GRIST & GRIST
[2020] FCCA 2992
•12 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GRIST & GRIST | [2020] FCCA 2992 |
| Catchwords: FAMILY LAW – Parenting – father previously paying $9 per week child support – says he now acquired millions of dollars – money not in his name or control – father seeks private schooling – issues about father’s capacity and willingness to pay – issues about capacity of parents to co-ordinate private schooling – children’s time with father – father from Melbourne – whether appropriate for children to spend time with father in a different rental during the school week once a month – alleged family violence by father – father’s own text messages give Court grave concerns: Held: Proposed change of school not in children’s best interests – living in different rental accommodation with father one week a month not in children’s best interests – appointment of ICL – appointment of single expert at father’s cost – Court has concerns about all proposals – will further consider matter when single expert report available. |
| Legislation: Family Law Act 1975 (Cth), ss.68L, 60CA, 60CC(3), 64B, 65AA, 65D, 69ZL, Part VII, Division 5 Evidence Act 1995 (Cth) |
| Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 |
| Applicant: | MR GRIST |
| Respondent: | MS GRIST |
| File Number: | MLC 1904 of 2020 |
| Judgment of: | Judge B Smith |
| Hearing date: | 6 October 2020 |
| Date of Last Submission: | 6 October 2020 |
| Delivered at: | Sydney |
| Delivered on: | 12 October 2020 |
REPRESENTATION
| Solicitors for the Applicant: | M and K Lawyers Group Pty Ltd |
| Counsel for the Applicant: | Mr Maurice |
| Solicitors for the Respondent: | Newnhams Solicitors |
| Counsel for the Respondent: | Ms Beck |
ORDERS
The matter be listed on 12 March 2021 at 9:30am for mention.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
Unless otherwise agreed between the parties in writing, the children are to remain at their current schools.
Each party be and is hereby restrained by injunction from discussing any proceedings between the parties, or the issue of schooling, in the presence or hearing of the Children and shall use their best endeavours to ensure no third party does so. In particular, the father is not to suggest, directly or indirectly, to the children that any failure of the children to attend private schools is a consequence of the mother’s conduct or that she is culpable.
Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer be appointed for the children X born 2006 and Y born 2010.
The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.
The Court advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of NSW of this order forthwith.
Each party make available to the Legal Aid Commission of NSW (Sydney Office) forthwith copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.
The parties facilitate the attendance upon his/her representative of the children at times and dates requested by that representative.
Leave be granted to the Independent Children’s Lawyer to issue more than five subpoena.
Pursuant to Part 15 Rule 9 of the Federal Circuit Court Rules, a Single Expert Witness (hereafter referred to as “the Expert”) be appointed to enquire into and report upon matters relating to the welfare of the child and that in preparing this report to the court, to consider the following matters:
(a)Whether the child is at risk of being exposed to any physical or psychological harm or from being subject to or exposed to abuse, neglect or family violence;
(b)any views expressed by the child and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
(c)the relationship of the child with each of the child's parents and any other relevant person;
(d)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(e)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other person with whom the child has been living;
(f)the capacity of each parent and any other person to provide for the needs of the child, including emotional and intellectual needs;
(g)the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents (or any other relevant person);
(h)The effect on the child of any family violence to which they may have been exposed;
(i)The effect on the child of spending equal time, or substantial and significant time, with each parent having regard to the parent’s current and future capacity to:
(j)Implement such an arrangement; and
(k)Communicate with each other and resolve difficulties that might arise;
(l)The mental state, or capacity, of both parents in so far as it relates to parenting issues including in respect of any mental health impairment or personality traits which may adversely impact on parenting capacity ;
(m)The Expert’s opinion concerning any allegations of abuse of the child; and
(n)Any other matter the expert considers relevant.
I DIRECT that, upon completion, the expert report be forwarded to my Associate via email to [email protected].
The Expert is to be a Psychiatrist, or a registered Clinical Psychologist.
In the event the parties cannot reach agreement as to the Expert:
(a)Within 7 days, the mother nominate and provide contact details, fee information and availability for three (3) appropriately qualified Experts; and
(b)Within a further 7 days, the father select an appropriately qualified Experts from the list;
AND the parties thereafter forthwith prepare a joint letter of instruction to be sent to the Expert and each party be liable for one half of the total fees payable in respect of the Expert Report.
The father is to pay for the entire cost of the preparation of the Expert Report.
Liberty is granted to the parties to approach the Court in Chambers to have the matter relisted on short notice once the Independent Children's Lawyer is on the record and the expert report is prepared.
NOTES
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
The Court will be open to re-considering the issues of Schooling, and of the time the children are to spend with the father, upon receipt of the Expert report and with the benefit of assistance of the ICL.
IT IS NOTED that publication of this judgment under the pseudonym Grist & Grist is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
MLC 1904 of 2020
| MR GRIST |
Applicant
And
| MS GRIST |
Respondent
REASONS FOR JUDGMENT
These are short form oral reasons for decision pursuant to section 69ZL of the Family Law Act 1975 (Cth) in respect of an interim application for parenting orders, or for competing parenting orders, within Part VII of that Act.
The applicant father is aged 40. He is a manager for and a director of a company called A Pty Ltd and he also has other commercial interests which I will discuss later. He lives in Suburb B in Melbourne, Victoria, and he is in a de facto relationship with Ms C, who is also his business partner.
The respondent mother is 42. She lives in Suburb D in Sydney. The children live with her and, since December 2017, she has lived with her partner Mr E and his children, F and G, who are aged 14 and 17.
The parties commenced cohabitation in 2000 and married in 2000. They have two children who are the subject of these proceedings. The first child, X, was born 2006. He has just turned 14 and he is currently a student in year 8 at School H. The second child, Y, was born 2010. Y is 10 years of age. She is in year 5 at School I.
The parties finally separated in about December of 2012, although I note there are some references to events in April 2013 I will discuss later, but the final separation appears to be December 2012. The parties divorced on 29 November 2014 and, as I have said, the children live primarily with the mother.
These are competing applications around a number of matters but it has to do firstly with the children’s schooling. The children, as I have indicated, are at, respectively, School H and School I.
The father says that now that he has come into money he wants the children to have the benefit of attending elite private schools, which he says he will pay for. The mother raises concerns, firstly, as to whether there has been a need shown for the children to change schools and, secondly, where it is quite clear she is not in a position to pay for these expensive schools, either as to the fees or as to the additional costs that come with private schooling, she says that she is concerned about the father’s capacity and also willingness in the long run to actually continue meeting these fees.
The second issue has to do with the time the children should spend with the father. That includes both during school term and in school holiday time. I note that, the parties are not far apart in submissions, but for reasons I will raise later I have concerns about both parties’ proposals, since it involves the children spending either four days a month from Wednesday to Saturday or an entire week a month living with the father in Sydney in Airbnb accommodation. For people who say they are concerned with schooling and academic achievement, these seem to me unusual proposals. I will indicate now that I propose at the end of this judgment to appoint an Independent Children’s Lawyer to assist the Court to understand what is, in fact, in the best interests of these children, where I have been offered these proposals by both parties which strike me, for reasons I will set out, as being fundamentally inappropriate.
The father filed an application setting out the orders he seeks. At the hearing of the interim application the father set out the particular orders that were being sought in the case outline which was filed, starting at page 7 of that case outline. That was for equal shared parental responsibility; the children live with the mother; spend time with the father by agreement or, failing agreement, during the school terms, and I will quote:
(i) In the first week of each calendar month, from the completion of school on Friday until the commencement of school on Friday, with such time to take place in Sydney; and
(ii) At such other times as are agreed…
In respect of holidays, for one-half of the New South Wales school mid-term holiday periods, with such time to take place in Melbourne or as the father elects on such dates as agreed between the parties, but in default of agreement the father should spend time with the children in the first half of the mid-term holidays in 2020 and the second half in 2021, and during long school summer holidays for a block period of three weeks. In 2020, and in following even-numbered years, from the last day of school for a period of three weeks, and in 2021 and then odd-numbered years for the last three weeks of the holiday. One of the issues that arises there, in addition to time, is the mother’s scheduling where she has organised to take the first part of that holiday off, and I will come back to that later.
The father also seeks orders as to special occasions and as to changeovers and communication, neither party enrolling the children in extracurricular activities without first obtaining the other party’s written consent, and coming at order 10 of his proposal, as it then was, is that X be enrolled at School J and Y be enrolled to attend secondary school at School K, and then certain orders about not making derogatory comments.
During the course of the hearing, those orders were supplemented by a document entitled Amended Supplementary Order Proposed by the Father. That document sets out his proposal that X’s attendance at the School J commence in term 4, 2020, conditional on the father’s compliance with certain things occurring, including by 30 October 2020 the father depositing into a bank account, quote:
…in his sole name (“the children’s school account”) the sum of $200,000 and that thereafter he is hereby restrained from operating “the children’s school account” other than for the purposes of depositing funds into it or withdrawing funds for the sole purpose of paying X’s school fees and all related school expenses such as music, uniforms, text books, extracurricular activities and the like.
In order 2, that:
a. By close of business on 7 October 2020 he deposit $800 into the debit card he has given X to apply for X’s uniform, text books and all other items required to commence at the school for Term 4; and
b. By close of business on 9 October 2020 pay X’s Term 4 school fees for School J.
I was told the reason the father wishes X to change schools now, rather than waiting for the natural break at the end of the year, because The School J would require that. They have a particular program in year 9 which involves the children going away, and they would not be willing to have X start at the school in year 9. That is unfortunate, and it is unfortunate the matter is being heard, effectively, in a period where this all has to happen at today’s date. However, that is the position.
The father also then seeks an order at 3 that Y’s attendance at School K, Suburb L in 2022, noting that she will be in sixth grade next year and 2022 is when she will start year 7, be conditional that the father before 3 October 2021, which is to say not until next year, depositing the sum of $206,000 into the account and then, otherwise, on the same basis as with X.
He sought an order that the father provide to the mother quarterly statements from the children’s school accounts and the statement showing a deposit of $200,000 within seven days.
He sought:
5. That if the balance of the children’s school account falls below $10,000 then the Father shall deposit a further sum of $50,000 within 7 days.
6. That upon Y completing Year 12 the Father is at liberty to withdraw the balance of funds held in the children’s school account.
7. The Court notes that the sums referred to above are intended to cover the entire amount of school fees and all related school expenses for both children to the end of Year 12.
Now, I will come back later to the argument about whether or not the figures that have been identified by the father are, in fact, likely to be enough to cover “school fees and all related school expenses such as music, uniforms, textbooks, extracurricular activities and the like”.
The mother has sought orders as set out in her Response filed 15 May 2020. She also seeks equal shared parental responsibility, the children to live with her, and those matters being agreed.
She wants the children to spend time with the father during New South Wales school terms for one block of four nights each month from the conclusion of school on Wednesday until 5 pm Sunday, with such time to commence on the first Wednesday of each month and take place in Sydney; and then, in respect of the school holidays, she wants four months’ notice of what is occurring, I will indicate now that is because she says the father has been inconsistent, and that they should try and have dates that they can agree upon; but, in the absence of agreement, during the first half of short school holiday periods with the father in even numbered years; second half in odd-numbered years; and vice versa; and during 2020 Christmas she proposes the children live with her and spend time with the father from 27 December till 6 January and from 19 January till 26 January 2021. In 2021 and thereafter with the mother during the first half and the father the second half of the Christmas school holiday periods each year, and she makes provision for the Christmas holidays at the particular period varying between 24 December and 26 December.
She also seeks provision for special occasions, for changeovers and she seeks that the father notify her of where he is residing in Sydney when the children spend time with him; also orders as to cost for the children residing in Melbourne; certain orders as to communication; and in respect of schooling she seeks at order 13 that X shall attend School H or such other school as agreed, and that Y attend either School M, Suburb L, or School N or such other school as agreed in writing from the commencement of year 7 until year 12, and that the mother and father shall ensure the children have appropriate school uniforms at changeover, that the parents deliver the children on time and that they agree as to extracurricular activities. Those are the major issues.
The issues principally argued had to do with the schooling, and particulars about time with.
Now, the father raises concerns about X’s schooling under the heading X, before paragraph 10 in his second Affidavit filed on 1 October 2021.
He says at 10 that:
X has not been doing as well at his current school School I. School J has a tailored music program and X has stated to me several times his desire to go there.
I note that there is a Child Inclusive Conference Memorandum, which I have considered, and I will consider that later, regarding the children’s views, but in the context where a child is being offered an opportunity to go to a private school and it is clear that his father wants him to go there, I have some concerns about whether the children are just saying what they think people want to hear, in particular the father.
Coming to the heart of the matter, at paragraph 11 the father said:
11. X's school report for Term 3, 2019 states that 'he is distracted in the advanced streams" at School I. In my view, he is not being provided with enough or the right support. X is musically talented and loves learning and playing a musical instrument. X is also very talented at sports.
12. Following the 31 October 2019 letter being sent to Ms Grist and I discussed the school and she asked me "what about transport to school because I don't have the time?" I replied to Ms Grist that I would cover the travel expenses and mentioned that we can make it into a Binding Child Support Agreement. Ms Grist asked "why that school and how are you going to pay for it?" The tuition fees for School J are set out below. I replied that my de facto partner Ms C and I would pay as the business had a big growth.
The father’s quote that he extracted into paragraph 11 needs to be read in the context of the totality of the school reports.
I go to X’s school reports, which the mother put in in her Court Book, Exhibit D, starting at page 82 of the Court Book. I note that, at page 84, there is a letter from the principal which is glowing. It says in part:
His report showed a mature commitment to learning, although, as with all learning, there is room for continuous improvement. However, X’s report stands out because of the commitment it reflects.
The Year Advisor’s comment at page 87 of the Court Book, says as follows:
Year Advisor’s Comment
X is a polite and energetic student who has transitioned into high school well. Although he is often distracted in class, he is generally cooperative and completes most tasks to the best of his ability. He has achieved an excellent Semester One report, attaining outstanding grades in English, Music and Personal Development, Health and Physical Education. Well done, X!
That is in semester 1, 2019.
I will not read all of the material onto the record, but I note there are comments such as that at page 90 that:
X is an exuberant and outgoing member of the class. He exhibits a natural skill and high practical ability across the applications of science, as evidenced by his class discussions and contributions. In his skills-based assessment, he achieved the highest mark. X achieved a pleasing mark in his Half Yearly Examination but is encouraged to take his time and double check his answers, to ensure all questions are completed to his usual high standard. This is a very promising start to X's junior studies of Science!
He was elsewhere described, at page 91, as “always cooperative”. It was stated at page 91 from his Geography teacher:
X can do better and if he avoids distractions in class, seeks help when needed and completes all the tasks he is given, he could achieve a higher final Geography grade at the end of this academic year.
In short, X seems to be doing very well in the advanced stream. The father says in effect that “he is distracted,” and the mother says, “He is 14, and where is the evidence that School J is going to stop him from being distracted?”.
The father, in his first Affidavit at paragraph 3, Court Book page 2, said that he was employed on a full-time basis as manager at A Pty Ltd, earning approximately $51,000 gross per annum, and he said at paragraph 11 that:
I pay Ms Grist child support as assessed by the Child Support Agency in the sum of $395.83 per month for both children. My payments are up to date.
So, as at 2 February 2020, the father’s sworn evidence was that his income was $51,000 a year and, consistent with that, he was paying his assessed child support of approximately $50 per week.
Now, in his subsequent affidavit sworn 30 September 2020, and filed on 1 October 2020, going to the question of capacity to pay for these school fees, the father sets out that he is employed as a manager of A Pty Ltd and that he is earning $120,450 per annum, effective from 6 July 2020, and states that he holds the position of Co-director of A Pty Ltd. Now, the father goes through his capacity to pay, having first looked at the costs that will be incurred with the schools.
The father’s evidence as to the cost of the schools, and I note that both parties are giving hearsay evidence, but as the evidence seems reasonably consistent on these matters and no one took any objection.
The father set out his understanding of the financial position involved and starting at page 39 of his Court Book, paragraph 24 of his second Affidavit, where he said that he spoke with someone from School J and it was determined that the fees would be as follows:
(a) Year 8 $9,728
(b) Year 9 $55,826, (which includes a school camp- 6-month experience)
(c) Year 10 $40,077
(d) Year 11, $43,427
(e) Year 12, $44,502.
He also says it was:
…confirmed that there are no additional fees or charges for sports such as rugby unless the students participate in non-compulsory camps. The music fees are charged per semester and the cost per year in 2020 is $1,720.
That’s at paragraph 26.
In respect of Y, it is said that the fees from:
(a) Year 7- Year 10, $33,447 per year;
(b) Year 11- $35,873
(c) Year 12- $35,873.
Those figures are, broadly, $190,000 for X, not including extras, and, broadly, $205,000, not including extras, for Y.
In respect of Y, he says that she has told him on several occasions she wants to go to School K and many of her friends will go there, and:
I have reviewed the Better Education school comparisons between the two schools and School K has significantly outperformed School N since 2011.
The mother conceded that, academically, the private schools may be performing better, but there are value issues involved in the selection of schools. As well questions of cost.
All the father can say from his own personal knowledge is that he liked how School K had clean and modern school grounds.
Her evidence about the costs, her understanding, is it is approximately $38,000 or $39,000 each year for each child, so that, for X with his four years and one term and Y for her six years, that is approximately $400,000 not including additional costs. So both parties agree that the school fees themselves are likely to be about $400,000 plus extras.
The issue the mother raises is that there is no evidence of what the additional costs are. Now, in respect of one issue, in terms of travel time, the counsel for the father criticised the mother because it was said she had objected without having gone off and done the research to find out what the facts were. But I think it is important to note that, where the children are at existing schools and where it is the father’s application to change them, it is quite clear that he bears both the legal and the evidentiary onus to persuade the Court that a change should occur. So I think it is absolutely patent that the father bears the evidentiary onus of indicating what the additional school costs are and his capacity to meet them. The mother does not bear the onus to go and prove the father’s case for him.
I note this is an interim matter in parenting proceedings, and the way in which the Evidence Act 1995 (Cth) and the Family Law Act 1975 (Cth) interact here, but I am not going to purport to try and find what the extra costs are, but I do note that, as a Judge sitting in the family law jurisdiction in this Court, school cases, including the choice of a private over a public school, are very common and one generally sees estimates not only of the actual fees but also an attempt to estimate the comparison between the private school uniform and the public school uniform, the costs of likely excursions and so on etcetera. There has been none of that here and, to the extent to which there is an absence of evidence, it at the moment sounds against the father’s case given the onus. I note that it is not uncommon for evidence to be led here and not challenged that the additional costs of attending such private schools can be substantial.
The fact that, in Year 9, the children at School J spend 6 months away from their school is indicative of the kind of extracurricular activities above and beyond the normal that that school may be involved in.
The mother raises the issue that it is one thing to say the child can go to an expensive school, but if everyone else who is studying French is going off on a trip to France and their child cannot, from their child’s point of view they may feel deprived, and it may cause issues.
In this regard, the mother makes the particular point that the father has indicated that he is willing to pay $800 for X to get a new school uniform for a private school, all his textbooks and other matters to commence Term 4. There is no evidence, but I must say, based on my previous experience in this jurisdiction, that seems like a relatively small sum to get the start of school year uniform for a private school, including, the special hats that they wear there, not to mention school books and all the other matters. The Rugby may be free or sport may be free, but the uniforms are not.
The second issue that arises is that the structure of the father’s orders is that he will have sole control of the bank account. I raised that with counsel for the father during submissions as to whether or not it would not be more appropriate that the parties jointly control this bank account, which is, in effect, to be trust money for the children. The father would not agree to that. In effect, as I understand it, because the father’s position is that the parties were unlikely to be able to work together on that issue.
If the parties cannot work together on the issue, and the children are at the private school and the father has sole control over the bank account and sole control over how it is used, then he will have sole control over what extracurricular activities they do or do not do. He will have sole control over whether they go to the school camp or not. He will have sole control, in effect, over education. So by the back door the only orders the father was willing to agree to would give him, in my view, what is tantamount to sole parental responsibility for education, and that is inconsistent with what both the father and the mother seek.
It is also indicative of the fact that, given that is his position and I did suggest there might be alternatives, but that is his position, this suggests to me that sending the children, on these orders, to these private schools, is only going to create a situation of difficulty.
That worries me, given what is contained in the father’s text messages, which I will come to later. These things seem to me to be problematic because, if the very choice of school is likely to create further conflict and litigation, and is likely to result in the parties not being able to reach agreement, then I don’t see how the proposed orders can work, and if the proposed orders cannot work, it is difficult to see how they can be in the children’s best interests.
I also note the mother raises issues around the father’s commitment to making payments. As he indicates in his own Affidavits, he was paying $50 a week child support until the start of this year.
The mother has set out in her Affidavit, starting at paragraph 83, Court Book page 52, the fact that she does not have the income or financial resources to meet the payment of private school fees, and she sets out her understanding of what the fees will be. She points out she is working as an educator at O Organisation earning approximately $2,500 per week, and that her average weekly expenses, she says, exceed her income.
In this context, she points to the fact that she says the father has shown no willingness to contribute financially to the children’s education and extracurricular costs in the past. She sets out that the father has attempted to minimise child support payments; that in September 2016 he declared a new income to the Child Support Agency, which resulted in his support being assessed at approximately $9 per week.
She also refers to a decision from the Child Support Agency in which she says they stated that:
It appears as though Mr Grist is minimising his income to pay less child support.
She then sets out a history, which she says shows that there has been no willingness to pay child support.
Now, that is relevant as a matter to consider, noting, of course, as I discuss shortly, that this is an interim hearing. I am not in a position to make any findings of fact, nor would I seek to, unless something is patently clear and comes from a party themselves and is uncontested.
The mother says, at paragraph 97, she has genuine concerns about the father’s capacity to pay and, as I understand it, his commitment to pay on an ongoing basis. That then comes back to the issue of why she is not comfortable with the father’s proposal as to him having sole control over this money.
I note that, if it is in a bank account, then it was put to me that I wouldn’t assume someone would breach orders, but I think that is somewhat naïve, given that the orders this Court makes are breached almost as often as they are followed, as far as I can tell, which is why we spend so much of our time re-hearing matters and dealing with contraventions.
We then look to what the father says about his financial position in the context of the child support he has been paying. He sets out in his Affidavit, at page 41 from paragraph 37, that he is:
…a director of P Pty Ltd which is the largest shareholder in the ASX listed company, Q Pty Ltd. P Pty Ltd's shareholding in Q Pty Ltd is currently estimated at $5,000,000.
That is at paragraph 38.
He says in 2009 he co-founded Q Pty Ltd and that, through his company P Pty Ltd, he owned 14,328,030 shares in Q Pty Ltd, and that at … 2020 one Q Pty Ltd share was on the ASX at 39 cents. He says that, for the period … 2020 to … 2020, 4,121,778 shares were sold for $1,441,959.34.
Now, as I understand it, including that money, he says that he has approximately $6 million or just around that mark.
It may be that his child support position previously was explicable on the basis that, as he says at paragraph 41, the P Pty Ltd shares came out of escrow on 7 February 2020, and that they then sold approximately 30%, but it is also important to understand that he says that:
On 12 June 2017, I sold my shares in P Pty Ltd to a company called company R for $131,380. The sole director of company R is my de facto partner Ms C. This was undertaken for United States withholding taxation reasons as I am a US citizen. I am still currently the director of P Pty Ltd.
I note that the father has chosen to put that evidence on in chief, which raises, I think, a variety of concerns about the transaction he describes, depending upon what the value of those shares were on 12 June 2017 and the reason for the sale. In terms of withholding tax, it may be legitimate tax planning, but it raises a number of concerns.
In any event, as I understand it, since the shares are held by company R and the sole director of company R is Ms C, in fact, Ms C owns all of this money and we have heard nothing from Ms C confirming that she, as the person who has and owns the money, is willing to spend hundreds of thousands of dollars educating the father’s children, nor that she would not make some claim back for this money. That is a significant complicating factor. I know that we do not encourage people to put on additional Affidavits because of Practice Direction 2 and the need to run concise interim hearings, but it does seem to me that something from her would be essential if as it appears she, in fact, has sole control over this money.
It may be that his actual financial position, because of the escrow, was such that he paid all the child support he could. However, if he was minimising his child support, and I cannot say whether or not he was, that would raise real concerns. It is a specific consideration under the Act, and one of the reasons is because where a party intentionally minimises child support, regardless of what they say about how much they care for their children, it actually speaks significantly to their character and how much they actually care for their children. Even though sometimes people will say, well, it is not that they do not care for their children, it is just they hate their ex-partner more, that attitude also speaks substantially to their character.
Of course, as I indicate, these are interim parenting proceedings and the parties seek parenting orders as defined in Part VII, Division 5, and I note section 64B and the Court’s power to make orders under 65D. I note that the paramount consideration are the best interests of these children, pursuant to section 60CA and 65AA, and of course the primary consideration when determining the best interests of these children is, first and foremost, to protect the children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence and, secondly, the benefit to the children of having a meaningful relationship with both parents, and those are, of course, the “twin pillars”, as noted in Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520 in 2007.
I also note the additional considerations in section 60CC(3) and that the question of child support and commitment to the children’s financial care was a significant issue that was raised. As was said in Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346 in 2006:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.
And, as was said in Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101, interim hearings and consequential orders:
… are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing…
On that basis, a conservative approach is to be adopted and any factual findings to be made at an interim hearing should be “couched with great circumspection”. That necessarily follows from the fact that what I have is Affidavit material, parties have not been cross-examined, and it is a significantly confined hearing.
However, as was said in Eaby & Speelman (2015) FLC 93-654 in 2015:
…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts.
I also note what was said I Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 in 2015 about the fact that:
…it will be the issues that are joined that will dictate which s 60CC factors are relevant.
The fact that I am significantly constrained in this way is relevant.
I should, in fact, say that, in addition to the evidence referred to, the father indicated that he is a director of A Pty Ltd, which he said recorded a 102% year on year growth between 2015 and 2019, which I must say, since he appears to have been able to significantly increase his income this year, again raises questions about his income previously and his child support payments.
Since the effect of that evidence seems to be seeking to suggest that this is a very successful company, in which case the reason why he has been paid $51,000 a year to work in it as a director is one of those unanswered questions that one has during an interim hearing.
He says the revenue in the financial year ending 30 June 2020 was $1.7 million, and “We expect a 50 to 100% growth rate based on current growth trends between 2020-2021”. The company R Family Trust owns 25% and Ms C personally owns the other 75% of A Pty Ltd, that is he is a director but it is not his company either it is Ms C’s. And he does seem to have been, if it is a very successful company, he seems to have been working on a relatively low wage, given one’s knowledge of labour markets and the fact that that is not much above the base wage an unqualified person gets working in retail in a shop in Sydney.
In any event, the father’s case is he has been spending sporadic time with the children. He said it was difficult because he is in Melbourne and they are in Sydney, and so he wanted to come once a month. I note to the extent to which money was said to be an issue, I cannot see, given what the father’s evidence is, how that can be any issue at all now, and why he now cannot just fly to Sydney every second weekend to see the children in a normal pattern one would have if people lived in the same city, subject to quarantine and state borders.
Where money is not an issue any more, I do not understand why the parties have agreed that the idea that he had to come only during the week once a month was appropriate.
I then note that the mother raises some very concerning issues in her Affidavit. As I have said, these are interim hearings. I cannot make any findings and I note the allegations are contested. She sets out her concerns in particular at paragraph 13 of her Affidavit, where she said:
During the marriage, Mr Grist exhibited controlling and coercive behaviour towards me. For example, he used location services on my mobile phone to track my location. On occasions, he asked me to send him photographs or leave my webcam on so he could see I was in my office. He installed remote access software on my computers to monitor what I was doing and access my emails. He took my mobile to read my messages and check my voice calls. He also called any numbers he did not recognise on my phone bill to find out who I was speaking to. He sent me up to 50 texts a day while I was at work and if I did not respond he contacted my colleagues. This was extremely distressing for me. In late 2012, I sought support from a psychologist who recommended I leave the relationship.
Now, this is in contest and I can make no finding about it, but I will note that that is, if true, a description of what is extremely concerning family violence of the kind which would be expected to have a significant, if not an overwhelming, effect upon any Court orders made. That kind of behaviour is corrosive and destructive, and children who are exposed to people who have personalities of the kind which makes them think that that kind of Machiavellian manipulation and control is appropriate are likely to be damaged.
As I’ve said, I cannot make any finding, but I note that that is what has been raised, and that is a matter of grave concern to me, which is one of the many reasons I propose to appoint an Independent Children's Lawyer.
I note that both parties refer to the event on 24 October 2013, and there is a dispute about what occurred. I can go no further than that.
Now, the mother sets out at paragraph 60 on page 50 of her Court Book certain events. The father says that the mother has not let the children travel with him. She says that she disputes this. So there’s a “she says - he says” different things happened. But, regardless of what occurred, and I note she said she agreed to the travel but stated that the father would have to pay his outstanding child support first, as there was a departure prohibition order against him and I note that, in due course, that will be easily able to be proved or disproved, but no one is in a position to do that at the moment, but she says that, ultimately, the father informed her he was travelling to the United States with his partner without the children, and he messaged both children.
Now, in this regard, we do, in fact, have some text messages, and it was not contested these were from the father, and I think these need to be read onto the record.
At page 77 of the mothers Court Book, I will not read all of it onto the record, but I note that the entirety of the material on pages 77 and 78 should be considered in the context of what the mother said. It seems uncontentious that the father sent the following text messages, firstly to his son:
Hi X, it is with great sadness that I need to inform you that your mother has refused to sign the travel documents to come with me to the US. So you will not be travelling with us to see your family. I'm sorry your mother has blocked you from travelling with me once again. I love you more than anything. Love Dad.
It appears he also sent a similar text to his daughter, a 9 or 10-year-old girl, saying:
Hi Y, it is with great sadness that I need to inform you that your mother has refused to sign the travel documents to come with me to the US. So you will not be travelling with us to see your family. I'm sorry your mother has blocked you from travelling with me once again. I love you more than anything. Love You.
And there is evidence of the father and his children talking about what has occurred, and as I understand it the following is a comment from the father, although it’s not clear in text message to which child, sorry it is clearly to the daughter:
She is lying. I’m sorry, Y.
I indicated during the course of oral submissions that I have read the text messages closely and with some concern, but I must say that, having gone back to read all the material again, my concern has deepened significantly.
The text messages speak for themselves, but, regardless of what has occurred, for the father to send those text messages to his children troubles me enormously.
I then note that the mother, giving evidence earlier in her Affidavit at paragraph 51 on Court Book page 49, had said that she had had an argument with the father about holidays for the children and that he had said to her that he would (emphasis added):
“This is your last opportunity to let me see the kids before I drag you through Court. I want them 3 weeks in a row. If you don't give them to me in that fair manner, I won't take them over Christmas. I will take them after that and I will drag you along where ever I please."”
Now, of course, that is her untested version of the discussion.
However, when one goes to the father’s text messages at page 81, which is referenced back at paragraph 77, talking about his capacity to pay and other matters, he says (emphasis added):
That's almost $6M in shares and growing and I'm currently the sole director in charge
No the only negotiation is in court
You know I can afford it I offered it in my lawyer’s letter you rejected it
That’s on you
Everyone in the world including the school can see that I can afford it
#stillbeingdifficult gonna sabotage her own son.
I can’t wait for him to see what you really are
And the court will see it
Then everyone will know.
And there is further discussion about schooling, and he says (emphasis added):
You can reply back now to my lawyers or ruin X’s relationship with you.
It then continues, where he says (emphasis added):
And you’ll be the only one to blame
And like a borderline personality person you get off on these interactions because the give you a twisted sense of significance. Like the family councillors(sic) said last time. Your kids will learn to hate you when they understand how you have restricted access and worked against their best interests. Even buying a white couch with the money I sent instead of giving X Tennis lessons. You are ultimately in this for yourself and they will learn.
Their only hope of going to private school is me, and you’re going to do your best to sabotage that
I will have the courts acknowledge this one [d]ay
I will invest the time and money in 2020 and will drag this out.
And I will make you pay as I pay
And I will show you then how broke I was and how different not broke looks
Rich doesn’t let you get away with removing access to kids
But I have to for now.
Again, I had read that briefly before oral argument, but reading it again in the context of the mother’s allegations about the father’s conduct and noting that this is not one of those questions where the Court must be cautious because it’s word against word, but I have here the father saying, “You can negotiate in court”, and it appears his goal is to use these proceedings and this process to make X see the mother for “what she really is”, which is to say what the father wants X to see her to be, and that she can do what he tells her or she can see her relationship with her son ruined.
From his own words set out above I have the gravest doubts about this father’s suitableness to be involved with these children.
I am not a psychiatrist and I have not heard the whole matter, but these things raise the gravest doubts in my mind. He also seems intent on using the Court as a mechanism for financial abuse, which is now recognised as a significant abuse of process and as a significant form of ongoing family violence, and again I emphasise that I am not relying upon the mother’s untested evidence but upon the father’s own text messages, which I think can, therefore, be given enormous weight as a true insight into his mind. It is in that context that I then consider the rest of the matter.
It goes without saying that these text messages cause the grave doubts they raise in me about the father’s insight into his children’s wellbeing.
I note the text messages sent to them as if to a lawyer, saying “It is with great sadness that I need to inform you …” while saying that this is all their mother’s fault.
Also saying that he seems to be quite happy to use this Court process as a way to make the mother pay, to be dragged out and perhaps to try and have his son see her the way he sees her so that, if she doesn’t do things his way, he will destroy her relationship with the child.
It is very concerning evidence from the father about the father.
We then come to the proposal for schooling and I refer to what I said previously about the difficulty of the parents engaging.
The father’s text messages must raise real doubts about the capacity of these parties to agree on the appropriate payment for either child to go to these schools.
At the moment, I think the father’s proposal is utterly unworkable and, indeed, given what he said in those text messages, although I can make no finding, I think an inference must arise that he may have a collateral purpose, which is not only to promote himself in the children’s eyes but to take control of their lives and also, possibly, if the mother does not agree to everything he says, to use that as a way to try to undermine the children’s relationship with their mother.
I again am very conscious of the limitations upon an interim hearing, and so I make no formal finding, but those text messages, which I repeatedly raised in oral submissions and in respect of which the father’s counsel did not seek to make specific addresses, though I am not sure there is much he could have said, weigh very heavily with me.
I note the children’s wishes, particularly X’s, but given what I have read here in this material I have grave doubts about what is going on. Of course he has those views if the father says to his 14-year-old, “You can go to an elite private school, live a life with the wealthy”.
If these were two parents who got on extremely well, and if there was money and if they could agree and if I was satisfied that they have no problem not only with the money but agreeing what should happen, that would be one thing; but that is not the case we have here.
I am also concerned when I read in the Child Inclusive Conference Memorandum of Ms S of 8 September 2020 what Y had to say in terms of time with at paragraph 26. She said she should see her father more as, quoting Y, “it would be fair” and then suggested between 5 and 7 days per month, when that is what the father has proposed.
Now, I think it follows, given what I have said, that, at the moment, I am not at all persuaded that the proposal the father has made in respect of schooling can work.
I understand, given the father’s text messages, the mother’s concerns that, without real certainty about the amount of money, and I note that the amount offered does not cover extras and that can be very large, and also without any satisfaction the parties would be able to agree upon the extracurricular activities and what is appropriate, without any evidence from the person who apparently actually has and owns the money, I think at the moment the father’s proposal is utterly unworkable.
I note that I am also not satisfied the children’s education is not very good at the excellent schools provided by the state. Certainly, I am not going to stop the possibility of the parties seeing if they can come to agreement about a way in which this private schooling could work, but at the moment I am not at all satisfied that the father has met the evidentiary or legal onus to persuade me that the children aren’t doing very well at school and, more importantly, I am comfortably satisfied that his present proposal is not workable and therefore not in their interests.
In terms of time with the father during term, for children to be going, whether it is for 3 or 4 nights or for one week a month, during school term to live with him at a different Airbnb every month strikes me as madness.
Children need stability. Now, it’s a completely different thing to say, well, each party lives in Sydney. They have a separate home but each home has its own bedroom for the child; has its own study area for the child. They can take their things and they know that, when they come home to the second home, they go to their desk, which is where they do their study.
To suggest that the children should be studying in a different Airbnb for 4 days or one week a month shows, frankly, a disregard for the children’s educational interests.
The mother’s evidence is that, on these days, the children have difficulty with homework and they do not do it. I understand that is in contest. But I would find it extremely difficult to consider that children of this age would be able to comfortably go to a new Airbnb, whether it is on a Monday or whether it is on the Wednesday or if it is for the full week, and set themselves up and then be in a routine which allows them to adequately do their schoolwork.
I consider the proposals to be inconsistent with any kind of educational attainment.
I see the mother has agreed to it for 4 days, but I am obliged to exercise my independent judgment and I am not satisfied it is appropriate.
I also note that it started in circumstances where the father had issues as to his financial capacity. Well, he says now he has no issues whatsoever. In those circumstances, I cannot understand why the time with the children should not occur on every second weekend, or something along those lines, as it does in a usual family law cases.
He has got more than enough money to fly up every second weekend on a regular basis and see the children and stay with them at a BnB or Airbnb, and it doesn’t matter, necessarily, then if they go from Friday after school until Sunday afternoon, or they can do their weekend homework on Sunday evening, but I cannot countenance and will not countenance either current proposal.
Having said that, I then am not going to consider school holidays. It seems to me at the moment that it is not appropriate for me to try and make orders because I have so many questions about what is in these children’s best interests.
I have many concerns about the fact that I have had serious issues raised about the father, in particular through his own texts.
I have had a proposal for school term time which I consider to be inadequate and unacceptable.
In these circumstances, it seems to me that the matter cannot be concluded today and I will unfortunately have to hear the matter again.
I will not make orders in respect of private schooling, but I will allow the parties to consider whether there is some circumstances in which they think they could actually come to an agreement as to an amount of money and a structure, and if the parties can come to an agreement they can, but otherwise the children are to stay at their present schools and to stay at public schools.
In terms of time with the father, it is not for me to try and make orders in this circumstance for the parties, but I am not willing to countenance the orders that have been proposed.
In those circumstances, it seems the only option I have is to appoint an Independent Children's Lawyer so that I have an independent person who can inquire into this and try and assist me.
The next thing is it seems to me that these parties need a Family Report urgently, and since the father has deposed to having access to large sums of money, though the mother does not, and since I have power pursuant to the rules to direct that a Family Report be prepared and that it be paid for of my own motion, and that it seems to me given the issues that have been raised that it should be prepared by a psychiatrist, I propose to enter orders that the mother is to propose the names of three psychiatrists within seven days. The father will pick one of those psychiatrists, being people who are experienced in provision of Family Reports. The father will pay for the cost of the report, since he clearly has the financial capacity to do so and she does not. When that report is ready I will bring the matter back for mention and then consider what to do with time with the children and the father.
Otherwise, I do not propose to make orders at the moment except to indicate that each party is restrained by injunction, and solicitors should make it clear that that means on penalty of imprisonment, from discussing these proceedings or the issue of schooling with the children, and in particular the father is not to suggest directly or indirectly to the children that any failure of the children to attend at private schools is the mother’s fault or a consequence of her moral culpability.
Those are my reasons.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge B Smith
Date: 5 November 2020
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Injunction
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Natural Justice
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Procedural Fairness
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Standing
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Costs
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Expert Evidence
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