Adanti and Coli
[2020] FamCA 266
•17 March 2020
FAMILY COURT OF AUSTRALIA
| ADANTI & COLI | [2020] FamCA 266 |
| FAMILY LAW – CHILDREN & PROPERTY Failure by Respondent to engage in the trial – Respondent resides in Country D and has been accorded procedural fairness – Application by wife to proceed on an undefended basis – consideration of wife’s application for sole parental responsibility , parenting orders for the children to live with her in Australia and orders to enable the wife to obtain passports for the children without the husband’s consent – Application for orders for property settlement where Husband did not participate in the trial and wife alleges failure to adequately disclose asset pool – Consideration of contributions and future needs – Orders made in accordance with wife’s proposals. |
| Family Law Act 1975 (Cth) ss. 60CC, 61DA, 75(2), 79 |
| In the Marriage of Hickey [2003] FamCA 395 McCall & Clark [2009] FamCAFC 92 Mazorski & Albright [2007] FamCA 520 Stanford v Stanford [2012] HCA 52 |
| APPLICANT: | Ms Adanti |
| RESPONDENT: | Mr Coli |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 5650 | of | 2017 |
| DATE DELIVERED: | 17 March 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Williams J |
| HEARING DATE: | 23 April 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McLeod |
| SOLICITOR FOR THE APPLICANT: | Ebejer and Associates |
| THE RESPONDENT: | No Appearance |
| SOLICITOR FOR THE RESPONDENT: | N /A |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Agresta |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
The Applicant mother be is granted leave to proceed on an undefended basis.
Parenting Orders
The wife have sole parental responsibility for the children C born … 2012 and B born … 2009 (“the children”).
The children live with the wife.
The children spend time and communicate with the father as agreed between the mother and the father, with any time to take place in Australia unless otherwise agreed.
The Husband and Wife and their servants and agents be and are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other in the presence or hearing of the children; and
(b)Questioning the children, or either of them, about their wishes or anything done or time spend with the other parent; and
(c)Discussing these court proceedings or any of the evidence with the children, or within their hearing or presence or leaving any court documents, orders or legal papers where they might see and read them, in any form both hard copy, electronic or on any computer, phone or tablet advice.
The Wife authorise any school that the children attend to provide the Husband with school reports, photos and notices that all parents receive at his own expense, if any.
The Husband and Wife be at liberty to attend all school functions, social and sporting activities to which parents are normally invited.
The Husband and Wife keep each other informed of any significant injury or illness suffered by the children when in their care, and as soon as practicable advise them of:
(a)The nature of the significant injury or illness;
(b)The names of all the relevant treating medical and like practitioners;
(c)The treatment given to date and any information in his or her possession about the diagnosis; and
(d)That either parent be at liberty to contact treating medical and like practitioners to seek further information and advice as required.
The children be removed from the Airport Watch List.
The father be restrained by injunction from removing the children from the Commonwealth of Australia.
The mother is permitted to obtain the children’s passport pursuant to section 11 of the Australia Passports Act 2005 without the father’s consent.
The mother be permitted to take the children from the Commonwealth of Australia.
Property
Within 7 days of the date of this order the Applicant Ms Adanti do all acts and things and sign all documents as are necessary to release the funds held in the Ebejer & Associates Lawyers trust account on behalf of parties, being approximately $124,000 plus any interest due, to the Applicant Ms Adanti.
Unless otherwise specified in these Orders except for the purposes of enforcing payment of any money due under these or any subsequent Orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders including any jewellery, furniture, furnishings, shares and motor vehicles;
(b)Monies standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held;
(c)Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other;
(d)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order; and
(e)If either the applicant or respondent defaults in compliance with their obligations in these Orders, then the party who is not in default shall be entitled to immediately thereafter commence proceedings against the other and shall rely on these Orders for an application for costs of the proceedings.
These Orders be binding upon the parties and their heirs, executors, administrators, assigns and legal representatives and are to continue in full force and effect notwithstanding the death of either party.
The wife forthwith serve on the husband a sealed copy of these orders, by emailing a copy to the husband at his email address recorded on his affidavit which he attempted to file on 16 March 2020.
All extant applications otherwise dismissed.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adanti & Coli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 5650 of 2017
| Ms Adanti |
Applicant
And
| Mr Coli |
Respondent
And
| Independent Childrens Lawyer |
REASONS FOR JUDGMENT
INTRODUCTION
This is an application for:
a)Parenting orders for the two children of the marriage, B born … 2009 and C born ... 2012 (“the children”).
b)Property adjustment pursuant to s.79 of the Family Law Act 1975 (“the Act”); and
BACKGROUND
Relationship History
The applicant wife is aged 32 years. The respondent husband is aged 54 years. The parties commenced cohabitation in 2007 and married on … 2008. There are two children of the marriage, B born … 2009 and C born … 2012.
Issues in dispute
The following issues were in dispute in the proceedings:
Parenting
a)Parental responsibility for the children;
b)Whether the two children should remain living with their mother in Australia;
c)Whether the children should live with the husband in Country D;
Property
d)Whether an order for property settlement should be made in accordance with the wife’s proposals, as the husband did not engage in the final proceeding.
Synopsis
In relation to parenting, I have determined it is appropriate to make orders in accordance with the wife’s proposal, namely that she have sole parental responsibility for the children, they live with her and that the husband’s time be as agreed between the parents with such time to take place in Australia, unless otherwise agreed.
In relation to property, I have determined to make orders in accordance with the proposal of the wife, namely that she receive:
i)the funds of $124,000 together with any accrued interest, which were in the trust account of her solicitors;
ii)her property in Country D;
and otherwise each of the parties retain their respective property.
The reasons for my determination follow.
Background
The parties commenced cohabitation in 2007, when the wife was 19 years old and had just finished high school. At that time the husband was aged 42 years.
They married in Suburb R, Victoria on … 2008.
On … 2009, their first child B was born when the wife was aged 21.
In 2010, they purchased a house at F Street, Suburb E, which was registered in both names and was the family home.
Between 2007 and 2011, the parties mostly lived in Australia, prior to the husband starting a new business in Country D in 2011.
Their second child, C was born in Australia on … 2012. After her birth the parties lived between Country D and Australia.
In early 2012, the wife was granted permanent residency in Australia.
The parties separated on 1 July 2015 and lived separated under the same roof until July 2016. This occurred in Country D. The husband left the former family home in July 2016, having married his new wife in … 2016.
In November 2016 the wife and B travelled to Australia, with C remaining in Country D with the husband. The wife asserts that if she did not agree to C remaining in Country D, the husband threatened not to pay for the tickets and to enable her and B to travel to Australia.
On 23 December 2016, the wife and B arrived in Australia and thereafter B commenced school. They commenced living in the Suburb E property, with the husband also staying there when the husband travelled to Australia.
On 9 June 2017, the wife filed an application in this court seeking the return of C to Australia.
The matter was eventually determined by Her Honour Justice Macmillan on 18 July 2017, when orders were made providing:
i)the husband and children to be placed on the watchlist;
ii)the husband to return C to Australia;
iii)C to live with the husband in Australia;
iv)the family to attend a S11 F assessment on 25 July 2017.
On 28 July 2017, he husband filed an appeal against the orders of Justice Macmillan and on 31 July 2017 filed an application for a stay of Her Honour’s orders pending the hearing and determination of his appeal.
The matter was listed before Senior Registrar Fitzgibbon on 2 August 2017, when orders were made by consent, including that both parties sign all documents to obtain an Australian and Country D passport for C.
On 24 November 2017, the wife filed an urgent application seeking enforcement of the orders of 2 August 2017 and further orders to facilitate the return of C to Australia.
On 30 November 2017, Justice Macmillan made orders that the husband and wife to arrange for the issue of an emergency passport for C.
On 22 December 2017, Justice Macmillan made orders dismissing the husband’s application for a stay order and that C be returned to Australia by 16 February 2018.
On 27 February 2018, orders were made by consent by Senior Registrar Field that B live with the wife and C live with the husband and spend time with her mother.
On 3 April 2018, the parties attended upon a family consultant for the purpose of an assessment. The assessment recommended that both children live in Australia with the wife and that they remain on the watchlist.
On 9 May 2018, the Senior Registrar made orders providing for the children to live with the wife in Australia and for the husband to spend time with the children in Australia and for telephone time to occur each Wednesday and Friday. The wife seeks final orders in accordance with the orders of 9 May 2018.
On 1 August 2018, the husband’s appeal filed 28 July 2017 was deemed to have been abandoned.
From August 2017, onwards the parties have been involved in a dispute about disclosure and provision of documentation. The wife asserts that the husband may not have sold Company M, as claimed by him and alleges that the husband has never provided documentary evidence of the dispersal of the funds from the alleged sale. The wife asserts that as at the date of her swearing a trial affidavit, the husband has still failed to provide adequate financial disclosure.
In relation to financial matters, the wife asserts that in September or October 2016 the husband made her sign documents to sell land in City P, Country D for approximately $700,000 AUD. In his Financial Statement affirmed 17 July 2017 the husband deposes to having disposed of the land in the 12 months prior to signing the statement and that he received approximately $700,000 AUD proceeds of sale.
In early September 2018, the wife asserts that she discovered the husband was advertising for sale, a property situated at Q Street in City P, Country D, which was the parties’ former matrimonial home, purchased in the husband’s sole name in 2012. The husband asserts that the property and a warehouse were sold by a bank as mortgagee. The wife asserts that neither property has been sold and the husband has failed to provide any evidence of sale of the properties.
In June 2014, the parties purchased an apartment in City P, Country D, with the wife as sole registered proprietor.
The orders made on 2 August 2017 provide for the husband to pay spousal maintenance to the wife of $365 per week. The wife received some payments however as at the date of her Trial Affidavit the sum of $47,085 was outstanding. Additionally, paragraph 5 of the orders made 2 August 2017 provided for the husband to pay the wife $20,000, by way of two instalments. Both sums remain outstanding.
On 18 November 2017, the Suburb E Property was placed on the market for sale and was sold on 16 December 2017. The net proceeds of sale are in the wife’s solicitor’s trust account.
Procedural History
As the wife seeks orders in the absence of the husband, I will address the relevant procedural history.
On 19 September 2019, procedural orders were made allocating a date for trial and filing of material by both parties. The procedural orders provide for either party to seek leave to proceed undefended in the event of non-compliance by the other party.
The husband was served with notice of the hearing via email addressed to … by the wife’s solicitors. That is the email address the husband has used to communicate with the court
In accordance with the procedural orders, the wife filed her trial affidavit on 31 October 2019 and a Case Outline on 10 March 2020. The husband was served with a copy of the wife’s trial affidavit on 31 October 2019. That affidavit includes a statement that the wife would be seeking leave to proceed undefended if the husband failed to comply with the procedural orders.
The husband did not file material in accordance with the procedural orders.
On 10 March 2020, the wife filed an Application in a Case and an affidavit in support, seeking leave to proceed with the trial on an undefended basis. An affidavit of service on the husband of the application in case and affidavit was filed on 12 March 2020. On 16 March 2020, the day before the scheduled defended hearing, the husband filed a Response to an Application in Case, and attempted to file an affidavit which was neither signed, sworn or affirmed. The affidavit was subsequently redacted from Casetrack.
The husband’s Response to the Application in a Case sought that the court make an orders as follows:
i)that C and B live with the husband in Country D;
ii)that the wife pay the husband’s Australian Tax Office debts relating to the husband’s businesses and that any surplus funds be paid to the applicant.
At the commencement of the hearing, the husband was called outside court and there was no response to the call.
I am of the view that the husband:
i)has been served with all relevant documents filed by the wife;
ii)been advised of the proposed final hearing date;
iii)failed to comply with procedural orders for filing of documents; and
iv)had ample opportunity to participate in the proceeding.
I am therefore satisfied that the husband has been accorded procedural fairness, the wife’s application for leave to proceed on an undefended basis should be granted and I intend to make orders accordingly.
The proposals of the parties
The wife’s proposal
The orders which the wife sought from the court are set out in the minute of proposed orders dated 17 March 2020.
They are in summary as follows:
Parenting
i)the wife have sole parental responsibility for the children and they live with her;
ii)the children spend time with the husband as agreed between the parties with any time to take place in Australia subject to any contrary agreement;
iii)various injunctions pertaining to both parents;
iv)the husband to receive copies of the children’s school reports and both parents be at liberty to attend all school functions; the wife to advise the husband in the event of any significant injury or illness to the children;
v)the children be removed from the airport watch list;
vi)the husband be restrained from removing the children from Australia;
vii)the wife be permitted to obtain a passport for the children without the father’s consent;
viii)the wife be permitted to take the children from Australia.
Property
ix)the sum of $124,000 plus any interest, in the trust account of the wife’s solicitors, be paid to the wife;
x)the parties otherwise retain their respective assets and be liable for their respective liabilities.
Documents relied upon by the wife:
The applicant relied upon the following documents:
i)Further Amended Initiating Application filed 6 September 2019;
ii)Affidavit of the wife filed 31 October 2019;
iii)Financial Statement of the wife filed 31 October 2019;
iv)Case outline filed 10 March 2020
The husband’s proposal
The husband did not participate in the final proceedings, however the orders sought by him in the response document may be summarised as follows:
i)both children live with him in Country D;
ii)the funds in the wife’s trust account be applied to pay the husband’s business liabilities to the Australian taxation office, and any residual money be paid to the applicant.
Documents relied upon by the husband
The husband filed a Response to an Application in Case on 16 March 2020 and attempted to file an affidavit on the same day, which was not signed, sworn or affirmed. The affidavit was redacted from Casetrack.
Evidence
The standard of proof in this case is the balance of probabilities (s.140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(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; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
Parenting Statutory Pathway
Part VII of the Family Law Act 1975 (Cth.) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
In McCall & Clark [2009] FamCAFC 92 (“McCall & Clark”) at [109], the Full Court said:
The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
At [117] of McCall & Clark, the Full Court said:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].
The Full Court said there were differing possible approaches to s.60CC(2)(a) of the Act. The Court preferred the “prospective approach”, although the “present relationship approach” may also be relevant.
At [118] of McCall & Clark, the Full Court defined both the “present relationship approach” and “prospective approach” as follows:
…
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
…
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”). In this dispute I prefer the prospective approach.
In Mazorski & Albright [2007] FamCA 520, Brown J at paragraph [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not strictly a quantitative one”.
The husband has not seen the two children since 2 July 2018 and there is no evidence as to his current relationship with the children. There have also been difficulties with telephone contact between the husband and the children.
I accept :
i)prior to the wife leaving Country D, she was the principal carer of the children and that they lived in the same household as the husband;
ii)the husband unilaterally kept C in Country D, without the wife’s consent, prior to returning her to Australia, pursuant to the orders of Justice Macmillan;
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse
The wife asserts that the relevant risks are:
i)if the children returned to Country D to spend time with the husband, he would not comply with the Australian court orders to return the children;
ii)the husband does not have any insight into the effect on the children of separating them from their mother or indeed of separating them from each other;
iii)the husband’s inability to encourage and facilitate a relationship between the wife and C, as referred to in the s.11F report of 3 April 2018.
The husband has historically asserted that the wife is a risk to the children because of her temper and aggressive behaviour towards him and the children, her emotional instability and immigration status. There was no evidence that the final hearing, which could lead me to determine that the wife poses a risk to the children.
Additional Considerations
The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The wife asserts that at the s.11F interview on 26 July 2017, B expressed reluctance to spend time with the husband as he was fearful of being separated from his mother. Due to the wife’s encouragement of the relationship, he was eventually happy to spend time with his father.
In relation to C, the wife’s evidence is that she was happy to see her mother after she had been separated from her in December 2017. At the visit on 24 February 2018, C was happy to spend time with her mother and was delighted to see her after such a long absence.
Subsequent to the orders of 27 February 2018, which provided for both children to live with their mother, the wife’s evidence is that C’s demeanour towards her changed prior to the s.11F assessment interviews, however she is now thriving in the wife’s care. She attributes the child’s change of attitude to the husband’s adverse influence.
There is no other direct evidence of the children’s views, nor their level of maturity.
The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
On 9 May 2018, orders were made for the children to live with the wife. The father spent time with the children in Australia until 2 July 2018.
The wife’s evidence is that both children are happy, content in her care and doing well, albeit C behaved in a problematic manner when she first went to live with her mother.
There have been problems with telephone communication between the children and the husband, and there is no evidence as to the current nature of the children’s relationship with the husband.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
There is a dispute between the parties about the lack of success of telephone communication. The mother’s evidence is that the husband has been attempting to undermine her relationship with the children and has been rude and abusive towards her.
The husband has historically asserted that the wife has attempted to interfere with his telephone time with the children, when he has sought to speak to them.
There is no dispute that he has not attempted to see the children in Australia since July 2018, despite orders in place which enabled him to do so.
As there are obvious communication problems between the parents, there has been little discussion in relation to decision-making pertaining to long-term issues for the children.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The wife is responsible for the financial support of the children.
Her evidence is that the husband is in arrears of child support to the extent of approximately $29,562.03.
The wife is unlikely to receive any child support or financial support from the husband.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
As I intended to make orders in accordance with the proposal of the wife, the children will remain living in Australia with her and will spend time with the husband in Australia, as agreed between the parties, should he travel to Australia to do so.
The children’s stable living arrangements and circumstances, which have been in place since May 2018, will continue. It is entirely up to the husband whether he intends to travel to Australia to see if the children.
The orders proposed by the mother do not effect any change in the children’s living arrangements
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There are obvious practical difficulties and expense with the husband spending face to face time with the children.
The husband lives in Country D and will need to travel to Australia to spend time with the children. The wife’s evidence is that the husband is of substantial means and would have the financial capacity to travel to Australia, if he were inclined to do so.
Apart from the high level of conflict between the parents, and the allegations of abuse and aggressive behaviour levelled by both parents against the other, there are no practicable difficulties or expenses for the children to electronically communicate with the husband.
The capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The wife has cared for the children in her household since May 2018 and since July 2018 without any assistance from the husband. There was no evidence that the wife was unable to provide for the children’s emotional and intellectual needs.
The wife’s evidence is that the children are progressing well and are settled and happy in her care.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Both parents are of Country D heritage and have spent considerable time in Country D with the children. Both are capable of ensuring the children have a connection with their cultural heritage.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
As previously stated in these reasons, the wife has cared for the children since May 2018 and has demonstrated an appropriate attitude towards the children and to the responsibilities of parenthood.
The husband has not availed himself of the opportunity to spend face-to-face time with the children in Australia since July 2018, which is demonstrative of his lack of parental responsibility towards the children. There has been no explanation offered by the husband why he has failed to spend time with the children in Australia, given that he has historically lived in Australia for extended periods of time.
Any family violence involving the child or a member of the child’s family
Each of the parents assert that the other is controlling, aggressive, and coercive towards the other parent and the children.
The husband’s lack of participation in the final hearing is inconsistent with his allegations that the wife is angry and aggressive towards the children and that they may be at risk in her care.
If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
There are no current intervention orders between the parties.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is obviously in the children’s best interests that there be an end to litigation between the parties, which has been continuing since these proceedings were issued in 2017.
In my view the orders least likely to lead to further proceedings and stability for the children’s living arrangements, are those proposed by the wife.
Any other fact or circumstance that the court thinks is relevant
I have referred to all relevant considerations in these reasons.
Conclusion as to living arrangements
I am of the view that in the best interests of the children are served by the children remaining in Australia living with their mother, and for orders to be made in accordance with her proposals.
It is an almost impossible task to assess historical allegations levelled by the father against the mother in terms of her parental capacity and her capacity to foster a meaningful relationship with the children, when he has failed to adduce any current evidence or indeed participate in the final hearing.
It would be preferable for the children to have a stable and constant relationship with their father, provided such time occurs in Australia. This is because of the husband’s historical and reckless disregard for court orders pertaining to the children and financial matters. I can have no certainty that he would comply with any orders for the children to spend time with him in Country D, which I note he has not sought other than that the children live with him.
The risk which the wife alleges against the husband can be ameliorated by orders for the husband’s time with the children to take place in Australia it is entirely a matter for the husband if he wishes to travel to Australia, as he has done so in the past, and spend time with his children. It is up to him to prioritise for the children in his life.
The wife has had the sole primary care of the children since May 2018 and there has been no objective evidence, other than the children are doing well and have thrived in her care .
The husband did not provide any evidence as to the circumstances of the children if I made orders in accordance with those sought by him that the children returned to Country D. I do not have any evidence about the most basic of practicalities, such as where they would live, who else would live in the household, where they would go to school, what time would be proposed for them to spend with their mother nor the immense emotional impact of the children being removed from their mother’s care and placed overseas.
As I have noted earlier in these reasons, I am satisfied that the husband was aware of the final hearing and the procedural orders which were made some months prior to the hearing, and had the opportunity to participate in the proceedings. He did not do so and chose not to file affidavits within the requisite timeframe, nor indeed to file any signed and sworn affidavits at all.
I am confident that the wife will continue to care for the children in an appropriate manner and provide solely for their financial support. I do not have any confidence that the husband will pay any arrears of child support nor contribute to the financial care of the children in the future.
If the husband is diligent, he can choose to travel to Australia to see the children, and he can most certainly conduct himself in an appropriate, polite and courteous manner if he wishes to communicate with the children electronically.
Parental Responsibility
Section 61DA provides, when making a parenting order in relation to a child, 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. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The wife seeks an order for sole parental responsibility. Although she did not specifically submit, the reasons for such an order are self-evident. They are as follows:
i)the husband resides in Country D and has not seen the children since July 2018;
ii)the husband and wife do not have an acceptable level of communication;
iii)the wife should be in a position, as sole carer for the children, of having the legal imprimatur to make long-term decisions on behalf of the children.
The wife seeks orders in relation to obtaining passports for the children, which would be difficult and almost impossible without the husband’s consent, in the absence of an order for sole parental responsibility and specific orders from this court.
There was no evidence adduced by the husband as to why order should not be made committing the wife to obtained passports for the children without having to obtain the father’s consent.
As sole carer, should the wife wish to obtain passports for the children, she should be empowered to do so without any constraint. I accordingly will make orders providing for sole parental responsibility to be vested in the wife and for the wife to obtain passports for the children, notwithstanding the husband’s lack of consent.
PROPERTY RELEVANT LEGISLATION
Property proceedings between parties to the marriage are governed by the provisions of s.79 of the Family Law Act 1975.
Section 79(1) of the Act provides that the court may make such orders as it considers appropriate altering the interests of the parties in the property.
Section 79(2) provides as follows:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in property, s.79(4) of the Act sets out the matters which the court must take into account when considering what order (if any) should be made.
That section provides as follows:
Section 79(4): In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
Section 79(4)(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
Section 79(4)(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
Section 79(4)(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
Section 79(4)(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
Section 79(4)(e) the matters referred to in subsection 75(2) so far as they are relevant; and
Section 79(4)(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
Section 79(4)(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Prior to the decision of the High Court in Stanford v Stanford [2012] HCA 52, the preferred approach to determine property matters was set out by the Full Court in the matter of In the Marriage of Hickey [2003] FamCA 395.
The approach, as set out in Hickey (supra) may be summarised as follows. Firstly, the court should make findings as to the identity and value of the property pool. Secondly, the court should determine the contributions of the parties both direct and indirect, including financial and non-financial contributions and then determine the contribution based entitlements of each of the parties; as a percentage of the value of the property of the parties. Thirdly, the court should determine whether any further adjustment should be made to the contribution based entitlements of the parties, after giving consideration to the relevant matters referred to in s.75(2) of the Act. Fourthly, the court should consider the effect of those findings and decide what order for division of property is just and equitable.
In Stanford (supra) the High Court noted that s.79(1) enables the court to make such orders as it considers appropriate. However, prior to making any orders for the adjustment of parties interests in property, the court must first determine whether it is just and equitable to make any property orders, or to alter the parties interests in property.
The High Court stated in Stanford at [37]:
[37] First, it is necessary to begin consideration of whether it is just and equitable to make property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property……The question posed by s. 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
The High Court further stated at [42] that in most cases:
[42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
In summary, in the majority of matters the decision as to whether or not it is just and equitable for the Court to make property orders is resolved by the breakdown of the marital relationship and the mutual applications of the parties to the court for orders altering their respective property interests.
Is it just and equitable to alter the parties’ property interests?
In this matter the parties have separated and the wife has made an application to the court seeking orders altering their respective property interests. The husband has filed a response seeking distribution of the funds in trust.
The parties are no longer living in a marital relationship, and as stated at paragraph [42] of Stanford (supra), there will not “thereafter be the common use of property by the husband and the wife”.
I am satisfied that it is just and equitable to alter the parties’ property interests.
Having satisfied myself that it is just and equitable to make an order altering the interests of the parties in the property, the approach and considerations I must make are as follows:
a)Attribute value to the assets comprising the property pool;
b)Identify and give weight to the various contributions of each of the parties as set out in s.79(4) (a) – (c) and make an assessment as to the entitlements of the parties based on their respective contribution;
c)Identify the relevant considerations as set out in s.79(4)(d) – (g), including the matters set out in s.75(2) so far as they are relevant, and then decide whether any further adjustment is appropriate;
d)Consider whether the proposed orders are equitable.
THE PARTIES’ EXISTING INTERESTS IN PROPERTY
The wife’s Outline of Case document filed 10 March 2020 lists the assets and liabilities she asserts comprise the asset pool.
Those assets and liabilities are as follows:
Valuation Proceeds of sale of family home in trust $124,001.15 City P apartment registered in the wife’s name in June 2014 $60,000 (E) Property located at Q Street, City P, Country D $800,000 Husband’s car – Motor Vehicle 1 $45,000 Wife’s car – Motor Vehicle 2 $13,000 Proceeds of sale of Company M $388,000 Company M stock $150,000 Husband’s pension business interests $NK Warehouse located in City P $650,000 Proceeds of sale of land in City P $700,000 Funds husband’s bank accounts NK Funds in wife’s bank accounts E$9,670 Liabilities Q Street mortgage $350,000 Payment outstanding for wife’s apartment in City P $10,000 Warehouse at City P mortgage $250,000 Husband’s business liabilities to ATO $ NK
Net assets $NK Superannuation Wife $47,473.75 Husband $NK Net Assets including superannuation $NK
There was no evidence provided by the husband about the assets and liabilities comprising the asset pool.
At paragraphs 54 to 69 of the wife’s trial affidavit, she deposes to the difficulties she has incurred in obtaining disclosure and relevant documents from the husband. This has resulted in expensive and protracted proceedings for the wife. The wife asserts that the husband has embarked on a course of deliberate financial non-disclosure, to exhaust the wife’s financial capacity to pursue the current application.
By way of example the wife asserts:
i)she has not been provided with the documentary evidence of the disposition of the alleged proceeds of sale of Company M, which was a business in Australia run by the husband;
ii)the husband has failed to disclose that he owns a warehouse in Country D;
iii)the husband has failed to account or provide evidence of the husband’s sale of properties in Country D.
Due to the husband’s non-disclosure and nonparticipation in the final hearing, it is impossible for me to make any accurate determination of the current asset pool of the parties, other than to accept the wife’s uncontested evidence of the relevant assets and liabilities, which are set out in paragraph 127 hereof.
CONTRIBUTIONS
Initial contributions, contributions during the marriage and disposal of properties
The husband did not present any evidence about financial matters and contributions, and accordingly the wife’s evidence is unchallenged.
According to the wife:
a)she did not have any significant assets as at the date of cohabitation as she was 19 years old. The husband had an interest in a shop in Suburb S and a 10% interest in Company M. He also had debts which she is unable to particularise;
b)the husband’s businesses became very successful, during the relationship which culminated in him purchasing the whole interest of Company M. He also acquired interests in two other businesses, J Pty Ltd and Company N;
c)at the time of commencement of proceedings, the husband owned three businesses, one in Country D, Company N, a importation business in Australia, J Pty Ltd and Company M, located in Melbourne;
d)since the proceedings commenced, the husband has started a new manufacturing company in Country D;
e)the wife worked in Company M from time to time and is aware that the husband took over the business from his other partners in 2011 and that it was a very successful business generating approximately $300,000 per month in sales;
f)the wife does not accept the husband’s assertions of that business having collapsed and asserts that his lifestyle indicates the contrary;
g)the husband has failed to produce satisfactory documents pertaining to the sale of Company M, other than a contract of sale which she alleges is deficient;
h)in September or October 2016 the husband sold property in City P in Country D for $700,000 which he retained, and which he referred to in his Statement of Financial Circumstances affirmed 17 July 2017;
i)the husband ostensibly sold two further properties in Country D, namely a block at Q Street and a warehouse, however the wife does not accept that the properties have been sold;
j)the husband was employed throughout the marriage;
k)the wife was the primary parent and homemaker during the marriage prior to her leaving Country D in December 2016.
Contributions post-separation
l)the wife has remained the sole care for B and as at May 2018 she again resumed a sole care of C;
m)the husband has not met his commitments pursuant to orders of this court and the wife has had to provide financially for the two children with extremely limited assistance from the husband;
n)paragraph 4 of the orders of 2 August 2017 provided for the husband to pay the mortgage and other outgoings on the family home The husband ceased to pay the mortgage in March 2017. Apart from one payment of $1,900 on 14 September 2017, the husband did not comply with the order;
o)when the property was sold the mortgage was approximately $30,000 in arrears, outstanding council rates were $6,238 and Owners Corporation fees of $2,900 were also in arrears;
p)paragraph 5 of the orders of 2 August 2017 provided for the husband to pay the wife $10,000 by way of partial property settlement and for a further payment of $10,000, 21 days later stop the husband did not comply with this order;
Due to the lack of evidence adduced by the husband and the husband’s failure to make full and frank financial disclosure, it is almost impossible to accord a percentage contribution to the parties. Obviously the husband made greater financial contributions than the wife at the commencement and during the relationship, however the contributions of the wife as a homemaker and parent were also significant.
The s.79 (4)(d),(e),(f) and (g) and s.75(2) factors
Section 79(4)(d): the effect of any proposed order upon the earning capacity of either party to the marriage.
The orders which are proposed to make will not have any effect on the earning capacity of the wife.
Section 79(4)(e): the matters referred to in s 75(2) so far as they are relevant
The wife is aged 31 and enjoys good health. The husband is aged 54, and to the wife’s knowledge also enjoys good health.
The wife currently not working and is completing a certificate in accountancy. She hopes to eventually obtain part-time bookkeeping work. The wife is not aware of the husband’s current income, she believes that to be substantial.
The wife is the primary carer of the children and since May 2018 they have spent little time with the husband.
The wife is solely responsible for the costs of the children and the husband has not contributed to their financial needs, nor complied with court orders.
Adjustment of interests
I am satisfied that in the context of this case having regard to all relevant s.75(2) factors, s.79(4)(g) considerations, the husband’s failure to make full and frank disclosure, and importantly the husband’s failure to comply with orders of this court which have resulted in the wife being financially prejudiced to an amount exceeding $60,000.
As a result of the findings made relating to contributions and future needs, I’m satisfied it is just and equitable to make orders adjusting the property between the parties, so that the wife is entitled to receive the funds remaining in trust of approximately $124,000, of which she was entitled, pursuant to previous court orders, in excess of $60,000.
The adjustment of property which I propose to make must be just and equitable both in terms of percentage adjustment, in real terms and the orders implementing the adjustment must also be just and equitable.
On the wife’s asset pool, which I have accepted, the division I have determined will result in the wife receiving assets of $244,143 and the husband retaining the $700,000 from the proceeds of sale of the property in Country D in 2017 together with any other assets which he may have which have not been disclosed during the course of the proceeding. The reality may be that the husband’s business interests may be worth substantially more or substantially less than the valuation attributed to them. There is no way to ascertain the true value in the absence of the husband’s engagement in the proceeding.
Even if the valuation attributed to the husband’s business interests is not accurate, and is less than asserted by the wife, I am satisfied that the proposed division is just and equitable because of :
i)The very limited asset pool;
ii)The young ages of the two children;
iii)The wife’s future responsibility for the support of the children;
iv)The difficulties the wife has and may well continue to encounter to obtain any meaningful financial support of the children from the father.
Accepting the wife’s asset pool, the division of assets I have determined is summarised as follows:
Wife’s Assets
| Proceeds of sale in wife’s solicitor’s trust account | $124,000 |
| Wife’s apartment in City P | $60,000 |
| Wife’s superannuation | $47,473 |
| Motor vehicle | $13,000 |
| Savings | $9,670 |
| Sub total | $254,143 |
| Less Liabilities | |
| Outstanding payment on wife’s apartment | $10,000 |
| Net Assets | $244,143 |
Husband’s Assets
| Proceeds of sale of City P property in 2017 | $700,000 |
| Husband’s business interests in Country D and Australia | NK |
| Husband’s property in Country D, (Estimated by the wife) | $1,450,000 |
| Motor vehicle | $45,000 |
| Less Liabilities | |
| Husband’s alleged liability to ATO | NK |
| Country D mortgages estimated by the wife | $600,000 |
| Net Assets | NK |
I intend to make orders as sought by the wife and will make a further order that a copy of the orders and these reasons be served on the husband via email.
I certify that the preceding one hundred and forty six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Williams delivered on 23 April 2020.
Date: 23 April 2020
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Procedural Fairness
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