REPRESENTATION

THE APPLICANT:
In person
COUNSEL FOR THE RESPONDENT:
Ms Wilson
SOLICITORS FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:

West Family Law

Mr Victoire

Newman Family Law


ORDERS

  1. All previous parenting orders are forthwith discharged.

Parental responsibility

  1. Ms West born … 1979 (“the mother”) have sole parental responsibility for the children B born … 2000; C born … 2002 and D born … 2010 (“the children”).

With whom the children will live

  1. The children live with the mother.

Restraints, injunctions and personal protection

  1. Mr West born … 1957 (“the father”) is restrained from spending any time or communicating with the children.
  2. For the personal protection of the mother and the children and pursuant to s 68B and s 114 of the Family Law Act 1975 (Cth) the father is prohibited and restrained from:
      <li “=””>(a) harassing, molesting or stalking the mother and/or the children;
  3. <li “=””>(b) causing or threatening to cause bodily harm to the mother and/or the children;<li “=””>(c) approaching the mother and/or the children at their place of residence from time to time, their employment from time to time or coming within 50 metres of those places other than as provided for in these orders;<li “=””>(d) spending time with or attempting to contact or approach the children;<li “=””>(e) communicating or attempting to communicate with the children’s school;<li “=””>(f) attending the children’s school or at any school event or school functions organised by the school;<li “=””>(g) removing or attempting to remove or procuring another person to remove the children from any school, institution or other place at which the children attend or are placed by the mother.

  4. Pursuant to s 68C and 122AA of the Act, where a police officer (Federal or State) believes, on reasonable grounds that the father has since the injunction was granted, breached the injunction by:
      <li “=””>(a) causing or threatening to cause bodily harm to the person or persons referred to in order 5; or
  5. <li “=””>(b) harassed, molested or stalked any one or other of those person,

the police may arrest the father without warrant and may use such reasonable force as is necessary to make the arrest or to prevent his escape after arrest.

Other orders

  1. The Independent Children’s Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
  2. Otherwise all extant Applications be dismissed and the matter is removed from the list of active pending cases.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC609/2014

Mr West

Applicant

And

Ms West

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

  1. Mr West (“the father”) believes that he is a prophet personally called by God to be a spokesperson against government generally, and the Family Court in particular, for the genocide which he believes they perpetrate against children. He believes that the government has placed him on a hit list to eliminate him from the world. He believes that the police force is designed to effect social engineering and to destroy families. He believes that the whole purpose of these Family Court proceedings was to kill him and to destroy his children’s lives.
  2. It appears as though virtually all of the father’s life, at least in recent years, has been devoted to his prophetic calling. He has been in almost constant battle with many authorities, mostly governmental. In those disputes he is prone to making outrageous, menacing accusations, coupled with highly personalised attacks.
  3. His conduct in these Family Court proceedings were a telling illustration. It may fairly be said that the six days over which the trial of this matter spanned were as torrid and hostile as litigation in this court gets. There were highly personalised attacks by the father on virtually all of the witnesses (including his own mother) and the lawyers involved in these proceedings. I was no exception. Amongst a steady stream of personal abuse, the father referred to me as a “criminal”, “terrorist”[1] and colourfully told me that “there is not a bone in your body worth burying.” Later in the proceedings he told me that “there will be a large crowd on the day when you hang” or something similar.
  4. The father was virtually uncontrollable in the courtroom. He refused to take his cap off, stand when speaking to me or cross-examining witnesses, or stop speaking over me. Ultimately his behaviour became so intolerable that I directed that he continue his involvement in the proceedings from a second courtroom, linked to the main courtroom via video link. That was necessary to ensure that his otherwise incessant interruptions could be overcome by muting the microphone at his end when the need arose. However that did not stop him from a virtually non-stop – although from the main courtroom, silent – tirade against whoever was then speaking. On the final day of trial, presumably as some sort of visual protest, he commenced to tear up material that he had brought with him and which he had placed on the bar table. Even accepting that self-represented litigants in this court often are under enormous personal strain, and hence can behave poorly, it has to be said that the father was a truly remarkable litigant.
  5. Unsurprisingly, he was diagnosed by Dr E, a psychiatrist who assessed him for the purposes of these proceedings, as suffering a paranoid psychotic disorder that has been long lasting and is untreatable. In his cross-examination of Dr E, the father did not directly challenge that diagnosis, but appeared to suggest that Dr E was part of a conspiracy to persecute alleged Christians such as himself, perhaps as part of the father’s broader view that feminism is the “State religion” of Australia.
  6. By his Initiating Application filed 19 September 2014, the father seeks orders for equal shared parental responsibility in relation to the parties’ children, being B (born in 2000 and hence presently 14 years of age), C (born in 2002 and hence presently 13 years of age) and D (born in 2010 and hence presently five years of age) (collectively “the children”). He also seeks orders that the children live week about and spend one half of all school holidays with each party.
  7. On the other hand, Ms West (“the mother”) seeks orders that she have sole parental responsibility for the children, who would live with her and neither spend time nor communicate with the father. She also seeks a suite of injunctions restraining the father from, in effect, having any involvement in the children’s lives whatsoever. She justifies those orders on the basis that the father is an unacceptable risk of emotional or psychological harm to the children. Although at the commencement of the proceedings the Independent Children’s Lawyer indicated that he would seek orders which would permit the father to send cards and gifts to the children, but otherwise have no contact with them, by the conclusion of the trial, he altered his position to wholly support the orders sought by the mother.
  8. In a nutshell, this case is really about balancing two things: on the one hand the risk which the father poses to the children; on the other hand, such benefit as the children may derive from a relationship with the father.

BACKGROUND FACTS
The father

  1. The father was born in 1957 and hence is presently 58 years of age. He was born in F Town, however his father’s position as a bank manager saw the family relocate numerous times. After some years the family settled in the Sydney region. Whilst still attending high school in Sydney, the father commenced to smoke marijuana. It appears to have been a constant aspect of his life thereafter. He left school early and initially worked in some mines. Apparently he later returned to school and completed his Higher School Certificate. He told Dr E he was raised to have a strong belief in the Bible.
  2. Presumably after completing his High School Certificate, he obtained work with the Australian Taxation Office and later a government Public Works department. However at some stage he undertook an apprenticeship and told Dr E that he “has mainly worked as a [tradesman] in England, Norway, Germany and Australia.” Further, apparently he has owned two businesses, one of which was in the United Kingdom.
  3. He was first married at the age of 23, which marriage lasted 5 years. There were two children of that relationship, however it appears as though the litigation which ensued from the breakdown of that marriage saw him have no time or communication with the children.
  4. His second marriage was at the age of 35 years to a Scandinavian woman. It again lasted for five years. There were three children to that relationship. At the time of separation, the parties were living in Australia, however as a result of the ensuing Family Court litigation, from some time after separation the wife and children have lived in Scandinavia, and the father has lived in Australia.
  5. At some stage the father commenced living in G Town and it was there when he was 30 years of age in 1987 that it appears as though he first was convicted of a violent offence, comprising resisting and assaulting police (together with stealing). In the following year, when he was aged 31 years of age, he was arrested for a similar offence in New South Wales. The material in evidence does not permit me to conclude whether he was convicted of that offence.
  6. The New South Wales Police records also demonstrate that in May 1992, when he was aged 35 years, the father was again arrested on four charges of resisting, hindering or assaulting a police officer, together with three charges of common assault. Then three further charges of assault were laid against him in October 1992 whilst in New South Wales and a further charge of resist/hinder/assault a police officer in January of 1993. There was then a further charge of assault in March 1993, together with a further charge of resist/hinder/assaulting a police officer in conjunction, it would appear, with a charge of stealing.
  7. There is then a break in his criminal record until 1999, in which year in May and December he was charged and convicted with obstructing a police officer. He was by then 42 years of age. Both of those offences were committed in G Town.
  8. He was living in G Town in January 2000 when he met the mother. He was then 43 years of age.

The mother

  1. The mother was born in Country H in 1979, and therefore is presently 36 years of age. Her birth family lived on an island off the north coast of that country. It appears as though they lived a typical subsistence life in a village. However shortly after her birth, the mother was subject to a traditional adoption which saw her placed with a cousin and her husband. They raised the mother in I Town. Apparently she commenced her schooling late, and only completed year 10 when she was 21 years of age. It is said she had a rather protected childhood, and she told Dr E that she was not allowed to socialise because in I Town it was very dangerous to move outside of a small local area.
  2. In about December 1999 the mother’s step father relocated to Australia. He worked for a company that paid for his relocation. He rented a unit in G Town. On 24 December 1999, the mother who had just completed grade 10, travelled to G Town on a three month holiday visa to spend time with her father. Whilst she was there, and aged 20, she met the father in January 2000.

The relationship

  1. The parties initially met by chance outside a G Town supermarket. It appears they had a short conversation. A few days later, the father saw the mother looking in through the window of a backpacker’s hostel that he was then staying at. He invited the mother inside and they spoke for some time. The father then walked the mother back to her step father’s apartment. On the way they had sex in some bushes. The mother says that it was her first sexual encounter and the father forced himself upon her; the father denies this and says that the mother suggested that they have sex in the bushes. This is the first of numerous conflicts between the parties’ versions and recollections. Indeed it may fairly be said there are few points of agreement in the parties’ respective narratives. For instance, the mother’s recollection is that at that time, her step father had in fact left Australia to undertake a job interview in Country J, whereas the father’s recollection is that when he arrived back at the unit where the mother was staying, her step father was there and was blind drunk.
  2. It would be an impossible – and largely unnecessary – task to resolve all of the conflicts between the parties’ respective evidence. However some aspects of the conflict do need to be resolved, particularly the parties’ mutual allegations of severe domestic violence. For the purposes of this factual background however, I will attempt to provide sufficient information to give some context to the litigation.
  3. The parties’ relationship progressed at a truly remarkable pace. They were married in G Town in 2000, perhaps even less than a month after they first met. The mother says the father badgered her into marriage; the father says it was done to try and improve the mother’s prospects of obtaining a visa which would enable her to stay longer in Australia.
  4. In fact, it appears as though by the time of the parties’ marriage, the mother was pregnant with what was to prove to be their first child, B.
  5. None of the mother’s family attended the wedding. The mother says that she was too ashamed to tell her parents of her relationship with the father, and was particularly ashamed that she was having sexual relations. Further, she says that cultural expectations would have required the father to pay a “bride price” for her, which he was unable to do. Had that been known to her parents, it would have been a source of shame and embarrassment.
  6. The mother says that from the outset the father was financially controlling of her and denied her any financial autonomy. The father denies this. There is also conflict between their respective versions as to the parties’ dealing with furniture that had been left behind by the mother’s step father (who appears to have thereafter lived overseas).
  7. Shortly after the parties married they moved for some time to K Town. There the father worked and the mother got a job with the same employer. It was the first job that the mother had ever had. It appears as though the parties were motivated to work hard to raise the funds that were needed to make a relevant application for the mother’s visa, some $3,500.00.
  8. After K Town the parties went to live at L Town. The father got a job at a backpacker’s resort, and the mother worked there as well. Whilst they were staying there, they had to travel to G Town for the mother to undertake an immigration interview. The night before that interview they stayed at accommodation in G Town. The mother says that about 2:00am in the morning she woke to find the father trying to have sex with her. She told him that he was hurting her. Her evidence is that once she had said that, the father stopped and was completely silent for about five seconds. He then punched her repeatedly (about five times with each fist) in the face. She says that he then grabbed her by her neck and threw her off the bed across the room. She believes that at this point she became unconscious and sometime later woke up to find the father kicking her. She says that the father was spitting on her and yelling at her words to the effect of “you are a fucking slut” and “a little black dog whore piece of shit.” She says that she then ran into the bathroom and locked herself in. There was blood coming from her face and she had a split and swollen lip.
  9. The father’s version is a little different. Critically however, he does admit the assault. He says that the hostel at which they were staying was run by a mutual friend. During the course of the evening when the parties were affected by alcohol, he says that the friend asserted that the mother’s child (the mother then being pregnant) was in fact his. The father says the mother refused to deny this. In paragraph 63 of the father’s affidavit filed 11 December 2014 he said “I agree that I hit the mother a couple of times.” He then went on to say “I agree that the mother had a black eye and a split lip.” However he said that he only punched her “about twice” and denied that he threw the mother on the bed, or across the room, or that she lost consciousness. He conceded that she ran to the bathroom and locked the door.
  10. The mother believes that at the interview the next day she was viewed suspiciously by the immigration officials in consequence of the signs of domestic violence, however she made no complaint. It seems she obtained the relevant visa.
  11. After about three months of living at L Town the parties returned to G Town. The mother says that there, when she was about eight month’s pregnant, the father seriously assaulted her. She says that he grabbed her by the throat, lifted her off the ground and threw her against the kitchen wall. She says that he started kicking her with his boots to her legs, back and back of her head. She exhibited photographs of her injuries to her affidavit. They show swelling to her face consistent with her evidence. The father denies that he assaulted her. He says that other than the previous conceded occasion, he has never punched or kicked or hit the mother at all, but says that she has frequently threatened him with a piece of wood and violently attacked him, or has used a knife or an iron bar or other weapons for that purpose. He inferentially appears to say that the photographs the mother exhibited were related to the first conceded assault on the night before the immigration interview, and not the occasion of which the mother speaks. As shall be seen in due course, I generally reject the father’s evidence. On this occasion, I am quite satisfied that the father did indeed assault the mother when she was eight months pregnant.
  12. Sometime after B’s birth, the mother asserts that the father again assaulted her. At the time they were managing a backpacker’s accommodation. She says that she went to bed and was woken by the father abusing her for having socialised with other young people. He started punching her in the face, grabbed her by the throat and again threw her against the wall. She says two men came in and pulled the father off her. The father commenced to fight them as well. She says police came and they took her and B to a shelter where they stayed for a couple of days.
  13. The father’s version is different. He says that it was the mother who assaulted him with a fan that was located next to the bed. He said that noise brought the backpackers to the door, and when the father opened the door, a backpacker tried to punch him. The father says that he pushed the backpacker over who then left. He then says that some time later police attended the house and “frog-marched me out onto a busy road completely naked.” He then says he was driven to a police station where he was processed whilst still naked, and then taken to a cell and given a blanket.
  14. It appears as though the mother then obtained a protection order against the father. Interestingly, the mother does not appear to remember that order, or at least did not give evidence about it. At all events it appears as though the parties reconciled. C was then born in 2002 while the parties were still conducting the backpacker operation in G Town.
  15. When C was a couple of months old the parties travelled to Sydney. Whilst staying there, the father and mother and children drove all night to Melbourne to the home of the parents of the father’s first wife. The mother says that when they arrived at the home, they saw an older couple out the front of the house. The father told her to get out of the car and go to them and say who she was and that the father had not forgotten about them taking his children. She says initially she refused but the father punched her in the face and spat on her, in consequence of which she opened the door and got out to avoid being hit again. She says she took B with her to the other couple who, after she had explained who she was, looked over to the car and saw the father. The mother says that the woman said “is that [Mr West]?” before telling the mother to get off her property. She says that the father then drove as fast as he could back to Sydney and mentioned something about a “warrant for his arrest in Victoria.” She says they ran out of fuel on the highway and the father forced her to travel with a stranger to a service station to get some petrol.
  16. The father has a different version, albeit he concedes that they did indeed have a rushed trip to Melbourne. He say he was keen to see if he could find out the whereabouts of the children from his first marriage, given that he had last seen them when they were about four years and one year old respectively. He says that when he arrived he heard his former father-in-law say “call the police.” He says that the mother approached his former in-laws of her own free will and denies that he hit her, spat on her, or pushed her face against the car window. He says the mother volunteered to go with a stranger to get petrol on the way back to Sydney.
  17. It is unnecessary to resolve the parties’ disputes in this respect. However on any view, the father’s spontaneous decision to visit his former in-laws to try and track down his children, whilst taking the mother and his two young children with him, is very odd.
  18. After they returned to Sydney the parties lived in a rental home. Then in late 2002, the parties purchased a home at M Town, a small town about four and a half hours west of Newcastle.
  19. The parties have wildly differing versions as to events which occurred there. The mother says that she again fell pregnant and became seriously ill, yet the father refused to take her for medical attention. She says that it got to the point that she could not walk properly, but the father spat on her, kicked her and yelled “get your fucking lazy fat arse off the floor and feed your children.” She then telephoned a domestic violence hotline, in consequence of which workers and police attended and ultimately took her to Sydney Suburb N where there was a termination of the pregnancy.
  20. The father says that this all occurred when he collected a friend’s girlfriend from a bus station, which for some reason or other precipitated the mother confronting him with a large block of wood threatening to kill someone. He says that the girl was scared, in consequence of which he drove her to Sydney to his mother’s house. From there he rang a neighbour in M Town who said that the mother had been screaming and making horrific noises for hours. He then returned to M Town, having first rung an ambulance. When he arrived there he said that the yard was full of feathers, and the mother had got his chef’s knife and stabbed all the doonahs and mattresses, and shredded all the bedding, pillows and clothing and scattered it around the yard. Police arrived, then the ambulance came, as well as some other people. They took the mother and C away, and left B with the father. He says that he didn’t hear from the mother for another two months when he said she telephoned him and asked him to come and pick her up. He said that there was no violence associated with the event. He says that he was unaware that the mother was pregnant or that she had an abortion until after they reconciled.
  21. Ultimately it is not necessary to resolve the parties’ conflict in relation to the episode in question, although that said, I generally prefer the mother’s evidence.
  22. After the parties’ subsequent reconciliation the mother learned that her-step father had died. The father was anxious to secure any inheritance that the mother may have had. She says the father harassed her about it for days. The father denies this.
  23. In about 2005 the father’s second wife and their three children came to Australia from Scandinavia for a holiday. The second wife permitted the father to take the three boys back to M Town for two weeks. Whilst he may have done so, he did not stay there. It is uncontroversial that the father in fact took the three boys, together with the mother and the parties’ two children, initially to G Town before ultimately leaving to drive to “the tip of Australia”. The father says that he advised the boys’ mother of that and “she had no problem” with it. The mother disagrees. She says that she heard him say to his second wife when he telephoned her from L Town that “I’ll do what you did to me when you kidnapped the children.” In oral evidence she said that the father said that they needed to travel to an area where there were no law enforcement officials. She says that is why they determined to drive up to O Town. The father’s explanation is curious. He says (paragraph 193) “I say that because the weather was so good, I decided to drive up to the tip of Australia…”
  24. On the way up to O Town the car the father was driving left the road and broke a front wheel. The RACQ took the party and car to P Town. They stayed there for about six weeks. The father says that during this time he was ringing his ex-wife in Sydney, telling her that despite his best efforts, he could not get the car fixed. It appears that she did not believe him, even if he did so telephone her, because she commenced Hague Convention proceedings and ultimately an order was made for the boys’ return to the mother. The father unsuccessfully opposed the order.
  25. The parties and their two children then returned to M Town. Then in about 2006 they travelled to Q Town where the father worked for about two to three months. They then again returned to M Town and put their house on the market. It was ultimately sold in 2008. They then returned to G Town.
  26. The parties are again in enormous disagreement as to the circumstances of their living after they returned to G Town. The father says that the mother was constantly violent towards him, often drunk, spending a lot of time in hotels and otherwise behaving poorly. For her part the mother says that during the time after they returned to G Town the father was unemployed, and spent a lot of his time at the Casino. She says that he was often drunk and did not take proper care of the children when she was at work. She says that the father was financially controlling of her, and regularly abusive of her.
  27. Again it is unnecessary to resolve this dispute for the purposes of these proceedings.
  28. In 2010 the parties purchased a home (in fact it appears as though there were two houses) at R Town. It is a little town about 400 kilometres west of G Town. Whilst there the mother again fell pregnant. It is not in dispute that the pregnancy was difficult and she was required to be in G Town for about three months leading up to D’s birth, and that B and C stayed with the father in R Town so that they could continue at school.
  29. It seems as though after D’s birth the mother returned to R Town. Not long after, Mr S, one of the father’s children from his second marriage, came to stay with them from Scandinavia. He was about 20 years old. In early 2011 Mr S moved to G Town.
  30. At about this time the father became embroiled in a dispute in relation to the children’s schooling in R Town. He was concerned that the principal of the school was allowing a helicopter to land on the school grounds. The helicopter belonged to her boyfriend, who used it for mustering cattle. The father seemed to think it his role to make complaint in relation to this, and a bitter dispute ensued. For some reason or other, a collateral dispute in relation to an alleged fraud on the school’s Parents’ and Citizens Committee developed at about that time. The father also became convinced that there was some form of racial discrimination against his children at the school. For instance his evidence is that the school principal would accuse C of certain misbehaviour when white students who were with her were also behaving similarly, but without criticism. Ultimately the father says that “the principal called the police from another town to stop me coming to school. The police told me that we could not go to the school or in the street where the school was. That included me and the mother. I therefore could not take the children to school.”
  31. All of this caused the father to remove both children from the R Town School in October 2011 and move back to G Town. By then, Mr S had purchased a house in G Town (albeit it appears as though the father contributed some money towards that purchase) and the parties moved into that house. To get some additional income, the father organised to house foreign exchange students. In late 2012 a 13 year old Country T girl was staying with the parties. Whilst she was there, the events leading to final separation occurred on New Year’s Eve of 2012.
  32. Inevitably the parties have wildly differing versions of the events of that evening. The mother says she went to bed and left the father drinking downstairs with one of Mr S’s friends. She says she later woke up with the sound of the midnight fireworks and noticed the father was extremely drunk. He could not even sit on chair and was struggling to speak. She tried to get the father to come to bed. Mr S’s friend and the father then had an argument, and the mother says “the father then went into a fit of rage threatening to kill the young man if he didn’t leave.” She tried to call the police but the father wrestled the phone off her. The father then started screaming at her (and D, since he was in her arms at the time). The mother hid behind the couch with D. Eventually the father fell asleep. The mother waited until sunrise and went into the bedroom. The father then awoke and again grabbed her and started abusing her. The mother says she was terrified and ultimately arranged to leave the house with the three children and the Country T exchange student.
  33. The father’s version is markedly different. Whilst it appears he agrees that there was one of Mr S’s friends there who was very drunk, he says that that person started rampaging through the house trying to find money with which to buy alcohol and cigarettes. He says that the mother then became angry with him (ie the father) and picked up a knife and stabbed at a door with it until it came off the hinges. He tried to hide from the mother, apparently successfully, and from his position saw the mother leave the home.
  34. The mother then went into a women’s shelter. The father believes that it was at this time that the mother started to become indoctrinated and brainwashed by feminists.

Post-separation

  1. It appears as though post-separation the father returned to live at R Town. He did not know the mother’s whereabouts for some period of time. He attempted to organise mediation with Relationships Australia, although the mother says it was disingenuous and he was only attempting to find her address. Whatever be the truth, in fact some short time after the mother had made contact with Relationships Australia, the father arrived at her home, and begged to stay for one night before returning to R Town. She permitted that to occur and he left the following day.
  2. About a week later the father returned and accused the mother of kidnapping the children and said that he wanted to stay in G Town. After four days the father again left, but he then retuned about two weeks later and stayed for another week. He was constantly asking the mother for money during this period.
  3. The father says that in fact during this time the relationship continued. He said that the mother would come to R Town for blocks of three or four weeks and he would then come and stay at G Town for some weeks. He said they celebrated birthdays and Christmas together, and he took the children to school, the beach and attended to household duties. Certainly the mother concedes that she and the children went back to R Town for school holidays during 2013, during which time she noticed that the father had sold most of the furniture and the house was a mess. She also concedes that at least after one of those holiday periods, the father travelled with her and the children to G Town and stayed at her home. She said that she refused to take the children to R Town during the 2013 Christmas school holidays, as “the children begged me not to go.”
  4. She says that until April 2014, the father would come and go from her home as he pleased. She says that she didn’t make too much fuss about it as he only stayed for a few days.
  5. At the end of April 2014 she moved into a new unit. She says that the father did not know that address; the father says that the mother told him the address not long after she had moved in. He says that they resumed the pattern of him spending about half the time in R Town, and half the time in G Town with the mother. However the following events persuade me that the father is either mistaken or untruthful in that.
  6. The particular events relate to the father absconding with D. On 8 May 2014 the father telephoned the mother and asked her to bring D to a playground so that he could see him before he returned to R Town. (This is of course quite inconsistent with paragraph 267 of the father’s trial affidavit which is to the effect that he was then coming and going as he pleased between R Town and the mother’s home in G Town).
  7. The mother complied with the father’s request and brought D to the playground. She saw the father, but did not approach him. D commenced playing. Because the father had not approached her, she assumed that he didn’t want to be near her, so she turned away to go and buy D a drink. She observed that the father was watching them, and assumed that he would come and play with D once she had walked away.
  8. After about 30 seconds she turned around and saw that D was gone. As it transpired, the father had abducted him and commenced to drive back to R Town.
  9. The father’s version is different. He says that he in fact spoke to the mother at the park who told him “you can see him for 5 minutes and then I am leaving.”
  10. Paragraph 286 of the father’s affidavit continues:

I had driven a thousand kilometres. The mother walked to the shop and I held onto D’s hand and put him in the car and took him to R Town. As soon as I left, the police were calling me.

  1. Indeed the police were called and their attempts to have the father turn around and return D to the mother were ignored. D was still being breast fed by the mother at this time.
  2. The mother became incredibly distressed. She made many phone calls to the father’s mobile phone but he refused to answer. About six hours after he had left, he eventually answered the phone and told her that he was “giving [me] a taste of [my] own medicine.” The father does not deny this, and I accept that is indeed what he said to her.
  3. Ultimately in order to have the child returned to her, the mother deposited $100.00 into the father’s bank account for petrol. That was because the father said that the reason he could not return the child was because he could not afford to drive back. Eventually the father did indeed return D. On doing so, he demanded more money from the mother to pay for food and fuel on the drive back. She gave him a further $50.00. The father then, on the mother’s evidence, started criticising her for spending money as she did, and then elbowed her in the face. She said this caused her to go outside and call the police and at that point she decided to not put up with any more abuse from the father. The police arrived and asked the father to leave. Whilst she was outside waiting for the police, the father purloined the children’s birth certificates and passports and the mother’s passport.
  4. Ultimately those were able to be returned to the mother in exchange for the father’s mail which had been sent, without the mother’s consent, to her post office box, or in the case of D’s birth certificate, in exchange for $50.00.
  5. These proceedings were commenced on 19 September 2014 by the father, although he did not serve the mother until 13 October.
  6. Then on 12 November 2014, the mother awoke at about 10:00pm to hear her front door screen rattling. When she went outside she saw that the father’s dog was tied to the screen door, together with a note addressed to C asking her not to “kill the dog.” The note said that the father would be back on 25 November 2014 to collect the animal. In fact the mother’s lease did not permit the dog to be kept on the premises, although it appears as though in fact the mother did keep the dog there until 7 December 2014, which is to say, of course, that the father had not returned on 25 November to collect it. On 7 December the mother took the dog to the RSPCA in G Town.
  7. Ultimately the father returned to the home on 9 January 2015. He became distressed that the dog was not there. He then telephoned the mother and left voice messages, a transcript of which were exhibit MW8 to the mother’s trial affidavit. They are ranting in nature. He describes the mother as evil, perverse and destroying the children. He says that she should be in jail. He says that she has committed crimes beyond comprehension. He seems to assert that the mother’s stepmother is behind all of this “with her witchcraft, she should be sent to jail as well.”
  8. In those messages he then began to demand the return of some property to him.
  9. On 10 January he again attended the house and demanded the return of property. The mother returned some but the father was not happy that a computer monitor she gave him was in fact the right one. In due course the police arrived although they denied that the father had called them.
  10. On 13 January 2015 the mother was advised by the children’s school that D could not be enrolled without the father’s consent. On the following day her solicitor wrote to the father seeking that consent. That was not forthcoming, although on 20 January 2015 it appears as though the father told the mother’s solicitor that he would sign the form.
  11. On 24 January 2015 the father confronted the mother at a service station. He verbally abused her. He then proceeded to leave a string of abusive messages on her phone over the next few days. A transcript of those messages was in the mother’s trial affidavit. They are rambling and alternate between normal conversation and animated accusations. For instance on 24 January at 8:26pm the message includes the following:

What’s your excuse, not to your fucking lying conniving lawyers and dog fucking, fucking feminist whores, what’s your fucking excuse to me you idiot?

  1. He threatened to remove the children from school if she sent them there. There is reference back to the dog. There is also reference to the principal of the R Town School.
  2. On 25 January there was an even longer rambling message, which introduced threats such as “what if I start playing like you, can you imagine, can you imagine the destruction to everyone’s life if I behave the same as you behave. You better start talking, I am a nice person, I want to work things out to everyone’s advantage but not with solicitors, not for the feminists, not for the terrorists, not for the murderers, not for the thieves and kidnappers and the criminals in society.” Later in that day there is an interesting aspect to one of the messages in which the father says “no one is trying to take the children off you, I only took [D] to show you just how completely and utterly devastating and evil it is to do that.”
  3. A little later in that message the father says “This country has turned into a terrorist state. You should be cooperating with me to save your children’s lives, not selling them out to these evil murdering criminals.”
  4. Then on Monday 26 January the father for the first time introduced into his messages a threat to cancel the children’s school enrolment. On that day the school’s principal, Mr U, telephoned the mother. He told her that although the father had consented to D’s enrolment, he had then contacted him to tell them that he intended to withdraw all the children from the school.
  5. Mr U gave evidence before me. He did so pursuant to a subpoena issued by the father. He gave evidence that when the father had attended the school he had been abusive and highly argumentative.
  6. An interim protection order was made by the G Town Magistrates Court against the father in favour of the mother on 29 January 2015. Later that day the school principal again telephoned the mother asking her to come and collect all three children from the school. He told the mother that the father had been making abusive telephone calls to the school and was again threatening to remove the children. Mr U’s oral evidence was to like effect. He said that he had become so concerned about the father’s behaviour that he regarded it as a threat to the school itself and all of the children there. His evidence was that in his 34 years of involvement in education, he had never before had to ask a parent to remove a child from school.
  7. In fact the children returned home on the usual school bus, but did not thereafter attend school for a little over three weeks. The school refused to have them back without a court order restraining the father from removing the children from school.
  8. On 20 February 2015 I made an interim order restraining the father from attending the school (and removing the children from the school). The children have thereafter continued their education at that school.

THE ISSUES

  1. During the course of the trial I circulated a draft list of issues which then appeared to me to be likely to be substantially determinative of the outcome of the proceedings. The parties were invited to make any submissions as to the adequacy of that list. No party made any submissions, and both the counsel for the mother and the Independent Children’s Lawyer appeared to accept that they were indeed the predominant issues in this case. They were as follows:

1. What is the nature of the father’s relationship with the children.
2. What, if any, risk of harm does the father pose to the children.

  1. What, if any, risk of harm does the mother pose to the children, and particularly, has she alienated the children from the father.
  2. Would the children benefit from a meaningful relationship with the father, and if so, how may that best be facilitated.
  3. Does the father have the capacity to provide residential care for the children.

6. What would be the effect upon the children of a change to shared care.

  1. Would the parents ever be able to communicate and negotiate effectively in relation to matters involving the children.
  2. What would be the effect upon the children of the effective termination of their relationship with the father.
  3. After I have considered relevant statutory provisions and legal principles and dealt with questions of credit as they arise in the case, I will consider those issues in advance of a general traverse of any further relevant s 60CC factors and then consider the specific parenting orders which in the exercise of my discretion are in the best interests of the children in this case.

LEGAL STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime

  1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

  1. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
  2. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
  3. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
  4. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[2] In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission [2005] FCA 1310; (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

  1. “Abuse” is defined in s 4 of the Family Law Act in the following terms:

Abuse, in relation to a child, means:

(a) an assault, including a sexual assault, of the child; or

(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

(d) serious neglect of the child.

  1. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
  2. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

  1. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

  1. S 140 of the Evidence Act 1999 (Cth) provides as follows:

140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.

  1. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

  1. Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[3]

The notion of unacceptable risk

  1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

  1. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20]-[25] the Court said as follows:

20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A v A [1976] VicRp 24; (1976) VR 298, at p 300), “an element of risk” or “an appreciable risk” (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), “a real possibility” (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a “real risk” (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

  1. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[4]

(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?

  1. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

  1. Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew [1996] FamCA 43; (1996) FLC 92-692.
  2. Moreover, it is incumbent upon the court to clearly explain its reasons for any conclusion that safeguarding conditions cannot sufficiently ameliorate the risk posed by the parent: see Blinko & Blinko [2015] FamCAFC 146 at [30].

DOMESTIC VIOLENCE

  1. The material prepared by the parties appeared to contemplate that the issue of physical violence would be a major issue determinative of the outcome of these proceedings. As I have already indicated, the parties have wildly differing accounts of who was the perpetrator of domestic violence in the relationship. However upon analysis, this is not a case in which, irrespective of who the perpetrator of the domestic violence was, the determination of which parties’ account is accurate is critical. That is because both parties are agreed that there was indeed domestic violence. However as I have already observed, it is not physical violence to the children which the father is said to pose a risk of, but rather emotional abuse. That emotional abuse is not said to derive from his physical violence, but rather his paranoid psychosis.
  2. However it is appropriate that I should nonetheless make some conclusions about domestic violence. That in turn requires discussion in relation to the parties’ credibility. The first point to make is that the father experiences the world and the events that occur to him through the prism of his paranoia. His experience and interpretation of events is therefore determined by that perspective.
  3. A good illustration of how he misconstrues events in a more sinister way than they deserve occurred during the course of his Family Report interviews. A police car went past where he and the writer, Ms V, were speaking, and simultaneously her phone beeped signalling the receipt of a text message. According to Ms V, Mr West indicated that she was therefore colluding with the police and remarked “More evil. They can arrest me now.”
  4. Moreover the father appears to regard himself in something of a constant state of warfare with all forms of authority and government. He appears to view himself as the permanent and ongoing victim of a conspiracy involving many agencies and individuals. He therefore necessarily construes events as fitting within that conspiracy. Well high up in the list of perpetrators are women’s organisations, or perhaps more generally, feminist philosophy. He believes that feminism is now the Australian state religion.
  5. Given the disability which the father therefore labours under when dealing with reality, one would necessarily have to be very circumspect in wholeheartedly accepting his interpretation and recollection of events. Further, it is plain that for a substantial period of the relationship, the father was drinking considerably, and smoking marijuana heavily.
  6. His evidence as to marijuana use was unsatisfactory. Although he conceded that he had been regularly smoking marijuana since about 14, he appeared to want to downplay both the amount that he may have smoked, and the period over which he did so. In cross-examination he said that he could not recall when he had last used cannabis, but ultimately conceded that it was “quite possibly” 2014. He was equivocal in answer to the question of whether he was still smoking marijuana. As to his cannabis use since 2011 he said it was “well below the national average.” He said that he experienced a calming effect from it and that in stressful situations it was better to “smoke a cone” rather than to drink alcohol. That said, he was not prepared to agree that he had extensively used cannabis in the past.
  7. Curiously though, he had persistently declined to undergo any drug testing. In the witness box, although he was adamant that any such testing, if it were undertaken on him on that day, would not detect any cannabis, he refused to undertake the test nonetheless. He did so on the basis that it was not the Independent Children’s Lawyer’s right to ask him to submit to a test.
  8. In her evidence the mother said that during the course of the relationship the father would spend up to $300.00 a week on marijuana.
  9. The mother is not the only person to give evidence as to the father’s marijuana use. The children were interviewed by Ms W, a Family Court Consultant, in the course of a Child Inclusive Conference in December 2014. The memorandum to the court resulting from that conference was in evidence. It records “[B] gave a number of examples of his father’s behaviour that he found frightening, including his father drinking alcohol to excess and using cannabis.”
  10. I am satisfied that the father has been a regular and heavy user of cannabis, although I accept that at present his use may have abated. He has also plainly been a heavy user of alcohol. Whether individually or in combination, the effects of both of those drugs are likely to have impaired his experience of the world, and perhaps his memory of those experiences.
  11. On the other hand the mother does not present as having such constitutional concerns in relation to the reliability of her memory and accuracy of her evidence. That said, there are some points which do weigh against her evidence being accepted unquestioningly. The first is that she never made complaint to relevant authorities during the course of the relationship of the father’s violence against her. She explains that on the basis that the father had warned her if she were to tell authorities about him, she would be deported to Africa (not Country H). He told her that that is what Australia did.
  12. Further, there is no contemporaneous record made by the mother, other than the photographs referred to earlier, of the violence being perpetrated upon her. It is unclear on the evidence why the mother only took photographs of her injuries on one occasion but not others.
  13. Further, I note that in the father’s otherwise vitriolic voice messages to the mother, transcripts of which are in evidence, there is a persistent theme of challenging the mother’s truthfulness.
  14. Finally, there is the mother’s somewhat unsatisfactory evidence that on one occasion she herself did take up a weapon against the father, perhaps a piece of PVC downpipe.
  15. All of these do incline me to approach the wholesale acceptance of the mother’s evidence with some caution.
  16. From the perspective of the parties’ performances in the witness box, the mother was plainly the more reasonable and credible witness. The father could scarcely have made a worse impression had he deliberately set out so to do.
  17. However in my view the telling evidence which does weigh in favour in accepting the mother’s evidence as to the father’s domestic violence comes from the children. True it is that it was not tested by cross-examination (although at one stage the father did foreshadow that he was going to make an application to have the children produced for cross-examination) but nonetheless it has now been told to two independent inquirers. The first was Ms W in December 2014. In the course of speaking with her, B is reported as having said as follows:

[B] reported his current living arrangements (with his mother and sibling) as “peaceful, relaxing and no arguments.” When asked if he wanted to spend time with his father, [B] stated an emphatic “no.” [B] described family life with his father as “everyday arguing.” “[H]e ([Mr West]) attacked my mother, he was very violent. We (the children) would run away and hide. My father choked my mother, he picked her up.” ([B] demonstrated with his hand on his own throat in a lifting motion).

  1. C was also interviewed. Although she did not disclose any violence, Ms W did note as follows:

When asked if she wanted to spend time with her father, [C] said: “no”. [C] explained “he would shout at us. We could never relax. He was always arguing with our mother. I couldn’t do my homework. He was not really like our dad but someone who comes to our house, like a family member. I don’t really like him.

  1. The second person was the Family Report writer, Ms V. She interviewed the children in February 2015. At paragraphs 113 and 114 of her report Ms V said as follows:

113. Mention was made of the children hearing the parents argue. A child said ‘dad could be violent; that was mainly when I was younger. He would shove my mother around. When living in [X Street] I would see him grab and twist her arm.’ When describing the parental arguments as ‘really annoying’, the child explained ‘I could not get a word in. Arguments are loud, mainly dad’s voice. Sometimes mum is loud when trying to get dad to be quiet.’ A child spoke of [the father and the mother] arguing about the computer and gold coins.
114. When given the scenario of the writer being their neighbour before mum and dad separated what would I hear, a child identified ‘arguments; not happy noise. Yelling and screaming. If not smoking, dad is crazy. Dad got very violent and carried on to our brother’s friend. Dad got mad that night. Our brother’s laptop was broken, the door was broken. He blames mum but I believe dad broke the laptop and the door. He does not admit to his behaviour.’

  1. The father sought to explain such disclosures on the basis that the children had been coached to make them. He said that they had been brainwashed by the mother. Neither Ms W nor Ms V accepted that contention. They said that they believed the children’s disclosures to be spontaneous and un-coached.
  2. The other matter which necessarily plays in the balance here is the father’s conduct in the court. Mr Victoire, who appeared as counsel for the Independent Children’s Lawyer, correctly identified that in fact the father, and particularly his conduct in the court, could properly be regarded as the Independent Children’s Lawyer’s principal exhibit. His demeanour and the tone of his voice was regularly menacing. His language was wholly intemperate. He exhibited no capacity for self-regulation or control. He appeared to have no insight as to the absurdity of his behaviour and presentation, and would say whatever came into his mind without any apparent review or editing. Moreover, at times he became physically animated. On occasions he petulantly swung around in his chair so that his back was facing me. Sometimes he left the bar table to wander around the rear of the courtroom. On one occasion he abruptly left the courtroom and had to be cajoled to return, refusing to return if there was a security guard in the room with him. He regularly angrily and aggressively gesticulated, even when he was in the separate courtroom. I have already mentioned his childish tearing up of pieces of paper in an effort to make some physical protest to overcome the fact that his audible intervention had been stopped by virtue of the microphone in the second courtroom being muted.
  3. If that is how the father is prepared to behave in court, one can only wonder how he would behave at home with a domestic partner with whom he is in conflict. When one considers that he has many charges – and perhaps convictions – for assault, particularly of police, one realises that it seems likely that he has no internal resistance to expressing his agitation physically. Moreover he himself confesses to having to hit the mother “about two times” early in the relationship. The conceded assault of the mother was serious. Even if be that the mother is mistaken as to the occasion that the photographs in evidence were of, the results are horrifying.
  4. I am therefore satisfied that the father has certainly been more violent towards the mother than he is prepared to concede, and that it is likely that he was violent substantially to the extent alleged by the mother.
  5. However I am not convinced that the mother was as infrequently violent as she alleges. If I were to believe her, there was only one occasion when she took to the father with a weapon. The way in which she gave her oral evidence in relation to that left me with some real doubt as to the prospect of there being more, and perhaps many more, such occasions.
  6. However as I have already indicated, this is not a case which turns upon physical violence, however counterintuitive that may seem. This is a case which turns upon the balancing of any risk of emotional harm which the father poses to the children, with any benefit to the children which would flow from having a meaningful relationship with him.

WHAT IS THE NATURE OF THE FATHER’S RELATIONSHIP WITH THE CHILDREN

  1. The father would have me believe that he has a good relationship with his children, save that it has been recently poisoned by the mother’s alienation of them from him. On the other hand the mother says that the father has always had a superficial relationship with the children, and to the extent that he has involved himself in their lives, it has been more about demonstrating himself as being involved, rather than in fact substantially being involved.
  2. I have already recited some of the children’s evidence as to their experience of the father, or at least their present perception of that experience. However there is more. Relevant extracts of the Family Report are as follows:

102. Not attending school was a low point for both [B] and [C]. [B] spoke of [the father] ‘coming to the school and arguing with the Principal; I refused to see dad at school.’ [C] point out ‘dad will carry on for a while; he will attend the swimming carnival to see if I’m there. I don’t want dad at the carnival; he yells and screams. He says I should try harder then he goes off at the teacher. It is really embarrassing.’

109. [Mr West] was described as ‘aggressive’. Another said ‘he is usually grumpy. He smokes and drinks a lot. He used to blame mum for drinking [alcohol] and leaving us at home. She didn’t. Dad would go to the Casino to gamble; he would come drunk. Life with dad was quite stressful. He likes arguing. He argues over little things, it could be something of the floor or the dishes not washed. He would not wash the dishes.’
110. When speaking about [Mr West’s] public displays of aggression, the child said ‘dad does not learn. He carries on; he may not be aware of his behaviour. He appears not to be aware of others present [in the vicinity]. He does not care if anyone else is paying attention. He just has to say what he wants to say.’
111. Mention was made of [Mr West’s] minimal involvement with the children; ‘he would sleep’. [C] spoke of [Mr West] taking her to the lagoon; ‘[D] was too young and [B] was not interested’. When they lived in [R Town], [Mr West] was involved with the children’s sport.
112. When canvassed would they magically change any aspect of [Mr West], a child said ‘his behaviour.’ After a pause the child questioned if [Mr West] could change; ‘it would be pretty hard.’ When advocating the removal of [Mr West’s] aggression, a child suggested ‘make him the opposite to what he is now.’

117. When canvassed as to whether they have witnessed either parent argue with others, a child replied ‘dad, all the time. He argued at the bank. He would argue anywhere if he was not happy with the service. Dad would make false accusations when he was not happy.’ Mention was made of [Mr West] having no friends; ‘he argues with every single person he talks to.’

  1. It bears repeating that C also told Ms V that the father’s presence in the home was more like a family member rather than a parent.
  2. Having witnessed six days of the father’s outlandish behaviour, the children’s statements resonate with me; they align perfectly with my observations of him.
  3. There is then the evidence of the children’s school principal, Mr U. He gave evidence under subpoenae issued by the father. Perhaps the father thought that he was going to obtain favourable evidence from Mr U, but that seems unlikely. Rather it appears as though the father was intent on using the coercive powers of the court process to enable him to confront Mr U. Mr U’s evidence wholly dammed the father. Particularly he said that the father’s behaviour in January of this year was so concerning that he considered him a risk to both the staff and students at the school. He said – and was not challenged – that staff felt threatened by him. He said it was most unfortunate that other students had witnessed his carryings on. As I have indicated, for the first time in his 34 years in education, he required students to be taken home and not thereafter allow them to be at school.
  4. Plainly the children were at least disappointed, and probably furious, with the father for what he did and the effects of it on them.
  5. I am satisfied that the children have nothing like a normal father/child relationship with the father, and experience him as an aggressive, conflictual and highly embarrassing man. I am satisfied that the father, far from assisting them in a perception of safety and security, effects exactly the opposite upon them.
  6. The father says that this is all because of the mother’s alienation. I wholly reject that. True it is that the mother has not in recent times promoted any relationship between the father and the children, however no doubt she has been pushed beyond the end of her tether. There is no evidence of coaching or other untoward involvement of the mother of the children.
  7. Dr E dealt with this in a pithy observation at paragraph 67 of his report in relation to the father. There he said:

67. I note that he claims that his estranged wife has alienated the children. I am quite sure he has alienated them very nicely himself.

  1. I accept that evidence and it conforms with my view of the evidence generally.

RISK OF HARM POSED BY FATHER

  1. I have already expansively detailed the father’s unique presentation, which is one of belligerence, hostility and menace. It is plain that this is a permanent, ingrained and persistent feature of his day to day life. It is, simply, who he is.
  2. Likewise I have already traversed the evidence in which the children have detailed that their experience when with the father is one of conflict; conversely, their experience now that they are not having contact with the father is one of peace.
  3. As if the direct impact upon the children of experience of such a father is not enough, there is also the risk that they will be caught up in the father’s retributive schemes. These are not at all child focussed. There are two glaring illustrations of this. The first is the father’s abduction of the three sons from his second marriage by taking them for an extended period to O Town. I have little doubt that the father in doing so was acting with a view to punishing their mother for having taken the children from him to Norway. The second is the father’s taking of D – still being breastfed – from the mother, plainly, as he himself said during one of his voice mails to the mother, to punish her. Less child focussed decisions could scarcely be envisaged, other than direct physical harm or neglect.
  4. Ms V summarised it perfectly in her oral evidence-in-chief. She said that the father operates from a position of self-entitlement, is prepared to carve up the children like property, and does not understand the impact of domestic violence on children.
  5. Critical to this consideration is the degree to which the father has insight. Dr E was of the view that he has a “total lack of insight.”
  6. The father does indeed totally lack insight. He demonstrated that many, many times during the course of the trial. He says and does whatever he feels he should in any circumstances. This is the experience of the children of him. He is quite prepared to use children as pawns in games of retribution and conflict. His cavalier taking of D – opportunistically, and just on a whim – is a stark illustration that he is prepared to risk the children’s emotional health and wellbeing to achieve his vindictive aims. I unhesitatingly accept Ms W’s evidence that there is a serious risk of emotional harm to D should he spend time with the father, because of the risk that the father will withhold him as he has previously done.
  7. I am satisfied that the father presents a real and substantial risk of emotional harm to the children, whether from being exposed to his violent conduct from time to time, or his aggressive, hostile and menacing behaviour, or because he would involve them in his vindictive actions.

RISK OF HARM POSED BY MOTHER

  1. I reject that the mother has alienated these children from the father. I completely accept Dr E’s evidence that the father has managed to alienate them “very nicely himself.”
  2. There appears to be some suggestion that the mother physically disciplines the children, although their experience of it is that the red marks from her smacking quickly abate. In any event the father did not run his case on the basis of any physical risk posed to the children by the mother. Such risks as the mother might pose to the children are not unacceptable.

BENEFIT OF MEANINGFUL RELATIONSHIP WITH FATHER

  1. The children do not perceive that they derive any benefit from their relationship with the father. The expert evidence speaks strongly in support of their views. Particularly I specifically inquired of Ms V whether she thought that there would be any benefit of B spending time with the father. Although she said that he would likely comply with it because he has a compliant character, she was emphatic that there was in fact no benefit at all to B spending time with the father. She again said that there was no benefit whatsoever in C having a relationship with the father. Moreover, she was worried that in the event that one of the children were required to spend time with the father, the others would likely attend only to protect that other child. Particularly in the case of D, that is because both B and C would be concerned that he may not be returned, as occurred in 2014.
  2. In the past the father has been involved in arranging and facilitating the children attending extra-curricular sporting activities. The most recent instance of that was a disaster. The children were attending a swimming carnival, and the father went to observe. He became concerned that C had wrongly come second in a race. He made a scene. He asserts that he was acting in her best interests, but it is clear that his behaviour mortified the children. Having seen the behaviour of the father for myself in court, I can well imagine the fuss which he created. It would have been an intolerable and excruciatingly shameful thing for the children to have perpetrated upon them in the presence of their peers.
  3. The two older children identified that they would obtain no benefit from a relationship with their father and do not want it. The evidence wholly supports them. I am satisfied they would obtain no tangible benefit from a relationship with their father.
  4. D fits into a somewhat different category to the older children, in that they have already formed their view of the father, and have had the benefit of at least knowing him, so that they have an appreciation of both their parents when forming their adolescent identities. However I am not persuaded that in D’s case, knowing his biological father – without more – is going to be of any real benefit to him. The father will likely only continue to expose him to conflict and hostility, and is likely to again use him as a weapon in his retributive ambitions.

DOES THE FATHER HAVE CAPACITY TO PROVIDE CARE

  1. For three months whilst the mother was in G Town in preparation for the birth of D, the father did indeed care for B and C at R Town. That is sufficient to satisfy me that the father can, at least to an acceptable degree, house, feed and clothe the children. However I am far from satisfied that the father has the capacity to provide for the emotional and intellectual needs of the children. I do not wish to labour the deficiencies in the father’s behaviour. However it has to be said that even if the father displayed a fraction of the outrageous behaviour which he demonstrated in court in a relationship with the children, it would be disastrous. The fact that he is apparently prepared to potentially expose his children to his anger was soundly underlined by his apparent desire to require them to be produced for cross-examination by him as to their credit. A less child focussed view could scarcely be imagined.
  2. I am not satisfied that the father has the capacity to provide for the emotional needs of the children were he to have them in his care for any period of time.

EFFECT OF SHARED CARE

  1. The father proposes equal shared care. There is a threshold difficulty in considering the effect of that proposal, because the father remains living at R Town, whereas the mother lives in G Town. The father said in his evidence that that if the order were made he would move to G Town. It was completely unclear where he would live, or indeed how he would afford to live. Therefore on a practical day to day level, the father’s proposal is so devoid of detail that the mechanics of the proposed shared care arrangement cannot even begin to be formulated.
  2. However more fundamental is the wholly different regimes in which the children would likely be living. The father appears to think that the children have become virtual hermits, rarely venturing outside the house except to go to school, and involved in no extra-curricular activities. He would no doubt seek to have the children involved in active outdoor activities on a regular basis. The mother on the other hand does not appear to place the priority on such activities as does the father. She appears to be compliant with the children’s desire to play electronic games, or spend their time in libraries. There is no consensus between the parents as to how the children should be raised. The likely effect of that in reality is that the children would be moving between two wholly different worlds, presided over by parents with wholly different personalities.
  3. In T v N [2001] FMCAfam 222 Ryan FM (as her Honour then was) at [93] said in relation to the conditions attaching to equal shared care as follows:

The factors that the court should particularly examine in cases where a party seeks orders that share a child’s time equally between its parents (or others) include the following:

  • The parties’ capacity to communicate on matters relevant to the child’s welfare.
  • The physical proximity of the two households.
  • Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
  • The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?
  • Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
  • Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
  • Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
  • Can they address on a continuing basis the practical considerations that arise when a child lives in two homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
  • Whether or not the parties respect the other party as a parent.
  • The child’s wishes and the factors that influence those wishes.
  • Where siblings live.
  1. Accepting that the legislative framework has changed since that decision, there is nonetheless no reason to think that as a practical matter those considerations do not remain live in determining whether or not equal shared care is likely to work.
  2. None of those criteria – not a single one – are met in this case. That predicts that shared care in this situation would be a wholesale disaster. I am satisfied that it would indeed be unworkable.

PARENTS ABILITY TO COMMUNICATE AND NEGOTIATE

  1. There was an unusual feature to the father having been physically removed from the court and his outbursts controlled by muting him, by the time he got to cross-examine the mother. That was that the mother was able to, probably for the first time in her life, without interruption converse – albeit in the highly artificial situation of cross-examination – with the father. Even from the silent – at least from the courtroom in which I was sitting – perspective, the father’s rage and fury was palpable. But for the fact that the father was on mute, I have little doubt that he would have been unable to control himself from interjecting during the course of her answers, as he had done with many witnesses prior to that.
  2. Whilst the mother was not necessarily directly responsive to all of the questions posed of her, I had the distinct impression that she was luxuriating in the fact that for once she was able to speak without interruption.
  3. I have no hesitation in concluding that these parties have never been able to, in recent years, conduct a civil conversation. The father’s belligerence and overbearing attempts to intimidate would have been on full display in the course of their conflict. I am buttressed in this conclusion by the children’s experience of their home life.
  4. The father cannot communicate in the sense that he cannot even listen to contrary views. His concept of dialogue is in fact monologue; his notion of negotiation is to wholly win. He becomes extremely aggressive, petulant and outspoken if he does not get his way. Notwithstanding my several warnings to the father that his own conduct in court could be taken into account by me in relation to the resolution of matter, he still persisted in such behaviour.
  5. I am satisfied that these parents could never communicate, much less negotiate effectively, in relation to matters involving the children.

EFFECT ON TERMINATION OF RELATIONSHIP WITH FATHER ON CHILDREN

  1. Sadly, counsel for the Independent Children’s Lawyer, correctly summarised that the effect of the termination of the relationship between the father and the children will be one of freedom for them. It gives me no pleasure to make such an observation.
  2. In reality, the children’s relationship with the father has already terminated. He has not spent any time with them since 2014. Far from having adversely affected them, it appears as though both B and C are doing well at school, and report no emotional disturbance. D appears to experience separation anxiety from his mother which is conjectured as being part of the outcome of the father having taken him away in May 2014.
  3. I am satisfied that if the children know that their relationship with the father is terminated unless and until they choose to reinstitute it, that will indeed be liberating for them.

SECTION 60CC CONSIDERATIONS

  1. I will be appreciated that much of what I have already discussed traverses many of the s 60CC considerations. However relevant to them, I make the further observations.
  2. As I have previously explained, unfortunately there is no tangible benefit in any of the children having a meaningful relationship with the father. They would benefit from having a meaningful relationship with their mother.
  3. Somewhat oddly, this is not a case in which s 60CC(2A) has any work to do: that is because I give no weight, because there is no benefit, to the children having a meaningful relationship with both parents.
  4. Both of the elder children have expressed emphatic views that they wish to have nothing more to do with their father. I give those views considerable weight, given the age of the children and the maturity with which they expressed them.
  5. Whilst I am satisfied that the father has sought, at least in recent years, to participate in issues involving the children and to spend time with them, I am not satisfied that he has been child focussed in so doing. No better illustration of this could be had than his intimation that he no longer consented to the children attending their high school. True it is that he was seeking to be involved in decision making about them, but he did so without consultation with the mother and obviously as part of a general campaign against the mother in the context of these family law proceedings.
  6. The father has never paid child support to the children since separation, and did not express any desire to ever do so in his evidence. I do not overlook that from time to time the paternal grandmother has apparently sent money to the children for special events – for instance it is said that she paid for fares for a holiday to the Solomon Islands, and contributed $300.00 towards an airfare to Country T for B, but plainly that was the paternal grandmother and not the father.
  7. The father lives in R Town which is about four and a half hours drive from where the mother lives. There is therefore practical difficulty in the children maintaining personal relations and direct contact with both parents on a regular basis if the father continues to live in R Town. However that is not an issue in this case given the looming nature of the other factors.
  8. Although not aboriginal, the children do have Country H heritage, which is outside the scope of the consideration in s 60CC(3)(h). I am satisfied however that the children would best benefit their experience of their Country H heritage via the mother.
  9. A Family Violence Order has applied in which the father was the respondent and the mother the aggrieved. The inference I draw from that is that the father is a violent man.
  10. No party suggests any interim orders. However this consideration is relevant as to whether or not there should be some slight window left open for the father to continue to engage with the children perhaps by card or gift or email. The Independent Children’s Lawyer submitted, and I accept, that whatever slight opportunity were left for the father, he would seek to use it as a wedge to reignite his fight with the mother. To that extent, such orders would risk leading to the institution of further proceedings.

PARENTAL RESPONSIBILITY

  1. The presumption established by s 61DA does not apply because there are reasonable grounds to believe that there has been family violence. In any event, the father and mother could not negotiate or communicate effectively in relation to the children. There is no prospect of the parties meeting their obligations under s 65DAC in the event that there was an order for equal shared parental responsibility. It is plainly not in the children’s best interests for there to be an unworkable arrangement in relation to decision making pertaining to them. The primary residence parent must therefore have sole parental responsibility.

WITH WHOM SHOULD THE CHILDREN LIVE

  1. The father is a real and substantial risk of emotional harm to the children. There is no benefit whatsoever to the children having any relationship with him. Whilst he may be able to provide for their physical needs, he cannot provide for their emotional and intellectual needs. The children do not wish to live with the father, or at least the eldest two articulate emphatic views to that effect.
  2. Equal shared care would be impossible and would inflict untold damage upon these children.
  3. It is plainly in the children’s best interests that they live with the mother.

TIME AND COMMUNICATION WITH FATHER

  1. Unfortunately this is one of those unfortunate cases in which there is no benefit whatsoever to the children spending time or communicating with their father. It would expose them to risk of emotional harm with no benefit, whether commensurate or otherwise, in return. The children neither wish to spend time nor communicate with the father. Having seen the father in action over six days, I fully appreciate and understand their strongly held concerns. I give them weight given their age and the maturity of the way in which they express them to Ms V.
  2. As I have earlier noted, in Blinko v Blinko [2015] FamCAFC 146 at [30] the Full Court emphasised the need for a court to explain why it is that no regime of orders can sufficiently ameliorate the risk which a parent is said to pose to the child, and why it is therefore that the total termination of the parent/child relationship is in the child’s best interest. Here there is one central theme to all of the rebuttals to any form of orders that would see the father maintain any form of connection with the children, and that is the father himself. He could not be trusted with any continued contact with the children or communication. He is amongst the angriest, most hostile, belligerent and menacing of people. I am satisfied that his out-of-court behaviour is likely even more extreme than the behaviour that I observed in court. That accords with all of the evidence; indeed there is no single piece of evidence which paints the father in any other light.
  3. There is simply no regime of supervised time which would work. Assuming that a private supervisor could be had, the father would undoubtedly become belligerent and hostile around him or her. There is little doubt that should the father spend supervised time with the children at a Contact Centre he would rapidly be expelled in consequence of his inability to control his emotions and hostility. That would just become another battleground for the father. Virtually every agency which the father appears to have had any contact with has been the subject of that sort of disputation, and there is no reason to think that a Contact Centre would be any different. Moreover, there is no benefit to the children in having a relationship with their father. Therefore not only is there no workable regime of orders, but there would be no point to them.
  4. There will be no order in relation to time and communication between the children and the father, and there will be orders restraining the father from attempting to spend time or communicate with the children.
  5. I have considered whether a regime of gifts and cards may nonetheless be appropriate, given the relative lack of opportunity for conflict between the parties, or for the children to be exposed to the father’s behaviour and the attendant risks. However such is likely to be unsettling for the two elder children, and of little benefit to the youngest child. Moreover it would require the mother to keep the father advised of her current postal (and hence in her case, no doubt residential) address.
  6. I am conscious that such a regime may well enable the children to maintain some concept of their father. In the case of the older two children they already have that concept firmly implanted in their brain. They have strongly expressed a desire to have nothing more to do with their father. In the case of the younger child, whilst he has not so strongly expressed that view, it has to be said that there is the real prospect that the father would not be able to remain child focussed in any communication.
  7. I am not satisfied that a regime of cards and gifts would be in the best interests of any these three children and decline to make any such order (which was not sought by the father in any event).

OTHER ORDERS

  1. The mother seeks orders that, amongst other things, a recovery order should lie in chambers. Although supported by the Independent Children’s Lawyer, I am not persuaded that the court should prophylactically issue recovery orders in circumstances presently beyond contemplation. Whilst I appreciate the intention behind the order, in that given that I am of the view that there is no benefit for the children in seeing their father again, that they should be immediately returned in the event that he seizes them, I not persuaded that the issue of a recovery order pending any breach of these orders should be made at this point. Particularly in this respect I note that the father has – at least thus far – respected the injunction which I made in February restraining him from attending the children’s school.
  2. That then brings me to the injunctions which the mother seeks. They include injunctions from seeking to approach the children whether at school or elsewhere and the like. I am satisfied that such orders are indeed in the best interests of these children and will make them.
  3. Save for the recovery order, there will therefore be orders in terms sought by the mother and supported by the Independent Children’s Lawyer.

CONCLUSION

  1. I am therefore satisfied that the orders set out at the commencement of these reasons are in the best interests of the children and will pronounce them.

Dealing with allegations of sexual abuse of children – a recent case

Jakeman & Rowe [2015] FamCA 838 (8 October 2015)

Last Updated: 20 October 2015

FAMILY COURT OF AUSTRALIA

JAKEMAN & ROWE
[2015] FamCA 838
FAMILY LAW – CHILDREN – With whom a child lives – Family violence

FAMILY LAW – CHILDREN – child abuse – sexual abuse – evidence did not substantiate allegations – no positive finding that abuse occurred – no finding that abuse did not occur – unacceptable risk – balance between meaningful relationship with parent and need to protect the child from psychological harm

APPLICANT:
Ms Jakeman
RESPONDENT:
Mr Rowe
FILE NUMBER:
CAC
1178
of
2010
DATE DELIVERED:
8 October 2015
PLACE DELIVERED:
Canberra
PLACE HEARD:
Canberra
JUDGMENT OF:
Faulks DCJ
HEARING DATE:
27-28 November 2013; 20-22 January 2014, 28 January 2014, 3 February 2014, 8 May 2015, 12 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:
Ms Haughton
SOLICITOR FOR THE APPLICANT:
Jeanine Lloyd & Associates
COUNSEL FOR THE RESPONDENT:
Ms Simpson
SOLICITOR FOR THE RESPONDENT:
Gordon Garling Moffitt


ORDERS
Parental responsibility

(1) The father will have sole parental responsibility for B (born … 2008) and C (born … 2009) (“the children”).
(2) Notwithstanding Order 1 the father will have responsibilities to notify, inform, authorise and consult with the mother as follows:

    <li “=””>(a) The father will notify the mother about any major matters relating to the children including but not limited to significant medical treatment or requirements, education and extracurricular activities. He will notify her by email, unless the parties otherwise agree.<li “=””>(b) The father will inform the mother as soon as is practicable after any major event relating to the children and in particular will report to her what occurred and how it affected the children.<li “=””>(c) The father will authorise any medical or similar practitioner upon whom the children attend (including any counsellor or therapist) to provide to the mother at the mother’s cost, and at her request, any information relating to any treatment administered to or required by either of the children. <li “=””>(d) The father will consult with the mother about which school each of the children will attend. In particular, the father will consider the points raised by the mother about which school would be best for the children. But ultimately the father will make the decision about which school the children will attend. The father will not change the school(s) the children attend without giving the mother reasonable notice of the proposed change.<li “=””>(e) In relation to a dispute between the parents as to the matters referred to above, the father will have a duty to consult with the mother. If the parties are unable to reach agreement, subject to any Court Order to the contrary, the father’s decision will prevail.<li “=””>(f) Neither parent will enrol either of the children in any extracurricular activity without the consent of the other parent unless such extracurricular activity occurs completely within the time that the children are spending with that parent.

Arrangements about with whom the children will live and the physical time that they will spend with the other parent.

(3) From noon on Saturday 10 October 2015, the children will live with their father and spend time with their mother as follows:

      <li “=””>(a) For a period of one month after the date of these orders, the children will live with their father and spend no physical time with their mother.<li “=””>(b) Thereafter, the children will spend from Friday after school on every second weekend with their mother starting on the first Friday after the completion of the one-month period referred to in the preceding order, until the commencement of school on the following Monday, unless that Monday is part of a long weekend, in which case the children will spend until Tuesday morning when they are to be returned to school with their mother.<li “=””>(c) For periods when the children would otherwise be on school holidays, at the end of term three this year and during the long vacation at the end of this year, the children will continue to spend time with their mother on each second weekend but the time with their mother will commence at 3 PM on the Friday and end at 9 AM on the Monday. The changeover point will in each case be at the mother’s home, unless the parents otherwise agree.<li “=””>(d) The provisions set out in order in Order 3(b) above, will from the first week after the end of the term three holidays in the year 2016 vary so that the children spend from after school on

Thursday

    until the mother returns the children to school on the following Monday. (This is to provide to the mother some time with the children during their school activities.)<li “=””>(e) Commencing with the holidays at the end of term one in 2016 the children will spend one half of each school holidays with their mother, with that being the first half of the school holidays in years ending in an even number or zero, and the second half of the school holidays in years ending in an odd number. (For these purposes the time that the children spend with their mother in the first half of the school holidays will commence after school on the last day on which either of the children is obliged to attend school and will end at noon on the first Saturday of the school holidays for the three shorter school holidays and at noon on the midpoint of the longer school holidays. Where the children are to spend the second half of the school holidays with their mother, that period will commence at noon on the midpoint of the school holidays and end at noon on the last day of the school holidays before the children are obliged to attend school for the new term.)<li “=””>(f) If Father’s Day should fall on a day when the children are otherwise, by these orders, required to be with their mother, then the weekend time the children would otherwise be spending with their mother will take place with their father, and the weekend time between the children and their mother will take place on the weekend immediately following the weekend on which Fathers’ Day falls. (It is noted that this will mean that the children will spend two consecutive weeks with one parent. The pattern of alternating weekends will resume immediately after the second weekend.)<li “=””>(g) If Mother’s Day should fall on a day when the children would otherwise be with their father, then the weekend time the children would otherwise be spending with their father will take place with their mother and the next weekend and the weekend thereafter will be spent by the children with their father.<li “=””>(h) Christmas Day will be spent in accordance with the above-mentioned Orders after 2015 with the parent whose half of the school holidays it is in accordance with the Orders. (That is, in 2016 the children will spend the first half of the long vacation at the end of the year with their mother and accordingly will spend Christmas Day with her.)<li “=””>(i) If Easter Sunday falls outside the school holiday period then the children will spend each alternate Easter Sunday with one parent. The children will spend Easter Sunday with their mother in 2016 and their father in 2017.<li “=””>(j) Nothing in these Orders prevents the parents agreeing to some alternative arrangement. In particular, but without limiting the generality of the foregoing comment, the parents may agree if they wish to do so, to share the time the children have with each of them on Christmas Day and Easter Sunday.<li “=””>(k) If the children’s birthdays fall other than on a weekend where they would ordinarily be with their mother then the children will spend two hours (4 PM to 6 PM) with their mother – unless the parents otherwise agree.<li “=””>(l) The parents may consult and agree about the time (or some time) that the children might spend with each of them on each of the parents’ respective birthdays. However, if the parents are unable to agree about such an arrangement, no time will be spent by the children with the parent on his or her birthday if the children are not with that parent on that day.

Communication

(4) Neither parent will prevent or allow anyone else to prevent the children from calling the parent with whom they are not currently spending time.
(5) The children may contact (including telephone, Skype or FaceTime) either parent at any time and each parent will facilitate such communication.
(6) The mother may call the children on Tuesday nights and Thursday nights at 6:30 PM for a period not exceeding 15 minutes when the children are with the father.
(7) The father may telephone the children during school holiday periods when they are with their mother at 6:30 PM for a period not exceeding 15 minutes on each Tuesday and Thursday evening.
(8) Neither parent will solicit, or permit any other person to solicit, telephone calls to a parent or to that person from either of the children.
(9) Nothing prevents the parents varying the communication arrangements as set out above by consent.
(10) The mother be and is hereby restrained from attending at any school the children are attending except by prior arrangement with the father whose consent will not be unreasonably withheld.
(11) Notwithstanding Order 10, the restraint order does not exclude the mother from attending ordinarily scheduled parent / teacher interviews at school or functions at school to which the parent body is invited.
(12) Only the parent with whom the children are currently staying will accompany the children to extracurricular activities, unless the parents otherwise agree.
(13) The children are free to communicate with the other parent by email but may not use other social media unless the father agrees that they may do so.

Other restraints

(14) Each of the parties be and is hereby restrained from discussing these proceedings (or the judgment in this matter) with either or both of the children.
(15) Each of the parents be and is hereby restrained from showing or causing anyone else to show to the children any document or documents from these proceedings.
(16) Each of the parents be and is hereby restrained from saying unkind or unpleasant things about the other parent, his or her family, associates or partner, or from permitting any other person to do so in the presence or hearing of the children.
(17) The mother is hereby restrained from taking either child for medical or psychological or psychiatric treatment or assessment or for further counselling or therapy except that which is agreed by the parties prior to the commencement or commitment to such treatment.
(18) Each of the parents and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of either of the children from the Commonwealth of Australia.
(19) It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children’s names on the Watch List for a period of 3 years.
(20) Upon expiration of the period referred to in Order 20 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.

Other matters

(21) Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders – obligations, consequences and who can help, a copy of which is annexed to these orders.
(22) All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
(23) Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
(24) This matter is removed from the pending cases list.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1178 of 2010

Ms Jakeman

Applicant

And

Mr Rowe

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

  1. This is a dispute about with whom the children, B (born in 2008) and C (born in 2009) will live. The parents lived together from mid December 2007 until early August 2009. At the time of separation B was 10 months old and C was not yet born. The mother had another daughter D (born in 2000) from a previous relationship. Some time after proceedings were initiated, there was an alleged disclosure by the oldest child of sexual abuse by the father. The dispute has since centred on how much time, if any, the children should spend with their father.
  2. This matter has a long procedural history. On12 April 2010 the father filed an initiating application in the E Town Local Court in New South Wales for interim and final parenting orders. The father sought that the children live with the mother and spend time with him 7 non-consecutive nights per fortnight. Interim orders to this effect were made on 20 April 2010. The mother did not attend the hearing on this date.
  3. On 30 April 2010 the father filed an Application for Contravention asserting that the mother had failed to make the children available as per the interim orders. This application was listed for 4 May 2010. The mother attended court on this date, representing herself. She admitted the contraventions but asserted that she believed the children to be at risk in the father’s care. The Magistrate ordered that the interim orders remain in place and listed the matter again on 8 June 2010 to enable the mother time to seek legal advice. On 17 May 2010 the father filed an Application in a Case alleging further contraventions and raising concerns for the children’s welfare while in their mother’s care, and seeking a recovery order. The matter was heard ex-parte on 18 May and a recovery order was made. The mother brought the children to the E Town Local Court on that date and the children thereafter remained largely in the father’s sole care until 20 July 2010.
  4. On 3 June 2010 the father amended his Initiating Application, seeking that the children live with him and spend time with their mother 4 nights per fortnight. On 20 July 2010 interim orders were made by consent putting in place a week-about arrangement for the children, and the matter was transferred to the Federal Magistrate’s Court (as it then was) in Canberra.
  5. On 16 August 2010 the matter came before Federal Magistrate Brewster (as he then was). At this time the mother sought to have the consent orders varied so that she could care for the children during the day while the father was at work during his periods with the children. The father had a family day care arrangement in place with a retired nurse during the times he was at work and opposed the mother’s application. Federal Magistrate Brewster (as he then was) refused the mother’s application to vary the interim orders and ordered a family report be prepared in the matter.
  6. In December 2010 the Family Consultant, Ms F recommended that:

Until [B] and [C] are of an age when they can emotionally tolerate lengthy absences from their primary attachment relationship, their mother, they should live substantially with her and spend frequent times with their father.

  1. On 9 February 2011 Federal Magistrate Brewster (as he then was) set the matter down for final hearing on 18 and 19 April 2011. This was later re-listed to 26 and 27 May 2011 before Federal Magistrate Mead (as she then was).
  2. On 26 May 2011 the parties entered into consent orders. These orders provided for equal shared parental responsibility between the parties, that the children live with the mother and spend time with the father every second weekend, and one day and one night during the alternate week. The orders made provisions for the time the father spent with the children to increase as the children got older.
  3. On 14 June 2012 the father filed an Initiating Application in the E Town Local Court, seeking that the mother return from G Town, where she had relocated to with the children, to E Town. On 29 June 2010 he filed an Application for Contravention. On 7 August 2012 the matter was transferred back to the Federal Magistrate’s Court (as it then was) in Canberra.
  4. The parties attended a Family Dispute Resolution Conference on 12 December 2012 and filed consent orders as a result. These orders provided that the children would live with the mother and spend time with the father from Thursday night to Monday morning every second week. The orders expected that the mother would remain in G Town.
  5. On 15 January 2013 the mother reported to police that B had made disclosures to her that led her to believe that B had been sexually abused by her father. The police applied for, and were granted, a Provisional Apprehended Domestic Violence Order ex parte by the H Town Local Court. The mother did not make the children available for time with their father. The mother subsequently placed posters around the E Town CBD stating the father’s name, address and workplace, and claiming that the father “is a paedophile.” As a result of this, the police took out an Apprehended Domestic Violence Order against the mother on the father’s behalf.
  6. On 8 February 2013 the father obtained a Recovery Order in the E Town Local Court ex parte, and on 9 February police officers attended the mother’s home and removed the children from her care. On 15 March 2013 the mother filed a Notice of Appeal against the Recovery Orders and the matter was listed before me in the Family Court in Canberra on 21 March.
  7. The mother was given leave to appeal and the consent orders of 12 December 2012 were reinstated. Orders were made for the parties to participate in the Child Responsive Program and that a single expert to be appointed.
  8. As a result of these Orders a report was prepared by Family Consultant, Ms I. Ms I commented that:

At this stage it seems unlikely the parents can cease their hostilities and maintain a sufficiently stable environment to support a shared care arrangement. If so, it is in the best interest of the children that they live with the parent with whom they have a primary attachment and spend regular time with the other parent.
The children’s comments suggest they are unhappy with the current arrangements and their behaviours as reported by the mother indicate they are experiencing significant stress.
[B’s] comments about her father suggest she is feeling angry towards him, and is unhappy regarding the current arrangements.

  1. Dr J was appointed as the single expert in these proceedings.
  2. The matter was subsequently set down for the first day of a Less Adversarial Trial (LAT) on 20 June 2013. The single expert report was not available by this date. The parties were given leave to file further affidavit evidence and the matter was adjourned until such time as the single expert report was available.
  3. The matter was subsequently set down for defended hearing on 27 and 28 November 2013 and additionally proceeded further on 20, 21, 22 and 28 January and submissions were made on 3 February 2014.
  4. In summary the Applicant mother in the first instance sought that:
    1. The mother have sole parental responsibility;
    2. The children live with her;
    1. The children spend no time with the father, or, in the alternative, that the children spend professionally supervised time with the father at such frequency as determined appropriate by the court.
    1. The parents not live a distance greater than 150km from each other unless mutually agreed between the parties.
  5. On the third day of the hearing Counsel for the mother told the Court that the orders which the mother was seeking had varied slightly and the mother now sought that the father spend time with the children every second weekend from Friday afternoon until Monday morning, providing that the Court found that this did not pose an unacceptable risk to the girls.
  6. The father was seeking the orders as set out in the ‘Minutes of Final Orders Sought’. In summary the father sought that:
    1. The parents have equal shared parental responsibility;
    2. The children be enrolled at E Town Public School;
    1. Each parent be at liberty to speak with the children via telephone or other electronic communication when not spending time with that parent, providing such communication takes place prior to 6:00pm;
    1. Each party be restrained from changing the residence of the children from E Town, NSW or within a 50km radius of that town.
    2. The father also sought three various set of orders depending on where the mother lived. Firstly if the mother resided in E Town that the children live with the father and spend time with the mother every second weekend from Thursday to Monday, and on Thursday and Fridays in the alternate week. In the alternate he sought that the children live with the mother and the children spend time with him every second weekend from Thursday to Monday, and from Wednesday to Friday in the alternate week. If the mother resided in G Town that the children live with the father and spend time with the mother every second weekend from Friday to Monday with changeovers to occur at E Town Public School, or KFC K Town during the school holidays.
    3. In all scenarios the children spend half of the school holidays with each parent.
  7. In cross-examination the father told the Court that he would be happy for there to be a ‘fifty-fifty split’, and accepted that this would be in his daughters’ best interests.
  8. Judgment was reserved.
  9. On 21 April 2015 the father filed an Application in a Case seeking a recovery order. In response the mother admitted she was in breach of the existing orders but alleged that the children had made further allegations of sexual abuse against the father. Orders were made in chambers on 22 April 2015 to obtain updated material pursuant to s 69ZW and the matter was listed hearing in relation to the new matters on 8 May 2015, with final submissions being made on 12 May 2015.
  10. Judgment was again reserved.

WHAT A TRIAL IN THE FAMILY COURT CAN AND CANNOT DO

  1. It should be said at the outset of the consideration of the matters for determination by the Court that this is not a case which is solely about the determination of whether or not Mr Rowe had sexually assaulted either or both of the girls. The case before the Court is what orders should be about where the children will live, who should have responsibility for issues relating to their parenting and the time that they would spend with each of their parents.
  2. Orders are to be considered by reference to the paramount consideration of the girls’ best interests. Naturally enough, at the forefront of considerations on behalf of the parties is a determination (if it is possible so to determine) of the issue about whether or not the children’s father had been involved in some way in assaulting them or behaving in an inappropriate way in relation to them. However, the determination of that issue does not necessarily dispose of the other matters before the Court which will also bear upon what orders should be made in the best interests of the children.
  3. In matters such as this, it is important to note that the Court must make its decision based on the evidence before the Court. That evidence will typically include reports about what the child or children said occurred, what the alleged abuser says about what happened, the opinions of (in this case) an expert about matters bearing on the determination of the issue and more particularly about what might be in the children’s best interests and a proper consideration of what each of the parties says otherwise and the credibility of the parties in relation to their evidence.
  4. In criminal proceedings a court must determine issues involving the allegation of a crime according to a standard of proof known as “beyond reasonable doubt”. In civil issues the standard of proof is “on the balance of probabilities”. This does not however mean a mere mechanical comparison of possibilities and does require that the Court (or the fact determiner) must be persuaded that what is asserted has occurred. In other words, it is not a case simply of putting all the possibilities into two piles and then determining which of these should prevail independently of the Court being satisfied that the asserted fact or facts have occurred.[1]
  5. The more serious the nature of the allegation, particularly if it might involve criminal conduct if proved, the more carefully the Court must weigh the evidence to determine whether the requisite level of satisfaction that something has occurred has been proved and is accepted. In contrast, in criminal cases it is the duty of the prosecutor to demonstrate that all hypotheses consistent with the accused’s innocence other than fanciful possibilities have been eliminated.
  6. The situation is in part complicated by the fact that those interviewing a child after an allegation of physical or sexual abuse may have different requirements and standards. For example, a police interviewer of a child will be concerned to ensure that the evidence is such that it is probable that a jury will find beyond reasonable doubt that the accused had committed the acts of which he or she was accused.
  7. In a joint interview with the Department of Family Services case workers, the case worker may be concerned to establish that whatever may have happened the child is now in a situation where he or she will be kept safe. For example, even if the case worker was satisfied (to whatever standard) that some act of abuse had occurred, it would not necessarily follow that the Department would seek to intervene if the child were otherwise being kept safe for example by the mother (or the father in an appropriate case) refusing to allow the child to have any contact or communication with the other parent. Such a decision would not of course determine the issue of whether or not the alleged abuse had occurred.
  8. In contrast, the Family Court is concerned to establish what orders would be in the best interests of the child and the factors set out under s 60CC of the Family Law Act 1975 (nominating the considerations to be taken into account in determining what is in the best interests of the child) may not coincide with the criteria required under State or Territory Acts for determining whether a child’s safety had been preserved or could be preserved.[2]

The nature of evidence in cases where Child Abuse is alleged

  1. In some cases before the Family Court even though both parents may have acted based on their belief that something has happened or the conviction that nothing has happened, this may not be determinant of what orders might be in the children’s best interests.
  2. Moreover, typically, there are only two witnesses to any alleged act of abuse. These are usually the alleged perpetrator of the abuse and the child. In many cases, such as in this one before me, the alleged perpetrator denies on his or her oath or affirmation that the event itself occurred. Sometimes the alleged perpetrator may give evidence (either orally or in writing) that there were events which may have been misconstrued by the child but which did not constitute abuse.
  3. On the other hand, a child frequently reports an incident (or incidents) to either a parent, a school teacher, a friend or perhaps a counsellor and the progress of the recording of and presentation of those reports to the Family Court in due course is a process fraught with difficulties and ambiguities.
  4. Most parents are not trained either in law or in the finer points of interviewing children at least for forensic purposes. Accordingly, it is not uncommon, in cases involving allegations of child abuse for the parent or person to whom the child is reporting to respond to the report from the child with questions which may be leading questions as that term is understand in the law. That means that the question may either suggest or give the answer to the child in the question itself. The child may then repeat some of the words in the leading question and subsequent recitations of the events may be more in the nature of a recitation of the amended recollection rather than an observation on what occurred. Obviously again, the age and maturity of the child making the report will have a bearing upon this process and upon the evidence before the Court about what the child said generally.
  5. If that were not enough, subsequent interviews may or may not further taint the evidence and the recollection of the person to whom the report is made about what was said may be faulty, not the least owing to the emotional responses normally evoked in an adult when a child reveals that he or she has been the subject of some assault. It is therefore important in all cases to look to forms of external corroboration of what one party says or the other. For example, if a person is able to demonstrate that he or she could not possibly have been at the place when the alleged assault occurred this would add weight to the alleged perpetrator’s denial that anything occurred.
  6. Equally, if there is some physical evidence of an assault then medical evidence about that might be of assistance in corroborating that an assault did occur.
  7. The role of an expert in these cases is not to be the determiner of whether or not an event occurred but rather to supply assistance of an expert nature to the fact determiner – usually the Court. A suitably qualified expert may, for example, give evidence about whether or not the language used by the child was age or child appropriate. The expert may also give evidence about the nature of the interaction between the child and the alleged perpetrator. Such a process of confrontation may, however, in some cases be totally inappropriate. The expert may give evidence about whether the sorts of complaints made by the child are consistent with the child’s experiences and may investigate alternative possibilities. If for example, a child has been exposed to pornography or has watched adults engaging in sexual activity, evidence about this may provide some explanation for the child apparently having knowledge that he or she would not otherwise have had at his or her age.
  8. All in all, determinations about whether or not child abuse has occurred are frequently very difficult and in some cases it is not possible or open to the judge to make a decision that something has or has not occurred.
  9. Whether or not a judge is able to make a determination about whether alleged sexual abuse has occurred, the judge is nevertheless obliged to make such orders as in the circumstances would satisfy the best interests of the children.[3]

THE LAW

  1. Section 61DA requires the Court when making a parenting order to apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared responsibility for them. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or children or family violence. It is also the case (s 61DA(4)) that the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared responsibility for them.

PARENTAL RESPONSIBILITIES

  1. In these proceedings the mother sought sole parental responsibility for the children and the father, equal shared responsibility for the children.
  2. In this matter for reasons which will appear subsequently, in my opinion it is unrealistic for the parents to share equal responsibility for the children. They have been in dispute for a very long time and the mother has an unshakable belief in the fact that the father has sexually abused the children. While for reasons which will appear hereafter, I do not accept that there are reasonable grounds to believe that the father has engaged in sexual abuse of the children, there appears to be agreement (not the least from the mother) that nothing will shake her conviction about this matter. In my opinion, it is difficult to imagine that the parents could cooperate as they should about the major issues relating to the children’s future and welfare. Accordingly, I cannot imagine in the circumstances of this matter that for the parents to have equal shared parental responsibility could possibly work for the children’s best interests.
  3. It is obvious that the children have already witnessed conflict between their parents and to have this occur on a regular basis or even from time to time over issues relating to them cannot operate for their benefit. In my opinion, the person with whom the children are primarily living should have sole parental responsibility for them but should have an obligation to keep the other parent advised of major matters relating to the children’s education, health and wellbeing, should endeavour to consult with the other parent wherever possible but in the end should have what amounts to a casting vote in relation to matters relating to the children’s long term welfare.
  4. If I had come to the conclusion that the parents should have equal shared parental responsibility I would have an obligation under s 65DAA to consider whether the children should spend equal time with each of the parents or if that were not reasonably practicable or not in their best interests, whether they should spend significant substantial time with each parent unless that were also impracticable or not in their best interests.
  5. The premise for such consideration is not made out as I have determined that one parent should have sole parental responsibility however, taking account of the history of this matter and in particular the recommendations of the Single Expert even if it were physically practicable for the children to spend equal time with their parents or substantial and significant time with one parent and the balance of the time with the other, it would not be in their best interests for them to do so. The conflict between the parties, and in particular the implacable nature of the mother’s belief in the fact that the father has in the past sexually abused the children, would ensure that the children would be subjected to an unacceptable level of tension if they were obliged to move from one parent to the other a frequently, if such arrangements as suggested above, were to be carried out.
  6. Notwithstanding these matters, it is important that the parents, in so far as they are able to do so, try to exercise responsibility for the children in a cooperative or consultative way. In particular, the father (whom I believe should have sole parental responsibility for the children for the reasons that I will outline in due course) must be obliged to inform, to report and to authorise certain matters.
  7. In particular, the father must, notwithstanding that he may have the final say about some aspect relating to the major issues for the children, inform the mother of any serious medical condition or any change in the treatment of either of the children in relation to any condition from which they suffer or advise her of any major event affecting the children and in each case such notification and information should be supplied as soon as is practicable. I will make Orders that will so provide.
  8. The father will also notify the mother about any major matters relating to the children prior to such matters occurring to the extent that it is possible to do so and will provide such information in a timely and proper manner. In addition, the father will authorise any medical or similar practitioner upon whom the children attend to provide to the mother at her cost and, at her request, any information relating to any treatment administered to, or required by, either of the children.

BEST INTEREST

  1. In determining what would be in the best interests of the children I am obliged under the Family Law Act 1975 to consider both primary and additional considerations as outlined by s 60CC.
  2. The primary considerations are the benefit to the children in having a meaningful relationship with both of the children’s parents and the need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
  3. Of these two primary considerations s 60CC(2A) provides that the Court is to give greater weight to the considerations set out in paragraph (2)(b) – that is, the need to protect the children.
  4. There then follow thirteen specified considerations to be taken into account followed by a general provision “any other factor or circumstances that the Court thinks is relevant”.
  5. Before turning to a detailed consideration of matters relating to the protection of the children I comment that both parents had indicated in their evidence in affidavits as reported in their comments to the Single Expert, Dr J, and to the best of my recollection in oral evidence before the Court, that they believe that the children should have a meaningful relationship with both parents and moreover that the children loved both parents and that both parents loved the children. Although the Act prescribes that the Court should give consideration to the benefit to the children in a meaningful relationship it seems there is no argument between the parents (perhaps exceptionally) about this important matter.

THE CHILD ABUSE ALLEGATIONS

  1. However, turning to the primary consideration to be given greater weight, it is obvious that the major factor for determination relates to whether or not the father had in the past molested the children.
  2. All of the allegations relate to the period prior to January 2013. The most recent allegations were not about events that had occurred since the matter was first finalised before me but rather a re-agitation of issues previously raised. Although these “new” issues gave rise to reports to both the Police and to the Department of Family Services, it was clear from the mother’s oral evidence in Court that she was distressed to the point of anger and tears that the reports were not actioned in some way either by the Police or by JIRT or by the Department. None of those involved in the investigations previously or those who had succeeded them in these positions were persuaded that the “new” allegations or disclosures warranted further investigations or action. It appears from the information supplied by the mother, which is substantially corroborated from the material provided by the Department (as a result of a further order pursuant to s 69ZW of the Act) that while the officers who initially took calls from the mother expressed sympathy and possibly promised protective action at least in general terms, once the history of the matter had been investigated, and the nature of the allegations examined in more detail, no person who might have conducted further investigations believed that such investigations were justified. Bearing in mind the matters I have set out above about the objectives of each of the agencies involved, it seems to me that such a decision in respect of each of them was justified.
  3. It is important that I should record that it would be impossible not to be satisfied in my opinion, that the mother genuinely, deeply and sincerely wants to protect the children from what she perceives (in my opinion erroneously) as a risk that their father will in the future sexually assault them or expose them to inappropriate sexual activity.
  4. It is sad however that in pursuing these entirely legitimate concerns (if the facts of the matter supported her beliefs) the mother appears to have come to a position where she will not accept under any circumstances a view contrary to that held by her that the father was responsible for abusing the children. I formed the impression that the mother was from time to time in her oral evidence, inconsistent, illogical and so distraught on occasions as to be irrational. Her evidence was unreliable.
  5. This belief or attitude of the mother is examined in great detail in the report provided by Dr J. In particular the following pages of the report are relevant, pages 39, 43, 53, 54, 56, 57 and 62. In addition in the transcript of 28 January 2014 Dr J expressed a number of different views in particular at pages 105, 120, 124, 125, 129, 133, 136, 141, 143 and 146. I accept the expert evidence of Dr J about these matters and in particular I accept Dr J’s opinion that for the children to be continually exposed to the mother’s attitude about these things and the steps that she took in consequence (to which I will refer later) would not be in their best interests and would not operate to advance their welfare.
  6. That is not to say I hasten to add, that the children should not have a proper relationship with their mother. As I recorded above, both parties believe that it is important (indeed very important) for the children to have a proper relationship with the other parent.
  7. That having been said, I turn to the nature of the allegations made and to whether I am able to make a determination about whether on the balance of probabilities, in accordance with the standards and restrictions that I have mentioned above, a determination can be made as to whether or not the alleged events did occur.
  8. Quite substantial material has been provided by the Department as a result of at least two s 69ZW Orders made by this Court. However the material itself is somewhat confusing and repetitive and unlike some other material that has been produced to me in other matters, there is little in the way of a precise record of the interviews with the children – as such – as opposed to a report or summary of what the children are asserted to have said. It is also clear from the material produced by the Department that the children were in some cases reluctant to say anything or denied that anything had occurred. This behaviour with the Department may of course be explicable for any number of reasons including, but not limited to, the artificial and somewhat strange environment in which the children found themselves. However, this conduct is not consistent with, or persuasive that something has occurred even if it is not demonstrative of the fact that nothing has occurred.
  9. This is probably not very surprising given the age of the children and the less than conducive circumstances in which they were being able to make their reports. This is not intended in any way as a criticism of those officers and case workers who were engaged in interviewing the children but rather is a commentary on the potentially alienating environment in which the children were being asked questions that may have been difficult for them to answer.
  10. The first comment that might be made about the allegations is that substantial parts of the conduct are in themselves not readily believable. These include the underpants dance and the sausage song. Other reported activities may have been sinister; for example, the placing of a finger into the children’s bottom (for which it would seem should be read “anus”) and then the licking of the fingers afterwards.
  11. It is to be noted that the father denies unequivocally that any of this activity occurred.
  12. In some situations it is suggested that possibly innocent conduct might be misinterpreted by children and misreported and alternatively misrepresented by the chain of communication to the final reporter to the Court – sincerely, but erroneously. The father in this matter made no attempt to suggest that for example the placing of a finger in the anus may have been for the application of cream or for the insertion of a suppository.
  13. The father’s evidence in this matter was given in a straight-forward and believable manner and without hesitation or prevarication. That in itself is a significant factor.
  14. In addition, (given that I do not purport to be able to read people’s thoughts or hearts) the evidence of Dr J and in particular the tests she carried out and her conclusions about no likely propensity on the part of the father to carry out all or any of the activities suggested, provides a strong preponderance of probability that the actions purportedly complained of by the children did not occur.
  15. Dr J said[4]

I am not aware of any psychological or behavioural indicators in [B] or [C] that is reliably supportive of concerns that either of them was abused in any way. The behaviour that was reported by [Ms Jakeman] is within what I would expect as normal developmental behaviour in children of [B] and [C’s] age. However, I caution that the absence of behavioural or psychological indicators of abuse does not prove that abuse did not occur, as behavioural indicators are not observed in all cases.

  1. This observation was teased out a little at page 107 of the transcript of the cross examination of Dr J on 28 January 2014.
  2. Again, Dr J commented after reporting about the incongruence between the observed behaviour and the relationship of B with her father with what B was reporting as follows

Question

And you would agree that it is very hard for a child to pretend or fake that kind of engagement with a parent that you observed?

Answer

Yes particularly at that age.[5]

  1. The testing of the father gave rise to no suggestion that there was any psychological disposition towards abuse of the children.
  2. In other words I could not on the basis of the evidence that I have outlined above, and notwithstanding the sincere and almost fanatical belief of the mother, conclude on the balance of probabilities – to the requisite standard of proof – that the events referred to had occurred. I feel no persuasion that the events as asserted did occur.
  3. I note that[6] counsel for the mother agreed that

I would have to concede on the evidence available to date your Honour could not be satisfied in the Brigginshaw test that the children have been sexually abused.

  1. Although the mother, when the matter resumed, disclaimed that submission as a concession and suggested in any event that if it were it was not made with her agreement or consent, there is little doubt in my mind that it was properly accepted by counsel for the mother at the relevant time that the evidence did not go so far as to enable a finding that there was an unacceptable risk to the children that they had been sexually abused or that there was any reasonable basis for saying there was an unacceptable risk that it would occur in the future.
  2. The extensive evidence in this matter examined the various disclosures made by the children and the unfortunate (perhaps not deliberate) actions of the mother have either contaminated the evidence of the children or possibly produced it.
  3. This was not assisted either by the leading questions that were asked by the JIRT team[7].
  4. The witness that B was encouraged to tell about what had happened did not come up to proof.
  5. In addition, there was a serious intervention by the mother and her partner with the children (again I think potentially unconsciously) which led the children to believe that the Court process was to determine whether mummy or daddy was lying and at least subconsciously enlisted the children’s support in favour of their mother.[8]
  6. In summary, the evidence that something did occur although sufficient, obviously, to satisfy the children’s mother was both in content and substance and in the circumstances in which it was given, unsatisfactory and unpersuasive. I could not make a positive finding that something occurred and all of the corroborative evidence about the situation could not lead me to the degree of persuasion that is necessary in accordance with the authorities.
  7. The reports of the children are necessarily bizarre. I have made comment about that in the past and while that would not invalidate the complaints or make them completely unbelievable that aspect of the matter does not assist me in being persuaded that something has occurred.
  8. My conclusions in this regard are supported by the conclusions reached by the Single Expert that the children did not face an unacceptable risk if they were with their father. If I were to unpack that conclusion, it means in reality that there was nothing in the relationship between the girls and their father, the psychological profile of Mr Rowe or the actions and the influences that have otherwise affected the girls which would lead her to conclude that it is more likely than not that Mr Rowe did engage in some forms of sexual activity with the girls.
  9. In the face of Mr Rowe’s complete denial that anything of the sort occurred I believe that I can go further and find that in fact none of the sexual abuse alleged did occur. In some cases although a judge might not be persuaded that the abuse did occur, equally the judge may not be persuaded that it did not.
  10. Having carefully analysed the evidence of both parties over now a considerable period and having had the advantage of the very thorough report from the Single Expert I believe that I can properly find that there is no basis for the allegations of sexual abuse. Accordingly, there is no risk as a result of that finding for the children in being with Mr Rowe.

RISKS WITH THE MOTHER

  1. What that leaves however is the highly unsatisfactory situation that the girls have seen fit to complain about conduct of Mr Rowe which I have found did not occur. The elaborate psychologically interwoven nature of the relationship between the girls and their mother and the analysis by Dr J of the somewhat fragile nature of Ms Jakeman’s psychological health would support the proposition on the other hand that if the girls are to remain primarily with their mother there is a significant risk that they will be themselves psychologically and developmentally affected adversely. This conclusion is supported by the transcript of the cross-examination of Dr J, particularly at pages 125, 129, 134, 137 and in her report pages 43, 53, 54 and 57.
  2. What that means, and what the Single Expert recommends, is that the children should live primarily with their father but still continue to have a relationship with their mother. This is a relationship which the father continues to support notwithstanding the actions of the mother and her extreme opposition to his involvement in the life of the children.
  3. However, it is not only the provisions of s 60CC(2)(b) that determines the question before me although it has been the major issue between the parties during the Court proceeding.
  4. I have already commented I think sufficiently about the importance to the children in having a meaningful relationship with both of their parents. The children’s relationship with their mother must be supported with professional assistance as has been recommended by Dr J. It is at least a little distressing to me that the mother has not seen fit to adopt a number of the recommendations made. The orders I make will in part require her to do this and I hope she will accept those directions in good heart and will follow them through. The children’s future welfare depends in part upon her being able to cope with and grow from the difficulties that have in the past beset her.
  5. There are however other considerations that I am to take into account.
  6. The children have expressed different views about what they want. It is hard to find a situation where those views have not been affected by things that their mother has said or done or caused others to say or do. I am impressed by the fact that the children’s reactions with their father have been at least at odds with some of the negative views that they have expressed about him. I note that this has also been a factor which has influenced the Single Expert in reaching the conclusions that she did. It is important for children’s views to be heard and to be listened to. It is equally important that those views should be presented in a way unaffected by contrary influences. In this case, it seems to me that the children have struggled to be independent of the influence of their mother and have not succeeded on a number of occasions. Although it seems very hard, it may well be that the children’s best interests will be served by their spending more time with their father and some time with their mother in the expectation that in the end they will be less conflicted. This would not be possible if I had determined that there was a serious or unacceptable risk that the children would not be safe with their father.
  7. I have considered the relationship of each of the children with their parents and with their mother’s new partner. There can be no doubt that each of the parents loves the children. They have different skills and emotional contributions to make to the children’s welfare. Each is to some extent (as are all of us) flawed and neither is capable of being the perfect parent at any time. But then again, no parent is perfect at all times.
  8. I believe in the light of the evidence and the report, that the children have a genuine potential to have a loving and meaningful relationship with each of the parents.
  9. It is notable in this matter that the father has persisted in his desire to spend time with the children and indeed has adapted from time to time to the circumstances to take account of what would be best for the children. In that regard he has adjusted his work practices to enable him to accommodate the proposition that the children might live with him in the later stages of this litigation.
  10. The mother has done everything within her power to protect the children as she saw the need for their protection. The fact that I have found that her vision in this regard was mistaken does not alter the fact that she would do anything that she reasonably could for the benefit of the children. In my judgment what she now needs to do is to let the children go – to spend more time with their father and less time with her. This may be the hardest thing that she will ever have to do as a mother.
  11. The issue of the maintenance / child support of the children has not been a matter before me. The circumstance for the future would suggest that the primary financial obligation will fall on the father. The mother has, it would appear, but limited capacity to develop the business that she was originally so committed to and it is improbable that she is going to make any financial contributions in the immediate future.
  12. I have no doubt that if the children are to live primarily with their father, as I propose to order, that this will have a serious negative effect upon them at least initially. They have been so entwined with their mother for so long that it must necessarily be a wrench for them to be in a different situation. I take that into account and balance it against the risks that Dr J has identified of their remaining with their mother. It is a decision that is both difficult and I accept for the mother heart-wrenching.
  13. It is difficult to predict with any precision what problems will arise with the time that the children spend with their mother if they are living primarily with their father. This depends in part upon where the mother choses to live. It appears that she still harbours some desire to move to G Town and that will to some extent interfere with the possibility of the development of a ready movement between the parents at some point in the future. I note that it may be a difficulty but it does not significantly affect my decision.
  14. Although it appears that Mr Rowe has some Aboriginal heritage it is not a factor that has played any part in the proceedings before me.
  15. The issues of family violence are not matters which have borne upon the decision. The parties have now been separated for some time and have in fact been able to communicate quite effectively without any untoward physical actions.
  16. That does not however detract from the significant animosity that exists particularly from the mother towards the father. That factor means that there needs to be a determination as I suggested above that the father should have sole parental responsibility at least to the extent of having what amounts to a casting vote about major matters relating to the children. I am hopeful that the supplementary orders I make requiring him to inform and to some extent to consult may in due course break down that animosity and enable the parents to behave as parents should, each accepting responsibility for the children. That is a matter within their hands in the future and not one that I can mandate in some way.
  17. I am not confident that the orders I make will not require some adjustment between the parties in the future. That may require further Court intervention given the radical nature of the change in the children’s circumstances. I am hopeful however, that the parents may, notwithstanding their current and past animosity, be able to find a way to work together at some point in the future for the best interests of the children.
  18. I wish to explain why I make some of the orders that I do. I have already indicated that the father should have sole parental responsibility and I have nominated some areas where I would expect the parties to at least communicate with each other. I have provided in Order 2(e) that if there is a dispute nevertheless the father’s decision will prevail. I have provided that neither parent will, by enrolling the children in extracurricular activities interfere with the time that the children might otherwise spend with the other parent.
  19. The Orders I have made about the time the children will spend with their mother have been dictated in part by the recommendations of the Single Expert. I accept that to some extent the findings I have made about the mother’s influence on the children may continue during the periods that they will spend with her in accordance with Order 3. I am, however, conscious of the fact that the children have spent most of their E Town lives primarily with their mother and in my opinion it is likely that a substantial break from those arrangements may cause them great distress. I am sure it will cause their mother great distress. The mother’s distress may have an effect upon the children.
  20. Accordingly, in Order 3 I have made provision for one month for the children to settle down with their father but thereafter for them to spend every second weekend with their mother and half of the school holidays. I have made provision for special days and provided that there can be variation in any of those arrangements by the parents if the need arises.
  21. I have provided the children may, in effect, telephone the other parent at any time that they wish (Order 4) and made special provisions for communication from both mother and father to the children when the children are with the other parent. This should not prevent the parents from making other arrangements if they are more convenient but does provide some degree of certainty if such agreement is not forthcoming.
  22. I have imposed a number of restraining orders which are designed to provide some peace for the children and the hope that as things settle down they will be able to enjoy the time they spend with each parent.
  23. I propose that the children be on the Airport Watch List for a period of three years. Neither parent should remove the children from Australia during that period without the consent of the other.
  24. I hope that these orders will provide some certainty for the parties, I sincerely regret the delay I have had in providing these reasons. I have found the decision a very difficult one overlayed by the emotions of the parties, the difficult psychological circumstances in which the parties and the children have found themselves and the multiplicity of evidence that has been provided. I hope the children are successful in their growth towards adulthood with the assistance of two parents who love them.

Child support assessments with second families

Child support assessments with second families

If you have relevant dependent children in your care for 128 nights or more in a year, or in a shared care arrangement, an amount for their support may be deducted from your income when calculating your child support. A relevant dependent child cannot be assessed as a child support child in other child support cases.

A relevant dependent child can be:

  • your biological child
  • your adopted child
  • your child under the Family Law Act 1975
  • born as the result of an artificial conception procedure
  • born as a result of a surrogacy arrangement

The relevant dependent child amount deducted from your income is worked out for your second or subsequent family using the same cost of children table used for your child support children. This means that all your children are treated using the same formulas.

The relevant dependent child amount is worked out using only your income. Because each parent’s income is treated equally under the formula, either parent can have children from a new family recognised in this way. Your new partner’s income is not taken into account when we complete the child support assessment.

Stepchildren

Where a parent has a second family that includes stepchildren, the responsibility of financially supporting the stepchild may rest with that parent if neither of the child’s biological parents can pay for the costs of their child, because of, for example, illness, death or caring responsibilities.

In special circumstances, parents who make child support payments who also care for a stepchild can apply for a change of assessment to have their child support payments reviewed. You may be able to ask us to review your assessment in special circumstances.

 

ENFORCEMENT OF A BINDING FINANCIAL AGREEMENT

Fan & Lok [2015] FamCA 816 (1 October 2015)

Last Updated: 8 October 2015

FAMILY COURT OF AUSTRALIA

FAN & LOK
[2015] FamCA 816
FAMILY LAW – ENFORCEMENT OF A BINDING FINANCIAL AGREEMENT – Where there was a declaration by the Court in previous proceedings that it would be unjust and equitable if a binding financial agreement were not enforced – Where the applicant sought orders, including consequential orders for the sale of the husband’s property, by way of enforcement of the husband’s obligations pursuant to the agreement to discharge the balance of a loan – Where the husband submitted that it was not just and equitable to enforce the agreement – Where the husband submitted that the Court should exercise its discretion not to enforce – Where the husband’s submissions raised issues of res judicata and issue estoppel – Where it was found that it was just and equitable to make orders enforcing the agreement, including consequential orders for the sale of the husband’s property in the event of a default in payment.

 

Kostres & Kostres [2009] FamCAFC 222; (2009) FLC 93-420
Molier & Van Wyk (1980) FLC 90-911
Polik & Polik [2015] FamCA 299
Sanger & Sanger[2011] FamCAFC 210; (2011) FLC 93-484
APPLICANT:
The Estate of the late Ms Fan
RESPONDENT:
Mr Lok
FILE NUMBER:
SYC
1018
of
2013
DATE DELIVERED:
1 October 2015
PLACE DELIVERED:
Sydney
PLACE HEARD:
Sydney
JUDGMENT OF:
Rees J
HEARING DATE:
18 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:
Mr Watkins
SOLICITOR FOR THE APPLICANT:
Zhang Shijing Lawyers
COUNSEL FOR THE RESPONDENT:
Ms Winfield
SOLICITOR FOR THE RESPONDENT:
Raymond Lee


ORDERS

IT IS ORDERED
(1) That the financial agreement dated 20 January 2003 between Ms Fan (“the wife”) and Mr Lok (“the husband”) be enforced as if it were an order of the Court pursuant to section 90KA(c) of the Family Law Act 1975 (Cth) (“the Act”).
(2) That within 14 days of the date of these Orders the applicant pay to the HSBC Bank, in reduction of the borrowings secured over the properties at B Street, Suburb C in the State of New South Wales and D Street, Suburb E in the State of New South Wales, the sum of $7,292.59.
(3) That within 42 days of the date of these Orders the husband pay to the HSBC Bank such amount as is required to repay the debt arising from the borrowing of the husband and the wife of $430,000 in about November 2002 (“the principal amount”).
(4) That should the husband fail to pay the principal amount by the due date the husband forthwith sign all documents and do all acts and things to sell the property at B Street, Suburb C in the State of New South Wales upon the following terms and conditions:

    <li “=””>(i) The property shall be listed for sale by private treaty for a period of two months after which time it shall be auctioned;<li “=””>(ii) The listing price, sale price and reserve price (at auction if required) shall be as agreed between the parties and failing agreement, as determined by a valuer as agreed or failing agreement as appointed by the NSW President of the Australian Property Institute;<li “=””>(iii) The real estate agent shall be as agreed and failing agreement as appointed by the NSW President of the Australian Property Institute;<li “=””>(iv) The solicitor acting on the sale shall be as agreed or failing agreement as determined by the President of the Law Society of NSW;<li “=””>(v) The terms and conditions of the sale shall be as agreed or failing agreement as determined by the solicitor acting on the sale; and<li “=””>(vi) Upon the sale of the property the net proceeds of sale, after payment of the real estate agent’s fees, including auction fees, and solicitor’s costs and disbursements of sale are to be paid to the HSBC Bank and applied towards the payment of the principal amount to HSBC; and<li “=””>(vii) The balance of the net proceeds of sale, if any, are to be distributed wholly to the husband.

(5) That if either party refuses or neglects to sign any document necessary to implement these Orders, that a Registrar sign the necessary document on behalf of the defaulting party pursuant to s 106A of the Act.
(6) That a failure by a party to respond to a party’s written proposal made in writing by or to a party’s solicitor, within 14 days, shall constitute a refusal for the purpose of Order 5.
(7) That a party’s proposal includes but is not limited to a proposed selection of agent, solicitor, listing price, selling price and reserve price.
(8) That a failure by a party to respond to a written request to sign any document necessary to implement these Orders within 14 days of such written request shall constitute a refusal by that party for the purpose of Order 5.
(9) That in the event that the husband ceases to be legally represented, notices and communications pursuant to these Orders may be forwarded by pre-paid post to the husband at B Street, Suburb C in the State of New South Wales or such other address as is notified by the husband in writing.
(10) That the parties have liberty to apply by arrangement with the Associate to the Honourable Justice Rees in relation to the implementation of these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1018 of 2013

The Estate of the late Ms Fan

Applicant

And

Mr Lok

Respondent

REASONS FOR JUDGMENT

  1. These proceedings relate to a Financial Agreement (“the Agreement”) entered into between Mr Lok (“the husband”) and Ms Fan (“the wife”) on 20 January 2003. The wife died in 2008 and the applicant in these proceedings is her estate.
  2. On 27 February 2013, the applicant instituted proceedings to enforce the Agreement. By his response filed 15 August 2013, the husband sought to set aside the Agreement and also sought consequential orders for property settlement.
  3. The application to set aside the Agreement was heard as a discreet issue and judgment in those proceedings was delivered on 28 April 2015.
  4. The relevant facts are set out in the judgment and will not be repeated here. It is sufficient to state that the Agreement provided that on the death of the wife, or on separation, the jointly owned property at Suburb F was to be sold to pay out the mortgage owed to the HSBC Bank Australia Limited (“HSBC”) and, if the proceeds of that sale did not exceed the amount of $253,000, the husband and the wife were to be equally responsible for the payment of the shortfall from this amount and the husband was to be responsible for the balance of the mortgage debt.
  5. There was a declaration made on 28 April 2015 that it would be unjust and inequitable if the Agreement were not enforced.
  6. There has been no appeal against that decision.
  7. The matter now listed is the application to enforce the Agreement and consequential orders for the sale of a property owned by the husband at Suburb C and the application of the proceeds of sale to the mortgage debt to HSBC, the proceeds of the sale of the Suburb F property having been insufficient to extinguish the debt.
  8. The applicant deposed that HSBC has issued a demand for payment of $376,731.96 as at 21 July 2015.
  9. The husband asks the Court to dismiss the application. It is the husband’s case that it is not just and equitable to enforce the terms of the Agreement by selling his property at Suburb C. It was submitted that the sale of the husband’s Suburb C property was excluded by the terms of the Agreement.
  10. At paragraph 125 of the reasons for judgment delivered on 28 April 2015 I stated: “It would be unjust and inequitable if the husband were not held to his agreement”. A declaration was made to that effect. The husband did not appeal against the Orders made.
  11. On behalf of the husband reliance is placed in Clause 4.3 of the Agreement which provides:

Each party acknowledges that it may apply to the Family Court for property settlement in relation to any other matrimonial property apart from the property mentioned in clause 4.2.1(a).

  1. Clause 4.2, in its entirety, provides (bold emphasis added):

Upon the breakdown of their marriage or the death of either party and notwithstanding any unequal financial or non financial contributions by both parties to their matrimonial properties, both parties agree that:-
4.2.1 subject to the above provisions of this Agreement:-
(a) all the assets and liabilities of each party acquired and assumed prior to the date of this deed including but not limiting to the assets and liabilities of each party listed in the annexure marked ‘A’ “Premarital Assets and Liabilities”;
(b) Subject to paragraph 4.2.2 hereto, any income, asset, revenue, expenditure, value of capital, chose in action whether legal or equitable and equity derived or sourced from Premarital Assets and Liabilities which may accrue after the date of this deed, notwithstanding the nature or the substance of such assets and liabilities of each party may have been altered, substituted or otherwise changed and PROVIDED they are separately identifiable and can be traced from Pre-marital Assets and Liabilities.
shall be the absolute property, rights and liabilities of each party and shall not be included into the pool of matrimonial property or considered during any property settlement between the parties.

  1. The schedule annexed “A” to the Agreement lists the wife’s property at Suburb E, the husband’s property at Suburb C and the jointly owned property at Suburb F as assets. It also lists the HSBC mortgage secured over the Suburb E property, in the total amount of $253,000, as a joint liability of the husband and the wife, and the HSBC mortgage secured over the Suburb C property, in the total amount of $177,000, as a sole liability of the husband.
  2. Even if it were to be found that the husband has a remaining right to bring an application for property settlement, the Agreement specifically excludes a consideration of the husband’s Suburb C property or the wife’s Suburb E property from such an application.
  3. Clause 4.2.2 provides:

The HSBC loan and the [Suburb F] property shall be dealt with in the following manner:
(a) The [Suburb F] property shall be sold by way of public auction or private treaty as agreed by the parties as soon as practicable;
(b) If the sale proceeds less all incidental expenses exceed $253,000.00 then $253,000.00 is to be paid off the HSBC loan while [the husband] must pay the balance amount required to discharge the HSBC loan and must ensure that [the wife] will obtain an unencumbered title to the [Suburb E] property. The balance sales proceeds of the [Suburb F] property shall be distributed equally between the parties.
(c) If the sales proceeds less all incidental expenses falls below $253,000.00 then the HSBC loan shall still be paid off in the same manner while the shortfall (from the $253,000.00) is to be made up by the parties in equal shares.

  1. As was stated at paragraph 117 of the reasons for judgment delivered on 28 April 2015:

If the Agreement were enforced, then, as between the Applicant and the husband, the Applicant would be required to meet half the shortfall of $4,943.67; that is $2,471.83, and the husband to pay the same amount. Pursuant to clause 4.2.2 of the Agreement, the husband would then be required to pay the balance of the HSBC loan and must ensure that the Applicant obtains an unencumbered title to [Suburb E].

  1. The argument on behalf of the husband appears to be that, because of contributions made by him during and after the marriage, his current financial circumstances, and the fact that the applicant and her siblings have received the benefit of the wife’s estate which included her superannuation and the proceeds of a life insurance policy, the Court should exercise its discretion not to enforce the Agreement.
  2. When the Suburb F property was purchased and the HSBC mortgage taken out, the wife’s Suburb E property was unencumbered. The husband’s Suburb C property had a mortgage of $177,000. The HSBC loan was used, as to $177,000, to discharge the mortgage over the husband’s Suburb C property, and the balance was used to purchase the Suburb F property. HSBC was given security over all three properties. The husband’s position appears to be that he should keep the benefit of the $177,000 and the wife’s Suburb E property should be sold to repay the HSBC mortgage, leaving him with an unencumbered property at Suburb C.

THE HUSBAND’S SUBMISSIONS

  1. Counsel for the husband submitted that the Court should exercise its wide discretion pursuant to s 80 of the Family Law Act 1975 (Cth) (“the Act”) not to enforce the Agreement.
  2. The contention made on behalf of the husband, that is not just and equitable to enforce the terms of the Agreement, was the subject matter of the determination made on 28 April 2015. Counsel for the husband was asked to address the issue of res judicata estoppel in relation to the submission, made in these proceedings, that it is not just and equitable to enforce the terms of the Agreement.
  3. Counsel relied on an assertion that the terms of the Agreement are ambiguous and capable of a different interpretation to that determined in the judgment of 28 April 2015. That submission could have been made in the hearing on 10 March 2015 but was not. At the very least, an issue estoppel arises in relation to that argument is so far as it relates to the submission that it is not just and equitable for the Agreement to be enforced.
  4. I am of the view that res judicata estoppel arises in relation to the submission that it is not just and equitable to enforce the Agreement. However the issue of how the Agreement is to be enforced remains at large.
  5. If I am wrong in that regard, and in my view that at the very least an issue estoppel arises, I propose to deal with the arguments raised by counsel for the husband in support of her submission that the Agreement should not be enforced.
  6. Those arguments were enunciated as follows:
    • There are inconsistencies in the Agreement which have the effect that the Agreement cannot be given the construction for which the wife contends.
    • If the Agreement were enforced, the husband would be left in a financially precarious position.
    • The husband was entitled to rely on the fact that the wife had a life insurance policy.
    • Amounts drawn from the HSBC mortgage were used for the benefit of the wife’s children.
    • Laches.
  7. Although it was not clearly enunciated, it is inferred from the submissions of counsel for the husband, and the reference to the decision in Polik & Polik [2015] FamCA 299, that the husband also submits that the Agreement should not be enforced because he made payments both before and after the wife’s death for her benefit and that of her children. It is convenient to deal with that submission at the same time as the submission in relation to the payments on behalf of the wife’s children.

INTEPRETATION OF THE AGREEMENT

  1. There is a dispute between the parties as to how the terms of the Agreement are to be construed and whether the husband has fulfilled his obligations pursuant to the Agreement.
  2. Counsel for the husband submitted that a potential inconsistency arises between the husband’s obligation pursuant to Clause 4.2.2 of the Agreement, which provides that he “must pay the balance of the amount required to discharge the HSBC loan and must ensure that [the wife] will obtain an unencumbered title to the [Suburb E] property”, and Clause 4.2.1(a) of the Agreement, which, she submitted, provides that his Suburb C property and the associated liability shall remain his “absolute” property and liability upon the breakdown of the marriage or the death of either party. While this specific issue was not raised in the previous proceedings relating to whether the Agreement is binding, I do not consider that counsel is estopped from making this submission in the current proceedings in relation to the question of how the Agreement is to be enforced.
  3. Counsel for the husband submitted that the husband’s right to retain the Suburb C property pursuant to Clause 4.2.1(a) of the Agreement was not expressed to be subject to his obligation, pursuant to Clause 4.2.2, to ensure the discharge of the HSBC loan and that the wife receives an unencumbered title to Suburb E. Counsel for the husband submitted that it is clear, pursuant to the Agreement, that the Suburb C property should remain the sole asset of the husband upon the separation of the parties or the death of either party. It was contended that, accordingly, the extent of the husband’s obligations pursuant to Clause 4.2.2 was to effect the sale of the Suburb F property and apply those sale proceeds to the HSBC loan, and that these terms have already been implemented by him. The orders sought by the applicant requiring the husband to sell his property at Suburb C in order to discharge the entirety of the HSBC loan are, in counsel’s submission, in breach of the terms of the Agreement.
  4. I do not agree with the submission made on behalf of the husband that he is required, pursuant to the Agreement, to do no more than apply the sale proceeds from the Suburb F property toward the HSBC loan in order to comply with his obligations under the Agreement. This is contrary to the clear wording of Clause 4.2.2(b) which states:

If the sale proceeds less all incidental expenses exceed $253,000.00 then $253,000.00 is to be paid off the HSBC loan while [the husband] must pay the balance amount required to discharge the HSBC loan and must ensure that [the wife] will obtain an unencumbered title to the Suburb E property.

  1. In Kostres & Kostres [2009] FamCAFC 222; (2009) FLC 93-420 the Full Court outlined at 83,803:

113. In interpreting actual terms in a contract, the learned authors of Cheshire and Fifoot’s Law of Contract ( 9th edition) explain at 429:
“The High Court has repeatedly emphasised that the court approaches the task of ascertaining the meaning of the parties’ expressions objectively. It is not interested in their subjective understanding, but applies the meaning that an objective outsider would attribute to the contract in the circumstances. …”
114. Later, at 429-430 the authors quote from the decision of the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at paragraph 40:
“References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purposes and object of the transaction.” (footnote omitted)

  1. In Sanger & Sanger[2011] FamCAFC 210; (2011) FLC 93-484, the Full Court stated at 86,002:

Interpretation of the terms of the BFA
63. The law of contract is relevant to the interpretation of the terms of a BFA. The principles governing the interpretation of contracts are not in doubt and do not require extensive restatement for present purposes.
64. The learned author of J W Carter, Carter on Contract (Lexis Nexis Australia, online, at October 2011) provides a convenient summary of the principles applicable to the construction of contracts:
“The function of courts is to give effect to the bargain and not to deny its efficacy by a restrictive technical analysis. This finds its expression in a number of ways. These include the following.
First, in order to determine the meaning or legal effect of a particular term, the whole contract must be construed. This applies both to express and implied terms and requires implied terms to be taken into account when construing express terms.
Second, a commonsense approach is taken to the interpretation of commercial documents.
Third, a presumption is applied that the parties did not intend the terms of their contract to operate in an unreasonable way.
Fourth, rules have been developed to govern the forensic material which can be received to assist in the construction process.
Fifth, albeit somewhat belatedly, the role of context (surrounding circumstances) in determining meaning is acknowledged in the concept of the ‘factual matrix’.
Sixth, account is taken of the fact that there is more to contract law than linguistic meaning: more often than not, the ultimate concern is with the legal effect of a contract term.
Seventh, the general approach is to apply the same construction rules no matter what the form or nature of the clause or contract, so that the relevant principles do not depend on whether the contract is for the sale of goods or the provision of services and so on.” (original emphasis) (footnotes omitted)

  1. I am satisfied from the clear wording of Clause 4.2.2 that the parties’ intentions at the time of making the Agreement was that the wife would not be responsible to pay any amount arising from the borrowings of $430,000 in November 2002 beyond half of any shortfall between the sale proceeds of the Suburb F property and the sum of $253,000 that was secured by her Suburb E property. This is particularly in light of the context of the Agreement, set out at Recital 3.5, that the remainder of the $430,000 which was borrowed by the parties in November 2002 was applied toward the repayment of the mortgage loan on the husband’s Suburb C property. None of the borrowings were applied toward the wife’s Suburb E property, which was unencumbered at the date of the loan, and therefore the wife did not receive the benefit received by the husband.
  2. I do not consider that the fact that Clause 4.2.1(a) is not expressed to be subject to Clause 4.2.2 to be sufficient to relieve the husband from his obligations pursuant to Clause 4.2.2 to discharge the balance of the HSBC loan. If the husband does not meet this obligation, the burden of doing so will fall upon the applicant as the HSBC has indicated its intention to exercise its power of sale over the Suburb E property. This conflicts with the clear intention of the parties as expressed in Clause 4.2.2 of the Agreement that the husband would ensure that the wife would obtain an unencumbered title to the Suburb E property upon separation or the death of either party.
  3. The Agreement operates only in relation to the liability associated with the borrowings of $430,000 from HSBC in or about November 2002, as is made clear by Recital 3.5 of the Agreement which defines the term “the HSBC loan”. Recital 3.5 states:

On 12 November 2012, [the wife] and the [husband] entered into a contract to purchase a property situated at [G Street, Suburb F] NSW … (Folio Identifier …) as joint tenants for $255,000.00. [The wife] and [the husband] acknowledge that the funds used to acquire the said property come from a loan from HSBC Bank Australia Limited (“the HSBC loan”) which both [B Street, Suburb C] (currently owned by [the husband]) and [D Street, Suburb E] (currently owned by [the wife]) are securities to it. [The wife] and [the husband] also acknowledge that the amount of the said loan is $430,000.00 in total. $177,000.00 of the said loan was applied towards the repayment of a mortgage loan of [the husband] which [B Street, Suburb C] is the security and the balance $253,000.00 was applied toward the purchase of [G Street, Suburb F]. The balance purchase price of the [Suburb F] property (including stamp duty and other incidental costs) were paid by [the husband] and [the wife] in equal shares.

  1. In so far as there may have been other earlier or later borrowings unrelated to the $430,000 advanced in or about November 2002, they are not covered by the terms of Clause 4.2.2. The orders sought by the applicant appear to extend the husband’s obligations to discharge the balance of the loan to HSBC beyond what is intended pursuant to the Agreement.
  2. The next question for determination is whether the Court may make orders requiring the sale of the Suburb C property and the application of the sale proceeds to the HSBC loan if the husband is otherwise unable to satisfy his obligations pursuant to Clause 4.2.2. It was submitted by counsel for the husband that orders to this effect would be in breach of Clause 4.2.1(a) of the Agreement which provides that the husband is to retain the Suburb C property upon separation or the death of the wife.
  3. As asserted by counsel for the husband, Clause 4.2.1(a) is not expressly made subject to the requirement upon the husband, pursuant to Clause 4.2.2, to ensure the discharge of the balance of the HSBC loan so that the wife obtains an unencumbered title to the Suburb E property. Nevertheless I do not consider, in light of the unambiguous requirements set out in Clause 4.2.2, and the background to the Agreement as set out in Recital 3.5, that it was the intention of the parties that the husband would be relieved of his obligation to ensure the discharge of the HSBC loan in the event that the only means of him doing so was through the sale of his Suburb C property. It appears, particularly from the matters set out in Recital 3.5, that a key purpose of the Agreement was to ensure that the Suburb E property, which was used as security for but did not receive the benefit of the HSBC loan funds, would be returned to the wife (or to her estate) unencumbered upon her death, the husband’s death or the separation of the parties. Orders which provide for the sale of the Suburb C property in the event that the husband is unable to discharge the loan to HSBC as required by Clause 4.2.2 do not, in my view, constitute a breach of the terms of the Agreement.

POWER OF THE COURT TO MAKE AN ORDER FOR THE SALE OF THE SUBURB C PROPERTY

  1. I turn now to consider the power of the Court to make an order for the sale of the Suburb C property, and for the application of the proceeds to the HSBC loan, by way of enforcement of the husband’s obligations pursuant to Clause 4.2.2 of the Agreement.
  2. Section 90KA of the Act provides, in relation to the validity, enforceability and effect of financial agreements:

The question whether a financial agreement or a termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings relating to such an agreement, the court:
(a) subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; and
(b) has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the applicable Rules of Court; and
(c) in addition to, or instead of, making an order or orders under paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court.

  1. The wide powers of the High Court in its original jurisdiction are set out in ss 31 and 32 of Part IV of the Judiciary Act 1903 (Cth):

JUDICIARY ACT 1903SECT 31
Judgment and execution
The High Court in the exercise of its original jurisdiction may make and pronounce all such judgments as are necessary for doing complete justice in any cause or matter pending before it, and may for the execution of any such judgment in any part of the Commonwealth direct the issue of such process, whether in use in the Commonwealth before the commencement of this Act or not, as is permitted or prescribed by this or any Act or by Rules of Court.
JUDICIARY ACT 1903SECT 32
Complete relief to be granted
The High Court in the exercise of its original jurisdiction in any cause or matter pending before it, whether originated in the High Court or removed into it from another Court, shall have power to grant, and shall grant, either absolutely or on such terms and conditions as are just, all such remedies whatsoever as any of the parties thereto are entitled to in respect of any legal or equitable claim properly brought forward by them respectively in the cause or matter; so that as far as possible all matters in controversy between the parties regarding the cause of action, or arising out of or connected with the cause of action, may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters may be avoided.

  1. Section 80(1)(c) of the Act also provides that the Court may “order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs”. In Molier & Van Wyk (1980) FLC 90-911 (“Molier & Van Wyk”) the Full Court stated at 75,771- 75,772:

The power under sec. 80(c) to order that payment of a sum be wholly or partly secured is a wide one and includes power to order the realisation of the property against which the order is secured. While sec. 80 is not itself a head of power, the power to order security for the payment of a sum is available, either upon an original application for maintenance under sec. 74, or upon an application under sec. 83 to modify a maintenance order; it can also be used when orders are made under sec. 78 or 79.
The order for sale now appealed against could not depend upon sec. 80 as its source of power unless at the same time the Court was acting under one of those other sections.

  1. While the Full Court in Molier & Van Wyk found that s 80 cannot be relied upon, in itself, as a source of power for orders requiring the sale of real property, the Court dismissed the appeal and held that the trial judge validly made the order for sale. The Full Court outlined at 75,773 that there is “an inherent power in this court to make the original order effective in accordance with the substance and intention of the order.” The Court also stated at 75,773:

In Kaljo (supra), it was held that an application can be made to the Court for further orders in relation to the implementation of the substantive order if such orders are necessary to give effect to the order or to work it out to cover unforeseen circumstances. This principle is, in our view, capable of extension to cover further orders necessary to give effect to the clear intention of the original order, where that order has failed to cover certain eventualities, including the failure to comply with an order for the settlement of a lump sum within the time prescribed.

  1. I consider that an order which provides for the sale of the Suburb C property, in the event that the husband fails to comply with his obligation to pay the amount owing by him to HSBC, is available to the Court in the exercise of its wide powers pursuant to s 90KA. If I am wrong in this regard, I am also satisfied that the Court has the inherent power, as outlined in Molier & Van Wyk, to impose consequential provisions for the sale of the Suburb C property to ensure that the orders made requiring the husband to discharge the HSBC loan are carried into effect.
  2. Further, Rule 20.05(a) of the Family Law Rules 2004 (Cth) expressly provides that the Court may make an enforcement order, in relation to an obligation to pay money, for the seizure and sale of real property.
  3. Orders will be made facilitating the sale of the Suburb C property and the application of the sale proceeds to the HSBC loan (as it relates to the borrowings of $430,000 in or about November 2002), should the husband be otherwise unable to pay the amount owing by him to the HSBC pursuant to the Agreement.

THE EFFECT ON THE HUSBAND’S FINANCIAL POSITION

  1. On behalf of the husband it was submitted that if the Agreement were enforced the husband would be left in a difficult financial position, close to bankruptcy.
  2. There was no up to date Financial Statement filed on behalf of the husband. Reliance was placed on a Financial Statement sworn on 16 May 2013 although the significance of that document was not clear.
  3. There was no evidence before the Court of the current value of the husband’s Suburb C property.
  4. There was no evidence of the husband’s current income, assets or liabilities.
  5. Whilst I accept that the sale of the Suburb C property and the payment of the amount owed to HSBC would lessen the husband’s assets, there is no evidence on which I can find that he would be placed in a difficult financial position.

THE LIFE INSURANCE POLICY

  1. In his affidavit sworn on 5 June 2015 the husband deposed:

In or about 2003, my Wife and I decided to take out life insurance for couples as well as superannuation to further secure our property in case of the death of either party. This insurance was taken with AMP (Policy No:…).

  1. The was no evidence before the Court of any conversation between the husband and the wife which gave rise to an inference that it was the joint intention of the husband and the wife to apply the proceeds of the life insurance policy to the reduction of the HSBC mortgage in the event of the death of either of them. The amount due pursuant to the insurance policy was paid to the wife’s estate after her death. That would suggest that the husband was not nominated as the beneficiary of the policy as might have been expected if it was the wife’s intention that the fund would be applied to the mortgage.
  2. There is no evidence upon which it can be inferred, as counsel for the husband urged, that the husband was entitled to rely on a joint agreement to apply the proceeds of the insurance policy to the mortgage.

AMOUNTS SPENT ON THE WIFE AND THE WIFE’S CHILDREN

  1. In 2006 two amounts of $10,000 were withdrawn from the HSBC mortgage. $10,000 was contributed to tuition fees owed by the wife’s daughter in relation to her tertiary studies and $10,000 was contributed towards the costs of the wedding of the wife’s son.
  2. This was a decision made by the husband and the wife during their marriage when they were living together and making financial decisions together.
  3. How this fact should have the effect that the husband should be relieved of his obligations in relation to the HSBC borrowing of $430,000 was not made clear.
  4. The Agreement specifically reserves the right of the parties to make an application for property settlement in relation to any assets or liabilities of the parties other than the Suburb C property, the Suburb E property, the Suburb F property and the HSBC mortgage.
  5. The contributions claimed by the husband towards the wife’s children might have been pleaded in such a claim but no such claim was made before the death of the wife.
  6. I take a similar view in relation to the payments which the husband made on behalf of the wife up to the date of her death. The wife was unable to work after she became ill and the husband continued to pay all of their joint outgoings from his income and the rent from the Suburb F property. He paid the premiums on the AMP life insurance policy and their medical insurance.
  7. Those contributions could have been taken into account in relation to a claim for property settlement had such a claim been made.

LACHES

  1. This submission seemed to have two separate threads. Firstly it was submitted that, by not bringing proceedings to enforce the Agreement immediately after the wife’s death, the applicant deprived the husband of the opportunity to make a “Family Provision” claim. Presumably the reference is to a claim pursuant to the Succession Act 2006 (NSW) (“Succession Act). Section 58 of that Act provides that such a claim must be made within 12 months of death.
  2. How those two events are linked is not made clear. The husband could have pursued a claim under the Succession Act regardless of the Agreement. He did not do so.
  3. The second limb of the submission appears to be that the husband went on paying the repayments to HSBC until 2013 because the applicant did not seek to enforce the Agreement.
  4. There seems to be a logical deficiency in that argument. The Agreement, explicitly, required the husband to do three things.
  5. Firstly, upon the death of the wife, he was required to sell the Suburb F property and apply $253,000 from the proceeds of sale to the HSBC mortgage.
  6. Secondly, if the amount received from the net proceeds of sale was less than $253,000, he was required to pay to HSBC one half of the shortfall.
  7. Thirdly, he was required to assume the responsibility for the balance of the HSBC mortgage and to ensure that the wife’s Suburb E property was unencumbered.
  8. The husband did none of the three things. Rather he lodged a Notice of Death to cause the Suburb F property to be registered in his sole name.
  9. It was the husband who chose not to fulfil his obligations under the Agreement.
  10. The applicant was not notified by HSBC that the mortgage payments were in arrears although it can be assumed that the husband was aware that he was not making the payments from 2013. The husband himself did not notify the applicant that he had ceased making the payments.
  11. The husband cannot rely on his own failure to fulfil his obligations in aid of a plea for the exercise of discretion in his favour.
  12. Also in support of this submission, the husband claims that he should be given some credit or recognition for the fact that he paid the mortgage payments and the outgoings on the Suburb F property. In so far as the husband asserts that he was paying the mortgage over Suburb E, that was no more than he was obliged to do, after separation and the sale of Suburb F, by the Agreement (apart from the wife’s obligation to pay half of any shortfall from $253,000). In so far as he was paying rates and other outgoings on the Suburb F property, that again was no more than he was obliged to do, having transferred the ownership to himself.
  13. I also note that, in consequence of the husband having transferred the ownership of the Suburb F property to himself, he was able to claim the whole of the loss on the sale of the property as a tax deduction and he did so.

ORDERS SOUGHT BY THE APPLICANT

  1. The applicant seeks, firstly, an order that the husband within 14 days pay to HSBC the amount required to reduce the mortgage debt to $7,292.59. It is agreed that the difference between the sum of $253,000 referred to in Clause 4.2.2(c) and the amount actually paid to HSBC from the sale of Suburb F was $14,585.18 rather than the amount of $4,943.67 referred to in the judgment delivered on 28 April 2015. Thus the applicant is also required to pay $7,292.59 to HSBC.
  2. The applicant then seeks an order that the husband pay the whole of the amount outstanding to HSBC. It is not reasonable to require the husband to effect a refinancing in 14 days and the time will be extended to 42 days.
  3. If the husband does not pay the required amount within 42 days, then the applicant seeks orders for the sale of his Suburb C property and the payment, from the proceeds of the sale, of the amount due to HSBC.
  4. The husband’s obligations under the Agreement extend only to the repayment of the liability arising from the borrowing of $430,000 in about November 2002. As outlined at paragraph 107 of the judgment delivered on 28 April 2015 in relation to the evidence before the Court:

It is not possible to ascertain which debt or debts within the HSBC loan refer to the borrowing of $430,000 referable to the purchase of [Suburb F] recited in the Agreement. It could be assumed that the two mortgages are the loans referable to the Agreement, being the [Suburb C] mortgage and the [Suburb F mortgage], but that does not assist in knowing what sums are outstanding pursuant to those mortgages.

  1. Whilst it may be a complicated accounting exercise to ascertain what that liability arising from the borrowing of $430,000 now is, that is an exercise which the parties must undertake.
  2. It is to be hoped that the parties can agree on the machinery provisions for calculating the amount of the husband’s liability. Since neither party argued this point, they have not had the opportunity to be heard on those machinery provisions. If they are unable to agree, then they can relist the matter before me to determine any dispute.
  3. Otherwise, the orders sought by the applicant are appropriate.

Child Support Assessments for Non-Parent Carers

Child Support Assessments for Non-Parent Carers

Sometimes children are cared for by someone other than their parent, such as a legal guardian, grandparent or other family member.

If you provide care for a child and you are not their parent, you may be able to receive child support from both of the child’s parents.

You can submit a non-parent carer child support assessment if all of the following circumstances apply:

  • you have a shared care arrangement where you care for a child 128 nights or more a year
  • you are not in a domestic relationship with either of the child’s parents
  • you do not have care jointly with a parent of the child
  • you are seeking payment from a person who is a parent of the child and resident in Australia or a reciprocating jurisdiction on the day you apply
  • the child’s parents have consented to you caring for the child, unless it would be considered unreasonable for the parents to care for the child

If you apply for a child support assessment, you must apply to receive child support from both parents except where:

  • one parent is not a resident of Australia or a reciprocating jurisdiction. This is an overseas country with which Australia has a child support arrangement
  • one parent is deceased
  • the Department of Human Services are satisfied there are special circumstances such as where the other parent is unknown

Child support payments are still worked out using both parents’ incomes and take into account any care they have. As a non-parent carer your income is not taken into account.

To receive a child support payment as a non-parent carer, you will need to apply for a child support assessment. The Department will need to be satisfied that the persons named in the application, are the parents of the child.

How does the Child Support formula work?

How does the child support formula work?

When working out your child support payment, the Child Support Agency looks at:

  • both parents’ income
  • if you are supporting other children
  • the costs of raising children (including their ages and the number of children)
  • how much time you spend with the children (your ‘levels of care’).
  • the costs of the children are shared by both parents. The Child Support Agency works out these costs by combining both parents income. Each parent has a ‘self-support amount’ deducted from their income before the calculations are done. The parent with the higher income is responsible for providing the greater share of the children’s costs.If you look after the children but are not a parent of the children you can apply to the Child Support Agency for child support. Legal Aid or a community legal centre can give you more information.It is important that the Child Support Agency know you have other children of your own living with you. If you do, your income used to calculate your child support responsibilities may be reduced and you may pay less child support.How do the children’s costs and their care arrangements affect child support? Some of the children’s costs can be met directly through looking after your children, and the rest will be paid or received as child support. This table explains how much of your child support responsibilities are met directly through looking after your children.
  • Meeting the costs of your children through direct care
  • The amount of care you and the other parent provide for the children can be recognised as meeting some or all of the costs of the children.
  • If you have step-children, your step-child’s parents are responsible for supporting them. In special circumstances you can apply to have your assessment reviewed if you have child support children and step-children. Get legal advice about this.
  • What if I pay child support and have other children living with me?
  • Do your tax returns every year. The Child Support Agency and the Australian Taxation Office share their records. If you lodge a tax return late, your child support assessment for past years may change. You may have paid or been paid too much child support. This can cause financial difficulties.
The nights per year the children spend with youEqual to these nights per fortnightWords the Child Support Agency use to describe this level of careThe amount of child support that you meet directly through looking after your children
0–51 nights1 night‘Below regular care’None
52–127 nights2–4 nights‘Regular care’24%
128–175 nights5–6 nights‘Shared care’25% plus 2% for every percentage point over 35%
176–189 nights7 nights‘Shared care’50%
190–237 nights8–9 nights‘Shared care’51% plus 2% for every percentage point over 53%
238–313 nights10–12 nights‘Primary care’76%
314–365 nights13–14 nights‘Above primary care’100%

If you care for the children 52 nights or more each year, and are receiving a Centrelink benefit, you may not need to pay child support. This is because you are meeting your share of the children’s costs by looking after them.

If you care for the children 52 nights or more each year, and are receiving a Centrelink benefit, you may not need to pay child support. This is because you are meeting your share of the children’s costs by looking after them.

If you change the amount of time you care for the children, your child support may also change. This is because your share of the children’s costs may vary depending on how much time you look after them.

You must tell the Child Support Agency as soon as your childcare arrangements change. If the Child Support Agency makes a decision that you disagree with, get legal advice quickly.

 

Financial versus Non Financial Contributions in Property Settlements – Recent Case

Trask & Westlake [2015] FamCAFC 160 (14 August 2015)

Last Updated: 21 September 2015

FAMILY COURT OF AUSTRALIA

TRASK & WESTLAKE

FAMILY LAW – PROPERTY – Assessment of post-separation contributions – Where the appellant husband argued that the trial judge attributed excess weight to the wife’s post-separation contributions – Where the appellant husband argued that his financial contributions outweighed those of the wife – Where the Full Court held that the wife’s homemaker contributions had continued post-separation and thus presented a relevant discretionary consideration – Where the Full Court found that the trial judge applied appropriate weight to the parties’ contributions.

FAMILY LAW – PROPERTY – Income earning capacity – Where both parties were unemployed at trial – Where the trial judge found that the husband had prospects of gaining employment within a year and had a greater earning capacity than the wife – Where the trial judge’s conclusions were based on expert evidence – Where the Full Court found no error.

FAMILY LAW – PROPERTY – The form of orders – Where the trial judge intended to effect a 60 per cent division in favour of the wife – Where the trial judge attributed a division of 87.43 per cent in favour of the wife, in respect of the prospective sale proceeds of the parties’ real property – Where the respondent wife argued that the trial judge was justified in adopting the separate percentage division and that this was supported by the trial reasons – Where the Full Court found that the separate percentage formula had the effect of distorting the overall division entitlements of the parties – Where the Full Court found that the potential distortion of the orders did not otherwise reflect the trial judge’s reasons, as argued by the respondent wife – Where the Full Court found that the orders could not be corrected according to the “slip rule” on the basis that the error reflected a mistaken but deliberate calculation by the trial judge.

Clauson & Clauson (1995) FLC 92-595
DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206
Ferraro & Ferraro [1992] FamCA 64; (1993) FLC 92-335
Gollings & Scott (2007) FLC 91-507
Gould v Vaggelas (1985) 157 CLR 215
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
In the Marriage of Garrett (1984) FLC 91-539
JEL & DDF [2000] FamCA 1353; (2001) FLC 93-075
Kowalski & Kowalski (1993) FLC 92-342
Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605
Newmont Yandal Operations Pty Ltd v The Jaron Corporation and the Goldman Sachs Group [2007] NSWCA 195; (2007) 70 NSWLR 411
Noetel & Quealey [2005] FamCAFC 677; (2005) FLC 93-230
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
R v Cripps; ex parte Muldoon (1984) QB 686
Sharman v Evans [1977] HCA 8; (1976-1977) 138 CLR 563
Williams & Williams (1984) FLC 91-541
Williams & Williams [1985] HCA 52; (1985) FLC 91-628

APPELLANT:
Mr Trask
RESPONDENT:
Ms Westlake
FILE NUMBER:
SYC
1788
of
2010
APPEAL NUMBER:
EA
2
of
2014
DATE DELIVERED::
14 August 2015
PLACE DELIVERED:
Brisbane
PLACE HEARD:
Sydney
JUDGMENT OF:
Thackray, Ryan, Murphy JJ
HEARING DATE:
30 July 2015
LOWER COURT JURISDICTION:
Family Court of Australia
LOWER COURT JUDGMENT DATE:
29 November 2013
LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT:
Mr Lloyd SC
SOLICITOR FOR THE APPELLANT:
Harris Freidman
COUNSEL FOR THE RESPONDENT:
Mr Lethbridge SC
SOLICITOR FOR THE RESPONDENT:
Doolan Wagner & Callaghan

 


ORDERS

(1) That the appeal be allowed.
(2) That the Orders made on 29 November 2013 by Aldridge J be varied by:

    (a) Discharging Order 2(f) thereof
    (b) Ordering in lieu as follows:

(f) The wife be paid an amount $X calculated in accordance with the following formula:

$X = [(A + $4,795,101) x 60%] – $2,241,154

Where:

A is the balance remaining consequent upon compliance with the sales and payments required by paragraphs 1 and 2(a) to (e) of these orders;

$4,795,101 is the total value of the property and superannuation interests of the parties as found excluding the assumed value of the two properties the subject of sale; and

$2,241,154 is the value of the property retained by the wife as found;

(g) The husband be paid the balance.

(c) Varying order 3 thereof by deleting the words “to (f)” and substituting the words “to (g)”.

(3) The parties shall file and serve any submissions as to the costs of the appeal within seven (7) days of the date of these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Trask& Westlake has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 2 of 2014
File Number: SYC 1788 of 2010

Mr Trask

Appellant

And

Ms Westlake

Respondent

REASONS FOR JUDGMENT

  1. Some four years after the parties separated in February 2009, Aldridge J made orders for settlement of property. The husband appeals those orders.
  2. The parties had then been married for about 11 years and had lived together for about 13 years. They have four children who were aged approximately 15, 13, 11 and nine at separation. The issues in this appeal devolve, in varying forms, from events that occurred in the relatively lengthy period between the parties’ separation and the trial. Principal among those events is the husband’s post-separation employment by, and subsequent retrenchment from, Company E.
  3. The employment resulted in the husband’s income “increasing markedly” from the “very high” income he had erstwhile been receiving. In the 2010, 2011 and 2012 financial years, the husband’s taxable income was, respectively, $2,076, 984; $3,444,209 and $1,042,426. (at [79]). As a result of both employment by, and retrenchment from, Company E, the husband also received sums totalling $2,577,000. The husband also became entitled to “restricted share units” valued at $187,397 net of tax which, uncontroversially in this appeal, were treated by his Honour as a financial resource. His Honour found that the cash sums received by the husband made its way into property susceptible to orders under s 79 of the Family Law Act 1975 (Cth) (“the Act”). Again, that finding is not controversial.
  4. In light of the matters just referred to, his Honour assessed contributions by delineating between the parties’ contributions to the point of separation and those made in the period post-separation. He assessed each as equal. His Honour “adjusted” that assessment by 10 per cent by reference to s 79(4)(e) so as to entitle the wife to 60 per cent of the property and superannuation interests of the parties which, as his Honour found, had a total net value of $7,114,442. The orders thereafter framed saw each of the parties keeping a valuable piece of mortgaged real property together with other property and also saw the proposed sale of two real properties, one in England and one in Australia.

THE ISSUES IN THE APPEAL

(a) The Assessment of “Post-Separation Contributions”

  1. The parties “conducted their relationship on the basis that the husband would pursue his career and the wife would be the homemaker and primary carer of the children” (at [83]). The trial judge found that (at [79]):

… the husband frequently took new positions to advance his career and to increase the family’s income. These new positions often required the family to relocate, both within Australia and internationally. The wife therefore frequently moved residences and countries with small children to enable the husband to take up these new employment opportunities.

  1. The foundation for his Honour’s assessment that the parties’ post-separation contributions were equal (and, thus, that they were equal overall) is found in his Honour’s findings at [82] – [86] of the reasons. In essence his Honour found that the wife’s significant indirect financial contributions and contribution to the welfare of the children were a “direct non-financial contribution to the husband’s ability to be employed (ultimately) by Company E and its associated benefits” and, in that respect, her contributions were a continuation of the roles that the parties had each undertaken in this particular marriage while it subsisted.
  2. It is contended that, when account is taken of the amount of the direct financial contributions made by the husband in the form of the cash injections (and what they now represent as property to be divided) his Honour’s assessment cannot be just and equitable. An argument contained within the husband’s written outline to the effect that the contention gained strength when consideration was given to the growing independence of the children, the husband’s absence from the household and the substantial period since the parties separated was abandoned orally before us.

(b) The Husband’s Income-Earning Capacity and the s 79(4)(e) Assessment

  1. It is said that his Honour’s “adjustment” on account of s 79(4)(e) is “manifestly excessive” when regard is had to the findings made by his Honour as to the factors underpinning that assessment. A separate ground relevant to that assessment refers to the husband’s unemployment at the trial and asserts that his Honour’s finding that the husband would likely be a high income earner “in a year or so” is made without sufficient evidentiary foundation.
  2. The husband’s unemployment at trial founds an additional challenge. It is contended that, because the husband was unemployed, he needed to meet mortgage and other payments pending the sale of the London and Australian properties from capital which had the effect of reducing his entitlement contemplated by his Honour’s orders.

(c) The Form of the Orders

  1. Consistent with what the husband contended at trial, his Honour decided to take account of the potential difference between the agreed value of the London and Australian properties (by reference to which his Honour’s percentage and dollar assessments were undertaken) and the possible sale price. His Honour did so in the same manner as that contended for by the husband, that is by specifying a percentage to be applied to the net proceeds of sale after deduction of specified expenses. It is contended that the form of his Honour’s orders is “contrary to principle”. It is said that the decision of this court in Noetel & Quealey [2005] FamCAFC 677; (2005) FLC 93-230 supports that proposition.

THE ASSESSMENT OF CONTRIBUTIONS MADE POST-SEPARATION

  1. The first part of the husband’s challenge asserts, primarily it seems by reference to the decision of this Court in Gollings & Scott (2007) FLC 91-507, that the trial judge “erred in principle” in “taking into account what he described as significant contributions of the [wife] to the [husband’s] post-separation earnings and contribution thereof”.
  2. It is by no means clear what “principle” is relied upon in support of that contention. In Gollings, this court referred to there being “no further obligation” upon a party ‘to continue to accumulate assets’ during the post-separation period and to the fact that a party is “… in a sense free to do with his income as he please[s].” (at 81,480). Equally, this court there referred to each of the parties being entitled (subject to the matters there specified) to “… get on with his or her life independent of the other”.
  3. That statement was made within a specific context, namely the consideration of whether particular funds should be “added back” as against the husband. Nothing said by this Court in Gollings suggests that taking due account of those factors excludes consideration of contributions to property acquired by one party subsequent to separation. In particular, the notion “… that the contribution of the homemaker and parent ceases upon the separation of the parties…” involves “… a serious misreading of s 79(4)(c)” (Ferraro & Ferraro [1992] FamCA 64; (1993) FLC 92-335, 79,568).[1]
  4. The husband’s written outline of argument calculates the percentage of the total value of the property represented by the husband’s post-separation cash injections. That can be a useful measuring stick, but the assessment of contributions remains “a matter of judgment and not of computation” (In the Marriage of Garrett (1984) FLC 91-539 at 79,372)[2]. That it must be so is emphasised by the fact that the percentage figure pertaining to direct financial contributions is being compared to the extremely important contributions made by the wife in maintaining a home as a single parent to four children dealing with the separation of their parents. Those contributions are not susceptible to any such mathematical calculation.[3] His Honour plainly, and with respect correctly, recognised that the wife’s contributions did not cease upon separation but, rather, continued in circumstances made more difficult by the fact of separation. His Honour plainly accorded significant weight to those contributions.
  5. Central to his Honour’s assessment of the parties’ respective post-separation contributions are the findings to the effect that the husband had arrived at his position with Company E by dint of his talents, dedication and hard work but also by dint of the contributions made by the wife across the years preceding that employment. The years of cohabitation had embraced roles for the parties agreed between them that had led them to the point where one of them, the husband, received tangible recognition of, as his Honour put it, the “experience, knowledge and opportunities he had obtained in his earlier employment”(at [84]). The contributions of the wife are much less tangible. The lack of tangible recognition, or the fact that they are not susceptible to a dollar calculation, does not render them less important.[4]
  6. Once those principles are accepted the quintessentially discretionary task confronting his Honour was to compare contributions of a different nature with different characteristics. His Honour plainly did so carefully. Despite the manner in which the challenge is framed, we think that, in truth, the husband’s challenge is not one directed to the application or misapplication of principle at all but, rather, an assertion that his Honour should have given greater weight to the husband’s post-separation contributions and less to the wife’s different contributions.
  7. This court, or any one of us, may have reached a different conclusion if charged as a trial judge with assessing those contributions. But, of course, that is insufficient to establish appealable error. The function of this court is “not to offer a second opinion” (Sharman v Evans [1977] HCA 8; (1976-1977) 138 CLR 563, 565) or to substitute our view of the application of s 79’s wide discretion for that of the trial judge. Indeed, “[i]t cannot be too strongly said that a mere difference of opinion … does not indicate error on the part of the trial Judge” (Sharman v Evans (above)).
  8. We can see no error in his Honour’s assessment. The challenge to his Honour’s contributions assessment fails.

INCOME-EARNING CAPACITY AND THE S 79(4)(e) ASSESSMENT

  1. The appellant challenges specifically the finding made at [100]:
    1. In summary then, the husband has a capacity to earn a significantly higher income than the wife albeit not as high as he previously received. Whilst he is not able to exercise that capacity at present it is likely that in a year or so he will be in that position.
  2. The appellant’s assertion that his Honour’s finding is “without evidence nor any reasonable basis of inference …” is plainly incorrect. The evidence of Mr C, although qualified (and, necessarily, predictive) provides ample foundation for the finding. Despite invitation from his Honour, then counsel for the husband asked no questions of Mr C. Mr C’s unchallenged evidence included the following[5]:

MR LETHBRIDGE: As somebody with experience in the field of placing senior management candidates, as I understand it, in the area of the financial services, what are the skills that [the husband] would need to obtain, or to modify his current skills in order best to make himself marketable? —
MR C: I don’t think it’s a question of whether he needs to do anything at all. I think it’s a macro-economic issue relative to the financial services community where there is just a limited opportunity at the moment, and there is an over-capacity of people with good experience, [the husband] included. So, you know, I don’t think there is much he can do either to wait for opportunity as and when it comes along, or do something entirely different, whatever that may be.
MR LETHBRIDGE: And when you say “wait for opportunity to come along”, with the experience you have with your through-put of other clients of his seniority, can you indicate a timeframe that might be said to be average or realistic?–
MR C: I can’t really answer that question because it depends on the time of year, it depends on the individuals that have been able to find opportunity, it depends on the geographic location. If I had a crystal ball I could probably anticipate when people are going to find opportunities, but unfortunately I don’t.
MR LETHBRIDGE: Sure. Now, you said in May that, from your experience and observations of the banking industry at that point, the prospect of [the husband’s] re-employment in the near future in investment banking was poor. Is the situation that you opined about in May the same at the moment, or if not, how is it varied?—
MR C: I would say it is much the same unfortunately.
MR LETHBRIDGE: Right. So where you talk of the near future, what period of time, if you can, are you talking about there?—
MR C: How do I answer your question? [The husband] may be fortuitous to come across an opportunity in a month’s time. He could be still looking for opportunity in the financial markets in 12 months’ time. I can’t sort of allocate what that timeframe would look like. But if you are asking me what I would refer to as near future, I would probably say three to six months.

  1. The distinction between, on the one hand, a trial judge making a finding without an evidentiary foundation or failing to take account of a relevant matter and, on the other hand, failing to accord sufficient weight to a relevant matter is extremely important: as to which see the often-cited passage of Stephen J in Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 519. Great care should be taken in making assertions of the former type when, in truth, the assertion is the latter. The former assertion ought not be made unless the reasons reveal the omission complained of.
  2. More broadly, his Honour’s assessment pursuant to s 79(4)(e) is challenged as being “manifestly excessive and unwarranted” and that his Honour “undervalued and misunderstood the effect of the adjustment” made.
  3. Reference to his Honour’s reasons demonstrates plainly that the latter part of that challenge has no foundation. As the appellant’s written outline of argument itself acknowledges, his Honour explicitly took into account the effect, in dollar terms, of his proposed assessment (see for example, Clauson& Clauson (1995) FLC 92-595 at 81,911) and the appellant’s recitation of the fact that a 10 per cent adjustment amounts to an assessment of a disparity of 20 per cent with a dollar equivalent of $1.422m. So, too, the assertion that “… the adjustment, which sprang from a starting position of equality as to contribution resulted in the [wife] taking 50% more of the net property of the parties …” does no more than state the mathematically obvious.
  4. His Honour carefully evaluated each of the matters enumerated within s 75(2) which were relevant to an appropriate assessment (at [87]-[121]). No error is asserted in respect of any of those individual findings. His Honour gave careful consideration in particular to the disparity in income-earning capacity of the parties, including the specific finding earlier referred to which was entirely open to his Honour.
  5. His Honour recorded, for example, that the husband had the “capacity to generate a very high income”, something “demonstrated by the positions he has held … and … the income generated from those positions”(at [88]). While the appellant’s written outline of argument points to the calculations earlier referred to, alternative calculations can also be done in respect of the disparity of $1.422m assessed by his Honour. For example:
    • The husband’s income in 2010 alone was about “50% more” than that assessment;
    • The husband’s income in 2011 was more than double the assessment; and
    • The assessment represents about a fifth of what the husband earned in three of the four years post separation.
  6. In comparison to the husband, the wife, although a professional with a bachelor degree in applied science, has not been employed since obtaining her qualification, save for a few months of part-time work in 2000. His Honour found, again unchallenged, that “… she will obviously need to undergo some retraining to be employed and would be commencing a career from the beginning”. His Honour also specifically found that it “… is most unlikely that her earning capacity will ever be anywhere near as high as the husband’s” (at [101]). That finding is not challenged and nor could it be.
  7. His Honour also carefully weighed:
    • The fact that the youngest of the parties’ four children was then aged nine and that the predominant care of the children would fall to the wife “for a considerable time in the future” (at [106]). His Honour, with respect correctly, regarded this as a very significant factor;
    • The continuation of an appropriate standard of living for the parties in light of their pre-separation circumstances;
    • The duration of the marriage and the extent to which it has affected the wife’s capacity to earn income. “… [T]he wife did not have the opportunity to develop a career of her own [and] [t]hat significantly affected [her] earning capacity”(at [113]); and
    • The fact that the husband has the benefit of the unrestricted share units valued at $187,397 “which will probably vest in 2015”.
  8. To repeat what we earlier said, it is not sufficient to attract the intervention of this Court that we or any of us may have made an assessment different to the trial judge. Nothing to which we have been taken nor any argument by the appellant persuades us that his Honour’s discretion miscarried in respect of the s 79(4)(e) assessment.
  9. A separate challenge also relates to a matter which his Honour considered pursuant to s 75(2)(o) of the Act. Orders made in December 2010 and November 2012 obliged the husband to make various payments. It is said that his Honour failed to take into account relevant facts namely “that as a consequence of the appellant’s unemployment all mortgage and unemployment payments that he was required to make pending the sale of the properties would be paid from the appellant’s capital and thus diminish the true value of what his Honour intended he would receive to represent 40% without any order to address the situation”.
  10. Again, it is with respect not correct to assert that his Honour “failed to take account” of the matter referred to. Our earlier comments in that respect pertain. Here, his Honour specifically addressed the matter referred to and did so, as was entirely open to him, by reference to s 75(2)(o) (at [116]-[119]).
  11. Having found that the evidence did not permit of the finding contended for by the wife, his Honour considered it appropriate that the orders remain in place until the properties the subject of his orders were sold in accordance with them. It is important to observe that those orders provided for expeditious sale: the orders required auctions within three months of the orders and specified the setting of reserve prices by the parties’ agreement or, failing that, as proposed by the auctioneers.
  12. Nothing to which we were taken, nor any argument by the appellant persuades us of any error by his Honour.

THE FRAMING OF THE ORDERS

  1. The terms of the orders made by his Honour have their genesis, relevantly, in what his Honour said at [135] – [136]:
    1. In order to receive 60 per cent of the total net assets of $7 114 442, namely $4 268 665, having regard to the net assets retained by her of $2 241 154, the wife needs a payment of $2 027 511. That is 87.43 per cent of the net value of the assets being sold. If the husband receives 12.57 per cent of the net assets being sold being $291 500 and the assets being retained by him of $2 554 167 he will receive $2 845 667. This equates to 40 per cent of the net assets (strictly 40 per cent is $2 845 777).
    2. These will not, of course be the final figures as the sale price, the costs of sale and any capital gains tax, are not yet known. Therefore, although it will not give exact expression to the percentage determined above, the order will be that the net proceeds of the [LL Property] and [F Property] properties be divided as to 87.5 per cent to the wife and 12.5 per cent to the husband. This will enable the burden or benefit of the variations to the above values to be borne by the parties in the determined proportion.
  2. The value of the “total net assets” referred to by his Honour includes an agreed value in respect of two properties – one in London and one in Australia. Each of those properties was to be sold in accordance with his Honour’s orders. It was, then, necessary for the orders to provide for an amount to be received by each of the parties by reference to as yet unknown net sale prices. The method employed by his Honour to arrive at those figures was urged upon him by then counsel for the husband. His Honour’s ultimate orders mirrored, relevantly, that approach.[6]
  3. If his Honour intended the orders to effect, ultimately, the assessed division of property of 60 per cent in favour of the wife (save for minor discrepancies), the method employed is flawed. The wife contends that this is not what his Honour intended. She asserts that the use of the expression “[t]hese will not, of course, be the final figures” and his acknowledgement that the percentage to be applied to the ultimate net sale proceeds “… will not give exact expression to the percentage determined above [i.e. 60%]” (at [136]), indicate a different intention by his Honour. That intention was, she contends, to allow, as an exercise of discretion, any percentage difference over or below the assessed 60 per cent resulting from the application of the specified percentage to the final net sale figures, to lie where it fell.
  4. Such an approach would have been open to his Honour as an exercise of discretion: ultimately his Honour’s task was to arrive at “appropriate” orders which are “just and equitable”.[7] It is within discretion for a judge to determine that orders should reflect a division that approximates 60 per cent/40 per cent. If that be the judgment, then small variations in the ultimate percentage received consequent upon the sale of property may not attract the intervention of this court.[8]
  5. Axiomatically, however, if that be the judgment, adequate reasons must make that abundantly clear, and all the more so because of the ubiquity of orders intended to reflect, with precision, a result expressed in percentage terms. It is that consideration which finds reflection in Noetel relied upon by the appellant husband. If orders are intended to reflect with precision the judgment expressed in percentage terms, those orders must acknowledge that the property may sell for a price different to the current estimated value.
  6. The question which arises if his Honour’s orders are to be defended on the basis contended for by the respondent wife is, then, did his Honour intend to eschew a result reflecting precisely his assessment of 60 per cent / 40 per cent in favour of allowing any loss or gain to lie where it fell, even if the consequence was an overall result based on actual net sale prices different to that percentage? Senior counsel for the wife concedes before us that the only support for any such conclusion is the expressions earlier referred to in [136].
  7. His Honour’s reasons read as a whole and, indeed, [135] and [136] read as a whole, do not bear that interpretation. First, the concluding sentence of [136] of the reasons points against any such conclusion. His Honour said that adopting the specified percentages of 87.43 per cent / 12.57 per cent to the ultimate net sale proceeds “… will enable the burden or benefit of the variations to the above values to be borne by the parties in the determined proportions” (emphasis added). Secondly, the significant value of the total property means that any relatively small variations in ultimate percentage entitlement derived by adoption of the 87.43 per cent / 12.57 per cent formula will result in significant variations in the dollar disparities in the property received by the parties. The reference by his Honour to the inexactitude of the result at [136] is plainly a reference to the minor difference (of about $110) produced by the application of the formula to the pool using the existing values of the real property. Equally, at [135] his Honour makes it clear that the purpose of calculating the 87.43 per cent / 12.57 per cent formula is “in order [for the wife] to receive 60 per cent of the total net assets …”.
  8. The respondent’s argument that his Honour intended the gain or loss to lie where it fell is not sustainable. The consequence is that there is error if his Honour’s orders do not reflect the result, which his Honour intended. As we have said, his Honour did err in that respect.
  9. His Honour’s percentage formula makes no allowance for the fact that, as the assumed values of the two properties rise or fall they bear a greater or lesser proportion of the total value of the pool. That is, using his Honour’s formula would produce the assessed percentage entitlement only if the new values bore the same proportion to the total value of the pool as the original agreed values. Axiomatically, if they have risen or fallen, and the values of the balance of the property remain the same (as is assumed) they do not.
  10. In light of the arguments before us and the frequency with which orders of the instant type are made, it is helpful we think to illustrate mathematically the proposition just advanced. His Honour’s calculations can be illustrated as follows:

Total net value assets and superannuation

$7,114,412

Agreed value of properties to be sold

$2,319,000

Value property and super retained by husband

$2,554,167

Value property and super retained by wife

$2,241,154

To wife: 60% of $7,114,412

$4,268,647

Balance for wife’s entitlement

$2,027,493

87.43% of sales at agreed values of $2,319,011

$2,027,511

Total to wife

$4,268,665

% to wife

60%

Equivalent calculation to husband

39.9%

  1. To illustrate the difference if his Honour’s formula is applied to different sale prices, it is convenient to assume, purely for illustrative purposes, the values which the husband sought to lead before his Honour but which his Honour rejected in favour of the values earlier agreed between the parties.

Assumed sale prices
a) $2,300,000
b) $850,000

$3,150,000

New net value assets and superannuation using assumed sale prices

$7,945,412

Value property and super retained by husband

$2,554,167

Value property and super retained by wife

$2,241,154

To wife: 60% of $7,945,412

$4,767,240

Balance for wife’s entitlement

$2,526,086

87.43% of assumed sale prices at agreed values of $2,319,011

$2,754,045

Total to wife

$4,995,199

% to wife

62.8%

Equivalent calculation to husband

37.1%

  1. In dollar terms, the disparity between the parties by reference to his Honour’s orders is, as referred to above, approximately $1.422m. The disparity in the illustrated example of 25.77 per cent represents a dollar disparity by reference to the assumed sale values of approximately $2.041m. [9]
  2. The parties were agreed before us that, if we were of the view that his Honour’s calculation is erroneous, it can be corrected by reference to “the slip rule”. “Courts have an inherent or implied jurisdiction to amend judgments which do not correctly state what was actually decided and intended” (Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206, 209 (“Elyard”); DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226). The general rule that, save with consent, orders cannot be amended without a rehearing has as an exception for “accidental slips or omissions” (Elyard (above)). In DJL (at 244), the High Court held that “An order … might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce”. That statement, emphasised as indicated, was said by Spigelman CJ in Newmont Yandal Operations Pty Ltd v The Jaron Corporation and the Goldman Sachs Group [2007] NSWCA 195; (2007) 70 NSWLR 411 “should be accepted as authoritative” (at [80]). Of course, it is open to the parties to correct any mistake that might otherwise be the subject of the application of the slip rule by agreeing to vary the orders.
  3. The operation of the rule as described by Spigelman CJ in Newmont might be seen to embrace the instant facts. That said, the “slip rule” has been described as both “surprisingly wide” and “that it is to be exercised sparingly” (Respectively R v Cripps; ex parte Muldoon (1984) QB 686, 695; Gould v Vaggelas (1985) 157 CLR 215, 275 per Gibbs CJ, each quoted in Russell v Russell [1999] FamCA 1875; (1999) FLC 92-877). Specifically, it has been held that it applies “… where the proposed amendment is one upon which no real difference of opinion can exist [and] it does not apply where the amendment is a matter of controversy; nor does it extend to mistakes that are the consequence of a deliberate decision” (Elyard at 210). Similarly, while the rule permits of correction for accidental slips or omissions of counsel, deliberate but mistaken acts or omissions may not be correctable by the application of the rule (L Shaddock & Associates Pty Ltd v Parramatta City Council No 2 [1982] HCA 59; (1982) 151 CLR 590 at 594-5; Gould v Vaggelas (above) at 274-5).
  4. The classification of the error here might be the subject of debate by reference to the statements of principle to which we have referred. On balance, however, we consider that the error results from a mistaken but deliberate calculation urged upon the trial judge by then counsel for the husband, rather than “an accidental error or omission”. Similarly, as a result of his Honour having deliberately adopted that methodology. “ …[the] error complained of by the husband is not readily discernible or apparent from a reading of the judgment and/or orders” (Noetel at [66]). Indeed, as in Noetel, his Honour’s intention in doing so was the subject of contention before us.
  5. Therefore, we do not consider that the circumstances of this case render his Honour’s orders susceptible to correction by application of the slip rule. Rather, we consider that his Honour erred in making orders which do not reflect the judgment. That determination has two consequences. The first is that the appeal should be allowed on that basis. The second is that, with the parties consent, this court should re-exercise the discretion and make orders the terms of which are, in that event, agreed between the parties.

COSTS

  1. At the conclusion of the hearing of this appeal, the parties sought the opportunity to make submissions as to the costs of the appeal as it was contended that s 117(2A)(f) may have relevance to any such order.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 14 August 2015.

Associate:

Date:

Child support for over 18s

Child support for over 18s

If your child is about to turn 18 and is in full time secondary education, you can ask the Department of Human Services to continue the child support assessment to the end of the school year. You need to apply after their 17th birthday and before their 18th birthday.

If you receive Family Tax Benefit (FTB) Part A and choose not to apply for your child support to be extended past your child’s 18th birthday you will only receive the base rate of FTB Part A. The Department will remind you to apply for the extension before your child’s 18th birthday. There are very limited circumstances where the Department can accept an application after your child’s 18th birthday.

With many children starting their school lives later than previous generations, it is becoming increasingly common for children to turn 18 rather than 17 during their final year of school (Grade 12). As a result, more and more parents are applying for an extension of the payment of child support until their children complete Grade 12.

A form is available from the Department to apply for an extension of child support.

If you are having trouble applying for child support through the Department, you should seek legal advice about alternatives.

These alternatives may include a court application or an agreement with the other parent for the ongoing payment of child support until school is completed.

The Child Support Formula

The Child Support Formula

The formula is flexible enough to take into account many different family circumstances. It provides a balanced way of working out payments.

The payments are assessed based on the combined incomes of the parents and the care arrangements of the child. This ensures that the costs of raising a child are shared by both parents.

For example, if a parent provides a larger percentage of care than their share of the total income, they will generally receive payments from the other parent. If a parent provides a smaller percentage of care than their share of the income, they will generally pay child support to the other parent.

The tables for working out the costs of children and the costs that the parents meet through care are based on research into what parents spend on children in Australia.

The costs of children table is updated annually according to the changes in the Child Support Guide’s Male Total Average Weekly Earnings[1] (MTAWE) figures.

Child support payments and Family Tax Benefit[2] (FTB) are closely linked. You may need to apply for a child support assessment in order to get more than the base rate of FTB Part A. The amount of your child support payment may affect how much FTB you receive. The more child support you get, the less FTB you may receive. Equally, the less child support you get, the more FTB you may receive.