MEETA & SIBI

[2013] FamCA 649

FAMILY COURT OF AUSTRALIA

MEETA & SIBI [2013] FamCA 649

FAMILY LAW – CHILDREN –  father files no evidence in circumstances where drug allegations justifiably would require him to do so – no time with a child absent that evidence.
FAMILY LAW – PROPERTY –  what is just and equitable? – Orders made.
FAMILY LAW – SPOUSAL MAINTENANCE – applicant could not prove an on-going capacity of the respondent – Interim order discharged but arrears remain.

Family Law Act 1975 (Cth)

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
B & B [2001] FamCA 520
F & S [2005] FamCA 44
Prantage & Prantage [2013] FamCAFC 105

APPLICANT: Ms Meeta

RESPONDENT: Mr Sibi

FILE NUMBER: MLC 9309 of 2011

DATE DELIVERED: 30 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 31, 26 July; 2 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Werner

SOLICITOR FOR THE APPLICANT: Aughtersons

THE RESPONDENT: In Person

Orders

1. That all parenting orders are discharged.

2. That the applicant have sole parental responsibility for the child J Sibi (“the child”) born … 2008.

3. That the child live with the mother.

4. That any time between the child and the father be by arrangement with the mother who shall not unreasonably withhold time if the father:

   (a)Produces a certificate upon any reasonable request of the mother to show that he has undertaken drug testing and which testing proves negative; and

   (b)The father presents for the collection of the child physically well and emotionally stable.

5. That the mother provide details of any change of address or telephone number.

6. That the mother provide details to the father of the school to be attended by the child and any medical treatment undertaken by the child.

7. That subject to any direction to the contrary by the principal of the child’s school, the father be entitled to attend the school for the purposes of participating in any parent/teacher meeting or other school activity involving parents but that he not otherwise spend time with the child unless by arrangement with the mother.

8. That the funds held by the solicitors for the applicant in the joint names of the parties be paid out to the applicant.

9. That the spousal maintenance order made on 28 November 2011 is discharged as and from this date.

10. That each party otherwise retain to the exclusion of the other, all real and personal property in his and her possession as at the date of these orders.

11. That each party be solely liable for and indemnify the other against any liability encumbering any item of property which that party retains pursuant to these orders.

12. That any joint tenancy of the parties in any assets is otherwise expressly severed by these orders.

13. That the father pay the mother’s costs fixed in the sum of $55,000 in respect of these proceedings and otherwise, all extant orders for costs including reserve costs are discharged.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

3. That all proceedings are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meeta & Sibi 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 MELBOURNE

FILE NUMBER: MLC 9309  of 2011

Ms Meeta

Applicant

And

Mr Sibi

Respondent

REASONS FOR JUDGMENT

1. Ms Meeta (“the applicant”) and Mr Sibi (“the respondent”) were in a de facto relationship for eight years between 2002 and 2010.  Their relationship ended in acrimonious circumstances and not much has yet changed.

2. There is one child of their relationship, J (“the child”), who is about to turn five years of age.  He lives predominantly with the applicant.

3. These property and parenting proceedings came on for hearing on 26 July 2013 at which time, the respondent’s brother and two corporate entities were parties to the financial dispute.  On that day, the respondent did not attend because he was hospitalised after an accident.

4. The respondent’s brother and the two companies were represented by counsel as was the applicant but the respondent has not been represented for some time.  Sensibly, the issues as between the other respondents were resolved and final orders were made between them.  Counsel agreed that their clients’ compromise did not affect the respondent. 

5. Having made the orders, I set down the hearing between the applicant and the respondent anticipating it would be of modest duration because the respondent had failed to file any material.  That was evident from the litigation pathway.  On 6 March 2013, with the respondent represented by counsel and solicitor (indeed the same solicitor and counsel as his brother at that time) the case was fixed for trial.  This was a “first day” of hearing before a judge.  The issues were clarified and identified and a timetable set for the trial.  The respondent has failed to comply with any of the orders.  Thus, he had from 6 March 2013 to 17 May 2013 to file an amended response and his trial affidavits but failed to do so.

6. Furthermore, between 17 May 2013 and the end of July 2013, the respondent not only filed no material but made no applications of the type provided in the orders to ensure readiness for trial. 

7. When called upon on 2 August 2013, the respondent produced a concertina file saying that his “evidence” was in the folder.  It was, he conceded, not in affidavit form.  He conceded also that he had not provided any of this “evidence” to the lawyers for the applicant. 

8. When asked why he had not complied with the orders, the respondent began by referring to the accident he had had but then acknowledged that that had only been days before.  Ultimately, he could point to no good reason why he should be allowed to participate in the proceeding at all.

9. To the extent that natural justice might be said to require the Court to allow the respondent to be involved in the proceedings, a salient matter must be taken into account.  This case has had 16 return dates over 20 months where indulgences were given to the respondent to participate in a process where, on at least one occasion, he said he wanted to sort matters outside of the courtroom and offers had been made which did not resolve the matter.

10. The pathway to these proceedings involving the respondent is important to consider. 

11. On 31 October 2011, the respondent appeared unrepresented and the application was adjourned for a month to allow him to obtain legal advice and prepare responding material.  Upon the return date, he again appeared unrepresented and no responding material was provided.  Again, the application was adjourned, this time to 24 January 2012.  On 28 November 2011, an order was made that the respondent pay interim maintenance at the rate of $715 per week.  It will be noticeable that he had not filed any material and therefore the interim determination was made on the applicant’s material.

12. On 24 January 2012 when the matter was relisted, the respondent failed to appear.  The matter was then listed for a final hearing on 2 March 2012 on an undefended basis and an order for costs was made against the respondent. 

13. When the matter was listed in June 2012, the respondent appeared but the evidence relating to the business structure was contentious and the Court permitted the applicant’s expert to not only attend but also to be cross-examined.  Because the matter had to be adjourned in the absence of material from the respondent, an order for costs was again made against the respondent.

14. In July 2012, there were two hearings and on both occasions, the respondent was uncooperative in relation to preparing for a hearing.  At that point, the respondent’s brother and corporate entities were joined. 

15. Throughout the rest of 2012, there were various hearings during which time  the respondent was represented by lawyers. 

16. Rule 11.02 of the Family Law Rules 2004 provides that if a party does not comply with a procedural order, the Court may, inter alia, dismiss all or part of the case or determine the case as if it were undefended. The rules also provide that the Court may make any other order the Court considers necessary having regard to the main purpose of the rules. That includes that the Court should ensure that each case is resolved in a just and timely manner at a cost to the parties and to the Court that is reasonable in the particular circumstances.

17. A number of authorities of this Court have looked at the question of what the Court should do when a party fails to comply with orders designed to make the trial process efficacious for both a party and the Court.  (See B & B [2001] FamCA 520; F & S [2005] FamCA 44.)

18. It is clear that the Court must provide procedural fairness even to a party who fails to comply with orders but it must be remembered that there are two parties to the proceedings and in parenting proceedings, children’s interests are often caught in the conflict.  The Court too has a responsibility to use its resources appropriately and parties’ obligation to ensure that the main purpose of the rules is carried out must be seen as a priority alongside natural justice (see Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175).

19. It is also significant in this case that at the time that the respondent was represented by a lawyer, that practitioner filed on his behalf, an application that the child live with him.  In respect of parenting matters, it had always been the applicant’s case that the child was at risk in the respondent’s care because of drug addiction or drug abuse concerns.  On five occasions, including during the time when the respondent was legally represented, random drug tests were requested of him.  The respondent failed not only to provide any results of any tests but also failed to respond to the applicant’s requests at all. 

20. The respondent also had the applicant’s affidavit since May 2013 so he could hardly have been heard to say that he did not know what the issues in dispute were.  Counsel for the applicant said that no objection would be raised to the respondent being permitted to cross-examine the applicant.  That course seemed acceptable to the respondent but his cross-examination did little to address the serious matters in dispute. 

21. This case needed a resolution because of the limited financial matters involved but also because of the child’s entitlement to have a secure relationship with both his mother and father.

22. On the basis of the absence of any cooperation from the respondent, I shall strike out any response that the respondent has filed.  I now turn to the issues in dispute.

The issues

1. This case had two elements.  The first related to what orders should be made about the respondent’s time with the child and the second concerned how, if at all, there should be an alteration of the interests of parties in their respective legal and equitable interests in any property.

The evidence  

1. It will now be evident that the respondent did not file any affidavit material.  The evidence of the applicant was contained in her affidavit of evidence in chief filed 27 May 2013.  She also relied on a financial statement filed the same day.  In addition to those documents, the applicant relied upon an affidavit by psychologist Dr K filed 8 April 2013 to which I shall turn below.  She also relied upon the financial statement of the respondent filed 7 August 2012 when he was represented by lawyers. 

The orders sought

1. The applicant sought orders that she have sole parental responsibility for the child and that he live with her.  She sought an order that the child not spend any time with the respondent other than as agreed with her.  Although she did not say it in the orders she sought, she indicated that she would agree to time between the child and the respondent if he was in a “fit state”. 

2. The mother also sought orders in relation to notifying the respondent of changes of address and details about illness.

3. In relation to property matters, the applicant sought that a sum of approximately $72,000 currently held in a solicitor’s trust account be paid to her and that otherwise, the parties retain the assets in their respective possessions. 

4. The applicant also sought costs but I shall turn to that below. 

The applicant gives evidence

1. In her affidavit, the applicant said that she was not working because she was primarily caring for the child.  In addition, she said that she was precluded from obtaining gainful employment because in late 2011, she was diagnosed with cancer and subsequently underwent surgery followed by chemotherapy treatment.  There is some significance in that because during the period that she underwent surgery, it would appear that the child spent considerable time with the respondent.

2. The financial position of the applicant was such that she is dependent on Centrelink benefits as a single parent and is not in receipt of child support.

3. In relation to child support, it seemed common ground that there is currently an outstanding debt of $19,000 and on the evidence that I heard, there is little prospect that it will ever be paid.  The respondent indicated that there was some discussion with the agency but I am not at all convinced that he will attend to anything in a diligent way to resolve its payment or its discharge.

4. Additionally, there is an outstanding spousal maintenance order as well as orders as to costs.

5. In relation to spousal maintenance, counsel for the applicant indicated that his client agreed to the discharge of the interim order on the basis that the applicant was not in a position to prove the capacity of the respondent to pay but, on the basis of the prospect that there might in future be some chance of her recovering the unpaid amount, (bearing in mind that the respondent had never sought to discharge those orders) she asked that that order not be discharged retrospectively. 

6. It is clear that on the basis that the applicant cannot prove the capacity of the respondent to pay notwithstanding I am satisfied the threshold of her inability to support herself without maintenance is established, the order should be discharged from now.

7. When the relationship began in 2002, the respondent had a property at D Town, a 50 per cent shareholding in one of the companies that had been a party to these proceedings, and two motor vehicles, one of which was leased.

8. At the time that the relationship commenced, the applicant had an interest with her former husband in a property at L, along with some modest savings and a motor car.

9. In 2002, the applicant moved into the respondent’s home and resigned from her employment.  She then obtained a settlement from her former husband.

10. On the applicant’s unchallenged evidence, the relationship with the respondent was fraught with difficulty from the start.  She acknowledged that the respondent was using marijuana.

11. When the applicant received her property settlement, she applied the money to a property at D Town as well as furnishing it.  The purchase price was approximately $276,000.  At that time, she was living with the respondent.  The parties then moved into the new home but the title remained in the name of the applicant.  The only borrowing for the purchase was $33,000.  Various improvements were done to the property which were paid for by the applicant.

12. On the unchallenged evidence of the applicant, the respondent contributed only towards some utility costs and grocery shopping over the entire four year period that they were together at that time. 

13. The respondent then sold his property for $460,000 and applied it for the purchase of a property at Suburb M for approximately $330,000.  There was no evidence as to what happened to the balance of the proceeds of the sale. 

14. In 2004, the applicant was employed by the respondent in his business as a bookkeeper and she worked long hours. 

15. One subject of cross-examination of the applicant by the respondent related to her assertion that in 2007, he had started taking cheques from the business account of approximately $7000 per month.  The respondent put to the applicant that the business was not earning that amount of money and he produced two photographs, neither of which he identified in terms of time or place, to prove that there were no “boxes” in the warehouse to enable the inference that the business was earning the sort of money that the applicant claimed was being drawn.  The cross-examination took the matter nowhere because the applicant insisted that there were two warehouses and she said that the photographs depicted two totally different things.  Having regard to the issues that I have to determine, nothing turns on the point.

16. What was significant about the assertion of the drawing was that the applicant maintained that the respondent was wasting business monies to satisfy a drug habit of around $10,000 per month.  The respondent did not challenge that drug usage evidence.

17. The child was born and the applicant continued to work for the company at home whilst on maternity leave.  She then went into the office four days per week.  It was said by the applicant that the child went into a crèche.  Again, the respondent seemed to dispute this fact and handed to the applicant a bundle of invoices which tended to suggest (from his perspective) that the child was not in the crèche as much as the applicant asserted and inferentially, he was caring for him.  I accept the applicant’s evidence that she used the crèche randomly because she could not afford it including for the period subsequent to separation.  This was the period of time during which the respondent asserted that he was caring for the child.

18. There was clearly a period of time subsequent to separation where the respondent did care for the child because the applicant underwent surgery.  The extent of that care is unclear.  In my view it matters little. 

19. Subsequent to the parties’ separation, leaving aside the period of time where the applicant was undergoing surgery, I am satisfied that the applicant has been his primary carer. 

20. The respondent asked the applicant in cross-examination whether if she was asserting that he was addicted or affected by drugs, why she would put the child in his care.  The applicant responded by saying that she curtailed the child’s time when the respondent was affected by drugs.  I accept that evidence.  The unchallenged evidence is that the respondent did use drugs at various times.  The applicant referred to a bag she found in the respondent’s car containing drug paraphernalia and white powder.  She said that when she confronted the respondent, he described it as fish food.  She said she caught the respondent smoking a glass pipe and then realised that the white substance that she had discovered in the car was what she knew as “ice”.  She acknowledged that the respondent continued to deny drug usage at that time.

21. She said when they were together, the respondent lied about his absences from work and was not well.  She said that when he was challenged about his drug usage, he would go into a rage and ultimately, in January 2010, the parties separated. 

22. It was the applicant’s unchallenged evidence that on the day of separation, she found a little bag which she asserted had contained drugs, and also two glass pipes.  None of that evidence was challenged by the respondent.

23. Because of the drug concerns, the requests for tests were made and as earlier indicated, the respondent did not reply.

1. The behaviour of the respondent subsequent to separation and as late as very recently, is concerning.  The applicant described the behaviour as drug affected whilst the cross-examination by the respondent indicated that his position was that he was simply trying to get contact with the child.  In my view, there is sufficient evidence for me to find on the balance of probabilities that the respondent was drug-affected. 

2. In July 2012, for what ever reason, the child was in the applicant’s care and she took him to stay at the home of a friend for the night.  At 9.30pm when she and the child were asleep, the respondent attended at the house and in an abusive and loud manner, demanded to be allowed entry.  She described the respondent as being in a very angry state.  She called the police and the respondent left.  The respondent cross-examined the applicant about this incident and in particular, as to why the child was in her care but he seemed to ignore the fact that the applicant’s evidence was that the child witnessed all of this having been woken up, and was very scared and stressed.  I find the applicant was frightened. 

3. There was evidence of other concerns about the respondent’s attitude to parental responsibility.  The applicant gave evidence that she had insisted that the respondent buy a child safety seat but he ignored her.  He put the child in the front passenger seat.

4. She asserted that she had seen the respondent driving a motor vehicle which did not have a registration sticker.

5. In May and June 2012, according to the applicant, the police came looking for the respondent on several occasions.  No explanation was given by the respondent as to why that might be so and he did not challenge the applicant’s evidence.

6. The applicant referred to the fact that the child told her that a blanket caught fire when he was with the respondent and there were occasions when the child did spend time with the respondent and was returned exhausted, unwashed and generally hungry.  She said that when she challenged the respondent about what had been happening, he gave a different story to that which the child had given her.

7. The applicant described the child as a very bright, happy and talkative child but returned from time with his father both aggressive and at times withdrawn.

8. As late as days prior to the hearing, an incident occurred in which the respondent attended at the applicant’s premises.  This was after he had been discharged from the hospital visit earlier mentioned.  The applicant said that the respondent wanted to collect the child and she put him off indicating that they could talk on the following day.  She said the respondent was aggressive and told her that she could not stop him and that if she did not comply, he would call the police.  On the following morning, he returned again banging on the door.  She said she noted that his pupils were dilated, he was sweating and he was agitated.  In cross-examination, when he challenged her about this, the applicant said that this was consistent with what she had seen when she thought that he was drug-affected.  She said on this occasion, his speech was fast and he was not making sense.  She said he was emotional and did not answer her questions.  She was sufficiently concerned about the welfare of the child not to permit him to go.  It would appear that the respondent then went to the police and returned, having done so, and threw a piece of paper at the applicant indicating that she should call the police because they were going to “lock” her up.  She then rang the police and spoke to an officer who said that he had been concerned about the respondent’s behaviour and had told him to go home and calm down.  The respondent subsequently sent her an abusive text message.

9. In the absence of evidence about the respondent’s capacity to care for the child, I find his drug problems and his capacity to care for the child physically are compromised.  I find that it is in the best interests of the child that the applicant controls the process because I have no confidence that the respondent is capable of caring for the child.  One example of that relates to the fact that the applicant attended at the respondent’s home and took photographs through a window which showed that the kitchen had been or, was being, renovated and that there was building material everywhere.  Whilst the respondent cross-examined the applicant and suggested that the taking of the photograph of his kitchen in that way was impossible, he gave no plausible explanation as to what the photographs actually meant.  To compound the physical capacity concern, the respondent said from the bar table in final address that he was worried about not having any money from the proceeds of the trust account because of the fact that a mortgagee was pressing him and it was likely that he would lose his home.  Accordingly, I have no idea how he would care for the child under any circumstances. 

10. In relation to the drug issue, and again only by statement from the bar table, the respondent explained the absence of response to the drug requests as being that he went to a doctor who had been prescribing him medication and told him that it was not appropriate to have the drug tests and indeed, would not do them.  That explanation was implausible even if it was not in evidence. 

11. I find in those circumstances that there is a significant risk of physical and emotional harm for the child in the presence of the respondent.

12. In relation to the question of the financial position, I have set out above all of the mounting debts. 

13. One of the entities referred to earlier which had been joined as a party and in which the respondent and his brother had an equal interest as shareholders, BC Pty Ltd, acquired a property at D Town in 2005.  That property was sold in October 2012 and after discharging the mortgage, there was a net balance.  Consistent with the reflection of the shareholding, the proceeds were divided equally between the respondent’s brother and the balance of $58,839 was placed in the solicitor’s trust account of the applicant.  Upon the settlement between the applicant and the other parties other than the respondent, a payment was made into that trust account taking the current balance to $72,000 approximately.  The evidence from the applicant as to what occurred between 2005 and now was scant but then again, the respondent failed to provide any evidence at all. 

The assets of the parties

1. I find that the applicant has the real property at E Street, D Town.  She has the legal interest in the property to the exclusion of the respondent.  That was the property mentioned earlier in these reasons that principally came from the proceeds of the divorce settlement from her former husband.  There is no sworn valuation of the property but as an admission against interest, and on the basis that the value was not challenged by the respondent, I accept that it is worth $330,000.  Secured against that property is a mortgage.  That mortgage is in the name of the applicant alone.  It enabled the acquisition of the property and as that mortgage was subsequently reduced, improvements were done to the property using the reduced mortgage which became a line of credit.  The unchallenged evidence of the applicant is that the debt is now $49,000. 

2. The respondent has the legal interest in the property in Suburb M.  The applicant accepts (and again not challenged by the respondent) that the property is worth $420,000 against which there is a mortgage of $390,000.  The debt is to the Westpac Bank.  This property was acquired in 2003 using funds from the sale of the property earlier owned by the respondent.  The unchallenged evidence of the applicant is that the mortgage is in arrears and as I also earlier mentioned, the respondent said that the bank is moving to recovery its security.  The best evidence available as to the valuation was a kerbside valuation by a real estate agent because of the absence of cooperation from the respondent.  I accept therefore, the value attributed to that property and the mortgage by the applicant.

3. There is a motor vehicle owned and apparently retained by the respondent valued by the applicant at $8000.  That figure comes from an admission against interest because it was asserted by the respondent to be that value in 2012. 

4. The earlier description of the sale of the company asset culminating in the division of the case now in trust and totalling $72,000 is somewhat contentious.  The unchallenged evidence is that the proceeds came from the sale of a property owned by the company.  The company shares appear to have been owned by the brothers equally.  I do not know the current status of the corporate entity or its creditors but the applicant placed the sum of $72,000 in her list of assets on the basis that it represented the equity of the respondent in the company and he did not challenge that position.  The fact that the funds are now sitting in a trust account in the name of the applicant simply reflects that the money is probably that of the respondent but there is a claim being made by the applicant as a result of her contributions both as an employee and contributor to the respondent’s shares in the business.  She also claims because of her non-financial interest in caring for the child.

5. The applicant was also able to produce evidence of the most recent balances in the superannuation funds at Asgard and Colonial in which the respondent was a member.  Each of those funds is an accumulation account.  I accept on the unchallenged evidence of the applicant that there is a total of $64,000 in those two accounts.

6. The only other matter that requires consideration is that the applicant conceded that the respondent had a credit card debt in August 2012 of $2000.

7. Before turning to how the financial position and the parenting issue should be resolved, there is a further witness whose evidence requires consideration.  Dr K is a forensic psychologist.  An affidavit was filed on his behalf of 8 April 2013.  He was not required for cross-examination. 

8. A summary of the evidence of Dr K is as follows. 

9. Dr K is a clinical and forensic psychologist.  In January 2013, when the respondent was represented by lawyers, the respective practitioners agreed to appoint Dr K to address issues about the care of the child by way of a family report. 

10. Dr K had affidavit material from both parties provided by those legal practitioners.

11. The history presented by the mother to Dr K was largely consistent with her affidavit.  Because the respondent did not file material for these proceedings, I can only presume that his history was accurate subject to the subjective reservations of Dr K.  The respondent described the applicant as cruel and violent and that he wanted to be in control of the child’s care because of the applicant’s incapability.  He gave Dr K an indication that he thought that the applicant suffered depression.  The respondent denied drug use and maintained the violence allegation against him was absurd. 

12. Dr K found no evidence of the mother having borderline personality functioning or vulnerability to exclusion or alienation and no evidence of psychological difficulty.  In respect of the respondent, Dr K thought there was evidence of incongruity in presentation which raised “significant concerns” regarding personality functioning. 

13. Dr K thought that if there was substance use, there was a moderate to high risk that the child would be exposed to neglect and/or abuse.  I am satisfied there has been substance abuse and I am not satisfied the respondent has the problem under control.

14. In relation to the relationship between the respondent and the child, in Dr K’s assessment, he thought the respondent’s behaviour was unusual even though there was a closeness between father and child.  It was Dr K’s view that the interaction raised concern about the respondent’s mental state and/or substance abuse. 

15. Importantly, Dr K hypothesised that this interaction might also represent the respondent’s parental style but if that was so, bearing in mind this report was available for many months, why would the respondent not subject himself to the scrutiny of the applicant about drug testing as well as the Court in relation to the questions of violence?

16. In my view it is appropriate to draw an adverse inference against the respondent for his failure in respect of those matters.  Accordingly, I find there is a risk for the child in the respondent’s care.

17. Dr K recommended that there be fortnightly time between the child and the respondent including overnight but that was a recommendation predicated on the substance abuse issue being addressed.  As Dr K said, if substance abuse was confirmed, supervised time was at best, the form of father and child relationship that could be expected.

18. Dr K’s evidence was telling because of the fact that he had not only the background material but an opportunity to test the respondent.  He had the opportunity to raise concerns about the drug issue and the applicant followed those recommendations by seeking the random testing.  Accordingly, this evidence was the most objective that I had and I accept it.

The legal issues - parenting

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions as to how parenting disputes are to be determined. In contemplating any parenting case, s 60B requires the Court to ensure that the best interests of children are met by them having the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of those children. In addition, the objects are to ensure the children are protected from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence and that children receive adequate and proper parenting to help them achieve their full potential whilst at the same time ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. Section 60B(2) provides that the principles underlying those objects are that children have a right to know and be cared for by both their parents, spend regular time with and communicate with their parents, parents jointly share duties and responsibilities concerning their children and that parents should agree about the future parenting of their children.

3. In contemplating those objects and principles, relating to the child J, it will be obvious on the evidence that whilst it is important for the child to benefit from a meaningful involvement of his parents in his life, that can only occur if he is protected from the risks associated with the sort of behaviour that I accept the applicant has endured from the respondent.  Having regard to the absence of material from the respondent and the unchallenged evidence about the financial position of the applicant, the child is being supported largely by the taxpayers of Australia and the duties and responsibilities of parenting are not being met by the respondent. 

4. Section 60CA provides that in deciding whether to make a particular parenting order relating to the child, the Court must regard his best interests as the paramount consideration. 

5. In working out what is in his best interest, the Court must consider the matters set out in s 60CC of the Act.

6. Before turning to the best interests considerations, it is important to consider the question of how decisions have been made and by all accounts, will be made, in the future relating to the child concerning major long term issues such as health and education.

7. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for his parents to have equal shared parental responsibility. There is no definition of equal shared parental responsibility but it clearly means a sharing of the decision making processes concerning major long term issues. Major long term issues is defined in s 4 of the Act.

8. The presumption of equal shared parental responsibility does not apply however in two circumstances. The first is a mandatory rebuttal if the Court is satisfied that there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. Family violence is defined in the Act. Having regard to an assault incident to which I refer later, I am satisfied that the presumption should be rebutted because the respondent has perpetrated family violence.

9. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for his parents to have equal shared parental responsibility. That is a discretionary rebuttal. Before making such an order, the Court must contemplate the matters in s 60CC to decide where those best interests lie. For reasons set out hereafter, I am satisfied it would not be in the best interests of the child for his parents to have equal shared parental responsibility for him. It is clear that the parties do not trust each other and the aggression of the respondent is concerning because it ignores the fact that the child is observing his mother being denigrated by his father. Accepting as I do, the respondent has a drug problem, there is little prospect that any reasonable conversation between the parents could take place about decision making for major long term issues concerning the child. The evidence of the applicant is that the respondent is not a person who takes a sensible and responsible approach to negotiations around the child and all of the evidence points to the fact that the applicant has met all of the child’s needs and made decisions for his welfare.

10. For the reasons that follow in relation to the best interests principles, I am satisfied that the presumption should be rebutted.

11. Notwithstanding the rebuttal of the presumption, it is still important to consider what role the respondent should play in respect of decisions about the child.  He provided no evidence and his cross-examination was hardly targeted towards suggesting that he and the applicant could make decisions together.  Having regard to his approach and particularly his response to the need to sort matters out over the last 20 months, I have no confidence that he will participate sensibly and in a child-focussed way in the future.  Decisions about education and health are critical for children and in this case, I find that it is in the child’s best interest that his mother makes the decisions.  Accordingly, the applicant will have sole parental responsibility for him.

12. Section 60CC requires the Court to consider both primary and additional considerations. The primary considerations relate to the benefit of a child having a meaningful relationship with both parents. There is clearly a relationship between the respondent and the child but just what the child obtains from it is unclear because the respondent failed to provide any evidence. The unchallenged evidence of the applicant is that the child refers to the risk-taking behaviour of his father. The applicant’s challenged evidence but which I accept in relation to the circumstances under which the respondent is currently living leave me with little choice but to find that the child could not benefit from a relationship at the moment with his father with all of the problems that his father is apparently enduring. A further primary consideration relates to the protection of the child from harm and there is sufficient evidence from the applicant to satisfy me that when affected by drugs or emotionally unstable, the child would be at risk of not only physical harm but psychological harm as well in the care of his father.

13. The additional considerations include the Court hearing about the views of a child.  The child is far too young to understand the nature of the dispute between his parents.  As indicated earlier, I do not understand the nature of the relationship between the child and the respondent because he failed to provide any evidence and it would appear that the applicant has little knowledge about what the respondent is currently doing either.  It is clear however that the child has a close and loving relationship with his mother and that ought not be disturbed.

1. The Court is also obliged to consider how parents facilitate the ongoing relationship between children and parents.  The mother’s evidence was that she would not exclude time between the child and the respondent in circumstances where the respondent was fit and the child was safe.  That is hardly controversial and indeed, makes commonsense.  The demands of the respondent to simply hand over the child to him in what would appear to be an agitated state leave the Court wondering what, if any, respect, the respondent has for the applicant.

2. There is no evidence before me as to how the child is dealing with the absence of the respondent.  He is clearly attached to the applicant. 

3. The evidence also supports a conclusion that the applicant has the capacity to provide for the child’s needs in their various forms but I have no idea what the respondent is capable of providing in regard to his simple demands that he wanted his son but was not prepared to provide the Court with any detail.

4. The Court is also obliged to consider the attitude to a child and the responsibilities of parenthood demonstrated by each of the child’s parents.  All of the evidence suggests that the applicant is taking a very concerned and responsible attitude towards the child.  I cannot say the same for the respondent.  There are two examples of that.  The first relates to his behaviour in making demands including involving the police in circumstances where he was clearly agitated and not in a condition to be caring for a child.  The second relates to the unchallenged evidence about his drug problems all of which enable the Court to draw an inference that he is not capable of caring for the child in that condition.  It goes without saying that the community expects the Court to protect children and any parent who uses drugs or is involved in the illicit drug industry places their child at risk.  That risk can be seen in the violence perpetrated within the drug industry but also the exposure to the intrusion of police enforcing the law.  The respondent was given every opportunity to provide some indication as to how he would fulfil his responsibilities as a parent but he failed to do so.

5. In her unchallenged evidence, the applicant referred to the police obtaining an intervention order against the respondent in September 2010 after he assaulted her.  He punched her in the nose.  That order was made for 12 months and has now expired.  The applicant produced photographs of her face and the blood on the respondent’s clothing.  It was an appalling incident in itself but more so because the respondent attacked the applicant while trying to remove the car from her in which the child was driven.  There has been no repetition of the event but the applicant remains naturally fearful and suspicious.  That will make sharing the parenting role impossible.

6. Section 60CC also requires the Court to consider whether it would be preferable to make an order that would least be likely to lead to further proceedings between the parties about the child. In this case, counsel for the applicant said that final orders should be made and that if the respondent could establish stability, the applicant would enable the relationship with the child to continue. Absent agreement, the respondent would need to come back to court but would then face the prospect of showing that circumstances had changed. Having regard to the nature of the allegations made by the applicant, it ought not be difficult for the respondent to show that he has made a substantial change in his approach to parenting but in the meantime, final orders should be made because I have no confidence that the respondent will take that first step. However for reasons earlier mentioned, I am satisfied that the applicant has taken a responsible attitude to involve the respondent in the child’s life and will do so in the future providing the respondent obtains help.

7. Having regard to all of those matters, it is appropriate that the orders be made as set out at the start of these reasons.

The law – financial issues

1. The approach to the determination of a financial issue is found in Part VIIIAB of the Act.

2. Section 90SM(3) of the Act provides that a court shall not make an order altering the interests of the parties in property unless it is satisfied that it is just and equitable to do so.

3. I find on the evidence that the parties have the property as earlier mentioned in these reasons.  I find that this is a case in which an asset by asset approach is appropriate because that is indeed the way the parties conducted their financial affairs but it also leads to the most fair and appropriate outcome.

4. In this case, it would not be just and equitable for me to alter the interests in the real properties because that is the way the parties determined they should be set up and how each of them has conducted their lives throughout the relationship and subsequent to its conclusion.  That being so and having regard to the duration of the relationship, I find it would not be just and equitable to alter those interests. 

5. The applicant did not seek any alteration to the superannuation interests of the respondent nor that relating to his car.  I am uncertain as to who the owner of the car is. 

6. Superannuation interests are to be treated as if they were property.  Having regard to the apparent dire financial circumstances of the respondent, and his age, it is conceivable that he might endeavour to convert those superannuation interests into case on a hardship basis.  Even if that were not so, having regard to the modest amount of money involved in not only the trust funds but also the superannuation, it makes little difference as to whether the superannuation is treated as a separate pool of assets.

7. The $72,000 in the trust funds are the subject of a claim by the applicant.  The relevant sections (s 90SM(3) and s 90SM(4)) must not be conflated.  I find it is just and equitable to make an order here in relation to the trust funds because to simply leave the applicant with the equity in her house, which she alone contributed, ignores the fact that she supported the business which indirectly gave rise to that cash.  She should be entitled to something more than the real property in circumstances where the respondent ignored the Court’s orders to provide details about his financial circumstances.  The Court does not know what other assets he has.  That finding justifies a conclusion that an order should be made but the question is what order.  To decide that, the Court must turn to s 90SM(4).

8. I am satisfied on the evidence provided by the applicant that she has made a significant non-financial contribution to those funds if indeed they came from a property that previously belonged to the company in which the respondent had an interest as a shareholder and was apparently a director.  That contribution is reflected in not only the role that the applicant fulfilled during the relationship both in working in the business that supported the family but also in her care of the child and the management of the family’s daily needs.  Subsequent to separation, the applicant has fulfilled that role almost exclusively save for the periods when the child was in the respondent’s care and the respondent has made no financial provision for the child.  Indeed, he has failed to comply with the order for maintenance and as it had not been set aside or the subject of any proceedings, the Court is entitled to conclude that it was not contentious.  Just why the respondent failed to make any payments remains a mystery but absent that payment, the financial support for the child fell to the applicant.  That is almost certainly likely to continue in the future but that is a matter that I shall take into account under s 90SF(3).

9. In my view, there has been an overwhelming contribution by the applicant towards the trust funds and their predecessor.   

10. If all of the assets were taken globally, and that is not an approach that I intend to take, it can still be seen that the applicant has contributed far more than the respondent.  On an asset by asset basis which is what I am determining this case on, the applicant’s entitlement to the trust funds must be seen as at least equivalent to that of the respondent.

11. Section 90SM(4)(e) requires the Court to consider the matters set out in s 90SF(3).  The matters that are important relate mostly to the applicant because of the failure of the respondent to provide any evidence.  I find therefore the following:

    ·    The applicant currently enjoys reasonable health after serious surgery for cancer;

    ·    Because of her state of health and the obligations to care for the child, the applicant has no opportunities to obtain income from any employment source and that would appear to be likely to continue into the future;

    ·    The applicant has the care and control of the child and has a large number of years of that ahead of her;

    ·    The applicant is living on a very small amount of income and that that seems to be meeting her commitments;

    ·    The applicant does not have a responsibility to support any other person than the child;

    ·    The applicant is in receipt of Commonwealth benefits as indicated earlier;

    ·    The standard of living of the applicant is modest as it has been for some years;

    ·    The payment of maintenance by the respondent might give the applicant an opportunity to undertake a course in education or training but there is little, if any prospect, of that occurring in the future;

    ·    Whilst the duration of this relationship was not long, the applicant went out of the workforce to care for the child and there is no evidence as to what her future prospects are;

    ·    The applicant has made it clear that she wishes to stay at home to care for the child and that is something that the Court must protect;

    ·    On any view, the terms of the order in this case means that the applicant will have a home for herself and the child but subject to a modest mortgage and the cash in the trust account will largely, if not entirely, be taken up in legal costs so there is little prospect that there will be any financial change in the future for the applicant;

    ·    There is a child support assessment in place and whilst the respondent seemed to indicate that he was undertaking some pathway to alter that, there is no evidence of any payment towards what seems now to be about $19,000 in arrears.

12. Traditionally, adjustments for the factors just set out above have been encouraged to be done by percentages but it is not mandatory that that should necessarily occur.  What is critical is that the outcome be just and equitable for both parties.  In my view, having regard to the absence of any likely future payment for the support of the child, and having regard to the contributions made by the applicant, it is just and equitable that all of the trust funds be paid to the applicant.  I do not make that order on the basis that it discharges the obligations for spousal maintenance or child support.  I make the order on the basis that the sum involved is modest and the respondent will have the benefit of his motor car and the superannuation interests that he has retained.

13. Having regard to the way that the respondent conducted the proceedings, in my view, that is a just and equitable outcome. 

Financial – spousal maintenance

1. On the basis that the applicant was not in the position to establish a long term spousal maintenance claim because she could not prove the capacity of the respondent, I propose to discharge the spousal maintenance orders as of now. 

Costs

1. The applicant made an application for costs depending upon the outcome of the proceedings. Section 117 of the Act provides that in proceedings under the Act, each party shall bear their own costs unless there are circumstances that justify the Court departing from that principle.

2. In this case, there are justifiable circumstances.  As earlier mentioned, there have been many hearings over 20 months which in effect, caused the applicant to have to proceed with the application.  The filing of an application by the respondent for residence of the child must be seen as having wasted not only the resources of the applicant but also the time of the Court.  There was never any basis for that application absent evidence to support it.

3. Costs are intended as a compensation rather than as a punishment.  The applicant has had little choice but to pursue these proceedings having regard to the way in which the respondent has conducted himself.  In my view therefore it is justifiable that the Court should depart from the principle that each party pay their own costs.

4. Before making an order however, the Court must take into account the matters set out in s 117(2A) of the Act. In this case, I accept that the financial circumstances of the respondent remain unclear but that alone is not a basis for not making an order for costs because it is conceivable that in the future, the respondent may be affluent again.

5. Section 117(2A) also requires the Court to take into account the way in which the litigation was conducted. I need say no more because the conduct of the respondent in this litigation has been nothing short of appalling. He has clearly contributed to substantial costs being incurred by the applicant. The applicant produced a statement showing that as at now, she has incurred costs well in excess of $150,000 and there are currently costs outstanding of $87,000 before the precise details of the costs for the running of the trial were concerned.

6. There are no legal aid considerations here.  Presumably, the applicant was not eligible and certainly nothing the respondent said indicated that he had such assistance. 

7. A court may take into account whether or not a party has been wholly unsuccessful.  Having regard to the absence of any material from the respondent, it was inevitable that the applicant would have to prove her case in detail and in my view, she has done so appropriately.

8. The Court can also take into account any other matter that it considers relevant in relation to the justice of the issue.  The lack of cooperation in this case by the respondent is something that needs to be contemplated.  The parenting issue in this case was modestly simple.  All that the respondent was required to do was to undertake the drug testing and if there was a problem, to obtain help.  The applicant’s position about that had been clear from the outset.  The respondent failed to do anything.  That caused the matter to continue along the litigation pathway.  In relation to financial matters, the respondent’s refusal to file documents and provide proper discovery meant that the applicant had to pursue documents herself including an extraordinarily expensive exercise in having a forensic accountant undertake the task of assessing what the financial position of the corporate entities was.  In my view, all of those matters were matters that were unnecessary and the applicant was put to the expense by the conduct of the respondent.

9. It is not appropriate that the Court simply makes an order that the respondent pay the applicant’s costs that she incurred.  That is, it is not appropriate that the Court simply make an order for indemnity costs because the circumstances here, although appalling, are not exceptional (see Prantage & Prantage [2013] FamCAFC 105).

10. I have examined the file following the letter from the solicitors for the applicant dated 25 July 2013 as tendered by counsel for the applicant.  It shows the pathway that the applicant was following from December 2010 and how she incurred the costs.  To some extent, those costs may have been incurred unnecessarily because of the way in which the original documentation was drawn.  In my view, looking at the scale of costs and exercising my discretion, I find that it is just for the Court to make an order that the respondent contribute towards the applicant’s costs fixed in the sum of $55,000.  That takes into account all of the costs orders outstanding to date and disbursements including counsel’s fees.  That debt will be a separate debt that the respondent will have to contemplate in the years ahead.

I certify that the preceding One Hundred and Twenty Six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 30 August 2013.

Associate: 

Date:  30 August 2013