Bretz & Jankowska

Case [2024] FedCFamC1F 579


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bretz & Jankowska [2024] FedCFamC1F 579

File number(s): SYC 451 of 2019
Judgment of: CURRAN J
Date of judgment: 3 September 2024
Catchwords:

FAMILY LAW – PROPERTY – Where the parties were married for seven years – Where the husband had superior initial contributions – Where the parties made equal contributions during the relationship – Where the wife made superior contributions post-separation – Where the husband intentionally concealed assets – Consideration of Weir and Weir (1993) FLC 92-338 and Black and Kellner (1992) FLC 92-287 – Where the wife seeks an adjustment pursuant to Kennon & Kennon (1997) FLC 92-757 – Where the husband’s conduct was found to have made the wife’s contributions more arduous – Two pools approach – Adjustment of property – Where a just and equitable outcome is that sale proceeds be divided as between the parties – Where 15 per cent adjustment made in favour of the wife – Where not just and equitable to adjust the superannuation interests of the parties.

FAMILY LAW – PARENTING – Where the mother alleges the father poses an unacceptable risk of harm to the children’s safety – Consideration of meaning of safety – Where the father poses an unacceptable risk of harm due to his mental health – Where there are allegations of family violence – Where the father poses an unacceptable risk of physical harm to the children – Where orders for the mother to hold sole parental responsibility made by consent – Whether the father should spend supervised time with the children – Where orders made for the father to spend only supervised time with the children – Long term supervision orders made

Legislation:

Acts Interpretation Act 1901 (Cth) s 15AA

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 61CA, 61D, 64B, 75, 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04

Mental Health Act 2007 (NSW) Sch 20

United Nations Convention on the Rights of the Child (1989) Art 19

Cases cited:

AJO & GRO (2005) FLC 93-218

Amalgamated Wireless (Australasia) Ltd v Philpott (1961) 110 CLR 617

Baini v R (2012) 246 CLR 469

Benson & Drury [2020] FamCAFC 303

Black and Kellner (1992) FLC 92-287

Briese and Briese (1986) FLC 91-713

Britt & Britt (2017) FLC 93-764

Candle & Falkner (2021) FLC 94-069

Corporate Affairs Commission NSW v Yulli (1991) 172 CLR 319

C & C (2005) FLC 93-220

Eastley & Eastley [2022] FedCFamC1A 101

G and G (1984) FLC 91-582

Garrod & Davenport [2018] FamCA 825

Hicks & Trustee of the Bankrupt Estate of Hicks (2021) FLC 94-006

Isles & Nelissen (2022) FLC 94-092

Jones v Dunkel (1959) 101 CLR 298

Kannis & Kannis [2002] FamCA 1150

Keating & Keating (2019) FLC 93-894

Kennon v Kennon (1997) FLC 92 -757

Kowaliw and Kowaliw (1981) FLC 91-092

Lainhart & Ellinson [2023] FedCFamC1A 200

M & M [1998] FamCA 42

Maine v Maine (2016) 56 Fam…

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AGLC
Bretz & Jankowska [2024] FedCFamC1F 579
Case
[2024] FedCFamC1F 579
Decision Date

CaseChat Overview and Summary

In the matter of Bretz & Jankowska, the Federal Circuit and Family Court of Australia (Division 1) dealt with issues of property division and parenting arrangements following the separation of the parties, who were married for seven years. The court was required to determine the equitable distribution of the parties' assets, considering the husband's initial superior contributions, the wife's substantial contributions during the relationship and post-separation, and the husband's concealment of assets. Additionally, the court needed to decide on the parenting arrangements for the couple's two children, weighing the safety concerns posed by the husband's mental health against the children's need to maintain a relationship with him.

The court applied the two-pools approach, acknowledging the husband's superior initial contributions but noting the wife's equal contributions during the marriage and superior contributions post-separation. The husband's conduct in concealing assets was found to have exacerbated the wife's contributions, leading to a 15% adjustment in her favour in the distribution of the sale proceeds of the family home and other assets. However, the court deemed it unjust and inequitable to adjust the superannuation interests of the parties. Regarding parenting, the court concluded that the husband posed an unacceptable risk of harm to the children's safety due to his mental health issues and history of family violence. Consequently, the court ordered that the children spend supervised time with the husband, with long-term supervision to continue until the youngest child reaches the age of 18. The court also made orders for the children to live with the wife and for the parents to share parental responsibility, with sole decision-making authority granted to the wife concerning major long-term issues affecting the children.

In summary, the court ordered the distribution of the net proceeds of the sale of the family home and other assets, with a 15% adjustment in favour of the wife. The children were to live with the wife and spend supervised time with the husband, with long-term supervision to continue. The wife was granted sole decision-making authority concerning major long-term issues affecting the children. The husband was required to attend psychiatric treatment and provide regular updates to the court. The court also made provisions for the children's overseas travel, communication between the children and the husband, and the sharing of information between the parents.

Orders

Orders of the court

SYC 451 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BRETZ

Applicant

AND:

MR JANKOWSKA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

3 SEPTEMBER 2024

THE COURT ORDERS THAT:

PROPERTY

1. The net proceeds of sale held in the controlled monies account of Gayle Meredith & Associates Solicitors for the sale of D Street, Suburb E, shall be distributed 65 per cent to the applicant and 35 per cent to the respondent within 7 days of receipt if they are yet to be received, and otherwise within 7 days of the date of these orders.

2. Within 7 days of the date of these orders the proceeds of sale of B Street, Suburb C held in the controlled monies account of Gayle Meredith & Associates Solicitors shall be distributed 65 per cent to the applicant and 35 per cent to the respondent.

3. Within 7 days of the date of these orders the respondent do all acts and execute all documents necessary to cause Motor Vehicle 1 to be transferred to the applicant free from encumbrances.

4. That within 14 days of the date of these orders:

(a) The applicant do all acts and execute all documents to resign as a director and/or other officeholder of G Pty Ltd and F Pty Ltd and to transfer to the respondent the shares owned by her in each of those companies;

(b) The respondent and the applicant do all acts and execute all documents necessary to cause H Pty Ltd and the J Family Trust (“the Trust”) to transfer to the applicant or as she may direct in writing 100% of the shares in L Pty Ltd owned by the company on behalf of the Trust free of encumbrances;

(c) The applicant do all necessary to assign to the respondent any loan documents in her name either solely or jointly in the J Family Trust, G Pty Ltd and F Pty Ltd;

(d) Upon compliance with order 4 the applicant shall resign as an officeholder in H Pty Ltd.

5. The respondent is restrained by injunction from taking possession of any property and assets of H Pty Ltd and J Family Trust in accordance with the terms of the Loan Agreement dated 9 January 2021 between F Pty Ltd and H Pty Ltd or any other agreement, on behalf of himself, the said companies, K Ltd and any other company or entity in his name, ownership, possession or control.

6. The respondent shall indemnify and keep indemnified the applicant in relation to all liabilities, claims, and demands of whatsoever nature and kind of the J Family Trust and H Pty Ltd, G Pty Ltd, K Ltd, and F Pty Ltd, or any claim against the applicant by any other third party (or in respect of) which the husband or an affiliate (as defined in s 328 of the Income Tax Assessment Act 1997 (Cth)) has control (within the meaning of s 50AA of the Corporations Act 2001 (Cth)).

7. The respondent be restrained by way of injunction both now and in the future from making any claim or demand as a potential discretionary object of the M Trust and the Bretz Family Trust.

8. Within 14 days of the date of these orders the applicant advise the respondent a date and time when she will collect from his possession:

(a) Mirror from dining room belonging to the applicant’s brother;

(b) Mirror from study being gift to applicant from late grandmother;

(c) Carved wooden item;

(d) Table, glass and lamps all in living room at separation; and

(e) Christmas tree.

PARENTING

Parental responsibility

9. The applicant shall have sole parental responsibility and sole decision making authority in respect of all decisions concerning major long term issues as defined in section 4(1) of the Family Law Act 1975 (Cth) effecting the children, X, born 2014, and Y, born 2016 (“the children”), except in respect of the children’s names.

10. The applicant shall notify the respondent of such decisions she makes as to major long term issues defined in section 4(1) of the Family Law Act 1975 (Cth) within 7 days of doing so.

11. The applicant may not change the children’s names without the respondent’s written consent.

Live with

12. The children shall live with the applicant.

Spend time with

13. The children will supervised spend time with the respondent under the supervision of his mother, Ms N (conditional on Ms N providing an undertaking to the Court as set out in Notation A) at any times agreed between the parties in writing, and failing agreement as follows:

(a) Each alternate Friday from after school until the commencement of the first of the extracurricular activities of the children the following day, being Saturday; and

(b) Each alternate Wednesday from after school and until the commencement of school the following day, being Thursday;

(c) During the Term 1, Term 2, and Term 3 school holidays from 3.00pm on Friday until 3.00pm on Monday in the middle weekend of the holidays;

(d) During the long Term 4 school holidays each alternate weekend from 3.00pm on Friday until 3.00pm on Monday;

(e) On Father's day from 5.30pm on the Saturday immediately preceding Father's day until the commencement of school on the Monday immediately following Father's Day; and

(i) Any time the respondent was scheduled to have with the children from 5.30pm on the Saturday preceding Mother's day until the commencement of School on the Monday immediately following Mother's day is suspended.

14. In the event Ms N is, for whatever reason, not able to supervise the respondent's time with the children:

(a) The parties will agree upon a professional supervision service to be used and in the event they cannot agree the respondent will nominate three professional supervision services within 7 days of a request to do so, the applicant will select one and advise of the supervision service to be used within a further 7 days and the parties will forthwith do all things necessary to register with the selected professional supervision service; and

(b) Upon acceptance into the professional supervision service the children spend time with the respondent on a supervised basis from after school until 7.00pm on each alternate Friday and from after school until 7.00pm on each alternate Wednesday thereafter, with all associated costs for such supervision to be met by the respondent.

15. The respondent is permitted to attend the children's extracurricular activities provided that the applicant is also in attendance.

Changeover

16. For the purpose of parenting changeovers unless otherwise agreed between the parties in writing through the 2Houses Application:

(a) On school days, each parent pick up and drop off the children at the school attended by the children at the commencement and conclusion of the children's time with each parent;

(b) When handover takes place at sporting or other extra-curricular activities pursuant to order 13(a) each parent shall pick up and drop off the children at the first of those events to occur;

(c) When orders 16(a) and (b) (above) do not apply, all changeovers take place at the carpark of McDonalds Suburb O adjacent to the entrance of the store.

Communication

17. If the children are not otherwise spending time with the respondent, the applicant shall make the children available to communicate with the respondent by electronic means each Wednesday night between the hours of 6.00pm and 6.30pm, and at all other times that they reasonably request.

Restraints

18. Each party be restrained from video recording the other party and their family members during parenting changeovers.

19. Both parties are restrained from:

(a) Using physical force upon either of the children or physically disciplining the children;

(b) Denigrating the other party or members of the other party's family to the children or either of them or in their presence; and

(c) Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings or matters relating to them, with or in the presence or hearing of the children and from permitting any other person to do so.

Information sharing

20. These orders act as authority for:

(a) The principal and staff of the school that the children may attend from time to time to supply to the respondent all school reports, school photographs, school counsellor's notes, memos, school newsletters, access to all school apps and any other information in relation to the children that the respondent may request from the school;

(b) All medical practitioners that the children may attend from time to time to communicate with and provide the respondent with copies of all documents that he may request from time to time at the respondent's sole expense.

(c) The parties to provide a copy of these orders to the children's school and medical practitioners and the receipt by the school or medical practitioner of these orders is sufficient to provide the applicant's authority pursuant to order 20(a) and (b) above.

21. Each parent shall keep the other informed of their residential address and telephone number at all times and notify the other in the event of any changes.

22. Each parent shall notify the other as soon as practical of any serious injury, illness, or emergency suffered by either of the children whilst they are in the care of that parent.

23. The parties shall keep the other informed of the names and contact details of all medical practitioners that the children attend from time to time and when in their care.

24. Each party shall provide the other with no less than 7 days written notice of their intention to live with any third party/ies including details with respect to the other person including children (if any) that will be living in the same household when the children are in his/her care.

The respondent’s treatment

25. For a period of no less than 12 months the respondent attend upon a treating psychiatrist (“the treating psychiatrist”), the frequency of his attendance to be determined by the treating psychiatrist.

26. Either party is at liberty to provide the respondent’s treating psychiatrist, treating psychologist, and his GP Dr P with a copy of the Reports of Dr Q dated 22 September 2020 and 10 April 2024, a copy of the Judgment for final orders, and a copy of these Orders.

27. The Independent Children’s Lawyer is authorised to provide a copy of the Judgment for final orders to Dr Q.

Overseas travel

28. Pursuant to section 65Y of the Family Law Act 1975 (Cth) the applicant shall be permitted to take the children on holidays to a place outside of the Commonwealth of Australia for one (1) period of up to fourteen (14) consecutive days in each calendar year when the children are in her care during the school holiday periods pursuant to these orders or at other times as agreed in writing, provided that the applicant provide to the respondent:

(a) No less than 90 days written notice of her intention to travel overseas with the children;

(b) A detailed itinerary in relation to the proposed travel no later than 28 days before the proposed departure date for travel, which will include details of the airline, flight, cruise ship and dates of travel;

(c) The address(es) of the accommodation where the children will be staying while overseas;

And at the conclusion of the travel overseas that the applicant shall return to Australia with the children

29. If the applicant travels overseas with the children pursuant to order 28 herein during times the children are otherwise in the care of the respondent, that the children spend make up time with the respondent for a period equivalent to the number of nights the children are otherwise in the respondent’s care in accordance with these orders but for the proposed travel, with such make up time to be supervised by the paternal grandmother and as agreed between the parties in writing, and failing agreement the make-up time take place during the next school holiday period.

Passports

30. The applicant is permitted to apply for an Australian Passport for each of the children X born 2014 and Y born 2016, and the respondent’s consent is not required.

31. The applicant shall retain the children’s passports at all times.

COSTS

32. Within 28 days of the date of these orders, the parties shall file and serve any application for costs along with written submissions in relation to the quantum and type of costs order that is appropriate.

33. Each party shall pay to NSW Legal Aid the sum of $8,511.25 less any amount already paid, in respect of the ICL’s costs within 28 days of the date of these orders or such other time as arranged with NSW Legal Aid.

THE COURT NOTES THAT:

A. The terms of the undertaking for Ms N’s supervision of the children is as follows:

I, Ms N, of R Street, Suburb S NSW, hereby undertake to the Court and to the parties:

i. on all occasions the children and X and/or Y are spending time with Mr Jankowska, I will supervise that time;

ii. In undertaking this supervision, I confirm I will:

1. Be in the same residence as the children whilst they are spending time with Mr Jankowska; and

2. In the event the children and Mr Jankowska attend any other location other than their residence, I will be present with them at those locations.

iii. For the purpose of Clause 2 above, the "residence" shall include any garden attached to the property.

iv. In the event I observe any conduct on Mr Jankowska’s part or hear anything said by Mr Jankowska that I believe puts the children at any risk physically, emotionally or psychologically, I will immediately make arrangements with Ms Bretz to return the children to her care.

B. It is understood that Dr T and Dr Q will confer in relation to the respondent's treatment.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It was submitted by counsel for the wife that, if the Court does not make orders removing supervision, but if the husband does engage in psychiatric treatment and makes the gains hoped, the evidence supports a finding that, having demonstrated an impressive capacity to promote and respect the relationship between the children and the husband, the wife would continue to do so. I agree with that submission, and I expect that the wife would continue to support the relationship. As such, the door may open in the future, if it is considered safe, for the parties to reach agreement in relation to a change to the children’s time with the husband. Further if the husband does have evidence of successfully addressing the identified risk factors such that there exists a sufficient change in the circumstances, in the absence of agreement, he could return to the Court.CONCLUSION ON PARENTING Orders for the children to spend supervised time only with the husband is in their best interests on the evidence before the Court. There are established, and admitted, risks posed to their safety from the husband. There is no evidence that the husband could ameliorate the risks posed by his mental health, and his personality, within any specified timeframe. There is no basis to make the order sought for supervision to be lifted in three months. The evidence supports a finding that such treatment may require many months or even years to be effective.Long term supervision Caution must be applied in making long term supervision orders for the reasons set out in Bielen & Kozma (2022) FLC94-123 and as observed in Norton v Landell [2015] FamCA 125 each case must be decided on its own facts. Considerations including the cost, the artificiality of the arrangement and the impact on the meaningful relationship between the children and the parent subject to supervision are relevant considerations. Whilst it is undesirable, it is not an unorthodox approach at law to make orders for supervision to continue in the long-term where the Court is satisfied that the time will be in the best interests of the children. This proposition was recently affirmed by the Full Court in the decision of Keighley & Keighley [2023] FedCFamC1A 146 at [130]. I have carefully considered the evidence and the safety issues in this matter and am satisfied that the ongoing supervision is necessary and in the best interests of the children for the reasons set out above. I note the effect is that in the absence of a change of circumstances these orders will continue until Y reaches the age of 18.Orders for who the children should live with It is agreed between the parties that the children should live with the wife. They have primarily lived with her since separation, and she is their primary caregiver. I make that order by consent. Orders for time The orders, as proposed by the wife, balance the competing interests of promoting the safety of the children, with the children’s needs, views, and benefit to them of spending time with the husband. As such, the orders which are in the best interests of the children are that the children spend supervised time with the husband on each alternate Friday from after school until the commencement of the first of the extracurricular activities of the children the following day, and if there is no extracurricular activity scheduled, until 10am. Such time is to be supervised by the paternal grandmother, after the provision of the agreed undertaking.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.