BECKERT & BECKERT
[2020] FamCA 627
•10 September 2020
FAMILY COURT OF AUSTRALIA
| BECKERT & BECKERT | [2020] FamCA 627 |
| FAMILY LAW – CHILDREN – Application by the wife for sole parental responsibility – where the husband opposes wife’s application – three children of the marriage – where wife is the primary carer of the children – history of family violence – breach of intervention orders by the husband – concerns as to the husband’s alcohol consumption – consideration of best interests of the children – rebuttal of presumption under s 61DA of the Family LawAct 1975 (‘the Act’) – orders made by consent of the wife and the Independent Children’s Lawyer – sole parental responsibility of the children – children to live with the wife – children to spend time with the husband provided the husband is not affected by alcohol. FAMILY LAW – PROPERTY – Application by husband and wife for alteration of property interests – cohabitation period of approximately 11 years – direct financial contributions made by the wife and on the wife’s behalf at commencement and during cohabitation – where husband was almost exclusively the sole income earner – where the husband controls the parties’ corporate entities – where husband withdrew financial support for the wife and children following separation – spousal maintenance claim made in respect of part-property distributions – spousal maintenance claim acceded to – where there remains significant arrears in child support and low enforcement prospects – where husband has failed to provide financial disclosure and comply with orders of the Court – assessment of contributions – consideration of s 75(2) of the Act factors – where the husband has greater earning capacity – where wife remains primary carer of the children – orders made as sought by the wife – indemnity costs ordered. FAMILY LAW – PRACTICE AND PROCEDURE – Where s 102NA of the Act applies – oral application by husband to set aside previous cross-examination orders pursuant to s 102NA of the Act – application to set aside s 102NA orders dismissed – oral application by husband for the recusal of the trial Judge – application for recusal dismissed – oral application by wife seeking leave to proceed undefended on day two of the trial – application to proceed undefended granted and matter proceeded undefended. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 67Z, 68B, 68P, 69ZN, 69ZW, 75, 79, 97, 102NA, 114 |
| Acland & Grohl [2019] FamCAFC 69 Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (Cth) |
| APPLICANT: | Ms Beckert |
| RESPONDENT: | Mr Beckert |
| INDEPENDENT CHILDREN’S LAWYER: | Creative Family Law Solutions |
| FILE NUMBER: | MLC | 13463 | of | 2017 |
| DATE DELIVERED: | 10 September 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Hartnett J |
| HEARING DATE: | 27-28 July 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Williams |
| SOLICITOR FOR THE APPLICANT: | Sayer Jones |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Bonney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Creative Family Law Solutions |
Orders
Parenting Orders
All previous parenting orders are discharged.
By consent of the Applicant wife (‘the wife’) and the Independent Children’s Lawyer:-
The wife have sole parental responsibility for the children X born … 2013, Y born … 2013 and Z born … 2013 (‘the children’).
In the event the wife intends to make a decision for the children, or any of them, in regards to schooling or a major medical decision pursuant to order 2 herein the following shall occur:-
(a)unless in the event of an emergency, the wife shall provide the Respondent husband (‘the husband’) with 28 days’ written notice of her decision and provide brief reasons as to how her decision is in the children’s best interests;
(b)the husband will respond, in writing, within 14 days thereafter indicating if he agrees or disagrees with that decision and if he does not agree his brief reasons for his disagreement; and
(c)thereafter, the wife shall consider the matters raised by the husband and advise the husband, within 14 days of receiving his response, in writing, of the decision she has made.
The children live with the wife.
Subject to the husband’s compliance with order 7 herein, the children shall spend time and communicate with the husband as follows:-
(a)during school terms:-
(i)each Wednesday from 5.00pm until 7.00pm; and
(not by consent of the wife and the Independent Children’s Lawyer who sought the second weekend of each school term)
(ii)each alternate weekend from 10.00am until 6.00pm on both Saturday and Sunday, commencing the first weekend of each school term;
(b)during school holidays:-
(i)each weekend of the mid-year school term holidays from 10.00am until 6.00pm on both Saturday and Sunday; and
(ii)each of the first two weekends of the long summer school holidays from 10.00am until 6.00pm on both Saturday and Sunday, commencing on the first weekend following the conclusion of the school term;
(c)on Father’s Day from 10.00am until 6.00pm;
(d)on the husband’s birthday if a school day from 5.00pm until 7.00pm and if a non-school day then from 10.00am until 6.00pm;
(e)on the children’s birthdays, if the children would not otherwise see the husband that day, then if a school day from 4.30pm until 6.30pm and if a non-school day then from 10.00am until 2.00pm;
(f)each Christmas as follows:-
(i)in even numbered years from 10.00am until 4.00pm on 25 December; and
(ii)in odd numbered years from 10.00am until 4.00pm on 24 December;
(g)by telephone at any time between 5.00pm and 6.00pm on Sundays that the children do not otherwise see the husband, and the wife shall provide a telephone number on which the husband may contact the children; and
(h) any other time as agreed between the parties in writing.
All changeovers shall occur outside the wife’s residence unless otherwise agreed between the parties in writing.
The children’s time with the husband is conditional upon:-
(a)the husband not consuming or being affected by alcohol during any period the children spend time or communicate with him;
(b)the husband providing a nil reading for blood alcohol on a breath analysis testing device at the commencement and conclusion of each period of time the children spend with him for the purpose of this order, and if the husband cannot produce a nil blood alcohol reading:-
(i)at the commencement of the children’s time with him, then the time on that occasion shall be suspended; and
(ii)at the conclusion of the children’s time with him, then the following visit shall be suspended; and
(c)the husband’s partner, Ms M, or such other adult as agreed between the parties in writing in advance of the children commencing time with the husband, being in substantial attendance.
In the event that the husband fully complies with order 7 herein and:-
(a)at his cost, forthwith engages in an intensive program of drug and alcohol counselling for at least 12 continuous months with a therapist nominated by the Independent Children’s Lawyer (‘the therapist’), and complies with all reasonable directions of the therapist including as to ongoing attendance at therapy;
(b)provides to the therapist at the commencement of therapy a copy of the Family Report of Mr A dated 9 January 2019 and a copy of these orders; and
(c) thereafter, after a minimum period of 12 months, provides to the wife:-
(i)a written report from the therapist confirming the husband’s full compliance with orders 8(a) and 8(b) herein; and
(ii)at his cost, hair follicle drug and alcohol screening results from a laboratory approved by the Independent Children’s Lawyer that demonstrates that the husband has been wholly abstinent from alcohol and illicit substances for a minimum of 12 continuous months;
then in lieu of the children’s time with him pursuant to order 5 herein, the children shall spend time with the husband in accordance with order 9 herein.
Provided that the husband has complied with order 7 and order 8 herein, and complies with order 10 herein, the children shall spend time with the husband as follows:-
(a)during school terms:-
(i)each alternate weekend from the conclusion of school on Friday until the commencement of school each Monday morning, commencing on the first weekend of each school term; and
(ii)from the conclusion of school each Wednesday until the commencement of school each Thursday morning;
(b)during school holidays:-
(i)for half of each mid-year school holiday as agreed and in default of agreement, the first half in odd numbered years and the second half in even numbered years; and
(ii)for half of the long summer holidays as agreed, and in default of agreement the first half in odd numbered years and the second half in even numbered years;
(c)should Father’s Day fall on a weekend when the children are not spending time with the husband, from 9.00am until 5.00pm on Father’s Day;
(d)on the husband’s birthday and the children’s birthdays, should the children not be otherwise spending time with the husband, from the conclusion of school until 6.00pm if a school day and otherwise from 10.00am until 2.00pm;
(e)for Christmas as follows:-
(i)from 4.00pm on Christmas Eve until 4.00pm on Christmas Day in odd numbered years; and
(ii)from 4.00pm on Christmas Day until 10.00am on 27 December in even numbered years; and
(f)at such further or other times as agreed between the parties in writing;
with the children’s time with the husband pursuant to order 9 herein to be conditional upon his full compliance with order 10 herein.
In the event the husband commences spending time with the children in accordance with order 9:-
(a)the children’s time with the husband shall remain conditional upon the husband not consuming or being affected by alcohol during any period the children spend time or communicate with him;
(b)the husband shall provide a nil reading for blood alcohol on a breath analysis testing device at the commencement and conclusion of each period of time that the children spend with him and for the purpose of this order, and if the husband cannot produce a nil blood alcohol reading:-
(i)at the commencement of the children’s time with him, then the time on that occasion shall be suspended; and
(ii)at the conclusion the children’s time with him, then the following visit shall be suspended;
(c)the husband shall continue to engage in drug and alcohol counselling with the same therapist referred to in order 8(a) herein, and comply with all reasonable directions of the therapist including as to ongoing attendance at therapy;
(d)the husband shall forthwith provide the wife with the name and contact details of the therapist, and upon receipt of these details, the wife be authorised to provide the therapist with a copy of these orders;
(e)the husband shall be required to provide the wife a nil reading for blood alcohol on a breath analysis testing device at the commencement of each time the children spend time with him and if he cannot do so, the children’s time with him on that occasion shall be suspended and the children’s time with him shall immediately revert to the time contained in order 5 herein and the husband shall be required to satisfy order 8 herein for a further period of 12 continuous months before order 9 herein can recommence; and
(f)the wife be at liberty to:-
(i)request the husband to submit to random breath analysis testing for blood alcohol once per month, with the husband to submit to the breath test within one hour of receipt of a request from the wife, and he shall provide the results to the wife via a video text message which records the husband undergoing the test and producing clear, legible results;
(ii)request the husband to undergo a hair follicle test for alcohol consumption and illicit drug use every three months, with the husband to undertake the hair follicle test within 48 hours of the wife’s request on the following basis:-
A.the husband is to attend upon Australian Workplace Drug Testing Service or another laboratory authorised to conduct hair follicle testing for alcohol consumption and drug testing for the purpose of providing a sample sufficient to assess the previous three months;
B.the husband is to provide the hair follicle test results to the wife as soon as they are available; and
C.the husband is to be responsible for the cost of the testing; and
(iii)contact the therapist and obtain a written report as to his attendance, and the husband shall do all acts and things necessary to authorise the wife to obtain this information; and
(g)in the event that the husband does not comply with orders 10(a)-(f) herein or the results of any breath analysis test or hair follicle test show the use of alcohol or other illicit substances, then:-
(i)order 9 herein shall be suspended;
(ii)the children’s time with the husband shall immediately revert to the time contained in order 5 herein; and
(iii)the husband must fully comply with order 8 herein for a further period of 12 continuous months before order 9 herein can recommence.
The children shall live with the wife at all other times than those referred to in order 5 or order 9 (as the case may be) herein.
The children’s time with the husband be suspended:-
(a)from 4.00pm on Christmas Day until 10.00am on 27 December in odd numbered years;
(b)from 4.00pm on Christmas Eve until 4.00pm on Christmas Day in even numbered years;
(c)should Mother’s Day fall on a weekend when the children are not spending time with the wife, from 9.00am until 5.00pm on Mother’s Day; and
(d)on the wife’s birthday and the children’s birthdays, should the children not be otherwise spending time with the wife, from the conclusion of school until 6.00pm if a school day and otherwise from 10.00am until 2.00pm.
For the purpose of defining the school holiday period, the school holiday period shall commence from the conclusion of school on the last day of term on which the children are required to attend school and conclude at the commencement of school on the first day of the next term on which the children are required to attend, and the school term arrangements shall recommence as if the school holiday period had not intervened.
The wife advise the husband by email of:-
(a)a nominated mainstream medical clinic (‘the nominated clinic’) at which the children attend for general medical care and each of the parties shall ensure that the children attend that clinic for treatment at first instance, save in the case of genuine emergency or impracticality; and
(b)any changes to that nominated clinic at least 14 days prior to such change occurring.
Liberty is granted to the husband to consult with the children’s doctors and allied health professionals in order to obtain information about the children’s health with these consultations to be at the husband’s own expense and in the absence of the children.
The parties shall notify each other as soon as practicable of any significant medical illness or serious injury involving the children when in their care, and authorise the other party to speak with any health professional involved with the children.
The wife do all such acts and things as may be necessary to ensure that the husband receives copies of any medical and academic assessments in relation to the children.
The wife shall notify the husband in advance of any significant medical, counselling or other specialist assessment of the children and will authorise the relevant treating professional to provide to the husband all such information in relation to that treatment as the professional considers appropriate.
Both the wife and the husband be noted as emergency contacts and authorised to obtain any information they might require from any educational facility the children attend.
The husband be at liberty to attend any school function that parents normally attend subject to him giving the wife written notice of his intention to do so no less than 14 days in advance and, at such time until order 7 herein is discharged, providing the wife with a nil reading for blood alcohol content prior to his entry to the school function.
The wife and the husband be authorised to provide copies of these orders to the children’s school and any treating professional.
Each of the wife and the husband shall keep the other advised at all times of their contact details including telephone number, email address, and residential address, and notify the other parent as soon as practicable of any change in such information.
Provided the time falls within the children’s time with the wife, the wife be at liberty to remove the children from the Commonwealth of Australia for the purposes of holidays, provided she has provided the husband with 30 days’ written notice, including flight itineraries and accommodation details, and a telephone number on which the children may be contacted, unless otherwise agreed.
The wife be and is hereby authorised to do all acts and things and sign all documents as may be necessary to ensure that the children have current Australian Passports from time to time, as well as any necessary visa for travel, and the consent of the husband shall not be required.
The parties are hereby restrained by injunction from:-
(a)denigrating the other party or any member of the other party’s family in the presence or hearing of the children or allowing anyone else to do so;
(b)discussing with the children or within the children’s hearing these proceedings; and
(c)questioning the children about the activities of the other parent.
By the Court:-
Pursuant to s 68P(2)(a) of the Family Law Act 1975 (Cth) (‘the Act’), to the extent that order 20 herein may be inconsistent with an interim intervention order that has been made by a Magistrates’ Court (‘the intervention order’):-
(a)the order herein shall prevail over such order and operate according to its terms; and
(b)the intervention order is invalid, by force of s 68Q(1) of the Act.
The order made 20 April 2018 appointing the Independent Children’s Lawyer is discharged.
Property Orders
Forthwith upon the making of these orders herein:-
(a)the husband shall do all acts and things necessary to deliver to the offices of Sayer Jones Pty Ltd all receipts and other documents necessary to enable O Group to prepare the taxation returns and financial statements for the Beckert Family Trust for the financial year ended 30 June 2019 at the joint expense of the parties and the wife shall be at liberty to solely instruct O Group in this regard;
(b)forthwith upon O Group’s preparation of the taxation returns and financial statements for the Beckert Family Trust for the financial year ended 30 June 2019, the parties shall in their capacity as directors of Beckert Investments Pty Ltd do all acts and things and sign all documents as may be necessary to finalise and cause the taxation returns and financial statements to be lodged by O Group, and for the purposes of meeting any and all Capital Gains Tax (excluding any interest or penalties which shall be met solely by the husband) (‘CGT’) payable for the properties situate at and known as R Street, Town H in the State of Victoria (‘the Town H property’) and S Street, Suburb E in the State of Victoria (‘the Suburb E property’), the parties shall do all acts and things necessary to instruct Sayer Jones Pty Ltd to release such amount as is required to pay the CGT from the Westpac Controlled Monies Account in the name of Beckert Investments Pty Ltd as trustee for the Beckert Family Trust, being Account Number …42 (‘the Westpac …42 account’); and
(c)following the payment of the CGT and the lodgement of the 2019 taxation returns and financial statements pursuant to order 28(b) herein, the parties shall do all acts and things and sign all documents at the sole expense of the husband as may be necessary to cause the wife to be removed as a director and a beneficiary of the Beckert Family Trust and otherwise amend the Trust Deed of the Beckert Family Trust in such manner as the husband may direct at the sole expense of the husband, and the husband shall thereafter be solely liable for and pay as and when the payments fall due any and all interest payable, costs, penalties and any payments required by the Australian Taxation Office (‘the ATO’) in relation to the winding up of Beckert Investments Pty Ltd as trustee for the Beckert Family Trust, and the wife be and is indemnified by the husband in relation to all liability, interest and payments.
In the event that the husband does not comply with orders 28(a), 28(b) and 28(c) herein within seven days of a request to do so, the wife shall immediately resign as a director and beneficiary of the Beckert Family Trust at the sole expense of the husband and shall retain 100 percent of the balance of the Westpac …42 account, and the husband shall be solely liable for meeting:-
(a)the CGT and any interest and penalties associated with same; and
(b)all interest payable, costs, penalties and any payments required by the ATO in relation to the winding up of Beckert Investments Pty Ltd as trustee for the Beckert Family Trust, and the wife be and is indemnified by the husband in relation to all liability, interest and payments.
Forthwith upon the parties’ compliance with order 28(b) herein (or in the event that order 29 herein is triggered), the parties shall in their capacity as directors of Beckert Investments Pty Ltd do all acts and things and sign all documents as may be necessary to authorise Sayer Jones Pty Ltd to disburse 100 percent of the remaining balance of the Westpac …42 account, to the wife as she may direct in writing.
Forthwith upon the making of these orders herein, the parties shall do all acts and things and sign all documents as may be necessary to authorise Sayer Jones Pty Ltd to disburse 100 percent of the balance of the Westpac Controlled Monies Account in the name of Ms Beckert and Mr Beckert, being account number …05, to the wife as she may direct in writing.
In default of compliance with any of orders 28(b), 28(c), 29, 30 and 31 herein, the director of Sayer Jones Pty Ltd, William Henry Jones, be authorised pursuant to s 106A of the Act to do all acts and things and execute all instruments as may be necessary to enable the respective payments to be made and to give validity and operation to these orders herein and each such instrument.
Within 28 days of the making of these orders herein, the husband shall pay to the wife the sum of $15,000 in satisfaction of order 20 of the orders made by Judge Kelly in the Federal Circuit Court of Australia on 31 May 2019.
Within 28 days of the making of these orders herein, the husband pay the wife’s costs on an indemnity basis arising from:-
(a)the subpoena hearing before Judge Kelly in the Federal Circuit Court of Australia on 18 December 2018, being the sum of $703;
(b)the judicial duty list hearing before Justice Hartnett on 8 October 2019, being the sum of $5,262;
(c)the compliance hearing before Justice Hartnett on 6 April 2020, being the sum of $3,387.
In the event that the husband fails to comply with either or both of order 33 and order 34, he shall forthwith do all acts and things and sign all documents as may be necessary to discharge the Motor vehicle 1 Leasing Service loan secured against the Motor vehicle 1 and thereafter transfer the Motor vehicle 1 to the wife unencumbered. Thereafter the wife shall sell the Motor vehicle 1 and disburse any sale proceeds:-
(a)firstly, to pay all costs, commissions and expenses of the sale including any costs required to prepare the Motor vehicle 1 for sale; and
(b)secondly, in payment of the costs remaining outstanding and due to the wife pursuant to orders 33 and 34 herein; and
(c)thirdly, in payment of any and all enforcement indemnity costs incurred by the wife; and
(d)fourthly, the sum of $70,000 of the monies thereafter remaining, and if a lesser some than the entirety of that lesser sum, is to be held in an interest bearing account on behalf of the parties by the solicitors for the wife pending the husband’s compliance with orders 37 and 38 herein. The husband shall apply these funds in partial reinstatement of the member balance of the wife in the SMSF; and
(e)fifthly, any balance then remaining to be paid by the wife to the husband within 28 days of sale of the Motor vehicle 1.
Orders 37 to 41 inclusive herein are binding on the trustee of the Beckert Superannuation Fund (‘the SMSF’) and take effect from the operative time being the fourth business day after the date of service of these orders herein on the trustee of the SMSF.
Within three months of the making of these orders herein, the husband do all acts and things necessary to ensure that the SMSF is a compliant SMSF and reinstate his own member balance and the wife’s member balance in the SMSF that they each would have but for the husband’s removal of funds from the Commonwealth Bank of Australia COIA account, being account number …41.
Following the husband’s compliance with order 37 herein:-
(a)in accordance with s 90XT(1)(b) of the Act, whenever a splittable payment (‘the wife’s splittable payment’) becomes payable in respect of the husband’s interest in the SMSF, the wife is entitled to be paid an amount representing 50 percent of the parties’ combined superannuation interests, to be rolled over into a superannuation fund of her choosing, and there be a corresponding reduction in the entitlement that the husband would have had in the SMSF but for these orders herein;
(b)the wife shall thereafter resign as a Director of Beckert Superannuation Pty Ltd and the husband shall thereafter be solely liable for and pay as and when the payments fall due, any and all interest payable, costs, penalties and any payments required by the ATO in relation to:-
(i)the winding up of the SMSF; and
(ii)the SMSF’s non-compliance, including but not limited to, the ATO and making such payments as may be required as and when they fall due;
and the wife be and is indemnified by the husband in relation to all liability, interest and payments.
In the event that the husband fails to comply with order 37 herein:-
(a)the wife shall forthwith resign as a director of Beckert Superannuation Pty Ltd;
(b)the husband shall forthwith do all acts and things necessary to discharge the lease owing to Motor vehicle 1 Leasing Service in respect of his Motor vehicle 1 and thereafter transfer the Motor vehicle 1 to the wife at his sole expense, and in the event he has already transferred the Motor vehicle 1 to the wife pursuant to order 35 herein, and there remains a shortfall in the wife’s entitlement in the SMSF pursuant to these orders then there is liberty to the wife to apply as to the enforcement of such reinstatement of her interest in the SMSF; and
(c)the husband be solely liable for and pay as and when the payments fall due, any and all interest payable, costs, penalties and any payments required by the Australian Taxation Office in relation to:-
(i)the winding up of the SMSF; and
(ii)the SMSF’s non-compliance, including but not limited to, the Australian Taxation Office and making such payments as may be required as and when they fall due;
and the wife be and is indemnified by the husband in relation to all liability, interest and payments.
The trustee of the SMSF shall comply with the obligations imposed upon Trustees of eligible superannuation plans under the Act and the Family Law (Superannuation) Regulations 2001 (Cth).
Simultaneously with the wife resigning as a director of Beckert Superannuation Pty Ltd, notwithstanding whether that resignation is pursuant to order 38(b) or order 39(a) herein, the parties shall do all acts and things and sign all documents as may be necessary to close any remaining joint bank accounts, including but not limited to accounts in their personal names, and in the names of Beckert Investments Pty Ltd, Beckert Superannuation Pty Ltd and any other entities, and equally divide any remaining balance between them.
Save as otherwise provided for in these orders herein, the husband shall otherwise retain, to the absolute exclusion of the wife, all of his right, title and interest in the following:-
(a)his bank accounts;
(b)the business K Pty Ltd;
(c)the business K2 Pty Ltd;
(d)the Beckert Family Trust;
(e)Beckert Investments Pty Ltd;
(f)his interest in the Motor vehicle 1;
(g)his superannuation entitlements;
(h)the furniture, effects and personal belongings in his possession as at the date of these orders herein; and
(i)all other assets of whatsoever nature and kind in the husband’s sole name as at the date of these orders herein, including but not limited to chattels, shares in public listed companies, superannuation entitlements and annual leave entitlements.
Save as otherwise provided for in these orders herein, the wife shall otherwise retain, to the absolute exclusion of the husband, all of her right, title and interest in the following:-
(a)her bank accounts;
(b) her Motor vehicle 2;
(c)her superannuation entitlements;
(d)the furniture, effects and personal belongings in her possession as at the date of these orders herein; and
(e)all other assets of whatsoever nature and kind in the wife’s sole name as at the date of these orders herein, including but not limited to chattels, shares in public listed companies, superannuation entitlements and annual leave entitlements.
Except as provided for in these orders herein, and as a separate and ongoing liability the husband shall pay, indemnify and keep the wife effectively indemnified against:-
(a)all losses incurred by, brought, made or revoked against the wife as a direct or indirect result of the husband’s liabilities, whether personal or in the name of his business entities, including but not limited to K2 Pty Ltd, K Pty Ltd, Beckert Investments Pty Ltd, Beckert Superannuation Pty Ltd or the Beckert Family Trust;
(b)any and all creditors of the husband;
(c)any and all borrowings of the husband;
(d)any and all liabilities to the Australian Taxation Office owing by the husband, whether personal or in the name of his business entities, including but not limited to K2 Pty Ltd, K Pty Ltd, Beckert Investments Pty Ltd, Beckert Superannuation Pty Ltd or the Beckert Family Trust, and any interest, costs (including accounting costs) or penalties applicable thereto;
(e)any and all hire purchase and/or lease liabilities in respect of any assets owned by the husband;
(f)any and all other debts and/or liability of whatever nature in respect of the husband;
(g)any credit card liabilities of the husband; and
(h)any personal guarantees given by the wife in respect of the debts of the husband;
and for the purposes of this order herein, ‘losses’ shall mean any damages, loss, claim, action, liability, costs, expenses, outgoings, taxation and/or payment.
Except as provided for in these orders herein, and as a separate and ongoing liability the wife shall pay, indemnify and keep the husband effectively indemnified against:-
(a)all losses incurred by, brought, made or revoked against the husband as a direct or indirect result of the wife’s liabilities;
(b)any and all creditors of the wife;
(c)any and all borrowings of the wife;
(d)any and all liabilities to the ATO owing by the wife and any interest, costs (including accounting costs) or penalties applicable thereto;
(e)any and all hire purchase and/or lease liabilities in respect of any assets owned by the wife;
(f)any and all other debts and/or liability of whatever nature in respect of the wife;
(g)any credit card liabilities of the wife; and
(h)any personal guarantees given by the husband in respect of the debts of the wife;
and for the purposes of this order herein, ‘losses’ shall mean any damages, loss, claim, action, liability, costs, expenses, outgoings, taxation and/or payment.
Unless otherwise specified in, and except for the purposes of enforcing compliance with the terms of, these orders herein:-
(a)each party shall be solely entitled to the exclusion of the other to all property (including choses-in-action) and financial resources in the possession of such party as at the date of these orders;
(b)each party hereby forgoes any claim they may have to any superannuation benefits or other employment related benefits belonging to or earned by the other;
(c)all insurance policies shall become the sole property of the owner named in the policy;
(d)each party shall be solely liable for and indemnify the other against any liability encumbering an item of property to which that party is entitled pursuant to these orders; and
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
In the event either of the parties refuse or neglect to execute a deed and/or instrument in compliance with the provisions of these orders, the Registrar or Deputy Registrar of the Family Court of Australia at Melbourne is hereby appointed pursuant to s 106A of the Act to execute all deeds and/or instruments in the name of either of the parties and do all acts and things to give validity and operation to the deeds and/or instruments.
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 Beckert & Beckert 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: MLC13463/2017
| Ms Beckert |
Applicant
And
| Mr Beckert |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Matters going to this Judgment
This proceeding was conducted by both video and audio link as a consequence of the cessation of face to face hearings in the Court in response to the COVID-19 pandemic. All parties were content to proceed in that manner. Difficulties were subsequently encountered in the Respondent husband’s (‘the husband’) use of Microsoft Teams to which I shall refer hereafter. As a consequence of those difficulties, on the first day of the trial, the Court determined that for part of the hearing that day the husband should proceed to participate via an audio link. That was successful. On day two of the trial, the continuation of the trial was again attempted by video link with all parties. The husband, who is a solicitor, and who was using the computer equipment of his own office, commenced to, on occasion, place his hand over his mouth or turn away from the computer and microphone, so that he was unable to be clearly heard, and so that the transcript of the proceeding was in danger of being compromised. In those circumstances, and having repeatedly advised the husband of the difficulties in hearing his evidence, the Court could not be satisfied that the husband could proceed by way of video link. Accordingly, arrangements were again made for the husband to participate by audio link being the same audio link that was successful on the preceding day. The husband, a short time after commencing to participate by audio link, abandoned the proceeding without notice to the parties or the Court. What followed was an application by counsel for the Applicant wife, supported by counsel for the Independent Children’s Lawyer, to proceed thereafter on an undefended basis. The Court acceded to that application as is described hereafter in these reasons.
It is not necessary in these reasons for judgment to comment upon the evidence of each witness nor to comment on every exhibit tendered. However every piece of evidence relied upon by the parties has been read and carefully considered by me.[1]
[1]Bell & Nahos [2016] FamCAFC 244, [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62].
Statements of fact in these reasons are findings of fact on the balance of probabilities.
The husband was not permitted statutorily to personally cross-examine the Applicant wife (‘the wife’). Counsel for the Independent Children’s Lawyer cross-examined the wife as to children’s matters only. There was no real challenge to the evidence of the wife and in particular no challenge to her evidence going to the property orders sought by her. Her evidence is accepted by the Court.
Documents relied upon by the parties
The wife relied upon the following material:-
a)a Further Amended Initiating Application filed on 6 July 2020;
b)a Financial Statement affirmed on 26 June 2020;
c)an affidavit affirmed on 6 July 2020;
d)exhibits sent to the Court on 26 July 2020 which relate to the affidavit affirmed 6 July 2020;
e)an amended outline of case document filed on 28 July 2019;
f)a court book emailed to the Court on 26 July 2020; and
g)a statement of costs document emailed to the Court on 28 July 2020.
The husband sought to rely upon the following material:-
a)a Response to Initiating Application filed 31 October 2019;
b)a Financial Statement sworn on 27 July 2020;
c)affidavits sworn on 23 February 2018, 31 August 2018, 15 May 2019, 22 August 2019, 20 November 2019 and 7 February 2020;
d)an affidavit unsworn by him and filed on 22 April 2020;
e)an affidavit sworn by Mr T on 17 April 2018;
f)affidavits sworn by Ms U, paralegal, on 25 September 2018, 4 December 2018, 11 December 2018, 15 May 2019 including exhibits and 17 May 2019 including exhibits;
g)an affidavit sworn by Ms L on 23 May 2019;
h)affidavits affirmed by Ms M on 8 October 2019 and 20 April 2020;
i)an outline of submissions document filed on 29 May 2019; and
j)an ultrasound document dated 31 December 2019 emailed to the Court on 27 July 2020.
The husband abandoned the proceeding after the closing of the wife’s case and whilst he was being cross-examined by counsel for the wife. None of the affidavit evidence of the witnesses upon which he relied can be given any, or any significant, weight. They were not made available by the husband for cross-examination by the other parties. Likewise, the husband did not permit his evidence to be challenged as to property matters and thus such evidence is given little or no weight.
The Independent Children’s Lawyer relied upon the following material:-
a)an affidavit sworn by Ms V, the children’s school principal, on 22 July 2020;
b)an affidavit sworn by Dr W, consultant psychiatrist, on 24 July 2020;
c)the Family Report prepared by Mr A, psychologist, dated 9 January 2019, attached to an affidavit affirmed by him on 21 May 2019;
d)a report prepared pursuant to s 67Z of the Family Law Act 1975 (‘the Act’) sent to the Federal Circuit Court of Australia (‘the FCC’) by the Department of Health and Human Services (‘the DHHS’) on 12 September 2018;
e)a report prepared pursuant to s 69ZW of the Act sent to the FCC by the DHHS on 14 May 2019;
f)an outline of case filed on 22 May 2019;
g)an outline of submissions document handed up in Court on 9 October 2019; and
h)a court book emailed to the Court on 24 July 2020.
The evidence placed before the Court by the Independent Children’s Lawyer as set out in the above paragraph was not challenged by the wife. The husband had ceased to participate in the proceeding. The totality of that evidence is accepted by the Court.
Preliminary
Application for discharge of Section 102NA of the Act order
By order 7 of the orders made 9 October 2019 the husband was not permitted to personally cross-examine the wife. The order was made pursuant to s 102NA of the Act. The husband at no stage appealed the making of that order. Section 102NA of the Act is, relevantly, as follows:-
(1) If, in proceedings under this Act:
(a) a party (the examining party ) intends to cross-examine another party (the witness party ); and
(b) there is an allegation of family violence between the examining party and the witness party; and
(c) any of the following are satisfied:
(i) either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii) a family violence order (other than an interim order) applies to both parties;
(iii) an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv) the court makes an order that the requirements of subsection (2) are to apply to the cross-examination;
then the requirements of subsection (2) apply to the cross-examination.
(2) Both of the following requirements apply to the cross-examination:
(a) the examining party must not cross-examine the witness party personally;
(b) the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.
…
Contained in the orders of 9 October 2019 were notations in respect of the order made pursuant to s 102NA of the Act. Those notations were as follows:-
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
On 9 October 2019, the husband indicated to the Court that he proposed to apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (‘the Scheme’) for representation at the further adjourned trial. Such application required an adjournment of the proceeding for a further period of at least 12 weeks. The husband applied to, and received, Victoria Legal Aid funding in respect of the operation of the Scheme such that he had, for a time, the services of a legal practitioner to assist in his preparation for the trial and to act on his behalf during the trial, and in particular for the purposes of the legal practitioner conducting the cross-examination of the wife. Subsequent to the appointment by Victoria Legal Aid of the legal practitioner to act on the husband’s behalf, the legal practitioner filed a Notice of Address for Service on 14 May 2020. That same practitioner, on 3 July 2020, then filed a Notice of Ceasing to Act. The filing of that Notice of Ceasing to Act by the legal practitioner occurred 24 days prior to commencement of the trial. Upon the legal practitioner ceasing to act for the husband, the husband indicated to the Independent Children’s Lawyer, who was concerned about the husband’s position, that he would have a “barrister friend of [his]” act for him or words to that effect.[2]
[2] Transcript of proceedings dated 27 July 2020, page 19 lines 10-15.
At the commencement of the trial the husband sought, by oral application, the revocation and/or discharge of the s 102NA of the Act order to enable him to personally cross-examine the wife. The husband was content for that cross-examination to occur by audio link. Counsel for the wife and counsel for the Independent Children’s Lawyer opposed that oral application.
Section 102NA of the Act is contained in Part XI Div 4 of the Act, that part being headed “Procedure and Evidence”. Section 102NC of the Act provides in respect of Div 4 the following:-
The Minister must cause a review of the operation of this Division to be commenced as soon as possible after:
(a) the second anniversary of the commencement of this section; or
(b) if, before the second anniversary, the regulations prescribe a day that is after the second anniversary--that day.
The explanatory memorandum which accompanied the then proposed Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 stated that the aim of the amendments was to “reduce potential trauma to victims of family violence in family law proceedings…”[3] because “personal cross-examination by an alleged perpetrator can expose victims of family violence to re-traumatisation and can affect their ability to give clear evidence.”[4] The amendment to the legislation intended to “promote…access to justice” for victims of family violence and their “right to a fair hearing”[5] by protecting those individuals from the trauma of being personally cross-examined by perpetrators of family violence. The explanatory memorandum also stated:-
An unrepresented party who is unwilling to obtain the services of a legal practitioner or accept representation from legal aid, would still be entitled to present his or her case through, for example, his or her own evidence in chief or by personally questioning (including cross-examining) other witnesses…[6]
[3] Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (Cth), 12.
[4] Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (Cth), 4.
[5]Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (Cth), 13.
[6] Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (Cth), 15.
In support of his oral application the husband submitted that:-
a)it was a matter of “fundamental fairness” and “basic civil procedure law” that “applications have to be put to the person giving evidence in the first place so that that evidence can then be brought through the defendant” and that the husband’s case was that the wife’s “allegations [were] false”;[7]
b)the Court could give a direction under s 102C of the Act that the cross-examination of the wife be conducted by audio link if the wife didn’t “want to look at [the husband]”;[8]
c)there was no reason for counsel for the wife to oppose the husband’s oral application unless counsel wanted the wife to “skate through unchallenged”;[9]
d)there was no “risk of an appreciable sense at all” in him being allowed to cross-examine the wife whom he saw regularly face to face at drop off of their sons;[10] and
e)a trial without cross-examination was “not a trial”.[11]
[7] Transcript of proceedings dated 27 July 2020, page 15 lines 5-10; Transcript of proceedings dated 27 July 2020, page 15 lines 20-25.
[8] Transcript of proceedings dated 27 July 2020, page 15 lines 10-20.
[9] Transcript of proceedings dated 27 July 2020, page 15 lines 20-25.
[10] Transcript of proceedings dated 27 July 2020, page 17 line 5; Transcript of proceedings dated 27 July 2020, page 17 line 20-25.
[11] Transcript of proceedings dated 27 July 2020, page 17 line 5.
The husband did not provide any explanation as to why the legal practitioner appointed to act for him under the Scheme ceased to do so. He did however refer to her as “completely incompetent” and “hopeless”[12] and indicated to the Court that he was “making a complaint” about his legal practitioner. The husband did not detail any attempts made by him to obtain alternate legal representation in the 24 day period available to him before the commencement of the trial. The husband said, as to the obtaining of such legal representation, “I don’t have any money”.[13] The Court noted to the husband that in his Financial Statement sworn 27 July 2020 he deposed to an income of $1,329 gross per week. In addition, he received benefits paid by his business of $386 each week. The income earned by the husband’s de facto partner, Ms M, was not provided in the husband’s Financial Statement sworn 27 July 2020, however was earlier deposed to in a Financial Statement sworn by the husband on 30 October 2019. At that time the income earned by Ms M was $1,250 gross per week. The Financial Statement sworn 27 July 2020 further described the husband and Ms M’s rental expense as being $375 each week. That document also disclosed the husband paid no child support as assessed.
[12] Transcript of proceedings dated 27 July 2020, page 16 lines 40-45.
[13] Transcript of proceedings dated 27 July 2020, page 16 lines 35-40.
The real crux of this issue however is that s 102NA(2) of the Act is mandatory in its terms. The Court made an order of the type described in s 102NA of the Act on 9 October 2019. Sections 102NA(1)(a), (b) and (c)(i) of the Act are applicable. There is a history of both final and interim intervention orders (‘IVO’). The family violence perpetrated upon the wife by the husband is as set out in the affidavit evidence of the wife and in other corroborative evidence before the Court. When considering this specific application of the husband it is useful to summarise some of that family violence history here.
Following the parties’ separation in May 2016, and in July 2016, the husband, whilst in an intoxicated state, behaved in a manner which scared the wife. That behaviour included the banging on, and kicking of, the wife’s bedroom door being the bedroom she had barricaded herself in to protect herself from the husband. As a result of the husband’s behaviour, the wife called the police. The wife’s evidence as to what then occurred was as follows:-[14]
The Police arrived. I recall that [the husband] was verbally abusive towards the Police and they had to call for back up. Another two Police officers arrived and he was handcuffed and placed on the ground. I recall he called me a “fucking cunt” in front of the Police.
[14] Affidavit of Ms Beckert affirmed 6 July 2020, [291].
The Police subsequently issued a Family Violence Safety Notice and applied for an IVO, listing the wife and the children as affected family members. An interim IVO was issued on 14 July 2016 with orders, including the prohibiting of the husband from committing family violence against the wife and the children.
After the interim IVO was made, the husband exerted pressure on the wife to swear affidavits in order to prevent a final IVO being made against him. The wife’s evidence was that the pressure exerted by the husband included the husband:-[15]
a)standing over her;
b)shouting at her; and
c)saying words to the effect “if an IVO is made, [he] will lose [his] Practising Certificate, [he] won’t be able to earn a living and [the wife] and the children will be out on the street”.
The wife did as the husband requested. Her evidence was that she “just wanted the harassment to stop”.[16]
[15] Affidavit of Ms Beckert affirmed 6 July 2020, [293].
[16] Affidavit of Ms Beckert affirmed 6 July 2020, [294].
On 11 November 2016, the husband consented to a final IVO being made on a without admissions basis. The IVO prohibited the husband from committing family violence against the wife.
On 3 April 2017, whilst the parties still resided under the one roof (but were separated) an argument ensued between them in circumstances where it was late at night and the husband had commenced to play music very loudly throughout the household. The wife had requested of the husband that he turn the music down. The husband initially complied with that request but then turned the music up again so that very loud music emanated from the home. The wife became “extremely distressed”[17] and commenced to scream in order to obtain the attention of her neighbours. What followed thereafter is set out in the wife’s affidavit of evidence affirmed 6 July 2020 at paragraphs 299 to 300:-
299. I understand that our neighbours called the Police and two Police Officers subsequently arrived at our home. When they arrived, as I was walking to answer the door, Mr Beckert screamed “Don't open the fucking door, don't let them in”. When I reached for the security door, Mr Beckert pushed me back. I unlocked the door to let the officers in. Mr Beckert continued to scream at me.
300. He refused to co-operate with the officers. The officers requested back-up and a further two police officers attended resulting in a total of four officers being present. Mr Beckert was eventually arrested for unlawful assault of me and breach of the IVO and removed from the home in handcuffs.
[17] Affidavit of Ms Beckert affirmed 6 July 2020, [299].
The LEAP Victoria Police Sub Incident Summary Report of 4 April 2017 noted further in respect of this incident that the husband was “uncooperative, very loud and controlling”[18] and “would not allow anyone else to speak”.[19] Once in the police divisional van the husband continued to yell and kick.[20] The LEAP Victoria Police Sub Incident Summary Report dated 6 April 2017 noted that the husband, while being taken to the divisional van, had continued to be “verbally abusive calling the AFM a ‘fucking cunt’”.[21] On 6 April 2017, a further interim IVO was made but its conditions are unknown to the Court as it was not in evidence before the Court.
[18] Exhibit ‘A-2’ being the exhibits to the affidavit affirmed by the wife on 6 July 2020, page 84.
[19] Ibid.
[20] Ibid.
[21] Ibid, page 83.
On 14 June 2017 in the Magistrates’ Court of Victoria at Melbourne, the husband was found to have contravened, on 3 April 2017, a family violence intervention order.[22] The husband was required to give an undertaking to the court and it was ordered, relevantly, that:-
… MR BECKERT SEES A PSYCHIATRIST AND OR PSYCHOLOGIST OF HIS CHOICE COMMENCING BY THE 14 JULY, 2017 FOR THE PURPOSE OF TREATMENT CONCERNING ALCOHOL USE AND ANY UNDERLYING ISSUES. MR BECKERT IS TO PROVIDE HIS TREATING PSYCHIATRIST/PSYCHOLIGTA [sic] WITH A COPY OF THE POLICE SUMMARY AND DISCUSS AY [sic] UNDERLYING ISSUES. MR BECKERT IS TO CONTINUE TO PARTICIPATE IN TREATMENT AS RECOMMENDED BY HIS PSYCHIATRIST /OR PSYCHOLIGIST [sic].
(As per the original)
The proceeding was adjourned to 12 June 2018, with the condition “[t]o appear before [the] adjourned date if called upon during the period of adjournment.”[23]
[22] Exhibit ‘ICL-1’ being the Court book sent to the Court by the Independent Children’s Lawyer on 24 July 2020, page 144.
[23] Exhibit ‘ICL-1’ being the Court book sent to the Court by the Independent Children’s Lawyer on 24 July 2020, page 144.
On 9 August 2017 the matter was finalised with the husband pleading guilty to breach of the earlier and final IVO and on the basis of that guilty plea by agreement with the husband, the assault charge against him was withdrawn.[24] The husband was ordered to undertake alcohol counselling.[25] The IVO was extended and varied to a “no contact” order, protecting not only the wife but also the children.[26]
[24] Affidavit of Mr Beckert filed 22 April 2020, [14(c)].
[25] Exhibit ‘ICL-1’ being the Court book sent to the Court by the Independent Children’s Lawyer on 24 July 2020, page 144.
[26] Affidavit of Ms Beckert sworn 6 July 2020, [302].
On 20 January 2018, the husband was charged with one contravention of a final family violence IVO.[27]
[27] Exhibit ‘A-2’ being the exhibits to the affidavit affirmed by the wife on 6 July 2020, page 74.
On 19 February 2018, the husband was charged with two contraventions of a family violence final IVO.[28]
[28] Exhibit ‘ICL-1’ being the Court book sent to the Court by the Independent Children’s Lawyer on 24 July 2020, page 109.
On 5 April 2018, the husband was charged with one persistent contravention of a family violence notice and one contravention of a family violence final IVO.[29]
[29] Exhibit ‘ICL-1’ being the Court book sent to the Court by the Independent Children’s Lawyer on 24 July 2020, page 109.
On 27 July 2018, a further interim IVO was made by the Magistrate’s Court of Victoria, extending the IVO obtained on 9 August 2017 in the same terms. It was to operate until “... final order, unless varied or revoked; or if the application is withdrawn”.[30]
[30] Exhibit ‘A-2’ being the exhibits to the affidavit affirmed by the wife on 6 July 2020, exhibit ‘W-40’, page 344.
On … December 2018, the husband was convicted in the Magistrate’s Court of Victoria of persistently breaching the interim IVO made on 9 August 2017.[31] He was fined $2,000.[32]
[31] Affidavit of Ms Beckert affirmed 6 July 2020, [368.3].
[32] Ibid.
On or around 16 November 2019, the husband was arrested and remanded at the Magistrates’ Court of Victoria for persistent breaches of the IVO. He remains on bail.
On … February 2020, the husband was found guilty of two charges of persistent breach of IVO.[33] He was convicted and received a Community Corrections Order (‘CCO’) which required him to undertake 80 hours of unpaid community work; to undergo assessment and rehabilitation for 40 hours; and enrol in and complete an Offending Behaviour program and a Men’s Behavioural Change program.[34]
[33] Affidavit of Ms Beckert affirmed 6 July 2020, [369].
[34] Affidavit of Ms Beckert affirmed 6 July 2020, [369].
The husband has appealed the above conviction to the County Court of Victoria.[35] He has not undertaken any of the conditions as set out in the CCO.[36] At trial, the wife’s evidence as to the husband engaging in further litigation in respect of the IVOs was that “I feel like he’s using the appeal to just torture me further”.[37] The husband’s evidence as to that was that he considered the wife’s evidence to be “bullshit”.[38] His reason given for appealing was “I don’t want to be on a CCO”.[39]
[35] Affidavit of Ms Beckert affirmed 6 July 2020, [371].
[36] Affidavit of Ms Beckert affirmed 6 July 2020, [371].
[37] Transcript of proceedings dated 27 July 2020, page 41 lines 30-35.
[38] Transcript of proceedings dated 27 July 2020, page 88 lines 25-30.
[39] Ibid.
There is a mention listed for … November 2020 in the Magistrates’ Court in respect of the wife’s further application for an extension of the current interim IVO.[40]
[40] Affidavit of Ms Beckert affirmed 6 July 2020, [358] and [362].
Many of the persistent breaches of the IVO charges have related to the husband frequently sending the wife abusive WhatsApp and text messages either as to the parties’ three sons and/or as to his views of the wife and/or demands made by him of the wife. The wife set out a number of examples of these messages which she considered to be “abusive, threatening and or derogatory in nature”[41] in paragraph 337 of her affidavit of evidence affirmed 6 July 2020. The Court concurs with her description of these messages. Some part of the evidence put before the Court is as set out below:-
[41] Affidavit of Ms Beckert affirmed 6 July 2020, [337].
DATE
TIME
MESSAGE
14 June 2018
3.35pm
“You are delusional. You haven't worked in any appreciable way since may 2008... I believe you abused Ms M on Instagram as a delusional half wit twat. I’m not making that comment about you. This is just an observation.”
9 July 2018
6.43pm
“My generosity is related to keeping the home I built and renovated, for the boys ... You’re on very dangerous ground now. My financial and property patience is running out”.
13 July 2018
11.17am
“Boys are coming to court. They won’t know what’s going on, but they’ll be very interested in lies you might tell about me”.
22 July 2018
1.44pm
“Do you understand how pathetic family law disputes become? Obviously you’re doing your best to achieve a gold medal. You’re well and truly in the race. So to be very clear, everything you think you own, I paid for”.
22 August 2018
9.54pm
“So, if it’s not abundantly clear, despite your degree, I know a shitload more about medicine than you ...”
10 October 2018
9.11pm
“Drop the Bullshit application”
17 October 2018
8.48pm
“You want to settle, and your lying lawyers prepare documents that involve you seeking sole parental custody. Gloves are off”.
1 January 2019
11.15am
“Here’s a song for you…Put down your Weapons by Yami Bolo”
1 January 2019
11.23am
“Here’s a song for you ... Throw Down Your Guns by Wild Belle”
1 January 2019
12:14pm
“Here’s a song for you… Reckless (Don’t be so)”
2 January 2019
9.12pm
“Here's a song for you ... Cold as Ice by Foreigner”
2 January 2019
9.59pm
“Indictable offence coming up for you”
8 January 2019
2.32pm
“You’re going down for financial fraud ...do you want the boys life to be a horror show?”
10 February 2019
11.13pm
“I need $50k. It’s not a joke. You’ll spend $5k opposing, I’ll get the orders. You’ll waste $5k. What's the point?”
11 February 2019
11.29am
“Homeless, office less, carless. Why wait a week for a release you can agree to today $50 out of $990”
11 February 2019
1.19pm
“I need 50k. You work 1 day a week according to you. Guess who has to work 6”
“I need $50k. The hearing is in 1 week”.
11 February 2019
4.22pm
“There’s going to be an appeal de novo. Im not wearing this. Big fat $2k.”
11 February 2019
7.08pm
“Convictions annoy me. So appeal within 28 days, and Monday for some money”.
11 February 2019
7.13pm
“I’ve read your lies. I've read the police lies. Wait for the demolishment”.
11 February 2019
7.15pm
“These people seem to be too stupid to tell the same lies. They’re in writing, FFS”.
21 February 2019
6.17pm
“I told you that you’d pay $k and not get it back that lying sack of shit of a barrister cost you money you will never see again. Good job”
15 March 2019
7.26pm
“... I need a certain lying falsely crying person to disappear from my life”
8 April 2019
9.13pm
“Do you actually want me to go to jail, and the boys to live with that. You know I’m safe, kind and me. Stop walking into pig shops”
9 October 2019
6.30pm
8.21pm
8.22pm
9.37pm
“I’ll be appealing the orders. Let’s have some more time in court”
“The ICL confirmed the barrister did not have instructions to make the submissions. Boys full weekend. Thank you”.
“Walk up appeal”.
“I have the relevant recordings”.
10 October 2019
8.44am
8.47am
“Boys full weekend. You can
Agree”
“I suggest full weekend is to the boys benefit, and yours. Any tinder dates planned”
18 October 2019
10.04pm
“Are you counting $$ or pain? I just want to spend real time with my boys”
The husband gave evidence at trial that he did not consider the text messages he sent to the wife to be abusive. He described the wife as putting on “crocodile tears”.
It is clear on the evidence that there has been ongoing family violence perpetrated by the husband upon the wife. There has been the need for the making of both final and interim IVOs. The husband has been convicted of breaching IVOs. He has thus far been found guilty of five charges of ‘persistent breach’. An inference can be drawn from the five persistent breach convictions that the husband does not abide by orders of the Court and further, that he lacks any control or insight into the effect of his behaviour. It is clear that the purpose of the introduction of s 102NA of the Act into the legislation was to prevent the perpetrator of family violence, in this case the husband, from subjecting the wife to cross-examination by him. That did not mean however, that the husband could not challenge the wife’s evidence. He was assisted by the tax payer funded Commonwealth Scheme. He also had the option of securing for himself legal representation, if only for that limited purpose of cross-examining the wife.
I accepted counsel for the wife and counsel for the Independent Children’s Lawyer’s submissions that if in the circumstances of this case, the husband was permitted to cross-examine the wife, then the legislation would have no purpose. The husband’s application was dismissed.
Application for Disqualification
After the luncheon adjournment on the first day of the trial the husband made an oral application before me to disqualify myself from the further hearing of the proceeding on the ground of actual bias. When asked by the Court the factual matters that formed the basis of such an application, the husband indicated in submissions the basis of his application was that:-
a)bias was demonstrated by me in refusing the husband’s application earlier that day to permit him to cross-examine the wife;[42]
b)bias was demonstrated by me in February 2020 in the making of orders which according to the husband were “some pretty severe self-executing orders”;[43]
c)bias was demonstrated by me in the making of the orders of 8 October 2019 and 9 October 2019 being orders that suspended the children’s overnight time with the husband and which are discussed hereafter. The husband considered the making of such orders to be equal to actual bias and being orders with which he did not agree; and
d)bias was demonstrated by me in the content of the reasons for judgment delivered by me on 23 October 2019.
[42] Transcript of proceedings dated 27 July 2020, page 53 lines 35-40.
[43] Transcript of proceedings dated 27 July 2020, page 54 lines 5-10.
The husband subsequently altered his oral application to include the further ground of apprehended bias. He submitted as to that ground:-[44]
I am feeling apprehensive because you will not rule in favour of me in any respect. You will not listen to any points that I make. You never have and you never will. At the – every hearing, ..... last directions hearing, you said something to me when I brought an application to reinstate overnight orders – and you said something in relation to that hearing. ..... but in actual fact, did not say that ‑ ‑ ‑
[44] Transcript of proceedings dated 27 July 2020, page 54 lines 40-45.
On 8 October 2019, the husband arrived at the Court visibly intoxicated. On that day counsel for the wife and counsel for the Independent Children’s Lawyer informed the Court that they considered the husband to be intoxicated. The husband assured the Court that he had not consumed any alcohol that day however the Court suggested the husband attend upon the local Police station on William Street to undergo a breath test. The husband refused to do so. The Court directed the parties to return the following day, and put the husband on notice that he would need to blow into his own breathalyser in open Court. The following day, the husband returned a reading of 0.097, being almost twice the legal driving limit. The Court made orders to suspend the children’s overnight time with the husband on the evidence before it which included that when drinking the husband represented a risk to the children.
The Court dismissed the husband’s application for disqualification and subsequently indicated it would provide reasons for that dismissal in the body of these reasons. I do so now.
Turning firstly to the complaint of actual bias. Like the claim of apprehended bias any accusation of actual bias by a decision maker must be both “distinctly made”[45] and “firmly established”.[46] It is a high bar. Matters going to the husband establishing his onus of proof in this regard are as set out by Strickland J in Bulow & Bulow [2020] FamCAFC 120 wherein His Honour said the following as to an allegation of actual bias:-
37. An allegation of actual bias sometimes takes the form of an allegation of pre-judgment. In other words, where the decision-maker is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (MIMA v Jia Legeng, per Gleeson CJ and Gummow J at [72], per Kirby J at [127]).
38. Relevantly, this test of actual bias in the form of pre-judgment, requires an assessment of the state of mind of the judge in question (Michael Wilson and Partners Limited v Nicholls (2011) 244 CLR 427 at [33]). Again though, even this form of actual bias need not be confined to an intentional state of mind, but it must be real, and may be established by inference from the circumstances, including from the decision itself (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs(2000) FCA 668 at [37]).
39. However, as was said by Von Doussa J in SCAA v MIMIA at [38]:
In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion…
[45]Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, [127].
[46]Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342, [352].
Turning to the question of apprehended bias. As observed by Alstergren CJ in Charisteas & Charisteas and Ors [2020] FamCAFC 162 (‘Charisteas’) at paragraph 25:-
The rule against apprehended bias requires that decision-makers be seen to approach matters with an impartial mind. A judge must not sit on a case where there is a reasonable apprehension that his or her decision may be influenced by interests, associations, preconceptions or other influences outside the facts of the case.
The law in regard to recusal on the ground of apprehended bias is as set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (‘Ebner’) where the High Court said:-
6.Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
…
8.The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
…
In the earlier High Court decision of Johnson v Johnson (2000) 201 CLR 488 (‘Johnson’) Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated:-
12 … The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
(footnotes omitted)
On the oral application of the husband the necessary legal test as set out in Ebner and Johnson was not satisfied by the husband. Whilst the husband may be possessed of some subjective views that is not the test articulated by the High Court. Further, none of the submissions of the husband went to the identification of what it is said might lead me to decide the case on anything other than its legal and factual merits.
In Spencer & Spencer [2019] FamCAFC 180, Ryan J said:-
4. As to the characteristics of the hypothetical observer, in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232] the New South Wales Court of Appeal said:
…[T]he hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally.
5. Such a person should not therefore be taken to be completely unaware of the way in which cases are brought to trial and tried (Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [177]).
6. Furthermore, it is well settled that just as the judge should to a proper extent listen, so the judge should to a proper extent express any tentative views (Antoun v The Queen (2006) 80 ALJR 497 at [32]) (“Antoun”). Where these views are couched appropriately, at the proper time and in due sequence, no reasonable apprehension of bias will arise (Antoun at [27]). However, “[a] line is drawn between forthright and robust indications of a trial judge’s tentative views on a point of importance in a trial and an impermissible indication of prejudgment” (Antoun at [29]).
In relation to the characteristics of the hypothetical lay observer, Alstergren CJ in Charisteas said as follows:-
44. The characteristics of the hypothetical “fair-minded lay observer” were recently set out in Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42 where the Full Court of the Federal Court stated at [21]:
…That observer is amongst other things: (1) taken to be reasonable; (2) does not make snap judgments; (3) knows commonplace things and is neither complacent or unduly sensitive or suspicious; (4) has knowledge of all the circumstances of the case; and (5) is an informed one who will have regard to the fact that a judicial officer’s training, tradition and oath or affirmation, equip the officer with the ability to discard the irrelevant, the immaterial and the prejudicial…
The husband submitted, as best I can ascertain it, that he was cut off by me at various points and that this conduct gave rise to apprehended bias and/or actual bias. The efficient use of Court time is important. Not only to the litigants participating in the proceeding, but to all litigants who do come, and who wish to come, before the Court for resolution of their dispute. There must be, in the operation of the Court, an ability for all litigants who need access to justice to achieve that in a fair, just and timely (for all) determination.
The husband’s assertions are generalised. In those instances where he was interrupted by the Court, the hypothetical observer, being a reasonable person, would not apprehend pre-judgment nor that the husband was not given a fair hearing. Rather the hypothetical observer would understand that in order for the trial to proceed in a timely, organised and civilised way, whereby the interests of justice are served in respect of each of the litigants before the Court, on occasion, there will be a need to interrupt a litigant and redirect their focus to that which is relative and probative. Otherwise, the husband’s complaint was that he objected to the previous orders made by me. They were made on the basis of the overwhelming evidence before the Court at the relevant time. The husband has not appealed any decision complained of. He is one party to the proceeding. The Court has been mindful throughout that all parties need to be treated with respect and fairly, and the administration of justice not impermissibly interfered with.
In his submissions the husband failed to establish that which was necessary for him to establish to compel me to disqualify myself.
The matter proceeding undefended
For some time prior to, and shortly after the luncheon adjournment, on the first day of the trial, the husband was allegedly having difficulties with his office IT and connecting with the Court and other parties, through the Microsoft Teams video link. Whatever those difficulties, the result was that the husband was unable to be clearly understood at all times by the Court and the other parties. The husband’s video connection was poor, and it was difficult to see his face as the connection continued to freeze. More importantly, the audio connection of the husband was of poor quality and “muffled” and there was significant latency which resulted in, at times, the Court only being able to decipher every second or third word, if any words at all, said by the husband. The husband was given a number of opportunities to address the IT issues he was experiencing such that he was, for example, advised to disconnect and subsequently re-join the proceeding via the same link provided by the Court. The husband managed to reconnect by video link although there remained problems in respect of him being heard clearly in the giving of his evidence and in the making of his applications and submissions. Part of the difficulty in hearing the husband was the location at which he had positioned himself relative to the microphone in-built into his computer. He was requested by the Court to move closer to the computer and thus be speaking more directly into the microphone. The husband then proposed that he remain in the Microsoft Teams meeting with a video link, but that he would simultaneously connect via an audio link operated from his mobile phone. At the husband’s request, the Court attempted to make the necessary arrangements to enable the husband to participate in the proceeding at that stage in the manner he desired. There was no objection to the husband proceeding in that manner by the other parties. Indeed, counsel for the wife had earlier suggested to the husband that he participate in the trial by the use of the Microsoft Teams application available for both iPhone and Android smartphones. Counsel for the wife indicated that had worked well for him on a number of occasions. The husband’s response to that was “… the premise is I don’t have an iPhone and nor would running a case of this nature be conducive to running it through a phone app.”[47]
[47] Transcript of proceedings dated 27 August 2020, page 11 at lines 1 to 5.
The husband continued to address the Court but could not be properly heard. At that time, counsel for the wife said of the husband “my instructions are he is incredibly technically efficient in relation to matters like this”.[48] Shortly after, the husband could be heard clearly. He was connecting to the proceeding through the audio link on his computer and via the Microsoft Teams platform. This was the audio link the husband had earlier indicated he would mute in order to operate his mobile phone audio being the method proposed by him. At that point the following exchange occurred:-[49]
MR BECKERT: No, no, your Honour – for God’s sake. I haven’t been called on my mobile. I did take a call and – I am repeating myself now. I took a call, it was from a zero-two number. Now a zero-two number is not terribly logical if this call is from Melbourne, because Melbourne starts with zero-three. Now I hung up on that because I thought it was the wrong call. Now if that’s - - -
ASSOCIATE: Okay, thank you – I will just interject - - -
MR BECKERT: - - - call is coming from - - -
HER HONOUR: Just a moment, please, Mr Beckert – Mr Beckert, this is now becoming – just please follow the instructions of my Associate, who did call you. [Associate], you will have to call Mr Beckert’s office or – sorry, call his number again. Mr Beckert - - -
ASSOCIATE: Mr Beckert, I will call your number again. It is a zero-two number because that’s how – the Teams server runs somewhere in New South Wales, so you will have to answer that one.
MR BECKERT: I am very sorry – I am very sorry – yes. I am very sorry. I saw a zero-two number, I thought it was the wrong call, I was waiting for your call. Okay. So it’s coming from zero-two number, no problem, I will press ‘answer.’ All right. There are two issues with this: one, can you hear me – can you hear me?
HER HONOUR: Yes, we can hear you, thank you.
[48] Transcript of proceeding dated 27 July 2020, page 50 at lines 20 to 25.
[49] Transcript of proceedings dated 27 July 2020, page 51 at lines 1 to 25.
Thereafter, in commencing to open his case, the husband was heard to clearly submit that his first application was that I disqualify myself. The proceeding continued for a short time with the husband participating in the trial by audio and video link on the Microsoft Teams platform. That method of his participation was however continuing to prove problematic, and in danger of not providing a complete transcript. The Court indicated to the husband that his remote connection needed to become a single telephone audio link, without video, to his office, to ensure the husband could be properly heard and that he would not be able to appear by video link for the rest of the afternoon. The husband responded to that indication “I agree”.[50]
[50] Transcript of proceeding dated 27 July 2020, page 55 at lines 40 to 45.
Part of the Court’s difficulty, and that of the other parties’ in hearing the husband, was the husband being observed to be placing his hand in front of his face; not talking at the screen; not leaning in to the screen and microphone where necessary; and otherwise not speaking clearly.
On 12 September 2018, settlement took place in relation to the sale of the Suburb E property which had sold for $910,000. Disbursement of those sale proceeds occurred in accordance with the orders as set out in the preceding paragraph. In respect of the taxation liability of $148,622.81, the husband had sought that the sum be paid from the net proceeds of sale, that liability being a debt of K Pty Ltd. In his affidavit sworn 31 August 2018 at paragraph 15 his evidence was that the payment of such sum would await characterisation at trial. It would appear from the face of the orders that the wife simply agreed to pay this debt.
At around this time, and in August 2018, the Suburb DD property was sold for the sum of $1,700,000. Settlement took place on 1 November 2018.[254] From the net sale proceeds the parties had been ordered to repay to the wife’s parents the sum of $336,000 as earlier loaned by them to the parties. The order making provision for this was made in the FCC on 26 February 2018 and was as follows:-
8. Upon the settlement of the sale of the CC Street property the proceeds of sale will be applied:
…
(c) The sum of $336,000 to the wife’s parents; …
[254] Affidavit of Ms Beckert affirmed 6 July 2020, [41].
The husband refused to provide consent to the release of the sum of $336,000 between February 2018 and mid-January 2019.[255] The husband also failed to facilitate, despite earlier Court order that he do so, the transfer of the net sale proceeds of the Suburb DD property into the controlled monies account managed by the wife’s solicitors.[256] The husband’s punitive behaviours required further attendance at Court and further costs to be incurred by the wife.
[255] Affidavit of Ms Beckert affirmed 6 July 2020, [43.2].
[256] Affidavit of Ms Beckert affirmed 6 July 2020, [43.1].
Pursuant to orders made in the FCC on 5 September 2018, the Town H property was sold in January 2019 for a sale price of $475,000. Settlement occurred on 22 March 2019 and the parties received the amount of $435,584 as net sale proceeds. These monies are currently held in the controlled monies accounts. The orders made 5 September 2018 provide for the proceeds of the Town H property to be invested into a term deposit account on behalf of the parties. The husband refused to provide his consent for this to occur. As a result the wife’s solicitors did not receive the proceeds until June 2019. The wife at the time expressed concern about the loss of investment income that could have been earned were it not for the husband’s refusal to provide his consent.
Other matters following separation
In about mid-2017 the parties agreed to borrow a further $250,000 from the CBA which was secured by the Suburb DD property. That increase resulted in a mortgage encumbrance on the property of approximately $700,000. The borrowings were for the purpose of meeting various liabilities. The CBA provided the funds on 27 September 2017 by depositing them into the wife’s CBA account ending #...13. A portion of the funds were applied by the wife to the discharge of some agreed liabilities including:-
a)payment of CGT in the amount of $62,083.02 relating to the earlier sale of the Suburb WW property; and
b)payment of the wife’s credit card debt in the sum of approximately $33,000.
On 28 August 2017 the real estate agents managing the parties’ Suburb DD property terminated their retainer following an email sent to them by the husband on 25 August 2017 which stated, relevantly:-
Your instructions are to tell the tenants to go and get fucked. We are not building them a new house. If they’re too fucking stupid to use the pole upstairs, send them to a fucking mental institution…
You will be terminated as agents if your [sic] raise this shit with us again. We just build [sic] them a new bathroom. Who the fuck do you think you act for.[257]
Thereafter the husband began to manage the Suburb DD property himself.
[257] Exhibit ‘W-04’ to the affidavit of Ms Beckert affirmed 6 July 2020.
On 28 September 2017, the wife logged on to her internet banking and discovered that the husband had accessed the account into which the CBA monies had been deposited as described in paragraph 221 above without her knowledge or authorisation. The husband had transferred the remaining funds, being in the amount of $156,536.98, initially into an account in the parties’ joint names, and then into an account ending #...01, being an account unknown to the wife. An urgent email was sent to the husband by the wife’s solicitors requesting particulars of the account and evidence of payment of the previously agreed liabilities. In his response the husband stated:-[258]
Yet again I am forced to say your client is a liar.
Your client did not apply funds in accordance with the agreement. I then indicated she had repudiated the agreement. I accepted her repudiation of it.
…
[258] Exhibit ‘W-10’ to the affidavit of Ms Beckert affirmed 6 July 2020.
Despite asserting, in text messages sent to the wife, that he had applied the funds to agreed liabilities, the husband did not, and has not, provided documentary evidence to substantiate such assertions. The husband’s affidavit evidence, uncorroborated, was that he applied the sum of $40,000 to his personal taxation liabilities; the sum of $70,000 to the taxation liabilities of K Pty Ltd; the sum of $22,000 to the husband’s AMEX card; and the sum of $14,000 to the husband’s ANZ credit card. Without documentary evidence the husband’s application and/or retention of such funds remains unable to be determined by the Court save that the Court accepts that the parties had outstanding credit cards at the time, and accordingly that part of the husband’s evidence as to his repayment of the total sum of $36,000 is accepted. Additionally, the husband, as admitted by him in his affidavit of 18 February 2018, deposited the sum of $50,000 in an account under his control on “account of legal expenses”. This was a unilateral and premature distribution of the property assets of the parties to him.
Until around 21 November 2017 the husband regularly deposited the sum of $6,450 into the parties’ joint account. The wife’s income from her employment and the rental income from the Suburb DD property (which was managed by the husband from August 2017) were also deposited in this joint account. These funds were used by both parties with the wife using it to meet the expenses of the children and herself.
On 1 November 2017 the husband stopped depositing the rental income received by him from the Suburb DD property, into the parties’ joint account.[259]
[259] Affidavit of Ms Beckert affirmed 6 July 202, [121].
On or about 21 November 2017, the husband reduced his $6,450 fortnightly payment into the joint account to $1,500 per fortnight for the support of the wife and children.[260] As a result of this reduction, the wife used monies held in bank accounts in the children’s names to meet her and the children’s living expenses. Thereafter she made application for child support payments.
[260] Affidavit of Ms Beckert affirmed 6 July 202, [122].
On or about 22 November 2017, the husband ceased making all payments with respect to the Suburb DD property and the Suburb E property loans. As a result, the wife sought and obtained a hardship variation for a period of three months from the CBA.[261] She was able to arrange further hardship variations following the initial three month period.
[261] Affidavit of Ms Beckert affirmed 6 July 202, [122].
On 9 December 2017 the husband ceased making all payments to the wife.
Beckert Superannuation Fund
The taxation returns and financial statements for the self-managed superannuation fund for the taxation years 2016 to 2018 have not been provided to the wife.[262]
[262] Affidavit of Ms Beckert affirmed 6 July 202, [156].
During the period of 1 July 2016 and 5 July 2020 the husband withdrew a total sum of $283,447.39 from the self-managed superannuation fund bank account ending #...41. The amounts withdrawn over this period of time ranged from $15 to $50,000.[263] On 3 June 2019 the wife’s solicitors wrote to the husband requesting full particulars, including of each withdrawal made by him from the account ending #...41 from the period of 1 June 2016 to 14 April 2019. In response, the husband provided a one-page document that listed a number of transactions accompanied by three pages showing transactions from the account from 25 November 2017 to 4 July 2019. No further detail or explanation was provided.[264] As at 5 July 2020 the account had a balance of $0.16.[265] Of the total sum of $283,447.39 an amount of $3,988 appeared to be legitimate withdrawals of the fund’s monies in that those monies were applied to payment of the fund’s necessary expenses. That left a sum of approximately $279,460 unaccounted for by the husband.
[263] Ibid.
[264] Affidavit of Ms Beckert affirmed 6 July 202, [151].
[265] Affidavit of Ms Beckert affirmed 6 July 202, [147].
On 31 May 2019, orders were made by the FCC requiring the parties to engage an accountant to ascertain whether the self-managed superannuation fund was compliant and if not, to take steps to make it compliant. A draft joint letter of instruction to O Group was prepared by the wife’s solicitors and sent to the husband for approval. The letter included a paragraph stating that the wife asserted a sum of money had been withdrawn from the self-managed superannuation fund accounts and that this would as a result mean the self-managed superannuation fund was non-compliant. The husband refused to include any reference to withdrawn monies being included in the letter to O Group.[266] O Group has not advised the parties whether the self-managed superannuation fund is compliant and the wife does not have any information or records pertaining to the self-managed superannuation fund such that she cannot obtain advice from an accountant directly.[267]
Section 75(2) of the Act matters
[266] Affidavit of Ms Beckert affirmed 6 July 202, [161].
[267] Affidavit of Ms Beckert affirmed 6 July 202, [162].
Wife’s current financial position
The wife is in receipt of Centrelink payments being a family payment of $345 per week and the single parent pension of $375 per week.[268]
[268] Affidavit of Ms Beckert affirmed 6 July 202, [174].
The wife also receives financial assistance from her parents who pay the wife’s rent in the amount of $580 per week; for groceries in the amount of approximately $300 per week and for entertainment and outings in the amount of approximately $200 per week.[269] On occasion, the wife’s parents have also paid the outstanding balance on her credit card; for a cleaner in the amount of $80 per fortnight; some of the wife’s legal fees; school fees for the children and clothing for the children.[270]
[269] Affidavit of Mr Beckert filed 22 April 2020, [177].
[270] Affidavit of Mr Beckert filed 22 April 2020, [178].
The provision of such financial support is a “significant drain on [the wife’s parents] financial situation”[271] and the wife’s father has had to return to work as a teacher so that such financial support can be provided to his daughter and grandchildren. The wife does not wish to rely on her parents to the degree that she does currently and she does not believe “they have the capacity to continue assisting” her to this extent.[272] The wife’s parents have loaned her approximately $150,000 and there is an expectation that she will repay them.[273]
[271] Affidavit of Mr Beckert filed 22 April 2020, [180].
[272] Affidavit of Mr Beckert filed 22 April 2020, [180].
[273] Affidavit of Mr Beckert filed 22 April 2020, [183].
The wife was due to commence a Masters degree in August 2020 and is hopeful she can commence work as a professional in two years’ time.[274]
[274] Affidavit of Mr Beckert filed 22 April 2020, [182].
The wife is the primary carer of the three children who are all six years of age. The family violence perpetrated by the husband has caused her significant stress and anxiety. She has been engaged in free community counselling services however these have ceased due to funding issues. It is the wife’s intention to commence treatment with a psychologist upon the conclusion of the current proceedings.
Although she is a qualified in healthcare, the wife ceased her part-time employment in May 2019 citing her continued experiences of stress and anxiety resulting from this proceeding and the intervention order proceedings as one of the reasons for that cessation.
The husband reported to Dr W in July 2020 that his business was “fairly successful” and claimed he was in receipt of legal aid funding because all his money was tied up in trust. The husband’s income from K Pty Ltd cannot be accurately ascertained by the Court. The husband was not a credible witness in this regard on the little evidence he gave with respect to his receipt of income as described in paragraph 17 herein. The husband has a significant earning capacity and is operating his own practice which was established by him with assistance from the wife and her mother some 11 years ago.
Costs
As referred to in paragraph 106 herein there is an outstanding costs order against the husband relating to the wife’s costs of the vacated trial on 27 May 2019 in the FCC.
The wife also sought costs on an indemnity basis in relation to:-
a)the Application in a Case filed by her on 30 August 2018 which was necessitated by the failure of the husband to comply with previous orders of the FCC, being the orders made 26 February 2018 and 20 April 2018. The wife’s costs (reserved on 5 September 2018)[275] included the preparation of the Application in a Case and supporting affidavit and the cost of counsel appearing on the wife’s behalf at the hearing on 5 September 2018;
b)the hearing on 18 December 2018 in the FCC. The proceeding was listed for hearing of the husband’s Notice of Objection filed 29 November 2018 which had been filed by him in response to the wife issuing a subpoena to Victoria Police. The wife’s costs of the application were reserved.[276] The husband’s objection to the subpoena was wholly unsuccessful;
c)the hearing on 8 October 2019 which is outlined in paragraph 42 of these reasons. On that day the parties were required to return to Court the following day, being 9 October 2019, because the husband had arrived at the hearing intoxicated. The Court reserved the costs of the wife;[277]
d)the hearing on 6 April 2020 which was listed to ensure that the husband had complied with the Court’s orders of 10 February 2020; and
e)the issuing of subpoenas to the CBA, NAB, ANZ and AMEX which was necessitated by the husband’s failure to provide disclosure documents to the wife.
[275] Order made by Judge Kelly in the Federal Circuit Court on 5 September 2018, order 5.
[276] Order made by Judge Kelly in the Federal Circuit Court on 21 December 2018, order 4.
[277] Order made by Justice Hartnett on 9 October 2019 order 8.
Conclusion
The net assets that remain available for distribution between the parties provide not a large sum of money for the parties going forward after their 11 year period of cohabitation. The wife’s direct capital financial contributions made by her and/or on her behalf at commencement of cohabitation and during the period of cohabitation total approximately $496,000 ($80,000 + $10,000 + $20,000 + $85,000 + $301,000).
The husband made no direct capital contributions in the relevant period. His financial contributions were those of his income throughout the period of cohabitation and the marriage where he was almost entirely exclusively the sole income earner for the family. He was diligent in that regard.
The wife was the primary carer of the parties’ three children. This role was all-consuming for her. She has been assisted greatly by her parents, who have attended the wife’s home on an almost daily basis to assist her in the care of the children including when the wife has had to attend appointments or a social event.[278] The husband assisted in the children’s care to the extent described in these reasons. It was no small task for each of the parties to care for their three small, young and same age children.
[278] Affidavit of Ms Beckert affirmed 6 July 2020, [106].
Following separation the majority of care for the children, and payment for their support, has fallen on the wife. In particular, since December 2017. At that time the husband withdrew all financial support for the wife and the children save as otherwise described in these reasons. Throughout this period the husband has continued to earn income and has maintained ownership of the corporate structure through which he earns his income. His earning capacity continues to significantly outweigh that of the wife.
Unaccounted for sums of money taken by the husband
The husband provided no documentary financial disclosure as to what he had done with:-
a)the sum of $156,536.98 which he took from the wife’s bank account as described in paragraph 223 above. He did however admit that he applied $50,000 on “account of legal expenses”. Additionally the Court accepts that approximately $36,000 of these monies were applied toward credit card debt. There thus remains approximately $70,536.98 unaccounted for;
b)the sum of $279,460 which the husband withdrew from the parties’ self-managed superannuation fund and which he has failed to return to that entity;
c)the storage facility in the self-managed superannuation fund of the parties, including any details as to its address and value and/or whether it remains as an asset of the fund; and
d)the Suburb WW property net sale proceeds.
The husband has received post-separation a sum of $148,000 to pay an ATO taxation debt incurred by his business. He has also received the sum of $86,020 as an advance on property settlement. He has also received the sum of $50,000 as described in paragraph 224 above.
The wife has received the sum of $36,020 by way of part-property settlement. She has received a further sum of $135,000 to be characterised by the trial judge. On the basis of the totality of the evidence as set out in these reasons and in particular, the husband’s lack of financial support for the wife in the period from December 2017 until present, the Court determines that $112,000 of that sum should be seen as the provision of spousal maintenance for the wife in the intervening period. Thus the wife has received by way of part-property settlement a total sum of $59,020. The calculation of the spousal maintenance attribution is referable to a period of some 32 months to the time of trial and calculated on a sum of approximately $3,500 each month to the wife taking into account the husband’s obvious capacity to pay and the wife’s extreme need.
The Court determines that orders should be made by the Court in terms almost entirely of the orders as sought by the wife. The husband’s failure to provide financial disclosure means the Court cannot be satisfied as to the precise amounts that have been taken by the husband in reduction of the net asset pool prior to trial but they include those amounts as set out in paragraph 246 above. In his application for the motor vehicle 1 lease, the husband asserted that he had $1,000,000 cash in bank and home contents worth $200,000. The husband has not disclosed same during the course of this proceeding. The outcome of the proceeding shall include that the remaining available monies be paid out to the wife. Adjustments in her favour are made in respect of her financial contributions at the commencement of and during the parties’ cohabitation, and in respect of the s 75(2) of the Act matters which are overwhelmingly in the wife’s favour. It is otherwise not possible to place a percentage adjustment figure on the parties’ net assets. That is as a direct consequence of the husband’s failure to make financial disclosure.
The orders provide for the husband to return the wife’s entitlements to the parties self-managed superannuation fund to enable access to those monies by the wife.
As required by s 79(2) of the Act, the Court is satisfied that, in all the circumstances of this proceeding, those circumstances being detailed in the reasons above, it is just and equitable to make the orders as sought by the wife.
Further in respect of the costs orders as sought by the wife, the Court makes such orders. One is in the nature of an enforcement order of an order already made by His Honour Judge Kelly on 31 May 2019. The remaining orders are indemnity costs orders. Pursuant to s 117 of the Act, parties bear their own costs to proceedings and the Court may exercise its discretion in “exceptional”[279] circumstances which have a “special or unusual feature… to justify” [280] the making of an order for costs to be paid on an indemnity basis, having regard to the factors in s 117(2A) of the Act.[281] Such circumstances can exist where there is “[e]vidence of particular misconduct causing loss of time to the court and to other parties”.[282]
[279] Acland & Grohl [2019] FamCAFC 69, [4] citing Kohan & Kohan (1993) FLC 92-340, D & D (Costs) (No.2) (2010) FLC 93-435 and Limousin & Limousin (Costs) (2007) 38 Fam LR 478.
[280]Colgate-Palmolive Co Ltd v Cussons Pty Ltd (1993) 46 FCR 225, [233]-[234]
[281]Colgate-Palmolive Co Ltd v Cussons Pty Ltd (1993) 46 FCR 225.
[282] Munday v Bowman (1997) FLC 92-784 at p 84,66 citing Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd, (unreported, Federal Court of Australia, 3 May 1991).
The financial circumstances of the wife are dire. She will be required to pay significant legal costs from any monies received by her. She will also be required to repay her parent’s loan to her of $150,000. Her income and earning capacity are significantly less than that of the husband. Neither party is in receipt of legal aid, although the husband was for a period of time, as a result of the making of the s 102NA of the Act order. The proceedings for which costs are sought were necessitated by the failures of the husband to comply with previous orders of the Court. The husband’s mode of operation throughout has been to cause chaos and obstruction, resulting in the accumulation of legal costs by the wife, before then consenting to orders upon the hearing. This has occurred in many instances. The husband’s conduct throughout the litigation has occasioned further cost to the wife. His failure to comply with orders; his failure to make proper financial disclosure; his failure to engage in a reasonable manner to progress the litigation; and his aggressive and combative attitude have all combined to significantly increase the legal costs of the wife. These were all unnecessary costs. The claim for indemnity costs requires the satisfaction of a higher bar. That is amply met in the facts of this case. The quantums claimed by the wife are reasonable. The indemnity costs orders as sought by the wife shall be made.
I certify that the preceding two hundred and fifty-three (253) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 10 September 2020.
Associate:
Date: 10 September 2020
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