Millson and Millson
[2014] FCCA 247
•18 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILLSON & MILLSON | [2014] FCCA 247 |
| Catchwords: FAMILY LAW – Parenting – whether there should be an order for sole or shared parental responsibility – religion – allegations of parent exposing children to pornography – financial – division and apportionment of debt. |
| Legislation: Family Law Act 1975, Pts. VII, VIII, Div. 12A, ss.4, 60B, 60CA, 60CC, 61DA, 64, 65DA, 65DAA, 75, 79 Federal Circuit Court Rules2001, r.15.28 |
| Waterford & Waterford [2013] FamCA 33 Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 |
| Applicant: | MS MILLSON |
| Respondent: | MR MILLSON |
| File Number: | MLC 499 of 2013 |
| Judgment of: | Judge Harland |
| Hearing dates: | 2, 3, 4 and 5 December 2013 |
| Date of Last Submission: | 5 December 2013 |
| Delivered at: | Darwin |
| Delivered on: | 18 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Testart |
| Solicitors for the Applicant: | Bancroft Lawyers |
| Counsel for the Respondent: | Mr Williams |
| Solicitors for the Respondent: | Leanne Cain & Associates |
ORDERS
Parenting Orders
That subject to order (2) the parents have equal shared parental responsibility for the children X born (omitted) 2000, Y born (omitted) 2003 and Z born (omitted) 2005 (“the children”).
For a period of 12 months from the date of these orders the wife will have sole parental responsibility for decisions concerning the children’s health, save that before making the decision about that issue the wife shall (unless matter is urgent rendering (a) to (d) impracticable):
(a)Advise the husband of the decision to be made;
(b)Seek the husband’s written response;
(c)Consider the husband’s response; and
(d)Advise the husband of the ultimate decision in writing.
BY CONSENT
The children live with the wife.
The children spend time with the father as follows:
(a)Each alternate weekend from the conclusion of school on Thursday until the commencement of school the following Monday morning and when such Monday is a school holiday the father return the children to school on the Tuesday morning;
(b)Each alternate Wednesday from the conclusion of school on Wednesday to the commencement of school on Thursday;
(c)For one half of each term school holiday being for the husband for the first half of such holidays to commence with the conclusion of school on the last day of school term and to continue until 6.00pm on the middle Saturday of the school holiday period for 2013 and in each alternate year thereafter when the husband’s time shall commence at 6.00pm on the middle Saturday of the holiday period until the commencement of the first day of school of the next school term;
(d)On the children’s birthdays if not otherwise with the husband for three hours on a school day from after school until 6.30pm. Should the children’s birthday fall on a non school day and the children are with the husband, they shall be with the wife from 9.00am to 2.00pm and that all changeovers when not otherwise at school take place at the wife’s place of residence;
(e)On each parent’s birthday for three hours on a school day from after school until 6.30pm and if the birthdays are not a school day then from 9.00am to 2.00pm and that all changeovers when not otherwise at school take place at the wife’s place of residence;
(f)For the Christmas school holiday period 2013/2014 the children have contact with the husband from 6.00pm on the fourteenth day of the commencement of the school holiday period for the next fourteen days and the children be returned to the wife at 6.00pm on the fourteenth day, then from 6.00pm on the twenty-eighth day of the said holiday period for the next seven days and the children be returned to the wife at 6.00pm on the last day of the said holiday period and in each alternate year thereafter. For the Christmas school holiday period 2014/2015 the children spend time with the husband from the conclusion of school in the December school holidays for the next fourteen days and the children be returned to the wife at 6.00pm on the fourteenth day of the said holidays. Then from 6.00pm on the twenty-eighth day of the school holidays until 6.00pm on the thirty-fifth day of the school holidays;
(g)For the year 2013/2014 the children spend time with the husband from 6.00pm on 24 December 2013 until 3.00pm on 25 December 2013 with the husband to collect the children from and return the children to the wife’s residence and in the same sequence thereafter and for the year 2014 and 2015 the children spend time with the wife from 6.00pm 24 December until 3.00pm on 25 December and the husband to deliver the children to and collect the children from the wife’s place of residence;
(h)From 5.00pm the Saturday prior to Father’s Day until school Monday.
Each parent shall, subject to the balance of these Orders, be entitled to telephone and speak with the children or to communicate with them by email or such other means as readily available at such times and with such frequency as that parent may desire save that such communications shall not relate to alterations in arrangements to contact and that any changes to contact arrangements must be as a result of an agreement between the husband and the wife and not involve negotiations with the children.
Each parent shall, subject to the balance of these Orders, be entitled to telephone and speak with the children or to communicate with them by email or such other means as readily available at such times and with such frequency as that parent may desire save that such communications shall not relate to alterations in arrangements to contact and that any changes to contact arrangements must be as a result of an agreement between the husband and the wife and not involve negotiations with the children.
Each parent shall for the purpose of telephone or email communication between the children and the other parent provide to the children such assistance as they may require but otherwise allow them to speak or communicate with privacy and without interruption, interference or distraction which shall include not preventing the children from receiving such telephone or email communication by confiscating the children’s telephones thereby preventing such communication.
For the purposes of changeover each parent be responsible for delivering the children to the other at the commencement and conclusion of time save for changeovers at school.
Each parent shall keep the other parent advised at all times of their residential address, email address and telephone number and shall advise of any changes to same as and when they occur and the same shall apply when either parent is spending time including holiday time with the children away from their usual residential address and on occasions when the children are travelling by aeroplane, the details of flight numbers and times of travel must be made available to the other parent.
Each parent shall refrain from attending at the children’s school at the commencement and conclusion of the school day on any day that the other parent is to collect or deliver the children and shall do all things within their power to ensure no other persons so attends at their request or direction.
Each parent shall forthwith and contemporaneous with the event advise the other parent of any significant illness or injury experienced or suffered by the children or any of them and including sufficient detail to enable the other parent to be consulted and advised with respect of medical treatment and to visit the child or children if hospitalised.
Each parent shall forthwith do all things, sign all documents and give all consents, authorities and instructions as are necessary to allow, enable and permit each parent to obtain directly from any school attended by any of the children copies of school reports, newsletters, photographs or other documents or information as that parent may request and to cause each parent’s details to be recorded as both a parent and emergency contact person.
IT IS ORDERED
Orders 3 and 4 of Orders made 11 February 2013 be vacated and the children consequently be removed from the Airport Watch List.
Pursuant to section 68B of the Family Law Act 1975, each parent shall be and is hereby restrained from denigrating or speaking ill of the other parent to or in the presence or hearing of the children and shall do all things within their power and control to ensure that no other person does so, or if they do so or attempt to do so, remove the children from that environment.
Notation
(A)The parties intend to engage Ms H for counselling to assist them in managing the conflict between them and improve their communication with each other.
Property Orders
The wife be declared the sole legal and beneficial owner of the following:
(a)(omitted) Pty Ltd;
(b)(omitted) (Business Name);
(c)Her motor vehicle;
(d)Superannuation standing in her name;
(e)Chattels and all personalty in her possession;
(f)Bank accounts standing in her name.
The husband be declared the legal owner and beneficiary of the following:
(a)(omitted) Pty Ltd;
(b)(omitted) Pty Ltd;
(c)All intellectual property associated with any (omitted) or material he has authored including hard copy papers, computer software and any other soft copies of materials;
(d)Chattels and all personalty presently in his possession;
(e)Superannuation standing in his name;
(f)Bank accounts standing in his name.
That the wife be declared solely responsible for and will indemnify and keep the husband indemnified with respect to the following debts:
(a)Centrelink debt;
(b)Master card debt.
That the husband be declared solely responsible for and will indemnify and keep the wife indemnified with respect to the following debts:
(a)Any liability owing to (omitted);
(b)Any liability owing to (omitted);
(c)And liability owing to (omitted);
(d)Any liability owing to (omitted);
(e)Any liability associated with the (omitted) Pty Ltd;
(f)Any liability associated with (omitted).
The husband and the wife indemnify each other in respect of all liabilities in relation to all property being retained by them and all liabilities presently standing in their respective names including credit cards, taxation liabilities and debts to any third parties.
I declare that as between the husband and the wife, the husband is liable to pay 65% of the debt owing to Credit card groups and shall within 42 days of the date of these orders pay 65% of the owing to Credit card groups and provide to the wife proof of payment within 48 hours of having paid it.
Arrears of maintenance
That the husband pay to the wife by way of direct deposit to the wife’s bank account the sum of $500 per week for 42 weeks with the first payment to be made on the first Thursday after this order is made and each Thursday thereafter.
IT IS NOTED that publication of this judgment under the pseudonym Millson & Millson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 499 of 2013
| MS MILLSON |
Applicant
And
| MR MILLSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a case which was bitterly fought by both parties. The documents filed and legal costs incurred were completely out of proportion to the issues in dispute.
The proceedings concern parenting and financial issues. The hearing took place over four days. This is in spite of there being fairly limited issues before the Court.
The conduct of these proceedings left much to be desired. Most of the morning of the first day was effectively wasted because of the failure to paginate the annexures with the wife’s affidavit having 208 pages of annexures and the husband’s affidavit having 108 pages of annexures. The legal practitioners had no regard to rule 15.28 of the Federal Circuit Court Rules2001 which clearly sets out the requirements for annexures and exhibits to be indexed and paginated. This rule has existed for many years. There was also unnecessary argument about what documents had and had not been disclosed as well as uncertainty about an objection to a subpoena had formally been dealt with because the instructing solicitors and counsel did not appear to be on top of those issues. These are matters that should have been anticipated given the nature of the dispute.
The affidavits filed in these proceedings were far too long given the limited issues in dispute. Great care should have been paid to what documents were relevant and what issues needed to be addressed. For example, it is of no assistance to have happy photographs and cards annexed to an affidavit. It is not in dispute in this case that the children love both their parents and want to spend time with them.
The husband has spent approximately $175,000 in legal fees in this case and the wife has spent a similar amount. This is not a complex case and the issues were relatively limited. The costs incurred by the parties are completely out of proportion to the issues in dispute. Some of the costs are attributable to the competing intervention orders in the Local Court. I have no doubt that the conduct and attitude of the parties has contributed to the costs they have incurred.
This hearing was conducted in the highly adversarial manner with argumentative cross-examination peppered with commentary.
The parties only received the updated family report on the morning of the first day of the trial. To the husband’s credit, he conceded that the children should live with their mother and spend substantial and significant time with him after receiving that report.
The children’s issues which remained in dispute were as follows:
a)Whether the wife should have sole parental responsibility or the parties should have equal shared parental responsibility;
b)Whether or not there should be a restraint on the wife taking the children to a particular church and having the children participate in religion.
The financial issues in dispute were which debts should be included as matrimonial debts and how responsibility for those debts should be apportioned between the parties.
The father makes very serious allegations against the wife including that she regularly exposed the children to pornography. He did not resile from those allegations at the hearing.
The husband filed an Application in a Case on 5 July 2013 seeking injunctions with respect to the wife exposing the children to religion. That application was adjourned to the final hearing and was not dealt with separately.
The wife relied on her affidavit of 22 November 2013 and the affidavits of several supporting witnesses. The wife’s case outline failed to include a schedule of assets and liabilities which was required by order 5c of the orders made on 6 June 2013.
The husband’s counsel provided a list of assets and liabilities as part of his case outline which was not provided to opposing counsel until the start of the hearing. There was no attempt by counsel to provide the Court with the joint balance sheet at the beginning of the hearing indicating items that were agreed or items in dispute. These are very basic matters which should have been addressed either by counsel or their instructing solicitors prior to the hearing.
The husband filed a case outline where he was seeking to rely on every affidavit he had filed in this proceeding, this is an unhelpful approach. At the beginning of the hearing, he narrowed it down to two affidavits. One of the purposes of the case outline is to identify to the Judicial Officer the documents the parties are relying on so the Judicial Officer can consider those documents before the hearing commences (time permitting).
The husband’s November 2013 affidavit made numerous references to paragraphs in his earlier affidavits which were not relied on at the hearing (apart from his first affidavit). I have only read the affidavits relied on by the husband for the hearing as identified by his counsel at the commencement of the hearing.
Background
The wife was born on (omitted) 1971 and is 42 years old. She was born in (country omitted).
The husband was born on (omitted) 1971 and is 42 years old. He was born in (country omitted).
The parties started living together in 1994 and married in (country omitted) on (omitted) 1999.
The parties have three children, X born (omitted) 2000 aged 13, Y born (omitted) 2003 aged 10 and Z born (omitted) 2009 aged 8.
In 2000 the parties moved from (country omitted) to Australia and remained in Australia until 2009 when they returned to (country omitted). They moved to Australia again on 1 December 2010.
Legal Principles
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (“the Act”). The Court must regard the best interests of the child as the paramount consideration: section 60CA. What it means in the individual cases is informed by a number of statutory provisions.
The objects set out in section 60B(1) help clarify what Part VII aims to achieve when it talks about best interests: section 60B(1). There are also principles that underlie these statutory objections: section 60B(2). Section 65D of the Act gives the Court the power to make a parenting order which is defined by section 64.
In deciding whether to make a particular parenting order, section 60CA requires that I must consider the matters set out in section 60CC(2) being the primary considerations and section 60CC(3) being the additional considerations.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect the children from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to section 60CC indicates, are consistent with the first two objects of Part VII, as stated in section 60B that the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The concept meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in section 60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, the extent that doing so is consistent with the children's best interest being treated as paramount.
Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children of family violence (section 61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (section 61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an order to equal shared parental responsibility, I am then required by section 65DAA(1) and (2) to consider whether to make orders that the children spend equal time and if not equal time then substantial and significant time with each parent.
For a parenting order to involve the children spending substantial and significant time with a parent, section 65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR & GR [2010] HCA 4, the High Court found that section 65DAA(1) requires a Court to consider both whether the best interests of children is served by an order for equal time and that is it reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an order for equal time. At paragraph [13] of the judgment the High Court said:
“Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.12 If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph [15]:
“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
Part VIII of the Family Law Act1975 is the part of the Act dealing with property, spousal maintenance and maintenance agreement. The major provisions relating to marital property division are contained in sections 79(1); 79(2); 79(4); & 75(2) of the Act.
Pursuant to section 79(1), the Court is authorised to make such order as it considers appropriate in order to alter the interest of the parties to a marriage in relevant property.
The expression “property” is defined in section 4(1) in relation to the parties to a marriage or either of them as meaning “…property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”
Pursuant to section 79(2), the Court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitory words “shall not” in the relevant section.
Section 79(4) provides the mechanics of how a Court is to make an order altering marital property interests.
Paragraphs (a); (b); and (c); categorise contributions made by marital partners which are relevant. Paragraph (d) directs the Court to take into account of any order regarding the earning capacity of either party to the marriage concerned.
Paragraph (e) directs the Court to consider a list of matters contained in section 75(2) which are germane to spousal maintenance or the prospective positions of the parties concerned by reference to their respective financial resources, means and needs. Finally, paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant. There is some overlap between these various provisions and not all will be applicable in every case.
Until recently, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39].
The High Court has recently considered the operation of section 79 in the matter of Stanford & Stanford [2012] HCA 52.In the case, the majority stated at [35]-[36] that:
“It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [Footnotes omitted]
43.The High Court too found that three fundamental propositions with respect to the application of section 79, which can be summarised as follows:
1.Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word existing.
2.Secondly, although section 79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
3.Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to section 79(2) in addition the matters referred to section 79(4).
In Stanford & Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of section 79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation.
The High Court also pointed out that what is just and equitable is different in every case.
Stanford & Stanford casts doubt on the correctness of adding back notional amounts to the pool for the purposes of property settlement. The Full Court confirmed this in Bevan & Bevan [2013] FamCAFC 116. The Full Court said at paragraph [79]:
“We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.”
The wife’s case
The wife says that they separated on 16 November 2012. She certainly describes an unhappy relationship and somewhat dysfunctional relationship prior to that. The wife says that the husband complained and criticised her for not wanting to have sex often enough with him. The husband started having an affair with Ms N and according to the wife was very open about it. The wife denies the allegations that the husband makes about her. She says that whilst she used adult websites and engaged in explicit chat sessions with men, it was fantasy and she did not act any of those fantasies out. The husband changed her online login to her real name and phone number. His conduct was reprehensible. The husband says he regrets his actions. The wife and the children moved out of the former matrimonial home on or around Christmas Day 2012.
The wife told the children that she and the husband were separating on 24 December 2013. She did not tell the husband that she was going to do that and he was very upset when he found out about it. The wife said she did it because the husband had told her that Christmas was cancelled and was making various demands. The husband’s response was to take the children to his girlfriend’s house on Christmas Day to meet their half- sister and to send a picture of the four children to the wife. Both parties exercised poor judgment and did not put their children’s needs ahead of their own.
The wife seeks an order for sole parental responsibility on the basis that the husband hates her so much he cannot communicate with her constructively. She wants to be able to take the children to church when they are in her care. The wife challenges the validity of some of the debts the husband says should be shared by them.
The husband’s case
The husband relied on his affidavit filed on 7 February 2013 and 27 November 2013. He says that the parties separated under the same roof when they were still living in (country omitted). I do not accept this. The evidence is clear that the parties had an unhappy, dysfunctional relationship in the last few years of their marriage. However the evidence is not suggestive of their having separated under the one roof, particularly before they came to Australia. The wife says that they did not have separate bedrooms until June or July 2012. There is no evidence that the husband told the wife that he considered the marriage to be over prior to November 2012. The fact that they slept in separate bedrooms and that he was openly having an affair with Ms N does not mean they were separated.
In his affidavit the husband makes a series of complaints against the wife in many instances based on suppositions not setting out in detail the alleged events. He makes no mention of the way he introduced the children to their half-sister A.
The police attended the home on 16 November 2012. The husband obtained a copy of the report under the Freedom of Information Act 1982 (Cth). The police refer to the husband having a three week old baby in that report. However the husband’s Counsel was not able to establish that the police told the wife about the husband’s new baby. I accept that the first the wife knew about the new baby was when the father sent her texts with the picture of the children and the baby on Christmas Day.
The husband talks about regretting not taking more protective actions for the children such as removing the children from the wife’s care and notifying the Department of Human Services. The husband annexes his statutory declaration that he prepared for police wherein he goes into graphic detail of what he alleges to be the wife’s sexual misconduct. He talks about her behaviour of being on adult matchmaker websites in 2011. He makes allegations about the children being exposed to pornography and sex toys left lying around by the wife in her bedroom. The husband refers to a couple of instances where he alleges the children were exposed to this but significantly does not specify when these incidents took place. He also refers to her drinking excessively. He talks about drunken occasions taking place in July, August and September 2012 when the wife allegedly shouted disgusting things at night with the children at home. The husband also talks about the wife’s blackmailing him with respect to the children.
The husband is extremely critical of the wife throughout his affidavits. He complains that the wife prevented him from seeing Z on his birthday. He also complains about the wife’s response to X needing urgent counselling after cutting herself. The husband is very critical of her role in that but makes no mention of his own.
The husband told the family report writer in the second report at paragraph [8] that “he has behaved badly but justifies his behaviour as a poor reaction to the wife’s bad behaviour.” He displayed this attitude throughout the hearing.
The husband wants equal shared parental responsibility. He says he is actively involved with the children’s activities and he spends substantial and significant time. He wants the wife to be restrained from taking the children to the church. The husband wants the business debts included as matrimonial debts. Initially he sought an order that the wife be responsible for 75% of the debts. The husband changed his position during the hearing to seek an order that they be equally responsible for the debts.
Presentation of witnesses
I have concerns about the credibility of both parties. It is consistent with the way they have run their cases.
When answering questions in cross-examination, the wife often gave commentary rather than simply answering directly the question she was asked. She took several opportunities to make criticisms of the husband and to refer to herself as being the victim although she did not use those words.
The husband also did not answer questions in a straightforward manner. He also made commentary which he thought would assist his case rather than answering the questions directly. The husband also took several opportunities to criticise the wife and justify his behaviour.
Assessing them both I find that the husband was the more unreliable of the two.
Children’s Issues
The children’s issues in the case focused on three areas:
a)Whether the wife had exposed the children to pornography and neglected their care due to her excessive drinking;
b)Whether or not the wife should have sole parental responsibility or the parents should share equal parental responsibility;
c)Whether or not an injunction should be made restraining the wife from exposing the children to religion and in particular the (religion omitted) Church.
Family reports
Ms R prepared two family reports dated 25 March 2012 and 2 December 2013. During the first interview, X said that she was distressed about finding out about her half-sister and was upset that her father did not tell her about her. She expressed a preference for the current arrangements to remain in place. She was getting some assistance from the school counsellor to deal with the emotional fallout of the separation. She sometimes feels stuck in the middle between her parents.
Y wanted to spend more time with her mother than her father. She loves them both but was judging her father because of his actions. Like X, Y was caught in the middle of her parents’ conflict. She says she does not know which parent to believe but tends to believe her mother more as she has evidence of her father’s infidelity. She was angry that her father kept her baby half-sister hidden until a few months after she was born.
Z was confused and upset about his parents’ separation and the existence of his baby sister. He does not want to choose between his parents.
Ms R observed the children with each of their parents and noted a close and loving relationship with both parents and that both parents were warmly engaged with the children.
She commented that both parents contributed to the children’s distress and turmoil, the wife by telling them about the separation without the husband and the husband not telling them about their baby sister until after the wife told them about the separation.
Her recommendation that the children live primarily with their father appears to be based on his having obtained superior accommodation.
It is clear from the second report that the parents have continued to expose the children to the conflict. The husband continued to use X as a messenger. He claims this is because the wife and her lawyer refuse to answer his correspondence but the evidence contradicts him.
In her second report, Ms R recommended the parents attend counselling to address acrimony and conflict between them which has continued unabated. The parents have agreed to attend counselling with Ms H who has been counselling X.
Unfortunately, although the issue of religion was an important issue for the parents by the time of the second report interviews, they did not appear to have asked her to consider this issue. There is a one line reference to the children enjoying going to church with their mother on her weekends. Ms R noted that because of the high volume of material provided to her, she was not able to read all of it because of the time constraints. This is typical of the way this case has been run.
Ms R was not required for cross-examination.
Allegations of the wife exposing the children to harm
To his credit the husband changed his position with respect to the parenting orders at the commencement of the final hearing, having received and considered Ms R’s second report that morning. His counsel advised that his client was no longer seeking primary residence of the children.
However, the husband would not resile from the allegations he made against the wife and still relied on his affidavit of 7 February 2013. The husband was quite careful in cross-examination not to say that he no longer held those concerns. He simply referred to respecting the expert opinion of Ms R.
The husband’s conduct in relation to these allegations is of some concern. He did not bring urgent parenting proceedings. He did not file a notice of risk of child abuse. There is no evidence that he made notifications to the Department of Human Services. This is inconsistent with the seriousness of the allegations he makes.
Whilst I accept that the children have been accidently exposed to some pornography, I cannot be satisfied that this is solely due to the wife. She says that everyone in the family used the computers and the iPad where Y accessed a pornographic website. The wife says both she and the husband used this website. I prefer the wife’s evidence to the husband’s.
I also do not accept the husband’s counsel’s explanations as to why he maintained that it was necessary to rely on the affidavit of 7 February 2013, particularly in light of his position at the commencement of the hearing where he no longer sought an order that the children live with him.
The husband has not established his allegations satisfactorily. I think that he likely has exaggerated incidents in an effort to gain a tactical advantage and to denigrate the wife.
Parental responsibility
The husband and his lawyers were on notice from 3 June 2013 that the wife had changed her position with respect to parental responsibility and now was seeking an order that she have sole parental responsibility. If the husband and his legal representatives were in any doubt as to why she changed her position, the wife’s lawyer’s letter of 22 August 2013 should have enlightened him.
The wife was cross-examined about her position with respect to seeking sole parental responsibility. She said that she and the husband are unable to communicate. She has sent him polite communications and he has not responded in an appropriate manner. The husband’s counsel suggested the husband’s lawyer communicated with her lawyer and that her lawyer had not responded in a timely manner and he was frustrated. The wife said she thought the lawyer had responded and that they were both frustrated. She said that she hoped that in the future they would be able to communicate well enough to make the decisions jointly but did not think they could currently. Despite being on notice about the wife’s amended application, the husband did nothing to improve his communication with the wife about parenting issues in the months leading up to the hearing.
The parties had equal shared parental responsibility on an interim basis. The wife provided other examples of where she has tried to communicate with the husband about issues concerning the children. This includes sending him a text offering him time on Father’s Day (this text was sent on 27 August 2013) and about the September school holidays. The husband’s response to that was to write a rude letter to her lawyer dated 28 August 2013. He does not refer to her text. She sent a text to him responding to that, offering 9.30am to 4.00pm, noting that the children needed to pay for a school trip. The wife also asked for an answer about the September school holidays so she could make plans. Her communication is not unreasonable.
The husband’s approach to communicating with the wife about parenting issues has been unreasonable and capricious. The wife’s texts to him are polite. Instead of communicating like an adult, he communicated with X, involving her in adult issues inappropriately. Simple examples are found at exhibits X and W to the wife’s affidavit. The wife emailed him to ask if he could collect Y from the school office as she was unable to. The wife had X at home as she was also sick. She asked if the husband could let her know and she would walk X to the school office. The husband was due to have the care of the children that afternoon. The husband did not respond to the wife’s texts but instead emailed X directly. X asked if he had asked the wife. He did not answer and texted her further instructions. This happened on 8 August 2013.
The husband was cross-examined about his manner of communicating with the wife and her advisors. He had great difficulty conceding that his early text messages were angry and aggressive. If that time was limited to the early weeks of separation, then that would be understandable given the fraught nature of the separation. However his manner of communication did not change and was not limited to direct communications with the wife. Annexure BBB to the wife’s affidavit is an example. It is a copy of the letter the husband sent to the wife’s lawyer dated 27 August 2013. The tone of the letter is rude. It is a simple thing to address a letter in using the word ‘dear’ in front of the addressee’s name. Some words are underlined, others are bold and in capitals.
During the period where the husband wrote to the wife’s lawyers directly, he claimed he was self represented at that time but his lawyers did not file a notice of ceasing to act. The husband did not file a notice of address for service. The wife’s lawyer wrote to the husband indicating that he could not communicate with him directly because of the Professional Conduct and Practice Rules 2005. This was entirely appropriate.
The husband continued to send vitriolic letters to the wife’s lawyers on 30 August and 2 September 2013.
Z’s birthday
Annexure D to the husband’s November 2013 affidavit is a letter from the husband’s lawyers to the wife’s lawyers dated 29 May 2013 which is Z’s birthday. It refers to a conversation between the lawyers at 4.00pm that day and stated that the wife did not allow the husband to see Z on his birthday. It is hardly surprising that such a late request did not receive a positive response.
The wife says she emailed the husband on 27 May 2013 asking about arrangements for Z’s birthday and her birthday the week after. She suggested the husband pick up Z and the other children from school and have them until 8:30pm on Z’s birthday. As the children were going to be in his care for her birthday, the wife suggested that she collect the children from school and have them until 8:30pm on that day. She sent a further email on 28 May 2013 as she had not received a response. The wife asked the husband to communicate about the children to her and not through X.
The husband makes no mention of the wife’s email in his affidavit. He offers no explanation as to why he did not make a request earlier.
Ski trip
The wife says the children had mentioned going skiing with their father during the second week of the July school holidays a few weeks before the school holidays. Pursuant to the interim parenting orders, the children were due to be with the wife during the second week of the school holidays. The wife caused her lawyers to write to the husband’s lawyers on 25 June 2013 where she squarely raises the issue. They sent a letter in response on 2 July 2013. This was already the first week of the holidays and the children were with the husband. I do not know the contents of that letter as it was a privileged without prejudice communication. Apparently the possibility of a school trip was mentioned in that letter. The husband’s lawyers sent a further letter on 5 July 2013 stating that he had an offer of free accommodation at (omitted) the next five days. This required the wife to respond that day by 4.00pm. The fax was sent at 11.43am that morning. The wife says that she had made plans for the children’s time with her during those holidays, there were further communications back and forth between the lawyers. To the wife’s credit she allowed the children to go skiing with their father. The husband’s complaint about not getting responses from the wife’s lawyers was unreasonable given the lateness of his request. The wife replied by text confirming her consent but the father insisted on having a response by email. Again this was unreasonable.
The wife says she received the letter from the respondent’s lawyers the day before his birthday asking to spend time with the children the next afternoon. The only reason it became urgent was the husband’s failure to raise the issue promptly and to promptly respond to the letter of 25 June 2013, when it still would have been possible to swap the weeks.
When cross-examined, the husband acknowledged that the wife had made enquiries. The husband also acknowledged that he had told the children about the possibility of a skiing trip.
It seems to be a pattern of the husband asking for time at the last minute then expecting a prompt response. If the husband does not get that response he becomes disparaging and rude. The husband has not demonstrated any capacity to communicate civilly with the wife.
Z’s broken finger
Z broke his finger whilst playing football when in his father’s care on 20 October 2013. The husband says he noticed some minor swelling and put an ice pack on it. He says it did not look very swollen the next day so he took Z to school. The wife did not take him to a doctor. The husband took him to a doctor on 7 November 2013 and had his finger reset. The doctor made a complaint to the Department of Human Services and the Department contacted the wife. The wife says the husband did not tell her that Z hurt his finger when he returned Z to her the day he hurt his finger. If he had, the wife may have paid closer attention.
X’s need for urgent counselling
The student wellbeing officer at the school contacted the husband on 25 October 2013 telling him that X had cut herself and needed urgent psychological assistance.
Both parents behaved poorly over this incident.
Annexure F to the husband’s trial affidavit is a series of text messages between the parents about X’s counselling appointment. It is clear from those messages that both parents were more concerned about being the one to take X to the appointment rather than ensuring X got the help she needed as soon as possible. The husband blames the wife for this but he is equally to blame.
The husband cancelled the first appointment after the wife told him that she would take X to the appointment.
The wife was upset that the husband had attended the family GP to obtain mental health plans for the children which referred to the wife’s mental health.
At paragraph [27] of the husband’s November 2013 affidavit, he places the blame on the wife for their failure to pull “together as parents.” The husband needs to take responsibility for his own poor conduct which contributed to this.
If both parents were really child focussed, they would have obtained the earliest appointment regardless of which parent had care of X at that time. The parents would have put on a united front for X’s sake and both would have attended the first appointment. Instead because both parents were focused on themselves and not X, X was delayed in getting the help she needed.
What is most concerning is that this happened less than two months before the final hearing. The husband urges me to look prospectively rather than dwelling on the past when considering parental responsibility. The difficulty with his submission is that his agnostic and aggressive style of communicating has not improved in the months leading up to the hearing. I am not confident that the parties would behave differently.
It is the worst incident but is by no means the only one.
Religion
In the husband’s application in a case filed 5 July 2013, the husband sought the following restraints:
1. That without the prior express written permission of the father the Applicant Wife and her servants and agents be and hereby are restrained from taking or causing to be taken the children of the marriage X (“X”) born (omitted) 2000, Y (“Y”) born (omitted) 2003 and Z (“Z”) born (omitted) 2005 to any building or facility of any kind operated by or for the (religion omitted) Church based at (omitted) in the State of Victoria (hereinafter referred to as “the Church”), or to any event run by or in the name of the Church or to any event of religious instruction of any kind or any social activity of any kind carried out by any religious institution, including but not limited to the Church.
2. That without the prior written permission of the father the Applicant Wife and her servants and agents be and hereby are restrained from permitting, authorising or facilitating, whether by act or omission, the children X, Y and Z being exposed to any religious education or training of whatsoever nature.
In my view the orders sought in that application were impermissibly broad.
The husband’s complaints about religion are found at paragraph [33] to [36] of his November 2013 affidavit. He says that none of the children have been exposed to any religious instruction except for passing exposure to religion at their public schools. The husband says that they were both committed atheists and chose schools that have no formal religious education. The husband complains that the (religion omitted) church is a nondenominational and nonmainstream church. The husband says it is not in the children’s best interests to be exposed to religion until they are adults and can determine it for themselves.
The husband says the children are also taken to church activities such as youth events, weightlifting competitions and other activities with a strong emphasis on worship.
The husband complains that the wife has tried to create a picture of him being religious. He also complains that Pastor X is not impartial and he is concerned that he will influence the children against him if they tend the (religion omitted) church. The husband chose not to cross-examine Pastor X. The husband conceded that he had been to Pastor X’s home a few times and that the children are friends going to the same school and being in similar years. Texts from the husband to Pastor X are annexed to Pastor X’s affidavit. I find it is likely that at least part of the husband’s objection is because of his dislike for Pastor X and his resentment that Pastor X has taken the wife’s side.
Counsel for the husband submitted that the onus was on the wife to provide evidence as to the “nature and extent of that (religion omitted) education that she proposes the children should have.” I do not accept the submission that as the wife is promoting the Church, it is her obligation to provide evidence about the operation of the Church and not the husband’s. The husband’s counsel took an unhelpful and adversarial approach about a parenting issue to which Division 12A applies. It is the husband who is seeking a restriction, not the wife. The onus is on him.
Unfortunately neither party but particularly the husband, given he was seeking the restraints on religion, raised the issue with the family consultant. This is typical of the manner in which this case has been conducted.
I do not have any evidence about the children’s views on the church and youth activities they have attended which are associated with the church. Whilst not decisive, this would have been of assistance to the Court and to the parents themselves. There is no evidence that the wife has any intention of having the children formally inducted into the church. Though X is of an age where the husband concedes she is mature enough to make her own decision about religion.
During the course of argument about this issue, the husband’s counsel handed up a draft minute of order which contains a much more measured order with respect to the issue of religion. That order reads as follows:
The parents be and are hereby restrained from involving and educating the children in a specific religion until the children reach the age of 13 years and upon that age respect the wishes of the children as to which religious education, if any, the child seeks at that time save and except:
(a) That the parents be able to take the children to social events conducted by churches which events do not involve formal religious instructions;
(b) The children may attend non-secular schools.
The wife agreed in cross-examination that the children have never been baptised she says that whilst they were together, the family did not go to church regularly but did go occasionally including at Christmas.
The wife now wants the children to attend Pastor X’s church when they are with her. She says the church is community minded, positive and ethical. She says they have fantastic positive people there who are a great influence on her children. Pastor X set up his own church after being passed in another church. The wife says the church is based on the teachings in the Bible but she was not able to be very specific about its particular teachings. The wife denies that people at the church speak in tongues. She says the principles that the children are encouraged to pick up from the basic stories in the Bible with regard to community and being a good person. The wife says the children love going there and it is a very positive environment for them. A lot of the children’s friends go there.
The wife contends that the husband attended the church on several occasions. She says that she and the children have gone to the church more this year than ever before but that is probably because of the separation.
The wife accepts that the husband is aggrieved because many friends are satiated with Pastor X and other mutual friends have taken the same view against the husband.
The husband claimed during cross-examination that the church encourages people speaking in tongues and that he has seen that and the laying of hands on people falling on the floor. He says this does not happen at the public activities. The husband complained a couple of times about the church teaching believers in the literal word of the Bible. Significantly he did not make these complaints in his affidavits.
The wife’s counsel put it to the husband that the wife’s case with respect to religion is that she is not seeking that the children be fully inducted into this religion but that the children are friendly with Pastor X’s children and spend time together in the context of the church and that the church gives the wife some emotional and social support. The wife is not seeking that the children go to church every Sunday.
I am mindful of the Full Court’s comment at paragraph 90-659 of Paisio and Paisio (1979) FLC 90-659:
“An Australian Court cannot commence that any premise that as a matter of public policy one religion is to be preferred to another all that a ‘religious’ upbringing is to be preferred to a ‘non-religious’one.”
In Fern and Fern [2012] FamCA 545, Cleary J had to determine whether or not to grant the mother sole parental responsibility for religion. Cleary J commented, and I accept this is correct, that the Court cannot prefer one face over another. The children were baptised in the applicant’s Church with the consent of the husband who is (religion omitted) and were taken to the applicant’s Church exclusively until the parties separated. After the parties separated, the husband wished to take the children to his (religion omitted) Church on Sundays with him. The wife wanted to restrain the husband from taking the children to his church and have the children returned to her each Sunday for the purposes of attending her church. Cleary J found that there was no need to make any order with respect to religious observation as there was no evidence that the husband was seeking to convert the children to his faith or undermine the children’s confidence in their mother’s guidance. The wife stated that it would be positive for the children to come to understand that within the (religion omitted) faith that there are different points of view.
In C and B [2007] FMCAfam 539, Judge Altobelli refused to make the order sought by the mother restraining the father from having the child baptised in the (religion omitted) faith and having herself restrained from allowing the child to have a (omitted) without the other party’s written consent. The father says said the child should be exposed to both religions and did not object to the child having a (omitted). The mother opposed the child being baptised, she thought it would prevent the child from being involved in other religions. Judge Altobelli said that he did not have enough evidence to determine the issue and even if he had, he would be concerned about the enforceability of such an order and noted that it would be “almost impossible to fashion an appropriate sanction. There are some matters of parental responsibility that are simply the best left to parents to decide.” He also commented that parents “need to reconsider the view that the law somehow has the answer to all the issues that might arise in relation to children.”
In Macri and Macri [2010] FMCAfam 662, Judge McGuire made an order restraining the mother from causing or allowing the children to take part in any (omitted) or (omitted) without the father’s written consent. He noted that the orders did not prevent the father from taking the children to (religion omitted) events or from the mother taking the children to (religion omitted) events. The father’s position was that the children should have the benefit of being exposed to both religions but should be free to choose their own religious preference when they are of sufficient age and maturity to do so. The father opposed the children attending the (religion omitted) youth group arguing that that was part of religious instruction and perhaps also had an element of politics. The mother said the children participated in games and other fun activities of the youth group. Judge McGuire expressed a different view to Judge Altobelli, which was that he felt he is mandated to make a determination where parents are either unwilling or unable to do so with respect to the children. Counsel for the husband urged me to take Judge McGuire’s approach. I have much sympathy for Judge Altobelli’s views. The amended orders which the husband seeks are in line with the orders that Judge McGuire made in Macri. In Macri’s case, Judge McGuire found that the mother wanted to commit the children to religion now. I cannot make that finding in the present case. In my view it is only proper for me to make such an order. I find it is in the children’s best interests to do so. In the present case, I am satisfied that the children continue to be exposed to both parents’ views. The parents will have equal shared parental responsibility with respect to religion. I do not think the orders that the husband seeks are justified in this case and I decline to make them.
Conclusion with respect to children’s issues
The wife sought a watch list order until the children turned 18. There was no evidence in her affidavit and there was no cross-examination about this order. These types of orders can cause the Australian Federal Police (“AFP”), children and parents (not to mention the Court) significant inconvenience when years later a child is prevented from boarding a plane at the airport because the parents have forgotten about the watch list order they thought was necessary years before. It is for this reason that the AFP now asks for a sunset clause of two years to be placed on these orders unless the Court finds that a longer period is necessary in the circumstances.
The parties have agreed to an order enabling both of them to travel overseas with the children given the family’s connection with (country omitted).
The husband’s counsel referred the Court to decision of Judge McGuire Carrow & Vincent [2013] FCCA 1732. The facts in that case were quite different. The mother in that case who was seeking sole parental responsibility and a no time order. The risk in a case such as that is that the father would be excluded from a parenting role given the mother’s attitude. That is not the case here. I am satisfied that the wife has made appropriate overtures to the husband. He has not done the same.
The proposal also referred to Murphy J’s decision of Lennon & Lennon [2011] FamCA 571. Again that case involved a very different factual scenario. Murphy J was satisfied that the presumption was rebutted and expressed concern that if the parents continue to share parental responsibility, further conflict between the parties was very likely and that this was particularly concerning because of the father’s involvement of the children in the dispute and his “apparent willingness to place adult issues on children’s shoulders.”
He stated that exercising the discretion to exclude one parent from consultation and decision-making with respect to the major long-term issues concerning a child’s welfare, it is a significant step “being a very serious interference with the fundamental rights of person.” I agree with those comments in Lennon & Lennon he made an order for sole parental responsibility with the requirement that the mother seeks the father’s input and advise him of the ultimate decision.
The husband’s counsel did not refer to the full Court decision of Dundas & Blake [2013] FamCAFC 133 which is directly on point. That case concerns an appeal of sole parental responsibility order made by Judge Sexton. In contrast to this case, the wife did not raise the issue of sole parental responsibility until she filed her proposed minute of orders shortly before the commencement of the hearing. Before that, each party sought an order of equal shared parental responsibility and neither raised the issue of sole parental responsibility with the family consultant. Significantly, the family consultant was not cross-examined about nor did the wife’s counsel cross-examine the husband about it.
Judge Sexton based her decision on the poor communication between the parties, there being little optimism about its improvement as well as the lack of insight both parents show which because, it relates to the needs of young children. She also accepted evidence from psychiatrists that the mother would find it difficult to stand up for the child of the parties’ relationship and could not agree given her passive-dependent personality traits. There was no cross-examination about psychiatrists finding and no cross-examination of the parties that the poor communication had led to problems with long-term decision-making. The other issue was that those factors were present before the parties separated. The full Court said at paragraph [61]:
“in our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the Court that it is not in the best interests of the child, makes it necessary for the to be explicit and cogent reasons why the presumption should be rebutted. Given that no one gave any evidence about it, including the family consultant, we do not consider that her honour could have reached a degree of satisfaction in regard to those facts that could properly have foundered of a button of the presumption.”
Section 61DA(2) does not apply in this case. The issue then is whether or not the presumption is rebutted because the Court is not satisfied that it would be in the children’s best interests of the parents to have equal shared parental responsibility: section 61DA(4).
Taking this evidence as whole, including his affidavits and oral evidence, it is clear that the husband continues to have an extremely negative view of the wife. This is quite separate to the issue of the allegations which he made. I do not accept Mr Williams’ submissions that the husband has moved forward. There is simply no evidence of any attempt by the husband to communicate with the wife civilly with respect to issues concerning the children. This is particularly significant in light of the fact that since 3 June 2013, he has been on notice that the wife was seeking an order for sole parental responsibility. I will not repeat the comments I have made elsewhere about his attitude in communication with the wife with such children’s matters. What is of most concern is that there has been no change even in the lead up to the hearing. The incident concerning X’s urgent needs for counselling reflects poorly on both parents. Awarding parental responsibilities to one parent is not about punishing the other but it is about making orders that are in the best interests of children. There is clear evidence that rather than speaking to the wife by email or text (I would not expect these parties to communicate by telephone) he uses the children, particularly X to communicate issues about day-to-day matters.
The difference between the two parents is that the wife has made efforts to communicate with the husband about parenting matters and has been rebuffed. That is clear with respect to the incidents regarding Z’s birthday and the skiing trip.
It is clear from the family reports that that the girls in particular have been placed under pressure by being used as messengers by their father and the ongoing conflict between their parents. Whilst the parents agreed to attend counselling with Ms H, it is a very positive step that is not a quick fix. I cannot be confident that the parties will suddenly be able to work together for the children’s sake even though this hearing is ended. The children need to be protected from a repeat of the parents conduct with respect to X’s counselling appointments. The only way this can be done is to give the mother sole parental responsibility for health issues.
The other typical major issues which arise which are listed in section 4 of the Family Law Act 1975, are change of name, education and changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the parents. In my view, these are matters which should remain the shared responsibility of the parents. I address the issue of religion separately. There has been no issue of any difficulty between the parties about the children’s education in the past. Therefore, despite my concerns, I will not make an order for sole parental responsibility with respect to the children’s education.
Mr Williams emphasised that the wife acknowledged that the husband was a good parent. This misses the issue which is the attitude and conduct of the husband in the way he communicates with the wife. I do not accept this submission that the fact that the wife seeks parental responsibility order reflects poorly on her. I also do not accept Mr Williams’ submissions that the husband has accepted responsibility for his conduct in the past because at every opportunity during cross-examination he sought to justify his behaviour by reference to the wife’s conduct. The wife was not immune to that. But whereas I am satisfied that the wife will communicate with the husband in a timely manner about parenting issues, I cannot say the same about the husband.
I will make a modified parental responsibility order for 12 months. I find that it is in the children’s best interests for the mother to have sole parental responsibility with respect to health issues for the children. She should consult with the husband and take into account his views that she will have final say on those issues. The 12 month period will give the parties time to engage in counselling and work on how to communicate constructively and protect the children from the conflict.
The parties agree to see Ms H for counselling. Neither have included this as an order in their minutes handed up during the course of the hearing. I have made a notation.
Financial Issues
The husband says the parties met when they were both 23 years old and neither had assets of any significance. They were earning a similar income.
They bought two properties in (country omitted) and later sold them.
The husband says he set up a company in the (country omitted) called (omitted) Ltd. He says the wife assisted with (duties omitted). He was the (position omitted). The wife agreed that the husband was the (position omitted). She says she (duties omitted). The husband says, and the wife agrees, the global financial crisis had a devastating effect on the business as the business relies on government funding (business omitted).
The husband says that since they returned to Australia in December 2010, he has been working on having his (business omitted) accredited in Australia. He achieved accreditation in August 2012. He sells his (business omitted) to (business omitted) for a licence fee. The husband complains that he was not able to launch the (business omitted) until 14 November 2013 rather than January 2013 because of the wife’s conduct and intellectual property.
The husband says several organisations which paid licence fees are demanding their money back. They are:
a)(business omitted) $20,000 fee on 18 October 2012;
b)(business omitted) had advance royalties $30,000 on 7 December 2012. He received an email from them dated 29 April 2013 seeking a refund;
c)A licensing agreement with (business omitted) for $110,000. He says they are demanding refunds and he claims he was made redundant because of it.
The husband says the wife has created that problem by withholding his (business omitted) and intellectual property.
The husband was employed as an (position omitted) at (business omitted) earning $175,000 a year. He says part of his employment was to (duties omitted). He says because the wife’s conduct in withholding his (omitted) materials, he was unable to complete the (omitted) and he was terminated on 24 May 2013 during his probation period.
The husband says he has entered into discussions with (business omitted) to offer his (business omitted) in 2014 and that he has entered into a joint venture agreement with (business omitted). He says it is highly confidential and he did not receive any financial benefits.
The husband claims that the wife has a wide range of qualifications which she could use to obtain work. The wife says the husband has exaggerated her qualifications. She is undertaking further study.
The wife seeks completely unrealistic property orders. She seeks an order that the husband pay her $100,000.00. This is more than 100% of the property pool. The wife made no attempt to point to a source of funds from which this could be.
Assets and Liabilities
The parties have a motor vehicle each, bank accounts and household contents. The wife has a coin collection she inherited from her father. The husband disputes its value. Neither sought an adjustment. They should remain where they are.
The argument focused on what debt should be included in the pool as matrimonial debts and how that debt should be apportioned. The liabilities are set out below:
Liabilities
ownership
Husband’s value
Wife’s value
Ms B Husband $3,750 $3,750 Ms U Wife $150,000 $150,000 (omitted) Bank visa Husband $2,343 $2,343 (omitted) Bank Husband $6,252 Credit card groups Wife $35,000 $35,000 (omitted) Bank visa Wife $600 $600 ATO personal tax Joint $10,284 $10,284 (omitted business) Joint $54,510 Disputed (omitted) business) wife $3,500 $3,500 Centrelink wife $18,000 $18,000 GST Husband $7,000 Disputed Director’s loan Husband $53,000 Disputed (omitted business) Husband $110,000 Disputed (omitted business) Husband $30,000 Disputed (omitted business) Husband $3,729 $3,729 (omitted business) Husband $1,650 Disputed Total $489,618 $227,206
The husband claims he owes his mother $3,750. The wife claims she owes her mother $150,000. There is no evidence that either mother requires the alleged loans. Surprisingly, Ms U was not cross-examined about this. I will not include either item as a debt but will take them into account pursuant to section 75(2)(o).
The wife says that the (omitted) Bank debt in her name of $600 is a family debt. She says the (business omitted) debt of $3,000 is also a family debt.
The Centrelink debt of $18,000 arose because the wife made claims for family payments over a number of years. She says that the husband had dealt with Centrelink and they spent the funds on the family, therefore that is also a family debt. I find that this is joint debt.
There is a debt of $54,510 owing to the credit card company. The statements of the debt were tendered as exhibit R2. (business omitted) is a debt collecting agency collecting the debt on behalf of (omitted) Bank. The statement shows no payments have been made since 2010. No explanation has been given for this.
The debt has increased significantly due to late fees. The credit card is in the husband’s name. The husband’s counsel put to the wife that it was a credit card used for the joint benefit of family. The wife said she did not know about it until it was disclosed during the course of proceedings. The husband has had significant funds coming in through the business since separation. It is not reasonable for him to have simply let this debt accrue. The wife must share in this debt up until separation but the husband will be solely responsible for the increase in the balance after that date.
The husband has a director’s loan of $53,000. At least some of this sum is for payment of legal fees. He also paid some of his legal fees directly from the company as he says this related to the return of the (business omitted), (omitted) Pty Ltd which was deregistered in October 2013. The husband said that he had to deregister it because he realised he was trading insolvent. He insisted during cross-examination that the debt remains payable to ASIC. The husband produced no documents to verify this. The husband’s counsel argued that the Australian Taxation Office may regard it as a division 7A loan or alternatively treat it as a dividend which the husband will have to pay tax on. There is also the possibility that because the company has been wound up that the tax office may not do anything about it. I am not satisfied that this is a debt that will crystallise. Even if it does, given the husband has had the benefit of the significant payments to the company, he should be solely responsible for the loan.
The husband has another company (business omitted). The GST payment of $7,000 is for the (business omitted). The husband should be solely responsible for that debt.
(business omitted)
The wife says she and the husband worked together in the business as a team until the respondent took full control effectively putting her out of work. It is not disputed that the wife was the sole director and shareholder of (business omitted). The parties treated this as the joint entity during the relationship.
(business omitted) entered into a contract with (business omitted). The wife says that (business omitted) entered into the contract rather than the husband personally because he was on (business omitted) and was restricted from entering into another contract in the same field in his own name. She says she signed the contract but the husband did the work and his fees were paid into the (omitted) bank account. Exhibit R2 is a copy of the consulting agreement with (business omitted). It is a different version of the contract which is annexed as annexure P to the husband’s affidavit.
The husband said in cross-examination that he initially signed the contract but it was rejected because he is not a director of (business omitted). As a consequence, the wife had to sign the contract which (business omitted) then accepted. The difference in the two documents is suspicious. The tendered document lists the people who are the points of contact for (business omitted) and lists the husband as the point of contact for (business omitted). It appears to me that the names have been blanked out. I find that on the balance of probabilities, the husband has done this deliberately to try and create a picture of the wife being in control of that contract. This does him no credit at all. I do not accept his explanations for this. (business omitted), who the husband also did work for in 2012, had the same people working there as (business omitted). The husband admitted he negotiated the contract. In cross-examination, the husband suggested that the wife did much of the work. He claimed that he was assisting the wife in her business. I do not accept this evidence.
With respect to the controversy over the (omitted) and intellectual property, the wife inexplicably quotes at great length from portions of previous affidavits and statutory declarations which the husband prepared with respect to this issue. She says she returned the items by 11 February 2013.
The husband redirected funds which were due to be paid to (business omitted) on or about 16 December 2012. This was a payment of $30,000 from (business omitted). He sought to justify this by saying that the licence agreement was with him and not (business omitted). Annexure DDD to the wife’s trial affidavit consists of emails and invoices reissued by the husband in his own name purporting to counsel the previous invoice by (business omitted).
The wife gave evidence that she took the computer from the home on Christmas day which had been purchased by (business omitted). She says she took the (omitted) for the (business omitted) on 19 January 2013 in response to the discovery that the husband had redirected licence fees for the (business omitted). The wife says he had threatened her that he would bankrupt her and leave her with nothing. She says she did not know what to do and wanted to get him to listen to her so she took the (omitted) and waited for him to respond.
The wife then said that money had been paid to (business omitted) and they needed to get the (omitted) out to people who had made orders, she says she only took (omitted) which was completed. With respect to the intellectual property on the computers she says she emailed everything to him for him to check. The wife says that at no stage was he without access to the intellectual property.
The husband obtained an ex parte order on 21 January 2013 from the Magistrates Court for the return of (omitted) and intellectual property. The wife was served on 24 January 2013. She says she returned them within the timeframe to the garage at the (omitted) property which is where she took them from. The wife says the husband was angry that she did not return the (omitted) to his girlfriend’s home.
The wife was asked why if the husband had access to the intellectual property, he sought and obtained a further order on 11 February 2013 which the wife consented to the return of all of the intellectual property. She replied that she did not know but that she returned to him all of the intellectual property and more. The orders she consented to had a long list of documents that she was required to return at Annexure A. The wife was required to return them within 48 hours. She conceded that she did not do so within the timeframe, she said that she struggled to get them altogether. The wife provided the information 11 days late.
The wife accepted the proposition put to her that if an academic institution does not have the (omitted) material in time prior to the commencement of the (omitted), then the (omitted) cannot proceed. It seems unlikely that the husband would keep pursuing orders for the return of the materials if he already had it. The wife says that the most the husband was without the material was three weeks.
The husband was employed by the (business omitted) earning $175,000 a year. At paragraph [49] of the husband’s November 2013 affidavit, he alleges that part of his terms of employment required him to produce and launch exclusively to his employers his (business omitted). He complains that the wife’s withholding his (omitted) and intellectual property meant that he was unable to complete the work by the required timeframe and was consequently terminated from his employment on 24 May 2013. The husband did not annex a copy of his employment contract to his affidavit. Exhibit L is a copy of his termination of employment letter. It refers to his contract of employment and the second paragraph says “The reason for the termination of the contract of employment has been discussed with you and relates to your inability to be able to deliver on the full accountabilities for your role.” This letter does not support his claim that he was terminated because of his failure to produce the (omitted) work. It is apparent from the evidence that the $110,000 was for the (omitted) work but his employment involved other responsibilities. The husband conceded that his contract of employment does not refer to the (omitted).
It became clear during the husband’s cross-examination that he caused the business to pay for several expenses which were not business expenses, including payments for the family report. He indicated that he will be taking that as a loan or a director’s loan “at some point.” The husband also paid for the (omitted) School and some of his rent payments. It would not be fair for the wife to effectively subsidise these costs by sharing in the liability for the director’s loans.
The husband had sole control of the funds paid from the (business omitted) and (business omitted) in addition to significant other funds paid to his business post separation. He conceded during cross-examination that $385,000 was deposited into the business accounts. He further conceded that none of this was paid to the wife. The husband spent much of the money which came into the business on non-business expenses. Significant sums were deposited after the husband stopped working for (business omitted).
The husband has not provided satisfactory evidence as to how he utilised these funds. It is clear that the husband has had sufficient funds to pay rent, pay child support to Ms N and living expenses. His financial statement does not assist in this regard. He claims to be drawing $1,000 per week in director’s loans. The only other income he discloses is $70 a week in royalties. He discloses $2,548 a week in expenses. The husband does not disclose increasing credit card debt and offers no explanation as to how he covers such a significant short fall. I am not satisfied that he has properly disclosed his income. Much of the significant sums he has received from the business in recent times was only dealt with in cross-examination.
Mr Williams made an attempt to illicit further evidence but it was far too late in the day. This is something which should have been disclosed properly in the husband’s affidavit. It is not good enough to say specific documents were not asked for by way of disclosure.
The husband had not provided evidence that the wife’s action caused him to lose his job. This is an important part of his case. He does not provide any details in his affidavit. The materials were returned to him three and a half months before he was terminated. He also alleges that because he did not have access to the material, he could not fulfil his obligations with (business omitted). The husband has provided no explanation as to how being deprived of his material for up to four weeks until 11 February 2013 caused the delay in launching the product until 14 November 2013.
Putting his case at its highest and if I accept that the husband did not have access to any of his intellectual property, the longest he was without those materials was four weeks. The husband does not explain how this delay meant he was unable to launch the (omitted) until 14 November 2013, many months later. The husband’s conduct in diverting the $30,000 was provocative. It is not surprising that the wife retaliated. This does not excuse the conduct of either party.
Section 75(2) factors
The husband tried to argue that the wife is the recipient of a large expected inheritance from her late father relating to a large parcel of farmland in (country omitted). The husband tried to run an argument that he had contributed to that by assisting with negotiations. The wife conceded that they were both present for some discussions but nothing was decided. She said they were the young people in the room and they did not make any decisions. She conceded that she received $24,000 and a camera collection and a coin collection.
There was some controversy over a subpoena which was issued to Ms U to produce documents with respect to her husband’s estate. She says the wife’s solicitor advised her to get another solicitor and she did so, she thought an objection had been lodged to the subpoena. The wife’s counsel said that he was not briefed with the subpoena and he had no idea that it had been issued. He said he was instructed that the objection had been lodged and determined. As it turned out, this was not correct. It became apparent that whilst an objection had been included with the subpoena when returned to the Court, it had not been brought to the attention of the registry staff and was not filed with the Registry which the form itself clearly states is required. As a consequence, the objection was never dealt with. It is remiss of the lawyers in this case and Ms U’s lawyer that none of them followed up on this issue and it took up unnecessary Court time. Upon further inquiry, it became apparent that the wife’s solicitors had changed address and had not received correspondence because of a faulty redirection. It was for this reason that he had not received the subpoenas issued by the husband’s solicitor.
The husband did not pursue the subpoena issued to the wife’s mother before the hearing. I am not satisfied that the wife is entitled to any inheritance from her father.
An extract of the submissions the husband made to the Child Support Agency were quoted to him (p.234). He told the Agency that the wife, as director of (business omitted), received money from contracts with (business omitted) and others. This is clearly misleading and I find was designed to mislead the Child Support Agency.
Spouse maintenance
On 8 April 2013, Judge Harman ordered the husband to pay the wife interim spousal maintenance. I set out the order in full:
(19) In relation to the financial aspect of the matter, the husband shall until such time as an administrative assessment of child support is issued and the first payment with respect thereto made (as described hereafter) pay to the wife by way of interim spouse maintenance the sum of $750 per week, first payment within seven days of today’s date, thereafter weekly. Such payment to be made direct to the wife or as she may direct in writing.
(20) Payments with respect to the above order shall cease and the order shall be taken to be discharged as and from the issue of a child support assessment and the first payment there under as defined herein:
a) The parties shall each forthwith and within seven days make application to the Child Support Agency for an administrative assessment of child support payable by the husband to the wife with respect to the three children of the marriage and on the basis of the care arrangements provided for those children herein and noting the child of Mr Millson (A) as a dependent child in the care of Mr Millson (whether fulltime or otherwise) rather than as a separate child support case.
b) Child support shall be assessed on not less than the income derived by Mr Millson from his employment with (business omitted) of (omitted) and as disclosed in his contract of employment.
c) It is not intended by the above to suggest that the child support registrar is in any way fettered in their exercise of jurisdiction and the above order is intended to avoid uncertainty for the parties and if further not intended to prescribe the information they may choose to provide to the child support registrar.
d) I note that the court is advised today that the Child Support Agency has advised Mr Millson that on the basis of care arrangements that applied prior to today’s determination (which saw the children in Mr Millson’s care for less time than is presently the case) that his assessed liability would be in the order of $445 per week.
e) Irrespective of the assessment that is issued by the Child Support Agency and any other provision contained within this order, the liability to pay spouse maintenance as above shall terminate if and only if an administrative assessment of child support is issued within the above anticipated range and being an amount of not less than $440 per week.
The husband sent a text to the wife complaining that he had not received the wife’s details for her ‘spousal wine’ payment. This is typical of the tone of his communication with the wife and her lawyers. It was unnecessary, provocative and petty.
The wife is studying for a (qualifications omitted) in (course omitted). She has two more subjects to finish in the early part of this year. She started the course after the parties separated. The wife applied for three jobs since separation and says she did not receive a reply to any of them.
The wife says she is hoping that she will work with (business omitted) once she has completed her (qualifications omitted). She says they have been talking all year and it will be part-time work. Whilst there is the potential for work within that organisation, it is not certain. The wife’s claims that despite the certificate she has, in order to work with the (businesses omitted), you need to have many years of experience. She does not feel confident that she has the necessary experience.
The wife claims that the husband wrote her CV and that he exaggerated her qualifications. She says he bought her (qualifications omitted) from other (businesses omitted) that were closing down. She claims she did not actually do the (qualifications omitted). The wife conceded working for a (omitted) business in Australia.
From my reading of the order, it is clear that the purpose of the order was to ensure that there was no period where the wife was without funds. The husband was obliged to pay $750 until there was a child support assessment in place of an amount not less than $440 a week. The fact that the assessment issued for nil does not alleviate him of his obligation to pay $750. The husband did not even pay $440. He paid nil.
I do not accept the husband’s submission. The order is clear on its face. The husband was obliged to pay maintenance until there was a child support assessment in place requiring the husband to pay at least $440 a week. The husband and his advisors were in Court on the day Judge Harman made the orders.
The wife seeks an order that the husband pay arrears of maintenance for the period 15 April 2013 to 28 October 2013 which amounts to $21,000. The husband should have complied with the order but the difficulty is the wife did not seek to enforce the order. This case was back in court for interlocutory issues on at least two occasions since the interim spouse maintenance order was made. The purpose of a periodic maintenance is to provide a party with ongoing financial support. Lump sum orders are unusual. The other difficulty is that there is no source of funds that the wife points to from which the husband can pay the arrears as a lump sum.
I then have to consider whether or not to make a final maintenance order. The wife seeks an order that the husband pay her maintenance in the sum of $1,000 per week until 31 December 2015. The wife has made a token effort at best to find employment. Both parties’ financial positions moving forward are uncertain. The husband is hopeful of receiving more income now that his (business omitted) has launched. He will also have responsibility for debts associated with the business as well as personal debt.
At least in the short term, the husband will be in a stronger income position than the wife. I refer to my earlier comments with respect to the husband’s financial statement.
The husband started paying child support to the wife in November as the final hearing was looming the following month. He seeks credit for this. Given his conduct, I am not confident that he will continue to pay child support voluntarily.
In the circumstances and given that I am not satisfied that the husband has properly disclosed his income, I am going to order the husband to pay the arrears of maintenance owing but will order that he pay it by instalments of $500 per week for 42 weeks.
I am satisfied on the material before me that it would be proper to make a final maintenance order.
Other witnesses
Supporting witnesses for the wife Ms H, Ms K, Ms I and Pastor X were not required for cross-examination. Their affidavits do not assist me in determining the issues in dispute between the parties.
The wife’s mother Ms U was cross-examined.
I can place little weight on much of the content of the affidavit of Ms U filed on 8 November 2013 because inadmissibility of much of its contents. It contains much comment and conclusion and fails to set out conversation in direct speech. Ms U filed a further affidavit on 25 November 2013. She complains that the husband sent her a text on 21 November 2013 which she found to be offensive. It stated “you are ‘Ms U’ in everyway.” She says he knows she hates being referred to as that. The husband admitted during cross-examination that he does this because he knows she does not like it.
Ms U denied that the husband had any involvement in the negotiations with respect to the land development in (country omitted).
Conclusion with respect to financial issues
I find that joint assets and liabilities of the parties are:
Assets and liabilities
Value
(omitted) Bank visa $2,343 (omitted) Bank Mastercard $6,252 Credit card groups $35,000 (omitted) Bank visa $600 ATO personal tax $10,284 (business omitted) $3,500 Centrelink $18,000 (business omitted) $45,899.11 Total $120,899.11
I am not satisfied that all the business debts the husband claims are payable will crystallise. This is particularly the case with respect to the director’s loans.
I have some doubts about the other business debts. I take them into account when considering section 75(2)(o). He has not received formal letters of demand. There are no court proceedings on foot in relation to the debts.
I also take into account the fact that the husband failed to comply with the maintenance order which was made. This factor favours the wife as she was deprived of an income and also received no child support during that period.
Whilst the husband’s financial position is unclear, he is in a stronger position than the wife. He has continued to receive significant sums paid to his business and is managing to pay a significant sum in rent each week as well as other expenses. The husband’s (business omitted) has now launched.
Taking into account the factors I have discussed pursuant to section 75(2), I find that the husband should take on a greater proportion of the joint debts.
The husband will be solely responsible for his credit card debt, the ATO debt and the (business omitted) debt. In addition, he will be responsible for 65% of the (business omitted) debt.
The wife will be responsible for the Centrelink debt, her visa card debt and 35% of the (business omitted) debt.
In all of the circumstances, I am satisfied that the orders I am making are just and equitable.
I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 18 February 2014
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