Betro & Grima (No 6)
[2024] FedCFamC1F 65
•12 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Betro & Grima (No 6) [2024] FedCFamC1F 65
File number: SYC 1826 of 2021 Judgment of: ALDRIDGE J Date of judgment: 12 February 2024 Catchwords: FAMILY LAW – PARENTING – Parties reached a consent position on all issues except the father’s attendance at the child’s school and an injunction against the mother’s attendance at the father’s residence and workplace – Where the father’s attendance at the child’s school would be inconsistent with the tenor of the limited time regime – Where there is no evidence justifying such an injunction against the mother – No further orders made. Legislation: Family Law Act 1975 (Cth) s 68B Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 12 February 2024 Place: Sydney Solicitor for the Applicant: The People’s Solicitors Counsel for the Respondent: Mr Othen Solicitor for the Respondent: Lionheart Lawyers Counsel for the Independent Children's Lawyer: Mr Gabrial Solicitor for the Independent Children's Lawyer: Phillip A. Wilkins & Associates ORDERS
SYC 1826 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BETRO
Applicant
AND: MS GRIMA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
12 FEBRUARY 2024
THE COURT NOTES THAT:
A.“B Pty Ltd” means B Pty Ltd. The applicant father (“the father”) is the sole shareholder of B Pty Ltd. The father placed B Pty Ltd under external administration in early 2024. B Pty Ltd is the trustee of the B Unit Trust.
B.“C Pty Ltd” means C Pty Ltd. The father is the sole director and shareholder of C Pty Ltd. C Pty Ltd is the trustee of the C Discretionary Trust. C Pty Ltd, as trustee for the C Discretionary Trust, holds 100% of the units in the B Unit Trust. The father holds the power of appointment over trustee of the C Discretionary Trust.
THE COURT ORDERS BY CONSENT THAT:
PARENTING
1.All previous parenting orders are discharged.
2.The respondent mother (“the mother”) have sole parental responsibility in relation to the child X born 2016 (“the child”).
3.The child live with the mother.
Communications with the child
4.As and from the date of the making of these orders until 31 January 2025:
(a)The father shall spend time with the child for three hours per four week period supervised by PP Contact Service, or other agreed professional contact service, at the father’s expense, on each fourth Saturday afternoon from 1.00 pm to 4.00 pm, commencing 17 February 2024; and
(b)The mother shall make the child available to communicate with the father by telephone each Thursday from 7.00 pm to 7.30 pm.
5.Upon the expiry of the period in Order 4, the child shall spend such time with the father as the parents may agree from time to time, and the Court notes:
(a)The father proposes to continue treatment for his substance abuse disorder and other mental health conditions; and
(b)If the father, upon independent psychiatric assessment, is successfully treated for his substance abuse disorder and other mental health conditions to the parties’ satisfaction, then the parties agree they shall attend Family Dispute Resolution if they cannot then agree about the parenting arrangements after the conclusion of the period in Order 4.
6.Except as provided for by these orders, and unless the parties otherwise agree, the child shall spend no time and shall not communicate with the father.
7.The father is hereby authorised to obtain from any school which the child may attend, from time to time, the following:
(a)A copy of the child’s school reports; and
(b)A copy of any forms which allow him to obtain school photographs of the child.
8.The mother shall advise the father of:
(a)Any serious illness or injury suffered by the child or any medical emergency including hospitalisation; and
(b)Any change to the child’s school enrolment.
Injunctions
9.Pursuant to s 68B of the Family Law Act 1975 (Cth), the father is hereby restrained from:
(a)Communicating with the child by any means, except as provided for by these orders;
(b)Attending upon the mother’s place of employment;
(c)Attending upon the child’s place of schooling at all times (including by standing at the school gates); and
(d)Attending upon the child’s place of residence.
Passport
10.Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the mother shall have full authority to apply for an Australian Passport for X, born 2016, without the signature, consent or authority of the father.
Overseas travel
11.For the purposes of s 65Y of the Family Law Act 1975 (Cth), the mother is permitted to remove the child from the Commonwealth of Australia temporarily, provided that the mother shall give the father 14 days notice of her proposed travel together with a complete itinerary of the trip.
Provision of orders
12.The mother may provide a copy of these orders to the child’s place of schooling.
Drug testing
13.The father shall within 48 hours of being requested by the Independent Children’s Lawyer (“the ICL”) submit to hair follicle testing so as to provide a hair sample of not less than 4 centimetres to then be tested for the presence of alcohol, drugs of abuse (including cocaine and cannabis) and prescription medication (including amphetamine-type substances, metabolites, oxycodone, benzodiazepine and opioids), and upon the conclusion of testing of that sample, he shall ensure that a copy of the report is provided to the mother and the ICL. To give effect to this order:
(a)The father is required to maintain their head hair at a length of not less than 4 centimetres. Neither head hair nor body hair is to be cut less than 4 centimetres, bleached or dyed between the date of this order and the time of collection of hair;
(b)Upon being requested to do so, an appointment is to be made with an accredited testing agency for the purpose of providing a hair sample for testing purposes;
(c)The father or his legal representative is at liberty to provide to the testing agency a copy of these orders;
(d)The father is to attend the accredited testing agency and submit to the supervised collection of a hair sample;
(e)Written notice to undertake hair collection for testing purposes may be sent to the father via email address to his legal representatives and shall be deemed to have been received by them at the date and time it is sent via email;
(f)The father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising the accredited testing agency or nominee, to provide the results of each test to them and the ICL and the mother’s legal representatives upon receipt of such test results;
(g)The test is to screen for alcohol, drugs of abuse (including cocaine and cannabis) and prescription medication (including amphetamine-type substances, metabolites, oxycodone, benzodiazepine and opioids);
(h)The accredited testing agency is required to utilise the testing services of an appropriate laboratory accredited to conduct drug testing to the recognised international standard, ISO/IEC 17025.2005 by the relevant national accreditation body. The accredited testing agency selection is to be based on the type of test required, the specific drug/s to be tested, the laboratory’s compliance level with International Society of Hair Testing guidelines, cost and time required for results to be made available; and
(i)Unless the parties otherwise agree, this Order 13 shall be discharged as and from 31 January 2025.
14.The ICL’s appointment shall continue until 31 January 2025 for the purposes of administering Order 13 whereupon it shall be discharged.
Child support
15.Pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth), there be a departure from the administrative assessment of child support payable for the child, that for all child support periods from 1 January 2026 (when the child commences Year 5) to the end of 31 December 2033 or the date upon which the child completes her secondary education, whichever is earlier, the annual rate of child support be varied to $33,000.
16.The amount of child support payable by the father pursuant to Order 15 shall be varied on 1 July of each year commencing 1 July 2026 and increase in accordance with CPI.
17.The parties forthwith do all acts and things necessary to cause a copy of these orders to be lodged with the registrar of the Department of Human Services (Child Support).
PROPERTY
18.Pursuant to s 79 of the Family Law Act 1975 (Cth), the father and C Pty Ltd (“the debtors”) jointly and severally cause to be paid to the mother the sum of $2,400,000 with such payment to be made upon the earlier of:
(a)Any surplus arising from the administration of B Pty Ltd; or
(b)The sale of, or any part of, the development at QQ Street and RR Street, Suburb M NSW (Folio IDs …) (“the Suburb M Development”) following discharge of the creditors outlined as follows (“the judgment debt”):
(i)Payment of any real estate agent’s commission, marketing expenses, auctioneer’s fees and solicitor’s expenses;
(ii)Payment of any outstanding statutory rates and charges including land tax accrued or payable with respect to the Suburb M Development; and
(iii)The amount necessary to discharge any mortgage registered against the Suburb M Development which secures a loan advance obtained for the sole purpose of the Suburb M Development and secured by way of a registered mortgage in order of their legal entitlement.
19.For the purposes of Order 18, the debtors shall be held jointly and severally liable for the judgment debt.
20.In the event that after compliance with Order 18 there is a further surplus arising from the administration of B Pty Ltd or from the sale referred to in Order 18, the surplus then remaining shall be divided as to 50 per cent to the mother, and the balance then remaining to the father, and the father shall do all things and sign all documents necessary to pay or cause to be paid to the mother her entitlements under this Order 20 forthwith upon that entitlement arising.
21.Pending the parties’ compliance with Order 18, and except for the purpose of the father complying with these orders or with the mother’s consent in writing, the father (personally and/or on behalf of any entity or company he operates) is restrained from:
(a)Further encumbering the Suburb M Development (whether individually or jointly, or in the name of any business, company, entity or trust that he has had any control of and/or interest in whether previous, current or in future);
(b)Varying the shareholding or directorship of B Pty Ltd and C Pty Ltd;
(c)Varying the unitholding or the terms of the B Unit Trust and C Discretionary Trust respectively;
(d)Transferring, assigning or otherwise dealing with any of his interests in the C Discretionary Trust or any of C Pty Ltd’s units in the B Unit Trust; and
(e)Further encumbering or dealing with C Pty Ltd.
22.The father (in his personal capacity and as director of the below entities described in subparagraphs (a) to (f)) releases and indemnifies the mother from and against any debt, judgment debt, liability, cost, expense or charge of any nature arising from or in connection with each of the following entities (“the entities”):
(a)B Pty Ltd, including liabilities in connection with the Suburb M Development;
(b)C Pty Ltd, including liabilities in connection with the Suburb M Development and the property at L Street, Suburb N NSW (“the family home”);
(c)K Pty Ltd;
(d)K Capital Pty Ltd;
(e)J Pty Ltd; and
(f)X Management Pty Ltd;
including by reason of the mother being a director of any of the entities, and any other liability in the name of the father whether individually or jointly, or in the name of any business, company, entity or trust that he has had any control of and/or interest in whether previous, current or in future.
23.The father indemnifies the mother against any liability of any nature which he may have (personally or on behalf of any of the entities) at any time arising in any way in respect of the liabilities in the name of the father.
E Street, Suburb D NSW
24.As against the father, the mother is declared to be the sole legal and beneficial owner of her interest in E Street, Suburb D NSW (“E Street”), and the father has no legal or equitable interest in that property.
25.Within seven days of these orders, the father must discharge Caveat … registered against E Street.
General orders
26.Except as specifically provided for by these orders, as against the father, the mother is declared to be the sole owner of:
(a)Her interest in Superannuation Fund 1 (Member Number …);
(b)Her interest in F Pty Ltd;
(c)Her interest in the family partnership “Grima Partnership”;
(d)all bank accounts standing to the credit of the mother in any bank or financial institution; and
(e)All other property of whatsoever nature and kind in the name or possession of the mother at the date of these orders and in the future.
27.Except as specifically provided for by these orders, as against the mother, the father is declared to be the sole owner of:
(a)His interest and/or shareholdings in the entities, including all assets of the entities;
(b)All bank accounts standing to the credit of the father in any bank or financial institution; and
(c)All other property of whatsoever nature and kind in the name or possession of the father at the date of these orders and in the future.
28.If either party fails or neglects to sign a document to give effect to these orders, then a registrar of the court is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to sign any such document which a party has failed or neglected to sign.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
The partes in this matter have very sensibly been able to agree on a suite of parenting orders for their child, X who was born in 2016. The orders appropriately in my view, deal with the history of drug taking by the father and his approach to it.
The consent orders provide that the mother shall have sole parental responsibility for X and X is to live with her. Until 31 January 2025 the father is to spend time with X for three hours every four weeks professionally supervised at a contact centre, as well as telephone communication for half an hour once a week.
The orders go on to provide that if the father has satisfactorily continued treatment for a substance abuse disorder and other conditions, the parties will attend family dispute resolution to see if they can agree about further parenting orders.
The orders otherwise prohibit the father from spending any time with X and injunctions are made pursuant to s 68B of the Family Law Act 1975 (Cth) restraining the father from communicating with the child by any means except as provided by these orders, and attending upon the mother’s place of employment, the child’s place of schooling and the child’s home.
In addition to these agreed orders, the father seeks an order that he be allowed to attend legitimate school events and that an injunction in similar form to that that was made against him be made against the mother.
As to the first, there is some difficulty in identifying what is meant by legitimate school events. That could be capable of more precise definition if the orders were otherwise in the child’s best interest.
The effect of the orders is that X’s best interests are served by having very limited contact with her father for the next year and then the parties will see how things go and how the father has addressed his difficulties. As I have said, those orders, very sensibly, and in my opinion, correctly, reflect the difficulties raised by the evidence in these proceedings.
It is inconsistent with the tenor of that regime for limited contact at a professionally supervised contact centre for there to be uncontrolled, and possibly frequent, contact at school. I am not satisfied that such an order would be in X’s best interest.
As to the injunction, no claim appears to have been made in the proceedings for such an order and there is no evidence that justifies it.
Accordingly, I am satisfied that the parenting orders proposed are in X’s best interests and I am also satisfied that the special circumstances exist for the making of a child support departure order and that the order is proper and just. I am satisfied that the proposed property orders, in the light of the evidence, are appropriate, just and equitable. I make the orders contained in the document headed “Short Minute of Order” to deal with each of those matters.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 15 February 2024
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