IANNELLO & IANNELLO (No.2)
[2018] FCCA 3662
•12 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| IANNELLO & IANNELLO (No.2) | [2018] FCCA 3662 |
| Catchwords: FAMILY LAW – Property – interim property orders – orders in place for the sale of the former matrimonial home – evidence that the husband has delayed and has been uncooperative with regards to the sale – s.106A order made. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 68B, 106A Estate Agents Act 1980 (Vic), ss.47A, 47AF |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Goode v Goode (2006) 36 Fam LR 422 Keats & Keats [2016] FamCAFC 156 Marvel v Marvel (2010) 43 Fam LR 348 |
| Applicant: | MS IANNELLO |
| Respondent: | MR IANNELLO |
| File Number: | MLC 3008 of 2018 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 26 November 2018 |
| Date of Last Submission: | 26 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 12 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Marshalls & Dent & Wilmoth Lawyers |
| Counsel for the Respondent: | Ms Jenkins |
| Solicitors for the Respondent: | Bayside Family Law Solutions |
| Solicitors for the Independent Children's Lawyer: | Ms Kourtis, McKean Park Lawyers |
PENDING FURTHER OR OTHER ORDER:
Parenting
Paragraph 2 of the interim orders made by Judge C E Kirton QC on 4 May 2018 be discharged.
The Wife have sole parental responsibility for the child [X] born [date] 2005 ([X]) in relation to [X]’s attendance upon a counsellor in accordance with the interim consent orders made by Judge C E Kirton QC on 26 October 2018.
The parties otherwise have equal shared parental responsibility for the children [X] and [Y] born on [date] 2008 (Children).
Pursuant to s.68B(1) of the Family Law Act 1975 (Cth), the Husband and the Wife be and are hereby restrained by injunction from initiating communication to, or accepting communication from, the Children while the Children are not living with them and the Independent Children’s Lawyer forthwith meet with the Children to explain this order to them.
Property
Pursuant to s.106A(1) of the Family Law Act 1975 (Cth) a Registrar of the Federal Circuit Court of Australia at Melbourne be forthwith appointed to:
(a)Execute all deeds or instruments in the name of the Husband necessary to give effect to the sale of the former matrimonial home situate and known as Property A in the State of Victoria being more particularly described in Certificate of Title, pursuant to the interim consent orders made by Judge C E Kirton QC on 26 October 2018; and
(b)Do all acts and things necessary to give validity and operation to any such deed or instrument.
AND THE COURT ORDERS BY CONSENT THAT:
Within 24 hours of the making of this order the Husband do all acts and things and sign all documents necessary to transfer the Wife’s mobile phone number to her control, at her expense if any.
AND THE COURT ORDERS THAT:
The costs of the parties and the Independent Children’s Lawyer of and incidental to the Wife’s Initiating Application filed 21 November 2018 be reserved.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) 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 the Annexure and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Iannello & Iannello (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
MLC 3008 of 2018
MS IANNELLO
Applicant
And
MR IANNELLO
Respondent
REASONS FOR JUDGMENT
Introduction
This is an interim decision in relation to parenting and property proceedings. The parenting proceedings concern two children, [X], born [date] 2005 and [Y], born [date] 2008 (Children). The Applicant is the mother and the Respondent is the father of the Children.
This is the second occasion that the Court has been required to deliver an interim decision in relation to matters that have arisen in dispute between the Husband and the Wife in this proceeding.
Issues to be determined
The issues in dispute are set out in the Wife’s Application in a Case filed on 21 November 2018 and the Wife’s Affidavit in support of her Application in a Case[1].
[1] Wife’s Affidavit, filed 21.11.18.
The Wife seeks the following orders in relation to parenting:
a)Paragraph 2 of the interim orders made on 4 May 2018 be discharged.
b)The Wife have sole parental responsibility for [X] in relation to [X]’s attendance upon a counsellor, in accordance with the interim orders made on 26 October 2018.
c)The parties otherwise have equal shared parental responsibility for the Children.
d)Pursuant to s.68B of the Family Law Act 1975 (Cth) (Act), the parties be and are hereby restrained by injunction from initiating communication to, or accepting communication from, the Children while the Children are not living with them and the Independent Children’s Lawyer (ICL) forthwith meet with the Children to explain this order to them.
The Wife seeks the following orders in relation to property:
a)Pursuant to s.106A of the Act, the Wife be appointed to execute all deeds or instruments in the name of the Husband necessary to give effect to the sale of the former matrimonial home pursuant to the interim orders made on 26 October 2018 and further to do all acts and things necessary to give validity and operation to any such deed or instrument.
In the alternative
Pursuant to s.106A of the Act, a Registrar of this Honourable Court be appointed to execute all deeds or instruments in the name of the Husband necessary to give effect to the sale of the former matrimonial home pursuant to the interim orders made on 26 October 2018 and further to do all acts and things necessary to give validity and operation to any such deed or instrument.
b)Within 24 hours the Husband do all acts and things and sign all documents necessary to transfer the mobile phone number of the Wife to her control at her expense, if any.
c)Costs.
Synopsis
I have determined in relation to the parenting issues that it is in the Children’s best interest that:
a)The Wife have sole parental responsibility for [X] in relation to [X]’s attendance upon a counsellor in accordance with the interim consent orders made on 26 October 2018.
b)The Husband and the Wife otherwise have equal shared parental responsibility for the Children.
c)The Husband and the Wife be restrained by injunction from initiating communication to, or accepting communication from, the Children while the Children are not living with them and the ICL forthwith meet with the Children to explain the order.
I have determined in relation to the property issues that a Registrar of the Federal Circuit Court be appointed pursuant to s.106A of the Act, to execute all deeds or instruments in the name of the Husband necessary to give effect to the sale of the former matrimonial home at Property A (Property A Property) pursuant to the interim orders made on 26 October 2018 and further to do all acts and things necessary to give validity and operation to any such deed or instrument.
The parties have agreed to a consent order that the Husband do all acts and things and sign all documents necessary to transfer the mobile phone number of the Wife to her control at her expense, if any.
The reasons for my determination follow.
Background
I have previously set out the history of the parties’ marriage and relationship in Iannello & Iannello[2] and I do not propose to repeat it in this judgment.
[2] [2018] FCCA 3528, at [3]-[10].
Procedural History
The Wife commenced this proceeding on 20 March 2018 seeking parenting orders. The Wife sought interim and final orders that the parties have equal shared parental responsibility for the Children and that the Children live with the parties on a shared care basis, with changeover to take place after school on Fridays each week. The Wife also sought orders that the Husband attend upon a psychiatrist for a cognitive function assessment and that the Husband authorise Maurice Blackburn to make available the Husband’s personal injury file. The Wife also sought orders for a family report.
In his Response filed on 23 April 2018, the Husband sought interim orders that the parties have shared parental responsibility for the Children. He also sought interim orders that the Children live with him and spend time with the Wife during term time:
a)Each alternate week from 6.00 pm Friday to the commencement of school Monday.
b)Each Wednesday evening from 6.00 pm – 8.30 pm.
The Husband also proposed school holiday time for the Wife on a week about basis, provided that she was in substantial attendance. The Husband made no proposals for final parenting orders.
This proceeding first came before the Court in the Duty List on 26 April 2018. It was then adjourned to 4 May 2018 for an interim hearing in relation to the living arrangements for the Children.
On 4 May 2018 I made interim orders that included:
a)The parties have equal shared parental responsibility for the Children.
b)The Children live with the parties on a week about basis, with changeover to occur at the conclusion of school each Friday (or 4.00 pm), commencing 5 May 2018.
c)The parties to attend on Ms A on 5 June 2018 for the purpose of the preparation of a family report.
d)The Husband to provide to the Wife by 5 June a completed cognitive report and that the consolidated report completed in 2017 shall be sufficient and be provided to Ms A.
e)The Wife to file an amended initiating application to include a property claim and her financial statement by 25 May 2018 and the Husband to file his amended response and financial statement by 15 June 2018.
f)The adjournment of the proceeding to 3 August 2018 at 9.30 am for mention.
On 30 May 2018 the Wife filed her Amended Initiating Application and Financial Statement seeking interim orders that:
a)The Property A Property be sold.
b)The parties’ caravan be sold.
c)The Husband make disclosure in relation to his personal injury file held at Maurice Blackburn.
d)The Husband forthwith do all acts and things and sign all documents necessary to transfer to an account nominated by the Wife the use of her personal mobile phone number.
e)There be a payment of $20,000 to the Husband from the parties’ Bank 1 account ending (Offset Account), with the sum to be characterised at settlement.
The Wife sought final property orders that there be a just and equitable adjustment of the parties’ property and superannuation.
On 28 June 2018, the Husband filed an Amended Response to Initiating Application and Financial Statement seeking interim property orders that included:
a)That $20,000 be paid to the Husband with such sum to be characterised at trial.
b)The Wife pay the Husband $1,000 a week spousal maintenance.
c)The parties be restrained by injunction from withdrawing any further funds from the Offset Account.
d)The Wife be restrained from dealing with any work bonus received by her in the course of her employment and immediately deposit same into the Offset Account.
e)The parties do all such things necessary to refinance the mortgage/s secured over the Property A Property to interest only payments.
f)The Wife provide disclosure of various documents.
g)Costs.
The Husband sought final property orders that there be a just and equitable adjustment of the parties’ property.
On 21 June 2018 the Husband’s solicitors filed a subpoena (First Telstra Supoeana). The documents sought to be produced pursuant to the First Telstra Subpoena were as follows:
2. For the period 1 July 2016 to present:
(a) all telephone records from the telephone number
[numbers omitted] including all invoices rendered, all incoming and outgoing call and SMS text records, including the location from which each call/text was made or received; and
(b) All other information relating to the geolocation of the telephone with regard to the mobile telephone towers during this period.
The Wife’s solicitors filed a Notice of Objection – Subpoena on 3 July 2018.
The Husband filed a Further Amended Response to Initiating Application on 31 July 2018. The Husband sought interim parenting orders that:
a)An Independent Children’s Lawyer be appointed.
b)The parties engage in reportable family therapy with the children with Dr B or such other therapist as agreed.
c)The orders made on 4 May 2018 that the Children live with the parties on a week about basis be discharged.
d)The Children live with the Husband and spend time with the Wife:
i)In week one of a two week cycle from the conclusion of school on Friday, or 3.30 pm, until to commencement of school Monday; and
ii)In week two of a two week cycle, from the conclusion of school Thursday, or 3.30 pm, until the commencement of school.
The Husband sought additional interim property orders:
a)For spousal maintenance that:
i)The Wife do all things to immediately reinstate the Husband’s full private health insurance and membership with the [omitted] Health Fund pursuant to the Wife’s family policy.
ii)The Wife be responsible for and reimburse the Husband for all costs and expenses incurred by the Husband as a result of the Wife’s removal of the Husband from the [omitted] Health Fund on 13 July 2018.
iii)The Wife pay the following expenses:
A.The hire purchase repayments, comprehensive insurance and registration costs for the Husband’s Motor Vehicle;
B.The home and contents insurance for the Property A Property;
C.The insurance payments for the caravan;
D.The Husband’s private health insurance with [omitted] Health Fund.
b)The Wife within 14 days do all things necessary to complete and lodge all outstanding tax returns and provide copies of the completed tax returns and notices of assessment to the Husband’s solicitors.
The Husband’s solicitors filed a second subpoena on 7 August 2018 addressed to The Proper Officer of the Telstra Corporation (Second Telstra Subpoena). The documents sought to be produced pursuant to the Second Telstra Subpoena were the same categories of documents as the First Telstra Subpoena but related to mobile phone number [omitted].The documents sought to be produced were for the same period as the First Telstra Subpoena, being from 1 July 2016 to the present.
The Wife’s solicitors filed a subpoena on 6 August 2018 addressed to The Proper Officer, Maurice Blackburn (Maurice Blackburn Subpoena). The documents sought to be produced pursuant to the Maurice Blackburn Subpoena were as follows:
All files, records, correspondence, emails, file notes, other notes, reports, memoranda, drafts and any other document constituting instructions, advice or records in relation to any claim for compensation of any kind arising out of the injury suffered on or around October 2012 by [the Husband].
The Husband’s solicitors filed a Notice of Objection – Subpoena on 10 August 2018.
On 3 August 2018 at the mention of this proceeding:
a)The proceeding was listed for 13 August 2018 at 9.00 am to hear the objections in relation the First Telstra Subpoena, the Second Telstra Subpoena and the Maurice Blackburn Subpoena (Subpoena Dispute).
b)The proceeding was listed for 27 September 2018 at 10.00 am to hear the Husband’s claims for payment set out under the headings “Property” “Interim payment” and “Spousal maintenance” in paragraphs 1 to 4 of the Further Amended Response to Initiating Application, filed 31 July 2018 (Spousal Maintenance Claim).
c)The Independent Children’s Lawyer was appointed.
d)The proceeding was listed for final hearing on 20 May 2019.
On 13 August 2018 I heard the interim hearing in relation to the Subpoena Dispute. At the conclusion of submissions, I made orders setting aside the First Telstra Subpoena and the Second Telstra Subpoena. In relation the Maurice Blackburn Subpoena, the following Orders were made:
a)Within 28 days from the date of this Order, the Respondent file and serve an affidavit from the partner at Maurice Blackburn who has the conduct of the Respondent’s compensation claim arising out of the injury suffered by the Respondent on or about [date] 2012, deposing to the following matters:
i)When the compensation claim was commenced and the jurisdiction or jurisdictions commenced in;
ii)The amount of moneys paid to the Respondent to date, when the moneys were paid, what the moneys were received for from whom and how they were disbursed;
iii)The stage the compensation claim is presently at;
iv)The likelihood of further payments to the Respondent, what such payments would be for, when the Respondent is likely to receive further moneys and the amount.
v)Annexing all reports in relation to any claim for compensation of any kind arising out of the injury suffered by the Respondent on or about [date] 2012.
b)That the Maurice Blackburn Subpoena is otherwise set aside.
The Reasons for Judgment were delivered subsequently in Iannello & Iannello[3] .
[3] [2018] FCCA 3528.
On 27 August 2018 the Wife filed a Notice to Admit Facts. The facts sought to be admitted related primarily to the Husband’s expenses and his receipt and non-disclosure of the sum of $161,221.20 on or about 8 March 2018.
A response to the Notice to Admit Facts was not filed by the Husband’s solicitors.
On 25 September 2018 the Husband filed a second Further Amended Response to Initiating Application and a second Financial Statement and an Affidavit in support[4]. In the second Further Amended Response to Initiating Application the Husband:
a)Abandoned the Spousal Maintenance Claim, being the Husband’s claim for payment of the sum of $25,000 and periodic spousal maintenance of $1,000 a week and the payment of other expenses.
b)Made application for interim orders that:
i)The Husband retain his shareholding for his sole use and benefit with such sum to be characterised at trial;
ii)In the event the Wife becomes eligible for an employment bonus from her current employer, [employer omitted], that she (amongst other things) pays to the Husband (via his solicitors) 50% of the employment bonus.
[4] Husband’s Affidavit, filed 25.9.18.
The parties and the ICL participated in a mediation on 22 October 2018 with Mr Melilli of Counsel as the mediator (Mediation). The matter did not resolve either the parenting or property matters in dispute, however the parties were able to agree upon some interim consent orders.
On 26 October 2018 orders were made by consent in chambers (October Orders). These may be summarised as follows:
a)The parents do all things necessary to arrange for [X] to attend upon a psychologist nominated by the ICL for the purposes of confidential counselling.
b)For the purpose of a):
i)The parent with the care of [X] on the day of any appointment for counselling is responsible for arranging for [X]’s transport to and from the appointment;
ii)The consent orders made on 3 August 2018 are varied to permit the parties to use the funds from the Offset Account to cover the cost of counselling after any health insurance or mental health plan rebate; and
iii)The ICL is permitted to provide the psychologist with a copy of the family report dated 18 October 2018.
c)Within 14 days the parties do all things necessary to list the Property A Property for sale with Mr C of [Real Estate] (Property A Property Sale).
d)The terms and conditions of the Property A Property Sale include the following:
i)The reserve price be set at $1,100,000;
ii)The Property A Property Sale be by public auction and in the event of failure to sell at public auction, by private sale;
iii)The settlement period be not more than 90 days;
iv)All other terms and conditions be as agreed between the parties and in default of agreement as nominated by the President for the time being of the Real Estate Institute of Victoria or their nominee;
v)For the appointment of a conveyancer for the sale, the Wife shall nominate a panel of three options with a trust account facility and the Husband shall choose one of those names;
e)Pending the sale and settlement of the Property A Property:
i)The Husband have the sole right to occupy the property save that he must vacate no less than 10 days before settlement;
ii)The Husband hold his interest in the property on trust for the parties;
iii)The Husband maintain the property in good condition and comply with reasonable requests for the selling agent regarding presentation;
iv)The Husband and Wife comply with requests of the selling agent as to works to be undertaken with such cost to be paid at settlement where possible, or paid by the parties in equal shares to be reimbursed in accordance with paragraph (f)(i) below.
f)Upon settlement of the Property A Property Sale, the Husband and the Wife direct the proceeds of sale and the balance then remaining in the Offset Account into a joint bank account to be applied as follows:
i)Firstly, to pay the costs and commissions of sale, including costs incurred by the parties in complying with requests by the selling agent for undertaking works for the sale;
ii)To discharge any bank encumbrance;
iii)The balance to be held on trust in an interest bearing account until further order or by agreement in writing.
On 23 October 2018 an Affidavit of Aleksandar Calic was filed on behalf of the Husband. Mr Calic deposed that he is an Associate at Maurice Blackburn Lawyers and that he has the care and conduct of the Husband’s claim for compensation pursuant to the Accident Compensation Act 1985 (Vic). Mr Calic deposed that the Husband’s claim arises out of an injury suffered by the Husband in the course of his employment with [employer omitted] on or about [date] 2012[5]. Mr Calic exhibited to his affidavit a number of medical reports and other medical information relating to the Husband.
[5] Affidavit of Aleksandar Calic, filed 23.10.18, at [1].
On 19 November 2018, the ICL filed an affidavit from Ms A annexing the Family Report, dated 18 October 2018 (Family Report).
On 21 November 2018, a Notice of Address for Service was filed on behalf of the Husband, indicating that from that date Bayside Family Law Solutions acted for the Husband.
On 21 November the Wife filed the Application in a Case (Application in a Case) and her supporting affidavit[6], which raised the issues in dispute in this Judgment.
[6] Affidavit Wife, filed 21.11.18
On 26 November 2018 the Husband’s former solicitors filed a Notice of Withdrawal as Lawyer. The Notice of Withdrawal as Lawyer stated that a Notice of Intention to Withdraw as Lawyer had been served on the Husband on 19 November 2018 by email and express post sent to the Property A Property.
On 26 November 2018 I heard the interim hearing in relation to the Application in a Case and reserved judgment.
I will first consider the parenting issues in dispute.
Parenting Issues to be Determined
The Wife’s Counselling Proposal
The Wife proposed the orders referred to in paragraph 4(a) to (c) (Counselling Proposal):
The ICL supported the Wife’s proposal that the Wife have sole parental responsibility in relation to [X]’s attendance upon a counsellor in accordance with the October Orders.
The Husband’s Proposal
The Husband opposed the Counselling Proposal and sought that the orders made on 4 May 2018 in relation to parental responsibility remain in place.
Non-Communication with Children Proposal
The ICL’s Non-Communication Proposal
The ICL suggested that the parents each be restrained from initiating communication with or accepting communication from the Children when the Children are not living with them[7].
[7] Letter from McKean Park Lawyers to Marshalls & Dent & Wilmoth and KHQ Lawyers dated 31.10.18, Wife’s Affidavit, filed 21.11.18, Annexure “I-1”.
The Wife proposed the order referred to in paragraph 4(d) (Non-Communication Proposal):
The Husband’s Proposal
The Husband opposed the Non-Communication Proposal.
The Court has been requested by the parties to determine these two parenting issues in relation to the Children pending the final hearing of this proceeding. I now turn to consider these parenting matters.
The Law
Section 61DA of the Act provides, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. If there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child the presumption does not apply. The presumption may be rebutted if it is otherwise not in the best interests of the child or the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In determining this application the Court must consider what orders are in the Children’s best interests: s.60CA of the Act. In determining what is in the Children’s best interests the Court must consider the matters set out in s.60CC of the Act. Section 60CC sets out the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the Children. Each of those matters where relevant, must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in the Children’s best interests.
The Court is not bound by the parties’ respective proposals (AMS v AIF[8] and U v U[9]).
[8] (1999) 199 CLR 160.
[9] (2002) 211 CLR 238; [2002] HCA 36.
In applying the primary considerations the Court is to give greater weight to the considerations set out in s.60CC(2)(b): s.60CC(2A).
The Full Court of the Family Court in Goode v Goode[10] mandated that the legislative pathway must be followed in all parenting cases and set out the procedural steps to be followed in interim proceedings[11]. It was noted by the Full Court that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place[12].
[10] (2006) 36 Fam LR 422.
[11] Ibid., 445, at [81]-[82].
[12] Ibid., 445, at [82].
In Marvel v Marvel[13] the Full Court of the Family Court made the following obiter comments:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing….[14]
[13] (2010) 43 Fam LR 348.
[14] Ibid., at [120].
In Keats & Keats[15] the Full Court of the Family Court held in respect of interim proceedings:
[…] that apart from relying upon the uncontroversial or agreed facts, a judge may 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.[16]
[15] [2016] Fam CAFC 156.
[16] Ibid., at [9].
An interim hearing is therefore by its very nature a curtailed hearing. Evidence is limited and the matter is decided on the papers.
I will first consider the primary considerations of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
The Interim Orders made on 4 May 2018 provide that the Husband and Wife have equal shared parental responsibility for the Children. They also provide for the Children to live with the parties on a shared care basis, with changeover to take place after school on Friday each week.
Ms A reported in the Family Report that:
[X] and [Y] have an attachment to both their parents and their parents have a strong bond with their children. They both reported positively about each parent[17].
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[17] Family Report, at [120].
A significant issue has developed in this case in relation to protecting the Children from psychological harm, in particular [X].
Counselling for [X]
Ms A reported in the Family Report:
Shortly into her interview [X] broke down crying. While initially putting on a brave front it was clear that the family’s separated circumstances distress and overwhelm her… It was abundantly clear that [X], some 7 months after her parents’ separation, is still finding it difficult to cope with the separation[18].
[18] Ibid., at [81].
Ms A recommended:
That [X] attend counselling to support her through emotional issues; not to validate any wishes or views but to assist her emotionally[19].
[19] Ibid., at [154].
At the Mediation the parties and the ICL agreed that [X] should attend counselling[20]. The parties and the ICL signed a Minute of Consent Orders which became an order in the October Orders, as follows:
1. The parents do all things necessary to arrange for [[X]] to attend upon a psychologist nominated by the [ICL] for the purposes of confidential counselling.
[20] Wife’s Affidavit, filed 21.11.18, at [7].
On 31 October 2018, the ICL sent to solicitors for the Husband and the Wife a letter nominating Ms D to undertake the confidential counselling with [X] [21]. The letter said:
Firstly, we confirm the agreement reached by the parties at mediation about the immediate commencement of confidential counselling for [X] by a psychologist nominated by the [ICL]. We nominate Ms D to undertake confidential counselling with [X]. Ms D’s rooms are located at [omitted]. We understand her next available appointment is in early December 2018 and the cost is $185 per hour. If a Mental Health Care Plan is obtained, a rebate of $84.80 applies. In order to make an appointment, one of the parties should contact Ms D’s Practice Manager…[22]
[21] Ibid., Annexure “I-1”.
[22] Loc. cit.
On 1 November 2018, the Wife’s solicitors wrote to the Husband’s solicitors and the ICL informing them that the Wife would attend a general practitioner with [X] and obtain a mental health plan for [X]. The Wife also sought the Husband’s agreement to organise an appointment for [X] with Ms D at 12.00 pm on 23 November 2018[23]. There was no response from the Husband’s solicitors to this correspondence.
[23] Wife’s Affidavit, filed 21.11.18, Annexure “I-2”.
On 8 November 2018, the Wife’s solicitors sent a further letter to the Husband’s solicitors and the ICL requesting an urgent response to their letter of 1 November 2018 and advising that the Wife had obtained a mental health plan for [X] [24].
[24] Ibid., Annexure “I-3”.
On 14 November 2018, the Wife was informed by her solicitors that the Husband’s former solicitors did not hold instructions from the Husband in relation to any issue[25].
[25] Ibid., at [11].
The Husband had not provided his consent to Ms D for [X] to attend counselling with her by 21 November 2018[26], when the Wife’s solicitors filed the Application in a Case.
[26] Loc. cit.
Counsel for the Husband submitted by way of explanation for the Husband’s behaviour:
What happened is that following the mediation my client has had a falling out with his previous solicitors, and what’s attested to in the wife’s affidavit is that her solicitors wrote to him and the independent children’s lawyer on 1 November. I understand that was through his previous solicitors, and on 14 November they have informed then (sic) that they did not hold instructions for the father. Now, what, in short compass, his instructions to me are is that he does not have any difficulty with Ms D, who was the counsellor that has been nominated by the independent children’s lawyer, being the person to do the counselling[27].
[27] Transcript T 7:24-32.
Counsel for the Husband submitted that the Court should be careful before making an interim order for sole parental responsibility on untested assertions. Counsel submitted that the Court should order that the Husband’s written consent not be required in order to facilitate [X]’s attendance at counselling. It was submitted that:
[…] it has only been a couple of weeks, not months and months where my client is said to have thwarted that process. Now, he disputes entirely that he has done that…[28]
[28] Transcript T 19:1-2.
Counsel for the Wife submitted that it was absurd for the Husband to submit that he was unable to engage a psychologist nominated by the ICL for his daughter because he had a falling out with his solicitors. Counsel also submitted that the Husband giving his consent to Ms D to provide the counselling for [X] was just a “hollow consent”[29]. The Husband had been previously ordered to do all things necessary to arrange for [X] to attend counselling in the October Orders.
[29] Transcript T 8:19.
Counsel for the Wife further submitted that the Husband’s behaviour demonstrated why it was necessary that an order in accordance with the Counselling Proposal be made. As the Husband and Wife have joint parental responsibility for [X], Ms D required the consent of both parties before she could commence the counselling with [X]. Counsel for the Wife submitted that unless the Wife had sole parental responsibility for [X] in relation to [X]’s counselling, [X]’s counselling would continue to be impeded due to the Husband’s uncooperative behaviour.
It was further submitted by Counsel for the Wife that [X]’s counselling had been carefully identified as a discrete parental responsibility that needed to be excised from the equal shared parental responsibility that the parties currently have. If an order was made in accordance with the Counselling Proposal, the parties would otherwise continue to have equal shared parental responsibility on all other matters.
The ICL supported the Counselling Proposal because it was limited to a discrete issue. The ICL expressed concern that the Husband and Wife had reached agreement about the counselling for [X] weeks earlier and that consent orders had been made, however the agreement had still not been implemented. The ICL submitted that the counselling should take place as quickly as possible because of the evidence in the Family Report about [X]’s distress and the benefit that she would receive from having some counselling support.
Children’s telephone communication with the Husband
Ms A reported in the Family Report in relation to [X]:
[X] told the psychologist that her father telephones her every day, that he may call her twice a day; that they may speak with each other in the morning when she is on the school bus, after school, after sport and after dinner. [X] said it was ‘… good to speak with him’.
It was evident that [X] wanted to portray the number of telephone calls as small, but at the same time acknowledged that, ‘I do speak to him a lot’. In those telephone calls, and, she insisted, not in every call, ‘He says he misses me; that he wants to cook dinner with me and sit down and watch TV with me’. Her father also tells her that ‘… the dog misses you’, and she tells her father she misses the dog. Asked why she thought her father missed her, [X] was clear, ‘Because nobody’s there with him, because he’s lonely’. [X] told the psychologist her father tells her he is lonely. [X] was distressed when telling the psychologist, ‘I know nobody is there and I want to go and see him all the time’[30].
[30] Family Report, at [83]-[84].
Ms A reported in the Family Report in relation to [Y]:
[Y] also spoke of telephone calls from his father; reporting calls once or twice a day; but at the same time adding, ‘He calls me a lot’. [Y] told the psychologist he feels ‘… very sad’ speaking to his father. His father tells him, ‘I miss you really a lot; I wish you are over here’; and adding that, ‘Sometimes he says, “I’m lonely. I wish you were here’.
Therefore, of course, [Y] perceives his father is lonely; whereas his mother is ‘not much’ lonely, because she has friends. [Y] explained that, ‘Dad doesn’t have much friends’. He wondered if his father does have friends, but they do not visit. In any case, [Y] explained, his father ‘… has us to play with most of the time’[31].
[31] Ibid., at [92]-[93].
Ms A questioned the Husband about his constant daily telephone communication with [X]. Ms A recorded the Husband’s response as:
[…] ‘I don’t initiate the call, but I will call her back if she rings’. Further, he reported that in the ‘… last few months’, he had made ‘zero calls’ to [X]. Significantly in the present context, [the Husband] does not consider the telephone calls are excessive; telling the psychologist, ‘I don’t think there is an issue with phone calls’, even if there were, ‘… 100 each day’[32].
[32] Ibid., at [64].
It was noted in the Family Report that “[f]rom his own account it seems [the Husband] does not have a wide social network”[33].
[33] Ibid., at [69].
Ms A reported that she had read the Independent Neuropsychological Report, for the Husband, dated 26 June 2018, prepared by Dr E, Clinical Neuropsychologist. In relation to the Husband’s parenting capacity Ms A concurred with Dr E’s assessment at paragraph 4.2 of Dr E’s report that:
… It is likely that his ability to provide appropriate psychological support to his children is limited. He will have difficulty recognising the character of any emotional distress experienced by his children and providing wise counsel.
Ms A also concurred with the last paragraph of Dr E’s ‘Brief Summary’ on page 1 of the report which said:
…he has limited capacity to provide [the Children] with appropriate psychological support to manage any issues of emotional distress[34].
[34] Ibid., at [101].
In relation to the Husband’s telephone calls to the Children, Ms A concluded:
In interview [the Husband] did not recognise or acknowledge that the constant telephone calls with [X] upset and burden the child. He does not consider the calls excessive. [The Husband] has little or no understanding of the emotional impact on the children when he tells them he is lonely and that he misses them. It is evident that he is unable to separate his own emotional needs from the quite separate emotional needs of the children. To this extent [the Husband’s] own identity is bound up with the children.
It does seem [the Husband] struggles to function adequately as a separate person without the children. And this of course places an inordinate and inappropriate responsibility and sense of duty on [X] and [Y]. [The Husband] demonstrate a lack of reflective capacity, that is, he cannot reflect or understand how it makes the children feel, for example, to know that their father is lonely.
[The Husband] demonstrates a lack of emphatic care, that is, he is unable to understand the children’s emotions or to respond to them, for example, he is unable to understand the impact on the children of the excess of telephone calls, or, of speaking badly about their mother to them[35].
[35] Ibid., at [117]-[119].
Ms A concluded that the Husband’s parenting approach:
[…] places undue pressure, whether deliberate or not, on the children. [The Husband’s] too frequent phone communication with [X] places the child in a position of feeling responsible for her father, and, at the same time, having to manage her own emotional distress about this[36].
[36] Ibid., at [122].
Ms A’s conclusions included the following:
Firstly the children understand very clearly that their father is lonely, misses them and has no friends, compared to their mother, who, they perceived as being sociable with her friends, her family and her work.
Secondly, [X] and [Y] cannot but be influenced by their father’s conversations with them that he is lonely: and cannot but be influenced by their father’s criticisms of their mother; that she is not engaged with them and is not available for them.
Thirdly, the separation has negatively empowered [X] in the parental dispute. [X] receives a lot of attention from her father; he hears her complaints about her mother, often with no context or evidence, but chooses to believe [X] and uses her complaints to criticise the mother’s care.
Fourthly, there are indications that the children are taking on responsibilities beyond their years. [X] indeed appears to be parenting her father. She is aware and attentive to his emotional needs: while he has engaged her in a special friendship.
…The children have been placed in the position whereby they cannot hold unencumbered views, free from the sadness and responsibility they feel for their father[37].
[37] Ibid., at [128]-[132].
The Family Report makes a number of recommendations, one of which is in relation to the Husband’s telephone calls. Ms A concludes and recommends as follows:
The number of telephone calls is excessive and unnecessary. From [X] and [Y]’s account, the content of the calls at times distresses them; it reinforces their view that their father is lonely and misses them. It is strongly recommended that the calls are very significantly reduced to no more than one on a weekday evening to each parent[38].
[38] Ibid., at [137].
The Wife has deposed that:
On approximately three mornings per week, I observe [X] speaking with Mr Iannello at approximately 7:30 to 7:40 in the morning when we are getting ready to leave the house. After school, I typically observe [X] speaking with Mr Iannello on at least two occasions. On weekends, I observe [X] speaking with Mr Iannello at least three or four times each day.
I am aware that [X] is speaking with Mr Iannello because she will end the call by saying “I love you Dad” or she would tell me that she was speaking with Mr Iannello. Mr Iannello has now produced his Telstra statement for the period from 19 May 2018 which confirms my concerns that he is initiating communication with her too frequently.
The statement produced by Mr Iannello discloses that he calls [X] more than four times per day on average. On 6 June 2018, he called her 11 times. On 15 June 2018, he called her nine times[39].
[39] Wife’s Affidavit, filed 13.8.18, at [26]-[28].
The Wife has annexed to her affidavit a table of phone calls made by the Husband to [X] from 19 May 2018 to 18 June 2018, showing the day, date, time and duration of those calls[40].
[40] Ibid, at [28] and Annexure “I-2”.
The Wife estimates that the Husband speaks with [Y] three times a week when [Y] is in her care[41].
[41] Ibid., at [29].
When the Children are in the care of the Husband the Wife has deposed that she usually contacts the Children once a day. The Wife says that she will usually call one child and then speak to the other child on the one call[42].
[42] Ibid., at [30].
The ICL wrote to the solicitors for the Husband and the Wife on 31 October 2018 and noted the recommendation by Ms A in the Family Report in relation to telephone communication between the Children and the parents. The ICL said:
We have considered carefully the issue [of] the level of telephone and electronic communication between the children ([X] especially) and Mr Iannello, and the concerns raised by Ms A about how these communications affect the children. We are very concerned with the observation that the children are aware of and influenced by expressions of loneliness made by Mr Iannello during these telephone calls and the manner in which this burdens the children. In our view, the children should not take the emotional responsibility for the parents’ emotional response to the separation.
We have carefully considered the Family Consultant’s proposal of no more than one communication with the non-resident per parent per week day. Presumably the rationale for this recommendation is that reduced communication would result in a reduction of the behaviour identified as problematic by Ms A. Our concern however is that any communication at all might be problematic because even if Mr Iannello agrees to restrain himself from making any references to his own feelings, the children are already aware of it, and electronic communication will serve to bring this to mind for the children. Accordingly, we would suggest that both parties agree, for the present, that they will not contact the children when they are in the other parent’s care, or accept communications from the children. Should the parties reach such an agreement, it should be explained to the children that such an arrangement is being implemented and that it is by the agreement of both parents. We are agreeable to meeting with the children in order to explain this to them[43].
[43] Wife’s Affidavit, filed 21.11.18, Annexure “I-1”.
The Wife’s solicitors wrote to the Husband’s solicitors and the ICL on 1 November 2018. The Wife’s solicitors noted that there was no suggestion that there was any problem associated with communication between the Wife and the Children when they were in the care of the Husband. They noted that the Wife also shared the concerns expressed by Ms A and the ICL relating to the Husband’s communications with the Children. They said that without prejudice to the Wife’s final position, she agreed to the ICL’s suggestion made in the letter dated 31 October 2018[44].
[44] Ibid., Annexure “I-2”.
The Husband did not respond to this correspondence.
The ICL submitted that her proposal was initially that the parties should agree in the short term that they would not communicate with the Children and then the situation could be reviewed in a couple of months. The Husband had however not responded to her proposal. The ICL expressed concern that Ms A reported the Husband as saying:
He doesn’t initiate telephone calls, but he will call [[X]] back if she calls, and he further reported the last few months he had made zero calls to [[X]][45].
[45] Transcript T 17:28-29.
The ICL submitted that this was inconsistent with what [X] is reported to have said in the Family Report about the telephone calls. The ICL also expressed concern that when the Husband discussed this issue with Ms A, he did not think the telephone calls were an issue at all. In those circumstances, it was ICL’s submission that at least for the short term, it would benefit the Children that an order was made in accordance with the Non-Communication Proposal.
Counsel for the Husband submitted that the Husband:
[…] instructs that his view is that Ms A has taken on board the narrative about the mother that he is lonely, that he is leaning on the children and putting emotional pressure on them and that he has been painted in a certain light that is completely unfair and not the case at all. What he says is that he has a - and I think it’s probably evident from the report, in any event, that he has a strong relationship with the children, that [[X]] has had some difficulties in being able to communicate with her mother, that she has had some difficulties at school being able to communicate with her friends and confide in her friends, and he says that one of the problems that has happened is that when [[X]] talks to her friends the friends talk to their mothers, and the mothers talk to her mother.
Though there is no confidentiality in what she’s saying to her friends, in fact, that it’s [[X]] who rings him on the school bus on her way to school and wants to confide in because he is somebody that she feels she can talk to[46].
[46] Transcript: T 20:13-26.
Counsel for the Husband submitted that it was therefore the Husband’s position that [X] needed to have the freedom to be able to ring him if she needed to.
In response to this submission, the ICL contended that if [X] did have issues in relation to her needing to confided in someone, then the confidential counselling with Ms D would be able to address such an issue.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The views of the Children in relation to where they live are referred to in the Family Report. Ms A has assessed these views and concluded that they are unreliable[47]. Ms A has concluded that:
[…] The children have been placed in the position whereby they cannot hold unencumbered views, free from the sadness and responsibility they feel for their father[48].
[47] Family Report., at [131].
[48] Ibid., at [128]-[132].
In the context of the considerations required in s.60CC(3)(a) of the Act:
a)The Counselling Proposal will ensure that [X] is able to promptly have confidential counselling without further delay caused by the uncooperative behaviour of the Husband.
b)The Non-Communication Proposal will relieve the Children from some of the burden of the sadness and responsibility they feel for their father, as identified by Ms A in the Family Report.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
each of the child’s parents
I refer to and repeat the matters discussed in relation to s.60CC(2)(a) and (b).
Further, Ms A reported in the Family Report:
Notwithstanding [the Husband’s] assertions that [X]’s relationship with her mother is hostile, [X] arrived for these interviews with her mother in an upbeat, positive and happy mood.
Both children were observed to engage with each parent in a similar way; with each parent attentive and affectionate with their children. The children’s observed interaction with each parent was unremarkable in the sense that it was what one would expect when the children have been living with that parent throughout their lives[49].
[49] Family Report., at [120]-[121].
other persons (including any grandparent or other relative of the child)
This is not a relevant consideration.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(i) to participate in making decisions about major long-term issues in relation to the child;
At the Mediation, the Husband agreed to Minutes of Consent Orders that included an order that the parents do all things necessary for [X] to attend upon a psychologist nominated by the ICL for counselling. At the time of the Mediation the Family Report was available to the parties.
The Husband’s Counsel has explained that the Husband then had a dispute with his previous solicitors and that this was the reason that he did not respond to any correspondence after 22 October 2018.
This does not explain why the Husband himself did not initiate contact with the ICL and make inquiries about the arrangements being made for the nomination of a psychologist to provide counselling for [X].
The Husband’s previous solicitors have filed a Notice of Withdrawal as Lawyer on 26 November 2018. That Notice states that a Notice of Intention to Withdraw from the Record was sent by email and express post to the Husband on 19 November 2018.
The Husband had solicitors acting for him until 19 November 2018. The Husband has provided no adequate explanation as to why he has failed to respond to the ICL’s correspondence of 31 October 2018[50] proposing Ms D for [X]’s counselling or respond to the Wife’s solicitor’s correspondence of 1 November 2018 and 8 November 2018[51] which requested an urgent response in relation to [X]’s counselling .
[50] Wife’s Affidavit, filed 21.11.18, Annexure “I-1”.
[51] Ibid., Annexures “I2” and “I3”.
The Husband’s current solicitors filed a Notice of Address for Service on Wednesday 21 November 2018, the same day the Application in a Case was filed. The Husband had his current solicitors acting for him from Wednesday 21 November 2018 until the hearing of the interim defended matter on Monday 26 November 2018. No explanation was provided as to why his current solicitors from 21 November 2018 did not initiate contact with the ICL or the Wife’s solicitors and make inquiries about the arrangements being made for the nomination of a psychologist to provide counselling for [X].
The Wife has treated the matter of [X]’s counselling as an issue of priority. The Wife responded to the ICL’s correspondence of 31 October 2018 proposing Ms D as the counsellor, the following day with correspondence from her solicitors of 1 November 2018 agreeing to the proposal. The Wife’s solicitors followed up with a further letter on 8 November 2018. When the Husband did not respond to correspondence, the Wife took the initiative to instruct her solicitors to file the Application in a Case seeking orders for the Counselling Proposal.
The Husband’s Counsel attempted to minimise any delay that the Husband has caused in [X] receiving counselling from Ms D by submitting that:
[…] it has only been a couple of weeks, not months and months where my client is said to have thwarted that process.[52]
[52] Transcript T 19:1-2.
Counsel for the Husband submitted that the Husband “disputed entirely” that he had “thwarted the process”[53].
[53] Loc. cit.
The Wife has acted proactively in relation to a long term issue involving [X] receiving counselling from Ms D. The Husband has failed to act at all in circumstances where the October Orders required that he do all things necessary to arrange for [X] to attend upon a psychologist nominated by the ICL for the purposes of confidential counselling. By failing to act and contact the ICL himself or through his solicitors, the Husband has caused delay in [X] receiving the confidential counselling recommended by Ms A in the Family Report.
(ii) to spend time with the child;
For the purposes of considering the Counselling Proposal and the Non-Communication Proposal this is not a relevant consideration.
(iii) to communicate with the child;
I refer to and repeat the matters discussed in relation to s.60CC(2)(b).
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
For the purposes of considering the Counselling Proposal and the Non-Communication Proposal this is not a relevant consideration.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living;
(i) either of his or her parents
In relation to the Non-Communication Proposal, the proposed orders provide for the ICL to forthwith meet with the Children and explain the order to them.
The benefit of the Counselling Proposal is that there will be no further impediments to [X] receiving confidential counselling with any psychologist nominated by the ICL, in the event that Ms D is no longer available. The Wife will be able to make the necessary arrangements promptly in consultation with the ICL. The Husband’s uncooperative behaviour will no longer delay [X]’s confidential counselling.
The confidential counselling is likely to assist [X] in relation to the order made pursuant to the Non-Communication Proposal.
(ii) any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living
This is not a relevant consideration.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
For the purposes of considering the Counselling Proposal and the Non-Communication Proposal this is not a relevant consideration.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
To provide for the needs of the child, including emotional and intellectual needs;
(i) each of the child’s parents
I refer to and repeat the matters discussed in relation to s.60CC(2)(b).
In the Family Report, Ms A said when assessing the Husband’s capacity to care for the Children:
There is no dispute that he has been unable to provide for the children’s basic physical, environment, social and educational needs.
Arising from the interviews, however, it is a concern that [the Husband] has only very limited capacity to provide the children with psychological support; to manage any issues of emotional distress or to in fact recognise the character of any emotional distress[54].
[54] Family Report, at [114]-[115].
The Affidavit of Aleksandar Calic[55], Associate at Maurice Blackburn Lawyers, exhibits a number of medical reports relating to the Husband dating from 2013 to 2017[56].
[55] Affidavit of Alexsandar Calic, filed 23.10.18.
[56] Affidavit of Alexsandar Calic, filed 23.10.18, at [1].
A report from Dr F, Consultant Psychiatrist, dated 13 June 2017 is exhibited to the Affidavit of Aleksandar Calic. Dr F reports the following in relation to the Husband:
a) The worker said that he has largely withdrawn from socialising, prefers to be at home and stays in contact with no friends[57].
b) He said that after he was made redundant his mood state deteriorated substantially into a depressed state and that he was then referred to 2 psychiatrists who trialled various antidepressant agents with little or no benefit …
He said that he ceased attending the second psychiatrist after a few months and also ceased all psychotropic agents over 1 year ago, and had more recently attended a psychologist on a few occasions but also found this is of no benefit and ceased around 6 months ago[58].
c) He said that his marital relationship had come under significant strain over the last 2 years as a result of his ongoing irritability and emotional withdrawal…[59]
[57] Report of Dr F, dated 13 June 2017, at p. 4.
[58] Ibid., at p.2.
[59] Loc. cit.
d) I concluded that the worker is currently suffering from a Major Depressive Disorder…
I concluded that due to the nature of the psychiatric injury, the duration of the symptoms and the duration of treatment, the workers (sic) psychiatric condition has substantially stabilised, and is unlikely to remit with further treatment.
I therefore concluded that for the purposes of the assessment, the worker’s psychiatric condition is stable and permanent[60].
e) I would suggest that further treatment should include ongoing regular sessions with a treating psychiatrist and alternative trials of antidepressant medication, which he is not currently interested in pursuing[61].
[60] Ibid., at p.7.
[61] Ibid., at p.9.
A report from Dr G, Consultant Neurologist, dated 15 June 2017 is also exhibited to the Affidavit of Aleksandar Calic. Dr G recommends that the Husband be referred to a dementia specialist for further testing for underlying neurodegenerative process.
In the Family Report Ms A assessed the Wife’s capacity to care for the Children. Ms A said:
In fact [the Wife] impresses as a child-focused, competent and committed parent with a marked degree of insight into the children’s emotional needs… [the Wife] impresses as an exemplary role model for the children[62].
[62] Family Report, at [113].
(ii) any other person (including any grandparent or other relative of the child)
This is not a relevant consideration.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions ) of the child and of either of the child’s parents, and any other characteristics of the that the court thinks are relevant;
[X] is aged 13 and [Y] is aged 10. Any relevant factors have been discussed elsewhere in these reasons.
Section 60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I refer to and repeat the discussion in relation to s.60CC(2)(a) and s.60CC(3)(c).
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
The Husband in his Notice of Risk[63] made allegations that the Wife had acted in a threatening manner towards him during the relationship and shortly prior to separation. The Husband also claimed that the Wife was financially abusive. The Husband obtained an interim intervention order against the Wife on 26 March 2018 at the Magistrates’ Court at Suburb B (Interim Intervention Order).
[63] Husband’s Notice of Risk, filed 23.4.18.
The Interim Intervention Order remains in place and the Wife is not permitted to communicate with the Husband, apart from the negotiation of arrangements for the Children. Consequently the Wife is not permitted to discuss the Property A Property Sale with the Husband[64].
[64] Wife’s Affidavit, filed 21.11.18, at [24].
The Wife’s solicitors wrote to the Husband’s solicitors on 1 November 2018 concerning the sale of Property A Property. They noted the following:
The terms of the intervention order prohibit our client from communicating with your client about any matter other than the children[65].
[65] Ibid., Annexure “I-5”.
The Court does not have any further information about the current intervention orders to which the parties may be subject.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(i) the nature of the order;
The Interim Intervention Order prevented the Wife from approaching or contacting the Husband or attending within 200 meters of the Property A Property[66].
(ii) the circumstances in which the order was made;
[66] Husband’s Affidavit, filed 23.4.18, at [8].
The Interim Intervention Order was made a month after the Wife left the Property A Property on 27 February 2018. The Interim Intervention Order was made in circumstances where the Husband alleged that the Wife was engaging in escalating controlling and manipulative behaviour and was financially abusive[67].
[67] Ibid., at [9].
(iii) any evidence admitted in proceedings for the order;
There is no evidence before the Court of any evidence admitted in the proceedings for the intervention order.
(iv)any findings made by the court in, or in proceedings for, the order;
There is no evidence before the Court of any findings made in the proceedings for the intervention order.
(v) any other relevant matter;
There were no other matters relevant to s.60CC(3)(k).
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
This is an interim decision. The proceeding is listed for final hearing commencing on 20 May 2019.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.
All relevant matters have been considered in other parts of this judgment.
Consideration and Conclusion
In considering this interim decision, I have adopted a conservative approach that is not likely to cause harm to the Children, as suggested by the Full Court for interim matters in Marvel v Marvel[68].
[68] (2010) 43 Fam LR 348, at [120].
I have followed the legislative pathway as required by Goode v Goode[69], to the extent that I have been able, given that this is an interim case on a limited number of issues.
[69] (2006) 36 Fam LR 422, 445, at [81]-[82].
I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3) to extent that they are relevant.
Counselling Proposal
The Wife seeks an order for sole parental responsibility for [X] in relation to [X]’s attendance upon a counsellor, in accordance with the October Orders. The Wife also seeks an order that the parties otherwise have equal shared parental responsibility for the Children. The ICL agrees with this proposal.
The Husband opposes these orders and seeks that the orders made on 4 May 2018, that the parties have equal shared parental responsibility for the Children, remain in place.
For an interim order for sole parental responsibility regarding [X]’s counselling to be made in favour of the Wife, I must be satisfied that the presumption of equal shared parental responsibility is not appropriate in the circumstances: s.61DA(3).
The Wife has been proactive in attempting to make arrangements for [X] to attend counselling with Ms D. The Husband has done nothing and by doing nothing has prevented the commencement of [X]’s counselling. As the parents have equal shared parental responsibility for [X], Ms D requires both parents to consent before she commences the confidential counselling with [X].
I do not accept the Husband’s explanation that his dispute with his previous solicitors prevented him from contributing to the arrangements for [X] to have counselling. On 26 November 2018 at the interim hearing of this matter, the Husband’s attitude was that the counselling had only been delayed “a couple of weeks, not months and months”[70]. He denied delaying the arrangements for [X]’s counselling. The Husband’s behaviour is unsatisfactory. Firstly, because it is evident from the Family Report that [X] is distressed and the Family Report recommends the confidential counselling. Secondly, the October Orders require the Husband’s compliance and he has not complied with the orders.
[70] Transcript T 19:1-2.
Therefore for these reasons, I am satisfied that in relation to the Counselling Proposal the presumption of equal shared parental responsibility is not appropriate in the circumstances as required by s.61DA(3) of the Act. I have made orders in accordance with the Counselling Proposal.
Non-Communication Proposal
Ms A has reported the Husband as saying that he does not initiate telephone calls to [X], but will call [X] back if she calls him. Ms A also reported the Husband as saying that in the “…last few months”, he had made “zero calls”[71] to [X].
[71] Family Report, at [64].
Counsel for the Husband specifically submitted that the Husband denied saying to Ms A that he had made “zero calls” to [X]. When interviewed by Ms A, [X] gave an entirely different account, saying that her father telephones her every day[72].
[72] Ibid., at [83].
The Husband’s Telstra records indicate that between 19 May 2018 and 18 June 2018, the Husband called [X] on average four times a day when she was living with the Wife[73]. The table of the Husband’s telephone calls to [X] for this period[74] demonstrates a number of telephone calls made daily by the Husband.
[73] Wife’s Affidavit, 13.8.18, at [28].
[74] Ibid, Annexure “I-2”.
In the Family Report, Ms A has concluded that the Husband is unable to separate his own emotional needs from those of the Children. She has concluded that his own identity is bound up with the Children and that he seems to struggle to function adequately without the Children[75].
[75] Family Report, at [61].
There is independent evidence from both Dr E and Ms A that the Husband’s capacity to provide psychological support and manage emotional distress for the Children is limited.
On an interim hearing, I must determine an issue on the balance of the evidence before me. The weight of the evidence before me is that the Husband is making too many calls to [X] and that he is encouraging [X] to make too many calls to him when she is living with the Wife. I also accept that the Husband is telephoning [Y] too frequently on the basis of the evidence in the Family Report.
I accept the recommendation of Ms A that the number of telephone calls between the Husband and the Children should be significantly reduced[76]. I also accept the recommendation of the ICL that for the interim, the parents should not contact the Children when they are in the care of the other parent or accept communications from the Children[77].
[76] Family Report, at [137].
[77] Wife’s Affidavit, filed 21.11.18, Annexure “I-1”.
I also accept the suggestion by the ICL that the ICL explain the order to the Children. I have therefore made orders in accordance with the Non-Communication Proposal.
Property Issues to be Determined
The Proposals of the Parties
The Wife proposes the orders in paragraph 5(a), (b) and (c).
Sale of Property A Property
The Husband is the sole registered proprietor of the Property A Property and he has remained living there since the parties separated on 27 February 2018.
The Husband has resisted selling the Property A Property since the commencement of this proceeding. The Husband has deposed:
I do not wish to sell the home on an interim basis at this stage, as I cannot afford to live elsewhere and do not wish to disrupt the children’s current living arrangements[78].
[78] Husband’s Affidavit, filed 25.9.18, at [2.b]
The Husband has deposed that he believes that the Property A Property is worth approximately $1,100,000 and that it is encumbered by a loan secured by a mortgage (Mortgage) in the sum of approximately $732,672, leaving a net equity of approximately $367,328. The loan secured by the mortgage is in the joint names of the Husband and the Wife[79].
[79] Loc. cit.
The Wife estimates the value of the Property A Property to be worth approximately $1,200,000, with security for loans of approximately $730,000. The Mortgage repayments are $942 per week and are paid from money in the Offset Account, which has a current balance of $55,000[80].
[80] Wife’s Affidavit, filed 21.11.18, at [20].
At the Mediation the parties agreed to sell the Property A Property and they signed a Minute of Consent Orders. The October Orders made provision for the sale of the Property A Property, as referred to under the heading Procedural History. One of the October Orders was:
Within 14 days the parties do all acts and things and sign all documents necessary to list [the Property A Property] for sale with Mr C of [Real Estate][81].
[81] Order 3, Orders 26.10.18.
The Husband was therefore required to do all things necessary to list the Property A Property for sale by 9 November 2018.
On 31 October 2018 the Husband sent an email to the selling agent and the advertising co-ordinator at [Real Estate], which was copied to the Wife, saying:
I was hoping to hear from Ms Iannello regarding the sale of Contract. In the past she has insisted in (sic) discussing the fine print. I will finalise ASAP when I have a discussion with her. Hopefully that will be sooner than later[82].
[82] Wife’s Affidavit, filed 21.11.18, at [23] and Annexure “I-4”.
The Interim Intervention Order remains in place and the Wife is not permitted to communicate with the Husband, apart from the negotiation of arrangements for the Children. Consequently, the Wife is not permitted to discuss the Property A Property Sale with the Husband[83].
[83] Ibid, at [24].
On 1 November 2018 the Wife’s solicitors wrote to the Husband’s solicitors concerning the Property A Property Sale. They forwarded a copy of the Husband’s email sent on 31 October 2018 to the selling agent and advertising co-ordinator at [Real Estate]. The Wife’s solicitors said:
In that email, your client says that he was hoping to hear from our client regarding the sale and intends to finalise the various documents once he has had a discussion with her about it.
The terms of the intervention order prohibit our client from communicating with your client about any matter other than the children. The discussion proposed by your client is not possible.
We refer to our letters dated 15 and 21 August 2018 and request that you advise your client about the terms of the intervention order. We renew our client’s suggestion made in those letters to vary the intervention order by deleting paragraph 5 to facilitate discussions of the kind proposed by your client.
In any event, we are instructed that our client agrees with [Real Estate]’s terms and she requests that your client sign and return those documents to the selling agent without delay[84].
[84] Wife’s Affidavit, filed 21.11.18, Annexure “I-5”.
On 14 November 2018 the Wife was informed by her solicitors that the Husband’s former solicitors did not hold instructions from the Husband in relation to any issue[85].
[85] Ibid, at [26].
The Husband had not signed and returned any documents to the selling agent at [Real Estate] by 21 November 2018 when the Wife’s solicitors filed the Application in a Case[86].
[86] Loc. Cit.
It was not until the interim hearing on 26 November 2018 that the Wife’s solicitors were provided with a copy of an Exclusive Auction Authority, signed by the Husband on 21 November 2018[87] (Exclusive Auction Authority).
[87] Exhibit R1.
Counsel for the Wife submitted that the Exclusive Auction Authority failed to comply with the October Orders in that:
a)Order 4(a) provided that the reserve price be set at $1,100,000. The Exclusive Auction Authority stated that the vendor’s reserve price was “To be advised at auction”.
b)Order 3 provided that within 14 days the parties do all acts and things and sign all documents necessary to list [the Property A Property] for sale with Mr C of [Real Estate] [88]. The Husband had:
i)Not signed the Exclusive Auction Authority until 21 November 2018. This was the day the Wife’s solicitors filed the Application in a Case. The selling agent’s representative had signed and dated the Exclusive Auction Authority on 24 October 2018 nearly a month earlier.
ii)Deleted all advertising costs from the Exclusive Auction Authority. The selling agent’s representative had inserted the sum of $7,408 for advertising. The Husband deleted this amount and wrote “Nil”, initialled and dated the amendment as “21/11/18”.
[88] Order 3, Orders 26.10.18.
The Exclusive Auction Authority stated that the agent’s estimate of the selling price[89] was between $970,000 and $1,067,000.
[89] Pursuant to Section 47A of the Estate Agents Act 1980 (Vic).
The original auction date on the Exclusive Auction Authority was 8 December 2018. This date has been deleted and amended to 9 February 2019.
Council for the Wife submitted that it was clear that the Husband would make every endeavour to “[…] duck and weave and to delay because he is in the house” and because “he has got nothing to win by selling it”[90]. It was for this reason that the Wife sought the s.106A Order for the Registrar.
[90] Transcript T 14:13-14.
Counsel for the Husband minimised the Husband’s delay in signing the Exclusive Auction Authority by submitting it had “[…] Not been months these orders were consented to”[91].
[91] Transcript T 21:12-13.
In relation to not including the sum of $1,100,000 in the vendor’s reserve price and the words “to be advised at auction” being included instead, Counsel for the Husband contended:
a)[…] sometimes agents don’t put it in there because then they don’t have to…[92]
b)It could have been a strategy of the agent because the orders don’t say that it needs to be in this document. It just needs to be the reserve, and it could be held by the parties without telling the agents prior to the auction because sometimes people do that so the agent doesn’t know[93].
c)The Husband had instructed her that the sum of $1,100,000 should be included in the Exclusive Auction Authority[94].
[92] Transcript T 21:31-32.
[93] Transcript T 22: 10-17.
[94] Transcript T 21:22-23 and 41-42.
The Husband’s Counsel submitted that it was the Husband’s position in relation to the advertising costs that the October Orders do not provide for or set out who was to pay for the advertising costs[95].
Transfer of Wife’s Mobile Phone Number
[95] Transcript T 21:13-14.
The Wife has deposed that in October 2017 prior to separation, the Husband removed her as an authorised person in relation to the family’s Telstra accounts. The Wife’s personal mobile phone number is held on that account[96].
[96] Wife’s Affidavit, filed 21.11.18, at [28].
After separation the Wife asked the Husband on 20 March 2018 to transfer the mobile phone number to her. In her Amended Initiating Application filed on 30 May 2018, the Wife sought an interim order that the Husband forthwith do all acts and things and sign all documents necessary to transfer to an account nominated by the Wife the use of her personal mobile phone number.
The Wife’s solicitors have written to the Husband’s solicitors on six occasions since 14 May 2018 requesting the transfer of the mobile phone number[97].
[97] Ibid., at [29].
On 26 September 2018 the Husband’s solicitors requested confirmation that the Wife would pay any fees associated with the transfer of the account. The Wife instructed her solicitors that she would pay these transfer fees on 2 October 2018[98].
[98] Ibid., at [30].
The Husband has still not returned the completed and signed forms to the Wife’s solicitors. The Wife has deposed that she was concerned that the Husband was refusing to comply with her request “[…] so that he continues to have access to my mobile phone records after his subpoena for production of those records was set aside”[99].
[99] Ibid., at [31].
Counsel for the Wife submitted that her client wanted the mobile phone number transferred from the contract with Telstra that the Husband holds as it was her private number and had all her phone contacts on it. Counsel submitted that:
[…] it is embarrassingly evident that that number is not being transferred because the husband can peruse her phone records at leisure until it is[100].
[100] Transcript T 15 25:27.
Counsel for the Husband submitted that the Husband would consent to the orders sought by the Wife in the Application in a Case provided that the transfer was at the Wife’s expense, if any.
Consideration and Conclusion
Sale of Property A Property
The Husband was required to have the Property A Property listed for Auction within 14 days of 26 October 2018, which was 9 November 2018. He did not do that. Instead he signed the Exclusive Auction Authority the day the Wife issued the Application in a Case.
The Husband sent an email to the selling agent at [Real Estate] on 31 October 2018 intimating that he would have a discussion with the Wife in relation to the conditions of the sale, in circumstances where the Wife was prohibited from discussing such matters with him due to the Interim Intervention Order.
The Husband took no steps to contact the Wife’s solicitors to make arrangements for the sale of the Property A Property in accordance with the October Orders. The Husband has therefore not complied with the October Orders.
I disagree with the Husband’s Counsel’s submission that the October Orders do not provide for who was to pay for the advertising costs. Order 6(a) provides that upon settlement of the Property A Property Sale, the Husband and the Wife are to direct the proceeds of sale into a joint bank account. The balance is then to be applied firstly, to pay the costs and commissions of the sale, including payment of costs incurred by the parties in complying with any requests by the selling agent for works to be undertaken for the sale. The usual costs of a sale include advertising costs. Therefore the October Orders provide for the Husband and the Wife to share the cost of the advertising equally.
In this case the selling agent has recommended the sum of $7,408 for advertising. The Husband has deleted this amount and written “Nil”. Order 4(a) of the October Orders provided that all other terms and conditions of the sale be as agreed between the parties and in default of agreement, be decided by the President of the Real Estate Institute of Victoria or their nominee. The Husband has not sought to invoke this dispute resolution clause, instead proposing nil for advertising for the sale.
In relation to the reserve price of $1,100,000 not being referred to in the Exclusive Auction Authority, the Husband’s submissions failed to take into account the disclosure provisions of the Estate Agents Act 1980 (Vic).
When selling any residential property an estate agent must prepare a statement of information for the residential property. In this case, there is a Court Order that the reserve price for the Property A Property is $1,100,000. The parties must disclose to the agent that the reserve is $1,100,000 as they have no choice but to accept this amount as the lower limit. Once disclosed s.47AF(3)(d) of the Estate Agents Act 1980 (Vic) requires that for the purposes of the Statement of Information, the indicative selling price or the lower limit of the selling price range must be $1,100,000.
I am satisfied that in relation to the sale of the Property A Property, the Husband has not complied with the October Orders to have the property listed for sale by 9 November 2018 and has been unco-operative in relation to the sale. For the foregoing reasons, I have determined that a Registrar will henceforth sign the relevant documents to ensure that the sale process commences and continues expeditiously. I have therefore made orders in accordance with the s.106A Order for Registrar.
Transfer of Wife’s Mobile Phone Number
The Husband’s Counsel provided no explanation as to why the Husband had not transferred the Wife’s mobile phone number to her until the filing of the Application in a Case.
The Husband’s behaviour is unacceptable, particularly in circumstances where the Wife has offered to pay any transfer fees since 2 October 2018 and yet still the Husband has still not returned the completed and signed forms.
Consent Orders have been made in accordance with the Wife’s Application in a Case and providing for the Wife to pay for the expense of the transfer of the mobile phone number, if any.
Costs
The parties did not address me on the issue of costs. I have reserved the costs of the parties and the ICL of and incidental to the Wife’s initiating Application, filed 21 November 2018.
I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Date: 12 December 2018
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