Millar and Oakley (No. 5)

[2018] FamCA 724

FAMILY COURT OF AUSTRALIA

MILLAR & OAKLEY (NO. 5) [2018] FamCA 724

FAMILY LAW – CHILDREN – Parenting – Interim application for change of residence by husband – where evidence is lacking – where background includes international abduction – where court has given parties opportunity to file material but husband’s does not justify any orders – application dismissed.
FAMILY LAW – SPOUSAL MAINTENANCE – finding on the papers that husband does not have the present capacity to pay.

Child Support (Assessment) Act 1989 (Cth)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Ms Millar

RESPONDENT: Mr Oakley

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2195 of 2016

DATE DELIVERED: 12 September 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ebejer

SOLICITOR FOR THE APPLICANT: Ebejer & Associates

COUNSEL FOR THE RESPONDENT: Mr Taha

SOLICITOR FOR THE RESPONDENT: RRR Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Paterson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Taft Lawyers

Orders

1. That paragraphs 4 and 5 of the interim or procedural orders sought by the husband in the amended response filed 27 August 2018 are dismissed.

2. Paragraphs 1, 2 and 3 of the interim orders sought by the wife in the further initiating application filed 29 June 2018 are dismissed.

3. That the hearing before the Senior Registrar listed for 5 September 2018 is vacated.

4. BY CONSENT, leave is granted under s 111 of the Child Support (Assessment) Act 1989 (Cth) for the wife to make an application under s 118 of that Act for departure from the administrative assessment of child support for the children Ms Millar (“the wife”) to Mr Oakley (“the husband”) for the children X born … 2012 and Y born … 2014 for the period from 9 August 2016 to the 28 June 2018.

5. For the purposes of the said application under s 118 of the Child Support (Assessment) Act 1989 (Cth), the total amount of child support fixed for the said period is nil.

6. That paragraphs 4 and 5 of the interim application of the wife filed 29 June 2018 are struck out.

7. That paragraphs 1, 2 and 3 of the interim applications this day are dismissed.

8. That all outstanding applications for final orders are otherwise adjourned to a date to be fixed for allocation to a judge for a final hearing.

9. That all other applications for interim orders are otherwise dismissed.

10. That the husband’s application for an adjournment of the interim parenting proceedings is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Millar & Oakley (No. 5) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2195 of 2016

Ms Millar

Applicant

And

Mr Oakley

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Mr Oakley (“the husband”) and Ms Millar (“the wife”) have taken a tortuous path through this court including before the Full Court.  Whilst there have been extant unresolved financial issues, the major dispute has been over the children.  It is unnecessary for me to set out the history in any detail but it is extensive.  It involves an international dispute with the children being entangled in a fight between their parents and the husband’s extended family in Country B.

2. In May 2018, the children were returned to Australia and they have lived with their mother since that time and had no contact with their father.  There are many unresolved issues between the parties as a result of which, when the current proceedings came before the court in the Judicial Duty List, I cautioned all sides about the necessity for finality in a court with limited resources in circumstances where they had taken up extensive use of those resources since 2016.  Those resources included contested proceedings in the Federal Circuit Court before the matters were ultimately transferred to this court.

3. The wife began the proceedings with an argument about child support in which she sought leave to bring an application for a departure order predominantly because the husband had an assessment in his favour.  That issue was quickly resolved when the husband consented to the orders sought by the wife.  I intend not to deal with that any further.

4. The two primary issues before the court related to the husband’s application that the children reside with him immediately and that the wife’s time with them thereafter be limited and the wife’s application for spousal maintenance.  At the conclusion of the hearing, I pronounced the orders which have now been formally signed and these reasons explain those orders.

5. The husband was represented by his solicitor who made clear that he had only recently obtained instructions.  Initially however he said that the shortage of that time meant that he had not been able to comprehensively understand all of the documents that the husband had given him.  However, he did not, at that stage, seek an adjournment of the proceedings.  That position altered when I indicated to him that the nine paragraphs of an affidavit upon which he intended to rely, were grossly deficient.  Whether he had the opportunity to digest all of the husband’s material or not, much of what was contained in those nine paragraphs was not evidence of any substance (if evidence at all).

6. The court had the benefit of an Independent Children’s Lawyer; Ms Paterson of counsel appeared.  The Independent Children’s Lawyers position in respect of the husband having the children live with him was not only to oppose that position but also to indicate that he should spend no time with the children at all.  That was justified on the basis that:

   (a)The children were very young;

   (b)The youngest child in particular but both children, had had no time with their father since April 2016;

   (c)The children had been twice abducted by the husband including involving them in international travel and putting them beyond the jurisdiction of this court; and

   (d)The youngest child probably does not identify the husband as a parent.

7. The position adopted by the Independent Children’s Lawyer was supported by the wife.  The wife added to the position of the Independent Children’s Lawyer that she was concerned that the husband might remove the children again and she is currently fearful of him having any time with the children at all. 

8. Although not in evidence but apparently not a subject of dispute, the wife has had discussions with the Department of Health and Human Services (Victoria) very recently and they are aware of her circumstances.  It is not clear who made a complaint to the Department and if so on what basis, but I note that there has been no intervention by the Department in these proceedings and according to the solicitor for the husband, he has had no discussions with them.  Whilst I would understand that he was not aware that the Department was involved with the wife, he made assertions that notwithstanding he had not seen the children for some months, they had been inappropriately clothed for the Melbourne weather.  One might imagine that rather than make that sort of assertion in the courtroom, it would have been more sensible to contact the relevant authorities to investigate.  That does not appear to have happened.  In any event, the absence of any involvement or intervention by the Department gives me comfort that I ought not be concerned about the welfare of the children in the wife’s care.

9. The husband did not have an alternate position.  At the very end of the case, his solicitor indicated that if it “pleased” the court, his client would put a proposal about his time.  I indicated that he had had four months to adopt some sort of position and had vehemently indicated that the only order appropriate for the welfare of these children was that they live with him and that the wife’s time with the children be limited.  That was a curious position to adopt having regard to the fact that despite orders of the Federal Circuit Court in 2016 that the husband do all things necessary to ensure the return of the children, it took a contempt application against him to have him sign the necessary authorities to enable the children to be returned to Australia. 

10. Despite the children being returned to Australia in May 2018, the husband took no steps to seek any alternate orders to those to which I have referred.  His solicitor explained that on the basis that he had to deal with the most unfortunate situation of four of his family members in Country B, including his mother, being murdered.  His first position as I understand it was to accuse the wife and her extended family of having been involved in such an event.  The wife’s evidence as placed before the court is that it was the husband’s own nephew who had murdered those people.  Even if there were family obligations arising out of such a tragedy, the husband had ignored his own children’s plight for a number of years and when they were returned to Australia pursuant to orders of this court, he did nothing about their welfare.  For example, he was well aware of the existence of a child support assessment for their support in favour of the wife yet conceded that he had not spent any money fulfilling those obligations and was presently in arrears.  The husband cannot come to court expecting significant credence to be given to such arguments as he had when his own actions belied his views.

11. The husband’s solicitor conceded that his affidavit was substantially deficient.  The nine paragraphs to which I have referred simply said that the children had not engaged in any educational activities.  That assertion was contained in the affidavit sworn on 27 August 2018 but it appears that the children have been in kindergarten and school at least for some weeks now.  That assertion, as a criticism of the wife, therefore has no substance.

12. The husband’s affidavit went on to say:

    The (wife) had proven not to be interested in the children’s lives and has continuously neglected them.  I am concerned of their wellbeing and how they are being treated by the (wife).

    Leaving aside the construction of the sentences, those assertions have no factual basis behind them and as such, could not satisfy the tests in ss 55 and 56 of the Evidence Act 1995 (Cth) as having any probative value.

13. Even if there was substance to the assertions, and I reject that there is, the husband put nothing of any factual nature before the court to indicate how he would deal with the problem of the children’s education.

14. The husband went on to say that the children were not able to communicate in English despite being “Australian citizens”.   He said he intended to enrol them in school and childcare but did not say when or how.  The husband’s financial position is also a significant factor in his capacity to care for these children.  That became evident in the wife’s application for spousal maintenance to which I shall turn in a moment but the solicitor for husband conceded that he was living on the good graces of people who were assisting him financially.  How that problem was to be overcome was not said. 

15. The husband then said that the wife was not able to pick up and drop off the children nor assist them with their schooling because she was not able to speak the English language.  The first part of that allegation was not supported by any factual assertion but I am sure that there are plenty of parents in this country who do not have the benefit of English as a first language but somehow their children manage to adapt very quickly.  Whilst the husband asserted that the wife did not speak English, there was at least one hearing before me in which the wife admittedly in broken English, communicated extremely well.  It is hard therefore to see that the husband’s allegation that the wife’s lack of English language skills affects the care of the children.

16. Significantly, the husband went on to say that he was properly able to care for the children because he possessed most of their personal belongings including clothing.  Why that property had not been offered to the wife for four months remained unsaid.

17. Finally, the husband said:

    The children being in the permanent care of their (sic) is having a great detrimental effect on their lives.

    Again, no substance was put before the court as to the basis of that allegation and accordingly I reject it.

18. As conceded by the solicitor for the husband, there is no evidence that would enable the court to satisfy itself as to what is in the best interests of these children on an interim basis by reference to the mandatory considerations in s 60CC(2) and (3) of the Act.  In the circumstances, there is no basis for the court to make any order that the children live with the husband immediately.

19. As I have already observed, counsel for the Independent Children’s Lawyer submitted that the younger child Y had potentially no relationship with his father.  The solicitor for the husband’s response was that there was no evidence either way.  The absence of any evidence presented by the father as to the nature of the relationship as it would now be, is very telling in this case.  In my view, there is no basis to remove the children from their mother when it would seem that the Department of Health and Human Services has not had any concerns such as to intervene.

20. The evidence of the wife which is not disputed by the Independent Children’s Lawyer is that apart from accommodation and finance problems all of which are currently being resolved, she has brought the children back to Australia and is caring for them.  Nothing in the evidence of the husband nor any submissions made by either the solicitor for the husband or counsel for the Independent Children’s Lawyer disputed the facts asserted by the wife.  In those circumstances, I see no reason to doubt what she says.

21. Absent some formal application by the husband as to the interim position pending trial and in my view, there is no basis for urgency now, the children should remain in the care of the wife and the husband should formulate some position to indicate what sort of relationship he proposes to have with the children in the future.  At the moment his proposals are distinctly lacking.

22. The only parenting orders that should be made in the circumstances are those set out in my published orders bearing in mind that issues associated with parental responsibility and with whom the children should reside have already been dealt with by both the Federal Circuit Court and this court in a variety of different orders over the last two years.  In my view therefore, notwithstanding the statutory pathway required of the court in Part VII of the Act, there are no further findings that I need to make either in respect of parental responsibility or with whom the children should live other than to confirm that the children should remain with the wife for the moment.

Spousal maintenance

1. The approach to the determination of a spousal maintenance application is set out in s 72 and 74 of the Act.

2. Section 72 reads as follows:

   (1)      A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

   (a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   (b)by reason of age or physical or mental incapacity for appropriate gainful employment; or

   (c)for any other adequate reason;

   having regard to any relevant matter referred to in subsection 75(2).

3. Simply put, an application for spousal maintenance must establish a threshold for entitlement based upon one of the bases set out in the Act.  The wife’s position is that she has no money and she is currently caring for the children.  The husband’s position is that she should endeavour to obtain employment and there is no evidence before the court of her endeavours thus far.  The solicitor for the husband pointed to the fact that in earlier days, the wife had employment in some form of childcare facility.  In my view, the only evidence that I could rely upon at this stage is the fact that the wife is struggling to care for the two children with all of the handicaps of the absence of accommodation and finance having returned from Country B.  She obtains no assistance from the father including the fact that he provides no child support as I have already observed.  In the circumstances, there is no reason for me to doubt that the basis for the wife’s entitlement to spousal maintenance is her obligation to care for the children.

4. A second issue however is the capacity of the husband to pay.  Whilst there is some dispute about his earnings, on any view, after tax and child support is ultimately taken along with his superannuation entitlements, there is no basis for me to find that he has the capacity to pay the sum sought by the wife which is $300 per week.

5. The evidence about the husband’s financial circumstances is disputed by the wife but in a busy duty list, there was no opportunity to test that evidence.  The wife does not accept that the picture portrayed by the husband in his financial statement is an accurate one.  I am not in a position one way or the other to find that to be the case but common sense dictates that even on the wife’s best case scenario, the husband’s financial position if he was paying child support, would not enable him to provide $300 per week for child support.

6. The husband’s solicitor pointed to the fact that the husband has substantial debts.  Those exceed $300,000 and apparently relate to his legal proceedings in Country B.  He has borrowed substantially from friends and the house which he has bought has a substantial mortgage with limited equity.

7. In the circumstances, his income position is unclear but logic dictates it is not such as to be able to pay $300 per week and any capital that he has in the house (and potentially other assets), must be seen to be limited having regard to the demands of creditors that he would face.

8. In my view there is not sufficient evidence to make a finding that the husband has the capacity to pay spousal maintenance of the sum sought by the wife.  Her application must therefore fail.

A family report?

1. Counsel for the Independent Children’s Lawyer suggested there was a need for a family report.  Until such time as the positions of the parties are very clear as to the substantive orders they propose, it is hard to see how a family report can provide any advice or assistance to the court.  In those circumstances, a family report should only be ordered when the matter is ready for trial and, as the positions are currently quite fluid, that trial is some time away.  If the parties consider there is some urgency about finalising the matter, they can make an application for priority to the case management judge.

2. I otherwise dismiss all outstanding applications so that the only matters alive are the applications of both parties for final orders.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 September 2018.

Associate:

Date:  12 September 2018