Creighton & Creighton (No 3)
[2022] FedCFamC1F 978
Federal Circuit and Family Court of Australia
(DIVISION 1)
Creighton & Creighton (No 3) [2022] FedCFamC1F 978
File number(s): MLC 6907 of 2019 Judgment of: JOHNS J Date of judgment: 15 December 2022 Catchwords: FAMILY LAW – CHILDREN – parental responsibility – with whom children spend time – best interests of the children – family violence – children’s views – where the children are 14, 15 and 17 years old – where two of the children have indicated an unwillingness to spend time with the husband – where the husband is alleged to have committed family violence against the wife – where the husband is alleged to have engaged in coercive controlling behaviour – where the husband’s actions in favouring the middle child has caused a split in the sibling relationship – where the husband has a history of failure to comply with boundaries – where it is necessary to impose restrictions upon the husband’s time with the children
FAMILY LAW – PROPERTY – final property settlement – application for adjustment – justice and equity – where the husband has failed to file any material or prosecute his case – where the parties have accrued assets throughout the marriage in their sole names – where the wife contends the parties maintained separate finances – where the wife submits that it would not be just and equitable to adjust the parties’ property – where the wife seeks that the husband’s application be dismissed pursuant to Rules 1.33 and 10.27 – where the husband has been afforded numerous indulgences and continually failed to comply with court orders – where the husband’s application for adjustment of property interests should be dismissed
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Part VII, ss 60B(1) & (2), 60CA, 60CC(2), (2A) & (3), 61DA, 64B, 65C, 65DAA, 102NA
Federal Circuit and Family Court of Australia Rules 2021 (Cth) Rules 1.33, 10.27, 10.7
Cases cited: Donnell & Dovey (2010) FLC 93-428
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
Mulvany & Lane (2009) FLC 93-404
Stanford v Stanford (2012) 247 CLR 108
Division: Division 1 First Instance Number of paragraphs: 239 Date of last submission/s: 1 September 2022 Date of hearing: 29 August – 1 September 2022 Place: Melbourne The Applicant: In Person (Self-Represented Litigant) Counsel for the Respondent: Ms Vohra SC Solicitor for the Respondent: Taussig Cherrie Fildes Counsel for the Independent Children's Lawyer: Mr DeVries Solicitor for the Independent Children's Lawyer: VM Family Lawyers ORDERS
MLC 6907 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CREIGHTON
Applicant
AND: MS CREIGHTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JOHNS J
DATE OF ORDER:
15 December 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Wife have sole parental responsibility for making decisions regarding the long term care, welfare and development of the children X born 2005, Y born 2006 and Z born 2008.
3.The children live with the Wife.
4.The children spend time and communicate with the Husband, strictly in accordance with their wishes, and provided that:-
(a)Time-with occur no more frequently than once every fortnight;
(b)Time-with occur during the day only on weekends between the hours of 6pm and 8:30pm on a Friday or between 9:00am and 8:30pm on a Saturday or between 9:00am and 8:00pm on a Sunday;
(c)Any telephone or FaceTime (or the like) communication be initiated only by the child or children concerned.
5.In the event of significant illness or injury of any of the children, requiring hospitalisation and/or the attendance upon a Specialist Medical Practitioner, the Wife shall provide the Husband with details of same within 72 hours of such attendance.
6.The Wife shall authorise the children's school(s) to send to the Husband, at his sole cost, all communications normally sent to parents by the children's school(s).
7.The Husband be restrained by injunction from attending the children's school(s) for any purpose whatsoever, save for any function to which he is invited, in writing, not less than 72 hours in advance, by all of the children who may be in attendance at such function.
8.In the event the children attend upon a family counsellor experienced in dealing with separation, pursuant to the recommendation of the Family Report dated 1 August 2022, the Wife be at liberty to provide to that counsellor, copies of the Family Reports, the Report of Dr D, the Report of Dr F, a copy of these orders and these Reasons for Judgment.
9.Both parents be and are restrained by injunction from:
(a)Discussing any aspect of any of the issues in these proceedings and any aspect of these proceedings with the children, or any of them, in the presence or hearing of the children, or any of them;
(b)Berating, denigrating, belittling or in any other way criticising the other parent to the children, or any of them, in the presence or hearing of the children, or any of them;
(c)Contacting the Police, Child Protection or like authority in respect to the children, or any of them, unless there is a breach of these orders, the family violence intervention orders made in mid-2022 and/or any family violence intervention orders or such child or children is or are, as the case may be, at real and genuine risk of harm;
(d)Physically disciplining each and all of the children (which includes placing the children in a locked room);
or permitting any other person doing same.
10.The appointment of the ICL be discharged at the expiration of 30 days from the date of these orders.
11.The husband’s Amended Initiating Application filed 20 August 2019 be dismissed.
12.Save with respect to her application for costs, the wife’s Amended Response to Initiating Application filed 20 December 2019 be otherwise dismissed.
13.By 4.00pm on 14 January 2023 the wife file and serve any submission upon which she seeks to rely in relation to her application for costs, such submission to be limited to 15 pages.
14.By 4.00pm on 3 February 2023 the husband file and serve any submission upon which he seeks to rely in response to the wife’s application for costs, such submission to be limited to 15 pages.
15.By 4.00pm on 17 February 2023 the wife file and serve any reply upon which she seeks to rely in relation to the husband’s submissions, such submission to be limited to 5 pages.
16.Unless otherwise directed by the Hon. Justice Johns, the determination of any cost application be finalised in Chambers.
17.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
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 the pseudonym Creighton & Creighton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
Mr Creighton, the applicant husband, and Ms Creighton, the respondent wife, seek parenting orders in respect of the care of their three children X, aged 17 years, Y, aged 15 years, and Z, aged 14 years. They also seek orders for the adjustment of their property interests pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).
The proceedings have had a long history before the Court. That this is so is largely a result of the manner in which the husband has conducted his case. Since September 2020, save for a period of one month when he was represented by a lawyer appointed under the Commonwealth Family Violence and Cross-Examination of Parties scheme, he has represented himself in the proceedings.
The matter was listed for final hearing on no less than two occasions in 2020 and 2021 by another Judge in this Registry. On both occasions those trial dates were vacated and ultimately that Judge recused herself from hearing the matter. As a result, the matter was referred to my docket in December 2021.
On 10 December 2021 I made orders fixing the matter for final hearing and directions for the filing of trial affidavit material. At the case management hearing and trial, the husband represented himself. He did so notwithstanding the fact that, by his own admission, he holds real property valued at approximately $5,500,000 and motor vehicles valued at approximately $500,000.[1]
[1] Notice Disputing a Fact or Document (Exhibit F-3).
Further, despite the fact that trial directions have been made in the proceedings on no less than three occasions, most recently on 10 December 2021, the husband filed no trial affidavit material to support his application for final parenting and property orders.
The husband’s Amended Initiating Application filed 20 August 2019 does not particularise in any way the relief sought by him with respect to property. As to the parenting issues, the husband’s application seeks orders for equal shared parental responsibility and that the three children live with him and spend such time with the wife as the Court deems appropriate. That application was made notwithstanding the fact that at the time of the final hearing, none of the children were spending time with the husband, and the children X and Z (aged 17 and 14 respectively) had informed the Family Report Writer that they did not wish to spend time with him.
The wife’s case is that the parties each hold significant assets in their own names. She alleges that the parties maintained separate finances throughout the marriage. Given that circumstance, coupled with the husband’s failure to comply with trial directions that he file an amended application so as to articulate his claim and put evidence before the Court to support it, the wife seeks that the husband’s property application be dismissed.
As to the parenting issues, the wife’s position is that the children should continue to live with her, that she have sole parental responsibility for making decisions regarding the children’s health and that otherwise the husband spend time and communicate with the children in accordance with their wishes, subject to conditions that such time occur no more frequently than once per fortnight and that it occur during the daytime only for specified periods.
The position adopted by the wife accords with the proposals of the Independent Children’s Lawyer (Exhibit ICL-2).
For the reasons that follow I will make orders that:-
·The husband’s application for final property orders be dismissed;
·The wife have sole parental responsibility for the three children and that they continue to live with the wife; and
·That the children spend time and communicate with the husband in accordance with their wishes, and subject to that time occurring no more frequently than once per fortnight during daytime hours only.
THE PARTIES
The husband was born in 1946 and is aged 76. The husband was employed in the motor vehicle industry, although his current employment is unknown given his failure to adduce evidence at the hearing. The husband identifies as belonging to a religion.
The wife was born in Country G in 1968 and is aged 54. The wife migrated to Australia in 2000. The wife qualified as a medical professional in Country G in 1991 and upon migrating to Australia undertook further study to enable her to practice as a medical professional in this country. In 2003, the wife qualified as a medical professional and commenced working in that field. At the time of hearing, the wife continued to conduct her own business in Suburb H. The wife does not belong to the same religion as the husband and it is her unchallenged evidence that the husband was aware of that fact at the time they commenced their relationship.
The parties’ religion assumed importance in the case, with respect of both the choices made by them when selecting the children’s school and in relation to the decision taken by the husband to enrol two of the children in classes in preparation for religious ceremonies, even though the children do not belong to the husband’s religion.
The parties commenced a relationship in 2000, and cohabitation commenced in 2004 in the husband’s property at J Street, Suburb K. They married in late 2006.
There is a dispute between the parties with respect to the date of final separation. The wife’s position is that final separation occurred in December 2008, when the parties separated under one roof. The husband’s position is that separation did not occur until 2019. The wife’s unchallenged evidence is that in 2015 she and the children moved permanently into the property at Unit 1 L Street, Suburb N, whilst the husband continued to reside at the property next door, being Unit 2 L Street, Suburb N. In about 2020, the wife and children relocated to live in Suburb H.
A divorce order was made in early 2021.
There are three children of the marriage, X, born 2005 and currently aged 17 years, Y, born 2006 and currently aged 15 years, and Z, born 2008 and currently aged 14 years.
X is in Year 11 and making excellent progress at school. She has a medical condition but otherwise enjoys good health. Y is in Year 10 and is also making excellent progress at school. She enjoys good health. Z is in Year 8 and the wife’s evidence is that he finds school more challenging than his siblings. He too enjoys good health.
The children have lived with the wife since the parties’ separation. The wife alleges that she and the children were subjected to physical and emotional abuse at the hands of the husband during the course of the marriage.
She also alleges that the husband has engaged in inappropriate behaviour with the children, including:-
·Sleeping in the same bed as X ;
·Touching X in a way that makes her feel uncomfortable;
·Walking around the home naked in front of the children; and
·Concentrating his affections on Y, including taking her on overseas and interstate holidays to the exclusion of the other children, which has created a rift between Y and her siblings.
In mid-2019 a final Family Violence Intervention Order was made against the husband for the protection of the wife and the children. That order expired in early 2021.
In early 2021, following the expiration of the Family Violence Intervention Order made against the husband for the protection of the wife and the children, the husband attended the wife’s home to “make peace”. The wife’s evidence is that based on the husband’s representations, she admitted him into her home and he resumed spending time with the children.
In early 2021, the husband persuaded the wife to pay to him the sum of $55,000 on the basis that he would apply that sum towards the outstanding school fees to O School. The wife alleges that the husband retained those funds and did not pay them to the school.
Matters again came to a head in mid-2021 when the husband called the Police and reported that the wife was “beating” the children. The wife’s evidence is that shortly prior to the husband’s report, she chastised Z for playing soccer inside the house. She deposes that Z “body-slammed” her and that she fell to the floor. The wife responded by grounding Z and confiscating his mobile phone. The child Y informed the husband of those events; the husband then made a Police Report.
The Police attended the wife’s home in response to the report made by the husband and took statements from each of the children. The wife deposes that she was advised by Police to apply for another intervention order against the husband; she applied for such order the following day. A second Final Family Violence Intervention Order was made in mid-2022. That order expires in mid-2026 with respect to the wife, and in relation to the children, on the date each attains 18 years.
The husband commenced proceedings in the Federal Circuit Court (as it then was) by his Application for Final Orders, filed 24 June 2019. In August 2019, as a result of allegations made by the wife that the husband has committed family violence against her and behaved in a sexually inappropriate manner towards the children, the matter was transferred to the Family Court (as it then was) and referred for consideration of inclusion in the Magellan List.
On 30 October 2019, orders were made for the husband to spend supervised time with the children. On 1 May 2020 further orders were made by consent that the husband spend supervised time with the children each Saturday from 10am to 4pm. The children ceased spending time with the husband pursuant to that order in July 2020. That situation continued until the period between early and mid-2021, when the wife permitted the husband to spend time with the children following the expiry of the first Final Intervention Order. Since that time, the children have spent no time with the husband.
MATERIAL RELIED UpON
On 10 December 2021, I made trial directions listing the matter for final hearing to commence on 29 August 2022 and requiring that the husband’s Amended Application for Final Orders, trial Affidavits and Financial Statement be filed by 31 March 2022. The husband did not comply with those orders.
On 26 May 2022 I made further orders extending time for the husband’s compliance with my trial directions made in December 2021. Those orders required the husband to file his trial documents by 6 June 2022. Again, the husband did not comply with those orders.
As a result of the husband’s failure to comply with trial directions, he had no material before the Court, save for his Amended Initiating Application filed 20 August 2019. During the course of the hearing the husband tendered and sought to rely upon the following documents:-
·Minute of Parenting Order sought (Exhibit F-1);
·Email to the husband from Victoria Legal Aid dated 22 August 2022 (Exhibit F-2);
·Notice Disputing a Fact or Document (Exhibit F-3); and
·Costs Notice (Exhibit F-4).
The respondent wife relied upon the following documents:-
·Outline of Case Document filed 22 August 2022;
·Amended Response to Initiating Application filed 20 December 2019;
·Affidavit of the Respondent filed 6 May 2022;
·Financial Statement of the Respondent filed 6 May 2022;
·Updated Family Report prepared by Ms C dated 1 August 2022;
·Family Report prepared by Ms C dated 26 August 2020;
·Affidavit of Dr D filed 4 June 2020; and
·Documents tendered throughout the course of proceedings, being Exhibits M-1 – M-9.
The Independent Children’s Lawyer relied upon the following documents:-
·Outline of Case Document filed 24 August 2022;
·Updated Family Report prepared by Ms C dated 1 August 2022;
·Family Report prepared by Ms C dated 26 August 2020;
·Affidavit of Dr F filed 11 August 2020;
·Affidavit of Dr D filed 4 June 2020;
·Magellan Report dated 21 October 2019; and
·Documents tendered throughout the course of hearing, being Exhibits ICL-1 – ICL-4.
ORDERS SOUGHT
A document outlining the orders sought by the ICL with respect to parenting matters was tendered at the hearing (Exhibit ICL-2). The ICL seeks orders as follows:-
(1)All previous parenting orders be discharged.
(2)The Wife have sole parental responsibility for the children…
(3)The children live with the Wife.
(4)The children spend time and communicate with the Husband, strictly in accordance with their wishes, and provided that:
(a)Time-with occur no more frequently than once every fortnight;
(b)Time-with occur during the day only on weekends between the hours of 6pm and 8:30pm on a Friday or between 9:00am and 8:30pm on a Saturday or between 9:00am and 8:00pm on a Sunday;
(c)Any telephone or FaceTime (or the like) communication be initiated only by the child or children concerned.
(5)In the event of significant illness or injury of any of the children, requiring hospitalisation and/or the attendance upon a Specialist Medical Practitioner, the Wife shall provide the Husband with details of same within 72 hours of such attendance.
(6)The Wife shall authorise the children’s school to send to the Husband, at his sole cost, all communications normally sent to parents by the children’s school(s).
(7)The Husband be restrained by injunction from attending the children’s school(s) for any purpose whatsoever, save for any function to which he is invited, in writing, not less than 72 hours in advance, by all of the children who may be in attendance at such function.
(8)In the event the children attend upon a family counsellor experienced in dealing with separation, pursuant to the recommendation of the Family Report dated 1 August 2022, the Wife be at liberty to provide to that counsellor, copies of the Family Reports, the Report of Dr D, the Report of Dr F, a copy of these orders and the Reasons for these orders.
(9)Both parents be and are restrained by injunction from:
(a)Discussing any aspect of any of the issues in these proceedings and any aspect of these proceedings with the children, or any of them, in the presence or hearing of the children, or any of them;
(b)Berating, denigrating, belittling or in any other way criticising the other parent to the children, or any of them, in the presence or hearing of the children, or any of them;
(c)Contacting the Police, Child Protection or like authority in respect to the children, or any of them, unless there is a breach of these orders, the family violence intervention orders made in mid-2022 and/or any family violence intervention orders or such child or children is or are, as the case maybe, at real and genuine risk of harm;
(d)Physically disciplining each and all of the children (which includes placing the children in a locked room);
or permitting any other person doing same.
(10)The appointment of the ICL be discharged.
On the first day of hearing, the husband confirmed that he agreed with many aspects of the ICL’s proposal, including that the children live with the wife. The issues identified at the commencement of hearing were as follows:-
·The allocation of parental responsibility. The husband sought orders for equal shared parental responsibility.
·The time to be spent between the husband and the children. The husband sought orders that he spend time with the children on a fortnightly basis from Friday to Sunday, on special days, including the children’s birthdays and the husband’s birthday.
·Whether the husband ought be permitted to communicate with the children by telephone or FaceTime.
·The husband opposed any injunction restraining him from attending the children’s schools.
·The husband also sought orders permitting him to travel overseas with one or more of the children for up to four weeks at a time. The husband’s proposal with respect to overseas travel was tendered on the first day of hearing (Exhibit F-1).
On the third day of hearing, the husband abandoned his application that he be permitted to travel overseas with the children.
At no stage during the hearing did the husband particularise the property orders sought by him. In his Amended Application for Final Orders, filed 20 August 2019, the husband seeks orders in the following terms:-
(1)The assets, liabilities and financial resources of the parties be divided on such terms as this Honourable Court deems just and equitable.
(2)The Applicant be excused from further particularising orders sought pending the discovery process being concluded and valuations obtained.
(3)The Respondent pay the Applicant’s costs of and incidental to this Application on such basis as this Honourable Court deems just.
(4)Such further and other Orders as this Honourable Court deems appropriate.
During the course of closing submissions, Senior Counsel for the wife confirmed that her client sought parenting orders in the terms of Exhibit ICL-2. As to property, the only orders sought by the wife are in accordance with Exhibit M-2, namely that:-
(1)The husband’s Amended Initiating Application filed 20 August 2019 be dismissed.
(2)The husband pay the wife’s costs of the proceedings.
THE HEARING
The final hearing was listed to commence before me on 29 August 2022 for seven days.
Wife’s Application to proceed Undefended
On the first day of hearing, Senior Counsel for the wife made application to proceed on an undefended basis. The husband was given notice as to the wife’s intention to make such application on 18 August 2022, when the wife filed an Application in a Proceeding seeking an order in those terms.
Counsel for the ICL opposed that application, it being his view that the husband should be afforded an opportunity to be heard on parenting matters, given the prolonged proceedings and the likelihood of their continuance should the husband’s participation be precluded.
Ultimately the wife sought and was granted leave to withdraw her Application in a Proceeding and the trial proceeded on the basis that the husband would:-
·represent himself;
·be prohibited from cross-examining the wife as a result of the s 102NA(2) order; and
·have no evidence in chief before the court, due to his failure to comply with the trial directions.
Husband’s Application for Adjournment
Upon the withdrawal of the wife’s application to proceed undefended, the husband made an oral application for an adjournment of the hearing to enable him to obtain legal representation. That application was opposed by the wife and the ICL.
The husband submitted that he had availed himself of assistance under the Commonwealth Family Violence and Cross Examination of Parties scheme (“the Commonwealth Scheme”), but the lawyer appointed to represent him had ceased acting on his behalf. The husband alleged that the lawyer appointed to represent him “had not done the work”. As a result, the husband submitted that he was unable to secure representation or to file his trial documents.
During the course of his submissions, the husband confirmed that the lawyer appointed to represent him under the Commonwealth Scheme informed him that he was not in a position to prepare the husband’s trial affidavit material. The husband conceded that that lawyer informed him by telephone on 28 July 2022 that he was unable to represent him at the final hearing. Subsequently, that lawyer filed a Notice of Ceasing to Act on 9 August 2022.
Having regard to those submissions, I informed the husband that he would need to explain his failure to file his trial documents, given that he had been on notice as to the hearing date for more than 8 months. Further, I informed the husband that he would need to address his failure to appoint a new lawyer, given that a period of 4 weeks had elapsed since his previous lawyer gave him notice of his intention to withdraw. I reminded the husband that the proceedings have been on foot since 2019, that previous trials had been adjourned and given the estimated length of the hearing, if I acceded to his adjournment application, the matter would not be re-listed until mid-2023. I also observed that given the matter’s long history, the ages of the children and their exposure to the conflict between their parents, their best interests would likely be served by the finalisation of the matter. I informed the husband that in determining his application, I must consider not only his needs, but the impact of an adjournment upon the wife and the children. I confirmed that the husband would need to address these considerations in his submissions.
In response, the husband stated that he did not seek to press his application for an adjournment. Accordingly, the hearing proceeded.
The Trial Process
Upon the conclusion of those preliminary issues, I informed the husband as to the trial process, including the order of calling witnesses. The husband confirmed his understanding that he would not be permitted to cross-examine the wife. He confirmed that he sought to cross-examine the Family Report Writer, Ms C, and Dr D, who had undertaken psychiatric assessments of the parties.
The husband attended Court with a support person, Ms B. Sensibly, Senior Counsel for the wife and Counsel for the ICL conceded that Ms B ought be permitted to sit at the bar table throughout the hearing to provide support and assistance to the husband in the conduct of his case; that is what occurred until both the husband and Ms B absented themselves from the Court on the third day of hearing.
Given that the husband had not filed an amended application in compliance with my trial directions, I invited him to confirm his position with respect to the proposals of the ICL and the wife. This aided in identifying the scope of the dispute with respect to the parenting issues and providing the wife with an indication as to the husband’s position prior to opening her case.
Senior Counsel for the wife opened her client’s case and the wife gave evidence and was cross-examined by Counsel for the ICL on the first day of hearing.
The Family Report Writer, Ms C, gave evidence on the second day of hearing. She was cross-examined by the husband and Senior Counsel for the wife. Her evidence was given across a period of approximately 3 hours; that it was of such duration was largely due to the husband, whose cross-examination spanned a period of approximately 2 hours and was marked by irrelevant questions which were often more focussed on himself than the children. On a number of occasions, I attempted to direct the husband to focus on questions pertinent to the issues in dispute, with little success.
Dr D gave evidence on the second day of hearing. The husband cross examined Dr D for approximately 30 minutes.
Given the husband’s failure to file any material, the evidence concluded on the second day of hearing.
Senior Counsel for the wife made an oral application that the husband’s application for an adjustment of the parties’ property interests be dismissed, pursuant to Rules 1.33 and 10.7 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (“the Rules”).
Submissions were made in support of that application. I determined that the husband ought have the opportunity to consider the application and indicated that he could respond to it the following day as part of his closing submissions. Prior to adjourning for the day, Counsel for the ICL informed the Court of the ICL’s preliminary views with respect to the parenting matters. The matter was then stood over to the following day for closing submissions.
On the third day of hearing, the ICL provided a detailed and helpful closing address with respect to parenting issues, following which the court adjourned for a mid-morning break.
Upon resumption of the hearing following the mid-morning break, the Court was informed that the husband had packed his belongings and left the court precinct with his support person, Ms B. The Court was also informed that Ms B (who had attended Court and supported the husband each day of the hearing) had contacted the wife’s lawyer and informed her that the husband had a severe blood nose and had left Court to seek medication to treat that ailment. The matter was stood down to enable the wife’s lawyer to further communicate with the husband or Ms B.
At 12:30pm the hearing resumed and attempts were made to contact the husband on the two telephone numbers listed for him on the Commonwealth Courts Portal, and to also telephone his support person, Ms B. Those calls were made through the Court’s video conferencing system at 12:32pm; none of those calls were answered.
The matter was stood down until 2:15pm to enable further attempts to communicate with the husband to clarify his position. Upon the resumption of the hearing at 2.15 p.m. the husband remained absent from the court precincts; he was called outside of court to no avail and three calls to the mobile numbers provided for he and Ms B were again unanswered. Given that position, I made orders that:-
·The matter be adjourned part-heard to 10am on Thursday 1 September 2022;
·The husband personally attend the hearing and provide a medical certificate explaining his inability to attend court that afternoon;
·The wife cause a copy of the orders to be served on the husband at his email address;
·The matter proceed in the husband’s absence in the event of his failure to attend Court.
On 1 September 2022, Senior Counsel for the wife tendered an email dated 31 August 2022, forwarded by the wife’s lawyer to the husband at his email address serving upon him the orders made that day (Exhibit M-7). Also tendered was a further email sent to the husband by the wife’s lawyers on 31 August 2022 serving upon him an amended Minute of Order sought by the wife (Exhibit M-8).
Having regard to the emails tendered, I am satisfied that the husband had notice of the orders made that the hearing continue on 1 September 2022, and of the requirement that he personally attend the hearing. I am also satisfied that the husband had notice of the orders sought by the wife and the ICL.
That view is bolstered in light of the email received by the wife’s lawyer at 10.01 am on 1 September 2022 purporting to be from the husband’s assistant, Ms B (Exhibit M-9). That email states as follows:-
I have just arrived at [Mr Creighton’s] home and have just opened his computer and seen your email of proposed minutes of orders regarding 10.00am today.
This will not be possible as when I left last night he was still suffering from constant nose bleed – apparently indicated to him by the surgeon that this could well be the case following the quarterisation [sic].
There is no way he can be in court today and is happy to provide all evidence requested by you of the surgeon at your convenience.
I will contact the surgery immediately to obtain the necessary medical certificate and forward it to you prior to midday today or if he is in surgery, as soon as practicable thereafter.
The hearing resumed at 10am on Thursday 1 September 2022. The husband did not attend Court. The husband was called in the Court precincts and did not answer the call. In addition, attempts were made to communicate with the husband by telephone to his two telephone numbers and to Ms B at her telephone number. All of those calls reverted to the voicemail message system. Those calls were made at approximately 10.10 am, after the email purporting to be from Ms B was forwarded by her to the wife’s lawyer.
In all of the circumstances, having regard to the history of the husband’s failure to comply with orders and directions of the Court and having been satisfied that the husband was on notice that the matter may proceed in his absence, I determined that the hearing should proceed.
Final submissions were made on behalf of the ICL and the wife.
In addition, the ICL made an oral application for costs fixed in the sum of $1,642 in relation to the costs of his appearance on the final day. That application was made in circumstances where the matter should have concluded the previous day had the husband not left the Court without notice or explanation. Upon hearing submissions I made an order for costs as sought on behalf of the ICL and provided ex tempore reasons for judgment.[2] Otherwise I reserved judgment with respect to the substantive issues.
[2] Creighton & Creighton (No 2) [2022] FedCFamC1F 663.
the issues
The issues remaining to be determined by the Court at the conclusion of the hearing are as follows:-
·The allocation of parental responsibility. Should the wife have sole parental responsibility, as sought by she and the ICL, or the parties have equal shared parental responsibility, as sought by the husband?
·Should the husband’s time occur during daytime periods only or on an overnight basis, as sought by the husband?
·What notice period should be provided to the husband in the event that one of the children suffers a significant illness or injury requiring hospitalisation or the attendance upon a specialist medical practitioner? The husband seeks that he be provided no less than 12 hours’ notice of such instance whilst the wife proposes that the husband be notified of such instance within 72 hours. The ICL supports the wife’s position.
·Should the husband be permitted to communicate with the children by FaceTime or telephone, or alternatively should such communication be initiated by the children only?
·Should the husband be restrained by injunction from attending the children’s school?
·Should the husband’s application for property orders be dismissed pursuant to Rules 1.33(2)(a) and 10.27(1) of the Federal Circuit Court and Family Court of Australia Rules 2021 (Cth) due to his failure to comply with orders of the Court in relation to the filing of his trial affidavit material, orders for discovery and his failure to prosecute his application with due diligence?
·Alternatively, should the Court dismiss the husband’s application for property orders in circumstances where there is no evidence to support a finding that it would be just and equitable to make any adjustment to the parties’ respective interests?
THE EVIDENCE
In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:-
·The nature of the cause of action or defence; and
·The nature of the subject-matter of the proceeding; and
·The gravity of the matters alleged.
I have read all documents upon which the parties have relied and the exhibits that were tendered during the hearing.
In what follows, statements of fact constitute findings of fact. In determining the matter I have had regard to all of the evidence and had the benefit of observing the appearance and the demeanour of the husband (when presenting his case), and the wife and those witnesses who were required for cross-examination. I have carefully considered the matter and in making findings to the requisite standard, I have had regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.
The Respondent Wife
The wife gave evidence on the first day of hearing.
The wife gave brief evidence-in-chief and was questioned as to how she calculated the values of properties identified in her Notice to Admit, dated 23 May 2022 (Exhibit M-5). The wife confirmed that she had researched the value of the properties on realestate.com.au and that she had also taken into account the valuations attributed to those properties in rates and land-tax notices.
The wife was then cross-examined by Counsel for the ICL. The husband was not permitted to cross-examine the wife as a result of the operation of the order made pursuant to s 102NA(2).
Counsel for the ICL cross-examined the wife as to the circumstances in which the husband entered her household in early 2021, following the expiration of the first intervention order. The wife confirmed that the husband informed her that he wished to end the dispute and see the children, and that he wished to resolve matters. She stated that she believed that offer was genuine and that she trusted him. She confirmed that the relationship again broke down within four months of the resumption of the husband’s time with the children and that she sought Police assistance in mid-2021 to pursue a further Intervention Order.
Counsel for the ICL also cross-examined the wife as to whether or not the children identified as the husband’s religion. The wife confirmed that none of the children identify as the husband’s religion. When the husband arranged for Z to commence preparation for a religious ceremony, the wife stated that Z attended to please the husband; it was the husband’s desire that he attend religious classes, not Z’s. The wife confirmed that Z did not complete preparation for the religious ceremony as the religious leader would not permit it upon learning that Z is not that religion by birth.
Counsel for the ICL also questioned the wife as to the children’s progress. She confirmed that all were doing well; X and Y are making excellent progress at school, they have part-time jobs and positive relationships with each other. She stated that their sibling relationship had improved since mid-2021. In relation to Z, the wife observed that he is not as good academically as his sisters and that he is having private tuition to assist him. He attends the gym with his sisters. She confirmed that both Y and X do their best to guide him.
The wife impressed as a forthright and honest witness. She demonstrated insight and understanding as to the individual needs of the children. I accept her evidence in its entirety.
Ms C, Family Report Writer
Ms C has prepared three assessments in this matter, a Child and Parents’ Needs Assessment in early 2020, her first Family Report dated 26 August 2020 (“the first Family Report”), and a further Family Report prepared in accordance with the orders made 10 December 2021. That report is dated 1 August 2022 and is annexed to Ms C affidavit filed 19 August 2022 (“the second Family Report”). As a result of her involvement in the matter, Ms C has had the benefit of observing the children and the parties across a period of approximately two-and-a-half years.
Ms C's Curriculum Vitae is annexed to the second Family Report and discloses that she is an accredited Mental Health Social Worker, Parent-Infant Mental Health Clinician and Family Report Writer . There was no challenge to her professional qualifications.
In the second Family Report, Ms C notes that she obtained information for the report through interviews conducted by her via Zoom with the husband, the wife and the three children. In addition, she lists the documents read by her at page 2 of 26 of the report. Ms C provides a detailed account of her interviews with the husband and the wife. Similarly, she provided detailed reports as to her interviews with the three children.
Ms C’s recommendations as to future parenting arrangements are set out at [118] to [127] inclusive of the second Family Report. In summary, her recommendations include that:-
·The children remain living with the wife.
·The wife have sole parental responsibility for the children.
·The children be free to spend time with the husband each alternate fortnight if they are willing.
·If the children spend time with the husband on a Sunday they be returned to the wife’s care at the agreed changeover location by 6.00pm.
·The husband attend family therapy with Z and X individually to repair the relationship and forge a relationship that is respectful of their boundaries.
·All communication between the parents regarding the children’s needs be via email or text message.
·The children attend upon a counsellor with understanding of parental separation.
·The parents refrain from denigrating one another in front of the children.
·The parents cease contacting the Police or authorities or the other unless there is a genuine risk of harm.
Ms C gave evidence via Microsoft Teams on the second day of the hearing. Ms C was cross-examined by Counsel for the ICL, the husband and Senior Counsel for the wife
Ms C gave evidence over a period of approximately three hours, of which almost two hours was conducted by the husband. The husband repeatedly sought to question Ms C in relation to issues that were not relevant to matters in dispute and did not assist in the resolution of the outstanding issues. On many occasions, I endeavoured to re-direct the husband’s focus to matters relevant to the dispute, with varying degrees of success.
Counsel for the ICL questioned Ms C in relation to the ICL’s proposals.
During her oral evidence, Ms C confirmed her view that the children’s time with the husband should be limited to weekend time, noting the importance of giving the children choice as they are older children “with lives of their own”. It was her view that to force the children to spend a whole weekend with the husband would be inappropriate.
As to the issue of whether the children should be required to attend family therapy with the husband, Ms C conceded that requiring the children to undertake such therapy did pose a risk to their well-being. She confirmed that the children have previously been exposed to behaviour from the husband which has been damaging. She also conceded that the children are exhausted by the litigation process and the conflict between the parents. Further, Ms C confirmed that both she and Dr D had difficulty containing the husband’s behaviour during their assessments of him. She agreed that only a very experienced therapist would have the capacity to manage the husband’s behaviours in family therapy.
As to the issue of the amount of notice that the husband should be given in the event of a significant illness or injury affecting one of the children, Ms C agreed that it is preferable for there to be delay in time before the husband receives such notice. She considered that a gap of 48 hours would be appropriate.
Ms C also agreed that the ICL’s proposal regarding an injunction to restrain the husband from attending the children’s school events, save where he has a written invitation to so attend, was appropriate. She considered that the children needed to be protected from potential conflicts between the parents and inappropriate behaviours by the husband, and that the children should have choice in that.
The husband’s cross-examination of Ms C was largely ineffectual. He repeatedly sought to subject her to a form of memory test. Notwithstanding my attempts to direct his attention to focus his questions on matters related to the limited issues in dispute, the husband had difficulty in formulating helpful or relevant questions which might assist in my determination of the issues in dispute.
Further, in many instances, the husband’s cross-examination did little other than undermine his own case. For example, the husband challenged Ms C’s assessment that his behaviour persistently undermined the wife’s parenting and invited Ms C to provide the basis for her assessment (set out at [110] of the first Family Report). Ms C provided a recent example of what she considered to be the husband’s undermining behaviour, referring to the husband’s actions in reporting the wife to Police in mid-2021 when he had “no idea what was going on in that home other than a report from one of the children”. Ms C considered that this behaviour was “manipulative and undermining… and it caused psychological harm to the children”. Ms C continued to comment that in light of that behaviour, it is her view that the children need boundaries to protect them from such actions.
The husband also sought to challenge Ms C’s assessment on the basis that she had relied upon the allegations of the wife only. When challenged as to the source of her information and the bases for her assessment, Ms C confirmed that her assessment included information from the children, the observations that she carried out and the information provided by both the husband and the wife.
The husband also challenged Ms C’s assessment of the wife as a “good enough” parent. At [112] of the second Family Report, Ms C stated:-
… [The wife] appears to be a “good enough” parent and is raising the children appropriately given the ongoing challenges of endless litigation and conflict between the parents. Her accounts in interview were child centred and her focus did not appear to be to denigrate [the husband].
In response to the husband’s questions, Ms C confirmed that that statement related to her assessment as to whether or not the wife had engaged in “alignment behaviours”. Ms C noted that the children’s view of the wife was balanced. She noted that they did not appear to have an overly positive view of her, rather the children had a fair view of the wife: that she is good enough. Ms C noted the children’s view that they love the wife, enjoy living with her, don’t want to leave, and that they are happy and settled. Ms C assessed those views as appropriate, particularly in the context of the ongoing conflict to which the children have been exposed.
The husband also questioned Ms C in relation to his proposals that he be permitted to travel overseas with the children. Ms C stated that she did not consider the husband’s proposal to be in the children’s best interests and stated that her view was based on her concerns around alignment of the children to the husband and the potential undermining of the wife. Ms C also referred to the children’s experiences of trauma arising from the husband taking Y overseas without her siblings, which caused distress to all of the children and about which they continue to speak today. Ms C confirmed that this was an issue related to placing boundaries in order to protect the children. Ms C confirmed that she viewed the husband’s proposals with respect to overseas travel to be “outside the boundaries”.
The husband also sought to allege that the wife’s tears during interview with Ms C were an attempt by her to manipulate the assessment process. Ms C confirmed in response to that proposition that the wife was at times tearful during the interview process, but that she did not consider those tears to be an attempt to manipulate her impression of the wife. Indeed, Ms C assessed the wife’s response to be genuine in relation to what she described as particularly difficult and painful questions, as well as the distress arising from being interviewed for a third time, which Ms C identified as being an overwhelming experience for a parent.
During cross-examination by Senior Counsel for the wife, Ms C confirmed her assessment of the wife as being open to the possibility of the children spending time with the husband. She confirmed her view that the wife is not the type of parent who would unilaterally or unnecessarily try to prevent the children from having a relationship with the husband.
Ms C also confirmed during cross-examination by Senior Counsel for the wife that her recommendation in the first Family Report that the children have no time with the husband was based on her assessment as to the disruptive effect he has on the sibling group. She also confirmed that given the perpetual conflict between the parents, the preservation and protection of the sibling group is important to the children.
Ms C confirmed that permitting the child Y to spend overnight time with the husband poses a risk to the dynamic between the siblings, given the history of the husband’s aligning behaviour with respect to Y.
Ms C was questioned as to whether or not the children, and in particular Y, should be permitted to spend overnight time with the husband given the history of the dispute. Ms C confirmed that during the period that the husband spent no time with the children, between mid-2020 and early 2021, the wife’s position was that the children were more settled and life was more peaceful for the family. Ms C confirmed that upon the resumption of the husband’s time with the children, from the wife’s perspective, issues emerged in relation to the husband placing pressure on the children. For example, the wife reported that the husband parked outside her home each day or every second day to take the children to school in the morning, notwithstanding that the home is a short walk from their school. She also confirmed the wife’s report of the husband taking Y to his home after she injured her ankle and requiring Z to come to the home to assist with Y’s care.
Ms C confirmed her view that given the allegations as to the husband’s behaviour and having regard to the children’s ages and stages of development, it was appropriate that there be limitation around the time the husband spends with the children. Ms C expressed the view that she did not understand what difference it would make if Y were to spend overnight time with the husband during fortnightly visits. It was put to her by Senior Counsel for the wife that limiting the husband’s time to day-time only would enable the children to reconnect with the wife and their siblings and to detach from the husband; Ms C conceded that such arrangement would have that effect. Ms C also conceded that it was important that any orders made by the Court ensure that the existing intervention order continues to have effect, so as to protect the wife from the husband’s alleged harassment.
As to her recommendations that the children engage in counselling, again Ms C conceded that an order in relation to such arrangement should not be a coercive order, given the ages of the children. Ms C agreed that if the children are unwilling to go then the wife should not be in a position of having to force them to attend such counselling.
Ms C has had the advantage of observing and assessing the parties and the children over a period of approximately two-and-a-half years; this is a significant advantage in her assessment of the issues in this matter. The Family Reports prepared by Ms C are detailed and thorough. Her responses to questions put in cross-examination were considered and thoughtful. Ms C made appropriate concessions during the course of her oral evidence. I found her evidence, which I accept in its totality, to be of great assistance in the determination of the issues in dispute.
Dr D, Psychiatrist
The final witness to give evidence was Dr D, Consultant Psychiatrist, who had prepared Psychiatric Assessments of each of the parties. Dr D’s report in relation to the parties is dated 2 March 2020 and is annexed to his affidavit filed 4 June 2020.
Dr D assessed the husband in the following terms:-
…
4.Interviewing [the husband] proved to be a formidable task; he was an overwhelming presence who had to constantly be contained in the interview situation. He impressed as engaging in strong impression management throughout denying at all times any part or responsibility for the deleterious situation which the children have been subjected to throughout their young lives.
Beyond his apparently amenable friendly demeanour I felt that I was in the company of a man adept at converting others to his viewpoint; a salesman who was wily and at times convincing. Beyond that he impressed as a man who was highly defended, described himself as being unloved, unaccepted and not favoured by his father and spoke of both of his parents ambivalently. Whilst describing himself as a successful businessman [the husband] impressed as erratic in the manner in which he managed his affairs and was described by [the wife] as highly litigious.
5.[The husband] has been married three times and whilst he attempted to explain his lack of contact with his adult children who, from what I gather, wish to have no contact with him on the basis of [the wife’s] alienation of them I do not accept that explanation proffered by him; rather it is highly likely that his destructiveness, narcissism and self-preoccupation prevents him from being able to understand or deeply care for others including his children and there are serious allegations that he faces and in part acknowledges as to his inappropriate sleeping with [X] and his manipulation of [Y].[3]
[3] Affidavit of Dr D filed 4 June 2020, page 25.
As to the wife, Dr D assessed her as follows:-
7.[The wife] at first impressed as defensive and guarded but over the course of the interview her underlying vulnerability, distress and loneliness during the marriage shone through.
Just why it was that she ended up in a relationship with [the husband] is possibly explained by the fact that she was single, largely alone in this country and may well have been impressed by [the husband’s] initial charm, promises, attention and possibly his wealth.
8.Whilst it is [the husband’s] account that he was the primary carer of the children I was left with significant doubt that this was not the case based on the Mother’s account was detailed, cogent and believable. To the extent that she has lashed out at the Father and/or the children I consider such behaviours are largely explained by the ever challenging situation that she was faced with at one point having three children under the age of three and having to contend with the Father and his voracious need for attention and control. At interview [the wife] impressed as a woman who had survived significant emotional and physical abuse; nonetheless she had established a successful [business] and now that she has freed herself and the children by moving away she impressed as having found a new sense of freedom and with that renewed hope for the future.[4]
[4] Affidavit of Dr D, pages 25-26.
Dr D gave evidence via Microsoft Teams on the afternoon of the second day of hearing and was cross-examined by the husband only.
Dr D was questioned as to the assessment process adopted by him. He confirmed that his assessment and opinion was based upon the information he had obtained from the documents produced by the parties and listed at pages 7 to 8 of his affidavit in conjunction with the information and observations made by him during interview of both the husband and the wife, and the application of his professional expertise.
The husband had the opportunity to challenge Dr D’s assessment of him during cross-examination. The husband’s cross-examination of Dr D lacked focus and did not seriously challenge Dr D’s assessment or opinion in respect of either party.
Dr D’s assessment of the parties as set out in his affidavit is detailed and thorough. The observations made by him of the husband’s presentation largely accord with my own observations of the husband during the hearing. Dr D’s description of the need to contain the husband during interview aligned with the difficulties experienced by the Court in managing the husband when presenting his case. Similarly, the husband’s presentation to Dr D as the faultless party in this dispute is the picture he sought to present to the Court in the conduct of the matter.
Dr D’s assessment of the parties was thoughtful and concise and I accept his evidence in its entirety.
PARENTING
LEGAL PRINCIPLES
Section 60B(1) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The parties seek parenting orders as defined by s 64B of the Act. That is, they seek orders relating to:-
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child; and
…
(d)the communication a child is to have with another person or other persons.
Each of the parties has standing to apply for such orders in accordance with the provisions of s 65C of the Act, as the biological parents of the children.
In deciding what parenting orders are appropriate in a particular case, the best interests of the children must be the paramount consideration (s 60CA of the Act). Sections 60CC(2) and (3) of the Act set out the primary and additional considerations to which the Court must have regard in determining what is in the children’s best interests. The Court must give greater weight to the necessity to protect the children from physical or psychological harm from being exposed to abuse, neglect or family violence (s 60CC(2A)). Otherwise, there is no requirement for the primary and additional considerations to be considered in any particular order or for any of the list of considerations to be afforded greater weight than others. Ultimately, the weight to be afforded to each of the considerations is a matter dependent upon the unique circumstances of each case.
That this is so was confirmed by the Full Court of the Family Court of Australia (as it then was) in Donnell & Dovey (2010) FLC 93-428 at [103], where it described the section 60CC considerations as:-
…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another.…
As to the manner in which the Court is to take those considerations into account, May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 as follows:-
[76] It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by parliament as those the court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
[77] It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. While the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance…
(Emphasis in Original)
There is a presumption that it is in a child's best interests for the parents to have equal shared parental responsibility (s 61DA of the Act). The presumption relates to the allocation of parental responsibility; it does not relate to the time the child spends with each parent. If there is an order for equal shared parental responsibility, the Court is then obliged to consider whether it would be in the child's best interests and reasonably practicable for them to spend equal time or substantial and significant time with each parent (s 65DAA of the Act).
For the reasons set out below, I am satisfied that it would not be in the children’s best interests for the husband and wife to have equal shared parental responsibility; I will make orders as sought by the wife and the ICL that the wife have sole parental responsibility for the children. Accordingly, I am not required to consider the matters raised in s 65DAA of the Act.
SECTION 60CC CONSIDERATIONS
Primary Considerations: Section 60CC(2)
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
Ordinarily, it is in a child’s best interests to have a meaningful relationship with both parents. The question of what constitutes a ”meaningful relationship” was considered by Brown J in Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At [26] of that judgment, Her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.
In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405, the Full Court considered the interpretation of s 60CC(2)(a) of the Act and concluded that:-
[119] … the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents…
…
[122] In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
(Emphasis in Original)
The evidence of Ms C, which I accept, is that neither X nor Z wish to spend time with the husband. Whilst Y confirmed to Ms C that she does wish to spend time with the husband, she acknowledged the adverse impact her relationship with the husband has had on her relationship with her siblings. She was also clear in her desire that there be boundaries as to how she is to spend time with the husband; she did not wish to be bound to spend time with the husband during specified periods, given her commitments to her employment, her studies and her social commitments.
The challenge for the Court is crafting orders which will enable the possibility of a meaningful relationship between the children and the husband in circumstances where two of the children are adamant in their refusal to spend time with him and where he is resistant to any boundaries being placed upon his relationships with them.
The evidence of the wife indicates that whenever he is afforded opportunity to spend time with the children, he presses for more; she alleges that this occurred most recently between early and mid-2021 and culminated in her obtaining the second Family Violence Intervention Order. Even in the course of the hearing, the husband was resistant to any direction or limitations being placed upon the manner in which he could present his case. The trial proceeded in circumstances where the husband failed to comply with directions for the filing of material and eventually disengaged with the Court process, absenting himself from the final day of hearing and failing to respond to telephone calls and emails inviting his participation in the hearing. Such conduct does not bode well in terms of his ability to comply with any restrictions that may be imposed to regulate his relationships with the children.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
As noted earlier in the judgment, there is a Final Family Violence Intervention Order in place to protect the wife and the children from the husband.
It was submitted on behalf of the ICL and the wife that the husband engages in behaviour which places the children at risk of psychological harm. Examples of such behaviour include the husband’s actions in taking Y overseas and interstate without her siblings, the effect of which was to compromise the relationship between the sibling group.
Another example was the husband’s action in reporting the wife to Police in 2021 following the argument between herself and Z. Ms C considered that action as being behaviour which undermined the wife’s parenting decisions and again has had the effect of creating a schism within the sibling unit, it being Y who reported the altercation between Z and the wife to the husband.[5]
[5] Second Family Report [107].
Further, Ms C observed that the husband during interview with her displayed poor boundaries. She observed that he engaged in a “relentless pursuit to push his agenda” during interview. She also observed that “[h]e displayed very limited regard for boundaries when the writer stated that she needed to end the interview multiple times (and had already gone overtime) and then proceeded to contact the writer three times following the interview”.[6] Again, that conduct was consistent with the husband’s presentation at the final hearing.
[6] Second Family Report [111].
The wife reported to Ms C during interview that between early and mid-2021 when she permitted the husband to resume seeing the children, the husband would attend her home without invitation every day or every second day, that he would park his motor vehicle outside her property at 7.30am each day to transport the children to school. It was the wife’s view that such conduct placed undue pressure on the children to spend time with the husband.[7] The husband did not seek to challenge Ms C’s report or assessment of that behaviour.
[7] Second Family Report [39].
Again, the conduct reported by the wife and observed by Ms C is consistent with the manner in which the husband behaved during the course of the final hearing.
I am satisfied that the husband displays limited capacity to observe appropriate boundaries in relation to his behaviour and that this may adversely impact the children. Having regard to the evidence of Ms C, I am satisfied that the children are at risk of psychological harm from the husband whose behaviour has had the effect of undermining the role of the wife in the children’s lives and has placed inordinate pressure on the children to engage with him.
Additional Considerations: Section 60CC(3)
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Ms C interviewed all of the children for the purposes of the preparation of the second Family Report. Each of the children expressed clear and strong views as to their relationships with the husband and the wife.
At interview, X was aged 16 years. At [69] of the second Family Report, Ms C notes that X reported to her that she is not willing to spend time with the husband should time be ordered by the Court. X expressed concern that the husband would attempt to manipulate her, stating to Ms C that:-
Dad sees me as an easy tunnel to mum for him to ask for money… He knows I am close to mum so he will continue to use me. It’s too stressful.
There was no challenge to Ms C’s observations or report in relation to X’s expressed view. Accordingly, I accept her evidence in relation to X’s views.
Z was aged 14 years at the time of interview with Ms C. He too was firm and clear in his expression that he does not want to spend time with the husband until he is an adult. He stated that he does not “feel physically safe” with the husband and requested that the Court make an order that he does not have to spend time with the husband until he turns 18. Again, there was no challenge to Ms C’s report as to Z’s views. Accordingly, I accept that evidence.[8]
[8] Second Family Report [83].
As to Y, she was aged 15 years at the time of interview. Ms C reports Y’s view that she would “feel annoyed and sad” if she was unable to see the husband until she was 18 years. However, it was her view that she would prefer to remain living with the wife and spending time with the husband as she pleases, noting that she is fast approaching her VCE which is her main focus at this time.[9]
[9] Second Family Report [91].
At [93] of the second Family Report, Ms C noted Y’s view that there needs to be clear rules and boundaries as to when the children spend time with the husband and further, Y confirmed that she did not wish to be bound to an order that required her to spend time with the husband every second weekend. There was no challenge to Ms C’s report as to Y’s views.
Ms C observed all of the children to be mature and forthright in their views. She was also satisfied that the children’s views were not formed as a result of any influence or pressure from the wife. I accept Ms C’s evidence as to the children’s views and am satisfied that significant weight ought attach to those views having regard to the children’s ages and maturity.
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The evidence of Ms C in the second Family Report satisfies me that each of the children has a close and loving relationship with the wife. At [59] of the second Family Report, Ms C observed that overall, X’s view was more positive towards the wife and more negative towards the husband.
At [82] of the second Family Report, Ms C notes Z’s comments in relation to the wife as follows:-
Mum is a better parent, she puts her kids before herself and she doesn’t regret it. She puts effort into the things we do.
When commenting on the husband, Ms C noted Z’s feeling of disappointment in his father and reported that Z was quite rejecting and dismissive of the husband. At [75] of the second Family Report Ms C recorded Z’s comments in relation to the husband as follows:-
…not much has changed… Dad won’t change… He hasn’t learnt his lesson… He’s an immature person.
When questioned as to the lesson to which he was referring Z responded as follows:-
…to put your kids first, not yourself or money.
Ms C also reported Y’s views of her parents and of her relationship with them. At [91] of the second Family Report she confirmed that Y was clear that she wished to remain living with the wife and to spend time with the husband “as she pleases”.
Having regard to the evidence of Ms C, I am satisfied that the children have loving and strong relationships with the wife. Further, I am satisfied that X and Z’s relationship with the husband is fractured and that whilst Y has maintained a relationship with the husband, her pursuit of that relationship has strained her relationship with her siblings and placed pressure upon her.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
Since separation, the wife has been principally responsible for all aspects of the children’s day-to-day and long-term care. The child X has a medical condition. The wife administers X’s her medication.
The husband has spent limited time with the children since separation and there have been periods where his time has been supervised. The husband has spent no time with the children since mid-2021 when the second Family Violence Intervention Order was made against him.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The wife has attended to all of the children’s physical and psychological needs since the parties’ separation.
The wife’s evidence is that the husband pays no child support for the children.[10]
[10] Wife’s Financial Statement Part D, [13].
In addition there have been occasions where the husband has failed to meet the children’s physical needs. For example, Z reported to Ms C during interview that when Y injured her ankle and was being cared for at the husband’s home, the husband required that he care for Y whilst the husband “just sat in the TV room”.[11] The husband did not challenge Ms C’s reporting of the children’s views. Accordingly, I accept that she has accurately reported Z’s account of that event.
[11] Second Family Report [80].
Counsel for the ICL submitted, and I accept, that the husband’s conduct in delegating his caring responsibility to Z on that occasion was indicative of his inability to meet his responsibilities as a parent.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The orders that I make will not alter the children’s current circumstances. They will continue to live with the wife and any time spent by them with the husband will be in accordance with their own wishes, subject to specific limitations.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The children live in relatively close proximity to the husband and, given their ages and maturity, have autonomy and freedom to communicate with him and spend time with him in accordance with their wishes.
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
(iii)to provide for the needs of the child, including emotional and intellectual needs;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The wife has demonstrated a strong capacity to attend to all of the children’s physical, emotional and intellectual needs. The evidence of the wife is that both X and Y are excelling at school, are engaged in part-time employment and are progressing well in all areas of life. Similarly, Z is making good progress at school, has private tuition to support him in his studies and has positive relationships with his peers.
The wife has attended to all of the children’s needs, including those of X who has special medical needs, with little support from the husband.
I am satisfied that the wife has demonstrated a dedication and commitment to her responsibilities as a parent to the children.
Although the husband maintained during the trial that he sought to be actively involved in the children’s world, his actions belie those statements. The reality is that although he has pursued these proceedings over the past three years, he has done little to actively engage in the Court process. It was submitted by Counsel for the ICL, and I accept, that were the husband genuinely seeking involvement in the children’s lives, he would have complied with Court orders and produced evidence to support his application.
The husband filed no documents in compliance with those orders.
On 26 May 2022 I made further orders in relation to the preparation of the matter for final hearing. The effect of those orders was to extend the husband’s time for compliance with the orders previously made by me on 10 December 2021. The husband’s obligations pursuant to the orders made 26 May 2022 were:-
1A.That the time for the husband’s compliance with Order 3 of the Orders dated 10 December 2021 be extended to 4.00pm on 6 June 2022.
…
5.That within 14 days each party shall pay [Ms C] an equal share of the cost of the assessment and report.
The husband did not comply with those orders. At the commencement of the final hearing before me the husband had no material before the Court; no document had been filed by him particularising the final property orders sought by him.
It was submitted on behalf of the wife that in circumstances where the husband, who is the applicant in the proceedings, has not complied with those orders, the husband’s application for final property orders should be dismissed in accordance with the provisions of Rule 1.33(2)(a) of the Rules.
The wife also relied on Rule 10.27(1)(c), it being the case that the husband is in default of orders of the Court and accordingly, the proceeding issued by him ought be dismissed. It was submitted that the default which enlivens that Rule is the husband’s failure to comply with the orders of 10 December 2021 and 26 May 2022.
In addition to the husband’s failure to file documents pursuant to trial directions, the wife also relies upon his failure to make disclosure in accordance with orders made on 30 October 2019 and 11 December 2019. In support of that submission, reliance was placed on the husband’s failure to disclose the recent sale by him of the property at M Street, Suburb P. That sale was only discovered by the wife’s lawyer during the course of the final hearing. During the hearing, the husband conceded that he had indeed sold that property in mid-2022 for the sum of $1.63 million and that the sale proceeds had been applied by him to the retirement of debts secured over the property at Q Street, Suburb P. There is no evidence before the Court adduced by the husband in relation to those transactions. Having regard to those matters, I accept that the husband has failed to meet his disclosure obligations.
The husband has been on notice as to the final hearing since I made orders fixing the trial date on 10 December 2021. He had a period of eight months to prepare for the hearing and to file documents in accordance with the trial directions.
The husband’s own document, being his Notice Disputing a Fact or Document (Exhibit F-3), confirms that the husband holds real estate and motor vehicles exceeding a value of $6,000,000. Further, the husband conceded during the running of the trial that he had disposed of a property for the sum of $1.63 million. Having regard to his own document and the concession made, I am satisfied that the husband likely had the financial capacity to engage lawyers to assist him in the preparation of the matter should he have elected to do so.
Even if he did not have the capacity or was not minded to engage a private lawyer to represent him, on 10 December 2021 I made an order that the requirements of s 102NA(2) of the Act would apply to the cross-examination in the proceedings. At the time that order was made, the husband was informed that:-
·He would not be permitted to personally cross-examine the wife;
·He was entitled to access the Commonwealth Family Violence and Cross-Examination of Parties Scheme;
·That in order to access that scheme he must apply to Victoria Legal Aid; and
·That a copy of the orders made would be forwarded by the Court to Victoria Legal Aid.
The husband did make application for a lawyer pursuant to the Commonwealth Scheme. The husband submitted that the lawyer engaged by Victoria Legal Aid to assist him informed him on 28 July 2022, some four weeks prior to the commencement of the final hearing that he would not act for him. At the time that lawyer notified the husband of his position, the husband’s trial documents were more than 7 weeks overdue, having been ordered to be filed by 6 June 2022.
Other than seeking to apportion blame for his situation upon the lawyer appointed under the Commonwealth Scheme, the husband proffered no explanation as to why he did not file trial documents in compliance with the orders made 10 December 2021 and 26 May 2022, nor as to why he did not seek alternate representation for the trial.
The husband’s application for final property orders was commenced by him in June 2019. The matter has been listed for final hearing before another Judge on two separate occasions; the hearing before me was the third occasion on which the matter had been listed for final hearing. On any view, the husband has had ample opportunity to properly prepare and prosecute his case. He has not done so. He has not particularised his claim, nor has he put any evidence before the Court to support it. He has been granted indulgences by the Court, particularly extensions of time to file material; those indulgences have been ignored.
The wife has complied with Court orders – she has done all that she could to enable the matter to proceed. She is entitled to have an end to these proceedings.
In respect of the husband’s failure to comply with orders made 31 August 2022 requiring his personal attendance at court and the provision of a medical certificate, I note that he forwarded an email to my Associate on 12 September 2022 purporting to comply with that direction. That email states as follows:-
Please advise date of next hearing and current status of Orders made by Her Honour from 29 August 2022 upto and including the present.
I also attach for your reference/records a further copy of the medical certificate as requested by [the wife’s lawyer] in relation to further surgery conducted by [Mr R] ([Mr R]) on Friday 2 September 2022.
The attached medical certificate from a Mr R, dated 2 September 2022, provided as follows:-
This is to certify that [Mr Creighton] is unable to perform any work duties owing to medical illness from the dates 02/09/2022 until 09/02/2022 inclusive.
Not only did the husband fail to provide a medical certificate in the time ordered, the certificate so provided does not indicate that the husband was unable to attend court on the dates he elected to absent himself from the hearing, being 31 August 2022 and 1 September 2022.
In all of the circumstances, I am satisfied that the husband’s application for final property orders should be dismissed, having regard to the husband’s failure to comply with orders and directions of the Court, particularly:-
·orders of the Court made 10 December 2021;
·orders dated 26 May 2022; and
·orders made on 31 August 2022 that he personally attend the hearing listed on 1 September 2022 and provide to the Court a medical certificate explaining his absence and inability to attend Court personally or via Microsoft Teams.
Is it just and equitable to make orders altering property?
Were I not persuaded that the husband’s application should be dismissed due to his non-compliance with orders of the Court, the wife, in the alternative, sought the dismissal of the husband’s application on the basis that in circumstances where the parties managed their finances separately throughout the course of their marriage, the Court could not be satisfied that it is just and equitable for an order to be made altering their interests pursuant to s 79(2) of the Act.
The parties commenced cohabitation at the husband’s property in J Street, Suburb K. At that time, the husband was employed in the motor vehicle industry and the wife was working while undertaking studies to enable her to practise as a medical professional in Australia.
In 2002, shortly prior to the commencement of cohabitation, the husband’s father died. The husband inherited approximately $6,000,000 from his father’s estate.
During the relationship, the husband purchased two properties at L Street, Suburb N. Both properties were purchased in the name of T Pty Ltd as trustee for the U Trust, an entity controlled by the husband.
The wife’s unchallenged evidence is that the husband referred to the property at Unit 1 L Street as “his house” and maintained that she was not to pay any outgoings with respect to that property.
In addition to the L Street properties, during the course of the marriage the husband also purchased a property at Q Street, Suburb P in the name of V Pty Ltd (as trustee for the W Trust, another entity controlled by the husband).
The wife’s evidence is that the husband met all payments with respect to mortgage, rates, taxes, insurance and utilities in respect of the properties at Unit 1 L Street and Q Street. The wife’s evidence is that during the marriage, she was responsible for the family’s groceries and for clothing for herself and the children.
The wife deposes that in late 2003, she commenced full-time work as a medical professional at the AB Centre. Following the birth of each of the parties’ children, the wife took periods of maternity leave. During her periods of maternity leave, the wife received government benefits for the support of herself and the children.
The wife contends that the parties separated under one roof in 2008. Following the birth of the children, the wife resumed employment as a medical professional in 2009. In 2011 the wife commenced operation of her own business.
Between 2010 and 2017 the wife, either in her own name or through entities controlled by her, purchased the properties at:-
·AC Street, Suburb K;
·AD Street, Suburb H; and
·AE Street, Suburb H.
The wife’s unchallenged evidence is that throughout the marriage she managed her own financial affairs, including arranging and negotiating loans, insurances and applications for finance with respect to the real properties acquired by her or her entities.
The wife’s evidence as to the manner in which the parties conducted their financial relationship is unchallenged.
The wife also relies upon the husband’s unilateral sale of the property at AF Street, approximately two months prior to the commencement of the hearing, as evidence of the manner in which the husband and the wife have maintained separate finances throughout the relationship.
Orders were made on 17 July 2019 requiring the wife to pay the husband the sum of $100,000 by way of part property settlement. In addition to that payment, the wife deposes in her trial affidavit that she has paid to the husband significant sums during the relationship and in the post-separation period, including the sum of $55,000 which she deposes was paid to him in respect of outstanding school fees. It is the wife’s contention that in light of those matters, the husband has no entitlement to any adjustment of the parties’ property.
The parties’ interests are identified by the wife in her Case Outline document (Part D) (Annexure 1 hereto) and in her Notice to Admit dated 23 May 2022 (Exhibit M-5). The husband sought to dispute the values attributed by the wife to those interests, albeit out of time (Exhibit F-3). Nonetheless, the husband adduced no evidence challenging the wife’s contention that the parties acquired and maintained their properties separately and to the exclusion of the other during the relationship.
Based on his own document, the husband concedes that he holds property and motor vehicles valued at $6,013,500. The husband alleges the wife holds property valued at $6,250,000. The wife contends that those properties are worth significantly less. The husband also asserts that the wife’s business, art and jewellery have significant value. The difficulty with the husband’s position is that he has taken no steps to adduce evidence in relation to those matters. Further, he has been on notice as to the wife’s contentions with respect to the value of the parties’ interests since she served her Notice to Admit on 23 May 2022, more than 3 months prior to the listed trial date.
It was submitted on behalf of the wife that, given the manner in which the parties conducted their financial affairs, acquiring, maintaining and holding their property interests separately from the other, either in their own names or in the names of entities controlled by them, it would not be just and equitable to make any adjustment as to the parties’ existing entitlements to property. She relies upon the principles enunciated by the High Court of Australia in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) in support of that submission.
She submits that were I not minded to dismiss the husband’s application on the basis of his failure to comply with Court orders, his application ought be dismissed on the basis that it would not be just or equitable to make any further alteration to the parties’ existing interests in light of her unchallenged evidence as to the manner in which the parties maintained separate finances during the course of their relationship. There is much force in that submission.
As already observed, each of the parties, either individually or via entities controlled by them, has acquired and retains significant property.
The wife has the sole responsibility for the care and support of the three children of the marriage. Her evidence is that the property acquired by her was from income earned by her.
The husband has adduced no evidence as to his financial circumstances. Further, he adduces no evidence to challenge the wife’s contentions. There is no evidence from the husband that would enable the Court to find that he has any legal or equitable interest in the wife’s property. There is no evidence that it was the intention of the parties that there would be common use of that property and further, I am not persuaded that there is any assumption, express or implicit in respect of the property arrangements between the parties that have been brought to an end upon their separation.[19]
[19] Stanford v Stanford (2012) 247 CLR 108, [42].
Accordingly, even if it were determined that the husband’s application ought not be dismissed on the basis of his non-compliance with Court orders, in light of my findings as to the property arrangements between the parties, I am not persuaded that it would be just and equitable to alter their property interests.
Having regard to all of the above matters, I will make orders that the husband’s application for final property orders be dismissed.
I certify that the preceding two hundred and thirty-nine (239) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 15 December 2022
PART D - ASSETS AND LIABILITIES
* For the husband’s accounts, the account balances are taken as at the date of the last disclosure
Item Value HUSBAND'S ASSETS & LIABILITIES 1. Personal Assets 1.1 Motor Vehicle 1 registration number … [8, Notice to Admit] $150,000 1.2 6 pieces of artwork [21, Notice to Admit] $600,000 1.3 Household contents at S Street [22, Notice to Admit] $80,000 1.4 Bank Accounts (including Partial Property Settlement and $55,000 paid to Husband in April 2021) $155,000 Sub Total: $985,000 2. T PTY LTD atf U Trust1 2.1 Unit 1 L Street, Suburb N [1, Notice to Admit] $2,000,000 2.2 Unit 2 L Street, Suburb N [2, Notice to Admit] $2,100,000 2.3 ANZ Company Home Loan (…78) as at 9 December 2020 ($1,011,918) 2.4 ANZ Company Home Loan (…94) as at 11 February 2021 ($1,017,117) 2.5 ANZ BML Offset Account (…43) as at 12 April 2021 $446.31 2.6 ANZ BML Offset Account (…35) as at 12 April 2021 $10 2.7 AG Bank … Saver (…61) as at 10 July 2021 $102.42 2.8 NAB Account (…97) as at 1 May 2021 $62.63 2.9 NAB Account (…30) as at 1 May 2021 $0.03 Sub total net assets of U Trust: $2,071,586 3. V PTY LTD atf The W Trust2 3.1 Q Street, Suburb P [3, Notice to Admit] $1,500,000 3.2 M Street, Suburb P [4, Notice to Admit] $2,100,000 3.3 AG Bank … Saver Account (…28) as at 10 July 2021 $3.74 3.4 AG Bank … Business Account (…45) $35.89 3.5 NAB Business Everyday Account (…12) as at 31 March 2021 $63.57 3.6 NAB Business Everyday Account (…86) as at 1 May 2021 $63.57 3.7 NAB Matured Facility Account (…86) as at 8 January 2021 ($616,793.21) 3.8 NAB Matured Facility Account (…80) as at 9 June 2021 ($1,177,684.66) Sub total net assets of W Trust: $1,805,689 4. AH Pty Ltd atf Creighton Family Trust3 4.1 Motor Vehicle 2 registration number … [10, Notice to Admit] $150,000 4.2 Motor Vehicle 3 registration number … [5, Notice to Admit] $30,000 4.3 Motor Vehicle 4 registration number … [6, Notice to Admit] $80,000 4.4 Motor Vehicle 5 recorded in balance sheet, year and registration not known NK 1 Carried Forward Tax Losses as at 30 June 2021 of $140,905
2 Carried Forward Tax Losses as at 30 June 2021 of $430,077
3 Carried Forward Tax losses of $142,849 as at 30 June 2021
4.5 AG Bank … Business Account (…71) as at 19 October 2021 $1,001 4.6 AG Bank … Saver Account (…46) as at 16 December 2020 $5.38 4.7 AJ Bank Account (…35) as at 12 January 2020 $61.86 4.8 Westpac Business Cash Reserve (…66) as at 8 January 2021 $281.77 4.9 AK Pty Ltd Chattel Mortgage (Contract …03)4 ($4,447) Sub total net assets of Creighton Family Trust: $256,903 5. AL Pty Ltd atf The Creighton Business Unit Trust5 5.1 “Patents, Trademarks & Licenses” recorded in balance sheet as at 30 June 2021 $2,646
5.2 Motor Vehicle 6 registration number … [11, Notice to Admit] $325,000 5.3 Motor Vehicle 7… [7, Notice to Admit] $210,000 5.4 Motor Vehicle 8 registration number … [9, Notice to Admit] $70,000
5.5 AG Bank Business … Saver (…50) as at 28 August 2020 $7.99
5.6 AG Bank Investment … Account (…85) as at 30 September 2020 $1,414.28
Sub total net assets of Creighton Business Unit Trust $609,068 6. AM Pty Ltd atf AN Trust 6.1 AG Bank … Cash Management (…39) as at 31 May 2021 $53.58
6.2 AG Bank …Saver (…89) as at 31 May 2021 $0.51 Sub total net assets of AN Trust: $54 7. AO Pty Ltd atf The AP Trust 7.1 AG Bank …Cash Management (…22) as at 31 May 2021 $5.33
7.2 AG Bank … Saver (…75) as at 31 May 2021 $3.02 7.3 NAB Everyday business Account as at 31 December 2020 ($62.63) Sub total net assets of AP Trust NIL 8 AQ Pty Ltd atf AR Trust6 8.1 AG Bank … Cash Management (…69) as at 31 May 2021 $74.14
8.2 AG Bank … Saver (…38) as at 31 May 2021 $9.35 Sub total net assets of AR Trust $83.49 TOTAL NET KNOWN ASSETS HUSBAND $5,728,384 WIFE'S ASSETS & LIABILITIES Personal Assets 9.1 AC2 Street, Suburb K [13, Notice to Admit] $580,000 9.2 Mortgage - AC2 Street, Suburb K [per Financial Statement, schedule E] ($512,500)
Equity $67,500 9.3 AC4 Street, Suburb K [15, Notice to Admit] $540,000 4 Balance as at 3 November 2020 (being last disclosed statement) is $30,813.15 however the monthly payments up to that date are $1,255.54. 21 months times $1,255.54 is $26,366.13. Accordingly, it is assumed the balance currently remaining is $4,447
5 Carried Forward Tax losses of $153,772 as at 30 June 2021
6 Carried Forward Tax losses of $24,559 as at 30 June 2021
9.4
Mortgage - AC4 Street, Suburb K [per Financial Statement, schedule E] ($460,000)
Equity $80,000 9.5 ANZ overdraft Account ($250,000) 9.6 Loan from AK Pty Ltd ($60,000) 9.7 Motor Vehicle 9 Registration … [70, Notice to Admit] $70,000 9.8 AS Pty Ltd ($110,000) 9.9 2018 and 2019 tax ($350,000) 9.10 Loan to Mr and Ms AT $942,000 Subtotal Wife’s Personal Assets $389,500 10 AU Pty Ltd [20, Notice to Admit] NIL 11 T PTY LTD atf The
AV Trust11.1 AC1 Street, Suburb K [12, Notice to Admit] $900,000 11.2 Mortgage - AC1 Street, Suburb K [per Financial Statement, schedule E] -$1,089,000
Sub total net assets of The AV Trust ($189,000) 12 AW PTY LTD 12.1 AC3 Street, Suburb K [14, Notice to Admit] $580,000 12.2 Mortgage - AC3 Street, Suburb K [per Financial Statement, schedule E] -$535,500
Sub total net assets of AW PTY LTD $44,500 13 AX PTY LTD atf The
AY Trust13.1 AD Street, Suburb H [14, Notice to Admit] $680,000 13.2 Mortgage - AD Street, Suburb H [per Financial Statement, schedule E] -$910,925
Sub total net assets of The AY Trust ($230,925) 14 AZ PTY LTD atf The BA Trust 14.1 Q Street, Suburb P [17, Notice to Admit] $900,000 14.2 Mortgage - Q Street, Suburb P [per Financial Statement, schedule E] -$718,000
Sub total net assets of The BA Trust $182,000 15 BB PTY LTD atf BC Trust 15.1 AE Street, Suburb H [14, Notice to Admit] $4,250,000 15.2 Mortgage - AE Street, Suburb H [per Financial Statement, schedule E] -$3,528,300
Sub total net assets of BC Trust $721,700 NET TOTAL WIFE (not including super) $917,775 16 Superannuation Fund 1 $50,000 NET TOTAL WIFE (including super) $967,775 JOINT 17 O School ($101,476) NET TOTAL NON SUPERANNUATION KNOWN ASSETS $6,544,683 NET TOTAL KNOWN ASSETS (INCLUDING SUPERANNUATION) $6,594,683
4
0