Galos and Galos and Anor
[2018] FCCA 3663
•12 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GALOS & GALOS & ANOR | [2018] FCCA 3663 |
| Catchwords: FAMILY LAW – Parenting & Property – Interim arrangements for child aged 6 years and eight months – arrangements for child to spend time with father and paternal grandparents – father incarcerated interstate – father seeks to spend time with child in custodial institution – electronic means of communication – paternal grandparents seek regular time with child – matters to be considered – application for interim property settlement – modest and uncertain property pool – paternal grandparents alleged significant sums owed to them – matters to be considered – just and equitable. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 26, 60B, 60CA, 60CC, 61DA, 64B, 65C, 65DAA, 65DAC, 75, 79, 80 |
| Cases cited: Goode & Goode (2006) FLC 92-286 |
| Applicant: | MS GALOS |
| First Respondent: | MR GALOS |
| Second Respondents: | MR A GALOS & MS B GALOS |
| File Number: | ADC 980 of 2018 |
| Judgment of: | Judge Brown |
| Hearing date: | 26 November 2018 |
| Date of Last Submission: | 26 November 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 12 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Pyke QC |
| Solicitors for the Applicant: | SE Lawyers |
| Counsel for the First Respondent: | Ms Read |
| Solicitors for the First Respondent: | Angela Ferdinandy |
| Counsel for the Second Respondents: | Mr Bowler |
| Solicitors for the Second Respondents: | Carmen Wood & Associates |
ORDERS
The child [X] born [date] 2002 spend time with the paternal grandparents Mr A Galos and Ms B Galos as follows:
Each Saturday for a period of twelve (12) consecutive weeks (commencing on Saturday 15 December 2018 and concluding on Saturday 2 March 2019) between the hours of 10:00am and 5:00pm;
Thereafter and until further order, commencing on Saturday 16 March 2019 on each alternate weekend from 10:00am on the Saturday until 5:00pm on the Sunday.
For the purposes of time spent referred to in paragraph 1(a) hereof, the time take place at all times in the presence of one or other of the second respondents and may include other members of the child’s paternal family.
For the purposes of all time spent pursuant to these orders, an agreed member of the second respondent’s family collect the said child at the commencement of the time spent from the home of the mother and deliver the child at the conclusion thereof to the home of the mother.
Each of the parties (including the paternal grandparents) is restrained and an injunction is hereby granted restraining them from:
denigrating, name calling or verbally abusing the other parties to or within hearing of the child or permitting any other person to do so;
discussing these proceedings or initiating discussions about the matters pending against the father to or with the child or in the presence or hearing of the child or permitting any other person to do so.
The wife forward a copy of the child’s school report to the husband at her expense when it is to hand.
The wife send a selection of photographs of the child to the husband at least once per month by means of the parties’ respective smart phones.
The parties are restrained and an injunction issue restraining each of the parties concerned from removing [X] from an area within a fifty kilometre radius of the Commonwealth Law Courts Building in Adelaide.
The balance of the proceeds of the sale of the Property A property, after payment of the agreed distributions of $50,000.00 to each the husband and wife, and payment of the child’s school fees at School 1, be paid into an interest bearing account in the joint names of the husband and wife.
The parties are restrained and an injunction issue restraining them from disposing of, selling, encumbering or transferring the Motor Vehicle K currently in the possession of the second respondents.
Pursuant to section 11F of the Family Law Act the wife and paternal grandparents attend a family dispute resolution conference at the Federal Circuit Court of Australia with a family consultant on 5 March 2019 at 9:30am, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto.
Pursuant to section 26 of the Federal Circuit Court of Australia Act 1999 the parties, including the paternal grandparents, and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 13 February 2019 at 11:00am.
Unless otherwise exempted from payment, the applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.
Pursuant to section 106A of the Family Law Act that in the event that either party refuses, is unable or neglects to comply with the provisions of these orders the Registrar of the Federal Circuit Court of Australia at Adelaide is hereby appointed to execute all deeds and documents in the name of the defaulting party.
Further consideration of this matter is adjourned to 5 April 2019 at 9:30am for directions.
IT IS NOTED that publication of this judgment under the pseudonym Galos & Galos & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 980 of 2018
| MS GALOS |
Applicant
And
| MR GALOS |
First Respondent
And
| MR A GALOS & MS B GALOS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Ms Galos “the wife” and Mr Galos “the husband” are the parents of [X] born [date] 2012. Also involved in the proceedings are Mr A Galos and Ms B Galos, who are [X]’s paternal grandparents.
The husband is currently remanded in custody at the Town M Gaol in Sydney, New South Wales charged with criminal offences relating to the trafficking and importation of a significant quantity of methamphetamines and cocaine. He has been refused bail in the Supreme Court of New South Wales.
As is his entitlement, the husband has been reticent to provide details regarding his various criminal charges. However, the wife understands that he intends to plead guilty to a count relating to the possession of methamphetamines but will contest the other charges against him. When his trial will be is uncertain. However, it would be naïve to consider anything other than that he is likely to be in custody for the reasonably foreseeable future.
In these circumstances, complicated and emotionally charged issues arise as to how [X] may maintain a sense of connection to both his father and wider members of his family, particularly his paternal grandparents.
Obviously, these issues have a long way to play out and, at this juncture, there has been no opportunity for the court to gather extensive evidence, particularly in the form of an independent and expert assessment of [X] and his relationship with each of his parents and others likely to be significant to him, especially his grandparents or to test the evidence which is currently available.
In addition, further controversies arise between the parties regarding the composition of the relevant pool of property for division between the husband and wife now that it seems clear the marriage between them is over and they need to finalise their financial relationship with one another.
Essentially, the paternal grandparents assert that they are owed a significant sum of money by the parties and the wife herself has misappropriated items of property, in the form of jewellery, worth a great deal of money. Necessarily, the wife, on the one hand and the paternal grandparents on the other, do not have a warm view of one another, as a consequence of these contentious matters.
To the contrary, as this brief introductory summary indicates, the relationships between the various actors in these proceedings are extremely strained and acrimonious. This is not likely to be helpful for [X], who must be viewed as a potentially emotionally vulnerable child, given his father’s current circumstances, which must have up-ended [X]’s life.
Background
The husband has been in custody since [date] 2017. In the early stages of his confinement, the wife was willing to take [X] to see his father, at [Prison], on three or four occasions. She asserted that she did so because she did not believe the husband had committed the offences in respect of which he had been charged. This is no longer her view.
In addition, it is also her position that [X] found it distressing to visit the prison and, in these circumstances, she does not believe it would be in [X]’s best interests to visit his father, whilst he is in custody. She herself is not willing to facilitate any such visits, which she could not in any event afford.
In all these circumstances, the wife urges the court to take a cautious approach in regards to how [X] maintains his relationship, with his father, in this difficult situation. At present, due to his status as a remand inmate, the husband has access to electronic means of communication and can WhatsApp individuals outside the prison, including [X], whenever he wants. The wife submits that this is an appropriate mechanism for [X] to maintain his relationship with his father at this stage.
The husband is concerned that this proposal will only enable him to have a stilted and truncated relationship with [X]. The wife concedes that, given his tender years, [X] is often distracted when his father contacts him and is not amenable to any lengthy exchanges with his father via such electronic means. In these circumstances, for obvious and understandable reasons, it is the husband’s preference that [X] be brought to the remand centre so that the two can see each other face to face.
It is the paternal grandparents’ position that, given the unpalatable reality Mr Galos will not be in a position to play an active daily role in [X]’s life for a significant period of time, it is imperative that the child has a sense of connection to his paternal family through regular and significant periods of engagement with them. In this context, it is their position that they are the best placed persons to provide this connection and it should occur at their comfortable home in suburban Adelaide.
In this context, the paternal grandparents propose that they spend time with [X] each Saturday, for a period of twelve weeks, between 10.00am and 5.00pm. This period would conclude in mid-February of 2019. Thereafter, they would wish to be able to spend time with [X] on alternate weekends from 10.00am on Saturday until 5.00pm the following Sunday.
It is the wife’s position that [X] does not know his paternal grandparents particularly well and, at the present time, for reasons relating to the incarceration of the husband, it is her case that there is significant ill-will between her and the paternal grandparents. In these circumstances, she is fearful that [X] may suffer some form of psychological damage if she is demeaned or denigrated to [X] by either Mr or Mrs Galos or is otherwise exposed to their hostility for her.
In these circumstances, she proposes that the paternal grandparents spend one occasion per month, with [X], from 12.00pm until 4.00pm, with the time to take place at a play café and be subject to her supervision. From the grandparents’ perspective, this time is woefully inadequate and will not allow [X] to interact with his paternal uncles, aunts and cousins, whom they would propose visit during their time spent with [X].
The husband is critical that the wife is not supporting his relationship with [X]. He is also critical of her parental capacity and alleges that, in the past, it has been compromised by her own use of methamphetamines and cocaine. In these circumstances, he seeks orders which can be summarised as follows:
·He have telephone communication with [X] no less than four times per week;
·The wife ensure that all written correspondence from him to [X] be forwarded on to the child;
·The wife facilitate [X] writing to him once a fortnight and enclose information and photographs in respect of his activities;
·The wife provide him with a two monthly bulletin in respect of [X]’s activities at school and extramurally together with any salient medical information;
·The mother facilitate the child spending time with the father in prison once every two months with the paternal grandfather to facilitate the travel between Adelaide and Sydney, which would be anticipated to take no less than two days;
·The mother ensure the child has a photograph of his father near his bed;
·The parties be restrained from denigrating any of the other parties to these proceedings or discussing the proceedings generally, including the husband’s criminal proceedings, with [X] or in his presence;
·The mother undergo a hair follicle test, at her expense, to determine the extent, if any, of any illicit drug use on her part.
The parties are now extremely critical of one another and their positions have become increasingly polarised. This has led to each of them making significant allegations of misconduct against the other parties concerned in the case. These allegations relate not only to the parenting and care of [X] but also to issues relating to the division of property.
The wife commenced these proceedings on 14 March 2018. She sought final orders that [X] live with her and she have sole parental responsibility for him. Her application was silent so far as the child spending time with his father was concerned. She also sought that the parties pool of assets be divided 80/20% in her favour.
Her statement of financial circumstances indicated that the parties’ most significant asset was their former family home situated at Property A, which was acquired in 2007. She estimated it to be worth around $900,000.00. It is subject to a mortgage in favour of the Bank 1 in an amount of around $420,000.00. The wife’s application sought the expeditious sale of the property as she could not afford to pay the mortgage and it was in arrears.
The husband and wife began to live together in 2005 and married on [date] 2010. They are not divorced. The wife assert that they separated in November of 2016 and she and [X] moved out of the Property A property into rented accommodation. The husband does not agree asserting the parties were still living together when he was arrested, at the mother’s rented home, which police searched for drugs. The husband was subsequently extradited to New South Wales.
On 11 June 2018, the paternal grandparents applied to be joined as parties to the property proceedings. Mr A Galos Senior deposed that he had a professional background as an [employment omitted] in both Town N and Adelaide. The husband was responsible for managing his [business] in Adelaide.
In this context, Mr A Galos Senior alleges that, in 2008, he lent his son a sum of somewhere between $116,000.00 and $140,000.00 which was represented by jewellery owned by him, which the husband subsequently sold, depositing a significant sum into the parties’ joint account with the Bank 1.
Whether this sum was subsequently utilised to pay down the mortgage on the Property A property is unclear to Mr A Galos Senior but he regards the sum as a loan to the parties and he has demanded repayment on several occasions.
On the other hand, it is the wife’s position that she predominantly funded the acquisition of the Property A property through a motor vehicle injury claim, which resulted her being paid compensation of around $300,000.00. Neither party is currently in a position to provide any documentary evidence to support his/her claim regarding the provenance of the funds in question.
The wife agrees that a sum of $116,000.00 was deposited into her joint account with the husband in 2010. However, she asserts that the source of the cheque was SAPOL, who had seized the money when they raided the parties’ home and subsequently charged the husband with drug offences, which were ultimately not pursued leading to the return of the seized money. In these circumstances, the wife disputes that she is indebted to the husband’s parents in any way.
Mr A Galos Senior also alleges that his son misappropriated significant sums from the business, which came to light when the ATO conducted an audit. He also seeks the return of this money, which he estimates to be in the vicinity of $60,000.00.
It is also his position that the wife has acknowledged to him her acceptance of the fact that the paternal grandparents should be repaid the sum of around $200,000.00 prior to any division being made of the matrimonial property. In general terms, Mr A Galos Senior has no objection to the sale of the Property A property, if his and his wife’s interests are safeguarded.
The husband, in his affidavit material, has indicated his view that the parties are indebted to his parents in the sum of $200,000.00, as his father has deposed. The wife’s position is that, if the husband did defraud his parents, whilst running the business, she had no knowledge of it and there was no loan of $116,000.00.
The wife commenced these proceedings in March of 2018 seeking orders in respect of [X] and an 80/20% division of marital assets in her favour. She estimated the pool to be divided to be somewhere in the vicinity of $250,000.00 net. At the time of her application she was engaged in home duties.
The asset pool calculated by her included a valuable Motor Vehicle K, which she asserted the husband owned and which was said to be worth $145,000.00. The wife asserted the paternal grandmother had assumed possession of the vehicle and she feared it would be sold.
In these circumstances, on an interim basis, the wife sought the sale of the Property A property and the immediate run of the Motor Vehicle K to her possession. On 24 April 2018 orders were made for the service of her application by mail on the husband at the [Prison].
On 18 June 2018, the paternal grandparents sought to intervene in the proceedings in respect of property only. In his supporting affidavit, the paternal grandfather did not seek any orders in respect of [X] but focusses only on the property matters detailed above.
In respect of the Motor Vehicle K, he alleged that his son had sold him the vehicle some nine years previously for $26,000.00. He asserted that it was the wife’s parents who had removed the vehicle from him and he had persuaded them to return it to him.
In addition, the paternal grandfather alleged that the wife had retained several items of jewellery of some significant value, which were the property of his business. He also alleged that the wife had sold a valuable Motor Vehicle L owned by his son, whilst he had been in custody.
In his formal response, the husband seeks a 60/40% division of property in the wife’s favour to be secured in part through the sale of the Property A property. He confirms his father’s evidence that Mr A Galos Senior permitted the wife to wear valuable jewellery, at social events, to promote his business. In this context, he supports his father’s assertion that the wife has retained items of jewellery which are not her property.
He also asserts that the wife retains an engagement ring worth $250,000.000 and his Rolex watch. He also alleges that she has been in the thrall of an addiction to drugs for the past few years, which has been deleterious for [X]. It is on the basis of this assertion he seeks that the wife undergo a hair follicle test to ascertain her level of illicit drug use of the past few months, whilst he has been imprisoned in respect of charges of drug trafficking.
In these circumstances, prior to his incarceration the husband claims to have provided a very significant degree of care for the child because the wife was incapacitated from time to time. He wishes to have access to funds likely to be released from the sale of the Property A property to fund his criminal proceedings. He estimates his cost to be anywhere between $40,000.00 and $300,000.00.
With the agreement of all concerned, the Property A property was placed on the market in mid-2018. It was agreed that the proceeds of sale be utilised to discharge the mortgage and pay [X]’s outstanding school fees. Any balance was to be paid into an interest bearing account. An injunction was made restraining the sale of the Motor Vehicle K.
On 13 September 2018, it was further agreed between the husband and wife that each would receive an interim settlement of property of $50,000.00, when Property A sold.
The wife denies misappropriating valuable jewellery and handbags or a Rolex watch. She asserts that the Motor Vehicle K is part of the parties’ matrimonial asset pool. It is her case that Mr and Mrs Galos Senior have acted in an aggressive way towards her since the husband’s incarceration and blame her for the fact that his Supreme Court bail application was unsuccessful.
The Property A property has now sold for $851,000.00 and after payment of the mortgage secured against it will net $370,742.17. Settlement is imminent. The parties now disagree what should be done with the proceeds. It was against this highly contentious background that, on 6 November 2018, the paternal grandparents brought their application to spend time with [X].
In support of the paternal grandparents’ application to spend time with [X], the paternal grandfather deposes as follows:
·They have a comfortable home in Property B;
·They have a high degree of involvement in the lives of their other grandchildren but have not seen [X] since January 2018;
·He assisted the husband with caring for [X] from time to time;
·[X] is close to his paternal cousins;
·The wife is estranged from her own family;
·[X] is currently not experiencing a warm extended family life, which is emotionally deleterious to him;
·The relationship between the husband and wife was toxic and he observed the wife to become emotionally deregulated and physical towards the husband in 2017.
In support of his and his wife’s application, Mr A Galos Senior deposes as follows:
“I accept that it has been many months since [X] has spent time with Ms B Galos and I. I am therefore proposing a regime whereby [X] visits with us for day periods only each Saturday for the first three months. Thereafter, my wife and I would seek to spend time with [X] on a fortnightly basis, i.e. overnight on alternate weekends. I am hopeful, given the limited supports which are presently viable to the mother, this might also have the benefit of providing her with some respite and some comfort in the knowledge that despite the tumultuous end to her relationship with Mr Galos, our family wishes to offer our grandson as much as we can in the way of practical support, love and affection and such other assistance as we may reasonably be able to provide their family.”[1]
[1] See affidavit of paternal grandfather filed 6 November 2018 at [35]
The paternal grandparents’ application is silent so far as interim property proceedings are concerned. On a final basis they seek repayment of $233,142.21 and the return of some specified items of jewellery. The paternal grandfather has provided a statement of financial circumstances, which indicates that he and his wife are comfortably off financially, owning several pieces of real estate, including of a commercial nature and their business. As one of their assets, they have included formal and informal loans to Mr Galos and Ms Galos in an amount of $233,100.00.
In her most recent affidavit, the wife seeks to have sole parental responsibility for [X] given the unavailability of the husband to take part in decision making in respect of him. She denies being a drug user and that therefore there is no utility in a hair follicle test being undertaken.
In respect of the paternal grandparents’ application in respect of [X], she deposes as follows:
“I say that there is no substance to the various allegations made against me by the paternal grandfather. I appreciate that [X] needs to maintain a relationship with the husband’s side of the family and that the husband is in all likelihood going to be incarcerated for a substantial period of time. I am prepared to facilitate [X]’s relationship with the second respondents, but I say that such time must be supervised by me given their false allegations and high levels of hostility against me. I am most concerned that in my absence, the paternal grandparents would denigrate me and tell untruths about me to [X], thereby causing him stress.”[2]
[2] See affidavit of the wife filed 20 November 2018 at [20]
In respect of the property proceedings, at an interim stage, the wife seeks a further distribution of $50,000.00 in her favour; and the continuation of the injunction on the sale of the Motor Vehicle K. She opposes any payment being made in favour of the paternal grandparents and asserts she cannot deliver up any items of jewellery because she does not have them.
The nature of an interim hearing
Interim hearings very often arise against a background of serious family crisis and controversy. Obviously this is the situation in the present matter. Given the nature of the particular crisis involved, the court may be required to make any necessary determination expeditiously.
The need for such expedition dictates that the hearing concerned should be truncated. As a consequence, such a shortened hearing does not allow any extensive examination of the relevant evidence, particularly through a process of cross-examination.
Given the nature of the hearing, the various factual issues in dispute, between the parties, cannot be resolved in the context of these interim proceedings. In addition, at the interim hearing stage it is rarely the case that there has been sufficient time for any independent and expert evidence to be prepared, evaluating the case from the perspective of any children concerned, particularly in the context of the nature of their relationship with each of their parents and what is their preferred outcome in the case, if any and what factors are influencing such views.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[3]
[3] See Goode & Goode (2006) FLC 92-286 at 80,901 [68]
Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned.
How the court determines a child’s best interests
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Family Law Act 1975 “the Act”.
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
The best interest considerations are to be viewed by reference to the objects and principles underlying Part VII of the Act. These have relevance to the situation of grandparents. Specifically, section 60B(2) recognises that:
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
The applicable legislation recognises that grandparents are potentially important to children. Not only can they be a source of love but they are also able to provide family history to their grandchildren and give them a sense of where they fit in.
The same can be said of cousins and uncles and aunts. [4] As previously indicated, given the husband’s incarceration, it is the paternal grandparents’ position that it is all the more important that [X] spends regular periods of time with his extended paternal family.
[4] See Bright v Bright (1995) FLC 92-570
In this context, the additional considerations [at section 60CC(3)(b)] direct the court to take into account the nature of any relationship the child concerned has with each of the child’s parents and any other person, including a grandparent or other relative.
One of the difficulties currently confronting the court is that there is significant controversy regarding the current nature of [X]’s relationship with his grandparents, which cannot be resolved in the context of these proceedings.
Although the court is directed to consider many factors in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[5]
[5] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Parental responsibility
The legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
Given the husband’s present circumstances, I do not consider it would be appropriate for the presumption to be applied at the present stage. Quite simply, Mr Galos is not in a position to play a physically active part in [X]’s life at present.
Each of the parties concerned are seeking parenting orders in respect of [X]. A parenting order may deal with the allocation of responsibility for making decisions about major long-term issues arising in respect of any child [see section 64B(3)].
Major long-term issues, in respect of a child, include issues related to that child’s long term care, welfare and development and specifically includes issues to do with the child’s:
·Education (both current and future);
·The child’s religious and cultural upbringing;
·Issues pertaining to the child’s health;
·The child’s name; and
·Changes to the child’s living arrangements which are likely to make it significantly more difficult for the child to spend time with a parent [section 4].
Pursuant to section 65DAC of the Act, parents, who share parental responsibility, are directed to make decisions regarding major long-term issues, in respect of their children, jointly.
The onus placed on such parents by the provision being to consult with one another and make a genuine effort to come to a joint decision about any major long-term issues pertaining to their child [section 65DAC(3)].
It would seem to be the husband’s position that the court allocate him some form of parental authority for [X] to allow him to be involved in major decision making in respect of him. On the other hand, it would appear to be the mother’s case that this is simply not practicable at the present time.
Risk
In determining this case, at the interim stage, the court is essentially called upon to balance the benefits [X] is likely to derive from spending time with both his father and paternal grandparents against any risk possibly arising that his psychological well-being will be compromised, in some way, by such arrangements.
On the one hand, it is the husband and paternal grandparents’ position that [X] can only benefit from interacting as much as possible with them because they are his close relatives and they love him. On the other hand, it is the wife’s case that there must be some risk of [X] suffering emotional harm because of the volatile relationship between those concerned and the idiosyncratic and stressful circumstances which bring them to the current point of impasse.
In Deiter & Deiter,[6] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
[6] See Deiter & Deiter [2011] FamCAFC 82 at [61]
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [7]
[7] Slater & Light [2013] FamCAFC 4 at [37]
Prisons are forbidding places. In addition, it may be emotionally destabilising and confusing for [X] to see his father in such a location, which the father is not able to leave. Questions may arise as to why Mr Galos is where he is and when it is likely his situation will change. Given his age, [X] may have difficulty comprehending these difficult issues.
On any view, there is a poor relationship between the wife and the paternal grandparents, who are locked in an acrimonious contest regarding historically fraught financial matters. The stakes are high from the wife’s perspective, who cannot be regarded as being in a strong financial position, particularly as she is not likely to receive any financial assistance from the husband to provide for [X]’s needs.
The paternal grandparents have been critical of the wife and asserted that she is a compromised parent, as has the husband, who wishes the wife to undergo testing to either allay his fears or confirm his allegations. Either way, as a consequence of his conduct, he is not in a position to take-up the care of [X].
These various factors indicate that there is likely to be a volatile and acrimonious relationship between the wife and the paternal grandparents, which [X] will be called upon to traverse. Such a situation is not likely to be helpful to him maintaining his on-going emotional equilibrium.
In my view, given what has happened to his father, [X] must be regarded as a vulnerable child. This, in my view, is a factor which militates in favour of the court taking a cautious approach in its assessment of psychological risk.
This is particularly so given that, up to this stage, there has not been sufficient time for any expert and independent assessment to be undertaken regarding [X]’s emotional robustness and the nature of his relationship with the relevant individuals concerned. I must also bear in mind that these issues occur at an early stage at which there is insufficient time to embark upon any lengthy hearing involving an assessment of the credibility of witnesses.
In SS v AH[8] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:
“Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
[8] See SS v AH [2010] FamCAFC 13 at [100]
The wife asserts that [X] was distressed on visiting his father in prison. Although it is possible that the wife has exaggerated her concerns or misread [X], this is a factor which I cannot easily disregard at this stage of the proceedings.
Similarly, the wife asserts that [X] does not know his grandparents very well. Whether this is accurate or not, I am unable to say, but once again, at this early stage, when contemplating making orders in respect of a vulnerable child of tender years, it is not something to be overlooked or summarily dismissed as a concern.
The wife seeks that any time between [X] and his grandparents take place in a public place – a specified play café – and she be present to provide some form of supervision of the time and be in a position to give [X] emotional support, if necessary.
From the grandparents’ perspective, such a regime is excessive and calculated to ratchet up rather than diminish any tensions between the parties and so be counter-productive. It is their case that in purely objective terms, [X] will be perfectly safe at their comfortable home, particularly if the time is kept initially to day time hours.
In addition, it is their position that the extent of time proposed by the wife and the constraints on it will lead to their relationship with [X] being artificial and limited in nature. This is turn may have an impact on the emotional wellbeing of [X].
The husband would, no doubt, echo these concerns, it being his position that [X] will benefit from spending physical time with him because of the central importance of the parent/child bond notwithstanding the limitations on such a regime occasioned by his incarceration. He would also assert that, in practical terms [X] will be completely safe at [Prison] and is likely to be reassured by being able to see his father face to face.
In this context, the court must examine potential risks arising for [X] and consider whether the mechanisms proposed by the wife are proportionate to the degree of risk so assessed. In so doing, the court must also bear in mind there are risks of depriving a child of a potentially beneficial relationship by being overly protective. However, it is also necessary to bear in mind that whatever orders are made, at this stage, they are provisional in nature and therefore subject to review, at a later stage, if and when more evidence is to hand.
In W & W,[9] the Full Court spoke as follows in respect of issues to do with supervision and what form it should take:
“We appreciate that the decisions in these cases have the potential for long term consequences for a child, and they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.”
[9] W & W [Abuse allegations: unacceptable risk] [2005] Fam CA 892
Interim property proceedings
Part VIII of the Family Law Act is the part of the Act dealing with property, spousal maintenance and maintenance agreement. The major provisions relating to marital property division are contained in sections 79(1); 79(2); 79(4); & 75(2) of the Act.
Pursuant to section 79(1) the court is authorised to make such order as it considers appropriate in order to alter the interest of the parties to a marriage in relevant property.
The expression “property” is defined in section 4(1) in relation to the parties to a marriage or either of them as meaning “…property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”
Pursuant to section 79(2) the court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitive words “shall not” in the relevant section.
Section 79(4) provides the mechanics of how a court is to make an order altering de facto property interests. In general terms, it provides a multi-step process.
Firstly, it is necessary for the court to identify the extent of the property to which any order made pursuant to section 79 will apply. Very often this is difficult to do at an early stage in property proceedings, as items of property have not been formally valued and there is very often a dispute as to what items should be considered marital property and what should be excluded.
In a case, such as the present, the ascertainment of the asset pool presents a particular challenge. The various parties concerned agree only on what are the proceeds of sale of Property A. Who owns other items of property and where physically they are located are in dispute. More significantly, issues about the indebtedness of the husband and wife to the paternal grandparents are unresolved and likely to remain so.
It would seem to be the case that there is a lack of documentary evidence to support the paternal grandparents claims regarding the advance of money to the husband. These are not the type of issue which are easily amenable to determination on the assessment of credit alone.
These considerations add not only to the potential complexity of the matter but are also factors which are likely to inhibit the court from exercising its jurisdiction under section 79(4) at an early stage of proceedings when the extent of the asset pool is clouded with uncertainty. Necessarily, the court must be careful not to skew any further alteration of property interests required when issues currently inchoate come clearer into focus.
Secondly, the court must ascertain the varying contributions, which each party has made towards the assets so identified. Contributions fall into two broad categories:
·The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property.
·The second kind is contributions to the welfare of the family: in the words of the section, “the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of home maker or parent.”[10]
[10] See Family Law Act s79(4)(c)
It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
The third step involves the assessment of the parties’ prospective needs, by reference to the factors set out in section 75(2) of the Family Law Act 1975. Pursuant to section 75(2)(o), the court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
Section 80 of the Act provides the court with what are described as general powers. In particular section 80(1)(h) empowers the court to make an order pending the disposal of proceedings. However, it is clear that the same principles, set out above, apply both at the interim and the final hearing stage.
In general terms, bearing in mind the limited nature of an interim hearing, the court is required to follow the process outlined above, in respect of both final and interim de facto property proceedings. Accordingly, it is necessary for the court to consider whether it is just and equitable to make any such order and whatever order is made must be referrable to the considerations set out in section 79(4).
Accordingly, the court must make some assessment of the parties’ various contributions to the pool of assets in question and importantly must have regards to any applicable factor arising under section 75(2). Necessarily, any interim order must be referrable to the final order made in the case concerned, as both depend on the exercise of the same power.
Given these circumstances, the Full Court of the Family Court has pointed out that, as there can be only one exercise of the power under section 79 of the Act, it is usually preferable that there be only one final hearing of section 79 proceedings, rather than a succession of subsidiary provisional hearings.[11]
[11] See Strahan v Strahan (2010) 42 Fam LR 203 at 230 [114]
In Strahan apropos the making of an interim property order, the Full Court rejected any notion that it was necessary for an applicant to establish compelling circumstances to justify the making of such an order. Rather, the court’s deliberations, which need not be particularly extensive, required a determination of whether it was appropriate to make such an order, within the over-arching consideration of whether it was in the interests of justice between the parties concerned for it to occur.
In reaching this conclusion, the Full Court noted the idiosyncratic nature of litigation, under the Family Law Act, when compared with other civil litigation. In the former, there was often a marked imbalance in the power of the parties concerned and artificialities in how property available to be divided was legally controlled in the period leading up to final hearing.
Examples of where it may be appropriate to use the power to make an interim property order include where both the parties agree to the disposal of some assets pending trial; urgent situations to avoid injustice being wreaked upon one party if the power was not exercised; and where one party requires funds to assist in the defrayal of legal costs arising from the litigation involved.[12]
[12] See Strahan (ibid) at [133]
The discretion to make an interim property order must be closely considered, bearing in mind the different nature of an interim, as opposed to a final hearing, which nonetheless involves the exercise of the same power. In particular, the court must ensure that any interim outcome is a just and equitable one and be careful to ensure that any such interim order does not prevent a similar equitable outcome at the final hearing stage.
Considerations of this type led the Full Court in Strahan to say as follows:
“We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party. [13]
[13] See Strahan (ibid) at [139]
Conclusions
One of the major evidentiary difficulties, in this case, is that I have no evidence available regarding the nature of the visiting facilities at the correctional centre, which currently houses the husband. I accept that many inmates are parents and that therefore necessarily the correctional authorities, in New South Wales (and indeed throughout Australia) are accustomed to providing facilities in which children can interact with an incarcerated parent in humane and child focused surroundings.
However, the fact remains that such a parent is not able to leave the correctional facility concerned and necessarily any interaction between parent and child must be subject to some form of authoritarian supervision. As indicated above, in the case of [Prison], I have not been provided with any evidence whatsoever as to what is envisaged if [X] visits his father there. I note, however, the wife has not provided any specific objection to the physical structure of the visiting section.
I also accept that the wife is not in a strong financial position and, as a consequence, it is not easy for her to find the money to travel, with [X], from Adelaide to Sydney and return. In addition, the evidence as to whether the paternal grandparents would be willing to perform this task is uncertain. In his submissions to the court, counsel for the paternal grandparents concerned himself only with his clients’ direct application. Accordingly, even if an order is made for [X] to spend time with his father, at [Prison], I do not know how that could be logistically accommodated.
More significantly, although the wife’s evidence in this regard has not been tested, I am not in a position to discount her assessment that [X] found it emotionally upsetting to visit his father in prison. In addition, given the significant events which have occurred in [X]’s life over the past 12 months or so, it is more likely than not that [X] is to be regarded as a vulnerable child.
In all these circumstances, I am of the view that it is not likely to be in [X]’s best interests to spend time with his father, at the relevant New South Wales correctional facility housing him, at the present juncture.
In the difficult circumstances prevailing, I am of the view that the best mechanism through which [X] can continue to have a meaningful level of relationship, with his father, is by means of electronic communication as currently occurs. I have no reason to consider that the wife will not facilitate [X] communicating with his father via WhatsApp but acknowledge that, given [X]’s age, it is likely to be the case that he is easily distracted from the screen.
It also needs to be underlined to all concerned that the various disputes between them are their disputes, not [X]’s. For that reason, I will continue the injunction made on 13 September 2018 [order 6]. I will also direct that the wife forward a copy of [X]’s school report to the husband, at her expense, when it is to hand.
I do not propose to formally direct the wife to provide the information bulletins as sought by Mr Galos. However, given the ubiquity of mobile phones, it does not seem unreasonable that at least once per month, the wife send a selection of photographs of [X] to the husband. Otherwise, at this juncture, I do not propose to make any specific orders allocating parental responsibility for [X].
In my view, this is likely to be helpful to both father and child as it will give them some potential topics for their telephone conversation, which can centre on [X]’s activities. It will also give the father a sense of what is going on in [X]’s life.
I do not propose to make any order requiring the mother to undergo a hair follicle test. In my view, the husband has not demonstrated any evidentiary or legal basis to support this application, which would be of utility to [X] himself. Whether the wife elects to place a photograph of Mr Galos in her house is, in my view, also a matter for her not for specific legal intervention.
The next issue to be determined by the court concerns how the relationship between [X] and his paternal grandparents is to be maintained, given the difficult relations between the wife, on the one hand, and Mr and Mrs Galos Senior on the other. It would seem unlikely that there will be any easing of this relationship in the foreseeable future.
Although I am precluded from making any findings of fact, in disputed circumstances, there can be no doubt that there is a significant level of ill feeling between the maternal and paternal aspects of [X]’s family. In my view, it is incumbent upon the court to endeavour to protect [X] from suffering any psychological harm as a consequence of being exposed to this conflict, either directly or unwittingly.
I accept that the paternal grandparents are individuals who are interested in issues to do with [X]’s care, welfare and development. As such, pursuant to the applicable legislation [section 65C] they have specific legislative authority to apply for parenting orders in respect of [X].
In these circumstances, I accept that it is likely to be beneficial, for [X], for him to have a sense of connection to his paternal family and be able to place himself within it. Necessarily, this will require him to spend time with his paternal grandparents but also his aunt, uncle and various cousins. The time must be of sufficient time to enable these relationships to develop but the emphasis must be on the quality of this time rather than on its quantity alone.
I accept that this sense of connection to paternal family has potentially greater significance for [X] and the development of his sense of identity, given the husband’s current situation precludes him from playing any active role in [X]’s day to day care for a significant period of time. Essentially, unless [X] spends regular time with his paternal grandparents and paternal family, he will not have any physical connection with this side of his family.
I am concerned, in this context, that the wife’s proposal does not provide sufficient time for these significant relationships to be fostered. I am also concerned that the difficult relationship between the paternal grandparents and the wife render the latter’s proposal for supervision, no matter how loosely that is provided, to be problematic. I am concerned that any engagement, no matter how peripheral, between them, could lead to some form of overt conflict to which [X] should not be exposed.
In any event, the function of supervision is to provide safeguards for the child concerned. In this context I must assess the degree of risk the paternal grandparents potentially pose to [X] and, if I consider there is such a risk, assess whether supervision is a proportionate and reasonable response to that risk as so assessed.
In this matter, although it may be the case that [X] does not know his paternal grandparents as extensively as they assert, in my assessment, there is no evidence to support the assertion that they pose any direct form of risk for [X]. The wife does not assert that their parenting capacity is significantly impaired in any way. Whatever emotional risk exists for [X], from the circumstances of this case, they arise because of the acrimony between the opposing aspects of his family.
In these circumstances, I propose to make the orders as proposed by the paternal grandparents, starting with an introductory period of 12 weeks of time on Saturdays, which will then advance to alternate weekends. In this way, the wife will have some weekend time with [X], which is important, both for her and for [X].
Having determined that, at this juncture, it is not likely to be in [X]’s best interests to spend time directly with his father at the Town M Remand Centre, I will make an order restraining each of the parties concerned from removing [X] from an area within a fifty kilometre radius of the Commonwealth Law Courts Building in Adelaide. In this respect, I note the submission of counsel for the paternal grandparents that they have no proposals personally to take [X] to Sydney.
The parties have not given any close consideration regarding how [X] is to move between them to give effect to these orders. The paternal grandparents propose an agreed and hopefully neutral family member. However, the identity of this person has not been specified and I do not know if he/she is acceptable to the wife.
However, at this juncture, the paternal grandparents’ proposal seems to be the most feasible, at this time. In these circumstances, I will make the order as proposed by the paternal grandparents, unless the parties agree otherwise.
It seems apparent that one of the major sources of friction, between the wife and the paternal grandparents, is the level of indebtedness, if any, of the husband and wife to the grandparents. These are highly contentious issues, which cannot be resolved in the context of these interim proceedings. The controversy cannot be ignored, however, in the context of the wife’s application for an interim settlement of property.
From the wife’s perspective, the paternal grandfather’s claim is spurious and designed to defeat her proper entitlements. She relies on the absence of documentary evidence to support Mr Galos Senior’s assertion and the fact that his claim arises only after the parties have separated and when the husband has been remanded in custody.
In addition, from the wife’s perspective, if the husband has defrauded his parents, that does not necessarily mean that she is indebted to them. It might be argued that, if there is such a liability, it is the husband’s alone. These are complicated evidentiary and legal issues, which cannot be unravelled in the context of these truncated proceedings.
As I have already indicated, the court’s exercise of its power to make an interim property order is identical in nature to the exercise of power to make a final property order. Essentially, the court must be satisfied that it is just and equitable to make an interim property order and accordingly it is necessary for it to have regard to the four step process envisaged by section 79.
The problem, which arises in the present case, it is that it is not possible for the court to ascertain, with any degree of certainty, what is the extent of the parties’ pool of marital assets. Controversy surrounds whether the Motor Vehicle K should or should not be included and, more significantly whether any moneys were advanced by Mr Galos Senior to secure the Property A property and further, if that debt exists, whether it is a joint marital one.
It is also far from certain what is the status of monies said to be owed as a consequence of the husband’s alleged delinquent behaviour whilst working at Mr Galos Senior’s business. The husband is likely to need some money to fund his defence. These issues arise in the context of significant ill will existing between the competing parties concerned. These are factors which must dictate a cautious approach.
One aspect of the case is clear, the net proceeds of sale of the Property A property is an amount of $370,742.17. On 13 September 2018, the parties, including the paternal grandparents, agreed that each of the husband and wife should receive an interim distribution of $50,000.00. The wife needs this sum to keep her head above water financially; the husband, no doubt needs to fund his criminal proceedings.
Putting aside, the other contentious issues surrounding what should or not be included in the asset pool and what is the value of these contentious assets – the Motor Vehicle K; jewellery and handbags; and another vehicle, a Motor Vehicle M, which the wife asserts is worth $120,000.00 and was sold prematurely by the husband, prior to his incarceration – the readily identifiable pool of remaining assets is $270,742.17, after the agreed interim distribution.
In addition, the husband and wife agree that [X]’s school fees must be paid. As at 15 January 2018, a sum of around $8,000.00 is owing. If the wife receives the further distribution sought by her of $50,000.00, it will currently bring the pool to around $220,000.00, which approximates the sum sought by the paternal grandparents.
No doubt, in the circumstances, the wife would argue that this can be no coincidence and reinforces her view that the paternal grandparents’ position is a concocted one designed, in cahoots with the husband to deprive her of the proper fruits of her application. Given the nature of these proceedings, these are issues which cannot be definitively resolved, at this stage, but nor can they be ignored merely on the basis of the wife’s suspicions.
In this context, the court must consider whether it is just and equitable to make the further distribution sought by the wife from the proceeds of sale of Property A. If made, it would leave little room for error, if the paternal grandparents’ case is subsequently made out, so far as making any further distributions in the husband’s favour.
Given the controversy about the extent of the asset pool in the current matter, particularly the uncertainty surrounding the parties, particularly the husband’s, level of uncertainty, I am not persuaded that it would be just and equitable to make anything other than a conservative property order in the current matter. I will also continue the injunction in respect of the sale or disposal of the Motor Vehicle K.
One of the factors leading to this conclusion is the potential for difficulty to arise if the grandparents’ contentions in respect of the extent of the parties’ pool of assets ultimately proves to be correct. In such circumstances it may prove problematic to correct any excessive partial property settlement made in favour of the wife.
In this regard, I rely on what was said by the Full Court, of the exercise of the section 79 power, at the interim stage, in Harris & Harris namely:
“Of necessity it is likely to be a somewhat imprecise exercise. Consequently, it must be exercised conservatively and the Judge must be satisfied that the remaining property will be adequate to meet the legitimate expectation of both parties at the final hearing or that the order which is contemplated is capable of being reversed or adjusted if it is subsequently considered necessary to do so.”[14]
[14] Harris & Harris (1993) FLC 92-378 at 79,930
In these circumstances, I decline to make the further interim distribution sought by the wife. I will direct that the balance of the proceeds of sale of the Property A property, after payment of the agreed distributions of $50,000.00 to each of the husband and wife and the payment of [X]’s school fees at School 1 be paid into an interest bearing account in the joint names of the husband and wife.
The future management of the matter is problematic, given the logistical restraints which prevent the husband physically attending either a property mediation or a conciliation conference. However, at this juncture, notwithstanding the polarised positions of the parties, it seems to me that all concerned should be given the opportunity to resolve the issues arising between them consensually.
Given the extent of the pool of matrimonial assets, I will refer the parties, including the paternal grandparents to a conciliation conference. I will also direct that the wife and the paternal grandparents attend a child dispute resolution conference, pursuant to section 11F of the Family Law Act in an endeavour to see if they are able to agree future arrangements for [X]’s care.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 12 December 2018
Key Legal Topics
Areas of Law
-
Family Law
-
Property Law
Legal Concepts
-
Injunction
-
Remedies
-
Jurisdiction
-
Costs
0
4
2