DOWNEY & MAIR
[2017] FCCA 665
•5 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOWNEY & MAIR | [2017] FCCA 665 |
| Catchwords: FAMILY LAW – Undefended final parenting and property hearing – non-disclosure by respondent – significant contributions by applicant – family violence – mature child expressing strong views. |
| Legislation: Child Support (Assessment) Act 1989 |
| Cases cited: Allesch v Maunz [2000] HCA 40 Stanford& Stanford [2012] HCA 52 |
| Applicant: | MS DOWNEY |
| Respondent: | MR MAIR |
| File Number: | MLC 10674 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 20 February 2017 |
| Date of Last Submission: | 20 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 5 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wood |
| Solicitors for the Applicant: | Tolhurst Druce & Emmerson |
| The Respondent: | In person |
ORDERS
That the applicant mother have sole parental responsibility for the child X born (omitted) 2002 (“X”).
That X lives with the Applicant Mother.
That the Respondent Father’s time and communication with X be reserved.
That the Respondent Father be and hereby is restrained from contacting or communicating with X by any means including through an agent or by electronic means.
That within 14 days the net balance of the proceeds of the sale of former matrimonial home in the sum of $444,047.61 now held in the trust account of the Applicant Mother’s solicitor be paid to the Applicant Mother.
That the Respondent Father retain all other assets, bank accounts in Australia and overseas and all businesses in which he has and interest, together with all his superannuation entitlements in any jurisdiction whether in his name or under his control to the exclusion of the Applicant Mother.
That the Applicant Mother retain all other assets and superannuation entitlements in her possession or in her name to the exclusion of the Respondent Father.
IT IS NOTED that publication of this judgment under the pseudonym Downey & Mair is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10674 of 2015
| MS DOWNEY |
Applicant
And
| MR MAIR |
Respondent
REASONS FOR JUDGMENT
The hearing proceeded on an undefended basis. I am asked to determine parenting and property issues. The parties were in a de facto relationship. The applicant de facto wife (“the applicant”) seeks parenting and property orders. The respondent de facto husband (“the respondent”) has not properly engaged in these proceedings.
The parenting matter concerns the parties’ daughter X born (omitted) 2002 (“X”). She is almost 15 years old.
The applicant commenced the proceedings seeking urgent orders after the husband lodged a caveat on the property she owned in her sole name which she had exchanged contracts for sale.
Before determining proceedings on an undefended basis the Court must ensure that the parties have been given the opportunity to participate in the proceedings. The respondent had the opportunity to participate the proceedings but did not take up that opportunity.
The Court cannot compel a party to participate in the proceedings but must give that party the opportunity to participate in the proceedings. I note the comments of Kirby J in Allesch v Maunz [2000] HCA 40 at [38] to [40]:
The facts and issues are set out in the reasons of Gaudron, McHugh, Gummow and Hayne JJ (“the joint reasons”). Having regard to the circumstances in which the initial proceedings took place in the absence of Mr Allesch (the appellant), it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
[footnotes omitted]
An applicant is entitled to have his or her application determined within a reasonable period.
Even in the case of undefended proceedings, the applicant is not simply entitled to the orders he or she seeks. He or she must establish that the parenting orders are in the best interests of the child and that the property orders sought are just and equitable.
The applicant filed her initiating application on 16 November 2015. She sought urgent orders and she had exchanged contracts for sale on the property in her sole name and the respondent had lodged a caveat. The respondent was legally represented at the first return date. Various orders were made on that occasion including an interim property order that each parent receive a partial property settlement of $100,000.
The respondent failed to file documents as ordered. He also failed to participate at the conciliation conference.
The respondent lives in (country omitted). Rule 6.01 of the Federal Circuit Court Rules 2001 (Cth) (“Federal Circuit Court Rules”) require parties to a proceeding to give an address for service in Australia. He failed to comply with this requirement. The respondent also never filed documents in accordance with Court orders. He appeared via telephone on 19 July 2016. The respondent said he was unable to file documents via the Commonwealth Courts Portal because he did not have an Australian address. The respondent emailed various affidavits directly to chambers. He was given leave to file documents via email to the registry. It was made very clear to him that he was required to pay the filing fee and to file a response. Again the respondent failed to do so. It is therefore unknown as to what orders the respondent seeks the Court makes. During his appearance by telephone the respondent said he wanted a third of the assets. The respondent also said that he wanted to rely on various medical reports. The respondent was told that if he wanted to rely on medical evidence he would need to file affidavits by the medical experts annexing their reports to their affidavits. The medical experts would be required to be available for cross-examination if required.
Considerable time was spent during the court appearance on 19 July 2016 to make it clear to the respondent what he needed to do if he wanted to participate in the proceedings at the final hearing he would either have to travel to Australia and appear in person or make an application to appear by videolink which would require him to make enquiries and arrangements. He was given a date by which to do this well before the final hearing date. Pursuant to r.25.11 of the Federal Circuit Court Rules, a party is not entitled to attend a hearing by electronic communication.
Orders 2 to 6 of the orders I made on 19 July 2016 are set out below:
2. Within 14 days the respondent file a response together with a filing fee by filing it by email to the email address melbourne@familycourt.gov.au.
3. The respondent is granted leave to file the following material in court:-
a. Financial statement dated 14 July 2016;
b. Affidavit dated 8 June 2016;
c. Affidavit dated 14 July 2016;
d. Affidavit dated 18 July 2016.
4. The respondent provide the applicant’s solicitor with the documents referred to in order three of the orders made 9 December 2015 within 42 days.
5. If either party requests further disclosure of documents that they make that request in writing within 60 days, the other party provide a response within 30 days enclosing the requested documents or, if those documents are not available or do not exist, a letter explaining that.
6. In the event the respondent seeks to appear at the Final Hearing by video link, he file an application in a case together with supporting affidavits by no later than 30 September 2016. In the event that this application is filed, it will be listed for hearing at 9.00am on 9 November 2016.
One of the things that the respondent said was important to him during that Court appearance was being able to communicate with and spend time with his daughter. The Court made orders for the parties and child to participate in a child inclusive s.11F conference with a family consultant. The respondent was given leave to participate in that conference by telephone. He failed to do so.
I am satisfied that the respondent has been given ample opportunity to participate in these proceedings. He failed to do so which has delayed the proceedings being finalised because he was given an indulgence. I am satisfied that the respondent was aware that the proceedings would be finally determined on 20 February 2017. Initially the case was listed for 3 days commencing on 20 February 2017. After the applicant filed her application in a case seeking that the hearing be determined on an undefended basis due to the respondent’s failure to comply with Court orders. Upon hearing that application I reduced the hearing length from three days to one day. It remained listed on 20 February 2017.
On the Friday before the hearing was due to commence the following Monday 20 February 2017 the respondent again sought leave to appear by telephone. That leave was refused and the matter proceeded in his absence.
The applicant’s evidence
The applicant relied on her affidavits filed on 14 June 2016 and 12 January 2017 and affidavits of four witnesses. She also relied on her financial statement. As the respondent did not participate in the proceedings none of the witnesses were required for cross-examination.
The parties met in 2001 and started living together shortly thereafter. They lived in the property known as Property L (“the Property L property”). The applicant owned this property prior to their relationship having purchased it with her former husband Mr G in 1994. The applicant says that she and her former husband had an informal property settlement but before it could be formalised her husband became very ill and later died. There was a dispute with respect to his estate which was finally resolved years later. In addition to receiving her late husband’s interest in the Property L property, she also received a payment from his insurance policy of approximately $125,000 in January 2004. The parties agree that this was paid into the respondent’s bank account. They disagree as to the reason for that.
In 2008 the parties purchased a luxury car in the (country omitted) in the applicant’s name for (omitted) $168,000. The respondent says the applicant decided to purchase the car whilst they were on holidays in (country omitted). The applicant says that the respondent wanted to purchase this car and then resell it in (country omitted). She says it was purchased in her name because there were tax advantages as she was not a (country omitted) resident. She says the car was insured in the respondent’s name. The car was shipped to (country omitted). There is a dispute between the parties as to what happened to the car. Both parties annex untranslated documents to their affidavits which do not assist the Court. The respondent says that the car was stolen and that the insurance company refused to pay out the policy. The applicant says she believes that either the respondent has the car hidden somewhere or in fact he did receive the insurance payout. The respondent gives no explanation as to why the insurer did not pay the insurance. He refers to the people who stole the car setting it alight and then escaping, but then the police finding them in the next year and sentencing them to jail term. The applicant’s version of events is more credible than the respondent’s. It does not seem credible that she would seek to buy a car and have it shipped to (country omitted) when the parties did not live there. It is much more likely that the parties purchased the car in the applicant’s name so that the respondent could sell it. The applicant annexes a business card with the respondent’s name indicating that he had a business (omitted).
The applicant also annexes a business card in the respondent’s name with respect to a (omitted) business. It is the applicant’s evidence that the respondent has been engaged in businesses before and during the relationship earning additional income to that which he receives from the Traffic Accident Commission of Victoria (“TAC”).
The applicant obtained a final Intervention Order against the respondent on 15 July 2016 for a period of 10 years. The order notes that the respondent was served with the interim Intervention Order via the same email he has been using in these proceedings. The respondent annexes the order to his affidavit sworn on 18 July 2017. It is unusual for the Court to make a final intervention order for that length of time.
The known asset pool is primarily made up of the proceeds of sale of the Property L property. On 19 July 2016 the Court made interim orders for a partial property settlement whereby the applicant received $300,000 from the net proceeds of sale. The parties had previously consented to orders on the first return date on 9 December 2015 whereby the parties would each receive $100,000 as an initial distribution from the proceeds of sale. The applicant’s solicitor said that she was unable to make the payment to the respondent in accordance with that order because she was not provided with his bank account details. That issue was dealt with on 19 July 2016. By that stage the respondent had emailed affidavits that included partial bank statements with his bank account details. The respondent’s financial position is unclear from his affidavits and financial statement. The respondent has several bank account statements in Australia and overseas. According to his financial statement sworn on 14 July 2016 he had funds totalling $57,206.46 in the bank accounts.
In her affidavit sworn and filed on 12 January 2017 at [40] and [41], the applicant refers to the respondent’s financial statement and also his affidavit sworn on 8 June 2016 where he lists several other bank accounts not included in his financial statement. He only provided limited bank statements annexed to his affidavit making it impossible to obtain an accurate picture of his financial circumstances. As well as having several bank accounts in Australia, he has bank accounts in (countries omitted). His (omitted) Bank account ending in (omitted) had a balance as at 10 December 2014 of $73,173.37. His (omitted) account ending in (omitted) had a balance as at 31 December 2014 of $29,813.12. These indicate that the respondent as at separation had significant funds in his bank accounts. It is not known what funds he has today.
The applicant says that she and respondent separated 23 February 2010 after a violent incident where the respondent physically assaulted her. She says after that period the respondent would periodically return to the home but they did not reconcile. He finally moved out of the home when the police issued a safety notice on 31 December 2014.
The applicant says that the respondent was always secretive about his financial affairs and had a safety deposit box where he kept (omitted) for his (omitted) business.
The applicant also annexes an insurance claim of the respondents for lost luggage on an (omitted) flight where he claims losses for very expensive items of clothing and other personal items. This is inconsistent with the respondent’s evidence about his financial expenditure.
Supporting witnesses
Ms E swore her affidavit on 7 July 2016. She has been a friend of the applicant’s for 17 years. She deposes to seeing the respondent fly into fits of rage. In 2010, the applicant told her she had to seek hospital treatment after the respondent assaulted her. She says she never saw the respondent using a wheelchair.
Ms L has been a friend of the applicant for 11 years. She also says that she witnessed the respondent being physically and verbally abusive. She told the applicant to get him to move out.
Ms D was a neighbour. She says she met the respondent in 2009 and saw him being physically and verbally abusive. On 23 February 2010 the applicant and child came to her house. The applicant’s face was swollen, bleeding and bruised. The applicant said the respondent assaulted her. Ms D called the police and drove them to hospital. After that time the applicant and child spent one or two nights at her house on several occasions because of the respondent’s conduct. She says she called the police a second time in late December 2014. She never saw the respondent in a wheelchair.
The respondent’s evidence
As the matter has proceeded on an undefended basis, to be fair to the respondent I have had regard to the three affidavits and the financial statement he swore. The applicant did not object to this approach.
What is clear from his financial statement prepared before he received the partial property of $100,000 and the partial property order is that the respondent had the financial means available to him to pay for legal representation.
Affidavit sworn on 8 June 2016
The respondent says that he has been an invalid since 24 February 1990 and spends most of his life in bed. The respondent says that with his physical injuries there is no way he could have been physically violent towards anyone.
The respondent makes grandiose claims in the affidavit without any supporting evidence, such as that the applicant earnt several thousand dollars a day as a successful (occupation omitted) and that the applicant was wasteful of money and in debt. He claims that the wife has a shopping addiction and an alcohol addiction.
He claims that the applicant was violent towards him in February 2010 when his mother was present. He talks about escaping with their daughter to a neighbour’s place but says that when the police arrived they arrested him and that they all ended up in hospital.
He denies that they separated under the one roof and says that they were living together in a relationship until he was removed from the home on 30 December 2014.
He says he has a carer in (country omitted) but denies that he is in a relationship with her and denies that they are married.
The respondent says he has no tax returns to provide because his only income is from his TAC payments which are tax free. He also says that he receives no assistance for any of his medical expenses when overseas but only if he is in Australia and talks about how expensive they are.
He refers to the money the applicant received from her former husband’s estate and claims that he had at least that much money although he did not provide documents in support. He says in 2005 he received a payout from his insurance of approximately $85,000 after it was discovered that they had been underpaying him.
He claims that he made substantial significant contributions and that the parties travelled many times to (country omitted) and (country omitted) as well as several times to (country omitted). This is inconsistent with the respondent’s evidence that he is an invalid and is bedridden most of the time.
He annexes several documents to his affidavit including a letter from Dr M dated 31 March 2014 when he refers to the respondent being on long-term medication and attending the pain management clinic in (omitted). He recorded that the respondent had a number of falls and required more “downtime in bed”. He says of the respondent “he remains angry, depressed, vengeful and defiant of the TAC, and the handling of his case. He is no doubt quite depressed as well.”
The respondent also annexes some bank account statements including an (omitted) Bank statement showing that as at 10 December 2014 he had a balance of $73,173.37. That account is in his sole name. He also annexes a (omitted) Bank statement showing that as at 31 December 2014 he had a balance of $29,813.12. He annexes other accounts which have small amounts. He also annexes untranslated foreign documents which suggests he has funds overseas as well as at 31 December 2014.
Affidavit sworn 14 July 2016
In this affidavit the respondent responds to the affidavit of the applicant’s supporting witnesses and denies their version of events.
The husband says that when he feels okay he can be up and about for short distances.
He refers to the applicant being a liar and criminal, and says that X is in danger living with her. He repeatedly refers to the applicant causing his “social death”.
The affidavit is discursive with many allegations and assertions with little evidence. He annexes a letter from another doctor. He also annexes an email from a rehabilitation consultant dated 21 June 2016 who was treating the respondent. The rehabilitation consultant stated that she was aware that the applicant was his full-time carer over many years and that in her opinion given his physical disabilities he would not have the capacity to be physically violent. I cannot place any weight on this email but note that there are inconsistencies in this and other material put forward by the husband. Either he was so disabled throughout the relationship that the applicant needed to care for him which would significantly increase her contributions to the relationship or he was well enough for the parties to make several trips overseas and for him to make a significant contributions.
He also annexes a series of emails including an email he sent to the applicant dated 18 May 2016. That email is threatening when he talks about everything getting worse and says “Homicide eventually … Do you want me to continue in that direction?”
He also annexes untranslated documents with respect to a car and further bank statements.
Affidavit sworn 18 July 2016
In this affidavit the husband complains that the applicant deliberately twisted his words in his email with reference to homicide he claims one word was taken out of context. I do not agree. It appears that nor did the Magistrates’ Court of Victoria (“Magistrates’ Court”) as the application and summons filed in the Magistrates’ Court seeking the further intervention order refers to the emails. It is annexed to the applicant’s affidavit filed on 14 June 2016.
He annexes a statement from his nephew, further emails between the parties, intervention orders, and an article entitled “trans-generational transmission of the effect of gestational ethanol exposure on ethanol-use related behaviour”.
Both parties accuse the other of hacking into their computers and phones. I do not need to resolve this issue.
Whilst the respondent disagreed with the affidavits of the supporting witnesses of the applicant, by not participating in the hearing he forewent the opportunity of cross-examining those witnesses. Moreover, there is a consistency in the evidence of those witnesses the evidence of X’s treating psychiatrist and what X herself told the family consultant.
There are inconsistencies in the respondent’s material with respect to his health. There is no dispute that he was injured in a serious car accident in 1990. His injuries are serious enough, with long term consequences such that he is entitled to ongoing TAC payments for loss of earnings. He receives $55,358 per annum tax free. I have referred to some of the inconsistencies earlier with respect to the extent of his ill health and incapacity. The respondent also complains of the high costs of his medical expenses which are covered by the public health system when he is in Australia but which he must pay for when he lives overseas. He denies being in a relationship in (country omitted) and says he lives with his carer. If his only income is the TAC payment then how is he covering the other medical expenses which he says are high? There are many questions which cannot be answered because the respondent chose not to participate in the proceedings in any meaningful way.
The respondent refers to the applicant having been found guilty of fraud in the Magistrates’ Court. The applicant gave oral evidence at the hearing about this issue. The respondent is entitled to a full-time carer because of his injuries and payments are made through various agencies and claims can be made through those organisations.
From March 2013 to November 2013 carer payments were made to the parties’ joint account on the basis of the applicant being full-time carer for the respondent when in fact she was employed. The TAC was made aware of this and commenced criminal proceedings against the applicant in July 2015.
Ms D says that when the TAC increased the amount of hours of caring services the respondent was entitled to he asked her if he could list her as a carer for 20 hours a week. He would pay her $8.00 a week and keep the rest. TAC paid $38.75. She says after she refused the respondent asked his brother Mr P to come from (country omitted) to care for him but he could not claim the carer’s payment as he did not have a tax file number. She says the respondent then offered to pay her $5,000 to marry Mr P. She says she refused.
The applicant pled guilty and was ordered to pay reparations within six months of $107,766.78 and a $5000 fine. The applicant says the respondent could not be charged as he was the claimant. The applicant says she was advised to plead guilty as the funds were paid into a joint account in her name. The applicant says that she needed to sell the house to pay the reparations. She said the respondent was the architect of the scheme and that the respondent had wanted his brother Mr P to be his carer but because he was not an Australian resident he could not claim the payments as he did not have a tax file number.
Legal Principles and conclusions with respect to property
There is no dispute between the parties that they were in a de facto relationship of more than two years duration. Section 90SB(a) of the Family Law Act 1975 (Cth) (“Family Law Act”) is satisfied. Section 90SD being the geographical requirement is also satisfied.
Part VIIIA of the Family Law Act is the part of the Act dealing with property, spousal maintenance and maintenance agreement. The major provisions relating to marital property division are contained in sections 90SM(1); 90SM(3), 90SM(4); and 90SF(3) of the Family Law Act.
Pursuant to section 90SM(1) the Court is authorised to make such order as it considers appropriate in order to alter the interest of the parties to a marriage in relevant property.
The expression “property” is defined in s.4(1) in relation to the parties to a marriage or either of them as meaning “…property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”
Pursuant to s.90SM(3) the Court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all of the circumstances prevailing. This follows from the use of the prohibitory words “shall not” in the relevant section.
Section 90SM(4) provides the mechanics of how a Court is to make an order altering marital property interests.
Paragraphs (a), (b) and (c) categorise contributions made by marital partners, which are relevant. Paragraph (d) directs the Court to take into account any order regarding the earning capacity of either party to the marriage concerned.
Paragraph (e) directs the Court to consider a list of matters contained in s.90SF(3), which are germane to spousal maintenance or the prospective positions of the parties concerned by reference to their respective financial resources, means and needs. Finally, paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant. There is some overlap between these various provisions and not all will be applicable in every case.
Until the decision of Stanford& Stanford [2012] HCA 52 (“Stanford & Stanford”), the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39].
The High Court of Australia (“High Court”) considered the operation of s.79 (which is almost identical terms to s.90SM) in the matter of Stanford & Stanford.In the case, the majority stated at [35]-[36] that:
It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
[Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of s.79, which can be summarised as follows:
a)Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word existing;
b)Secondly, although section 79 gives the Court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests; and
c)Thirdly, when considering whether making a property settlement order is just and equitable the Court must not assume that one or the other party has the right to a property adjustment order. The Court must give separate consideration to s.79(2) in addition the matters referred to s.79(4).
In Stanford & Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation. I am satisfied that it is just and equitable to make orders adjusting the parties’ property interests in this case.
The High Court also pointed out that what is just and equitable is different in every case.
The principles referred to in Stanford & Stanford are equally applicable to de facto property matters.[1]
[1] See Watson & Ling (2013) 49 Fam LR 303.
In this case the applicant made significant initial financial contributions. In Williams & Williams [2007] FamCA 313 the Full Court states at [26]:
We think there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution between the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing of the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
Parenting issues
The parties have a daughter X born (omitted) 2002. She is almost 15 years old.
The applicant says that she and X were both subjected to violence and abuse by the respondent and that X has been traumatised by this and continues to receive treatment due to the trauma.
The respondent says that he has a loving relationship with X and is concerned about X’s psychological welfare in the applicant’s care.
The applicant filed an affidavit by X’s treating psychologist Dr E. She has been treating X since 16 April 2015 for weekly or fortnightly sessions. She says X suffers from post-traumatic stress symptoms including anxiety and panic attacks and that it appeared the symptoms arise out of her witnessing her father physically and abusing her mother over many years.
Dr E says that X is adamant that she does not want anything to do with her father and that in December 2015 after she saw her father at (omitted) shopping centre her symptoms were “highly elevated and it took many weeks of intensive work for her to settle.”
Dr E says that X experiences fear and anxiety at the prospect that the respondent may telephone her or visit her school or home.
At the hearing the applicant gave evidence that the respondent deposits money directly into X’s bank account rather than paying the mother child support. The applicant is not able to seek child support from the respondent under the Child Support (Assessment) Act1989 (Cth) because the respondent is not an Australian resident. No doubt it is triggering for X to see amounts from her father being deposited into her account. If the respondent wants to provide financial support for X he should make those payments to the applicant. It is not appropriate to make those payments to X directly.
X made her views about the respondent very clear to the family consultant.
The family consultant issued a child inclusive memorandum on 24 October 2016. As noted earlier the respondent did not participate in the assessment despite being given the opportunity to do so. The family consultant interviewed the applicant and X separately. The family consultant recorded the applicant’s allegations about family violence which included emotional and psychological abuse directed at both the applicant and daughter.
X has been seeing a clinical psychologist Ms L. She has also been seeing a psychiatrist Dr E since April 2015.
The family consultant observed X to be a quiet and thoughtful young person who was articulate and who expressed her views clearly.
X said she did not feel that she had had the opportunity to form any relationship with the respondent and did not feel that she has a bond with him because he “never gave me a sense of love and belonging.” She said he has little or no capacity for empathy and does not consider other people’s feelings.
She describes recalling the respondent holding a knife to the applicant’s throat when she was about three years old and described other occasions where the respondent was physically violent towards the applicant. She also described him as being manipulative of the applicant and she says she frequently urged the applicant to report his behaviour to police.
The family consultant recorded that both the applicant and X reported that the respondent consistently monitored their movements linking their mobile phones to his computer. X became increasingly stressed and anxious, she was hypervigilant, tried to predict her father’s moods and outbursts. She says she would try to de-escalate the situation by telling him that she loved him but says she wasn’t being truthful saying “I could hardly tell him when he was in a rage, I don’t love you and don’t want to be with you.” The family consultant records that this demonstrates that X is a resilient and mature child.
X was adamant that she does not want any contact or communication with the respondent. She says the respondent has told her “you mean nothing to me. Get out of my face.”
The family consultant concluded that X presented as being mature beyond her years and that based on her own experiences of the respondent she did not perceive that she had the opportunity to form a meaningful relationship with him and did not want to have any form of communication with him. The family consultant recommended that significant weight to be placed on her views.
Legal Principles with respect to parenting
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act. The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary, and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
Conclusions
I am satisfied on the evidence before me that the presumption that the parents should exercise equal shared parental responsibility has been rebutted due to family violence. Furthermore the respondent has not had any involvement with X for some time.
I find it is in X’s best interests that there be an order that the respondent not spend time with or communicate with X. In reaching this conclusion I have had the benefit of the s.11F child inclusive report and Dr E’s affidavit. The respondent had the opportunity to engage in the child inclusive conference but chose not to. The evidence points to X being a mature child and I place great weight on her views. I am satisfied that her views are genuine based on her own experiences of the respondent. I also find if orders were made allowing the respondent to spend time and or communicate with X that that is likely to cause her further psychological harm. I considered whether there should be an order that X spend time with the respondent in accordance with her wishes. My concern about an order expressed in those terms is that the respondent might feel encouraged to contact her. If X wants to contact her respondent in the future she can do so.
The applicant seeks an injunction restraining the respondent from contacting X by any means. The Court has to power to grant injunctions pursuant to s.68B of the Family Law Act. Having regard to the evidence of Dr E and the family consultant in particular I am satisfied that it is in X’s best interests to make the order she seeks.
On the state of the evidence I cannot be satisfied that the parties separated in 2010 but lived remaining under the one roof. The applicant’s supporting witnesses do not address that and the applicant’s own evidence is that they still had a joint account in 2013 as that is where the TAC deposited the carer’s payments. It may be that there was a change in the dynamic of that relationship from the February 2010 incident. I accept that the applicant was unhappy and she may have been at a loss as to how to get the respondent to leave. Ultimately this point does not need to be resolved in the circumstances of this case as it does not affect my assessment of what I consider to be the just and equitable outcome.
The applicant owned the major known asset of the relationship before the relationship began.
It is not possible to establish the extent of the parties’ assets and liabilities and financial resources because of the husband’s failure to comply with orders for financial disclosure.
I find on the balance of probabilities that the husband has earned additional income through businesses before and during the relationship and there is no reason to think that is not continuing to earn income from other sources in addition to his TAC payments.
The applicant seeks to retain the remainder of the proceeds of sale of the Property L property which is $444,047.61. She otherwise seeks to keep any assets in her name and that the respondent keep any assets he has.
I am satisfied that the applicant made significant financial contributions during the relationship. She brought into the relationship the main known asset of the relationship. She has the sole care of X and that is likely to remain the case.
The respondent does provide some financial support for X, although inappropriately, by paying it directly into X’s account. It is unknown whether he will continue to do that or not.
The respondent made some financial contributions as well. The applicant says as much. I find that the applicant made the greater homemaker contributions and greater contributions to the welfare of the family.
I also find that the applicant and X were subjected to family violence by the respondent during the relationship. The definition of family violence in s.4AB is broad. It is not limited to physical violence. Indeed in many ways emotional and psychological violence and coercive violence can be more damaging. There is evidence to support this finding from several sources, including the applicant’s affidavits, the affidavits of her supporting witnesses, the affidavit of Dr E, the s.11F child inclusive conference memorandum and the intervention order.
The applicant relies on the decision of Su & Chang [2002] FamCA 156. In that case the trial judge was not able to ascertain the extent of the asset pool because of the husband’s non-disclosure. In those circumstances she found that it was just and equitable for the applicant to have all of the visible assets in Australia and the husband to have all of the Taiwanese assets. The Full Court said this:
The law to be applied and the approach that may be adopted in cases where, through the lack of a full and frank disclosure, the court is unable to fully ascertain the extent of a party's wealth, is well settled.
…
In Black and Kellner, above, the appellant had submitted that, absent findings as to the extent of his wealth, the order made by the trial judge was plainly unjust. The key finding of the trial judge was (at Fam LR 346–7 ; FLC 79,133–4):
… the failure on the part of the [husband] to disclose his financial position to the court and his attempts to conceal this matter from the court, which has left the court in the position of not knowing what the [husband's] financial position is, except that he deliberately underestimated it.
Nicholson CJ (with whom Ellis and Cohen JJ agreed), said in dismissing the appeal (at Fam LR 347–8 ; FLC 79,133–4):
As Mr O'Ryan, senior counsel for the wife, pointed out, the first step in proceedings for a property settlement is for the court to ascertain the wealth of the parties and in this regard it is of interest to note the remarks of the Full Court in the case of In the Marriage of Giunti (1986) 11 Fam LR 160 ; (1986) FLC 91–759 , particularly at Fam LR 165 ; FLC 75,555 where the court commented:
It is obviously desirable as a general principle that the court should first of all identify the pool of assets available and evaluate it. If each party complies with his or her obligation to make a full and substantive disclosure of their financial affairs: see In the Marriage of Briese (1985) 10 Fam LR 642 ; (1986) FLC 91–713 , affirmed by the Full Court in In the Marriage of Oriolo (1985) 10 Fam LR 665 ; (1985) FLC 91–653 , there is no problem, although there may be disputes as to valuation.
However if, as here, one party fails to fulfil that obligation, is it open to that party then to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require? It would be simple, if that were the case, to evade the jurisdiction of this court, not by outright refusal which would attract sanctions but by obfuscation and evasion.
The Full Court in Oriolo, above, referred with approval to the remarks of Smithers J in Briese, and it is perhaps worth reiterating a portion of his Honour's statement at Fam LR 662 ; FLC 75,181 where he said, after referring to the decision of the House of Lords in Livesey v Jenkins [1985] All ER 106 :
… I believe that the conclusion of the House of Lords in the case of Livesey v Jenkins … is apposite, namely that in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of discretion. This is quite different from common law litigation between strangers, in which such a general duty does not exist, and obligations would only exist in so far as statute or court rules required.
In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred.
Regard also may be had to the decisions of this court in In the Marriage of Stein (1986) 11 Fam LR 353 ; (1986) FLC 91–779 at 75,676 and In the Marriage of Mezzacappa (1987) 11 Fam LR 957 ; (1987) FLC 91–853.
In the present case a similar situation arose. The assets of the parties could not be ascertained in full because of obvious non-disclosures.
It is apparent that if his income was more substantial than he claimed, then this would be reflected in the value of his practice and in this regard it is perhaps of interest to note that the wife's former husband's practice of a similar nature, was capable of being sold for a figure in 1973 terms which would if reflected in 1991 terms, represent a very substantial asset indeed. Finally, another part of a judge's obligation in cases of this nature in considering s 75(2) factors is to consider the respective incomes of the parties. Again, through the behaviour of the husband, this was something which the learned trial judge could not do.
It follows from what I have said that I do not believe that his Honour's judgment can be attacked upon the basis relied upon by the husband.
The applicant also relies on the decision of Kennon and Kennon [1997] FLC 92-75 where the Full Court said at [41]:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of ‘negative contributions’ which is sometimes referred to in this discussion.
The evidence supports a finding that the applicant and X were subjected to family violence during the relationship.
The applicant also submits that she has s.90SF(3) factors in her favour. The applicant earns approximately $30,000 a year as a (occupation omitted). The respondent’s TAC payments are $55,358 tax free. In addition he is able to claim carer benefits and medical expenses (at least whilst living in Australia). Due to financial benefits the respondent receives his income is higher than the applicant. Whilst his health is poor this does not have a financial consequence that requires an adjustment under this section as he is earning a greater income that the applicant. I am satisfied that the applicant made greater financial and non-financial contributions during the relationship.
The applicant will have the sole care of X for the next 4 years. She is paying X’s school fees at (omitted) College.
The applicant submits that she has incurred significant costs due to the respondent’s conduct, including having to bring urgent proceedings for removal of the caveat. That was the catalyst for the proceedings before the Court. The applicant is not seeking an order for costs but raises it as being relevant to her financial circumstances.
The other significant adjustment is to be made under s.90SF(3)(r) which is the respondent’s non-disclosure of his financial circumstances.
The respondent has received $100,000 from the proceeds of sale of the Property L property. He will retain all the other assets he has.
I am satisfied that it is just and equitable to make orders for the applicant to retain the known assets in Australia.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 5 April 2017
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Remedies
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Constructive Trust
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