Farrell & Farrell & Anor (No.2)

[2010] FMCAfam 1204

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FARRELL & FARRELL & ANOR (No.2) [2010] FMCAfam 1204

FAMILY LAW – Children – Parenting Orders – two children – mother lives with children in New South Wales – where father lives in Vanuatu – The Hague Convention – Vanuatu not a party to The Hague Convention – meaningful relationship.

FAMILY LAW – Property – where length of marriage was slightly over five years – where descriptions of assets and values of assets out of date, vague and incomplete – contributions – post-separation contribution to the welfare of the family – consideration of the effect of a proposed property order on the parties’ earning capacity – where applicant owns real estate in Russia.

PRACTICE & PROCEDURE – Notice of Address for Service – Address for service must be an address in Australia.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 62G, 68L, 75, 79, 111B
Federal Magistrates Court Rules 2001 r.6.01
Family Law (Child Abduction Convention) Regulations 1986 (Cth) Sch 2

Farrell & Farrell [2010] FMCA 240
St. John v St. John (1974) 6 Fam LN 14
In the Marriage of Hickey (2003) 30 Fam LR 355; FLC 93-143; [2003] FamCA 395
Line & Line (1997) FLC 92-729
Mazorski v Albright (2008) 37 Fam LR 518; [2007] FamCA 520
In the Marriage of Williams (1984) 9 Fam LR 789; FLC 91-541

Applicant: MS FARRELL

First Respondent: MR FARRELL

Second Respondent: INDEPENDENT CHILDREN'S LAWYER

File Number: PAC 5984 of 2007

Judgment of: Scarlett FM

Hearing date: 4 November 2010

Date of Last Submission: 4 November 2010

Delivered at: Sydney

Delivered on: 18 November 2010

REPRESENTATION

Counsel for the Applicant: Mr Battley

Solicitors for the Applicant: Nelson Keane & Hemingway

The First Respondent In person

Counsel for the second Respondent: Mr Berry

Solicitors for the second Respondent: Boyd & Longhurst

ORDERS

1. That all previous parenting orders in relation to [X] born [in] 2003 and [Y] born [in] 2005 are discharged.

2. That the said children live with the applicant mother.

3. That the mother have the sole parental responsibility for the children.

4. That the children spend time with the father:

   (a)For one week of each school holiday period following terms one, two and three as agreed between the parties and in default of agreement the week commencing on the Saturday immediately following the last day of term, such time to be spent in Australia, the father to give the mother no less than one (1) month’s notice in writing of his intention to spend such time with the children; and

   (b)For two weeks of each school holiday period following term four as agreed between the parties and in default of agreement the period of two commencing on 2 January in each year, such time to be spent in Australia, the father to give the mother no less than one (1) month’s notice in writing of his intention to spend such time with the children; and

   (c)Such other periods of time as the parties may agree.

5. That the said children communicate with the father by telephone each Monday, Tuesday, Friday and Saturday when the father is to telephone the children between the hours of 5.30 pm and 6.30 pm Australian Eastern Standard Time and the mother shall encourage the children to give the father news of their day.

6. That in addition to the times specified in Order (5) above the children are to communicate with the father by telephone on their birthdays, on the father’s birthday and on Fathers’ Day in each year, when the father is to telephone the children between the hours of 5.30 pm and 6.30 pm Australian Eastern Standard Time.

7. That in the event that either of the children suffers any illness requiring medical attention or hospitalisation during any period the children are spending time with the father then the father must immediately notify the mother of such illness and the name of the medical practitioner or hospital to which the child or children have been taken.

8. That the mother must sign all documents and do all things necessary to authorise the schools at which each of the children may from time to time attend to provide to the father at his expense copies of all school reports, notices and advices concerning the children or either of them.

9. That the mother must make available to the father copies of any school photographs of the said children at his expense.

10. That the mother must notify the father immediately of any major illness or injury suffered by either or both of the said children or any hospitalisation of the said children and make available to the father copies of any medical reports that may be sent in connection with that illness or injury or hospitalisation.

11. That the mother must authorise any hospital to which either of the children has been admitted or any medical practitioner treating either of the children in connection with any major illness or injury suffered by either or both of the said children or any hospitalisation of the said children to give such information to the father about the children or their treatment as he may request.

12. That both the father and the mother are restrained from removing or causing or allowing or attempting to remove either of the said children [X] born [in] 2003 or [Y] born [in] 2005 from the Commonwealth of Australia.

13. That the Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the Police Forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party or any other person from removing or attempting to remove the said children from the Commonwealth of Australia.

14. That the Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship take all necessary steps to place the names of the children [X] born [in] 2003 and [Y] born [in] 2005 on the Airport Watch List, also known as the PACE Alert System in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the names of the said children on the said Airport Watch List for a period of FOUR (4) YEARS from the date of these orders.

15. That the Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia for a period of FOUR (4) YEARS from the date of these orders.

16. That the Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of and give effect to these orders.

17. That liberty be granted to both parties to apply in the event of any difficulty in the implementation of these orders on seven (7) days’ notice specifying the matters to be raised before the Court. 

18. That the respondent father pay to the applicant mother the sum of $50,600.00 in the following instalments:

    (a)As to the sum of 420,000.00 within three (3) months from the date of these orders; and

    (b)As to the balance of $30,600.00 within six (6) months from the date of these orders. 

19. That subsequent to the payments referred to in Order (18) above each party respectively be declared the sole legal and beneficial owner of all such items or property and personalty standing in their respective possession.

20. That subject to the foregoing Orders each party be declared solely responsible for and indemnify the other in relation to any debts or loans or other liabilities standing in the respective names of the parties  attaching to items of property in their respective possession.

IT IS NOTED that publication of this judgment under the pseudonym Farrell & Farrell & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

PAC 5984 of 2007

MS FARRELL

Applicant

And

MR FARRELL

First Respondent

INDEPENDENT CHILDREN'S LAWYER

Second Respondent

REASONS FOR JUDGMENT

Application

1. The applicant, who is the wife and mother in this matter, seeks orders that the parties’ two children, a girl aged 6 years and 10 months and a boy aged 5 years and 4 months, should live with her and that she should have sole parental responsibility. She seeks orders relating to the time spent by the father with the children, including a restraint on the father taking them out of the Commonwealth of Australia. Initially, she seeks that the father’s time with the children be spent within a 100 kilometre radius of the [D] City Post Office, progressing to a second stage where the father would spend time with the children elsewhere in Australia.

2. The reason why the applicant seeks these restrictions on the father’s freedom of movement with the children is that he has taken up residence in [S], in Vanuatu. The mother resides with the children in rural New South Wales and these proceedings were commenced in [N] and heard in [D].

3. The applicant also seeks an order for a settlement of matrimonial property that would see the father pay to her the sum of $157,500.00 within 42 days.

4. For his part, the father seeks orders that the parties share the care of the children, and he proposes three different options.

5. The first option is that:

   a)The children live with him in [S] from February to April each year;

   b)The children live with their mother in Eastern Australia from May to July each year;

   c)The children again live with their father in [S] from August to October in each year; and

   d)The children then live with their mother in Eastern Australia from November to January. 

6. The respondent’s second option is that the children live with him in [S] during school term time (presumably Vanuatu school term time) and spend school holidays with their mother in Australia.

7. The respondent’s third option is that the children live with their father for four months each year, either studying by distance education (from New South Wales) or attend school in the Queensland education system. The children would spend ten days during each school holiday period outside that four months with the father.

8. In each case, the respondent suggests that changeover should take place at Brisbane in the general area of Brisbane Airport.

9. The father, in his Response filed on 28^th May 2008, seeks that the property proceedings between the parties be resolved by orders that would see that each party retains the assets that he or she presently holds.

10. The Independent Children’s Lawyer proposes that the children should live with the mother, who should have sole parental responsibility. He submits that the children spend a week of each school holiday period with their father after Terms 1, 2 and 3, and two weeks with their father during the Christmas/January school holidays. The father’s time with the children should be in Australia and he proposes that both parties be restrained from removing the children from the Commonwealth of Australia.

11. At the hearing of this matter, the Independent Children’s Lawyer submitted that the father should spend time with the children on six separate days in February and early March 2010, whilst he was still in Australia. This aspect was dealt with by means of an interim decision made on 25^th February 2010, where I ordered that the children spend time with the father on 26^th, 27^th and 28^th February, and 6^th and 7^th March 2010 (see Farrell & Farrell[1]). 

    [1] [2010] FMCAfam 240

Background

1. The matter has had a relatively lengthy history, having been commenced in late 2007.

2. The parties were married [in] 2002 and separated on 28^th June 2007. There is no evidence that they are divorced.

3. The father was born [in] 1961, making him 49 years and 5 months old. The mother was born [in] 1976, making her 33 years and 10 months old.

4. There are two children of the marriage:

   a)[X] was born [in] 2003, and is therefore six years and 10 months old at the time of writing; and

   b)[Y] was born [in] 2005, and is therefore 5 years and 4 months old. 

5. The children live with their mother, the applicant.

6. The applicant filed an application in the Local Court of New South Wales at [N] on 14^th September 2007, seeking orders restraining the father from:

   a)Disposing of or removing assets from the jurisdiction;

   b)Removing funds from bank accounts in the United States of America and Vanuatu;

   c)Disposing of any real property in Australia;

   d)Disposing of or purchasing any real property outside the jurisdiction; and

   e)Removing the children from the [N] Local Government Area in particular and the jurisdiction in general.

7. On 14^th September 2007 the Local Court at [N] made orders:

   a)Preventing the respondent from disposing of or removing assets from the jurisdiction;

   b)Preventing the respondent from removing any funds from the bank accounts in the United States and Vanuatu;

   c)Preventing the respondent from disposing of or purchasing any real property in the jurisdiction; and

   d)Preventing the respondent from disposing of or purchasing any real property outside the jurisdiction, including Vanuatu.

8. All the above orders were subject to this proviso:

   “without the consent in writing of the applicant Wife, or her legal representative, pending the outcome of the Application for Final Order(s) filed in this matter.”

9. The Court also ordered:

   i)That the respondent must provide a sworn financial statement within 14 days; and

   ii)That the respondent was restrained from removing the two children from the [N] Local Government Area and from the jurisdiction.

10. The Local Court then transferred the matter to the Parramatta Registry of the Federal Magistrates Court.

11. The proceedings were mentioned at Parramatta on 3^rd December 2007, 11^th February, 28^th April and 12^th May 2008. The respondent father was ordered to file a response and other documents on each occasion. Eventually, the father filed a response, a financial statement and an affidavit in support on 28^th May 2008.

12. The father’s documents did not comply with Rule 6.01 of the Federal Magistrates Court Rules 2001 in that they gave as his address for service an address in Vanuatu. The Rules require an address for service to be in Australia.  

13. On 30^th June 2008 the parties were ordered to attend a Conciliation Conference at the [D] Registry of the Court, to take place on 21^st July 2008. The father was given leave to attend by telephone.

14. The conference scheduled for 21^st July did not take place because, as the Registrar reported;

    Husband not prepared to discuss financial issues until parenting issues finalised.

15. The proceedings came back before the Court on 28^th July 2008 and again on 30^th July, when Kelly FM made orders:

    a)restraining the parties from removing the children from Australia;

    b)placing the children’s names and details on the Airport Watch List, otherwise known as the PACE system;

    c)providing that the children would live with the mother;

    d)ordering that the children could communicate with the father by telephone;

    e)ordering that the children should spend time with the father when he visited Australia on 2^nd and 3^rd August 2008;

    f)ordering the parties to attend family dispute resolution;

    g)requiring the father to file a Notice of Address for Service; and

    h)other ancillary orders.

16. On 2^nd September 2008 the father filed a Notice of Address for Service giving an address for service at Beerwah, in Queensland.

17. On 3^rd October 2008 at the sittings of the Court at [D], Sexton FM listed the proceedings for hearing at [D] in March 2009. Her Honour also ordered:

    a)That an Independent Children’s Lawyer be appointed for the children under s. 68L of the Family Law Act;

    b)That the parties attend a further Conciliation Conference; and

    c)The parties attend upon a Family consultant for the preparation of a Family Report under the provisions of s.62G of the Act; and

    d)The proceedings were adjourned to 20^th February 2009 for call-over.

18. The respondent did not attend the call-over on 20^th February 2009. On that date Kemp FM adjourned the matter to the Orange call-over on 23^rd April 2009 and ordered that:

    Mr W[2] is to prepare the family report ordered on 3 October 2008. If the father wishes to be involved in the process, he must participate with Mr W for the purposes of that report. 

    [2] The Family Consultant

19. On 6^th March 2009 Kemp FM vacated the mention date of 23^rd April 2009 and listed the matter for the [D] call-over on 3^rd July 2009, noting that;

    The matter has been adjourned to the above date in relation to the preparation of the Family Report.

20. The father filed an application in a case on 26^th June 2009, seeking and adjournment of the final hearing until late October or December 2009 as well as interim parenting and property orders.

21. On 3^rd July the proceedings were adjourned to 20^th July and orders were made for the applicant mother to file an updated financial affidavit.

22. On 20^th July 2009 Kemp FM listed the proceedings for final hearing on 23^rd and 24^th February 2010 and dismissed the father’s application in a case.

23. The father filed a contravention application and affidavit in support on 14^th October 2009. That application was mentioned on 19^th February 2010 and Kemp FM adjourned it to the final hearing on 23^rd February 2010.

24. After the hearing of the application, the father filed a further Notice of Address for Service on 26^th February 2010. Again, it is defective, as it gives an address in [S], Vanuatu. Rule 6.01(3)(a) provides that an address for service must be an address in Australia.

The final hearing

1. The application came on for final hearing on 23^rd February 2010. Whilst it was listed for two days, it actually expanded into three days, until 25^th February 2010.

2. On the first day, before the evidence commenced, the father told the Court that he wished to withdraw the contravention application but continue to rely on the affidavit filed in support. I informed him that he was free to do so.

The applicant’s evidence

1. The applicant mother relied on three affidavits, sworn on:

   a)13^th September 2007 (filed at [N] Local Court);

   b)29^th July 2008; and

   c)17^th July 2009.  

2. The mother also relied on a Financial Statement filed in the Local Court on 14^th September 2007.

3. The mother’s counsel also tendered a three-page document containing records of telephone calls.

4. In her affidavit of 13^th September 2007, the mother deposed that she was living with the two children in her mother-in-law’s house in [N], as there was no matrimonial home. She further deposed that:

   a)She was unemployed with no agreement for spousal maintenance or child maintenance, nor any property agreement;[3]

   b)The father had closed their joint bank account and she did not have access to any of the bank accounts in the father’s name in banks in the United States or Vanuatu;[4]

   c)The father had informed her that he intended to migrate to Vanuatu on 17^th September 2007 and had purchased a property known as the [C] Building at [L], [S], Vanuatu. He had also made business trips to purchase goods to sell in Vanuatu.[5]

   d)She sought injunctive orders to prevent the dispersal of the assets to which she had contributed.

   [3] Affidavit of Ms Farrell 13.9.2007 at paragraph [6]

   [4] Ibid at [7]-[8]

   [5] Ibid at [10]-[12]

5. In her affidavit of 29^th July 2008, the mother deposed that:

   a)She was and had been principally responsible for the day to day care of the children;[6]

   [6] Affidavit of Ms Farrell 29.7.2008 at [10]-[11]

   b)She was still living in her mother-in-law’s house in [N] with the children;

   c)The children were attending [N] Day Care one day a week and the rest of the week they were at home with her;[7]

   d)She sought that the venue of the proceedings be changed from Sydney to [D] so that the matter could be heard on circuit;[8]

   e)She was concerned that the father might seek to remove the children from the jurisdiction if he were to have unsupervised contact with him, as he had said of the children from his first marriage “I wish I had taken my children to South America – a place where nobody would find them – when they were little”;[9]

   f)After an incident on 28^th June 2007 involving the father, his brother Mr B, and the mother, she feared that the father was attempting to abduct the children and reported the matter to the Police, who obtained an Apprehended Domestic Violence Order on her behalf; [10]

   g)The mother denied that she had stopped the father from speaking to the children when he telephoned them from Vanuatu although she had seen the children pick up the phone and then hang up without saying anything;[11]

   h)The father had transferred the sum of $11,000.00 out of one of the parties’ bank accounts whilst the Local Court proceedings were under way but no Interim orders had been made;[12]

   i)He had not made a full disclosure of his assets and business interests in Vanuatu;[13]

   j)He had verbally abused her and physically attacked her in front of the children;[14] and

   k)He had made little attempt to maintain a relationship with the children.[15]

   [7] Ibid at [15]

   [8] Affidavit of Ms Farrell 29.7.2008 at [17]-[22]

   [9] Ibid at [23(a)]

   [10] Ibid at [23(b)]

   [11] Ibid at [23(d)]

   [12] Ibid at [23(e)(i)

   [13] Ibid at [23](3)(ii)

   [14] Ibid at [23](g)

   [15] Ibid at [23](h)

1. The mother’s most recent affidavit was that sworn on 17^th July 2009, in which she deposed that:

   a)She had received no financial support from the father since he had relocated to Vanuatu;[16]

   b)The father had liquidated matrimonial assets and she was unaware of what he had done with the proceeds;[17] and

   c)Because the father was not contributing to the children’s day to day living costs she was seeking property orders.[18]

   [16] Affidavit of Ms Farrell 17.7.2009 at paragraph [12]

   [17] Ibid at [17]

   [18] Ibid at [33]

2. The mother annexed a variety of documents to her affidavit, including a detailed record of dates and times when she claimed that the father telephoned to speak to the children.

3. The mother was cross-examined by the father and by counsel for the Independent Children’s Lawyer, Mr Berry.

4. The mother agreed that she had not spoken to the father on the telephone whenever he rang, but put one of the children on immediately. She denied that she had discussed moving to Vanuatu before the parties separated on 14^th September 2007.

5. The father cross-examined the mother at some length about whether or not she been cooperative in allowing him to speak to the children when he rang. She denied that she had been uncooperative.

6. The father also cross-examined the mother about her claims that he had been physically abusive to her and she agreed that she had never been hospitalised as a result of any violence from him. She insisted that the father had been violent during the marriage and was abusive to her after separation.

7. The father also asked the mother about the circumstances in which she would allow the children to visit Vanuatu and stay with him. She was non-committal, saying that she would like to observe how the father followed her proposed orders first.

8. As to property matters, the mother admitted that when she emigrated from Russia to Australia she had little or no money, “pocket money, maybe”.[19]

   [19] Transcript 23.2.2010 at page 59

9. The mother denied that she had removed any money in cash from a suitcase at the former matrimonial home. She asserted that the father had been secretive about money.

10. It was put to the mother that she sought to take the children out of Australia. She said that they did not have Russian passports but they did have Russian citizenship. She stated that she had no intention to leave Australia with the children. She asserted that she had come to Australia to live permanently in this country.

11. The mother said in cross-examination that she had completed a [qualifications omitted]and intended to look for work.

12. In reply to a question from the father about her views as to how a father should influence children in a positive way, the mother said:

    First of all they take effort to come and visit children and second, there are many different ways that fathers can take part in children’s life.[20]

    [20] Transcript 23.2.2010 at page 72

13. She went to say that the father was ordered to attend Court in [D] on 20^th February 2009 so that he could have time with the children, but he did not attend.

14. The father asked the mother about her attitude to home schooling or distance education if the father were to live in Australia for several months at a time. She was reluctant to commit herself until she knew all the details about the arrangement.

15. Mr Berry of counsel appeared for the Independent Children’s Lawyer. He asked the mother about whether she would agree to an injunction restraining her from taking the children out of Australia. The mother said that she did not see any reason as she had intention of taking the children out of Australia. Eventually, she said that would not object to such an order.

16. The mother agreed that she did not communicate with the father directly about the children, but only through her solicitor. She said that she did not want to speak directly to him because he was verbally abusive to her.

17. The mother did not want her address disclosed to the father but agreed that she would authorise the children’s school to provide him with all the notices that are normally sent out to parents of children at the school.

The respondent’s evidence

1. The respondent father has filed five affidavits in this matter, sworn or affirmed on:

   a)18^th April 2008;

   b)25^th July 2008;

   c)25^th June 2009;

   d)13^th October 2009; and

   e)1^st December 2009.

2. In his affidavit of 18^th April 2008 the father blamed the situation on the mother’s “obsession with living in Australia” and the “glib smooth tongued lawyers in [D]”[21] who encouraged her to sue him and destroy the children’s lives.

   [21] Affidavit of [Mr Farrell] 18.4.2008 at paragraph [1]

3. The father went on to depose that:

   a)He found living in Australia too oppressive, because of taxes, regulations, paperwork and insurance risks to enable him to run a small business successfully;[22]

   [22] Ibid at paragraph [1] of section entitled “Investing in [S]”

   b)He purchased an [C] business in Vanuatu in December 2006 and was proceeding to renovate it;[23]

   [23] Ibid at [2]

   c)He first used obtained income from the [C] building in April 2008;

   d)He made several visits to Vanuatu from March 2005 on to investigate business opportunities there;

   e)While he was in Vanuatu he claims that the mother took a sum of approximately $32,000.00 in cash from a suitcase he left with her as a guarantee in case he was involved in an accident;

   f)In May 2007, when the family was living temporarily in [N], the mother said she did not want to go to live in [S];

   g)On 28^th June 2007 the mother said that she would not go to Vanuatu and the father ascertained that the mother had some romantic involvement with his brother Mr B;

   h)The mother did not contribute any money to the marriage;

   i)She has the sum of $32,000.00 she took from him, less any money that she “wasted on lawyers”;[24]

   j)The mother had an account at the NAB with a balance of about $5500.00;

   k)The mother owns an apartment in [K], Russia, valued at about $US80,000.00; and

   l)His financial position has not changed much, except that he lost about $7000.00 worth of goods through theft.

   [24] Affidavit of [Mr Farrell] 17.4.2008 page 8 paragraph [3]

4. In his affidavit sworn or affirmed on 25^th July 2009 the father deposed that:

   a)Property matters cannot be resolved until the question of the residence has been decided;

   b)The mother has not allowed him to speak to the children; and

   c)When he attended the conciliation conference by telephone he sought orders permitting him to spend time with the children in Australia but the mother would not agree.

5. In his affidavit of 25^th June 2009 the father sought an adjournment of the hearing of this matter, claiming that he could not afford to be away from his business in Vanuatu and blaming the Australian Government and the Court for the fact that he has not spent time with his children.

6. The father claimed in his affidavit of 13^th October 2009 that he had not been allowed to speak to his children since 20^th July 2009, saying:

   Before 20/7/09 for months most times I called children were not available to talk to, or were totally distracted.[25]

   [25] Affidavit of [Mr Farrell] 13.10.2009 at paragraph [2]

7. The father’s final affidavit was sworn or affirmed on 1^st December 2009. The affidavit is couched more in terms of a submission than the sworn or affirmed statement of facts that an affidavit is meant to be, and I propose to allow on that basis. The document includes a Minute of Proposed Orders, which has since been superseded by the father’s later proposed orders.

8. The father deposed that he had only seen the children for a total of

   
   

   24 hours over a period of almost two and a half years, but they responded well to him.[26]  

   [26] Affidavit of [Mr Farrell] at [2]-[3]

9. A considerable part of the document (paragraphs 5 to 84) consists mainly of an attack on the Court, the Australian Government and the mother, whom the father refers to as “The Russian woman”.

10. The father goes on to deal with financial aspects of the case. He deposed that:

    a)The relocation to Vanuatu, hard economic times in Vanuatu and the separation between the parties have imposed a financial strain on him;[27]

    b)His business of importing motor vehicles has caused a financial drain “as they have had so many electrical problems causing great expense and loss of sales”;[28]

c)He has a credit card debt in the United States of $28,314.00;[29]

d)He has made no net income for the past three years;[30] and

e)He expects his business to improve but it may take up to five years.[31]

[27] Ibid at [85]-[86]

[28] Ibid at [87]

[29] Affidavit of [Mr Farrell] 1.12.2009 at [90]

[30] Ibid at [91]

[31] Ibid at [92]-[96]

1. The balance of the document consists of submissions.

2. The father was cross-examined by Mr Battley of counsel, who appeared for the mother, about the document he provided to the Court on the second day of the hearing, containing three options, in order of preference, as to the parenting orders he seeks. Mr Battley drew his attention to the fact that until that day he had not disclosed to the mother that he had become the father of another child. He said:

   Given the fact that she hasn’t communicated with me in any way, shape or form, sir, I haven’t really had the opportunity.[32]

   [32] Transcript 24.2.2010 at page 7, lines 10-11

3. He went on to confirm that he was living with the mother of this child and that he had not mentioned anything about either this woman or his new child in any of his documents. He conceded that it was “an important factor for your Honour. That’s why I put it in there.[33]

   [33] Ibid at page 7, lines 30-31

4. The father confirmed that his first option was that:

   a)The children live with their mother in Eastern Australia in May, June and July each year;

   b)They would live with him in Vanuatu from August to October in each year;

   c)They would then live with their mother in Australia from November through to January; and

   d)They would then live with him from February to April in Vanuatu.

5. He confirmed that he was serious in putting to the Court a proposal that the children’s place of residence be changed each three months. When asked if he had considered what effect this would have on their education, the father replied:

   Yes sir. That’s why I put it in there. It will be far greater than staying in one school in Australia. Tom Cruise is a classic example. He moved 13 schools. Look where he is, a successful man. More successful than anyone in this room. 13 schools.[34]

   [34] Transcript 24.2.2010 page 8 lines 36-39

6. He went on to suggest that the mother could also relocate to Vanuatu, where she would be financially better off than in Australia.

7. The father expressed the opinion that, whilst the children were living in Australia, they should undergo their education by distance education rather than attend a public school. He said that he believed that distance education was “superior to most, or all, public schools.”[35]

   [35] Ibid at page 13, line 21

8. In reply to a question from the Bench, the father said that the children would attend school in Australia for three months and then would live in Vanuatu, where they would undertake distance education from Australia and spend “probably two hours in a regular school as well every day”.[36]

   [36] Ibid at page 15, line 21

9. When asked if that were not a rather disjointed proposal, with major changes every three months, the father replied:

   Not as disjointed as not having a father, sir. This is what the other proposal is. No father.[37]

   [37] Ibid lines 26-27

10. The father was cross-examined about his business experience in earlier life. He said that he had become a [occupation omitted] in the United States in 1996 and made money in the [omitted] business from 1997 to 2000. However, he made “not enough” money to compensate for the long hours and missing out [omitted] because of bad weather. He described the [omitted] business as “very up and down”.[38]

    [38] Ibid page 18 line 7

11. The father said he had also done classes in [trades omitted]. He had also been involved in [agricultural activities].

12. More recently, the father said that he had made no net income in the twelve months prior to moving to Vanuatu and for the past two years in Vanuatu he had not made any money. However, he anticipated that he would make “quite a lot” of money in the coming year.

13. The father was asked about his attitude towards paying for the expenses of his children. He asked, “In what circumstances, sir?” and Mr Battley asked him:

    The circumstances, sir, that you should be paying, I put to you, money for the cost of feeding, raising and educating your children here. Do you accept that you should be paying something in respect to those expenses?

14. The father replied:

    Not if they’re not with me, sir.[39]

    [39] Ibid page 21 lines 41- 45

15. Later, the father said that he did not know whether or not he would pay child support for the children. He said:

    That depends on whether I’m having access to my children or not, doesn’t it?

    and:

    I don’t know at this stage, sir

    and later:

    Sir, if I got the access that you have suggested, then the answer is no.[40]

    [40] Ibid page 32 at lines 34 - 42

16. The father was asked about his two children from his earlier marriage. He said that they were aged 17 and 19 and he had last seen them some years ago. He went on to say that he could not remember when he had last seen his son [A], but it was probably in 2004 or 2005. He had last seen his daughter [B] just before he went to Vanuatu, in 2007. He had paid child support for the children in the sum of about $20.00 or $25.00 a month up until 2006.

17. As to his assets in Vanuatu, the father said that he lived in the [C] building in [S], in Vanuatu, which he purchased in either 2006 or 2007 for $100, 00.00 or $110,000.00. He paid the purchase price from cash that he had remitted to Vanuatu from Australia.

18. He also said that he had a business in selling cars which he had imported in 2007. He still had about eight of them. He had spent about $30,000.00 or $40,000.00 on them. He had also purchased tools for about $3,000.00.

19. As to cash, the father said he had a bank account in Vanuatu with about $1000.00 or $1500.00 in it. He also had cash with him in the sum of about $1000.00 or $2000.00 and had a small amount in his safe in Vanuatu. The amount was in local currency and he guessed it was about $1000.00 or $2000.00.

20. The father said that he operated a general store in [S], which was where he spent most of his time. He estimated he had grossed less than $1500.00 in November 2009, probably $4000.00 in December and about $4500.00 or $5000.00 in January 2010.

21. He said that the woman with whom he was living in a de facto relationship, the mother of his new son, was working in the general store whilst he was in Australia but normally works full time at a maritime college. He did not know how much she earned a year.

22. The father was reluctant to answer a question about how long he had been in a de facto relationship with this woman. He said that he did not see the relevance of the question. After he was told that the Court considered the question was relevant, the father conceded that he had started to live with this lady, named Ms S, about February or March 2009.

23. As to the final property orders to be made, the father said that he did not seek any order that he pay any moneys to the wife:

    Absolutely not, sir…

    None…

    She has the ability to earn money. She has chosen her path. She ahs taken a lot of money from my accounts and from my cash and she has money in Russia, and now she’s fully trained enough to go to work, more ability to earn money than I have right now. Why should I pay her?[41]

    [41] Transcript 24.2.2010 page 30 lines 40 - 47

24. He said that he had remitted the sum of “over $200,000.00” to Vanuatu from Australia and denied that the amount was “close to $350,000.00”.

25. In cross-examination by Mr Berry of counsel, who appeared for the Independent Children’s lawyer, the father said that if the Court ordered that the children went to live with him in Vanuatu, he would be prepared to pay some money by way of property settlement, or at least “We could discuss it”. When asked if he was saying “You give me the children, I’ll give you some money” he replied:

    You can look at it like that.[42]

    [42] Ibid page 81 line 13

26. On the subject of his spending time with the children, the father said that “If the court cannot give me overnight contact, the court is not serious about the children having a father”.[43]

    [43] Ibid page 85 lines 6-7

The Family Report

1. A Family Report was prepared by Mr W, a family consultant, on

   
   

   29^th June 2009. He based his Report on the following:

   a)Interviews with both parents on Friday 3^rd October 2008;

   b)Observations of the children with their father that same day;

   c)A telephone interview with the father from Vanuatu on 11^th May 2009;

   d)An interview with the mother that same day; and

   e)Information on the Court file as at 29^th June 2009.

2. The Report writer noted that the father expressed the view in May 2009 that the children should spend equal time living with their mother in Australia and with him in Vanuatu, continuing their education through the NSW Department of Education distance education scheme.

3. The father was recorded as saying that if he did not obtain the outcome he was seeking he was “probably better off walking away and having more children (with someone else)” and “If I’m not allowed to have reasonable time with (the children), I will have to walk away from them…If I can’t have them in my house (in Vanuatu), they’re not my kids”.[44]

   [44] Family Report pages 3 and 4 paragraph 16

4. The Family Report noted the mother’s concerns that Vanuatu is not a party to the Hague convention on International Civil Child Abduction and her fear that the father would not return the children to her. The mother also said that when the father spent time with the children in October 2008 they had become “increasingly ambivalent” towards their father and had even told her that they did not wish to go with him on one particular day.

5. The Family Consultant did not interview the children due to their young age. However, he referred to a memorandum to the Court dated 9/10/2008 in which he described his observations of the children with their father on 3^rd October 2008:

   These observations demonstrated very warm and positive interactions between both children and their father, notwithstanding the very limited time they had spent with him during the preceding 18 months.[45]

   [45] Ibid page 6 paragraph 29

6. The Family Consultant noted the father’s views about state intervention and the reasons he gave for wanting to settle in Vanuatu, and echoed the mother’s concern that the father may decide not to return the children to the mother if they were with him in Vanuatu.

7. Nevertheless, Mr W continued his positive view of the father’s interaction with the children, saying:

   Given the very positive interactions observed between the children and their father in October 2008, there is little doubt that Mr Farrell is a person of great significance for them, both structurally (as their father) and emotionally (as someone they love). There is no doubt in my mind that [X] and [Y] both have a profound need to maintain meaningful relationships with their father into the future.

   It is also perhaps to Ms Farrell’s credit that the children’s relationships with their father were observed to be as positive as they were, given the inherent unlikelihood the children could have sustained the strength of their attachments to their father over the preceding 18 months without her support and encouragement.[46]

   [46] Family Report page 7 paragraphs 34 and 35

8. The Family Report recommends that the Court consider the possibility of the father not returning the children if they were to spend time with him in Vanuatu and that arrangements should be made for him to spend time with them in Australia. The recommendation is that the children spend time with the father, subject to his availability, for half of each school holiday period during the year and for two weeks during the Christmas school holidays.

1. Mr W gave oral evidence and was cross-examined. He said that in his view there was a close and loving relationship between the children and their mother and what appeared to be a good relationship between the children and their father. If the children were taken from the mother’s care and placed with the father in Vanuatu it would be detrimental to their emotional and psychological health.

2. At the same time, if the father were to withdraw from the children’s lives altogether and had nothing to do with them, then that would also have a long term negative effect on them.

3. Mr W said that the “most optimal outcome” would be for the father to spend one week of each of the term school holidays and two weeks over the Christmas holidays with the children in Australia. That proposal would need to be combined with fairly regular telephone calls.

4. In cross-examination by Mr Battley for the mother, Mr W said that he did not necessarily support the mother’s proposal that the father should see the children for six occasions before they spent any time with him overnight, but he did accept that there could be some benefits in the father re-establishing himself with the children before they were with him overnight.

5. In cross-examination by the father, Mr W said that he did support the children having overnight contact with him. He said that he asked the father to attend in person for the family report interviews in May 2009, but the father was unable to do so, and the interview was conducted by telephone. He went on to say that he favoured overnight contact after a brief period of daytime only contact.

6. On the question of the children’s education, the Family Consultant did not agree that it would be beneficial for the children to spend a block of time with one parent and then a block of time with the other. He said:

   The scientific research indicates that children who live in an arrangement whereby they spend substantial or significant time with both of their parents do poorly if those parents do poorly if those parents cannot get on well together, communicate and cooperate to resolve the kinds of difficulties that can arise in those sorts of situations.[47]

   [47] Transcript 24.2.2010 page 52 lines 46-47, 53 lines 1-3

7. The Family Consultant said that the children should have as regular contact with the father as was economically and reasonably possible and that the parents should strive to make relations between them as positive as they could be.

8. Mr W did not agree with the father’s suggestion that the children should be with the father for one month at a time, saying that it might increase their bonding with him but he feared it would be detrimental to their bonding with their mother and perhaps for their stability.

Submissions

1. Mr Berry submitted that orders should be made as set out in his Minute of Order. That minute proposes that:

   a)The children should live with the mother, who should have sole parental responsibility for them;

   b)The children should spend time with the father for one week of the school holiday periods after Terms 1, 2 and 3 in each year, and for two weeks of the school ho0liday period following Term 4;

   c)The children should communicate with the father by telephone each Monday, Tuesday, Friday and Saturday;

   d)The father should notify the mother of any illness requiring medical attention or hospitalisation for either of the children whilst they are in his care, and a similar obligation should be placed on the mother;

   e)The mother should authorise the children’s schools to provide school reports and other relevant documents to him;

   f)Both parties should be restrained from removing the children from Australia and the children’s names should be placed on the Airport Watch List; and

   g)The father should spend time with the children on six individual weekend days in February and March whilst he was in Australia.

2. Mr Berry told the Court that it would be desirable for the children to see their father after Court that day, as they had a desire to see them and it would be devastating for them not to see him, knowing that he was in [D].

3. However, the Independent Children’s Lawyer was opposed to the children going to Vanuatu, whether to live or to visit, noting that Vanuatu was not a signatory to the Hague Convention.

4. Mr Berry raised a concern that there had been no evidence given of the father’s current relationship with the woman Ms S and the existence of the child [Z] until what he described as “the throwaway line” in the father’s option document handed to the Court the day before. He said that there was vague evidence as to how the children would be looked after in Vanuatu, given the father’s evidence that he worked 70 hours a week for 6 days a week.

5. Mr Berry also raised the question of the mother’s relationship with

   
   

   Mr B, the father’s brother, noting the father’s claim that the relationship was “more than a platonic relationship”. There was no evidence by or about Mr B.

6. The Independent Children’s Lawyer was critical of the mother, who had been “less than cooperative” in relation to encouraging the children to speak to the father.

7. Again, the Independent Children’s Lawyer noted that there was no evidence of what encouragement the father would give to the children having a relationship with the mother if they lived in Vanuatu, which weighed against the children going to live there. The concern was also expressed that if the father did not get his own way he would “walk away” from the children, which, Mr Berry submitted was “pandering to his needs rather than the children’s needs”.

8. For the mother, Mr Battley submitted that the mother’s position echoed that of the ICL. He emphasised that the mother saw a clear benefit to the children in their having a meaningful relationship with their father. However, the mother was critical of the father for only wanting to see the children on his terms.

9. As to the financial matters, Mr Battley submitted that on the father’s own admissions there was a pool of about $180,000.00. He relied on the decision of St. John v St. John[48] , saying that the principle is that in circumstances where people have had the opportunity to fully and frankly disclose their financial circumstances but do not do so, the court is entitled to be bold with any financial order that it makes.

   [48] (1974) 6 Fam LN 14

10. Whilst he conceded that the Court may be reluctant to make the property order sought by the mother, namely that she receive the sum of $157,000.00, Mr Battley submitted that the Court should make a generous order in respect of the sum of $180,000 which the father had admitted and not accept the father’s claim of an alleged debt of $28,000.00, of which there was no evidence in support.

11. Further, Mr Battley submitted that this was a case where the mother was unlikely to receive any child support from the father, so the s.75(2) adjustment in favour of the mother could be as high as 20% or even 25%.

12. Thus, he submitted that the mother would easily be entitled to one third of the asset pool, being the sum of $60,000.00 or $70,000.00. That, he submitted, would be a just and equitable amount.

13. The father, in his submission, told the Court that he had spoken to

    
    

    Mr W, who had confirmed that he was available the next day to interview the father and assess the children with him. He sought that a further report be given to the court, based on that new assessment.

14. I informed the father that I would not grant that application, as it involved reopening the entire parenting case, and I formed the view that there had been ample time to prepare the matter for hearing.

15. The father sought overnight time with the children straight after the hearing. As it turned out, later that day I took the unusual step of making some interim orders to allow the children to spend time with the father in the time after the hearing.

16. The father submitted that he had a meaningful relationship with the children and the Family Report supported that contention. He claimed that the mother had not been allowing the children to talk to him on the telephone and had never encouraged his relationship with the children.

17. As to the property application, the father told the Court that the mother had taken the sum of $32000.00 from a suitcase in April of 2007 and was using part of that money to pay her legal costs. He said that he did not have the sum of $100,000.00 to pay to the wife, and an order that he do so would mean that he would have to sell his assets in Vanuatu at a loss.

18. The father said that the mother had assets in Russia worth $100,000.00. He submitted that the property matter be resolved by the parties keeping those assets that they currently hold.

The relevant law

1. In deciding whether to make parenting orders in relation to children, the Court must regard the children’s best interests as the paramount consideration (Family Law Act, s.60CA).

2. In determining what is in the children’s best interests, the Court must have regard to the primary considerations set out in s.60CC(2) of the Act and the additional considerations set out in s.60CC(3).

3. Also, s.60CC(4) of the Act requires the Court to consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent.

4. Further, where the children’s parents have separated, the Court must have regard to events that have happened and circumstances that have existed since the separation occurred (see s.60CC(4A).

5. When making a parenting order in relation to children, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility (s.61DA(1)), unless:

   a)The presumption does not apply if there are reasonable grounds to believe that a parent of the children has engaged in abuse of the children or family violence (s.61DA(2); or

   b)The presumption is rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility (s.61DA(4)).

6. When dealing with property matters under s.79 of the Act, the principles are well known and the approach has been set out by the Full Court of the Family Court in a number of decided cases. In the recent case of In the Marriage of Hickey[49], the Full Court (Nicholson CJ, Ellis and O’Ryan JJ) said at [39]:

   The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. First, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, the court should identify and assess the contributions of the parties within the meaning of s 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, the court should identify and assess the relevant matters referred to in s 79(4)(d),(e),(f) and (g), (the other factors) including, because of s 79(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourth, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case…[50]

   [49] (2003) 30 Fam LR 355; FLC 93-143; [2003] FamCA 395

   [50] (2003) 30 Fam LR 355 at 370

Consideration

1. This is a matter where there is a considerable degree of acrimony between the parties. When the father, who was unrepresented, was cross-examining the mother, she declined to look at him and often referred to him in the third person, as “Mr Farrell”.[51] Similarly, the father referred to the mother by such terms as “The Russian woman”.

   [51] e.g. Transcript 23.2.2010 pages 24 and 35

2. The father has referred to a relationship between the mother and his elder brother, Mr B, and he has exhibited a degree of animosity towards him. He also claims that the mother has either refused to let the children speak to him on the telephone, or has not actively facilitated those telephone contacts. On the property side he claims that the mother misappropriated the sum of about $32000.00 held in a suitcase.

3. The father’s claim that the children should spend alternating blocks of three months in Australia with their mother and in Vanuatu with him does not appear to be in the children’s best interests and may not be economically viable, involving air travel between Australia and Vanuatu on four occasions each year.

4. Coupled with that is the father’s proposal that the children should participate in different education systems each three months:

   a)The NSW Department of Education Distance Education Scheme whilst in Vanuatu;

   b)Attendance at a primary school in Vanuatu for two hours a day; and

   c)Attendance at a primary school in New South Wales whilst the children are with their mother. 

5. The father sets great store by the Distance Education Scheme. This appears to be based on anecdotal evidence about his sister’s child and a hearsay account of a discussion with the principal of the Distance Education Scheme.

6. The father’s own formal education ceased, on his own evidence, after he completed Year 10 at [T] School. With respect, that hardly qualifies him as an expert in education.

7. In support of the proposition that the children would benefit from this education scheme, the father has referred to anecdotal evidence of the American actor Tom Cruise, who allegedly attended thirteen different schools during his education, but is now a successful film star. There is no evidence before the Court about the education of Mr Cruise, although I can take judicial notice of the fact that he has achieved success in the film industry.

8. The father’s scheme to involve the children in three different education systems in two different countries, changing every three months, is unrealistic to say the least, and does not appear to be in the children’s best interests.

9. The father’s proposal that the children live alternately with each parent, for three months in Australia with the mother and three months in Vanuatu with him does not appear to be in the children’s best interests, either. It would appear to me to be destabilising to them, especially as the parents have markedly different views about what is best for their children.

10. The father has given evidence that he works for 70 hours a week over six days in each week. If he is serious in this claim, he will have little time available to supervise the children. He has formed a de facto relationship with a Vanuatu woman, who has borne him a son. The father plans to father more children, presumably by this woman.

11. There is no evidence at all about this woman. She has not sworn any affidavit, nor was she even mentioned to the family consultant when the family report was being prepared.

12. It is nothing short of astonishing that the father did not disclose the existence of this woman, or of their child, until the second day of the final hearing.

13. The father’s first option for the children is unrealistic.

14. The father’s second option is that the children spend the school year with the father in Vanuatu and the school holidays with the mother. Although he has offered to provide free accommodation for the mother in Vanuatu if she wished to spend the school holiday time there, it is unlikely that she would be comfortable in accepting that offer. It is not a realistic option and would appear to be unsettling for the children.

15. The father’s third option is that the children live with him for four months each year in Queensland, either attending school by distance education or attending a school in Queensland for four months. Again, this proposal could see the children dividing their time between the education systems of Queensland and New South Wales, or partly attending a local primary school and then studying by distance education for four months of each year.

16. The best that can be said of the father’s third option is that it is the least unrealistic of his three proposals.

17. The mother has expressed concern that if the children were to spend time with the father in Vanuatu, it would be well-nigh impossible to bring them back if the father decided not to return them.

18. Where a party wishes to take children out of the jurisdiction temporarily, the Court must consider whether there is a risk that the child will not be returned to Australia.

19. This matter has been considered by the Full Court of the Family Court of Australia in Line & Line[52], where it was held that the Court must consider the degree of risk that the child or children will not be returned to Australia.

    [52] (1997) FLC 92-729

20. One consideration is whether the overseas country is a signatory to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“The Hague Convention”) (see s.111B of the Act). Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986 shows that Vanuatu is not a party to the Convention.

21. The fact that Vanuatu is not a party to the Convention on International Civil Child Abduction is a significant factor weighing against the children spending time in Vanuatu.

The best interests of the children – primary considerations

1. It appears that it is in the best interests of the children to have a meaningful relationship with both of their parents. They live with their mother, who has been their primary caregiver all their lives.

2. However, it is clear from the Family Report and the Family Consultant’s earlier Advice to Court that the children have a warm and positive relationship with their father. In his Advice to Court dated

   
   

   7^th October 2008, Mr W noted:

   Observation of the children [X] (born [in] 2003) and [Y] (born [in] 2005) demonstrated very warm and positive relationships with their father. Upon seeing their father at the Registry, both children ran over and jumped into their father’s arms, and greeted him very warmly. The emotional strength of their connection with him was immediately apparent, and the observations demonstrated that Mr Farrell is a person of very great emotional significance to them.  

3. The father did not travel to [D] for his interview with Mr W on

   
   

   11^th May 2009, so he was not seen with the children again before the Family Report was prepared. The father attended by telephone. Mr W said in the Family Report:

   There is no doubt in my mind that [X] and [Y] both have a profound need to maintain meaningful relationships with their father into the future.[53]

   [53] Family Report page 7 paragraph 34

4. A meaningful relationship has been defined by Brown J in Mazorski v Albright[54]  as “one which is important, significant and valuable to the child”[55].  The Family Consultant’s description of the relationship between the children and their father appears to be important, significant and valuable to them and it is in the children’s best interests for that relationship to continue.

   [54] (2008) 37 Fam LR 518; [2007] FamCA 520

   [55] (2008) 37 Fam LR 518 at [26]

5. Whilst the mother has made allegations of violence and abuse against the father, there is no evidence that the children ever witnessed any violence or that they have been in any way affected by it. As the father now lives in Vanuatu and only visits Australia occasionally, there does not appear to be any need to make any orders directed towards protecting the children from abuse, neglect or family violence.

The best interests of the children – additional considerations 

1. The children have not expressed any views directly and were considered to be too young to be interviewed for the purposes of the Family Report. However, the Family Consultant’s observations indicate a wish by the children to spend time with their father.

1. The nature of the children’s relationships with each parent appears to be positive. There is no evidence about the nature of their relationship with Mr B, the father’s brother, who appears to have some friendly involvement with the mother.

2. The children have never met the father’s de facto partner, Ms S, nor have they met their new half brother[56], [Z], who was born [in] 2010.

   [56] Incorrectly described by the father as the children’s “step brother”

3. There is some doubt in the father’s mind that the mother is willing to facilitate his relationship with the children by means of telephone communication. Whilst the father is living in Vanuatu, the telephone is a very important method of communication between the children and their father, and it is imperative that this communication be kept up.

4. The likely effect of the changes to the children’s circumstances proposed by the father in his various options would be significant and detrimental. Mr W said in his evidence that children who live in an arrangement where they spend substantial or significant time with both parents tend to do poorly if the parents cannot get on well together. The father’s proposal that the children spend time in different educational systems would appear to be potentially disastrous for their academic progress.

5. One significant consideration in this matter is that referred to in s.60CC(3)(e), the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.

6. It is a fact that the father has taken himself to live in Vanuatu whilst the mother continues to reside with the children in country New South Wales. This clearly results in difficulty in the father seeing the children on a regular basis, due to the need for him to travel by air each time he wishes to spend time with the children. Otherwise, he is left to communicating with the children by telephone, which has not always been simple. The father claims that the mother has not been cooperative in facilitating telephone communication with the children. The mother denies that allegation. 

7. There seems to be no doubt that the mother has the capacity to provide for the children’s emotional, intellectual and physical needs, as she is their primary caregiver.

8. The father appears to be emotionally committed to the children, but he is apparently paying nothing for their support and does not wish to do so unless they are actually living with him. His proposals for their education, by means of a combination of the New South Wales primary education system, distance education and two hours a day in school in Vanuatu, rotating every three months, demonstrates a lack of ability to provide for their intellectual needs.

9. The children are still young. [X] is a little girl who is nearly seven years old. She was born [in] 2003. [Y] is a little boy who is five years old. He was born [in] 2005. There is no evidence that they have not reached their developmental milestones. Their father is Australian and their mother has a Russian background.

10. The children are neither Aboriginal nor Torres Strait Islanders.

11. The mother appears to have a positive attitude to the children and to the responsibilities of parenthood, although the father is critical that she is not actively facilitating his communication with the children.

12. The father has been observed by Mr W interacting positively with the children. It is disturbing, however, that he was reported by the Family Consultant as having said, if he does not obtain the parenting orders that he seeks, such things as:

    I’m probably better off walking away and having more children (with someone else)…If I’m not allowed to have reasonable time with (the children), I will have to walk away from them…If I can’t have them in my house (in Vanuatu), they’re not my kids.[57]

    [57] Family Report pages 3 and 4, paragraph 16

13. Petulant comments such as these suggest that the father is unable to consider the best interests of his children if events do not go the way that he wants them to go. It is disturbing that the father has not seen his children from a previous marriage since 2004 or 2005 in the case of his teenage son and 2007 in the case of his teenage daughter.

14. The mother has made allegations of violence and abuse. However, the parties have been separated for several years and the father now lives in another country. There is no apprehended violence order in place and no need for one, it would appear.

15. The Court is required by s.60CC(3)(l) to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. Whilst it is difficult to predict the future, it would appear that the Court should consider orders that would be in the best interests of the children by ensuring that the mother did not fear that the father would not abduct the children or refuse to return them to her, and would ensure that the children were to spend meaningful and significant time with their father.

16. It is relevant to consider whether the children should be taken out of Australia at all, by either parent. The mother fears that the father would not return them if they were in Vanuatu, which is not a party to the Convention on International Civil Child Abduction.

17. The mother has said that, for her part, she had no plans to take the children out of the country. However, I am satisfied that it would be preferable for the parties to be ordered not take the children out of the jurisdiction and for the children’s names to be placed on the Airport Watch List. The names should not be on the Watch List, otherwise known as the PACE Alert System, indefinitely, but I am satisfied that a period of four years would be appropriate.

The extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

1. The mother has been the children’s primary caregiver and continues in that role. If she has not been facilitating the children’s telephone communication with the father, as he claims, then that is a failure on her part. However, the Family Consultant, when commenting in the Family Report on the children’s positive interaction with their father in October 2008, spoke favourably about the mother’s role:

   It is also perhaps to Ms Farrell’s credit that the children’s relationships with their father were observed to be as positive as they were, given the inherent unlikelihood the children could have sustained the strength of their attachments to their father over the preceding 18 months without her support and encouragement.

   
   

   Ms Farrell should be commended for this, and is encouraged to keep their father’s presence emotionally alive for the children, notwithstanding her own negative feelings towards him.[58]

   [58] Family Report page 7 paragraph 35

2. This would suggest that the mother has recognised the need for the children to have a positive relationship with their father.

3. The father has seen little of the children since he and the mother separated, and he went to live in Vanuatu. I am not satisfied that he has done as much as he should have done over that period of time to see the children, rather than just speak to them on the telephone.

4. It is unfortunate that the father chose not to attend the interview with the Family Consultant when he was preparing the Family Report. He would surely have been able to arrange some time with the children, and it would have been very useful for the Family Consultant to have seen him again in the presence of the children.

Events since the parties separated

1. Subsection 60CC(4A) requires the Court, in a case where the children’s parents have separated, to have regard to events that have occurred and circumstances that have existed since the separation occurred.

2. In this case, the mother appears to have formed some sort of a relationship with the father’s brother, Mr B. There is no evidence as to the extent of the relationship, although the father is very critical of it. Mr B is not on affidavit and was not presented for interview for the purposes of the Family Report.

3. The father, since the separation, has moved to Vanuatu and established himself in [L], in [S]. He has entered into a de facto relationship with a lady named Ms S, who has borne him a son. She apparently lives with him. The existence of this lady and the new child were not disclosed by the father until the second day of the final hearing. 

The parties’ proposals

1. I have already indicated that the father’s three options appear to be problematic in various degrees. Each proposal would appear to be detrimental to the children’s education and their general stability. This does not mean, however, that they should not spend a significant amount of time with their father, because he is clearly a significant figure in their lives.

2. The mother proposes that:

   a)She have sole parental responsibility for the children;

   b)The children should live with her;

   c)The children should spend time with the father:

   i)By telephone each Wednesday and Sunday;

   ii)For six blocks of up to five days in a row each year between the hours of 10:00 am and 4:00 pm, within a 100 kilometre radius of [D] City Post Office (called Stage One);

   iii)After Stage One is completed, for six blocks of five days to include overnight time, to be exercised within the State of New South Wales, conditional on the father surrendering his passport(s) and signing a written undertaking to return the children;

   iv)Changeover at Interrelate at [D]; and

   v)The father to give the mother not less than 28 days notice.

   d)The father should be restrained from removing the children form the Commonwealth of Australia;

   e)The children’s names to be placed on the Airport Watch List; and

   f)Other ancillary orders.

3. The Independent Children’s Lawyer proposes orders that are somewhat less restrictive than those proposed by the mother. He proposes that:

   a)The children should live with the mother;

   b)The mother should have sole parental responsibility for the children;

   c)The children should spend time with the father:

   i)For one week in each of the mid-year school holidays, in Australia;

   ii)For two weeks during the long school holidays, in Australia; and

   iii)Such other periods as the parties agree.

   d)That the children should communicate with the father by telephone each Monday, Tuesday, Friday and Saturday;

   e)That the father should notify the mother of any medical issues involving the children whilst they are in his care;

   f)That the mother should authorise the children’s school or schools to forward copies of the children’s school reports and other relevant documents to the father;

   g)That the mother should notify the father of any major illness suffered by the children or any hospitalisation, make available copies of any medical reports and authorise the hospital or medical practitioners concerned to give the necessary information to the father.

   h)That both parties be restrained from removing the children from the Commonwealth of Australia;

   i)That the children’s names and other details be placed on the Airport Watch List;

   j)Liberty to apply on seven days’ notice; and

   k)That the children spend time with the father between 10:00 am and 4:00 pm on the three Saturdays and three Sundays immediately following the hearing.   

Conclusions

1. The mother’s proposals are no doubt based on her distrust of the father and her fears that he may attempt to remove the children from Australia and not return them. However, these proposals would seem to be unduly and unnecessarily restrictive, bearing in mind that there is evidence that the children have a warm and positive relationship with the father and that he is a significant figure in their lives.

2. He seeks to have some overnight time with the children, which would give more normalcy to his interaction with them.

3. The Family Consultant, Mr W, expressed the view in the Family Report that the conditions sought by the mother were “very restrictive”[59]  and appeared to be “overly restrictive”.[60] He described them as “a significant interference in the children’s time with their father”.[61]

   [59] Family Report page 7 paragraph 36

   [60] Ibid paragraph 37

   [61] Ibid

4. In his oral evidence, Mr W said, in answer to a question from

   
   

   Mr Berry, that he could not give any reasons why the children should not spend overnight time with their father. Whilst he conceded, in cross-examination by Mr Battley, that there may be some benefit in the father re-establishing his relationship with the children before overnight time with him occurred, he would not “necessarily support six occasions” of daytime only contact before the children were with their father overnight.[62]

   [62] Transcript 24.2.2010 page 47

5. The Family Consultant’s opinions on this subject are persuasive, and I am satisfied that the mother’s proposals about the time that the father should spend with the children are overly restrictive and not necessary to protect the children from harm. As I indicated earlier, I made some interim orders in a brief judgment on 25^th February 2010, after all the evidence and submissions had been taken, that the father should spend time with the children over the next two weekends whilst he was still in Australia (Farrell & Farrell[63] at [13]-[16]).

   [63] Supra

6. Those orders provided that, until further order, the children were to spend time with the father from 10:00 am to 4:00 pm on each of the following days:

   a)Saturday 27 February 2010;

   b)Sunday 28 February 2010;

   c)Saturday 6 March 2010; and

   d)Sunday 7 March 2010.

7. In my view, those four days spent by the father with the children would have been sufficient for him to re-establish his relationship with them, so that orders can now be made that he should spend time with them for periods of a week at a time during the year and for two weeks during the Christmas/January School holidays. That time should be spent in Australia. I am not of the view that the children should go to Vanuatu, noting that it is not a Convention country and the situation in the father’s household is somewhat of an unknown quantity.

8. The parties are estranged and the father lives out of Australia. It does not appear that equal shared parental responsibility is at all viable, and I am not satisfied that it is in the best interests of the children for the parents to have equal shared parental responsibility. The mother is to have sole parental responsibility.

9. I am satisfied that the Court should make orders along the lines of those proposed by the Independent Children’s Lawyer.

Property proceedings

1. In considering the mother’s property application, I intend to follow the procedure set out by the Full Court of the Family Court in its decision referred to earlier, In the Marriage of Hickey.[64] As will be seen, there are some difficulties in identifying the assets, due to the relative paucity of information available.

   [64] Supra

2. The mother’s position has been modified somewhat, as a result of the evidence, so that she now seeks an order that within 42 days the father pay to her the sum of about $60,000.00 to $70,000.00. She had previously sought an order in the rather specific amount of $157,500.00.

3. The father opposes this order and seeks orders that the parties retain the assets that they presently have in their possession. In his Response filed on 28^th May 2008 he sets out this proposed order and comment:

   Each party keep what assets they have right now! ([Ms Farrell] would have about $130,000.00, which is about the percentage (37%) amount of money her lawyers asked for by email some months ago.

The parties’ property, liabilities and financial resources

1. The first step in the four-step process is to make findings as to the identity and value of the parties’ property, liabilities and financial resources at the date of the hearing.[65]

   [65] See Hickey at [39]

2. The evidence from both sides as to their property, liabilities and financial resources is relatively sparse.

3. The mother filed a financial statement when she commenced proceedings in the [N] Local Court on 14^th September 2007. In that financial statement, she disclosed that she owned real estate in [K], which is a city in Russia. However, she gave its value as “$N/K”, although in her affidavit of 17^th July 2009 she annexed a document giving a value of 33404 roubles in 2006[66]. She also disclosed a bank account with a balance of $2400.00, an interest in a partnership (value “$N/K”), and furniture and chattels valued at $2000.00. She disclosed no liabilities or financial resources.

   [66] Annexure “H”

4. In her affidavit filed on 30^th July 2008 the mother deposed that the father had transferred the sum of $11,000.00 out of one of their bank accounts after being served with her application in September the year before. She also deposed that the father had advertised that he was a real estate agent trading under the name “[F] Realty” in [S], and annexed a copy of an advertisement to her affidavit.

5. In her affidavit filed on 17^th July 2009, the mother annexed various financial documents relating to the father and deposed the following:

   a)The father sold a vacant block of land at [G], Queensland for $114,000.00 in March 2006 and the proceeds of sale were deposited into an account in his sole name;[67]

   b)The father sold another block of land in March 2006 for $202,500.00[68] and the proceeds of sale were deposited into his bank account;

   c)He purchased a large amount of goods of unspecified value from overseas countries for use in his business in Vanuatu;[69]

   d)In July 2007 the father sold a motor vehicle used by the parties during the marriage for $10,000.00 and deposited the proceeds into a bank account in his name;

   e)The father had an amount of approximately $187,000.00 in two bank accounts in Los Alamos, New Mexico;[70] and

   f)The mother prepared a statement setting out her estimate of the assets which is annexed to her affidavit.[71] 

   [67] Copy contract Annexure “C”

   [68] Copy contract Annexure “D”

   [69] Affidavit [Ms Farrell] sworn 17.7.2009 at paragraph [20]

   [70] Annexure “F” consists of bank statements for accounts [1] and [2] dated 31 Dec 2006 and 9 Dec 2006 respectively showing balances of $US110,589.60 and $76,498.60

   [71] Annexure “G”

6. The statement annexed to the mother’s affidavit shows the following assets and values:

   a)Proceeds of sale of small block of land at [G]     $114,000

   b)Proceeds of sale of large block of land at [G]      $$202500

   c)Stock shipped to Vanuatu  $5891.00

   d)Proceeds of sale of Ford car  $10,000

   e)Bank deposits in the USA  $123,600[72]

   f)TOTAL  $455,991

   [72] Australian dollars

7. The father filed a financial statement on 28^th May 2008. In that financial statement, he set out his property as:

   a)The [C] building in [L], Vanuatu              $110,000

   b)Vacant land in [L]  $19,000

   c)Account at the National Australia Bank  $20

   d)Account at the National Vanuatu Bank  $5670

   e)Account at the Bank of America  $760

   f)Cash on hand  $2000

   g)Account at Los Alamos Bank  $357

   h)1985 Ford car  $1400

   i)Other property  $13000

   j)Other unspecified property  $67000

8. The father gives a total value of $239144.00 for those items, although my own calculation only comes to $219,207.00.

9. The father noted one liability in his financial statement, a debt owing to an organisation called “[J], LA, USA” in the sum of “895 USD”. There is no evidence before the court as to what the Australian dollar value of this sum was at the time. The official currency of this country is the Australian dollar, and if the father chooses to quote a debt owing in the currency of another country without providing an Australian dollar equivalent, he can hardly complain if the court disregards it. 

1. However, that information was not up-to-date at all. The mother’s financial statement was filed on 14^th September 2007 and her two affidavits were filed on 30^th July 2008 and 17^th July 2009. The father’s financial statement was filed on 28^th May 2008.

2. The father was cross-examined about his assets by Mr Battley, who submitted that the assets should be valued in this manner:

   a)The [C] Building  $100,000.00

   b)Eight motor vehicles  $35000.00[73]

   c)Tools  $2500.00[74]

   d)Cash at bank  $1500.00

   e)Cash on hand  $2000.00

   f)Cash in safe in Vanuatu  $2000.00

   g)Imported goods  $50,000.00

   TOTAL$193000.00

   [73] approximately

   [74] Again, approximately

3. I note that Mr Battley, in his submission, referred to a total of only about $180,000.00, but I am satisfied that the higher figure is correct.

4. The financial information provided by the parties is disappointingly vague and out of date. The mother owns real estate in [K], in Russia, but gives no estimate of its value at all. The father’s figures have been criticised by the mother’s counsel, and the mother alleges that he has not made a full disclosure. That may or may not be so, but the court is left in the position that it can only give a rough approximation of the asset pool.

5. With that qualification, I find the gross value of the matrimonial assets to be the following:

   ·Applicant’s bank account  $2400.00

   ·Applicant’s furniture and chattels  $2000.00

   ·[C] building, [S],  Vanuatu  $1000,000.00

   ·Eight motor vehicles  $35,000.00

   ·Respondent’s tools  $2500.00

   ·Respondent’s cash at bank  $1500.00

   ·Respondent’s cash on hand  $2000.00

   ·Cash in safe in Vanuatu  $2000.00

• Respondent’s imported goods in Vanuatu            $50,000.00

TOTAL$197,400.00

1. No account has been taken of the applicant’s apartment in [K] because there is no evidence of its value, apart from the fact that it was valued at 33,404 roubles in 2006.

2. There is no evidence of any liabilities, although the applicant mother will no doubt incur a liability for legal costs. No account has been taken of the debt claimed by the respondent in American dollars in his financial statement filed on 28^th May 2008.

3. There is no evidence of any financial resources.

4. Thus, I find the net matrimonial assets to be $197,400.00, which is a very approximate figure.

The parties’ contributions

1. The second step in the process is for the Court to identify and assess the contributions of the parties within the meaning of s.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties.[75]

   [75] See Hickey (supra) at [39]

2. Paragraph 79(4)(a) of the Act requires the Court to take into account the financial contribution made directly or indirectly on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage. The evidence is clear that the applicant had very little in the way of assets at the time of the marriage, except the apartment in [K], where there is no evidence as to its value. She has stated in her affidavit filed 14 September 2007 that she had made financial contributions to the matrimonial assets and property, but provides no details. In my view, the evidence shows that most of the assets were brought to the marriage by the respondent.

3. Paragraph 79(4)(b) speaks of the contribution (other than the financial contribution) made directly or indirectly by or on behalf of a party to a marriage or a child of the marriage to the acquisition, conservation or improvement of any of the parties to the marriage.

4. In this case, this should be seen in the light of the matters referred to in paragraph 79(4)(c) of the Act, which speaks of the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent. 

5. The parties were married [in] 2002 and separated on 28^th June 2007. Thus, they were together for a little over five years. The two children were born [in] 2003 and [in] 2005. It is clear that the relationship was one where the applicant mother was the homemaker and parent to two young children and the father was the one who attended to business affairs. There is no evidence of any significant financial contribution by the applicant mother, either directly or indirectly.

6. It is relevant, however, that the children have lived with the applicant mother since the parties separated in 2007, and she has supported them ever since without any contribution by the father. It is well established that contributions made to the welfare of the family include contributions made after the parties have separated (see In the Marriage of Williams[76]).

   [76] (1984) 9 Fam LR 789; FLC 91-451

7. Taking into account the fact that the marriage lasted for just over five years, and noting the paucity of the evidence about financial matters generally, I am satisfied that the applicant mother’s contribution can be assessed at 25% and the respondent father’s contribution can be assessed at 75%.

Other relevant factors

1. The third step for the Court is to identify and assess the relevant matters referred to in s.79(4)(d), (e), (f) and (g), including the matters referred to in s.75(2), so far as they are relevant, and determine what adjustment, if any, should be made (see Hickey at [39]).

2. Under s.79(4)(d), the court is required to consider the effect of any proposed order upon the earning capacity of either party to the marriage.

3. It is unlikely that the mother’s earning capacity will be affected by an order requiring the payment to her of a sum of money. However, the respondent father has submitted that if he were forced to give away even $20,000.00 it would go close to destroying his business. He told the Court:

   Now, if I was to give away 100,000, something I could not physically do even if I wanted to, then I would be forced to sell, losing most of the rest of the money and (it) is very difficult selling in Vanuatu now. Forced sales are terrible and then I would be forced to leave Vanuatu…[77]

   [77] Transcript 25.2.2010 page 37 at lines 9-12

4. It is not hard to understand that a requirement on the father to pay a substantial sum would have an effect on his earning capacity, even if only in the short run, as it would deprive him of some working capital.

The matters referred to in subsection 75(2) so far as they are relevant

1. Under s.79(4)(e), the Court must consider any relevant matters referred to in subsection 75(2) of the Act.

2. I consider that the relevant matters s.75(2) are:

   a)The age and state of health of the parties:

   i)the applicant mother was born [in] 1976 and is therefore 33 years old

   ii)she appears to be in good health;

   iii)the respondent father was born [in] 1961 and is therefore 49 years old;

   iv)he, too, appears to be in good health.

   b)The income, property and financial resources of the parties and their physical and mental capacity for gainful employment:

   i)The applicant mother has assets worth only about $4,400.00, except for her apartment in [K] whose value is unknown; she has a degree in accountancy from Russia which is not recognised in Australia and has obtained a Certificate III in Accounts Receivable, Accounts Payable and Book-keeping, and gave evidence that she was intending to look for work; and

   ii)The respondent father has assets of approximately $193,000.00 and has operated an importing business in Vanuatu, which appears not to have made a profit as yet; 

   c)The mother currently has the care and control of the two children of the marriage, who are both under the age of 18 years;

   d)The mother has to support herself and the children, whilst the father has to support himself; he also has an infant child from his new relationship in Vanuatu, and I am satisfied that he has a duty to maintain that child;

   e)There is no evidence that either party has a responsibility to support another person; the father’s de facto partner Ms S is, on the evidence, on maternity leave from her current full-time employment;

   f)There is no evidence that either party is eligible for a pension, allowance or benefit;

   g)The applicant mother’s standard of living may have deteriorated, as she deposed in her affidavit of 17^th July 2009 that she continued to “subsist largely on the day-to-basis”.[78] The respondent father’s standard of living would appear to be unchanged, based on the limited evidence before the Court.

   [78] Paragraph [30]

   h)The payment of maintenance is not a relevant consideration;

   i)The matter under s.75(2)(ha) relating to the ability of a creditor to recover a debt is not relevant;

   j)The payment of maintenance is, again, not a relevant consideration;

   k)The marriage had a duration of a little over five years; the mother has the two young children of the marriage in her care, which affects her earning capacity;

   l)The mother intends to continue her role as a parent but is seeking employment;

   m)The mother is cohabiting with children of the marriage and supporting them; the father is living with his de facto partner and their child and has given no evidence about the financial circumstances of that arrangement;

   n)I propose to make an order requiring the respondent to pay a sum of money to the applicant by way of settlement of property;

   o)The only other fact or circumstance that the justice of the case requires to be taken into account is the fact that the respondent father has not paid any child support to the mother and, from his evidence, does not intend to (s.75(2)(na)); and

   p)There are no financial agreements binding on the parties; and

   q)There is no Part VIIIAB financial agreement binding on either party to the marriage.

3. In my view, the fact that the applicant mother has the two children of the marriage in her care and is supporting them without any financial contribution from the respondent father is a factor to be taken into account. On the evidence before me I am satisfied that it is unlikely that he will pay child support voluntarily. He normally resides in Vanuatu and has shifted his assets there.

4. Accordingly, I am satisfied that this calls for an adjustment in the applicant’s favour of ten per cent (10%).

An order that is just and equitable

1. The fourth step in the process is to consider the effect of the above findings and determination and resolve what order is just and equitable in all the circumstances of the case (see Hickey at [39]). Subsection 79(2) of the Act provides that the Court shall not make an order under s.79 unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.

2. I have found the value of the matrimonial assets to be $197,400.00, of which the applicant mother holds assets worth $4.400.00 and the respondent father has the balance, namely $193,400.00. If the mother were to receive 35% of those assets, her share would amount to $69,090.00, of which she already holds $4,400.00, and the respondent would retain the balance.

3. Thus the respondent would be required to pay to the applicant the sum of $64,690.00. However, this does not take into account the fact that the applicant mother has an apartment in Russia, which is of some value, even if not immediately realisable.

4. In my view, some allowance should be made for this, so I am satisfied that it would be just and equitable to reduce the applicant’s entitlement to $55,000.00. Thus, I propose to order the respondent will be required to pay to the applicant the sum of $50,600.00.

5. Again, whilst the applicant mother seeks an order that the respondent father should pay her within 42 days, I am satisfied that this would not be just and equitable, as it would be likely to have an impact on the respondent’s working capital and consequently have a potentially serious effect on his earning capacity.

6. Accordingly, I am of the view that the respondent should be required to pay to the applicant under s.79 of the Act the amount of $50,600.00 by instalments as follows:

   a)As to the sum of $20,000.00 within three months; and

   b)As to the balance of $30,600.00 within six months from the date of these orders.

7. This should enable the respondent to arrange the necessary finance without crippling his business and losing his livelihood.

I certify that the preceding two hundred and forty-one (241) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: 

Date:  18 November 2010