Anolick and Anolick

[2017] FamCA 1119

FAMILY COURT OF AUSTRALIA

ANOLICK & ANOLICK [2017] FamCA 1119

FAMILY LAW – CHILDREN – Parenting – review of Senior Registrar’s decision – hearing de novo – review dismissed.

APPLICANT: Mr Anolick

RESPONDENT: Ms Anolick

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr Piekarski

FILE NUMBER: MLC 5060 of 2012

DATE DELIVERED: 30 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 30 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Thompson

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Ms McCreadie

SOLICITOR FOR THE RESPONDENT:	Rickards Legal
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Glass

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED:

1.That the matter remains fixed for final hearing on 5 March 2018.

2.That this matter be listed for telephone mention on 10 January 2018 for the purpose of checking the readiness of the matter for mediation and final hearing.

3.That within 21 days of the date of these Orders, if not already provided as part of a single expert valuation, each party exchange all documents containing evidence about:

(a)     Copy all personal, business and corporate taxation returns and assessments for the past 5 years;

(b)    Bank account statements, mortgage statements, credit card statements including any accounts and/or credit card operated by either of them or for which either party is an authorised signatory from 1 January 2012 to date;

(c)    Superannuation documents for each superannuation interest;

(d)    The financial matters mentioned in their respective Financial Statements;

(e)    Financial contributions made at the commencement of and during the period of cohabitation;

(f)     Full details of any asset and/or liability in which either party has an interest including an interest in any trust, superannuation fund or any other financial resource.

(g)    The use to which any monies received by an increase of liability has been put.

4.That within 21 days of the date of these Orders, if not already provided as part of a single expert valuation, the Husband provide all documents containing evidence as follows:

a)     The Anolick Trust

i.Financial statements for the year ended 30 June 2017

ii.BAS statements in respect of the year ended 30 June 2017

iii.BAS statement for the quarter ended 30 September 2017

iv.Details of the number of vehicles sold during the year ended 30 June 2017

v.A schedule breaking down total sales between vehicle sales, finance income and insurance income for the year ended 30 June 2017

vi.A schedule of all interest paid and received by the Trust, specifying lender or borrower as the case may be

vii.A schedule of all leasing charges paid by the Trust in respect of the year ended 30 June 2017

b)     Anolick Investments Pty Ltd

i.Financial statements for the year ended 30 June 2017

c)     Anolick Holdings Trust

i.Financial statements for the year ended 30 June 2017

d)     Anolick Bros Trust

i.Financial statements for the year ended 30 June 2017

e)     Anolick Property Trust

i.Financial statements for the year ended 30 June 2017

f)     B Pty Ltd

i.Financial statements for the year ended 30 June 2017

ii.BAS statements for the year ended 30 June 2017

iii.BAS statements for the quarter ended 30 September 2017

g)     Mr Anolick

i.A copy of his group certificate in respect of the year ended 30 June 2017

ii.A schedule all payments made to him including salary, benefits and superannuation in respect of the year ended 30 June 2017

h)     Ms C Anolick

i.Details of all wages and superannuation paid in respect of the year ended 30 June 2017

ii.A copy of her Group Certificate for the year ended 30 June 2017

i)      D Pty Ltd, as Trustee for The Anolick Trust;

i.A copy of the audited accounts of the company as lodged with ASIC;

j)      Records of all motor vehicles bought and sold between June 2012 and June 2017.

5.Within 21 days of the Husband providing the documents referred to in paragraphs 3 and 4 above, the Wife has leave to ask questions of the single expert witness in relation to the valuation of the Applicant’s business in accordance with Rule 15.65 of Family Law Rules 2004.

6.That no later than 18 January 2018, the parties do all acts and things necessary to cause updated valuations to be obtained from Imperial Valuation & Advisory Services of the following properties at the Husband’s expense;

(a)     E Street, Suburb F;

(b)    G Street, Suburb H;

(c)    J Street, Suburb K;

(d)    L Street, Suburb K;

(e)    M Street, Suburb H

That the Husband initially pays the valuation fees and be entitled to recover one half of the costs as part of a final determination of property interests.

7.Until further order is made, each party is at liberty to cause subpoenas to issue between now and the final hearing.

8.That all documents produced in compliance with subpoenas be released to the legal practitioners for the parties for inspection and copying.

9.That each party file and serve any amended application or response and all affidavit material including the Applicant filing all affidavits for the single experts as follows:

(a)     The Applicant/husband by 5 February 2018;

(b)    The Respondent/wife by 19 February 2018;

(c)    The Independent children’s lawyer by 26 February 2018;

(d)    The Reply by the Husband 26 February 2018.

10.That no later than 20 January 2018 the parties file and serve an updated Financial Statement.

11.The parties attend a private mediation, on 29 January 2018 to be convened by Mr N at 9:30am in relation to property and parenting issues and that the Husband shall make all necessary arrangements at his own expense for the mediation to take place as agreed by the parties.

12.That no later than 7 days prior to the mediation the parties cause to be provided to Mr N:

(a)     A copy of all documents filed on their behalf upon which they seek to rely;

(b)    An Outline of Case document setting out:

i.Proposed asset pool;

ii.Precise orders sought; and

iii.List of current valuations relied upon by each party.

13.That the parties do all acts and things necessary to require the mediator to contact her Honour’s Associate – telephone … - at the conclusion of the mediation to advise if the matter is resolved in its entirety.  If the matter is resolved the mediator to specify the manner in which the parties seek to formalise the settlement and the matter shall be listed as considered appropriate by her Honour’s Associate.

14.That each party to file and serve an undertaking as to disclosure by 20 December 2018.

15.That notwithstanding any previous direction to the contrary by not later each party to file and serve and provide to my Associate by email: …:

(a)     A list of documents upon which that party will rely at trial;

(b)    A list of assets divisible between the parties (including any add backs);

(c)    A summary of argument including but not limited to the following matters relating to a final alteration of property interests:

i.The contribution based entitlement claimed, expressed as a percentage of the net value of assets –

A.As at final separation; and

B.At the time of trial;

ii.In dot point form the different types of contribution being financial contributions (s79(4)(a)), non financial contributions (s79(4)(b)) and contributions to the welfare of the family (s79(4)(c)) upon which that party relies in support of the contribution based entitlement for which they contend:

A.During cohabitation; and

B.Since separation;

iii.Any other matters relevant to a division of property including any adjustment to the contribution based claim (if any) expressed as a percentage of the net value of the assets divisible between the parties having regard to the factors in s79(4)(d), (e), (f) an (g);

iv.In dot point form what relevant s75(2) or other factors relied upon by that party for any adjustment.

(d)    A summary of any matters upon which evidence is adduced from experts and is not agreed, including but not limited to:

i.The date and outcome of the last conference between experts;

ii.The particular matters upon which there is no agreement between experts;

iii.What the difference there would be to the final outcome in the event that one expert’s view of any particular matter is accepted over the other expert’s view;

(e)    A summary of argument in relation to any other financial relief which is sought including child support or spousal maintenance; and

(f)     A minute of the Orders which he/she seeks be made at the final hearing.

(g)    Whether the presumption in relation to equal shared responsibility parental is rebutted and if so on what basis and

(h)    Whether it is in the best interests of the children to spend equal time with each parent and if not why not

(i)     Whether it is in the best interests of the children with whom they are not primarily resident to be entitled to spend equal time with the children and if not, why not and

(j)     Why the parenting orders are sought by that parent;

(k)    Why the parenting orders sought by that party are in the best interests of the children having regard to the primary and additional considerations set out in s60CC(2) and s60CC(3) of the Act.

16.By way of compliance with rule 19.04 of the Family Law Rules 1974, by not later than 12 noon on 27 February 2017 the practitioner for each party provide notice in writing to his/her client of:

(a)     The actual costs incurred by the client up to and including that date;

(b)    Any expenses paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable inquiries, an estimate of any expenses;

(c)    The costs payable for each day of the private mediation;

(d)    The costs payable for each day of the trial, excluding the first day;

(e)    The estimated length of the trial; and

(f)     The date of payments made and the source of the funds for the costs paid or to be paid so that:

i.If costs have been paid by cheque, details must be provided of the account on which the cheque was drawn;

ii.If costs have been paid by credit card, the details must identify the finance provider and number and name of the credit card facility; and

iii.If costs have been paid in cash, the details must identify the payer.

17.That contemporaneously with compliance by the practitioner concerned with paragraph 16 of this Order the practitioner provide to my Associate by email:  … a copy of the notification given to his/her client pursuant to paragraph 16 of this Order AND IT IS DIRECTED that my Associate send a copy of the notification to:

(a)     The mediator; and

(b)    To the other party/s to the proceeding.

IT IS DIRECTED:

18.That the minute of orders as amended be marked Exhibit “A” and remain on the Court file.

19.That my reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

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 Anolick & Anolick 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 5060 of 2012

Mr Anolick

Applicant

And

Ms Anolick

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me as the second day of hearing of the mother’s application filed 5 October 2017, in which she seeks to review orders made by the Senior Registrar on 7 September 2017, which were of an interim parenting nature, and which concerned the children, O, who is nearly 15 years of age, and P, who is 13 years old.  The mother’s application does not specify precisely the orders which she seeks to review, but it has proceeded on the basis that she appeals the Senior Registrar’s order, which provided for the boys to reside on a week about basis from term 1 in 2018. 

2. The application for review proceeds as an original hearing of the applications which were then before the Court.  However, I must take note of developments that have happened since the hearing to the extent that they are relevant.  In this case, I find that they are relevant. 

3. The parents had, approximately 12 months earlier, obtained orders of this Court for a five/nine arrangement in favour of the mother, that is the children were spending some nine nights each fortnight in the mother’s home and five nights with the father.  An agreement was made for a further report to be prepared by Ms Q and it was prepared. 

4. That was the second report that Ms Q had delivered in the matter.  The first report being on 5 October 2016 and the second one being on 11 August 2017.  Ms Q is a family consultant whose qualifications were not put in issue and she is someone who has a longitudinal appreciation of the family.

5. On the last return date of this matter, which was 9 November 2017, I heard evidence from Ms Q, by way of cross-examination.  The cross-examination, in my view, did not shake the conclusions reached in her last report, which were that the boys should go to a week about arrangement. 

6. That said, family consultants do not decide cases, judges do, and the evidence of Ms Q is but one piece of evidence that the Court takes into account.  When deciding to make orders in any parenting matter, the Court must arrive at a result which is in the best interests of the children.  In doing so, it must observe the primary considerations in the legislation, which is to keep the children safe from physical or emotional harm and then the benefit to the children of having a meaningful relationship with both parents.  This is a case that does not really engage either.  It is more subtle. 

7. Both parties acknowledge that the children should have a meaningful relationship with both of them, and I daresay they acknowledge that the children do.  The mother is less than satisfied with some aspects of the father’s parenting by way of caffeine drinks and allowing the children to be dropped too early at school, but these are not matters which amount to physical or emotional harm.  There is a strong element in the mother’s case with which I find to be genuine and real.  That she says that she is available to care for the children and attend to their needs so they would not have to resort to caffeine drinks for breakfast from the local service station if they were in her care, and she sees no reason why they should not be in her care for the majority of the time.

8. There are a number of additional considerations that I take into account, and the first of those, and they are not in order of priority or weight, are the views of the children.  These are relatively worldly teenage boys.  When I heard from Ms Q on 9 November, I was concerned that the proceeding not be finalised until their view was sought in relation to the outcome of the review, that is, that the orders of the Senior Registrar for a week about arrangement might be cancelled and they would remain primarily in the care of their mother for nine days a fortnight. 

9. A report in the form of a letter dated 28 November 2017 has been tendered by the independent children’s lawyer (exhibit ICL1).  It is a report by Ms Q and it records her findings and opinions arising out of an appointment with the boys on 27 November 2017, some three days ago.  The report reads as reasonable.  It’s internally consistent.  She is firm in her view that the boys want a week about arrangement.  She is also firm that in doing so that they are not in any way rejecting their mother.  They just, it would appear, seek to be relieved from the dispute between their parents and the boys perceive that equality equates to fairness and may deliver for them some peace from the parental conflict. 

10. This is a case where there is entrenched parental conflict.  The parental conflict itself does equate to psychological harm within the meaning of the legislation.  And I hope the parties can see some way around it.  If they cannot, the future does not augur well for the children.  To be raised in an environment of entrenched parental conflict is difficult for any child.  It will be very difficult for these boys.  They will fail to reach their maximum potential.  Life will be harder for them.  They will have poor role-models as they form their own attitudes to relationships and people and cooperation and authority.  So it does not matter that both parents will try independently to do the very best that they possibly can for the boys.  If they deprive the boys of an opportunity to see them act to some extent cooperatively, it will be undeniably and permanently injurious to the boys’ psychological development.

11. I take into account the effect of change on the children’s current arrangements.  At the moment, they are in a dislocated five/nine arrangement with what appears to be too many comings and goings and too many opportunities to leave behind things that they need to have with them, and that in itself creates conflict between the parents.  I agree with Ms Q the solution is not to have multiple school bags.  It’s for the parents to give their children a home base and an emotional base from which they can remember to take their own belongings with them and make sure they have with them what they need. 

12. I don’t see that there’s going to be any significant disruption to the boys in increasing a five/nine arrangement to equal time.  Five/nine arrangements are as much shared parenting really as equal time.

13. I have regard to the capacity of the parents to parent the children and discharge their responsibility as parents.  The mother has been more involved in care of the children throughout the relationship than has the father.  That does not mean, however, that the father cannot step up – or has not stepped up since separation. 

14. It disturbs me that the mother complains of irregular financial support from the father.  That is a matter of significant annoyance.  It is a matter that is likely to be viewed very dimly at a final hearing.  I would urge the parties to put in place some arrangement, so that it does not continue to happen and that includes the scenario whereby the father denies that he’s, in fact, not punctual. 

15. I have not heard or read evidence from anyone about the boy’s significant relationships with people other than their parents and there is no proposal to separate the boys.  In terms of the mother’s capacity, there is a certain attack upon her in terms of the educational assistance which has been recommended for the boys in which the father says she has failed to embrace.  The mother says that that matter is in hand with tutors.  I would expect that that would continue. 

16. There is an impression sought to be drawn by the father that the mother is treating the boys not as the young men that they are, but more as younger children.  There may be some truth in that that is consistent with her role as it has been discharged to date.  It is very important in this case for both parties, but probably more so the wife and mother, to realise that the boys have reached a stage in their development where they will become individuals and that they will seek to individuate themselves from their parents.  That’s not a rejection of either parent nor an embracing of one parent over the other.  It’s merely a matter of the development of young men.

1. The father has a lot on his plate.  I have discussed with his counsel what appears to be an inevitable step that he will retain a housekeeper or some form of domestic assistance.  I don’t underestimate that it’s difficult to retain someone to live in the home in that sort of arrangement.  I am not making it an order or a pre-condition of the father’s residence of the boys on a week about basis, but it does occur to me on reading the material that much of what the conflict is about between parents are things that could be attended with some paid domestic assistance.

2. My sincere hope is that if such assistance is retained, it be done in circumstances where that person is respectful of the mother and the mother’s role in the children’s lives.  She will merely be there to be making life in the father’s household easier and seamless for the boys. 

RECORDED:  NOT TRANSCRIBED

1. This is not a matter where there are any intervention orders or crime family violence concerns.  Essentially, I accept the evidence of Ms Q, in particular, that the boys are actually looking forward to a week about arrangement.  My impression is that they think that may relieve them from the impact of the serious parental conflict.  I hope that it does.  If it doesn’t, then, no doubt, that will figure in the report which will issue next year. 

2. The next report will not be done by Ms Q.  I accept the submissions of Mr Thompson that Ms Q’s role in the matter has become somewhat blurred.  I do not accept that it was improper of her to go from being a reportable family consultant to a reportable therapeutic consultant.  The report will be prepared by an in-house family consultant next year.  I note that the order – I have not read the Senior Registrar’s reasons for decision and, indeed, I don’t even know if there are any on the file, but the order I am told provided for the matter to be subject of trial directions as soon as possible. 

RECORDED:  NOT TRANSCRIBED

1. I regard that as being a matter for priority and I fix the matter accordingly in March.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 30 November 2017.

Associate:

Date:  5 January 2018