Kedis & Kedis
[2013] FCCA 1959
•29 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KEDIS & KEDIS | [2013] FCCA 1959 |
| Catchwords: FAMILY LAW – Property and parenting orders – wife primary caregiver – family violence – high level of conflict between parties – husband’s continuing abuse and denigration of wife – wife unable to live with children in independent accommodation – husband’s lack of insight – children to live with wife – wife to have sole parental responsibility – children to spend time with husband at contact centre – husband effective control of both real properties – husband’s non-compliance with orders – damage caused to both properties by husband – apportionment 70 per cent to wife – sale of investment property ordered – wife retain former matrimonial home – just and equitable in all circumstances – husband’s oppressive and vexatious conduct – anti-suit injunction ordered. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60CC(2), 60CC(2A), 60CC(3), 61DA, 61DA(2)(b), 61DA(4), 62G, 75(2), 106A, 114(3) |
| Lederer v Hunt (2007) FLC 93-31 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 |
| Applicant: | MS KEDIS |
| Respondent: | MR KEDIS |
| File Number: | MLC 2787 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing dates: | 13, 14, 15 & 19 November 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 29 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Teicher |
| Solicitors for the Applicant: | Jeanne Gorman Barrister and Solicitor |
| The Respondent: | In Person |
| Counsel for the Independent Children's Lawyer: | Ms Dowler |
| Solicitors for the Independent Children's Lawyer: | Cathleen Corridon & Associates |
THE COURT ORDERS THAT:
Parenting Orders
All previous parenting orders are hereby discharged.
The children of the marriage X born on (omitted) 2004 and Y born on (omitted) 2008 (‘the children’) live with the wife and she have sole parental responsibility with respect to the children.
The children spend time with the husband each alternate weekend for two hours at the Berry Street Contact Centre Service in (omitted) at times and dates as nominated by the Service. The parties to do all acts and things necessary to secure enrolment at the service, including but not limited to completion of application forms and attendance for interviews.
The husband shall be responsible for any fees payable to the Berry Street Contact Centre Service.
The wife facilitate the children telephoning the husband each Tuesday at 7.00pm and the wife be at liberty to monitor such calls and terminate them in the event that the husband discusses these proceedings with the children and/or denigrates the wife and/or her family to the children or either of them.
Each of the parties be and are hereby restrained from discussing these proceedings in the presence and/or hearing of the children or either of them and are further restrained from allowing any other person to do so.
The husband attend and complete the following courses:-
(a)a Parenting Orders Program; and
(b)a Men’s Behaviour Change program with the “(omitted) Program”.
The wife attend and complete a Parenting Orders Program.
The appointment of the Independent Children’s Lawyer be discharged.
Property Orders
Pursuant to s.114(3) of the Family Law Act 1975 (Cth), the husband is restrained from taking any further steps in proceeding number (omitted) in the Magistrates’ Court of Victoria at Dandenong, other than discontinuing that proceeding.
The husband vacate the real properties situate at and known as Property H in the State of Victoria being the whole of the land more particularly described in Certificate of Title with title reference Volume (omitted), Folio (omitted) (‘the former matrimonial home’) and Property M in the State of Victoria being the whole of the land more particularly described in Certificate of Title with title reference Volume (omitted), Folio (omitted) (‘the investment property’) on or before 3 December 2013.
The husband deliver all keys to the former matrimonial home and the investment property to a Registrar of the Federal Circuit Court of Australia by 4.00pm on 3 December 2013. The husband obtain a written acknowledgement in respect thereto. Thereafter such keys shall be made available to the wife’s solicitors for handing over to the wife.
The husband transfer to the wife, at the expense of the wife, the whole of his right, title and interest in the former matrimonial home such that the wife shall become the sole registered proprietor of the real property situate at and known as Property H in the State of Victoria being the whole of the land more particularly described in Certificate of Title with title reference Volume (omitted), Folio (omitted).
Order 12 of the Orders made 10 May 2013 is discharged.
Forthwith the investment property be placed on the market for sale, with the wife to have sole authority and control of the sale and the proceeds derived from the sale be applied as follows:-
(a)firstly, to pay all costs, commissions and expenses of the said sale;
(b)secondly, to discharge the registered mortgage to the (omitted) Bank, mortgage number (omitted);
(c)thirdly, the payment of moneys due to the wife pursuant to these orders;
(d)fourthly, the payment of monies due pursuant to order 17 herein; and
(e)fifthly, the balance then remaining to the husband save that such monies are not to be paid out to the husband for a period of 60 days from receipt of such funds so that in the event the husband causes any further damage to the real properties on either of them and/or incurs any further unnecessary legal costs to the wife, the wife is at liberty to make application for a payment of restitution and/or compensation by the husband.
Pursuant to s.106A of the Family Law Act 1975 (Cth), a Registrar of this Court is appointed to execute all necessary documents in the name of the husband to give validity and operation to effect a sale of the investment property on behalf of the husband including signing an appointment of real estate agent.
The husband be liable for the payment of all outstanding rates in respect of the former matrimonial home and the investment property, together with all outstanding liabilities in respect of gas, electricity and water usage which shall be paid out of the proceeds of sale obtained on the sale of the investment property and before payment out of any sum to the husband.
The husband pay to the wife an amount of $3,142 in respect of the costs incurred by her in the civil proceedings in the Magistrates’ Court of Victoria at Dandenong.
The husband pay to the wife the sum of $17,713 by way of property settlement in addition to the transfer of the former matrimonial home.
The husband make available to the wife by leaving in the former matrimonial home the following items of furniture and chattels, which are to become the sole property of the wife absolutely:-
(a) kitchen utensils;
(b) the washing machine;
(c) the children’s beds, closets and toys;
(d) Christening boxes;
(e) one television set;
(f) four rugs;
(g) bed linen; and
(h)all of the parties’ photo albums in relation to which the wife will provide copies of photographs to the husband as requested in writing by the husband of her.
Each party retain otherwise those items of furniture and chattels in their respective possession, and each is to retain their respective interest in their superannuation funds without claim upon same by the other.
Liberty to apply on short notice with respect to the sale of the investment property and/or enforcement of these Orders.
Otherwise all extent applications are dismissed and the matter removed from the pending list of cases.
AND THE COURT NOTES THAT:
In the event the husband:-
(a)complies with paragraph 7 of these Orders and has obtained certificates of attendance and completion of the courses referred to therein, and
(b)has participated in no less than 24 periods of supervised time spent with the children pursuant to order 3 hereof, and
(c)has obtained a report from the Berry Street Contact Centre Service in (omitted) with respect to the time he has spent with the children;
then the husband shall be at liberty to make application to this Court seeking further orders with respect to the time the children are to spend with him and the conditions, if any, with respect to that time.
IT IS NOTED that publication of this judgment under the pseudonym Kedis & Kedis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2787 of 2013
| MS KEDIS |
Applicant
And
| MR KEDIS |
Respondent
REASONS FOR JUDGMENT
Statements of fact in these reasons are findings of fact on the balance of probabilities.
History
The Applicant wife was born on (omitted) 1973 and she is currently aged 40 years. She is in good health. The Respondent husband was born on (omitted) 1973. He is also aged 40 years and is in good health, save the wife believes he suffers from a methamphetamine and marijuana addiction, a matter to which I shall refer later in these Reasons.
The parties commenced their cohabitation upon their marriage in Melbourne on (omitted) 1997. They separated on (omitted) 2012 after a cohabitation period of 15 years and 7 months. The wife and children left the former matrimonial home and went to stay in the husband’s parents’ home. After some two nights there, and because the husband objected to their so residing, they moved to the wife’s parents’ home where they have continued to reside. The husband was removed from the former matrimonial home situate at Property H in the State of Victoria (‘the former matrimonial home’) pursuant to an interim Invention Order obtained by the wife on 1 October 2012. The wife hoped to return to reside with the children in the former matrimonial home. The husband remains subject to an interim Intervention Order which prohibits him from being within five metres of the former matrimonial home. There is also a sole occupancy order of this Court in operation in favour of the wife with respect to occupation of the former matrimonial home. Despite those orders and in about September 2013, the husband took up occupation in the former matrimonial home. He has exercised continued control over occupation of that home in a practical sense since separation. A further matter to which I shall return.
There are two children of the marriage, X born on (omitted) 2004 (‘X’) who is now nine years of age and Y born on (omitted) 2008 (‘Y’) who is now five years of age (‘the children’). The children attend the (omitted) Primary School and live with the wife. They communicated with the husband until recently by telephone. Since separation they have seen their father both regularly and sporadically, and both unsupervised and supervised. The children spent time with their father under the supervision of his parents in August and September 2013, and pursuant to Court orders, before the wife ceased that time spent with. The wife is fearful of the husband and his violent behaviours exhibited both during the relationship and following the separation. She is fearful of the adverse psychological impact of such behaviours on the children.
The parties purchased an investment property which is now registered in the husband’s sole name at Property M in the State of Victoria (‘the investment property’). Its location is effectively across the road from the former matrimonial home. When the wife first obtained an interim Intervention Order on 1 October 2012, the husband was precluded from being within 200 metres of the former matrimonial home. The husband attended at the Magistrates’ Court of Victoria at Dandenong on the day following service upon him of the interim Intervention Order, seeking to vary it, so that he be prohibited from being a distance of five metres from the former matrimonial home. The wife consented to that variation on the basis that the husband proposed taking up residence in the investment property. She was hopeful that situation could exist without conflict for a short time. When these proceedings commenced, the wife was seeking an urgent sale of the investment property. That property is encumbered by way of an (omitted) Bank registered mortgage, mortgage number (omitted) in the parties’ joint names. The former matrimonial home is also listed as a security for the mortgage. On 1 March 2013, the (omitted) Bank through their solicitors, Gadens Lawyers, issued a default notice against the husband and wife seeking the sale of both the investment property and the former matrimonial home to pay out the mortgage which was, at that time, in arrears in the sum of approximately $6,548.96. The wife had no capacity to meet the mortgage arrears payment or indeed any ongoing mortgage monthly repayments, she being the full-time carer for the parties’ children and having no access to income, save for Centrelink payments. She had been out of the workforce for approximately 10 years and wished to return to the former matrimonial home to take up occupation with the children. She did not wish to do so until a final intervention order was made against the husband precluding him from being on that property. At the time of the wife’s Initiating Application which was filed on 12 April 2013, the wife understood the then balance of the mortgage encumbering the investment property to be approximately $230,000. She was in the process of obtaining market appraisals with respect to the value of the investment property, but believed it to be in the vicinity of approximately $450,000. There was then, and is now, sufficient equity in the investment property to meet the outstanding mortgage balance and to discharge the mortgage in full.
The wife was required to institute the proceedings with time abridged because although she had requested of the husband that he be responsible for the mortgage repayments with respect to the investment property, the husband had refused to be so responsible and refused to make payments. Such dialogue as to repayments had commenced not long after separation. On 11 December 2012, the wife’s solicitors had received a response from the husband in relation to the wife’s escalating concerns about potential default in the repayments (Affidavit of the wife sworn 12 April 2013, annexure (omitted)-06) advising that the wife would shortly be:-
“...receiving a phone call from (omitted) Bank because the house will be taken by the bank. Your clients [sic] sharp as a bowling ball mentality [sic] has got her Know [sic] where but back where she was at her parents...”
The wife’s solicitors continued to endeavour to obtain a response from the husband as to the increasingly dire situation with the (omitted) Bank. Considerable cost was occasioned to the wife, by virtue of the necessity for her solicitors to communicate with the husband in circumstances where he failed to respond in any appropriate and meaningful way. The wife was then required to incur the costs of a Court hearing in April this year, seeking orders enabling her to sell the investment property in the face of the mortgage default. The husband then indicated that he had, at the last minute, rectified the default. He sought that the investment property not be immediately sold and by agreement the question of the sale of the investment property was adjourned over to 10 May 2013, to enable the husband further time to put relevant material before the Court, and for the husband to provide to the wife’s solicitor discovery of various relevant financial documents.
The investment property was purchased by the husband and wife in their joint names on 9 November 2004 for the sum of approximately $280,000. To finance the purchase, they obtained the loan from the (omitted) Bank in their joint names. They also used the equity they had in the former matrimonial home, which was unencumbered, to secure the mortgage encumbering the investment property, and thus the mortgage was registered against both the former matrimonial home and the investment property. In about March 2005, the wife transferred her interest in the investment property to the husband by endorsement. The mortgage encumbering both real properties remained in the parties’ joint names. At various times during the cohabitation period of the husband and wife, the investment property was tenanted. Whilst it was tenanted, the rental income was applied to the repayment of the mortgage. The husband otherwise paid the balance of the mortgage throughout the marriage from income or other funds received by him. On 2 October 2012, the husband took up residence in the investment property. He remained living in that property, he claimed, until September 2013 when he moved back permanently into the former matrimonial home. The husband has continued to pay the mortgage repayments in respect of the investment property. The husband has had effective control of both real properties despite the wife obtaining, on 10 May 2013 by order of this Court, a sole use and occupation right in respect of the former matrimonial home, such that she could reside in same to the exclusion of the husband. Those Orders also provided that the husband vacate the investment property within 14 days of the making of the orders and that, prior to vacating the investment property, the husband do all such acts and things to clean the property. The investment property was then to be sold on the terms as set out in order number 12 of those Orders but, as at the date of trial, and as a consequence of the husband’s opposition and actions, the investment property had not been vacated by him nor put on the market for sale. What had occurred was that he had rendered it unliveable.
Following the separation, and the making of the interim Intervention Order on 1 October 2012, the husband damaged the former matrimonial home and commenced to renovate or pull apart the investment property without the authorisation of the wife for such works to be carried out. The wife first became aware that the husband was altering the investment property when the children told her that the husband had started to renovate the bathroom. The husband in fact had, by the time of the wife’s swearing her Affidavit on 12 April 2013, ripped up the family bathroom in the investment property so that it no longer existed as a functioning bathroom, and commenced – he claimed – to renovate same. Since that time, the bathroom remains in an unusable state, as does the ensuite bathroom attached to the master bedroom. There is currently no functional bathroom in the investment property as a result of the husband’s actions.
The husband’s damaging of the former matrimonial home included damage to the walls and ceilings by the removal of the surround speaker system; the removal of the deadlocks from all outside doors; the ripping out of the flat screen television from the wall; and the removal of the alarm system from the wall. The husband also removed from the former matrimonial home, the following:-
a)electric gates;
b)motor for the electric gates;
c)central heating system; and
d)remote control for the central heating system.
The husband also removed all the furniture from this home and placed it in the investment property. He then claimed to have two sets of furniture available to him. When the wife obtained an order enabling her to have sole occupation of the property, she was unable to return to it with the children due to its damaged state and complete lack of furniture. The husband rendered it unfit for the children and wife to reside in. His aggressive behaviours toward the wife also escalated, increasing the wife’s concern for her safety in circumstances where the husband resided, literally, across the road.
Thus, the wife and children continue their residence in the maternal grandparents’ three bedroom property. This property is not suitable accommodation for the wife and children on a long-term basis. The wife and two children sleep in the one bed, which is unsatisfactory for them, as acknowledged by the wife. The wife and children have, however, had nowhere else to go, given the husband’s control of the former matrimonial home and the investment property, his non-compliance with orders of the Court, his damage to both real properties, and the wife’s lack of income to enable her to live in independent accommodation. The wife’s income is Centrelink payments in the sum of approximately $555 each week. She receives no child support from the husband, despite having the care of the children for the totality of the time.
The husband, in these proceedings, relied upon affidavits sworn by him on 22 April 2013, 12 August 2013, 13 September 2013, 26 September 2013 and 11 November 2013. The wife relied upon affidavits sworn by her on 12 April 2013, 8 May 2013, 1 November 2013, and 12 November 2013. The Independent Children’s Lawyer relied upon the Family Consultant’s Memorandum prepared by Ms P dated 26 April 2013 (‘the Memorandum’) and the subsequent Family Report prepared by Ms P, Family Consultant dated 15 October 2013 (‘the Family Report’). The parties also relied upon their respective valuers evidence.
The wife sought in respect of property orders that there be a 70 per cent adjustment to her of the asset pool, and a 30 per cent adjustment to the husband. She sought in that adjustment to acquire the former matrimonial home. The wife sought an additional sum be paid to her to compensate her for the damage done by the husband to the investment property, which has as a consequence suffered a reduction in value, and she sought a further sum payable to her representing lost rental income. The wife otherwise sought that each party retain the superannuation entitlements belonging to each, and that there be no adjustment with respect thereto. She sought payment of specified legal costs. The husband’s position was that the asset pool including superannuation should be divided equally between the parties, and that there should be no additional payment to the wife for alleged damage sustained to the investment property as stated by the wife, nor should there be any consideration of rental monies lost. Further, there should be no payment by him of the wife’s legal costs.
Valuations
Before the Court was valuation evidence of the real properties from Mr C, Valuer, as contained in Affidavit affirmed by him on 24 October 2013 and filed on behalf of the husband; and Mr A, Valuer, in evidence as contained in Affidavit affirmed by him on 14 November 2013 and filed on behalf of the wife. Each of these valuers were cross-examined by the other party. Mr C, the valuer for the husband, conducted his valuations of the real properties on 16 July 2013. Mr A, the valuer for the wife, conducted his valuations of the real properties on 14 November 2013. Having considered the evidence, I prefer the evidence of Mr A, the valuer for the wife. Mr C valued the former matrimonial home in the sum of $435,000. Mr A, valued that home in the sum of $515,000. The investment property was valued by Mr C in the sum of $425,000, and it was valued some months later by Mr A in the sum of $410,000. In cross-examination, Mr C conceded that his valuations were out of date, and were only valid for a period of 90 days from the date of valuation. He could not comment on the accuracy of recent sales figures as referred to by Mr A because he had not been asked to carry out any such examination of those figures by the husband. He conceded that between July and November of 2013 there had been a bit of upward movement in the property market. He could not comment on the veracity of the report of Mr A, nor on the conclusions reached. He had simply not looked at the other sales evidence, and could make no comment as to whether the valuation ascribed to the former matrimonial home by Mr A was correct or incorrect. He did, however, concede that his valuation could not be relied upon, and that such concession applied in respect of both real properties.
In respect of the investment property, Mr A, whose valuation is some months later in time, had a value less than that ascribed to the investment property by Mr C despite the evidence of both valuers being that the market had risen in price. This was because the husband had, over the intervening months between July and November 2013, continued to pull apart the investment property, such that it is now not in a liveable state. Mr A observed there is no functional bathroom in the house, the laundry is incomplete, and the house is in a state of disarray. Works were obviously continuing to be done.
Mr A noted that the floorboards require sanding; that plaster and sanding is required to some of the walls; that the external render required to be completed; that the laundry contained nothing save a trough; and the lack of a functional bathroom meant that the home was not liveable in its present state.
Mr A valued the land content of the investment property in the sum of $350,000, and attributed minimal value to the home situate on it in its current state. He also gave evidence that in its original condition and comprising 1970s décor, and being before the time when the husband had commenced to pull it apart, the home would have had a value of $440,000 to $450,000. Mr A further noted that the property was not capable of being rented in its current state. He gave evidence, when cross-examined by the husband, that were the home to be finished to a modern, new standard, it might achieve a selling price of $520,000 to $550,000, or maybe more. The difficulty at the present time is that the house is unliveable, and severely reduced in value as a consequence of the husband’s (unauthorised by the wife) activities, these being a partial demolition of the property.
Tendered in evidence by the wife was a valuation of the husband’s motor vehicle, it being a Holden (model omitted). The husband deposed, in his Financial Statement sworn 23 April 2013, that this vehicle had a value of $500. Later in evidence he ascribed a value of $1,000 to it. The wife disputed that valuation and at trial put before the Court a valuation from (omitted) dated 14 November 2013. That valuation, unchallenged by the husband, placed the market value of the vehicle in the sum of $7,000 to $8,000. For the purposes of stating the asset pool, I indicated to the parties that the value I would ascribe to the vehicle would be the mid-point value of $7,500. This was acceptable to the wife and the husband had no other evidence to counter that value. The valuer was available but not cross-examined by the husband.
Asset pool
Assets
a)former matrimonial home, situate at Property H in the State of Victoria, valued at $515,000;
b)investment property, situate at Property M in the State of Victoria, valued at $410,000;
c)husband’s motor vehicle, valued at $7,500;
Additional claims to be considered
d)damage done to the investment property by the husband, valued at $30,000 to $40,000;
e)cost of occupation by the husband of both real properties claimed by the wife at $19,470. The wife’s claim for lost rental income is calculated on the basis that 59 weeks have elapsed since the first interim Intervention Order was made on 1 October 2012, and that at a rate of $330 each week the income lost due to the obstructive behaviour of the husband is $19,470;
Liabilities
f)(omitted) Bank mortgage, valued at $225,767;
Superannuation:
g)wife’s superannuation, valued at $26,912 as at the date of hearing; and
h)husband’s superannuation, valued at $14,217.86 as at 30 June 2013.
Contribution
At the commencement of the relationship neither of the parties had assets of any significance. They each had some superannuation and a motor vehicle. During the marriage the husband worked consistently as a (occupation omitted), and the wife worked as a (occupation omitted) and then was engaged in home duties in a full-time capacity following the birth of X. Although the husband swore that the wife contributed $10,000 and he contributed $20,000 toward the deposit on the former matrimonial home, I prefer the evidence of the wife in any instance where the parties evidence diverges and accept that her contribution exceeded that of the husband.
On or around 23 November 1995, the parties purchased the former matrimonial home for approximately $140,000. They obtained a mortgage from the (omitted) Bank in the sum of $110,000, and otherwise financed the purchase by way of a $30,000 deposit, of which the wife contributed $20,000 and the husband $10,000. They serviced the mortgage repayments by depositing the entirety of the wife’s then wage into the mortgage each Friday, and otherwise lived off the husband’s wage. The mortgage was paid off within approximately five years or seven years, the evidence not being sufficiently reliable to find one time span over the other. The parties are equal tenants in common of the former matrimonial home.
The husband deposed in paragraph 45 of his Affidavit sworn 22 April 2013 that improvements were carried out by him to the former matrimonial home and were paid for by him. He claimed the total improvements between 1997 and 2006 had a cost of $100,000. In addition, he claimed that his parents gifted the parties approximately $20,000 in the form of a fridge, lounge and dining table; the painting of the house; and provision of tiles and other materials. Other than the husband’s sworn evidence, there was no corroborative evidence in respect of those gifts nor any evidence as to their value at the time of provision. The wife concedes the husband’s family gifted to them a couch, fridge and mattress which the paternal grandmother paid $5,000 for. She claimed her family gifted to them white goods, a bed suite, linen, towels, crockery, cutlery, pots and pans. It is inconceivable on the husband’s income, as declared to the Australian Taxation Office, that he could have paid for improvements to the former matrimonial home in the quantums he claimed. The quantums claimed were in 1997, $20,000; in 2004, $30,000 and in 2006, $50,000. In the latter years, his income was said by the parties to be approximately $12,000 to $20,000 per annum. In the event, whatever was paid and done, was in those years an equal contribution, the parties working together for the welfare and financial advancement of their family. The wife contributed in greater measure to the care of the children, however, over and above the direct financial contribution of the husband because the husband was often unavailable to the children. He did not spend a great deal of time outside his employment with them.
Family violence
Throughout the course of cohabitation, the husband subjected the wife to significant emotional and, at times, physical violence. On occasion this occurred in the presence of the children. The husband would often say to the wife words to the effect of, “You are fucking useless.” He pushed her when she was pregnant with Y in 2007. He grabbed her by her hair, dragging her from the bedroom, down the hallway and into the kitchen, in front of X in 2008.
In front of both children around late 2008, he commenced to yell at the wife who responded to him, “You don’t fucking talk to me like that.” Following that response, the husband grabbed the knife she was chopping food with in the kitchen and threw it at the wife. It skimmed past her right calf, scaring her as the baby Y was on the floor next to her at the time. In 2011, the wife was in the kitchen cooking dinner for the children. The husband had just woken up and came into the kitchen and said words to the effect of, “You are a dumb fuck, you are a dumb cunt, you are good for nothing, you are useless, you belong in the gutter.” The husband then grabbed the wife by the throat and pushed her against the kitchen wall. Both of the children were in the kitchen at the time of this assault. On another occasion during the cohabitation, the husband said to the wife words to the effect of, “I would rather pay $5,000 to get rid of you as it is cheaper than a divorce.”
Following a violent outburst from the husband on 14 September 2012, the wife sought an interim Intervention Order which was granted on 1 October 2012, with herself and the children named as protected persons. On the day following, the husband sought an alteration to that order, seeking the right to access the former matrimonial home, so that he could continue his (omitted) work from the garage situate on the home as referred to in paragraph 5 of these Reasons. The application to vary the interim Intervention Order was returnable on 16 November 2012. On 2 October 2012, the husband also sought an interim Intervention Order against the wife and that matter was listed returnable on 13 November 2012. On 13 November 2012, his application for an interim Intervention Order and application to vary were both dismissed. The wife’s interim Intervention Order, earlier obtained by her, was continued until 9 April 2013. Thereafter, but unbeknownst to the wife, on 29 January 2013, the husband issued a further application to vary the wife’s interim Intervention Order. His application was granted to enable him to work from the former matrimonial home on an interim basis with the matter to be heard on 13 February 2013. When the matter then came before the Magistrates’ Court of Victoria at Dandenong on 13 February 2013, the presiding Magistrate reversed the husband’s earlier obtained variation, as the presiding Magistrate was concerned about the need for the children to have a place to live, free from the nearby presence of the father. The husband was again prohibited from being on the property.
On 20 February 2013, the husband once again issued an application to vary, to enable him to attend upon the former matrimonial home. On 27 February 2013, that application was denied as the husband failed to attend the hearing. The proceedings have continued throughout 2013 and the final hearing is due to take place in February 2014. The husband has sent several texts to the wife stating that “He will drag me to Court for the next 10 years.” To date the cost of these various proceedings to the wife has been $16,267. It is a matter the Court takes into account pursuant to s.75(2)(o) of the Act as set out hereafter. The husband has repeatedly breached the existing Intervention Order made against him. The wife has reported the majority of those breaches to the police. They include abusive, threatening and vile text messages to the wife; speaking with the wife at changeover about matters not related to the children; and denigrating and threatening the wife to the children, saying things to them such as, “I hate your fucking mother. I am going to kill her.”
On 25 October 2012, the husband wrote to the wife (Affidavit of the wife sworn 12 April 2013):-
“I’m not giving orders and I’m not calling the shots don’t be a fucking smart ass to me and who ever is talking shit they can go fuck them selfs. You ment nothing to me long ago you thrush disease. If people are coming forward now why didn’t they come forward in the past, cause you talk shit. You need mental help from doctors and your box checked. Don’t worry i will see my boys i will make sure of it.”
And on 24 February 2013 (Affidavit of the wife sworn 12 April 2013):-
“NO MATTER WHAT STINKY CUNT IS GOING TO COP IT FUCKING HARD REVENGE IS FUCKING SWEET THE DOG”
The husband’s reference to “that smelly thing” is a reference to the maternal grandfather. The husband gave evidence in Court that the maternal grandfather “told the whole of (omitted)” that his daughter was a “slut and whore”. This is denied by the wife whose evidence the Court accepts.
On 21 February 2013 at 9.36am the wife received a text message from the husband stating words to the effect of:-
“How are the boys Ms Kedis, anything else I should know about my kids? I rather hear it from you rather than the (omitted) locals…Stop listening to that smelly thing that used to go around telling the locals that his daughters are sluts and use your own common sense.”
These are but three of the numerous offensive, derogatory and abusive texts that the husband has sent to the wife. They have all caused, in the wife, fear for herself and the safety of her children. The husband’s behaviour has become, over time, increasingly erratic and unpredictable.
Throughout 2013, the husband’s denigration of the wife has continued unabated. He has regularly referred to the wife as a “(omitted)” – the (country omitted) word for idiot. This has occurred in the hearing and/or presence of the children. He has also referred to the wife as a “scumbag”, “dancing dog”, “a selfish piece of shit” and “a lazy bitch”. On the morning of 30 June 2013, X became extremely upset while in the care of the wife. He commenced to cry uncontrollably and said to her words to the effect of “Please don’t be mad. I’m scared you will be mad at me. Daddy made a video of Y and me and made us say things that aren’t true. Daddy made us say that we wanted to live with him. Daddy said that he was going to burn you.” Such psychological abuse of the children by the husband continues.
Husband’s drug use
The wife’s evidence was that the escalation in aggressive behaviour by the husband occurred when the husband would use drugs and that as his drug use increased, so too did the instances of violence. At the commencement of the relationship, both parties used recreational drugs. In early 2003, the wife stopped using drugs as she was trying to become pregnant and no longer wished to pursue that lifestyle. However, the husband continued his drug usage for a further period of time, using marijuana daily and ‘ice’ on weekends.
Following the birth of X the husband ceased his drug taking. In or around 2007, the husband again commenced to use drugs and by July 2007, he was cultivating marijuana. The husband was charged with drug offences being cultivation and trafficking. He was also charged with being in possession of a prohibited weapon and electricity theft. The sum of $70,000 in cash at the former matrimonial home was confiscated by the police as the proceeds of crime – for which he blames the wife. He received a suspended jail sentence and a $16,000 fine in respect of the offences. He is paying that sum in instalments, he claims, of $50 each month.
As a consequence of the husband’s drug use and violence toward the wife, often in the presence of the children, the wife holds significant concerns for the children’s wellbeing in the event that they are to spend unsupervised time with the husband. When these proceedings were first before the Court on 24 April 2013, and pursuant to s.11F of the Family Law Act 1975 (Cth) (‘the Act’), a Memorandum to Court was prepared by Ms P, Family Consultant dated 26 April 2013 (‘the Memorandum’). Ms P interviewed the parties and the children on 26 April 2013. At that time, the husband had not spent time with the children since October 2012.
Ms P’s recommendation in terms of the children spending time with the husband was that it be from 10.00am each Saturday until 4.00pm Saturday, supervised by the paternal grandfather. Subject to clear drug screens, and after four sessions, Ms P recommended that the children spend time with the husband from 10.00am Saturday till 12noon Sunday also supervised by the paternal grandfather.
When considering family safety factors, Ms P, in April 2012, noted in the Memorandum that the children reflected the view that:-
“… although their mother yelled some times, there (sic) father was always yelling and swearing from the moment he got up in the morning and they found his behaviour scary.”
Ms P indicated that at that time it appeared that the father had little insight either into the constituents of family violence or the impact of his behaviour on others and that he appeared to take little responsibility for his actions, attributing events to the wife.
The history of his drug use, as provided to Ms P at that time, is as set out in the Memorandum, as follows:-
“[The husband] initially denied any history of drug use then stated he last used drugs in September 2012 prior to separation nominating marijuana. He denied he had ever used “ice” whilst at a later stage in the interview he acknowledged he used “ice” prior to the birth of the children and not post 2007 when he undertook Court Ordered drug and alcohol counselling. Later in interview [the husband] stated that his drug use was variable and not daily as claimed by [the wife].
The children claim to have seen [the husband] smoking both cigarettes and a pipe in his garage and they state that they are aware these are drugs which affect their father’s behaviour.”
Ms P noted the history as provided by the parties including that in 2006 the husband’s (omitted) business (which he had run from home) was shut down following complaints from a neighbour, and thus he sought another source of income. In 2007 he was convicted of trafficking and cultivating marijuana and some $70,000 in cash found in the marital home was confiscated by the police.
The wife stated to Ms P that, despite her concerns about the husband’s drug use, she had wanted the children to continue to spend time with the husband until it became, she determined unsafe for them. Both children reported to Ms P that they are aware of the husband’s drug taking and the impact of this on the husband’s moods and on their family. The husband was described by them as:-
“…sort of an angry man and rude to everybody.”
Both children in early 2012 expressed anxiety that the husband had threatened to remove them from the mother. Both children reported hearing the father threaten to kill their mother. They remained, at that time, apprehensive about those issues.
To alleviate the children’s distress the wife organised for them to receive counselling from the (omitted) Family Relationship Centre over several months in 2012. The husband, in interview at that time, was unclear about his proposals with regard to the time the children would spend with him, but he stated to Ms P that he:-
“…wanted to remove them from the low life household”
of the maternal grandparents and that his long-term goal was an equal shared care regime. Ms P concluded, as set out in the Memorandum, as follows:-
“[The wife] wishes to support a relationship between the father and children but she expressed concerned that [the husband] be drug free and initially supervised when caring for the children.
…
X though presents as a thoughtful young boy distressed by his parent’s separation but more distressed by his father’s abusive behaviour to his mother and [the husband’s] persistent yelling.
Y witnessed his father hitting his mother and he appears to experience some confusion about how to respond to his father…
The children considered they would feel safer if there was another adult present when they spent time with their father and they nominated their paternal grandfather.”
As a consequence of the evidence before the Court in the form of the Memorandum, Orders were made by the Court on 10 May 2013 that the children live with their mother and spend supervised time with the husband each Saturday from 10.00am until 4.00pm with the supervisor to be the paternal grandfather. Further, the Court ordered that the children communicate with the husband by telephone each Tuesday and Thursday between 4.00pm and 5.00pm. The husband was to obtain and provide to the wife’s solicitor a supervised urine drug screen and thereafter undertake random supervised urine drug screening within 48 hours of a request for same. He did so for a time and they were clear screens but it is uncertain whether supervision was satisfactorily established. The husband failed thereafter to engage in a constructive dialogue with the wife, and to address the issues of violence and parental capacity that would have enabled him to spend unfettered time with the children.
In accordance with Orders made in this Court on 12 August 2013, the husband spent time with the children over a period of four weeks commencing 17 August 2013 from Saturday at 10.00am until Sunday at 12.00noon. That time was to be supervised. That time was not always supervised by the paternal grandparents, and the husband, on occasion, over held the children. The husband told the children that the wife’s home was “dirty and smelly”, that their mother was “a fucking idiot and lazy”, and that he would make sure that they would not see her again. This caused the children great distress. The husband continually questioned the children, and wrote their answers on a piece of paper. In September 2013 the husband alleged that his children had reported to him that one of them had been hit by the maternal grandfather, Mr V. It was alleged that Y had been slapped by his grandfather. This slapping incident allegedly occurred on or about 1 September 2013 and caused distress to the boys, who were as a consequence, it was said, scared of their maternal grandfather. Before attending at the (omitted) police station to report that the maternal grandfather had hit Y, the husband sat the children down and got out a piece of paper, and asked them if the maternal grandfather had ever touched them. The child, Y, responded that the maternal grandfather had touched him on the face. The husband then said the children did not have to go home to their mother.
The children told their mother that in this period of time their father had “told us to call you a fucking dog”. X then went on to say to the wife, “Dad said to us that he was going to kill you and smash Grandad’s head in”. At that point, X burst into tears and became very distressed. Subsequently, X told the wife that he was concerned about the husband’s collection of knives and daggers, as the husband had told X that he would kill his mother.
The children have also recounted to the wife that men come to the husband’s home, the visits are quick, and that these men go into the garage with the husband. The children state these men give the husband money. On one occasion when X walked into the garage he found the husband and his girlfriend, Ms A, counting money. X reported that he heard Ms A asking of the husband, “What will you do with all that money?”
Anti-suit injunction
The husband accused the wife of stealing the tools of his trade from the former matrimonial home and instituted proceedings against the wife in the Magistrates’ Court of Victoria at Dandenong in relation to loss of earnings by him. These allegations are denied by the wife. The former matrimonial home was allegedly broken into, on 30 October 2012 when the wife was residing in her parents’ home in (omitted) in the State of Victoria, and the husband was living across the road from the former matrimonial home. The wife became aware of the break-in because she received a text from the husband stating that the home had been broken into, and that he had reported it to the police. The civil complaint brought by the husband against the wife in the Magistrates’ Court of Victoria at Dandenong was filed by him on 2 July 2013. In that claim, the husband is seeking the sum of $95,000 against the wife for being removed from the former matrimonial home on 1 October 2012, which caused the husband to be unable to conduct his business from that premises thereafter. The husband has claimed a loss of potential income in having his access to the garage of the former matrimonial home denied; irreparable damage to his reputation by the wife’s refusing the advice he claims to have given to her on many occasions, to allow him to return to the former matrimonial home and operate his business from that site. It is a spurious claim. The husband is able to operate his business from any garage. The garage at the former matrimonial home has no fixed pieces of equipment such as a hoist and no machinery, nor anything that makes it irreplaceable. In addition the husband claims his business to have no value and to produce income of perhaps $12,000 per annum.
The Court will injunct the husband from proceeding further with those civil proceedings issued by him in the Magistrates’ Court of Victoria at Dandenong, other than his discontinuing such proceedings. The Court has the necessary power to make such an order in circumstances such as these (Lederer v Hunt (2007) FLC 93-31; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 397). The proceedings in the Magistrates’ Court of Victoria at Dandenong involve a matter, the husband’s business and its operation, which is very much central to the property proceedings between the parties that is before this Court. Complete relief as sought by the husband is available to him in these proceedings, this Court having the necessary jurisdiction. The husband’s commencement of those proceedings after these proceedings were otherwise on foot was intended by him, and was, vexatious and oppressive. There is a common substratum of fact and a single controversy involved in the two proceedings. The granting in this instance of an anti-suit injunction pursuant to the Court’s inherent power, and also to restrain the husband from engaging in the oppressive and vexatious conduct, is necessary to protect this Court’s processes and proceedings. The wife has incurred additional costs in respect of these vexatious proceedings instituted by the husband and the Court will require the husband to reimburse the wife in the quantum claimed, which is reasonable and a sum of $3,142.
Section 75(2) of the Act matters
Since separation, the husband has made no genuine efforts to be gainfully employed. In his Financial Statement sworn on 23 April 2013, he deposed to being in receipt of $243 each week by way of a Centrelink Newstart allowance. He claims to now have significant work available to him but appears to receive no significant income.
Despite the husband being concerned that the children were living with their maternal grandfather whom he deposed to being, “abusive, dirty and violent”, the husband allowed that situation to continue whilst he moved between the investment property and the former matrimonial home. Indeed, he contrasted, in his Affidavit sworn on 22 April 2013, the pleasant living environments in which he resided by comparison with that which he asserted his children were residing in.
Following the husband obtaining a variation to the interim Intervention Order which enabled him to work in the garage of the former matrimonial home, for a month in early 2013, he commenced to leave all the lights on in the property all night. As he refused to pay the bills associated with the house, the wife had no choice but to remove the fuses located on the property in an attempt to reduce the bill. Nevertheless, there is an amount remaining owing which shall be the sole responsibility of the husband as shall all rates and utility expenses of both real properties given the husband’s occupation and control of same, and his ability to earn an income.
Although the Orders of 10 May 2013 provided that the investment property be sold, the husband failed to comply with that order and cooperate with the wife, and remained residing in that property until August 2013. He made no attempt to sell the property. Instead, he rendered one property unusable in the damage he caused to the former matrimonial home and its removal of furniture, and installed himself in the other property, being the investment property, which he then proceeded to render unliveable.
The monopoly of both real properties by the husband has meant that the benefit from rental income or any alternate monies from the sale of the investment property have been lost to the wife for a considerable period. In addition, the husband has failed to pay all the outgoings on the former matrimonial home, and as at 12 November 2013 the wife deposed to two outstanding rates and utility bills owing in the sum of $3,779.14.
The husband obtained an insurance cover note in respect of both real properties at the commencement of the hearing, upon request to do so. It is clear the properties have been uninsured for a period of time and that the wife, to achieve certainty, will be required to take out insurance policies in respect of both real properties and to herself be the policy holder, given the damage occasioned to the properties by the husband to date.
I refer to, but will not repeat, my reasons for judgment delivered 10 May 2013 in an interlocutory stage of these proceedings. I note therein, however, that at that time the husband had debt approaching $38,000 with no immediate capacity to repay that debt out of income. That included the arrears that were then owing to the (omitted) Bank, and in relation to which the husband made a lump sum payment of $9,500 on 7 May 2013. The husband’s further evidence at that time was that he anticipated being employed by (omitted) in (omitted) on a part-time basis in the following week. His evidence was that he anticipated that he would commence working for two to three days a week and that his salary might be $550 to $650 once he obtained full-time employment. He, however, produced no contract of employment or any other documentation from the prospective employer as to whether he would be so gainfully employed and the terms of any such engagement. At trial the husband gave no evidence of being employed by any other person and indicated that he was back working his business out of the garage of the former matrimonial home, from which by order of this Court and the Magistrates’ Court of Victoria, he had been excluded.
The husband sought an order that the wife pay none of the children’s schooling or health expenses into the future, and submitted to the Court that he would be entirely responsible for the totality of the payment of such expenses. This was despite his non-contribution to any of their expenses or upkeep since separation. The children have had, of course, health and schooling needs and expenses in that period of time. His evidence, his demeanour in the Court room, and his past behaviour lead the Court to conclude the husband will never make a contribution or payment to the wife for the support of the children.
The wife has no formal qualifications to enable her to return to the workforce. Following separation and ongoing, she has borrowed funds from the maternal grandfather and her sister to assist her in the day to day living expenses of herself and the children, and to pay for her legal fees.
The continuing litigation has caused considerable distress and also considerable financial detriment to the wife. The husband has appeared as a litigant in person at trial. The wife incurred total costs with her former solicitors, Nicholes Family Lawyers, in the sum of $80,221.13 inclusive of disbursements. That sum included an amount of $3,142 for the husband’s civil complaint which is continuing in the Magistrates’ Court of Victoria at Dandenong, and $16,267.30 for the court matters for the intervention orders which are also continuing in the Magistrates’ Court of Victoria at Dandenong. A large component of the remaining costs incurred by the wife relate to attempts to obtain discovery from the husband in relation to his financial position.
Evidence of Family Consultant
Ms P, Family Consultant, prepared a family report pursuant to s.62G of the Act in respect of parenting orders issues in these proceedings. That report is dated 15 October 2013 and was introduced into evidence on 15 November 2013 (‘the Family Report’). Ms P was cross-examined by counsel for the Independent Children’s Lawyer (‘ICL’) as to matters subsequent to the preparation of the Family Report and by the husband who wished to challenge the contents of the Family Report and its recommendations.
Ms P read relevant Court documents as set out by her in the Family Report on page 3 thereof and interviewed each of the parents and the children separately, and made observations with each parent separately with the children.
Ms P succinctly identified the issues pertaining to this family as set out in paragraph 21 of the Family Report and as stated below:-
“• There is a high level of conflict between the parents arising largely from Mr Kedis' inability to either emotionally self-regulate or to provide boundaries to his conduct in the domestic arena;
• The children have been indirect victims of family violence as they have been witness to the abuse between the parents largely perpetrated by Mr Kedis;
• The children have direct experience of family violence as they have been psychologically damaged by witnessing their parent's conduct and they suffer on-going emotional abuse as a consequence of their father's unrelenting denigration of their mother and from each parent exposing the children to adult issues;
• The children are experiencing a level of physical neglect as their living environment is compromised as a direct consequence of Mr Kedis' failure to make interim financial contributions to the children's welfare;
• Mr Kedis cannot hold in mind the needs of others and as such he is neither child nor other focused and he appears to lack a capacity for reflective behaviour or insight.”
The wife identified (to Ms P) a history of family violence as directed toward her by the husband. That included, more recently abusive text messages. Historically it included spitting in her face; name calling and the extensive use of foul language; and belittling and demeaning behaviour. All of this took place in the presence of the children. The wife claimed the husband was extremely hostile toward the wife’s family, and attempted to limit her contact with them, the maternal grandfather in particular. Other family violence claimed by the wife was the husband’s physical violence toward her on approximately four occasions and the husband’s damaging of property. Ms P described it (at paragraph 27 of the Family Report) as follows:-
“Mr Kedis was also described as possessive and jealous restricting Ms Kedis' social activities and contact with her family about which Mr Kedis expressed a particularly hostile and derogatory view (also observed in interview). It is alleged that there were approximately four acts of physical violence over the course of the relationship none of which resulted in medical intervention but there was considerable damage to property by Mr Kedis. Ms Kedis however identifies herself as most traumatised by Mr Kedis' threats of harm to her and to her family including allegations that he stated he “…would pay $5000 to have me (Ms Kedis) killed because it is cheaper than a divorce and kill your family and burn their house so they would burn like mice ... smash her (Ms Kedis ') teeth in and bury her (Ms Kedis) in the backyard ... make you (Ms Kedis) go missing so noone will find you.” In addition there were threats from Mr Kedis that she “… would never see the children again” and he asserted that “...the children don't want you” and during recent periods of spending time with their father Mr Kedis asserted “...the kids don't want to come back” and he is reported as having over held the children.”
Ms P also noted in the Family Report amongst the many issues raised by the wife, the wife’s current concern is the husband’s drug use and/or drug dealing because his drug use caused him (in a long history of drug use) to become increasingly aggressive and his drug dealing presented an “unsuitable environment for the children to be immersed in” and apprehension in her as to “the nature of the people to which the children may be exposed”.
The wife informed Ms P that the children had reported that during one period of time spent with the husband (between 24 August 2013 and 14 September 2013) the husband made a video of them which caused them some distress and in which the husband instructed the children what to say. When the children were interviewed by Ms P both said in separate interviews that the husband had coached them as to what to say in the video. X reported to Ms P that he got into trouble from the husband because when he was asked “who do you love?” he replied “Mummy”. That video was introduced into evidence and viewed by the Court, the parties and Ms P during the running of the proceedings. Whilst there were some positive aspects to the video as referred to by Ms P – the children did not appear scared of the husband and indicated that they loved him – Ms P sought to place the taking of the video in context. It is clear on the evidence of the husband given in the proceedings, that his purpose in producing the video was to place it before the Court so as to present himself in a more favourable light than that presentation of him as set out in the Family Report. Ms P considered that the husband (in taking the video) had engaged in a process that was abusive towards the children and once again demonstrated “his lack of child focus and incapacity to understand what the needs of the children are.” Her evidence at trial as to the content of the video in part was relevantly as follows:-
“… X and Y also are children who are compliant with their father’s requests. It was very clear in my observation of them in the interview room that they sit, they wait to hear what father has got to say and they comply with anything he says, and that seems to fit into the context of a family in which father’s violent eruptions create a terror for all members of the family and everybody knew that what they had to do was comply with their father’s view of the world. These children clearly understand the consequence of failing to comply with their father’s requests. So the leading questions were highly problematic. There was also an attempt on several occasions to extract negative information from the children and also to encourage them to respond negatively about the other people in their life, like their grandparents of who I’m aware particularly the maternal grandmother is an object of great love and affection for the children. And Mr Kedis was prodding the children for them to tell him that one parent is better than the other – is preferable to the other, and this was evident by his comments of, “Of course it’s better at dad’s house.” Mr Kedis noted the sleeping arrangements the children talked about and were reported in the family report are – a direct quotation – “not good”, and my curiosity still remains today, as it did at the time of the interviews with Mr Kedis, as to how he has addressed that. A child focused parent concerned for the child’s welfare would have made some provision to assist in providing a reasonable standard of care for the children. At the time of interview, Mr Kedis was amused and – as he was on the tape. What concerned me was his laughter about the situation. The children are uncomfortable, they’re complaining to their father and he thinks it’s really amusing and “poopy caca” was his comment. The discussion about the children’s sleeping arrangements continued and Mr Kedis identified in interview – in the video that – a direction question, your Honour – “Dad has got all the beds. Mum has got no beds.” And this was in contradiction to denying to me in interview that he had actually taken the children’s beds. That was an earlier dispute between the parents that I didn’t much – address much in interview but indicates that he has knowingly removed the children’s possessions and left them without a suitable sleeping – sleeping equipment and he has done that to gain, perhaps, some kind of advantage, but it’s not an advantage for the children and that remains my point here. What advantage is gained by the children of them not having appropriate sleeping accommodation arrangements or the use or access to equipment that’s rightly theirs? It was evident also Mr Kedis was interrogating the children, and “interrogating” is my word. It doesn’t mean he has to stand there with the whip but the repeated questions he was asking the children in order to obtain negative information about the grandparents, their beds, their sleeping arrangements and cats, and these were all consistent with allegations he has already raised in affidavit.”
Ms P concluded that again the husband had shown his inability to address the needs of his children and to be a loving parent who assists them. Her evidence was that he had no empathy or concern for the children’s situation and no understanding that the children are fearful of the husband’s threats toward their mother and his denigration of her.
The wife was found by Ms P to have also contributed to the children’s anxiety by providing them with information about the dispute between their parents that she should not have. The wife acknowledged this both to Ms P and to the Court in her evidence. Her further evidence that she has since refrained from doing so, is accepted by the Court.
Ms P reported that in interview the husband was angry and abusive at times. He blamed others for events not favourable to him and for his own conduct, although he did acknowledge spitting at the wife and throwing a telephone at her. He abused and insulted Ms P, and on several occasions was advised that if he continued to be abusive the interview would be terminated.
The husband told Ms P that although he wanted equal shared parental responsibility, he wanted for the wife “… to go away… I never want to know she exists.”
Ms P described the husband in interview as having:-
“… poor emotional regulation displaying extremes of behaviour from displays of tears then seguing rapidly into a hostile, blame laying aggressive and abusive man making general reference to “...you people (at Court)”; being derogatory about Ms Kedis “...who sat on her arse reading magazines”; and "...who's got no brain” and “...on drugs” and reflecting that “...kids get destroyed with mother's like that”. Mr Kedis reserved especial contempt for the maternal grandfather whom he described “...as a rotten men (sic) and a disgusting filthy lowlife who starts trouble” describing the maternal grandmother as “...a piece of shit with a black heart.”
X presented to Ms P as “a serious minded boy burdened with the concerns of his parents and with a flattened affect…repeatedly acknowledging that he ‘is sad’.” He claimed the husband said nasty things about his mother and threatened to take him away from her. X described his father as “…screaming from the time he wakes up” and as “sort of an angry man and rude to everyone”. X also reported that previously he was so nervous he was vomiting at school when his male teacher shouted, but with his teacher’s help that has now settled. When this concerning behaviour was put to the husband by Ms P, she noted he expressed no concern for X, “no momentary whiff of parental shame, no glimmer of insight nor did he canvass, even marginally what he might need to do to alleviate X’s distress.” X reported that his father threatened to kill his mother “because she (Ms Kedis) is a bitch who doesn’t respect him (Mr Kedis).” He described time spent with his father being mostly not together with the husband spending most of his time in his garage or engaged in other activities not involving the children. X and his brother reported to Ms P that the husband’s girlfriend ‘Ms A’ cared for them when they spent time with him earlier in this year, and that their father was often not there. This is despite the husband’s evidence being that he is not in a relationship.
Y claimed (to Ms P) to be (as set out in paragraph 72 of the Family Report):-
“...happy I am not living with him (Mr Kedis) as he “...is scared of his (Mr Kedis') yelling”.
Ms P noted that Y:-
“… repeats the twin ideas that Mr Kedis yells, which is frightening and “....he says rude words about mum” which makes “Y“...sad.””.
Y reported that his maternal grandfather did not hit him and that he is not scared of him and often plays with him. He claimed to have been ‘pressured’ by the husband to make such an allegation.
In her concluding evaluation of the parties’ as set out commencing at paragraph 82 of the Family Report, Ms P said of the husband in part the following (at paragraph 86 of the Family Report):-
“…Mr Kedis’ alleged attendance at an anger management course has not provided him with any insight into his behaviour or the difficulties he presents for others in his social orbit. Mr Kedis appears to be contemptuous of others and in particular Ms Kedis, which he communicates without regard for his audience; and he appears to have no capacity to consider any alternative perspectives and as such he appears to be self-focused and grandiose.
Thereafter, Ms P set out in clear and concise language her expert opinion as to the husband’s parenting capacity including the impact of his behaviours on the children. I include some part of it in these Reasons as I accept her evidence in its totality, being an accurate assessment of the husband when coupled with all of the evidence in the proceedings and having observed the demeanour of the husband in the witness box. Her report and oral evidence was both illuminating and insightful and really went to the core of the parenting determination required to be made:-
“87. Ms Kedis may love his children but he does so in a proprietorial manner, he does not provide for their welfare and he is unquestioning and unconcerned about model of parent he presents to his children. Mr Kedis describes his relationship with his children in terms of how much the children love him demonstrating that he is fundamentally a man not given to consider the needs of others, even those of his own children.
…
89. The children have experienced their father's conduct and are aware that their mother has again been aroused post separation by abuse from their father which has led the children to be vigilant around their father and feeling they cannot enjoy their time with his father. But there is more than just Ms Kedis impacting on the children's view as Mr Kedis fails to take any responsibility for his conduct and he contributes to this difficult situation with his persistent questioning of the children, his vulgarities about and abusive texts to their mother and his desire to “stage events” to demonstrate his superior parenting. The children too have within their developmental and intellectual capacity commenced to form views about their experience of each parent’s conduct and in this regard Mr Kedis has not been judged positively. For example, the children themselves can see that their father has the majority of their possessions and two houses whilst they share a bedroom with their mother; Mr Kedis also is ungenerous with his time as he has “Ms A” to care for the children and he engages in other activities during their time with him and his descriptions of their mother are at variance with and disrespectful of the children's experience of their mother.
…
91. Ms Kedis is apprehensive about Mr Kedis' potential conduct towards the children; she is fearful of further interaction with him and she experiences difficulty seeing the father-child relationship as different from her own experiences. Mr Kedis promotes these anxieties as he attempts to undermine the maternal relationship by aligning the children to his derogatory view of their mother and he clearly has no good-will towards Ms Kedis. The children are now his vehicle for family violence as he uses them to pass threats to their mother and to intrude on her day to day existence and to assert his control by his habitual failure to comply with Court Orders.
…
93. Mr Kedis appears to be limited in his capacity for understanding of and empathy towards others as his descriptions of his relationships are based not on expressions of either regard, concern or curiosity about others but grandiose assertions about the strength of feelings others have for him such as his repeated assertions that “...my kids love me to bits.” Mr Kedis' conversations with the children are similarly marked by his self-absorption and he appears to have little capacity to hold his child in mind and consider his children's needs apart from his own. Were he able to understand the children's needs he would recognise the distress his persistent abuse of their mother causes for X and Y; were he able to understand the impact of his behaviour on others he would understand how profoundly disturbing his children have found his threatening and abusive conduct to others and were he able to see the children as separate from himself he could consider that although he may not like Ms Kedis but he could recognise that her children love her and feel protective towards her.
94. Given Mr Kedis' inability to tolerate another's viewpoint coupled with his history of the unrestrained and unrelenting presentation .of his derogatory opinions of others there is concern about Mr Kedis in his role as a socialising agent for X and Y. As a parent Mr Kedis, by modelling these behaviours can be identified as potentially damaging his children's capacity to respond to others appropriately; to respond appropriately to challenges to their view point or to accept responsibility for their behaviour and to manage relationships with females in a respectful non-demeaning manner.
95. Mr Kedis' parenting style establishes as its base compliance with his wishes and there is already a sense of psychological passivity from these children and awareness that agreement with their father's wishes is their least unpleasant option. This presents long term tensions and consequences for the children such as a loss of self-esteem and belief that they cannot impact or control the world around them and such children display a lack of motivation and a sense of “giving up” accompanied by the anxiety and sadness which both children are already expressing.”
Ms P concluded that the husband would in all likelihood continue to interrogate the children and to be abusive and threatening toward the wife in their presence. She recommended that the children’s time spent with their father be both limited and supervised and made other recommendations which are orders sought by the ICL and the mother and will appear as orders made by the Court. She added, concerningly, at paragraph 100 of the Family Report as follows:-
“A significant concern here is Mr Kedis' lack of insight and accountability for his behaviour and his limited capacity to comprehend and respond positively to issues raised. Given the prevalence and intensity of Mr Kedis' threats it is realistic to be apprehensive about the probability that any restrictions on his time with the children will result in his anger escalating creating uncertainty about his possible impact on the welfare of others.”
The final matter put to Ms P by counsel for the ICL in cross-examination was as to the husband taking the children, in the week of the hearing, from school shortly after it commenced, and taking them with him to see his own solicitor and then to the office of the ICL. This was done without the knowledge or consent of the wife or the ICL. The ICL was not in the office at the time and did not see the children. Ms P described this action of the husband as the placing the children in another abusive situation; of exposing the children to inappropriate adult issues and creating more consternation and anxiety for the children; and of being grossly immature and completely self-serving. In all she said, he acts without empathy, he is without remorse and without consideration for the needs of others. The evidence establishes exactly this.
Consideration (parenting issues)
The husband sought orders that he and the wife have equal shared parental responsibility of the children and that they live with each of their parents on a week about basis. This was a completely unrealistic application with no prospects of success. The husband had not spent a great deal of time with the children whilst the parties resided together and has spent, because of his behaviours, little time with them in the past 12 months. It was an application unsupported by the evidence and lacking in insight on his part. His pursuit of such application at trial had as an element, the harassment of the wife.
The wife and ICL sought orders in the same terms and they are the orders the Court makes this day.
The presumption (as set out in s.61DA of the Act) of equal shared parental responsibility is rebutted in this case on the basis of the evidence as set out in these Reasons, in particular the evidence given by Ms P. The Court finds the husband to have engaged in family violence (s.61DA(2)(b) of the Act). In addition, the Court is satisfied on the evidence that it would not be in the children’s best interests for their parents to have equal shared parental responsibility of them (s.61DA(4) of the Act). The parties have no ability to communicate about the welfare of the children. The wife is fearful of her safety and concerned as to the psychological abuse the children have suffered, and will suffer – given the husband’s present behaviours and attitude toward her – at the hands of the husband. Those expressed fears are supported by the evidence.
When looking to those matters the Court must consider, as set out in s.60CC(2); s.60CC(2A); and s.60CC(3) of the Act, the Court finds that s.60CC(2)(b) of the Act is operative in that there is an urgent need to protect these children from the psychological harm and family violence the husband perpetrates on them. That consideration significantly outweighs the benefit to the children of having a meaningful relationship with their father.
When considering those matters as set out in s.60CC(3) of the Act the Court finds that in order to protect the children from family violence, neglect and abuse, as instigated by the husband, their exposure to him should be limited and supervised. The Court gives some weight to the children’s expressed wishes to see their father, but in a limited and supervised way with no threat of a non-return to their mother’s care. The children wish to live with their mother with whom they have a close, nurturing and loving relationship. The husband conceded she was a good parent who looked after the children. It is she solely who has provided for their physical, emotional and financial needs since separation. The husband has refused to acknowledge his responsibilities as a parent and his treatment of his children with respect to their housing needs is but one example. He has no capacity to prioritise the children’s needs or understand them. His constant and abusive denigration of their mother and threats toward her highlights this. The wife has been supportive of the children continuing a relationship with the husband and only ceased same when she determined, accurately, that the children were at risk and not safe. Each of those times when the husband did see the children he spent little actual time with them himself.
The wife has been traumatised by the husband and has been unable to return to the former matrimonial home or enforce earlier orders of the Court in that regard. She, however, remains open to the possibility of the husband having a meaningful relationship with the children once the husband has demonstrated by a compliance with the Orders which the Court makes this day, that the children are not at risk in his care.
It is in the children’s best interests that they continue to live with their mother and that she be solely responsible, without the need for dialogue with the father, for parental responsibility of them. Such orders continue what has in fact occurred in their lives to date.
Consideration (property issues)
The Court proposes to make no adjustment to the parties’ respective superannuation entitlements. They slightly favour the wife but in the circumstances where she has no employment qualifications and the full-time care of the children, for whom she shall receive no child support, that apportionment in her favour of a sum not available to her for many years, is in all the circumstances a just and equitable outcome.
The orders as sought by the wife require, firstly, a consideration of a 70 per cent adjustment of:-
a)the two real properties less the mortgage encumbrance; and
b)the husband’s motor vehicle.
That is a sum of $494,713.10 to the wife. Secondly, the Court is required to consider the damage done to the investment property by the husband’s actions which has caused it to lose value in the vicinity of $30,000 to $40,000. The husband should be liable for and accountable to the wife for this loss and at the larger figure. Rendering this property unliveable is an extraordinary act of vandalism and waste. The property’s sale for even the value ascribed to it by the valuer Mr A cannot be certain. Given the provision of the former matrimonial home as security for the repayment of the mortgage secured over the investment property, the wife’s exposure to bank action in respect of her ownership of the former matrimonial home (as sought by her) is real. An addition to the sum to be received by the wife should be made in the adjustment of 70 per cent of $40,000, which equals $28,000 to the wife. This makes a total of $522,713.10 to the wife. Finally, there is required to be considered a lost rental income as claimed and the incurring by the wife of unnecessary legal costs in the Intervention Order proceedings. The husband has had occupation of the investment property but maintained the mortgage repayments with respect thereto, and should not be required to pay any further amount by way of a rental claim. He has precluded the wife from occupying the former matrimonial home or indeed any tenant taking up occupation. That is a more nebulous claim however and the wife has not herself incurred a rental expense nor sought to enforce the beneficial orders she obtained. Nor is there any reliable expert evidence about this. I do not propose there should be any further adjustment with respect to this claim. The Intervention Order proceedings of course occurred in another court and that Court has power to order costs in its proceedings. The issue here is that on the sale of the investment property, monies will be received that if paid to the husband will not, on the evidence, be thereafter recoverable by the wife. The husband’s pursuit of those other proceedings has been intertwined with these proceedings and directed toward being oppressive and vexatious, save for the first variation order he sought which did not, in any event, incur for the wife legal costs. Given the parties’ disparity in income and earning capacity, and the nature of those proceedings and the husband’s conduct, the Court determines that the justice of this case requires those costs to be taken into account and an adjustment made in favour of the wife of some part of her costs and in the sum of $10,000. Thus, a total payment to the wife and/or transfer of real property should be made to the value of $532,713.10, or more conveniently $532,713.
The percentage apportionment of 70 per cent to the wife is just and equitable in all the circumstances. Her contribution slightly exceeds that of the husband and the s.75(2) of the Act matters fall heavily in her favour. The husband has capacity to be gainfully employed. The wife does not. The wife for many years to come will have the support of the children without contribution from the husband. The husband has wasted the parties’ assets. The husband has breached orders of the Court which has resulted in his further destruction of the investment property and its delayed sale. These are matters I consider relevant pursuant to s.75(2)(o) of the Act. The husband will retain his motor vehicle and receive the net proceeds of sale of the investment property after deduction of the various amounts. The investment property has a current equity of $184,233. The husband will be required to pay out various sums which will exceed $24,634. He will have approximately $150,000 to apply toward payment of his personal bills and to re-establish himself.
The Court is satisfied in all the circumstances the orders it makes are just and equitable.
Before concluding these Reasons the Court puts, necessarily, on record its assessment of the husband as a witness. He was not a credible witness. At times he erupted into uncontrolled anger. He was either belligerent or non-responsive in the giving of his answers in the witness box. His demeanour was disrespectful to the Court, Ms P and the wife, and he exhibited complete disdain for the wife. By contrast the wife was direct and truthful. There may well be a need for this matter to return to Court to ensure compliance with the Court’s orders and so provision shall be made in the Orders for that purpose.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 29 November 2013
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Costs
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Remedies
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Restitution
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