Adamo & Vinci (No 4)
[2023] FedCFamC1F 1100
•18 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Adamo & Vinci (No 4) [2023] FedCFamC1F 1100
File number(s): SYC 3598 of 2018 Judgment of: SCHONELL J Date of judgment: 18 December 2023 Catchwords: FAMILY LAW – PARENTING – Where the husband sought to discharge final parenting orders – Where the husband contended that there had been a change in circumstances – Where the wife sought a dismissal of the husband’s application based on the principles in Rice and Asplund (1979) FLC 90-725 – Where the Court is not satisfied that there has been a change in circumstances as contended by the husband – Application dismissed.
FAMILY LAW – FINANCIAL – Where the husband sought to set aside final financial orders pursuant to s 79A of the Family Law Act 1975 (Cth) – Where the husband contended that the wife had suppressed evidence and/or failed to disclose evidence before the trial judge on the last occasion, that the wife had defaulted on an obligation imposed by the final orders and/or that exceptional circumstances existed – Where the wife sought a dismissal of the husband’s application – Where the Court is not satisfied that any of the asserted grounds have been made out – Application dismissed.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 64B, 75, 79, 79A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01
Cases cited: Adamo & Vinci (No 2) [2020] FamCA 873
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Barker & Barker (2007) 36 Fam LR 650; [2007] FamCA 13
Carriel & Lendrum (2015) FLC 93-640; [2015] FamCAFC 43
Dimmick & Harrison [2023] FedCFamC1A 30
Freeman and Freeman (1987) FLC 91-857; [1986] FamCA 23
Lane & Lane (2016) FLC 93-699; [2016] FamCAFC 53
Langmeil & Grange [2013] FamCAFC 31
Livesey v Jenkins [1985] AC 424
Prowse & Prowse (1995) FLC 92-557; [1994] FamCA 91
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Rohde and Rohde (1984) FLC 91-592
Simpson and Hamlin (1984) FLC 91-576; [1984] FamCA 62
SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16
Taylor v Taylor (1979) 143 CLR 1l [1979] HCA 38
Trewitt & Brock [2021] FedCFamC1A 9
Vinci & Adamo [2021] FedCFamC1A 53
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 138 Date of hearing: 27 – 29 November 2023 The Applicant: Litigant in person Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: Alidenes & Co Solicitor ORDERS
SYC 3598 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ADAMO
Applicant
AND: MS VINCI
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
18 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Further Amended Initiating Application filed 5 December 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adamo & Vinci has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Further Amended Initiating Application filed 5 December 2022, the applicant husband (“the husband”) sought to discharge final parenting and financial orders made following a contested hearing. The husband contended in relation to the parenting orders that there had been a change in circumstances and sought to set aside the financial orders pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”). The husband’s application was opposed by the respondent wife (“the wife”), who sought its dismissal. In relation to the parenting aspects of the matter, the wife contended that the husband’s application should be dismissed based upon the principles arising from the Full Court’s decision in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”).
The husband relied upon the following documents:
(1)Further Amended Initiating Application filed 5 December 2022;
(2)Affidavit of husband filed 7 March 2023;
(3)Affidavit of single expert valuer Mr S filed 26 August 2023;
(4)Affidavit of single expert value Mr T filed 1 December 2022
(5)Financial Statement filed 27 October 2023;
(6)Notice to Admit Facts filed 7 February 2023; and
(7)Case Outline document.
The wife relied upon the following documents:
(1)Response to Initiating Application filed 16 August 2021;
(2)Affidavit of wife filed 2 June 2023;
(3)Financial Statement filed 31 October 2023; and
(4)Case Outline document.
Each party tendered various documents. The husband’s affidavit attached to it documents by way of Annexure and Exhibit. The husband contended that each document was relevant and sought to rely upon all of the attached documents. Those documents became Exhibit 1 in the proceedings. Exhibit 1 comprises over 1800 pages, is largely unpaginated and where it is paginated, some pages have more than one number. In view of the size of Exhibit 1, I indicated to both parties at the commencement of the hearing that if either of them wished to rely upon a tendered document as part of their case, then notwithstanding its tender, I would require them to specifically refer to it in submissions and if it was not referred to, I would not be looking at it. As it was, a miniscule fraction of the documents tendered were referred to in submissions.
The husband is a professional. He well knows that he bears the onus of proof to make good the case he prosecutes. He ought to know that I am not required to address every piece of evidence, nor every argument presented. As the High Court in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 observed:
62. … A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not property considered the losing party’s case.
In circumstances where the husband sought to discharge the parenting orders and where part of the husband’s relief is pursuant to s 79A(1)(d), I will address the parenting aspects of the proceedings first.
BACKGROUND
The parties commenced cohabitation in or around 2001, married in 2002, separated on a final basis on or about 1 August 2012 and divorced in 2019.
The parties continued to reside in the same home following separation until late 2018, after which the husband left the Suburb E property (being the former matrimonial home) and began residing with his parents.
The parties have two children together, namely X born 2006 and aged 17 years and Y born 2009 and 14 years.
The husband first commenced proceedings on 7 June 2018 in the Federal Circuit Court of Australia (as it then was). The proceedings were subsequently transferred to the Family Court of Australia (as it then was) on 12 August 2019.
In September 2020, the proceedings were listed for final hearing for three days before Rees J.
On 16 October 2020, her Honour delivered her reasons for judgment and made final parenting and property orders (Adamo & Vinci (No 2) [2020] FamCA 873).
In relation to the parenting aspect of the proceedings, her Honour made orders that provided for the children to live with the wife and spend time with the husband for four nights a fortnight as well as half school holidays. Her Honour noted that the primary issue was whether the husband would take up the opportunity to spend more time with the children, finding ultimately that she had no confidence that the husband would have a significant and consistent role in the children’s lives (at [164]), and that it was unlikely that the husband would comply with orders and spend more time with the children (at [218]).
The property orders provided for the parties’ assets to be divided in the proportions of 20 per cent to the husband and 80 per cent to the wife. Justice Rees assessed contributions to the non‑superannuation pool to be 70 per cent to the wife and 30 per cent to the husband. A further 10 per cent adjustment under s 75(2) was made in favour of the wife, in part because of her Honour’s findings that the wife will likely bear the majority of the parenting responsibilities and because her Honour could not be satisfied that the husband would make any significant financial contributions to the children’s care (at [316] and [318]). Her Honour also noted that the wife would continue to pay the children’s school fees and that the husband had not made any direct contribution to the fees (at [319]). Orders were also made for the wife’s pension to be split equally.
At the final hearing, both parties deposed to family violence perpetrated by the other. Her Honour accepted “that the husband had used derogatory and inappropriate language to the wife” as alleged by her (at [105]), which included calling the wife a “slut” and a “fucking whore” (at [89] and [92]). In relation to family violence perpetrated by the wife, her Honour observed that the husband made generic allegations and that it was difficult to ascertain what violent conduct the wife was alleged to have done (at [80]). Her Honour otherwise found that there was mutual shoving and pushing by both parties (at [105]).
The wife was dissatisfied with the orders splitting the wife’s pension and filed an appeal. On 5 November 2021, the wife’s appeal was dismissed by the Full Court (Vinci & Adamo [2021] FedCFamC1A 53).
In late 2020, the husband deposed that he received a phone call from U School and was advised that the school fees were in arrears. The husband contended that the wife did not disclose to Rees J that she was in arrears or that she would be unable to pay the school fees.
In 2021, the wife removed the children from U School as she could not afford to pay the school fees. The husband contended that she did so without notice to him. The wife contended that she informed him in 2021 that she was removing the children from U School and that he agreed to it. The children were subsequently enrolled into P School.
Following the children’s enrolment at P School, Y’s attendance at school became problematic.
On 16 April 2021, the husband filed an Initiating Application seeking orders pursuant to s 79A.
In late 2021, the wife obtained employment with V Institution in City Q. The wife and her partner subsequently purchased a property in City Q.
In late 2021, the husband contended he received a phone call from Y who informed him that the wife was moving to City Q and that she intended to move him and X there as well.
In early 2022, the wife enrolled the children into a school in City Q. The wife deposed that both children were against the move, so she decided to work from Sydney. She denied the husband’s contention that she lived in City Q. In her cross-examination, she said that she travelled to City Q for work and stayed there on occasions but that her primary place of residence was in Sydney.
It is not in issue that since the making of the final parenting orders, the children have not spent time with the parties in accordance with the final orders. The wife deposed, and the husband accepted, that that the husband has not spent time with the children in the intervening week on the Wednesdays. The wife contended that time was otherwise spent on an ad hoc basis. The husband appears to agree with this, contending that the children “spent only about 14% of nights” with him until 21 January 2022 (husband’s affidavit, paragraph 4).
The husband said that on 22 January 2022, the children commenced living with him full time. The wife denied this, contending that the husband had obtained rental accommodation and to make up for lost time during the holidays, she agreed to the children spending more time with him. The wife denied that it was a permanent arrangement. She said that during this time, the children would spend weekends with her depending on their social calendar.
In early 2022, the wife rented the Suburb E property and commenced living in an apartment at Suburb O. She said the reason for this was that she no longer felt safe at the Suburb E property because of the husband’s behaviour.
In early 2022, the husband said he secured rental accommodation and ceased living with his parents.
In June 2022, the husband said that Y ceased living with him. Since then, Y has, according to him, spent a few nights in 2022 and in 2023, only spent two block periods of 7 nights with him.
In mid-2022, Y commenced attending W School.
The following month, the wife and X travelled to Country Z and stayed there for about a month. During this time, Y was in the care of the wife’s partner.
In late 2022, the wife and her partner moved to a property at Suburb AA.
In or around October 2023, the husband said that X returned to live with the wife.
APPLICABLE LAW- PARENTING
The husband sought the discharge of the existing parenting orders made by Rees J and in their place, sought orders that in essence reverse the current orders such that the children would live with him and spend time with the wife each alternate weekend and half school holidays. The orders the husband sought are clearly parenting orders within the meaning of s 64B of the Act.
The husband’s application invites reconsideration of the living arrangements of two children aged 17 and 14. On 30 November 2022, I recorded the following notation in the orders made that day:
A.Part of the litigation between the parties involves an application by the applicant [husband] to vary orders made by Justice Rees on 16 October 2020 and earlier orders by Judge Monahan. Before me today, the [husband] who appeared for himself and Ms Alidenes who appeared on behalf of the [wife] both indicated that they are of the view that there was no necessity, notwithstanding the age of the children, for any expert evidence in relation to the children’s views or an updated Family Report.
The reference in the notation to orders made by Judge Monahan was because of the erroneous but firmly held belief of the husband that, notwithstanding r 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the final orders of Rees J did not extinguish the earlier interlocutory orders. As a consequence of the manner in which the parties have chosen to conduct the proceedings, there is consequently no expert evidence addressing many of the matters that would inform a consideration of their best interests.
In making parenting orders, s 60CA of the Act provides that the Court is to regard the best interests of the children as the paramount consideration. In determining what is in the children’s best interests, the Act mandates that the Court consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to have regard to in determining what is in their best interests.
The wife seeks a dismissal of the husband’s application, contending there has not been a change of circumstances. As such, her application invokes, what has been clearly articulated in numerous authorities the view that the Court should not “lightly entertain an application to reverse” an earlier parenting order unless it is satisfied that there are changed circumstances (in the sense that a new factor has arisen or some material factor was not disclosed at the previous hearing) which would justify the reversal (see Rice and Asplund at 78,095). It is sometimes inelegantly described as the rule in Rice and Asplund.
The so called rule rests upon the indisputable proposition that continuous litigation about the living arrangements of children is inimical to their welfare and contrary to their best interest (Langmeil & Grange [2013] FamCAFC 31).
In Freeman and Freeman (1987) FLC 91-857, Strauss J said at 76-470–76-471:
… Once the court … has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. …
Such application can be made at either a preliminary stage in the proceedings “on the papers” or as here after hearing all of the evidence including cross-examination.
As observed in SPS & PLS (2008) FLC 93-363:
48. …
(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”
…
73.There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Secondly, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.
An order of the type sought by the wife, namely the dismissal of the husband’s application on Rice and Asplund grounds, is not a parenting order. Accordingly, it does not involve a consideration of, or adoption of the same pathway as the making of a parenting order would.
In Carriel & Lendrum (2015) FLC 93-640, the Full Court observed:
56.…where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in s 60CC of the Act in determining where the best interests of the child might lie.
57.In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
While in Trewitt & Brock [2021] FedCFamC1A 9, the Full Court observed:
29.The weight of authority and the terms of s 64B of the Act itself point to the order dismissing the father’s application made by her Honour as not being a parenting order within that section. That being so, the court is not obliged to have regard to the mandatory terms of s 60CC of the Act.
30.Nonetheless, as the authorities make clear, the determination of whether there should be a reconsideration of existing parenting orders, is one that must be made in the best interests of the child. Often that determination will focus on the nature of the change in circumstances, if any, and the detriment to the child of further litigation. Considerations raised by s 60CC of the Act may also, obviously, be relevant.
The hearing has been conducted on the basis that the husband must establish that there has been a change of circumstances. If the husband is unsuccessful in establishing such a change, that is dispositive of the parenting proceedings. If the husband does establish such a change, then I will proceed to consider what orders are in the children’s best interests.
DISCUSSION
The husband relied upon the following as evidence of the asserted change in circumstances:
(1)That while at the time of hearing before Rees J the wife was residing at a particular home in Sydney, she is now living in City Q and no longer primarily resides with the children in Sydney;
(2)Y’s refusal to attend school;
(3)That the husband no longer lives with his parents, and can now accommodate one of the children on a more regular basis and can spend more time with one of the children;
(4)That Y says he wants to live with the husband and spend more time with him; and
(5)That the living arrangements of both children are different to those that existed at the time of making of the orders.
Whether the wife is living in City Q?
It is common ground that at the time of the orders, the wife was residing with the children in her home at Suburb E.
The wife contended that in early 2022, she moved out of the Suburb E property and into a rented apartment in Suburb O. The wife in her affidavit explained her reasons for moving included that renovations were being conducted to the property. She also said that she “no longer felt safe at the [Suburb E] residence following numerous unannounced attendances at the home by [the husband] and his behaviours including urinating on the property” (at paragraph 22).
In late 2022, the wife and her partner moved to a property in Suburb AA. Her evidence was that she intends to resume occupation of the Suburb E property when it has been upgraded with security.
In late 2021, the wife obtained employment with V Institution in City Q. The wife and her partner subsequently purchased a property in City Q. The wife does not deny that she has stayed overnight during the week, on weekends and in school holidays at their property in City Q.
In her affidavit, she said:
85. I live in Sydney and work remotely and travel to [City Q] when required.
86. I have been employed by [V Institution in City Q] since [late] 2021. This role has provided me with a vehicle as I was forced to sell my vehicle in [mid] 2021 as part of the conditions to refinance my home following the family law proceedings.
87. Since COVID 19, the workforce has had increased opportunities to work from home.
88. I am fortunate to be able to work from home in Sydney and commute to [City Q] when required. It is a higher paying position than my previous employment and I hold a genuine belief that the children would benefit from spending some time in a regional centre on weekends and during school holidays.
…
91. In [early] 2022, [Mr BB] and I purchased a property in [City Q] as a future investment strategy in our retirement years. As an outcome of the family law proceedings, my superannuation was diminished by 50% leaving a significant short fall in my available retirement funds.
92. The [City Q] property is not our primary home, nor do we intend to live in [City Q].
93. During school holidays, [X] likes to stay in [City Q] from time to time and I work from [City Q] during these periods.
94. In [early] 2022 1 did enrol the children in [CC School] at [City Q] to commence in Term 1 2022 however I have never withdrawn the children’s enrolment at [P School].
95. In or about mid-January 2022, both [Y] and [X] expressed to me that they “did not want to go to [CC School] and wanted to stay at [P School]” I took their wishes into account and made arrangements to enable to work more often from Sydney.
(Emphasis in original)
In her cross-examination, the wife said that at some future date she and her partner might move to City Q.
It is the husband’s case that since obtaining her employment, the wife has been living in City Q, and from the tenor of his affidavit and cross-examination, he invited the Court to conclude that the wife is no longer the primary carer of the children.
In support of the husband’s contention, he relied upon the purchase by the wife of a home in City Q, representations contained in a bank officer’s records, and a number of documents and comments made to him by the children. The documents include the wife’s contract for employment, a table in his affidavit which references telephone records and a Notice to Admit Facts. He invited the Court to draw inferences from all of this material contrary to the wife’s denials.
It is not in issue that the wife and her partner have bought a home in City Q. The wife conceded that she has stayed in the home on occasions. The husband in his affidavit said the following.
88. As the Commonwealth Bank records at pages 19-20 of exhibit “EJ” show, [in] 2022, [Mr BB] told the Commonwealth Bank Joan officer [Mr DD], words to the effect that, [Mr BB] “will continue to run his [business] at [Suburb E] as he has a residency at the [business premises], so he’ll be staying there 4 nights of the week, and then head back to [City Q]. There are also people in place that can run the shop while he might not be there on certain days”.
...
90. I say that, on page 21 of exhibit “EJ”, [in early] 2022, the assessment by the CBA officer [Mr EE] of the […] Home loan (Joint owner occupier property purchase to $700,000 plus costs) noted, in approving the decision, how “Lender comments of today (MT messages) provides clarification as to how the MIA (meaning [Mr BB]) will continue to operate the business (Sydney metro) when they move to [City Q]. The [sic] is considered reasonable/acceptable”.
(Emphasis in original)
The above hearsay statements record only the bank officer’s conclusions from speaking to the wife’s partner, not the wife. The first statement in relation to a residence at his business premises is consistent with the case advanced by the wife that in early 2022 the wife was seeking to enrol the children at school in City Q. That did not however eventuate. The second statement recorded by the bank officer is consistent with the wife’s evidence that she and her partner at some future date may move to City Q. These statements do not establish that the wife is living in City Q not Sydney or at any time after purchase of the property lived there as her permanent place of residence as opposed to Sydney, nor do they give rise to such an inference.
The husband sought to rely upon the wife’s contract of employment as evidence of her living in City Q. The contract records that her place of employment is City Q and other regional areas of New South Wales. The husband agreed that the contract of employment does not require the wife to reside in or around City Q. The contract does not establish that the wife is living in City Q, nor does it give rise to such an inference.
The husband placed great store on a table recording telephone calls made between the children and the parties in the period late 2021 to early 2023 (husband’s affidavit, paragraph 172). He asserted that the table demonstrates that the wife lives in City Q or supports such an inference.
An analysis of the table demonstrates that it identifies the location from which calls were made. It does not demonstrate that the wife was living in City Q. A simple example suffices. According to the table for Y, phone calls are made on 317 days. There are however significantly more than 317 days in the period covered by the table given that it spans 14 months.
The table does not identify how many calls are made each day, whether calls are made every day or the time the call is made. The wife conceded that some of the calls could have been made on a return trip to Sydney, on a day trip to and from City Q or during school holidays. Of the 317 days, approximately 81 days identify her being in City Q. While approximately 68 days have the description “[the wife] & [Y] in [Sydney], then [the wife] back to [City Q]”. It is impossible to discern from the entries or the cross-examination whether in each instance the wife was staying overnight in City Q, or merely travelling from City Q to Sydney or from Sydney to City Q. I am not satisfied that the table does anything other than confirm the wife’s evidence that she travels to City Q for work when required and on occasions stays overnight as well as on weekends and during school holidays.
The husband sought to rely upon a Notice to Admit Facts, which sought admissions that the wife and children were operating mobile telephones in the period covered by the Notice, namely late 2021 to early 2023. The Notice to Admit Facts specifically recorded the following:
1that the [wife] has been ordinarily working in the position […] for [V Institution in City Q] in accordance with her contract of employment dated [late] 2021 at [FF Street, City Q] in the period of around [late] 2021 to [early] 2023.
2that the [wife] has been primarily living in the [City Q] region of New South Wales in the period of around [late] 2021 to [early] 2023.
3that the [wife] has been primarily living in her property jointly owned with her partner [Mr BB] known as [GG Street, City Q], in the state of New South Wales in the period of around [early] 2022 to [early] 2023.
The wife did not file a Notice Disputing Facts. I infer from the husband’s submissions that the wife’s failure to file a Notice Disputing Facts establishes beyond doubt the contentions advanced in the Notice to Admit Facts.
While the Rules record a process whereby a fact can be denied, the Rules are designed to serve the interests of justice. As the Full Court observed, albeit in a different context, in Dimmick & Harrison [2023] FedCFamC1A 30:
9.… Rules are a guide to sound forensic practice, not a judicial straight-jacket. They are meant to be applied flexibly to meet the ends of justice. It does not matter that the appellant did not apply for relief from compliance with the Rules. The appeal registrar could act of his own volition and was entitled to dispense with the Rules as needed … to ensure the quick, inexpensive and efficient conduct of the proceedings (s 67(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
Notwithstanding the Notice to Admit Facts, large sections of the husband’s affidavit were directed to establishing the propositions advanced in the Notice to Admit Facts. Therefore, it could not be contended that, as a consequence of the wife’s failure to file a Notice Disputing Facts, the husband presumed the matter was not a fact in issue. Further, the wife put in issue the fact of her living in City Q in her affidavit filed 2 June 2023. Clearly, on receipt of her affidavit, he was on notice that there was a live issue as to where she was living. The fact presumably explains why, notwithstanding the terms of the Notice to Admit Facts, he spent a significant period of time cross-examining the wife and seeking (unsuccessfully) an admission that she was living in City Q. I am not satisfied that the husband obtained any forensic or evidential advantage nor suffered any prejudice by the wife’s failure to comply with the Rules. The affidavits and cross-examination clearly raised as an issue for determination whether the wife was living in City Q or Sydney.
The husband also relied upon various statements made by the children that he said establish that the wife is living in City Q and not in Sydney.
The husband said:
58. After a Directions Hearing before [a] Judicial Registrar […] in this matter, on the afternoon of 14 December 2021 at 4:39pm, I received a telephone call from my son [Y] who said words to the effect of, “Dad, I know for a while now I haven’t been telling you where mum is because she didn't want me to, but I'm going to tell you now. She’s been in [City Q] working and she just told me that we’re moving there. I said no we’re not. I’ve just got used to my new school and have been starting to go more. I’ve got all my friends here. [X’s] been crying about it because he doesn’t want to go either. Mum said, we’ve got no choice because she is renting the house out. Dad, can you stop her forcing us please. We don’t want to live there”. I said, “Yeah, I’ll try, because your mum knows I want to get my own place and have you guys live with me more. I’ll have to go to Court again”. [Y] said “Please dad. Just do it”.
…
60. On 14 December 2021 at 4:47pm, I then telephoned my other son [X], and we had a conversation to the following effect, “[Y] has explained to me that your mum wants you to go live in [City Q]”. [X] said, “Yeah, she wants me to go to a school interview”. I said, “[X], do you want to live in [City Q]? You know I’ve been trying in Court to get what I’m entitled to, so I can have my own place, and we can live together more often”. He said, “No dad. I don’t want to live in [City Q] or change schools. I like [P School]”. I said, “Ok, that’s all I need to know. Once I get my place you can live with me full-time, and we’ll work out arrangements so you can see your mum on holidays and weekends”. [X] said, “Yeah, we’ve been spending most of the time living with her these last few years, so now it is fair if we spend most of the time living with you”.
61. After speaking to [X], [Y] rang me again and said, “[Mr BB] [the wife’s partner] went off at me and tried to get me to get in the car to drop me off at [the grandmother’s]. We’re going to have to live with you dad. Mum said ‘you can live with your father, but you have to go there now”. I said, “[Y], you know your mum is just being silly. She knows you guys can’t live at [the grandmother’s]. When I get my place you can live with me full-time. Otherwise, you have to live in [City Q]”. [Y] said, “No way. Ok dad. Hurry up and get your place and we’ll live with you”.
The wife does not deny working in City Q or seeking to enrol the children at a school in City Q. It is not in issue that the children did not attend a school in City Q and remained at schools in Sydney. I find the conversations relied upon by the husband accord with the wife’s evidence. They do not establish that the wife thereafter lived in City Q not Sydney. The conversation at paragraph 58 of the husband’s affidavit where Y is contended to have said that the wife has “been in [City Q] working” accords with the wife’s evidence that she does work in City Q. Neither child tells the husband that the wife is living in City Q or has been living in City Q not Sydney.
The wife did not deny that the children moved to live with the husband in early 2022. In that respect, she said:
34. [In early] 2022 I agreed that the boys spend some further time with [the husband] to make up for the time forgone by him in the school holidays. The [Suburb E] house repairs had commenced and the boys were to commence the school term at [P School] in late January 2022.
35. The boys returned to me each weekend or alternate weekend depending on their social calendar. In [one month], [Y] spent 22 nights in the care of his father which was, by far, the most time he has spent with [the husband].
36. At no time did I consider the [early 2022] arrangement to be a permanent change to the parenting arrangements. I would not consider any change in parenting arrangements whereby [the husband] was the primary carer under any circumstances given the events that took place during the course of the marriage and our long separation under one roof.
The husband relied on a text he received from Y to the following effect:
145.… On 25 April 2022, [Y] texted me saying “I actually can’t cope at mum’s anymore. It’s barely been a day and I can’t stay here ... You don’t understand. I hate it at mum’s, unless you take [X] with u I can’t stay here, he’s toxic and I can’t live with him, he’s constantly bugging me and being rude to me. I’m sick of it”. …
(Emphasis in original)
I find that the text clearly identifies as far as Y is concerned, that he regarded the Suburb O apartment as “mum’s”.
The husband referred to another conversation with Y as follows:
156.On or about 19 September 2022 I received a telephone call from [Y], and we had a discussion to the following effect (with him speaking in a bushed voice):
[Y]: “Dad, why is [X] here?”
I said, “He probably just wants to spend time with his mum”.
[Y]: “Yeah, well, I have to speak quietly, but overheard them talking, and mum was saying that she is looking for a bigger apartment in [Suburb AA], so we can all live together, and [X] can live a majority of time with [Mr BB]. Dad, he always puts me down. I don’t want him living here”.
I said, “You know with your mum it is all about money, and she is trying to do it to get more child support out of me”.
[Y]: “Dad, when can you get your own bigger place. I want to live with you more”.
I said, “I hope it will be early next year”.
(Emphasis in original)
Y’s statement of “mum was saying that she is looking for a bigger apartment in [Suburb AA], so we can all live together” is consistent with the wife’s case that she was living in Sydney and not in City Q.
At paragraph 173 of his affidavit, the husband recorded X leaving to spend the weekend with his mother at the Suburb AA apartment. X’s statement is consistent with the wife being present in Sydney.
The husband bears the onus of proof to establish that the wife lives in City Q. I accept the wife’s evidence that she stays overnight in City Q on occasions as well as spending weekends and school holidays with the children in City Q. I am not satisfied, considering all of the husband’s evidence, that it establishes that the wife has moved to City Q, that she lives there or that she no longer resides primarily with the children in Sydney. I prefer the wife’s evidence to the husband’s as to where she has been living. I am not satisfied that this amounts to a change in circumstances.
Y’s refusal to attend school.
The evidence reveals that subsequent to Y attending P School, his school attendance became problematic. The husband said:
142.I observed that throughout 2021, [Y’s] move from [U School] to [P School] had been difficult, in that he refused to go to his new school for most of the year. However, towards the end of the year he came to terms with the change and started attending more often. … I observed that in 2022, when under my care and control, before moving to [W School], [Y] had, initially, been attending school, on average 3-4 days per week, compared to 1-2 days per week under the wife’s care and control in 2021.
Despite the husband’s evidence, the attendance records suggest otherwise. In 2021, he was absent for more than 10 whole days in Term 1, more than 30 whole days in Term 2, zero whole days in Term 3 and more than 10 whole days in Term 4.
Term 1 2021, he appeared to be absent more than 10 whole days, in Term 2 more than 30 whole days, zero whole days in Term 3 and more than 10 whole days in Term 4 (Exhibit 1, p.347 (Annexure A42 of the husband’s affidavit)). In 2022, he was absent more than 15 whole days in Term 1 and more than 15 whole days in Term 2 (Exhibit 1, p.348 (Annexure A42 of the husband’s affidavit)).
In Term 1 and 2 2022, Y was, according to the husband, in his primary care. It is not apparent that there was any improvement in his attendance records while in the husband’s care.
What the records do demonstrate is that there has been a marked improvement in his school attendances in 2023. In Term 3 2022, his attendance rate was approximately 48.4 per cent and in Term 4 2002, it was approximately 44.4 per cent (Exhibit 1, p.337 (Annexure A40 of the husband’s affidavit)). In 2023, his attendance rate for Term 3 had increased to 77.2 per cent and 74.9 per cent in Term 4 (Exhibit 9). Contrary to the husband’s case, there has been a marked improvement in Y’s attendance at school while in the wife’s care. I am therefore not satisfied that this demonstrates a change in circumstances.
The husband’ accommodation
The husband submitted that he no longer lives with his parents and can now accommodate one of the children on a more regular basis. There is no doubt that the husband is now renting accommodation. However, he has always had the opportunity to rent accommodation and that in and of itself does not represent a change of circumstances. The husband received a property settlement of approximately $400,000. According to his Financial Statement, he retains funds in a bank account of $190,000. In those circumstances, I am satisfied that the husband has had sufficient funds to be able to rent accommodation since the making of the orders by Rees J. It is a matter for him to choose whether or not he rents accommodation sufficient to house himself and one child or house himself and two children. The number of bedrooms in the accommodation he chooses to rent is a matter entirely for him.
It is troubling, however, that he contended that he can now rent accommodation to accommodate one of the children on a more regular basis rather than renting accommodation that can accommodate both children on a more regular basis. I am not satisfied that this represents a change in circumstances. It was clearly contemplated by the terms of the parenting orders that he would have the children overnight and it was also contemplated by her Honour that the husband would possibly spend less time with the children that the orders provided. There has been no change in that respect.
The children’s views.
The husband contended that Y has said that he wants to live with him and spend more time with him and that each of the children will return to live with him when the proceedings are completed. The wife said that Y has said things to her that indicate that he does not want to spend overnight time with the husband. It is entirely possible in this highly conflictual family that the children have said things to each of their parents that they believe the other parent may want to hear.
In that respect, I note the wife recorded as follows:
42. Between February 2023 and May 2023, [the husband] has not requested that [Y] stay with him, in accordance with the parental orders. [Y] has stated to me that he “does not want to stay with Dad overnight”.
…
49. [Y] and [the husband] have had a difficult relationship for some years. [Y] has constantly expressed that he “doesn’t want to stay with Dad. I feel humiliated when Dad hits me”
(Emphasis in original)
Likewise, the husband recorded:
60. On 14 December 2021 at 4:47pm, I then telephoned my other son [X], and we had a conversation to the following effect, “[Y] has explained to me that your mum wants you to go live in [City Q]”. [X] said, “Yeah, she wants me to go to a school interview”. I said, “[X], do you want to live in [City Q]? You know I’ve been trying in Court to get what I’m entitled to, so I can have my own place, and we can live together more often”. He said, “No dad. I don't want to live in [City Q] or change schools. I like [P School]”. I said, “Ok, that’s all I need to know. Once I get my place you can live with me full-time, and we’ll work out arrangements so you can see your mum on holidays and weekends”. [X] said, “Yeah, we’ve been spending most of the time living with her these last few years, so now it is fair if we spend most of the time living with you”.
…
156.On or about 19 September 2022 I received a telephone call from [Y], and we had a discussion to the following effect (with him speaking in a bushed voice):
[Y]: “Dad, why is [X] here?”
I said, “He probably just wants to spend time with his mum”.
[Y]: “Yeah, well, I have to speak quietly, but overheard them talking, and mum was saying that she is looking for a bigger apartment in [Suburb AA], so we can all live together, and [X] can live a majority of time with [Mr BB]. Dad, he always puts me down. I don’t want him living here".
I said, “You know with your mum it is all about money, and she is trying to do it to get more child support out of me”.
[Y]: “Dad, when can you get your own bigger place. I want to live with you more”.
I said, “I hope it will be early next year”.
157.On or about 22 September 2022, when [X] was staying with me, I approached him in his bedroom, and we had a conversation to the following effect:
Me: “Look, I know your mum has spoken to you about the court proceedings, and told you that I want [Suburb E] sold, and she is trying to get you to live with [Mr BB] a majority of time, but you know I need a place to live, and can’t rent my whole life. I’m not going to talk too much about it, because she shouldn’t be putting you in the middle of it all. I just want you to remember the conversation we had, when you said that in recent years you’ve spent a majority of time with her, so it is only fair now that you and [Y] now spend a majority of time with me. I mean that is why I rented out the apartment, and I didn’t even want to”.
[X] said: “Yeah, I’m sick of being put in the middle of you two, dad”.
Me: “Yeah, your mum shouldn’t have done that. You know she is obsessed with money. The chances are that when the shit hits the fan, [Mr BB] will probably step in and help her to avoid [Suburb E] being sold”.
[X]: “Yeah, I think they've already had discussions about it”.
(As per the original) (Bold emphasis added)
Presumably, contrary to the purpose for which this evidence was adduced, these paragraphs demonstrate an inability on the husband’s part to refrain from denigrating the wife.
I am not confident I could place any weight on the views of these children expressed in circumstances where there is such high parental conflict including parental denigration. Where the parties elected to conduct the proceedings without expert evidence, I have no objective evidence that would enable me to assess the maturity of the children or whether the children’s views are an accurate portrayal of whom they wish to live with, or a view expressed to please or appease an aggrieved parent.
I am not satisfied that any statement made by the children as to where they may wish to live is probative of or demonstrative of a change of circumstances.
The living arrangements of the children
The husband contended that there has been a change in the living arrangements of both children.
The orders made by Rees J provided the children would live with the wife and spend time with the husband each alternate weekend, on Wednesday overnight in the other week, and for half of each school holidays and on special occasions. It is apparent from the evidence of both parties that from shortly after the orders were made, they were not complied with. This was envisaged by her Honour.
The husband sought to paint the picture that all changes were as a result of an agreement reached between the parties. I am not satisfied that is so in every respect. I am satisfied that the husband simply chose not to spend Wednesday nights with the children. He suggested it was as a result of agreement between he, the children, and the wife as it was impracticable. The wife denied that it was with her agreement. Likewise, the changeover location was varied such that it occurred at the wife’s home despite orders that it occur at a neutral location. I accept the thrust of the wife’s evidence that each of these changes to the orders was not as a result of an agreement, but one simply imposed on her by the husband which she acceded to because she wanted the children to spend time with him which she saw as a priority.
It is clear from the reasons of Rees J that if arrangements to see the children were not to the husband’s liking, then he would not see the children. I note the observations and somewhat prescient findings of Rees J to the following effect:
The husband’s likely involvement in the future parenting of the children.
140.After the husband moved out of [Suburb E] [in late] 2018, he did not spend regular time with the children.
141. On [the following day], there was the following text exchange:
Wife:Hi – can we organise when you would like the children this week end. Can I suggest that I drop off the kids to your mothers place tonight and you can have them tonight and tomorrow. I can pick them up tomorrow night or 10am sunday morning. Let me know what u think. I will have an overnight bag packed for them.
Husband:No. You took them from me, you can have them, for now. There is not enough beds/room here. I have stuff to do & my mother is not well. They can ring me whenever they want. Get the kids to ring me.
(As per the original)
143. The following exchange occurred on 2 January 2019:
Wife:When are you intending to take the boys this week. I can drop them off tomorrow and pick them up Saturday…
Husband:I don’t trust you anymore & I want to limit seeing you. I’ll take them to the beach 1 day but they can’t stay here overnight, as my mum is too fragile. I’ve only told you 1 million times. We’ll go to the beach tomorrow or Friday for a few hours only…
Wife:You have responsibilities towards these children. This is not about me. It is very disruptive when you only take them for a few hours. If you don’t want them during the holidays, that’s not a problem for me.
Husband:This is the situation you’ve created. Not what I’ve created. Deal with it. I can only take them for a few hours for the time being. I want them. When you say stuff like that you make me detest you even more than i already do…
(As per the original)
…
145.In the December/January school holidays, the children spent only one period of five nights with the husband when he took them to Melbourne. He returned the children to the wife on 1 January, one evening earlier than planned. On 5 January and 16 January 2020, they spent a day overnight with him.
146.The husband does not complain that the wife prevented him from spending time with the children during the holidays.
147.In cross-examination, the husband conceded that the wife had urged him to see more of the children but said that she did so “in an unrealistic way”. In February 2020 the husband spent a total of two days and two nights with the children.
148.When asked by counsel for the ICL whether he could have had the children regularly on weekends each Saturday and Sunday, returning them to the wife’s home to sleep, he said “[The wife] never suggested that as an option”. He agreed that the wife had consistently wanted the children to spend overnights with him but he said “It’s just not practical… It didn’t suit them or me”.
…
150.On the husband’s evidence, in March 2020, the husband spent one day overnight with Y.
151.Y was admitted to hospital [in early] 2020. X spent that night with the husband.
152.When the husband was interviewed at [K Health Service] [in early] 2020, it was his estimate that he had the children stay with him about once every three weeks.
153.After Y was discharged from hospital [three weeks later] the husband spent one period of two days and a night with Y and no time with X.
154.Y was readmitted [around one week later for a period of nearly three weeks]. During that period, X spent two nights with the husband.
155.In [mid] 2020, after Y was discharged, the husband had a full weekend with X; a day and a night with Y and a full weekend with both children.
156.In June 2020, the husband does not appear to have spent any overnight time with the children.
157.I accept that, since July 2020, the husband has spent more regular time with the children, however, that time has not been consistent. On 23 July 2020 the following exchange took place:
Wife: Are you taking the children this weekend?
The wife received no reply and messaged again the following day:
Wife:Can you turn your phone on and ring me as [Y] has been trying to get in touch with you
Husband:No, not this weekend, nor probably next. Too much on
158.In cross-examination he conceded that he had spent “far less time” with the children than he was entitled to do because the accommodation at his parents’ home was not adequate.
159.In a Financial Questionnaire completed by the husband on 20 November 2019 the husband stated:
The parenting orders which affect the children and I are critically linked to the property and any spousal maintenance orders as these orders affect the reasonable practicability of my spending equal time or significant and substantial time with my children.
160.When the husband had funds which he could have used to establish rented accommodate proximate to the children’s school in late 2019, he chose not to do so but bought a [vehicle].
161.The husband was asked in cross-examination whether he will exercise his allotted time with the children if he does not receive what he considers to be an adequate property settlement. His answer was that, in his own estimate, he needed between $600,000 and $700,000 to buy an apartment with the assistance of a mortgage […]. If he did not achieve that result, he said “It depends”.
162.The husband said on a number of occasions, and in submissions, that if he cannot afford to buy an apartment, he will not consider renting. When it was put to the husband in cross-examination that he could rent suitable accommodation, he said “Well that’s a matter for them”. The husband emphatically ruled out renting and said that he would remain living with his parents in [Suburb G] with the result that he would not be spending regular time with the children.
163.On the husband’s own evidence, the driving time from [Suburb G] where his parents live, to [Suburb E] is 30 to 40 minutes. He gave no satisfactory explanation for his failure to make arrangements to spend regular time with the children, even if not overnight.
164.There could be no confidence that the husband will have a significant and consistent role in the lives of the children, regardless of the orders which are made for him to spend time with them.
That pattern which was present before Rees J continued after the making of orders. I am satisfied that the husband simply dictated an arrangement that suited his convenience, and the wife accepted it because she wanted to avoid confrontation and wanted the children to see their father. There has been no change in the dynamic that existed pre the making of final orders.
I accept the wife’s evidence where she stated:
12. From the date of the Orders, [the husband] has not complied with the parenting changeover orders and would constantly come to my residence at [D Street, Suburb E] to either drop off the children or make an excuse that he had to drop off one of the children’s items. The changeover orders were of particular importance to me as [the husband’s] intimidating and harassing behaviour regularly took place at my residence. During the course of our very long separation under the same roof, I was subjected to intimidating, coercive and abusive behaviours by [the husband]. [The husband] had refused to pick up and drop off the children at [Suburb HH] Macdonald’s as provided in the interim court order or at the school as provided for in the final orders. [The husband] continued to come to the house to pick up the children and I have heard him tell the children that the parental court orders “are rubbish”.
I note in this respect the findings of Rees J to the following effect:
210.I have already detailed the allegations relating to family violence. Although there has been no incident since March 2020 when the husband called the wife a “whore” when returning the children to her, I have no confidence that his previous name calling will not be repeated or that he will refrain from coming into the wife’s home if he wants to.
I also accept the wife’s evidence where she stated:
9. I say that [the husband] has never complied with the parenting orders. [The husband] has never taken the boys on Wednesdays and the balance of time spent has been on an ad hoc basis at [the husband’s] discretion. From the date of the Orders, I say that [the husband] has spent time with the children initially in 2020 and most of 2021, approximately one weekend per month and rarely in school holiday time.
The wife’s evidence at paragraph 9 largely accords with the admissions of the husband in cross‑examination where he conceded in the period between the making of the orders on 16 October 2020 and 14 December 2021, he did not exercise time on a Wednesday night, that he only spent time during school terms for one weekend a month “and maybe less than that” and that he “probably spent less than half of school holidays”. In his affidavit, he contended that “[u]ntil around 21 January 2022 [the children] spent only about 14% of nights with [him]” (at paragraph 4).
In the period between December 2021 and a month before the hearing, the husband said X has spent approximately 80 per cent of the time with him. This is to be compared with the situation that existed prior to that date and to that which now exists, namely that X has returned to live with his mother.
In relation to Y, the husband’s evidence was that between 14 December 2021 and June 2022, Y lived primarily with him. Thereafter, between June and December 2022, Y only spent a handful of nights with him, while in 2023, he has only spent two periods of about seven days each with the husband. The wife disputed the extent of the husband’s time with Y in the first half of 2022 and asserted that he only spent one night in the second half of 2022. I am unable, given the paucity of cross-examination on the time arrangements in the first half of 2022, to make definitive findings. In circumstances where the husband’s time with Y in the 17 months since June 2022 has been as little as he contends, it is unnecessary to resolve the conflict on the evidence. What is clear, even on the husband’s case, is that over the period between the making of the orders in October 2020 and the hearing, Y has spent significantly less time with the husband than provided for in the orders. Her Honour contemplated that possibility. That is not a change in circumstances.
It is implicit from the wife’s evidence that she took no steps to seek the return of X to her care and that the children seemed to have moved between each of the parents in various living arrangements that are inconsistent with the existing orders. In circumstances where the orders permitted the parties to reach agreement about time arrangements different to those provided by the orders (Order 3(c) of the orders made 16 October 2020) and where both children are currently living with the wife, I am not satisfied that the husband has established that the living arrangements of the children subsequent to the making of the orders constitutes a change in circumstances.
For all of the above reasons, I am not satisfied that the husband has established a change of circumstances. That part of the husband’s application seeking parenting orders will be dismissed.
APPLICABLE LAW – SECTION 79A
The husband’s application pursuant to s 79A of the Act relies upon sub-sections (1)(a), (c) and (d).
The authorities make it clear that in determining an application under s 79A(1)(a), the Court must engage in the following four-step process:
(1)determine whether a ground, namely fraud, duress, suppression of evidence, the giving of false evidence (including a failure to disclose relevant information) or any other circumstances, has been established;
(2)consider whether such ground amounts to a miscarriage of justice;
(3)determine whether the Court should in the exercise of its discretion vary or set aside the order; and
(4)if the discretion is to be exercised, determine whether the Court should make another order under s 79 of the Act.
A ground pursuant to s 79A(1)(a) arises only in relation to circumstances that existed at the time the original s 79 order was made and not to circumstances that arise subsequently. In that respect, s 79A(1)(a) differs from s 79A(1)(b) – (d) which relate to circumstances subsequent to the making of the order.
The husband bears the onus of establishing the ground, whether there has been a miscarriage of justice and that the Court should exercise its discretion to vary and/or set aside the orders (Prowse & Prowse (1995) FLC 92-557).
The focus of the suppression of evidence must be on whether the evidence that was suppressed impugned the integrity of the Court process (see Lane & Lane (2016) FLC 93-699 (“Lane”)). In that respect, the Full Court observed as follows in Lane:
139.… suppression of evidence must “amount to wilful concealment of matters which it was [the party’s] duty to put to the Court” and that “the ground is not available to a party who simply fails to give relevant evidence either by choice or inadvertence …‘[t]o withhold facts is not to reveal them or suppress them’”.
(Footnotes omitted)
There must be some nexus between the asserted failure and the setting aside of an order. The Full Court in Barker & Barker (2007) 36 Fam LR 650 at [123] cited with approval the observations of Brandon LJ in Livesey v Jenkins [1985] AC 424 where his Lordship observed at 445–446:
… Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter or matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications being summarily dismissed, with costs against them …
Relevant to the consideration of the suppression of evidence ground are the observations of the Full Court in Rohde and Rohde (1984) FLC 91-592 to the following effect at 79,767:
… the withholding of material facts from the Court means a failure to adduce available material evidence or facts to the Court by the party who succeeds on the issue to which these facts are material. …
The husband also relied upon the provisions of s 79A(1)(c) which is to the following effect:
79A Setting aside of orders altering property interests
(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
…
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
It is clear from the section that the husband must establish that the wife has defaulted in carrying out an obligation imposed upon her by the s 79 order.
The husband also relied upon s 79A(1)(d) which is to the following effect:
79A Setting aside of orders altering property interests
(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
…
(d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
It is to be observed that the circumstances referred to in s 79A(1)(d) must be of an exceptional nature. In Simpson and Hamlin (1984) FLC 91-576 (“Simpson and Hamlin”), the Full Court observed as follows at 79,657–79,658:
So far as the first point is concerned, his Honour quite rightly, in our view, concluded that:
“The occurrence of a change in the responsibility for the daily care and control of children of a marriage, after the making of a property order under sec. 79 of the Family Law Act could not be held of itself to be an unusual circumstance. The ordinary vicissitudes of life coupled with the difficulties that parties to a marriage often experience in the task of restructuring their lives following the dissolution of their marriage and the division of their assets, and their obligations to the support of each other and the support, care and control of their children. frequently creates situations in which it is desirable having regard to the children’s welfare that such a change occurs.”
…
His Honour in our view stated correctly the law applicable on this point. What amounts to “exceptional circumstances” is very much a question of fact and degree. …
In Simpson and Hamlin, their Honours also referenced the judgment of Mason J (as he then was) in Taylor v Taylor (1979) 143 CLR 1, observing at 79,659:
… To paraphrase his Honour’s remarks: it is not sufficient that it appears that circumstances have arisen of an exceptional nature resulting in hardship to the applicant, the Court must consider in the exercise of its discretion whether that hardship is of such a serious nature and results in such inequity that it can only be rectified by the extreme step of setting aside or varying an existing order of the Court. …
DISCUSSION
Section 79A(1)(a) – Suppression of evidence/non-disclosure
The husband’s affidavit recorded the following in relation to his claim pursuant to s 79(1)(a):
5. [In early] 2021, the wife, with no consultation with me at all, disenrolled the children [X] and [Y] from [U School], and, enrolled them in the much less expensive [P School]. I have therefore filed in this matter an amended s79A(l)(a) of the Family Law Act 1975 application. This application is made on the grounds that I have suffered a miscarriage of justice, in that, before Justice Rees, the wife breached her duty of full and frank disclosure of her financial circumstances, and, suppressed evidence and relevant information, that she would not be able to pay the [U School] fees of the children, without significant ongoing contributions by me.
…
11. Her Honour then made a number of findings having regard to relevant matters in section 75(2) of the Act, which, relevantly, and most significantly included, those at [319]-[321], on the basis that the wife would continue to pay the children’s then [U School] fees, through to completion of their secondary schooling, which her Honour found represented “about 15 per cent of the net pool available for distribution”. Her Honour found “in all those circumstances, it is appropriate to make an adjustment in favour of the wife of 10 percent”. …
(Emphasis in original)
It would appear that the husband’s case in part proceeds upon an assumption that the 10 per cent adjustment made pursuant to s 75(2) of the Act was dependent upon findings that the children would remain at U School with the wife paying the fees. Such assumption misunderstands the basis upon which her Honour made a s 75(2) adjustment. A reading of the reasons discloses that her Honour took into account a number of matters including that the wife was in a probationary period of employment; that there was no certainty that the husband would continue to make a parenting contribution; that the wife would bear the majority of the parenting responsibility and that because of Y’s illness that responsibility and burden was exacerbated; that the husband would not make any significant contribution to the children’s financial care; and that the wife would pay the children’s school fees.
In the course of the husband’s cross-examination, he identified the factual contentions he asserted gave rise to a suppression of evidence. While he relied upon a suppression of evidence as a ground, he seemed to traverse assertions of non-disclosure. Accordingly, I will proceed upon an assumption that he relied on alternate grounds. The facts he asserted that gave rise to that grounds are four-fold, namely that:
(1)the wife did not disclose to Rees J that she had a debt to U School;
(2)the wife did not disclose to Rees J that she was unable to pay the school fees;
(3)the wife did not disclose to Rees J that she would be withdrawing the children from U School; and
(4)the husband signed the enrolment form for the children to attend U School on the understanding that the wife would be paying the school fees.
It is not in issue that the children were removed from U School by the wife in early 2021. Nor is it in issue that the school fees were in arrears at December 2020 in the sum of $39,837.18 (Exhibit 1, p.73 (husband’s affidavit, Annexure A3)). The husband agreed that there was no evidence as to the quantum of arrears at the time of hearing or judgment.
The wife agreed in cross-examination that she did not disclose to the Court that the school fees might be in arrears and said that the school had agreed, because of COVID-19, that parents could pay school fees by instalments.
She denied the proposition advanced by the husband that at the time of the hearing she was not in a financial position to continue to meet the school fees. She said that she had continued to make payment of the school fees throughout the 2020 year. She agreed with the husband’s question that she did not disclose that she would not be able to pay them because she believed at the time that she could.
The wife in her affidavit gave the following evidence:
64. Up to, including and subsequent to the final hearing of the matter, it was my intention to continue the education of the children at [U School].
65. In all the circumstances of COVID-19, [U School] offered parents suffering hardship the option of postponing payment 2020 school fees to 2021. Given that I was made redundant in 2020 and was suffering financially hardship, I took up the option.
66. In 2020, [the husband] garnished my bank account and redundancy payment in 2020, leaving me with almost nothing in my bank account, with no way to pay school fees and daily cost and financially responsible for [X] and [Y] who had significant medical needs at the time. It was an extremely stressful time for me.
67. Due to COVID 19 lockdowns in 2020, the federal government allowed access to superannuation funds, I withdrew the maximum amount from my superannuation fund of $20,000 to assist with paying bills, school fees and daily costs of maintaining the children.
68. In 2021, my income reduced from approximately $150,000.00 per annum to $105,000.00 per annum.
69. The annual [U School] fees for 2 children in 2021 was [over $60,000] per annum, representing 100% of my net income at that time.
70. My mortgage repayments following the settlement payment had increased significantly along with mounting legal bills that were not taken into account in the settlement process (approximately $100,000 for 2019/2022).
…
79. From 2020 to 2022, I paid $68,000 in [U School] fees in arrears and associated school costs.
80. From 2022 to 2023, I have paid a total additional $30,000 in schools fees and associated costs including uniforms, school devices and school extra-curricular activities […], in total $98,320.
I accept the wife’s evidence in these paragraphs, which was not the subject of challenge other than in respect of her intention that the children remain at U School.
The wife has paid the school fees including any arrears at the time of hearing. She has continued to meet the school fees subsequently. The husband has not paid any of the school fees. I note the wife’s unchallenged evidence in her affidavit that “[f]rom 2022 to 2023, I have paid a total additional $30,000 in schools fees and associated costs including uniforms, school devices and school extra-curricular activities […], in total $98,320” (at paragraph 80). This sum vastly exceeds the arrears.
The mere fact that the wife had a debt which she did not disclose is not (consistent with the authorities) sufficient in and of itself to establish that there had been a suppression of evidence or non-disclosure sufficient to attract the operation of s 79A(1)(a). To establish suppression of evidence, the husband must demonstrate that there had been a “wilful concealment” of matters which it was the wife’s duty to place before the Court. The ground is not established by a party who simply fails to give relevant evidence either by choice or inadvertence. The husband has failed to discharge the obligation the subsection and the authorities impose upon him. I am not satisfied that the failure to disclose the debt to the school was wilful as opposed to inadvertent, nor am I satisfied that at the time of the hearing or at any time up until judgment, the wife had formed the intention to remove the children from the school or that she knew she would not be able to meet the school fees but concealed that fact from the Court. In that latter respect, I note the wife’s unchallenged evidence that she actually paid the arrears of school fees. As to the issue of wilful as opposed to inadvertence, it was potentially to the wife’s advantage to have disclosed the debt in the determination of the pool rather than disadvantage, such that a more probable explanation is inadvertence.
I am also not satisfied that the failure to disclose the arrears was material, to the advantage of the wife or such that it would have made any substantial difference to the outcome. Justice Rees found the non-superannuation pool of assets to be $2,026,267 (at [290]). While there is no evidence as to the quantum of arrears at trial, the arrears in December 2020 represented approximately 1.9 per cent of the pool. The materiality and nexus between the suppression of the evidence and the miscarriage of justice is not evident.
For all of the above reasons, I am not satisfied that the husband has discharged the onus of proof to establish that there has been a suppression of evidence or non-disclosure of a material kind.
Section 79A(1)(c) – Default in carrying out an obligation imposed by a s 79 order
The basis of the husband’s application pursuant to s 79A(1)(c) appears to arise in the following context at p.16 and paragraph 67 of his affidavit:
(ii) Application on grounds under sections 79A(l)(c) & (d) of the Act: the wife’s default in carrying out the primary parenting obligation, which included providing the [Suburb E] home as the residence of the children; and just and equitable to set aside and make new s79 orders more generous to the [husband]; or to avoid hardship to the [husband] & children
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67. I say that, on the basis of the facts and evidence in paragraphs 19-22, and 57‑66 above, the wife has defaulted in carrying out the future parenting and child support contribution obligations, upon which property orders 14 & 15 made by Justice Rees were based, and which were imposed upon her by virtue of those orders. I say that in the above circumstances that have arisen as a result of that default, it is therefore just and equitable to set aside those orders and make other orders in substitution for those orders, pursuant to ss79A(1)(c) of the Family Law Act 1975. …
(As per the original)
Orders 14 required the wife to pay the husband a sum of money while Order 15 provided for a sale of property in the event of default. The husband did not contend that the wife had not complied with Order 14; rather, he asserted that the order carried with it an assumption that the wife would retain the home at Suburb E and would continue living in that home with the children and parent them in that home. That assumption he contended attracts the operation of the subsection.
The order contains no such obligation nor carries with it any such assumption. The wife is not in default of an order, or an obligation imposed by one.
The subsection requires the husband to establish a default in carrying out an obligation imposed by an order. No process of statutory interpretation can lead to the conclusion that the subsection implies that an order is to be construed by some unstated assumption. The plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 observed:
47.… the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. …
(Footnotes omitted)
The text of the statute is unambiguous; it could not be more transparent or clearly ascertainable. To construe otherwise would be to depart from the clear language of the statute. I reject the husband’s submissions in support of s 79(A)(1)(c).
Section 79A(1)(d) – Exceptional circumstances
The last limb of the husband’s case under s 79A relied upon s 79A(1)(d). The husband’s case in that respect is encapsulated in his affidavit to the following effect:
67.… I also say that in the abovementioned circumstances that have arisen since the making of the said orders 14 & 15, being circumstances of an exceptional nature relating to the care, welfare and development of the children; the children, and myself having caring responsibility for the children, as they are now either primarily living with me ([X]), or need to be ([Y]), in their best interests: will suffer hardship if the Court does not set orders 14 & 15 aside, and make the other orders sought by me in substitution for them, pursuant to ss79A(l)( d) of the Family Law Act 1975.
In submissions, the husband said that he relied upon the same five grounds he relied upon to establish a change in circumstances.
I am not satisfied that any of the grounds, whether individually or collectively, are circumstances of an exceptional nature. The first of the grounds does not provide a basis for the husband’s case in light of my finding that the wife is not living in City Q. It is hardly surprising nor exceptional that a child caught in the middle of bitter parental conflict may refuse to attend school. This is even less surprising when dealing with a child as vulnerable as Y who has in the past suffered from a mental health condition, been under the care of J Hospital and K Health Service, involved in physical confrontations with his brother and in trouble with the police. I note Rees J recorded the following in her judgment:
118. [In early] 2020 the [K Health Service] notes state:
[Y] presents as a sweet, articulate and pseudomature boy. He has a history of perfectionism. From today’s session we were given the impression the origins of [Y’s] illness are rooted in his parents [sic] separation and the lack of reliability/predictability he experiences in his relationship with his father.
…
120. [In early] 2020 [Y] was assessed at [K Health Service]. The notes record:
[Y] reported that he woke up one morning in January and “felt horrible”. “Felt I had nothing to look forward to”. He said that he had the image in his [mind] of being “fit and healthy”, but felt that it was a neverending process that he felt he may never achieve. …
Alongside [Y’s] difficulties with [disordered behaviour], he started to describe feeling depressed and anxious and started to exhibit verbal and physical aggression in relation to “small things” and was mainly directed at his mother. [Y’s] aggressive behaviour included aggression towards his mother and [X] and “trashing” the house (“smashing things in the kitchen” and “trashing” the bedrooms); often requiring [the wife] and [X] needing to restrain him until he calmed down. (can take 1-2 hours for [Y] to calm down); generally remorseful afterwards. Initially this occurred 1-2 times/week, but escalated to daily occurrences. In [early 2020], [the wife] was so concerned she telephoned the Police, whi [sic] were very helpful in calming the situation down and talking to [Y] about his behaviours. When [the wife] called the Police a second time within 24 hours, they suggested taking out an AVO against [Y]. [The wife] was reluctant to do so and consequently [the husband] offered to Have [sic] [Y] come stay with him for a week. Initially [Y] was well behaved, but eventually the situation deteriorated and he “trashed” his father’s bedroom. His parents then decided to take him to [the emergency department] for assessment due to their concerns about his mood, [disordered behaviour] and the frequency and high level of aggressive behaviour.
…
123.[In early] 2020 [Y] was admitted to hospital at [J Hospital]. The paediatric registrar wrote to [K Health Service] in the following terms:
Just to keep you in the loop, we have admitted [Y] today given further deterioration in his behaviour this week and ongoing weight loss. Mum had to call an ambulance on Tuesday because he was [engaging in disordered behaviour] and became short of breath. He was also aggressive and so police also attended. We saw him on Tuesday afternoon and then again today – mum is not really able to contain him at home. He’s [engaging in disordered behaviour] and aggressive towards her. She is really struggling…
126.[In mid] 2020 the progress notes from [J Hospital] referred to [Y] kicking and hitting his mother for bringing him to hospital and the wife reporting that [Y] had been more aggressive at home.
…
135.[Dr C] said that [disordered behaviour] has no magic cure, it is chronic and prone to relapse. She said that parents must put that child’s needs first “and not for three months, while the episode passes, for a lifetime”. She said that [disordered behaviour] has an impact for life so the parents needs to be there for the child for life.
…
139.[Dr C] said that children who have been exposed to high conflict are predisposed to mental health fragility. She said that although [X] has been avoidant of engaging with therapists the parents need to be vigilant.
I otherwise note that Y’s school attendance has improved significantly. I am not satisfied in light of the findings of Rees J that Y’s poor record of school attendance is an exceptional circumstance.
It would appear the husband obtained rental accommodation in early 2022. There is nothing exceptional about the husband moving out of his parents’ home and utilising his financial resources to rent accommodation for himself and his sons. Nor is there anything exceptional about children saying they want to live with or spend more time with the other parent. Justice Rees recorded at length in her judgment each of the children saying they wanted to spend more time with their father. I note my earlier findings as to the weight I could place on statements by the children as to where they want to live.
In relation to the husband’s assertion as to a change in the children’s living arrangements, I refer to the findings above. I am also mindful of the observations of the Full Court in Simpson & Hamlin. Arrangements in relation to children always have a degree of fluidity. I also have regard to the fact that the husband has spent significantly less time with Y than contemplated by the orders and in those circumstances, the wife has assumed a considerably greater share of the care of Y. In relation to X, even on the husband’s case where he says X has spent approximately 80 per cent of his time with the husband since December 2021 until approximately a month prior to the hearing, it merely represents a reversal of the period up until January 2022 when the husband says he only spent about 14 per cent of the nights with both children. I note that both children are now living with the wife and in those circumstances, the primary caring arrangements for the children reflect the position ordered by Rees J. There is nothing exceptional about the children’s living arrangements.
I am not satisfied that the husband has established that circumstances have arisen since the orders were made of an exceptional nature relating to the care welfare and development of either or both of the children, nor am I satisfied that the husband would suffer any hardship if the orders were not set aside.
I am not satisfied that the husband has established a ground pursuant to s 79A.
CONCLUSION
For the above reasons, the husband’s Further Amended Initiating Application filed 5 December 2022 will be dismissed.
I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 18 December 2023
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