MAVROS & MAVROS

[2014] FamCA 1129

FAMILY COURT OF AUSTRALIA

MAVROS & MAVROS [2014] FamCA 1129

FAMILY LAW – CHILDREN – Where the husband seeks parental responsibility and that the children live with him and spend time with the wife as agreed, supervised by the husband – Where the matter was heard on an undefended basis and the wife did not file any material or attend the hearing – Where the wife is a habitual user of the drug ice – Where the children have been exposed to family violence – Where there is a strong risk the children will be exposed to drug use and dangerous behaviour if left unsupervised in the wife’s care – Where it is found not to be in the best interests of the children for the parents to have equal shared parental responsibility – Where it is concluded to be in the children’s best interests that the living arrangements proposed by the husband are accepted.

FAMILY LAW – PROPERTY – Where the husband seeks to receive the balance of proceeds held in trust – Where it is just and equitable that an order be made for property settlement –  Where the contributions of the parties are found to be equal – Consideration of the parties’ future needs -  Orders made in terms sought by the husband.

APPLICANT: Mr Mavros

RESPONDENT: Ms Mavros

FILE NUMBER: SYC 7540 of 2013

DATE DELIVERED: 8 December 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 8 December 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Delaney Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The applicant husband have sole parental responsibility for the children G born … 2004 and X born … 2007 (“the children”).

2. The children live with the husband.

3. The children spend time with the wife as agreed, or as otherwise ordered by the court.

4. I note that the husband has indicated that for the foreseeable future he intends, as a minimum, to have the children spend time with the wife as follows:

   4.1.Each Wednesday from 6 pm until 8 pm, such time to be supervised by the husband and to occur at a public location;

   4.2.Each Saturday from the commencement of the children’s sport or from 9 am if there is no sport on, until 1 pm, such time to be supervised by the husband.

5. The parties be and are hereby restrained from:

   5.1.Abusing, harassing or belittling the other parent;

   5.2.Abusing, harassing or belittling the children;

   5.3.Discussing any court proceedings between the parties with the children, or allowing a third party to discuss such proceedings with the children;

   5.4.Denigrating the other party to the children, or within their hearing, or allowing a third parent to denigrate the other party to the children, or within their hearing, or allowing the children to remain in a place where the other party is being denigrated;

   5.5.Consuming any illicit or prescription drug when the children are in their care, except where such drug is properly prescribed by a treating medical practitioner; and,

   5.6.Having a blood alcohol level in excess of 0.05 percent when the children are in their care.

6. Pursuant to s 79 Family Law Act 1975 (Cth) I make an order in accordance with paragraphs 7 to 11 below.

7. Within 21 days of the date of this order, the parties do such acts and sign all such documents as may be necessary to transfer to the husband the remaining funds held in trust by DIB Lawyers.

8. The Court declares that, except at provided to the contrary, as against the husband, the wife is the sole owner of and the husband has no interest in:

   8.1.The sum of $55,700.66, or the remainder thereof, received by her by way of partial property settlement pursuant to the orders dated 30 April 2014 and made by consent;

   8.2.All other assets, of whatsoever nature and kind, presently in the name, ownership or possession of the wife.

9. The Court declares that, except as provided to the contrary, as against the wife, the husband is the sole owner of and the wife has no interest in:-

   9.1.The sum of $55,700.66, or the remainder thereof, received by him by way of partial property settlement pursuant to the orders dated 30 April 2014 and made by consent;

   9.2.The Commonwealth Bank account in the name of the husband (BSB: …, Account Number: …);

   9.3.The household contents;

   9.4.All other assets of whatsoever nature and kind, presently known in possession of the father.

10. Except as otherwise provided in these orders, each of the parties releases the other from all debts owning from one to the other.

11. There be no Order transferring either of the parties' interests in superannuation, and no superannuation splitting Order to the intent that each party retain all such interests to the exclusion of the other.

12. In default of either party ("the defaulting party") doing all acts and things, and executing all such documents as are necessary to give effect to these orders, within fourteen (14) days of an obligation to do so as required under these orders, and upon the Registrar being satisfied of such failure, or neglect or default by the defaulting party by way of affidavit evidence only, a Registrar of the Family Court of Australia at Sydney is appointed pursuant to s106A of the Act to execute all such documents in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to the said orders, and the defaulting party pay to the other party to that application that party's costs and disbursements on an indemnity basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mavros & Mavros has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7540 of 2013

Mr Mavros

Applicant

And

Ms Mavros

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the husband seeks orders pursuant to a Further Amended Initiating application which was filed on 20 August 2014.  Those orders, in summary, are:

   1.1.The husband have sole parental responsibility for making decisions about major long-term issues in relation to the two children of the marriage, G born in 2004 and X born in 2007. 

   1.2.The children live with their father and that the children spend time with their mother as agreed or as otherwise ordered by the Court.

2. A series of injunctive orders are also sought in the application. 

3. The injunctive orders that are sought are detailed in the application as follows: 

   3.1.Abusing, harassing or belittling the other parent;

   3.2.Abusing, harassing or belittling the children;

   3.3.Discussing any Court proceedings between the parties with the children, or allowing a third party to discuss such proceedings with the children;

   3.4.Denigrating the other party to the children, or within their hearing, or allowing a third parent to denigrate the other party to the children, or within their hearing, or allowing the children to remain in a place where the other party is being denigrated;

   3.5.Consuming any illicit or prescription drug in when the children are in their care, except where such drug is properly prescribed by a treating medical practitioner; and,

   3.6.Having a blood alcohol level in excess of 0.05% when the children are in their care.

4. The husband also seeks orders pursuant to s 79 Family Law Act 1975 (Cth) (“the Act”) for alteration of property on the basis that he receive the remaining funds that are yet to be distributed between the parties, representing something close to 40 percent of the proceeds that are currently held on trust by DIB Lawyers, the parties already having each received 30 percent of those funds pursuant to orders made on 30 April 2014.

5. Turning firstly to the issue of service, this matter has been dealt with on an undefended basis where the wife has not appeared.  The husband relies upon an affidavit of Mr K filed on 1 December 2014.  That affidavit sets out comprehensively the opportunities the wife has been given to participate in these proceedings and I am satisfied that she is aware of the listing today. 

6. The husband otherwise relies upon an affidavit of himself that was sworn on 24 October 2014, another affidavit that was filed on 19 November 2014 and a financial statement that he filed on 19 November 2014.  Further, the husband has relied upon documents produced under subpoena by the New South Wales Police Force, which I will mark as Exhibit 1.  Those documents were received by the Court on 25 November 2014. 

BRIEF CHRONOLOGY

1. The parties commenced a relationship in 2002. 

2. The husband is 43 years of age, having been born in 1971.  The wife is 31 years of age, having been born in 1983. 

3. The parties commenced cohabitation on the day they married, which was in 2003.

4. The first child from the marriage, G, was born exactly one year later in 2004.  He is currently 10 years of age.

5. The parties initially lived in the husband’s parents’ home, and then moved into rented accommodation at Suburb H. 

6. The second child, X, was born in 2007. He is currently seven years of age.

7. In May 2008 the parties purchased the former matrimonial home at Suburb L. 

8. The parties separated on 20 August 2012. 

HUSBAND’S APPLICATION FOR PARENTING

1. The husband seeks an order for sole parental responsibility; that the children live with him, and that the children spend time with the respondent wife as agreed or as otherwise ordered by the Court.

2. The current arrangement pursuant to interim orders made on 30 April 2014 is that the children spend time with their mother each Wednesday from 6.00 pm to 8.00 pm and that time is to be supervised by the husband and to occur at a public location.  In addition, the children spend time with their mother each Saturday from the commencement of the children’s sport until 1.00 pm and again that time is to be supervised by the husband. 

3. The husband has indicated today that although the order in relation to the children’s time with their mother is framed in terms of the parties agreeing or the Court otherwise ordering, the husband agrees with the notation that it is his current intention to maintain the existing arrangements, that is, to facilitate the children spending time with their mother each Wednesday 6.00 pm until 8.00 pm and each Saturday after school sport until 1.00 pm.  That arrangement, I am told, has by and large been happening although the wife, on the evidence, has not been entirely consistent about turning up. 

4. In considering what orders to make in this matter, the first thing I need to do is consider the s 60CC factors. 

5. Section 60CC(2)(a) of the Act provides that, when considering the best interests of the child, the Court is required to consider the benefit to the child of having a meaningful relationship with both the child’s parents. On the material that I have, it is clear that the husband is a committed parent, he loves his children and there is benefit to the children of having a meaningful relationship with him.

6. The husband concedes that the wife loves the children and that, certainly up until 2011, she was a committed parent.  After 2011 or from about 2011, the husband gradually adopted the primary responsibility for the children’s day to day care and the wife became less available to the children and to fulfil a meaningful parenting role, due to her use of illicit drugs and most particularly her use of the drug which has the street name “ice”.  Nonetheless, the husband still says the children benefit from having a meaningful relationship with their mother as long as appropriate protections are in place.

7. Section 60CC(2)(b) of the Act provides that I am required to consider the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. The children have been exposed to family violence from their mother. The wife has made threats against the lives of the children within their hearing. She has also damaged property in the presence of the children and the children have almost certainly been exposed to drug use by the wife and have witnessed the wife under the influence of drugs. There is even the suggestion the children may have used drugs in the wife’s care.

8. I accept on the evidence that has been provided that the wife is a habitual user of the drug ice and that there is a strong risk that the children will be exposed to drug use and to the wife’s dangerous behaviour while she is using or under the influence of drugs.  There is also evidence that the wife has formed an association with Mr J, and that he has been violent towards the wife. There is a further risk that he may be a habitual drug user of ice also, and if the children are left unsupervised in their mother’s care, there is risk that Mr J might be a danger to the children. 

9. The orders proposed by the husband and the notation that he agrees to, allow him to be the arbiter of the circumstances in which the children see their mother.  Under his current proposal, which involves him being present, he is able to provide supervision.  He would also be able to monitor, in the future, whether or not the wife has cleaned up her act at all. 

10. Exhibit 1, which is records from the New South Wales Police Force of 25 November 2014 would indicate, that as recently as 6 October this year, the wife was apprehended committing a number of offences which involved the possession of a prohibited drug, having goods in custody which were suspected of being stolen, and dealing with property which was suspected to be the proceeds of crime. She was convicted and sentenced in respect of those offences on 4 November this year. 

11. Moving to the other factors under s 60CC(3) of the Act, I have no evidence of the children’s wishes or views. The wife was the primary carer of the children from birth until about 2011. I accept that the children, up until that time, had a primary attachment with her and still would have an attachment with her today. As I have already indicated, the husband, from 2011, adopted the responsibility on a gradually increasing basis for the day-to-day care of the children and now exercises complete responsibility for their day to day care.

12. The time that the children currently spend with their mother is limited and it will continue to be limited under the proposal that the husband puts before the Court today.  I accept that the children have a close and loving relationship with their father.  He spent significant time with them following their birth up until 2011.  From that time, he has been the person who has primarily cared for them.  The children also have a close and loving relationship with their paternal family and also with their maternal family.  The husband, I accept, intends to support and encourage the relationship with both sides of the children’s family.

13. I accept that the husband, throughout the children’s lives, has participated in making decisions about major long term issues relating to the children and has spent time with them and communicated with them as they have been growing up.  That has also been what the wife has done up until recent times when her capacity has been hampered by her abuse of illicit drugs, particularly the drug ice.  I accept that the husband has substantially fulfilled his obligations to maintain the children and that since 2011 the wife has significantly failed to fulfil her obligations to maintain the children.

14. The orders sought by the husband effect minimal change to what the children are currently experiencing.  I have no doubt that the children have suffered distress since 2011, from losing the extent of their involvement with their mother and the effect that her behaviour has had on their attachments with her.  As I have said, what the husband is proposing is no change from what has been happening in recent times.  There are no practical difficulties in respect of the children spending time and communicating with their mother, in the arrangements that the husband proposes, which cater, so far as is possible, with the wife’s abuse of the drug ice and the effect that that has on her behaviour and around the children.

15. There has also been associated with the wife’s anti-social behaviour, occasions when the children have been exposed to the police being involved with the wife.  I find that the husband has the capacity to provide for the needs of the children, including the emotional and intellectual needs of the children, and that he has sufficient financial resources to do so.  He has met those needs since mid 2011.  The wife, on the other hand, has not provided for those needs in the last few years and has exposed the children to family violence and drug abuse.

16. The husband has demonstrated a mature and responsible attitude toward the children and the responsibilities of parenthood, as demonstrated by him adopting the primary responsibility for the day-to-day care of the children since 2011.  On the other hand, the wife’s behaviour in recent times has been irresponsible and has demonstrated an unacceptable attitude towards the responsibilities that she has of parenthood.  That has included exposure of the children to family violence, the wife making threats against the lives of the children in her hearing and damaging property.

17. It also has extended to the children being exposed to drug abuse, witnessing their mother under the influence of drugs and even possibly the children having used drugs in their mother’s care.  The wife has also, on occasions, failed to turn up to scheduled periods of time that were being provided by and facilitated by the husband. 

18. There is a current AVO in place against the wife, the terms of the AVO are set out in the husband’s affidavit filed on 24 October 2014.  There is clear evidence that the children have been exposed to family violence.  And that exposure has been by the wife.

19. I have already mentioned on a couple of occasions, the nature of that violence.  The order that is suggested by the husband is an order which has with it some risk of further litigation, given that it invites the wife to seek a further order in relation to the children’s time with her if she is able to demonstrate to the court that there has been a significant change in the circumstances, as I have described them in these reasons.  But otherwise, the order that is sought by the husband is one that is less likely to lead to the institution of further proceedings in relation to the children.

20. Turning then to the issue of parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. That presumption does not apply in this case, given the existence of family violence. Given the circumstances as I have described them, I find that it is in the children’s best interests for there not to be an order for equal shared parental responsibility and that for the husband to have the sole responsibility for making major long term decisions about issues concerning the children. Given that I don’t propose to make an order for equal shared parent responsibility, there is no need, under s 65DAA of the Act, to consider equal time or substantial and significant time.

21. I otherwise conclude that it is in the children’s best interests to make orders in relation to their living arrangements as proposed by the husband in his application. 

22. Turning then to the injunctive orders sought by the husband, I find that it is appropriate or otherwise just to make the orders sought, based on the material that has been provided.  It is appropriate that those orders be made as a reminder, particularly to the wife, that certain types of behaviour, particularly as they relate to the children, are ones that should be discouraged in the best interests of the children.

PROPERTY APPLICATION

1. The husband seeks an order under s 79 of the Act that he receive the balance of the proceeds that are held in trust by DIB Lawyers. There was an order made on 30 April 2014 that each party receive the sum of $55,720.66. The moneys were distributed in June. Those moneys represented 60 per cent of the funds held in trust. The remaining 40 per cent stayed in trust and is the subject of the orders that are sought.

1. Apart from those funds, the husband has $2000 in the bank, a motor vehicle which he estimates to be worth $46,000, and household contents that he says is worth $2600.  His car loan with Macquarie Bank is $37,500 (which means that there is s a small equity in his motor vehicle).  He owes $2800 on Visa card.  The husband has about $130,000 – $131,000 in superannuation.  As I’ve already said, the remaining amount in the trust money, which is to be distributed, is $74,294. 

2. The parties’ marriage has broken down.  It is just and equitable that an order be made for property settlement. 

3. The wife has not meaningfully participated in the proceedings in respect of any matter but, in particular, she has not filed, as she is required to under the Family Law Rules 2004, any response or financial statement. We are consequently in the dark in relation to her current financial position.

4. The husband made a direct financial contribution by way of payment of the deposit for the former matrimonial home of approximately $43,700.  The husband made direct financial contributions by way of application of his salary during the time the parties were together and, in particular, payments towards the loans secured against the former matrimonial home.  The wife also made payments from her salary during the periods that she was employed. 

5. I accept the husband’s submission that he has made marginally the greater direct financial contribution during the marriage.  The parties made equal indirect financial contributions to living expenses during the period of the wife’s employment.  The parties benefited from living rent-free with the husband’s parents for the first 18 months of the marriage.  The husband was on a higher salary during the marriage than was the wife in periods when they were both working. 

6. The husband concedes that the wife made a significant homemaker and parenting contribution during the period of the cohabitation/marriage until 2011.  The husband was involved during that period in some of those activities.  Since 2011, the husband has overwhelmingly made the homemaker and parenting contribution.  He has had some assistance from his own parents.  Overall, the husband concedes the wife made a higher homemaker and parenting contribution. 

7. Consistent with the husband’s submission, I find the contributions of the parties towards the acquisition, conservation and improvement of the property of the parties to be equal. 

8. In relation to the parties’ future needs, the husband is presently aged 43 years old.  He is in good health.  He has not re-partnered and he is currently in full-time employment.  The wife is 31 years of age and she may have some health issues associated with her drug use.  The wife is likely to have re-partnered with Mr J, although her current living situation is difficult to ascertain.

9. So far as the husband knows, the wife is unemployed.  He concedes that her prospect for future employment at the current time is limited.  The husband has the day-to-day care of the children.  He does not receive child support.  He does not anticipate receiving child support.  Little is known about the wife’s earning capacity.  The husband’s financial statement indicates that he is currently in receipt of income by way of salary and wages of $962 per week and receives Centrelink benefits of $55 a week, and he gets a car allowance from his employer of $192 a week. 

10. I accept that the husband will bear the financial burden of providing for the children, particularly providing for their accommodation, their ongoing education and their future medical expenses.  The husband seeks an adjustment by way of 75 per cent to the matters that would see him receiving the balance of the proceeds in the trust fund.  Of course, not knowing precisely what the wife’s financial position is, percentages do not mean a great deal in this case.  That statement is further reinforced by the fact that the overall pool in this case is extremely modest. 

11. Taking all those matters into account, I conclude that the orders that are sought by the husband by way of property settlement are just and equitable and I intend making orders in those terms. 

I certify that the preceding forty-eight (48) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 8 December 2014.

Associate: 

Date:  12.12.14