Muir & Rodelo (No 2)
[2023] FedCFamC1F 845
•6 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Muir & Rodelo (No 2) [2023] FedCFamC1F 845
File number: SYC 925 of 2019 Judgment of: HENDERSON J Date of judgment: 6 October 2023 Catchwords: FAMILY LAW – CHILDREN – Where there are three children of the marriage – Parental responsibility – Presumption of equal shared parental responsibility – Where the mother seeks sole parental responsibility – Family violence – Finding the father has perpetrated family violence upon the mother and his current partner – Presumption rebutted – Order made for the mother to have sole parental responsibility – With whom a child lives – Order made for the children to live with the mother who holds sole parental responsibility – With whom a child spends time with – Where the findings of family violence against the father include physical, sexual, verbal abuse, and coercive and controlling conduct – Unacceptable risk – Consideration of risk posed by the father to the children – Where the father acts in a vengeful manner – Amelioration of risk – Orders made for day-time only during the school term, separate days during school holidays and special events.
FAMILY LAW – CHILD SUPPORT – Application for departure – Where the mother sought a departure order for expenses relating to schooling, medical and extra-curricular activities – Where the mother also sought a lump sum payment order for past expenses – Lump sum order refused and is to be considered as a post-separation contribution – Consideration of factors required for a departure order – Finding an order is in the interest of both parties – Finding of special circumstances – Departure order made for the father to pay half of expenses of schooling expenses including school fees – Departure order made for half of medical expenses not covered by Medicare or a private health fund to be paid by father.
FAMILY LAW – COSTS – Child representative – Where the costs sought were for the last six days of hearing – Orders made as sought by the Independent Children’s Lawyer.
FAMILY LAW – INJUNCTIONS – Protection of child – Personal protection – Where the mother and Independent Children’s Lawyer sought various injunctions against the father in relation to her and the children – Where injunctions sought a power of arrest – Where the Court has found the father has engaged in coercive and controlling behaviour – Where the Court has previously been required to issue recovery orders in relation to the children – Orders made as sought by the mother and Independent Children’s Lawyer – Preservation of property – Where the wife sought injunctions relating to a property if she is appointed as trustee for its sale against the husband – Orders made as sought by the wife.
FAMILY LAW – JURISDICTION – Whether the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”) has jurisdiction to hear applications under the Child Support (Assessment) Act 1989 (Cth) (“CSAA”) – Consideration of the effect of proceedings transferred pursuant to section 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Catling & Gould [2022] FedCFamC1F 233 applied – Finding that Division 1 has jurisdiction to hear the application under the CSAA.
FAMILY LAW – PROPERTY – Addbacks – Where both parties sought addbacks – Where the addbacks included a partial property settlement and utilisation of cryptocurrency – Partial property settlement figure added back to the property pool – Where cryptocurrency was transferred unilaterally and hidden – Finding the husband effected the transfers – Finding the husband has engaged in subterfuge – Cryptocurrency added back to the property pool and attributed to the husband.
FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Where the husband made a superior initial contribution – Where the contributions during the marriage were equal – Where the wife made greater contributions both financially and to the care of the children post-separation in circumstances where she also suffered from psychological vulnerabilities – Where the Court does not accept the husband has disclosed all his assets including cryptocurrency – Division assessed to be 55 per cent in favour of the wife – Future needs – Where the wife has effective sole care of the children due to the risk of harm posed by the husband – Adjustment of 5 per cent in favour of the wife – Just and equitable – Finding the orders made are just and equitable.
FAMILY LAW – WITNESSES – Credibility – Where multiple instances of the respondent’s evidence was found to be false and misleading – Finding the respondent to have no credibility – Credit of the respondent impugned.
Legislation: Australian Passports Act 2005 (Cth) s 11(1)(a).
Child Support (Assessment) Act 1989 (Cth) ss 4, 4(1), 4(2)(c), 98X, 99, 99(1), 116, 116(1), 116(1)(b), 116(1)(b)(i), 116(2), 117, 117(1)(a), 117(2), 117(2)(b), 117(2)(b)(ia), 117(2)(b)(ii), 117(4), 117(5), 117(5)(a), 123.
Evidence Act 1995 (Cth) s 140(2).
Family Law Act 1975 (Cth) ss 4AB, 4AB(1), 4AB(3), 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(ca), 60CC(3)(e), 60CC(3)(f), 60CC(3)(i), 60CC(3)(k), 61DA(1), 61DA(2), 61DA(4), 65DAA, 68B, 68C, 75(2), 75(2)(a), 75(2)(b), 75(2)(c), 75(2)(d), 75(2)(e), 75(2)(na), 79, 79(2), 79(4), 79(4)(a), 79(4)(b), 79(4)(c), 79(4)(e), 79(4)(g), 102NA, 106A, 114, 117.
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 25(1)(b), 50, 52, 149.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.12(6)(a)(i), 1.12(6)(a)(ii), 1.13, 1.13(1)(a), 1.13(4), 1.13(4)(c).
Cases cited: Babbit & Babbit (2011) 46 Fam LR 77; [2011] FamCAFC 151.
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116.
Black and Kellner (1992) FLC 92-287; [1992] FamCA 2.
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
Carter & Wilson (2023) FLC 94-129; [2023] FedCFamC1A 9.
Catling & Gould [2022] FedCFamC1F 233.
Chaves & Chaves [2019] FamCA 1022.
Chaves & Chaves [2020] FamCA 418.
Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208.
Cleaves & Cleaves [2021] FamCA 571.
Ferraro and Ferraro (1993) FLC 92-335; [1992] FamCA 64.
Giunti and Giunti (1986) FLC 91-759; [1986] FamCA 15.
Gyselman and Gyselman (1992) FLC 92-279; [1991] FamCA 93.
Hides v Hatton (1997) FLC 92-759; [1997] FamCA 28.
Illgen & Yike [2018] FamCA 17.
Lemongrove Services Pty Ltd v Rilroll Pty Limited [2019] NSWCA 174.
Muir & Rodelo [2022] FedCFamC1F 1023.
Nevins & Urwin (2022) FLC 94-084; [2022] FedCFamC1A 57.
Omacini and Omacini (2005) FLC 93-218; [2005] FamCA 195.
Oriolo and Oriolo (1985) FLC 91-653; [1985] FamCA 54.
Panagi & Panagi [2021] FedCFamC1F 135.
Pierce v Pierce (1999) FLC 92-844; [1998] FamCA 74.
Provis & Wharton [2013] FCCA 1854.
Saberton & Saberton [2013] FamCAFC 89.
Sheahan and Sheahan (1993) FLC 92-375; [1993] FamCA 21.
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52.
State of New South Wales v Shepherd [2019] NSWCA 261.
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173.
Turner & Turner and Anor (2016) FLC 93-719; [2013] FamCAFC 121.
Wei & Xia (No 5) [2023] FedCFamC1F 679.
Weir and Weir (1993) FLC 92-338; [1992] FamCA 69.
Macquarie Dictionary (Macquarie Dictionary Publishers, 8th edition, 2020).
Division: Division 1 First Instance Number of paragraphs: 442 Date of last submissions: 3 May 2023 Date of hearing: 9–13 May 2022, 15 July 2022, 28–29 September 2022, 11–14 April 2023 Place: Sydney Counsel for the Applicant: Ms Gillies SC Solicitor for the Applicant: Holmes Donnelly and Co Solicitors Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: Beswick Lynch Lawyers Counsel for the Independent Children’s Lawyer: Ms Shea Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
SYC 925 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MUIR
Applicant
AND: MR RODELO
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
6 OCTOBER 2023
THE COURT ORDERS THAT:
1.In these orders, the following definitions shall apply:
(a)“the mother” and “the wife” mean the Applicant, Ms Muir; and
(b)“the father” and “the husband” mean the Respondent, Mr Rodelo.
Parenting
2.All previous orders in relation to X born 2009, Y born 2011, and Z born 2015 (collectively referred to as “the children”), are discharged.
3.The mother shall have sole parental responsibility for the children.
4.The children shall live with the mother.
5.Commencing the weekend of 21–22 October 2023, and subject to Order 6, the children shall spend time with the father as agreed in writing, and failing agreement, as follows:
(a)One day each alternate weekend from 10.00am until 7.00pm, with the day to be as agreed in writing, and failing agreement, to be a Sunday, and this time continues during school holidays;
(b)Each Wednesday during the school holidays from 8.00am until 7.00pm;
(c)From 9.00am until 2.00pm on the following days:
(i)Christmas Day in odd-numbered years; and
(ii)Boxing Day in even-numbered years.
(d)On the father’s birthday, if the day falls on a school day, from after school until 7.00pm, and if on a non-school day, from 10.00am until 7.00pm;
(e)On the birthday of Ms D, if the day falls on a school day, from after school until 7.00pm, and if on a non-school day, from 10.00am until 7.00pm;
(f)On the birthday of the children’s brother, Mr F, if the day falls on a school day, from after school until 7.00pm, and if on a non-school day, from 10.00am until 7.00pm; and
(g)On Father’s Day, from 10.00am until 7.00pm.
6.In the event the children’s time with the father falls on Mother’s Day, the children shall spend time with the father on the Saturday in lieu of Sunday.
7.In the event the mother elects to take the children on a holiday, whether within or outside the Commonwealth of Australia, the children’s time with the father is suspended on the condition that the mother provides written notice at least 28 days prior to the commencement of the holiday period that she intends to take.
8.In the event the mother elects to take the children on a holiday during the summer school holidays, the children’s time with the father is suspended on such conditions:
(a)The mother provides written notice at least 28 days prior to the commencement of the holiday period she intends to take;
(b)The period of suspension is for no longer than 22 days; and
(c)The period of suspension does not impact the children’s time with the father provided in Order 5(c).
9.Changeover shall occur with the mother, or her agent, to deliver the children to the father’s place of residence when his time is to commence, and the father, or his agent, to deliver the children to the front gate of the mother’s place of residence when his time ceases, and each parent or their agent will remain in their vehicle, and neither parent shall approach the other at any time.
10.Pursuant to section 68B of the Family Law Act 1975 (Cth), the father, Mr Rodelo born 1975, whether himself, his agents or servants, is restrained by injunction from:
(a)Removing, taking possession or attempting to remove or take possession, custody or control of any of the children and/or from causing the children to be removed from their mother’s care;
(b)Attending or coming within 50 metres of the mother’s place of residence or any place she may attend from time to time on any occasion except to effect changeover in accordance with Order 9;
(c)Subject to Order 20, attending or coming within 50 metres of the children’s school(s) whilst they are in attendance at their respective schools, unless by invitation, in writing, from the mother or the school principal; and
(d)Attending or coming within 50 metres of any location where any of the children are participating in a sporting or extra-curricular activity at any time except when the children are in his care pursuant to Order 5 inclusive or by written invitation from the mother.
11.Orders 10(a), 10(b), 10(c), and 10(d), are orders for the personal protection of the mother, Ms Muir born 1988, and the children, pursuant to section 68B of the Family Law Act 1975 (Cth) and bring into action the terms of section 68C of the Family Law Act 1975 (Cth), which authorises a police officer to arrest the father without warrant in the event that the police officer believes on reasonable grounds that the father has breached the injunction by causing, or threatening to cause, bodily harm to the mother and/or any of the children, or harassing, molesting or stalking the mother and/or any of the children.
12.Pursuant to section 68B of the Family Law Act 1975 (Cth), the parties, whether themselves, their agents or their servants, are restrained by injunction from:
(a)Denigrating the other party, or a relative or partner of the other party to, in the presence of, or in the hearing of the children, and each party shall use their best endeavours to ensure that no third party denigrates the other party, or a relative or partner of the other party to, in the presence of, or in the hearing of the children; and
(b)Discussing these proceedings in the presence or hearing of any of the children or showing any of the children any document in relation to these proceedings.
13.Subject to Order 32, for the purposes of these orders, the parties are to only contact each other using the My Family Wizard application, with each party to ensure that:
(a)They pay their share of the subscription to that service; and
(b)Any communication is polite and respectful of the children and of each other.
14.Each party is to notify the other as soon as practicable in the event any of the children suffers from a major illness or long-term injury while in that party’s care.
15.In the event any of the children are hospitalised or are receiving any urgent medical attention, only the mother may attend and remain with the child, and in the event hospitalisation occurs in the father’s time, the father must immediately leave the premises upon the mother’s arrival and is not permitted to stay unless invited, in writing to do so, by the mother.
16.The mother is to inform the father, in writing, of any sporting and/or extra-curricular activities that each child are to attend which fall during their time with the father within 48 hours of being notified of same.
17.The father is to ensure that the children attend their sporting and extra-curricular activities that fall during his time with them.
18.The mother is to do all acts and things necessary to authorise each child’s school to provide directly to the father a copy of the children’s school reports and school photograph forms.
19.The father is permitted to access the school portal at each child’s school from time to time.
20.The father is at liberty to attend each child’s end-of-year school presentation day, on the condition that:
(a)He provides the mother with 7 days’ notice in writing that he intends to attend; and
(b)He does not approach the mother or engage in any intimidating behaviour towards her.
21.The mother shall have possession of and hold the children’s passports.
22.Within 7 days of the date of these orders, the mother is to provide to the father a photocopy of the page of the children’s passports with the passport number and the child’s details.
Property
23.Within 60 days of the date of these orders, the husband is to pay to the wife the sum of $723,176, and thereafter the property situated at G Street, Town C, New South Wales (“the Town C property”) is to be the husband’s property absolutely.
24.In the event the husband fails to comply with Order 23, the Town C property is to be sold, and the wife is appointed as the trustee for the sale of the Town C property and the husband is to sign any document and do any acts necessary to ensure the wife has full power to enable her to carry out her role as trustee for the sale of the Town C property.
25.Pending settlement of the sale of the Town C property, the husband is solely liable and responsible for and shall cause to be paid:
(a)All outgoings on the Town C property, including but not limited to, all mortgage repayments, rates, taxes, and the like, as and when they fall due;
(b)Apply any rental income received from the Town C property to the outgoings on that property, or in compliance with Order 30 herein; and
(c)Account to the wife for the rental income receive between the date of these orders and the date of settlement of the Town C property.
26.Within 72 hours of the wife’s appointment as trustee, the husband is to provide to the wife all keys, alarm codes, passwords, and any other access item required to provide the wife with total and unfettered access to the Town C property, together with an index, in writing, of all keys and access items otherwise held by any tenants, by causing these items to be delivered to the office of the wife’s solicitors.
27.Within 7 days of the wife’s appointment as trustee, the husband is to give any and all notice, including written notice, to any tenant or occupant of the Town C property that the property is to be sold.
28.Within 14 days of the wife obtaining an agent to sell the Town C property, the husband is to transfer the sum of $50,000 to her to pay for any necessary completion of works and/or repairs to the Town C property, including obtaining a Building Information Certificate, with the husband to be re-imbursed as to 50 per of this sum from the proceeds of sale.
29.The wife is to provide a copy of all invoices in relation to the works and/or repairs required to be undertaken pursuant to Order 28 to the husband within 48 hours of receipt of same.
30.In the event further funds are required to complete any works and/or repairs to the Town C property, the wife is to provide the husband with any quote(s) for the additional costs, and the parties are to share those costs equally, with the husband to pay the wife 50 per cent of the sum(s) quoted within 72 hours.
31.The wife is to advise the husband as soon as practicable of the following in respect of the Town C sale:
(a)The reserve price and the sale price;
(b)The date of exchange of the contract for sale;
(c)The likely date of settlement; and
(d)A copy of the first page of the contract of sale.
32.Any communication the wife is required to engage in with the husband is to occur via the My Family Wizard application, or if the wife deems appropriate, by email correspondence.
33.Notwithstanding the ultimate sale price of the Town C property and for the purposes of calculating the parties’ entitlement pursuant to these orders, the sale price is deemed at $1,400,000.
34.Upon completion of the sale of the Town C property, the wife is to receive the sum of $723,176 less $25,000 and one half of any capital gains tax assessed to be paid upon sale, and the balance is to be paid to the husband less one half of the assessed capital gains tax.
35.The funds withheld to pay assessed capital gains tax shall be held in an interest-bearing account in both parties’ names by the wife’s solicitors until the tax becomes payable when it is to be paid to the Australian Taxation Office by the wife’s solicitors, and any surplus funds in the account after payment of the capital gains tax is to be paid to the parties equally.
36.Upon the wife being appointed as trustee for sale, and pursuant to section 114 of the Family Law Act 1975 (Cth), the husband, Mr Rodelo born 1975, whether himself, his agents or servants, is restrained by injunction from:
(a)Doing any act or thing to change or restrict the wife’s access to the Town C property or any part of that property;
(b)Causing or permitting any dealing with respect to the Town C property, and his interest therein, including but not limited to by way of transfer, assignment, charge or encumbrance;
(c)Causing or permitting any increase in the amount owing on any facility secured over or by reference to the Town C property;
(d)Causing or permitting any person or entity to obtain any interest in or entitlement in or by reference to the Town C property, whether in equity, pursuant to the Family Law Act 1975 (Cth), the Property (Relationships) Act 1984 (Cth), or otherwise;
(e)Causing the current mortgage with the Commonwealth Bank of Australia …10 to exceed $308,074;
(f)Attending the Town C property except to attend any auction; and
(g)Contacting the agent appointed to sell the Town C property or any putative purchaser.
37.Except as specifically provided for by these orders, the wife is the sole owner of and the husband has no interest in:
(a)All bank accounts in the wife’s name;
(b)The wife’s motor vehicle;
(c)The wife’s superannuation entitlements; and
(d)All other property and financial resources of whatsoever nature and kind in the possession or ownership of the wife at the date of the making of these orders and in the future.
38.Except as specifically provided for by these orders, the husband is the sole owner of and the wife has no interest in:
(a)All real property in the husband’s name, including but not limited to the property known as H Street, Suburb E, New South Wales;
(b)All bank accounts in the husband’s name;
(c)The husband’s shareholdings;
(d)The husband’s motor vehicle;
(e)The husband’s superannuation entitlements; and
(f)All other property and financial resources of whatsoever nature and kind in the possession or ownership of the husband at the date of making of these orders and in the future.
39.Except as specifically provided for by these orders:
(a)The husband shall indemnify the wife from and in respect of all actions, claims, pursuits and demands as may be made against the wife in relation to all liabilities in the name of the husband; and
(b)The wife shall indemnify the husband from and in respect of all actions, claims, pursuits and demands as may be made against the husband in relation to all liabilities in the name of the wife.
40.Pursuant to section 106A of the Family Law Act 1975 (Cth), in the event the husband neglects, refuses or is unable to sign any document required for the execution of these orders, the wife may approach a Registrar of the Federal Circuit and Family Court of Australia for the Registrar to execute the deed or instrument in the name of the husband.
Child Support
41.Pursuant to section 117 of the Child Support (Assessment) Act 1989 (Cth), the Court makes a departure order, and the father is to pay, in addition to periodic child support as assessed from time to time, the following:
(a)In respect of education related costs and expenses for each child, 50 per cent of the following costs:
(i)All school fees, enrolment fees and non-refundable deposits, tuition fees and levies;
(ii)All school uniforms, school shoes, sports uniforms and sport shoes costs;
(iii)All excursion costs and expenses, including school camps;
(iv)All stationary, textbooks and computers; and
(v)All school computing equipment, music equipment, drama classes, sporting equipment and participation costs.
(b)In respect of medical expenses relating to the children, in the event that the following children’s medical expenses are not covered by private health insurance or Medicare, 50 per cent of all costs incurred in respect of treatment by general and specialist practitioners, orthodontic, dental, emergency services, medical, hospital, pharmaceuticals, physiotherapy, speech therapy, occupational therapy, paediatric and psychological services.
42.All non-periodic payments made by the father in respect of the children’s education or schooling costs, pursuant to Order 41 hereof, are to be paid directly to the children’s current school(s), or any other school the children attend which is presently:
(a)J School, Suburb K;
(b)L School, Suburb M; and
(c)N School, Suburb P.
43.All non-periodic payments made by the father pursuant to Order 41 are to be paid to the provider upon receipt of an invoice as and when due, and in the event the mother has paid these costs in whole in the first instance, the father will reimburse the mother in respect of same within 7 days of the mother providing the relevant invoice, account or receipt confirmation to the father.
44.Within 7 days of the date of these orders, the mother is to serve the Child Support Registrar with a copy of these orders and Reasons for Judgment.
45.Orders 41–43 inclusive are stayed for 35 days.
46.In the event the Child Support Registrar has previously been provided notice of the mother’s application under the Child Support (Assessment) Act 1989 (Cth), then the stay in Order 45 is lifted.
Costs
47.Within 60 days of these orders, the parties are to each pay costs in respect of the Independent Children’s Lawyer in the sum of $8,640.50 AND THE COURT NOTES the mother has paid her initial contribution of $1,650.00, lowering the costs payable by her to $6,990.50.
Miscellaneous
48.Each party shall notify the other party of any change of address or contact details, including but not limited to an email address and mobile phone number, no less than 14 days prior to any change of address or contact details.
49.Leave is granted to Ms Muir to provide a copy of these orders and/or these Reasons for Judgment to any of the following:
(a)Any medical practitioner she or the children attend now or in the future;
(b)Any school or after-school care the children attend;
(c)The selling agents of the Town C property; and
(d)Any police station or police officer.
AND THE COURT NOTES THAT:
A.The mother has no objection to Ms D contacting her on any occasion to discuss issues concerning the children and/or being the father’s agent to return the children to her. The mother seeks that in an emergency concerning the children, Ms D be her initial point of contact.
B.Pursuant to sections 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in ‘Annexure A’ and those particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Muir & Rodelo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
[1]
THE HEARING
[6]
DOCUMENTS AND EXHIBITS
[9]
THE PARTIES’ POSITIONS[11]
CHRONOLOGY
[15]
THE EVIDENCE AND DISCUSSION
[77]
Credit findings
[77]
Events arising from the NSW Police subpoena
[101]
Mr Rodelo’s historical allegations against
[103]
Ms D’s allegations against
[104]
Emails between Mr Rodelo and
[108]
Dr B’s evidence
[112]
Evidence apart from violence impacting upon an order for sole parental responsibility
[179]
Mr Rodelo’s enrolment of the children in sport in
[179]
The before- and after-school care voucher
[182]
Cryptocurrency
[185]
The Town C property and the occupation certificate
[219]
THE LAW AND DISCUSSION
[227]
Parenting
[227]
Family violence
[230]
Parental responsibility
[238]
Time with
[242]
Primary considerations
[245]
Additional considerations
[249]
Conclusion
[258]
Changeover
[262]
Injunctions and arrest power
[263]
Communication, notification, and information sharing
[269]
Child-parent communication
[269]
Parent-parent communication
[271]
Notification
[274]
Extra-curricular activities
[281]
Passports
[282]
Child support
[285]
Jurisdiction for Division 1 of this Court to hear an application from the CSAA
[290]
Jurisdiction to make a departure order
[299]
Interests of both the liable parent and the carer entitled to child support
[301]
Special circumstances
[312]
Should a departure order be made?
[315]
Grounds for a departure order
[318]
Just and equitable
[326]
Otherwise proper
[328]
Conclusion
[329]
Property
[332]
The preliminary pool of assets for division
[333]
Determining the pool of assets for division
[334]
Addbacks
[350]
Liabilities
[393]
The pool of assets for division
[396]
Identification and evaluation of contributions to the property of the parties
[397]
Initial contributions
[397]
Contributions during the relationship
[401]
Post-separation contributions
[408]
Identification and assessment of the various matters in section 79(4)(d)–(g):
[413]
Consideration of matters of justice and equity
[434]
Injunctions
[435]
COSTS
[437]
CONCLUSION
[442]
HENDERSON J:
INTRODUCTION
The matter of Muir and Rodelo is an unfortunate and sad matter. The parties have three children, X, Y, and Z (collectively referred to as “the children”), and the litigation between the parents has been protracted and bitterly fought. The length of the hearing was, in many respects, due to the conduct of Mr Rodelo.
After the first tranche of the hearing in May 2022, the matter returned for submissions on 15 July 2022. The day prior, I granted leave to Ms Muir to issue a subpoena to NSW Police. The information contained in the documents produced under subpoena was explosive. I agreed with the position of Ms Muir and the Independent Children’s Lawyer (“ICL”) at that time to suspend Mr Rodelo’s time with the children and for the hearing to be re-opened.
Mr Rodelo left the Court that day with orders denying him any time with his much-loved children or contact with Ms Muir. Prior to that date, he had been spending time with the children, including overnight time, for three nights per fortnight and was seeking an order for equal time on a final basis. Ms Muir had sought an order that the then current regime of time continue but was cognisant of and open to the opinion of the expert, Dr B, that four nights per fortnight in Mr Rodelo’s care was an order the children would benefit from. This was a position the ICL was supportive of and was clearly an order the Court would have contemplated as an order in the children’s best interests.
The genesis of the draconian interim orders was Mr Rodelo’s inability to control his behaviour when he believes an injustice had been perpetrated upon him and to act violently, coercively, and vengefully against those he is in a personal relationship with; Ms D on this occasion. This inability was apparent from the records produced by NSW Police. These personality traits and concerning behaviours became apparent to Dr B after the preparation of his third report and from his reading of these police records.
An inability to control behaviour and act vengefully is a concerning trait for any adult, let alone a parent of a child. An inability to accept that you have engaged in such behaviour or that your behaviour is unacceptable is also a concerning trait for any adult, let alone a parent of a child. These Reasons for Judgment will show that this is a forceful trait evident in Mr Rodelo’s functioning and behaviour towards Ms Muir, the mother, and Ms D, his current partner.
THE HEARING
The hearing occurred over 12 days:
(1)From 9 to 13 May 2022 for the scheduled hearing; then
(2)On 15 July 2022, for submissions and at which time the hearing was re-opened and Mr Rodelo’s time suspended; then
(3)On 28 and 29 September 2022, where the hearing was listed for three days, but was adjourned due to an injury to counsel. Orders were made at this time for Mr Rodelo to spend supervised time with the children; and then
(4)From 11 to 14 April 2023, when the hearing was finalised.
Ms Muir was represented by Ms Gillies of senior counsel, Mr Rodelo by Mr Livingstone of counsel, and the ICL by Ms Shea of counsel.
The following people gave evidence:
(1)For Ms Muir:
(a)On two occasions, Ms Muir; and
(b)On one occasion, Mr R, a single expert who gave evidence regarding the parties’ cryptocurrency.
(2)For Mr Rodelo:
(a)On two occasions, Mr Rodelo; and
(b)On one occasion, Ms D.
(3)For the ICL:
(a)On two occasions, Dr B, the Family Report writer.
DOCUMENTS AND EXHIBITS
The material read was as follows:
(1)For Ms Muir, as contained in her Court Book and Supplementary Court Book:
(a)Case Outline filed 22 April 2022, and updated on 10 April 2023;
(b)3rd Further Amended Initiating Application filed 16 February 2022;
(c)Financial Statement filed 20 April 2022;
(d)Financial Statement filed 3 April 2023;
(e)Affidavit of Ms Muir (and annexures) filed 16 February 2022;
(f)Affidavit of Ms Muir (and annexures) sent to the Court on 15 July 2022;
(g)Affidavit of Ms Muir (and annexures) filed 21 September 2022;
(h)Affidavit of Ms Muir (and annexures) filed 21 March 2023;
(i)Affidavit of Dr S (and annexures) filed 12 June 2019; and
(j)Affidavit of Mr R (and annexures) filed 17 February 2022.
(2)For Mr Rodelo, as contained in his Court Book and Supplementary Court Book:
(a)Case Outline dated 19 April 2022, and updated on 11 April 2023;
(b)5th Further Amended Response to Initiating Application filed 19 April 2022;
(c)6th Further Amended Response to Initiating Application filed 4 April 2023;
(d)Financial Statement filed 21 March 2022;
(e)Financial Statement filed 30 March 2023;
(f)Affidavit of Mr Rodelo (and annexures) filed 21 March 2022;
(g)Affidavit of Mr Rodelo (and annexures) filed 6 July 2022;
(h)Affidavit of Mr Rodelo (and annexures) filed 12 August 2022;
(i)Affidavit of Mr Rodelo (and annexures) filed 20 September 2022;
(j)Affidavit of Mr Rodelo (and annexures) filed 28 March 2023; and
(k)Affidavit of Ms D filed 18 March 2022.
(3)For the ICL, as contained in her Court Book:
(a)Case Outline filed 22 April 2022;
(b)Family Report of Dr B dated 25 November 2019 (“the November 2019 report”);
(c)Family Report of Dr B dated 15 February 2022 (“the February 2022 report”); and
(d)Family Report of Dr B dated 24 August 2022 (“the August 2022 report”).
The documents tendered and marked as exhibits were numerous and voluminous. I do not propose to provide a complete list, in particular for exhibits that were bundles of documents produced under subpoena. The documents tendered and marked as exhibits were as follows:
(1)For Ms Muir:
(a)Case Outline filed 22 April 2022 (Exhibit M1);
(b)Subpoena issued by Mr Rodelo to T Company filed 31 January 2022 (Exhibit M2);
(c)A letter from T Company to Ms Muir regarding an offer of remuneration dated 21 October 2020 (Exhibit M3);
(d)A bundle of documents containing payslips issued by T Company to Ms Muir (Exhibit M4);
(e)Remuneration review statements for Ms Muir for the years 2019 and 2020 (Exhibit M5);
(f)NSW Police COPS narrative from an incident dated late 2015 (Exhibit M6);
(g)A screenshot of the withdrawal history from the U Finance account number …40 (Exhibit M7);
(h)A screenshot of the deposit history from the U Finance account number …40 (Exhibit M8);
(i)A summary report from Mr Rodelo’s cryptocurrency accounts titled “2021 Detailed Tax Report” (Exhibit M9);
(j)A transaction summary statement from Mr Rodelo’s V Finance account number …70 for the period 1 July 2018 to 9 March 2022 (Exhibit M10);
(k)Records of order history from the U Finance account number …40 (Exhibit M11);
(l)Items 3.1 to 3.20 as contained in Ms Muir’s Court Book (Exhibit M12);
(m)A schedule of subpoena material and the material contained therein to be relied upon (Exhibit M13);
(n)NSW Police COPS narratives involving Mr Rodelo from mid-2022 (Exhibit M14);
(o)A bundle of documents produced under subpoena by Q Organisation (Exhibit M15);
(p)A bundle of documents produced under subpoena titled “Supplementary Bundle of Subpoena Material sought to be relied upon by the Applicant Wife” (Exhibit M16);
(q)A bundle of documents containing the following (Exhibit M17):
(i)A document titled ‘[U Finance] Wallet Overview’ and a list of transactions dated from 15 May 2022 to 30 May 2022;
(ii)A Notice to Produce issued by Ms Muir to Mr Rodelo with a date of production for 11 April 2023; and
(iii)A single page list of responses in relation to the Notice to Produce dated 10 April 2023.
(r)A Notice to Produce issued by Ms Muir to Mr Rodelo with a date of production for 26 April 2022 (Exhibit M18);
(s)Financial Statements filed by Mr Rodelo on 21 March 2022 and 9 May 2022 (Exhibit M19);
(t)Further documents contained in the bundle of documents produced under subpoena titled “Supplementary Bundle of Subpoena Material sought to be relied upon by the Applicant Wife” (Exhibit M20);
(u)A tax summary report produced by W Finance for the period 1 July 2020 to 30 June 2021 (Exhibit M21);
(v)Minute of Order for parenting tendered on 14 April 2023 (Exhibit M22); and
(w)Minute of Order for property tendered on 14 April 2023 (Exhibit M23).
(2)For Mr Rodelo:
(a)Case Outline dated 19 April 2022 (Exhibit F1);
(b)Initiating Application filed 18 February 2019 (Exhibit F2);
(c)Case Outline prepared on behalf of Ms Muir filed 20 January 2020 and a Financial Statement of Ms Muir filed 9 May 2022 (Exhibit F3);
(d)A ROSH report prepared by the DOCS dated mid-2019 (Exhibit F4);
(e)A bundle of documents in relation to child support (Exhibit F5);
(f)A single page colour photograph (Exhibit F6);
(g)NSW Police COPS narrative with event reference number E …67 from an incident dated mid-2019 (Exhibit F7);
(h)Financial Statement of Ms Muir filed 9 April 2019 (Exhibit F8);
(i)Notes of Dr S dated 14 July 2021 and 21 September 2021 (Exhibit F9);
(j)An email from Beswick Lynch Lawyers to Holmes Donnelly Lawyers dated 21 April 2021 (Exhibit F10 and duplicated in Exhibit F11);
(k)Video footage from a mobile phone (Exhibit F12);
(l)Interim Apprehended Domestic Violence Order for Mr Rodelo dated early 2019 (Exhibit F13);
(m)Paragraph 24 of an affidavit of Mr Rodelo sworn 13 May 2020 and the corresponding annexure (Exhibit F14);
(n)Report of Dr AA in relation to X dated 27 October 2022 (Exhibit F15);
(o)Proof of Evidence for Mr Rodelo dated 11 April 2023 (Exhibit F16);
(p)An email from Ms BB to Mr Rodelo dated 7 June 2022 (Exhibit F17);
(q)‘GP Mental Health Care Review’ for X dated 28 October 2022 (Exhibit F18); and
(r)Email from Ms CC to Ms Muir dated 5 December 2022 (Exhibit F19).
(3)For the ICL:
(a)Amended Case Outline filed 5 May 2022 (Exhibit ICL1);
(b)Letter from Dr S to Dr DD dated 17 January 2022 (Exhibit ICL2);
(c)Minute of Order tendered on 13 May 2022 (Exhibit ICL3);
(d)Letter from Homes Donnelly Lawyers to Beswick Lynch Lawyers dated 6 April 2023 (Exhibit ICL4);
(e)Minute of Order dated 13 April 2023 (Exhibit ICL5); and
(f)Criminal record for Mr Rodelo dated 4 June 2019 (Exhibit ICL6).
(4)For the Court:
(a)Family Report of Dr B dated 25 November 2019 (Exhibit C1);
(b)Family Report of Dr B dated 15 February 2022 (Exhibit C2); and
(c)Family Report of Dr B dated 24 August 2022 (Exhibit C3).
THE PARTIES’ POSITIONS
Ms Muir’s ultimate position was as follows:
(1)In relation to parenting: she have sole parental responsibility for the children, that the children live with her and the children spend time with Mr Rodelo every third Sunday from 10.00am to 7.00pm, as well as specified days during the school holidays and on special occasions;
(2)In relation to property: a division of the pool of assets of 75 per cent in her favour, including findings that Mr Rodelo had possession of the cryptocurrency accounts, with a cash payment to reflect this division and in default of this, that the Town C property be sold, with Ms Muir being appointed as the trustee for its sale, with Mr Rodelo being financially responsible for the costs associated with preparing the property for sale; and
(3)In relation to child support: a departure order to the effect that Mr Rodelo would be required to pay half of all education-related, medical, and extra-curricular activity expenses for the children, and a lump-sum repayment for past expenses relating to the children.
Mr Rodelo’s ultimate position was as follows:
(1)In relation to parenting: the parties have equal shared parental responsibility, the children live with Ms Muir, and spend alternate weekends, half school holidays, and some special occasions with him. This became his alternate position as his counsel ultimately submitted that he sought to spend as much time as possible with the children, including overnight time and during school holidays;
(2)In relation to property: an equal division of the pool of assets for division, including findings that Ms Muir was in possession of the cryptocurrency accounts, that Mr Rodelo would retain the Town C property, a superannuation splitting order, and a cash payment from him to Ms Muir in two tranches; and
(3)In relation to child support: there be no departure order, and the child support he is currently assessed to pay and does pay, continues to be as assessed by the Child Support Agency from time-to-time.
Both parties sought orders in relation to costs. It is more appropriate that this be dealt with after these Reasons for Judgment are delivered should this be pressed.
The ICL sought orders that Ms Muir have sole parental responsibility for the children, the children live with Ms Muir, and spend time with Mr Rodelo each alternate Sunday from 10.00am to 5.00pm, specific days during the school holidays and some special occasions. The ICL also sought costs in the sum of $8,640.50 from each parent, noting Ms Muir has paid the initial contribution of $1,650.
CHRONOLOGY
In 1975, Mr Rodelo was born, and at the hearing’s conclusion was 47 years of age.
In 1983, Ms Muir was born, and at the hearing’s conclusion was 39 years of age.
In 2001, Mr Rodelo establishes his business, EE Pty Ltd, which provided consultancy services, of which he was the sole director.
In 2003, Mr Rodelo purchased the property at FF Street, Suburb GG, New South Wales (“the Suburb GG property”) with his partner at the time for $308,000.
In 2004, the parties commence cohabitation at the Suburb GG property. At this stage, Mr Rodelo has a 50 per cent interest in the Suburb GG property, which his share of the equity was worth approximately $17,500.
In late 2004, Mr Rodelo and his former partner enter into a Termination Agreement pursuant to the Property (Relationships) Act 1984 (NSW), causing Mr Rodelo to receive the other 50 per cent share in the Suburb GG property, inter alia.
In 2006, the parties marry.
In 2007, the parties purchase and move into the former matrimonial home, being the property at HH Street, Suburb K (“the Suburb K property”), with a purchase price of $697,000.
In 2007, the Suburb GG property is sold for $355,000, and approximately $100,000 of the net proceeds are applied toward the Suburb K property.
In 2008, EE Pty Ltd sold its 50 per cent share in JJ Pty Ltd for approximately $100,000. It appears that Mr Rodelo ceased operating EE Pty Ltd and commenced employment as a professional until 2010.
In 2009, X is born, and at the hearing’s conclusion was 14 years of age.
In 2010, Mr Rodelo commences employment with KK Company as a manager, which was his employment at the hearing.
In 2011, Y is born, and at the hearing’s conclusion was 11 years of age.
In 2014, Ms Muir is diagnosed with a mental health disorder by her psychiatrist, Dr S.
In 2015, the parties purchase the land at G Street, Town C (“the Town C property”), with a purchase price of $275,000. Between 2015 and 2019, a dwelling is built on the Town C property.
In 2015, Z is born, and at the hearing’s conclusion was 7 years of age.
In 2017, Ms Muir commences her employment at T Company as a manager, which was her employment at the hearing.
In late 2018, Ms Muir attends upon police reporting incidents of family violence perpetrated by Mr Rodelo.
The following day, an Interim Apprehended Domestic Violence Order (“ADVO”) was taken out against Mr Rodelo for the protection of Ms Muir.
The following month, Mr Rodelo was charged with multiple counts of assault.
In early 2019, Ms Muir tells Mr Rodelo that she wants to end the relationship.
The following day, Ms Muir was charged with assault and an ADVO taken out against her for the protection of Mr Rodelo. This date marks the parties separating on a final basis.
On 18 February 2019, Ms Muir files an Initiating Application in the Family Court of Australia (as it was then known) in relation to parenting only.
On 1 March 2019, the ICL was appointed.
On 9 April 2019, Ms Muir files an Amended Initiating Application, which added property matters.
In early 2019, a Final ADVO was taken out against Mr Rodelo for the protection of Ms Muir. Mr Rodelo was also found guilty of multiple charges of assault and sentenced to community service and a fine.
In mid-2019, the charges against Ms Muir are withdrawn and dismissed, and costs in the sum of $26,573.90 were ordered in favour of Ms Muir.
In mid-2019, Mr Rodelo is charged with breaching the Final ADVO after approaching Ms Muir at the children’s school.
On 19 August 2019, orders are made joining Mr Rodelo’s partner at the time, Ms Buckland, as a respondent and restraining her from completing the sale of the Town C property, and retraining Mr Rodelo from selling, transferring or otherwise dealing with the Town C property.
On 5 September 2019, orders are made appointing Dr B as a single expert witness and to prepare a report for the parenting proceedings.
In late 2019, Mr Rodelo’s appeal against the assault convictions and Final ADVO is dismissed.
The following month, Mr Rodelo is convicted for the breach of the Final ADVO.
On 22 October 2019, the parties attend mediation, which was unsuccessful. At this mediation, the parties agreed that the cryptocurrency should be sold, but this could not occur as Mr Rodelo failed to facilitate this sale as neither party’s legal representatives nor Ms Muir knew how to do so.
In late 2019, Ms Muir commences her relationship with Mr MM.
On 5 December 2019, the November 2019 report (the first report) of Dr B is released to the parties.
On 6 December 2019, Loughnan J delivers judgment,[1] ordering Mr Rodelo to vacate the Suburb K property and the Town C property, and that Ms Muir be appointed as trustee for both properties’ sale.
[1] Chaves & Chaves [2019] FamCA 1022 (Loughnan J).
On 16 January 2020, orders are made for Mr Rodelo to return the children to Ms Muir’s care by 6.00pm that day and an injunction made restraining Mr Rodelo from doing anything resulting in the children being removed from Ms Muir’s care.
Since February 2020, the parties have communicated exclusively through the Our Family Wizard application.
On 7 March 2020, the Suburb K property is sold for $1,650,000, and after all loans discharged and other settlement expenses paid, both parties received $304,000.
On 22 April 2020, orders are made for Mr Rodelo to return the children to Ms Muir’s care by 4.00pm that day. The need for this order a second time within three months is indicative of Mr Rodelo’s breach of the orders from 16 January 2020 restraining him from doing anything resulting in the children being removed from Ms Muir’s care.
On 28 April 2020, orders are made pursuant to section 102NA of the Act.
On 18 May 2020, orders are made suspending the orders from 6 December 2019 in relation to the sale of the Town C property, that Mr Rodelo have sole possession of that property and is restrained by injunction from selling that property, and further encumbrance of $181,000 be permitted for a partial property settlement paid to Ms Muir.
On 1 June 2020, Loughnan J delivers judgment,[2] varying the interim parenting arrangements for the children.
[2] Chaves & Chaves [2020] FamCA 418 (Loughnan J).
In early 2021, Mr Rodelo commences cohabitation with Ms D.
In early 2021, the Final ADVO protecting Ms Muir from Mr Rodelo expires.
On 18 August 2021, the matter is listed for hearing.
In mid-2021, the parties divorce.
In late 2021, Mr Rodelo and Ms D jointly purchase the property at H Street, Suburb E, New South Wales (“the Suburb E property”). This property was purchased involved obtaining a loan with a mortgage secured to the title of the Town C property. This was in breach of the orders made on 18 May 2020 orders.
In 2022, Ms D and Mr Rodelo’s child, NN, is stillborn.
On 15 February 2022, the February 2022 report (the second report) of Dr B is released to the parties.
On 13 May 2022, after the hearing, Mr Rodelo writes a letter of apology to Ms Muir, apologising for his poor behaviour in the past and his rude and demeaning emails to her.
In mid-2022, Ms D makes a report to police about historic domestic violence offences involving Mr Rodelo. Police apply for an ADVO against Mr Rodelo for the protection of Ms D and he is arrested and charged. After this event, Ms D refuses to sign a typed statement, says she does not want Mr Rodelo arrested and she collects him from the police station at about 2.00pm that day. The charges are not proceeded with.
In mid-2022, Mr Rodelo contacts police reporting two historic assaults he alleges were perpetrated against him by Ms Muir in 2018 and 2019, the latter of these being the incident he reported on the date of separation.
Around one week later, Ms Muir is informed by police of the historic assaults reported by Mr Rodelo.
On 6 July 2022, Mr Rodelo files an affidavit for the hearing on 15 July 2022 and does not disclose the events in mid-2022 in respect of he and Ms D.
On 7 July 2022, the Town C property ceases to be listed as security on the mortgage for the Suburb E property.
On 14 July 2022, leave is granted to Ms Muir to issue a subpoena to NSW Police returnable the following day.
On 15 July 2022, material is received from NSW Police detailing Ms D’ reports and complaints to police. Orders are made for the proceedings to be re-opened and suspending Mr Rodelo’s time with the children, inter alia.
On 24 August 2022, the August 2022 report (the third report) of Dr B is released to the parties.
On 28 September 2022, the matter was listed for final hearing but could not proceed and interim orders were made for Mr Rodelo to have supervised time with the children.
In late 2022, the ADVO issued in mid-2022 naming Mr Rodelo as the defendant and Ms D as the protected person is revoked.
In 2023, Mr Rodelo and Ms D’s child, LL, is born.
THE EVIDENCE AND DISCUSSION
Credit findings
The testing of the evidence disclosed the following.
The affidavit and documentary evidence of Ms Muir was thorough and methodical. This observation is particularly relevant with respect to the property proceedings and the addbacks she sought.
Ms Muir’s evidence in the witness box was consistent with that as deposed in her affidavits, and despite cross-examination on many aspects of her evidence, she remained consistent.
Mr Rodelo was deceptive with the Court and his own legal representatives, omitted to inform the Court and his own legal representatives of important issues, and failed to accept his behaviour toward his former wife and current partner was unacceptable.
Mr Rodelo created and altered documents to support his case and he failed to disclose, or provide, as is his obligation, copies of financial documents from financial institutions as requested by Ms Muir, preferring to make up his own compilation documents.
As these Reasons for Judgment will highlight, Mr Rodelo’s credit was impugned. It was difficult to rely on any evidence proffered by him unless conceded by Ms Muir, is supported by some independent documentary evidence, or the reason to accept his evidence was for a different purpose. An example of this difficulty is evident in what he said about his relationship with Ms D to Dr B for the February 2022 report, which was that they were dealing with the loss of their child, were supportive of each other, and in a committed relationship. Subsequently, this was found to be a false narrative. Further, he failed to tell his own legal representatives the reality of their relationship and he permitted them to file an affidavit on his behalf which did not disclose that he had been charged by police for violence against Ms D in mid-2022, and that such charges were not proceeded with.
The matters that impugn Mr Rodelo’s credit are multiple.
On 15 July 2022, after reading material from NSW Police, leave was granted to re-open the proceedings and suspend Mr Rodelo’s time with the children.[3] The basis for suspending his time was that he posed an unacceptable risk of harm to the children in his care, at that time, due to allegations made by Ms D of his historical, extremely poor behaviour towards her, which said allegations were made in mid-2022, shortly after the adjourned May 2022 hearing.[4] Of significant concern was that his coercive and violent behaviour towards Ms D echoed Ms Muir’s complaints of his conduct towards her during their relationship. Additionally, he had not told his legal representatives that an ADVO had been issued against him due to these allegations, that he was arrested and charged, and the allegations were subsequently withdrawn by Ms D, and the matter did not proceed. The affidavit filed by him for the 15 July 2022 hearing contained none of this information.
[3] Muir & Rodelo [2022] FedCFamC1F 1023 (Henderson J).
[4] Muir & Rodelo [2022] FedCFamC1F 1023 at [27].
Ms Gillies SC succinctly summarised just one credit issue faced by Mr Rodelo:
MS GILLIES SC: … what also touches on the credit issue is something that my friend for the ICL submitted on: you can’t come to the court, have an affidavit, not tell the court that you’ve got an AVO outstanding against you, and the similarity of the allegations that you’re facing at that time that had grounded the AVO, and then say in the witness box, “But I didn’t tell you because I thought it would impact my case,” and not think that that’s a credit finding that needs to be made, again, because it shows this lack of transparency, which was one of the risk factors that [Dr B] put.[5]
[5] Transcript 14 April 2023, p.60 lines 1–8.
In his Case Outline, Mr Livingstone submitted that the “fact that a witness misled the Court on an occasion or occasions does not mean that the Court rejects everything the witness says on all topics”.[6]
[6] Lemongrove Services Pty Ltd v Rilroll Pty Limited [2019] NSWCA 174 at [41] (Payne JA, with Bell P and Simpson AJA agreeing); State of New South Wales v Shepherd [2019] NSWCA 261 at [29] (Bell P, Meagher JA and Simpson AJA).
I accept this submission as a general proposition. However, the submission fails to consider the circumstances of this case. Mr Rodelo has lied, been deceitful, filed affidavits that omitted facts that were not in his favour, altered documents, not carried out promises he has made in open Court such as paying one half of his children’s school fees, has consistently defaulted on his obligation to be full and frank with his financial disclosures to the Court and Ms Muir, and has breached orders of the Court. This is egregious conduct and there are multiple instances of each category of conduct.
Mr Rodelo deposed in his affidavit filed 12 August 2022 that he had an “Annus horribilis” in 2022.
I accept that Mr Rodelo was suffering with the passing of NN in 2022 and that the proceedings would have added to his personal tragedy. However, this does not justify outright untruths to the Court, the Court-appointed expert witness, and one’s own legal representatives.
Dr B found Mr Rodelo had a vengeful nature, and the following is one such example. At separation in 2019, Mr Rodelo made a complaint to police that Ms Muir had stabbed him. There were criminal and ADVO proceedings brought against Ms Muir and ultimately dismissed with costs as an expert’s report obtained by her showed the wounds were self-inflicted.
After Ms Muir gave evidence regarding this incident in the May 2022 hearing, Mr Rodelo’s evidence was he continued to believe the decision to not proceed with the charges and dismiss them was unjust and he ruminated about this upon hearing Ms Muir’s evidence. His ruminations lead him to take action, which was to make reports to police of these alleged historical assaults against him by Ms Muir. The police did not pursue these reports. The alleged injustice occurred in 2019. Mr Rodelo is still ruminating about it and is unable to move on in 2023.
At the April 2023 hearing, Mr Livingstone submitted Ms Muir acted “mischievously” in obtaining the expert report and that she too had vengeful qualities. The following exchange occurred:
HER HONOUR: Your client said, “My wife stuck me with a knife.”
MR LIVINGSTONE: Yes.
HER HONOUR: She was defending that. That’s what she was doing.
MR LIVINGSTONE: Yes.
HER HONOUR: How was that mischievous?
MR LIVINGSTONE: Well, how she was defending it was by suggesting, as a scenario, that it was self-inflicted.[7]
[7] Transcript 14 April 2023, p.41 lines 32–43.
To suggest a person defending themselves in criminal proceedings is acting “mischievously” in obtaining an expert’s report concerning an allegation made against them, which is denied, is laughable and demeans a tenant of our criminal justice system, which is the right to defend yourself. Given Ms Muir was ultimately vindicated, this clearly indicates she was not acting “mischievously”.
The reality is that it was an expert who came to this conclusion, the prosecution withdrew the charges, and the charges were dismissed, and yet to this day, Mr Rodelo cannot let this alleged injustice to him go. This injustice was raised in his counsel’s written submissions in reply at the conclusion of the hearing, under instructions no doubt.
Mr Rodelo’s subterfuge is brazen at times. He sold the Town C property in 2019 to his then girlfriend and did not disclose this relationship. When Ms Muir discovered this and that the price was below market value, she was required to approach the Court to seek injunctive relief restraining Mr Rodelo from selling, transferring, or otherwise dealing with the Town C property. His then-girlfriend was joined and restrained from completing the purchase, when he simply should have agreed to pull the sale.
Mr Rodelo did not disclose until shortly before the April 2023 hearing that the parties are unable to obtain an occupation certificate in respect of Town C property due to him missing a particular appointment for a site meeting. Not only did he not admit this to anyone including his legal representatives, but he also does not accept that this is the case. There are multiple emails from him to the PP Council (“Council”) requesting from them what he further needs to do to obtain an occupation certificate. This is despite the Council having written to him on three occasions and highlighted that he will never get an occupation certificate. The best he can get is a building information certificate from a qualified surveyor.
The importance of this evidence is at least two-fold. Firstly, it supports the position reached that Mr Rodelo does not disclose facts he is obliged to disclose if he believes they will not support his case. Secondly, the lack of an occupation certificate may have a negative impact on the sale price of the Town C property, and this potential deficit lies at his feet.
In relation to production of copies of original source financial records, as was sought by Ms Muir concerning Mr Rodelo’s cryptocurrency with U Finance and W Finance, they were not produced as sought. Rather, Mr Rodelo produced a document he created by merging documents he asserted came from those institutions into one compilation document. Not only was this wholly unsatisfactory, but the information he deigned to provide was incomplete. He failed to comply with his obligation of full and frank disclosure, and consistent with his prior conduct, it is apparent he believed to have complied with this obligation fully and frankly would not have suited the case he wished to present to the Court.
I do not intend to reject everything Mr Rodelo says. Rather, I will not accept what he says unless supported by independent documentary evidence, it is conceded by Ms Muir, or the reason to accept his evidence is for a different purpose.
Going now to the specific areas of concern with Mr Rodelo’s evidence.
Events arising from the NSW Police subpoena
The contents of the material produced from this subpoena issued on 14 July 2022 is important in at least two respects.
The first is Mr Rodelo’s attempts to resurrect historical allegations against Ms Muir, and the second is the concerning allegations made by Ms D against Mr Rodelo, which were subsequently retracted.
Mr Rodelo’s historical allegations against Ms Muir
The narrative from mid-2022 in the police reports is as follows:
The Victim [Mr Rodelo] contacted Police [in mid] 2022 wishing to report two historic assaults by his ex-wife, [Ms Muir]. The Victim is well known to Police with …… history of making fictitious reports against [Ms Muir]. Police are highly doubtful as to the validity of the report however have obtained a statement from the Victim anyhow as a matter of process. In essence, the Victim is alleging [Ms Muir] assaulted him in 2018 by hitting him with [an] appliance causing a small bruise to his upper left arm. The Victim is also alleging that some time in 2019 the POI grabbed his arm causing superficial cuts to his upper left arm. The Victim, having making numerous reports to [Suburb QQ] Police throughout the year 2019-2020, failed to make any mention of these assaults when reporting these matters. The author is intending on offering the POI a chance to be interviewed in relation to these assaults. …
(As per the original with clarification)
A later narrative from mid-2022 states as follows:
[In mid] 2022 the author contacted the POI where it was asked whether she wished to be interviewed in relation to the stated allegations. The POI made an appointment for 12:00pm on [a later date] at [Suburb QQ] Police Station as she would not have the kids at this time and was suitable with the author’s availability. On [the day of the appointment] the author contacted the POI to confirm the appointment. The POI stated after some consideration she has decided to decline to interview as she didn’t want bad emotions to resurface from the …… Police have made the decision to reject the claim of assault for the following reasons: There is no evidence to corroborate the Victim’s version of how he sustained his injuries. The Victim had ample opportunity to report the assaults since they occurred where he made several other reports in the time frame between then and now. The Victim mentioned to Police that his main motivation to report the assaults are to aid in an appeal to a recent Family Law court motion that was filed in the POI’s favour for sole custody of their children. Finally, an expert certificate in an earlier matter was shown to prove the Victim caused an injury to himself (stab wound […]) where he reported the POI as having committed an assault. The charges were later dropped after serious review and consideration of this …… The Victim is unfavourable and is believed to have malicious motivations. For the reasons set out above Police have rejected these reports. The Victim is informed of this.[8]
(As per the original with clarification)
Ms D’s allegations against Mr Rodelo
[8] Exhibit M14.
A narrative from mid-2022 states as follows:
The PINOP [Ms D] and DEFENDANT [Mr Rodelo] currently reside at the same co‑owned address, sleep in different rooms and have no children together. The PINOP and DEFENDANT have agreed to break up, however, the PINOP believes the DEFENDANT will not actually leave, after he has said he would, and will continue to manipulate and abuse the PINOP unless police intervention occurs. About 09:00 […] police were called by the PINOP in order to take a report about historic domestic violence offences involving the DEFENDANT.
And listing the allegations made by Ms D on this day:
First occurrence: The PINOPS states that in [early] 2020 the DEFENDANT placed his erect penis in her mouth while holding her head still. The DEFENDANT did not say anything prior to doring this and the PINOP said nothing during. Later that day the DEFENDANT apologised to the PINOP however the PINOP can not be exactly sure what the apology was for.
The next allegation:
Second occurrence: In [mid] 2021 the PINOP and DEFENDANT were having an argument in the kitchen when the DEFENDANT became frustrated and threw a freshly made espresso shot from an espresso mug onto the PINOPS face causing instant pain. The PINOP immediately had a shower to clean herself up, the DEFENDANT entered the bathroom and told the PINOP that she needs to terminate her pregnancy. The PINOP told the DEFENDANT she intended to call the police about the incident, however, the DEFENDANT pleaded with the PINOP not to as he was in a court proceeding with his ex-wife and was fearful of losing custody of his children. The PINOP phoned her employer from the street to inform them that she was not feeling well and needed the day off. The DEFENDANT was waiting down stairs in his car fearful the police may come. After the PINOP hung up the phone, the DEFENDANT drove over to the PINOP and questioned her about the call. After the PINOP assured the DEFENDANT she had not called the police, he drove off to work.
The next allegation:
Third occurrence: [In early] 2022 the PINOP and DEFENDANT had an argument about the how the DEFENDANT was treating her after the miss carriage of their child. During the argument the DEFENDANT grabbed a hold of the PINOPS phone and held it out of reach stopping the PINOP from calling 000. In an attempt to get her phone back the PINOP pinched the arms of the DEFENDANT. The DEFENDANT sent a message from the PINOPS phone to his own phone stating “I’m sorry I hit you on the head tonight”. This PINOP believes this to be tactic in which the DEFENDANT can manipulate the PINOP.
The next allegation:
Fourth occurrence: In [early] 2022 the PINOP and DEFENDANT were at the DEFENDANTS holiday house in [Town C] NSW. During consensual sexual intercourse the DEFENDANT struck the PINOP to the right hand side of her face with an open hand, causing immediate pain. The PINOP did not give the DEFENDANT consent to do this or was it discussed prior to sex.
The next allegation:
Fifth occurrence: In [early] 2022 the DEFENDANT and PINOP had an argument about the PINOP having to be involved with the DEFENDANTS court case with his ex-wife. The DEFENDANT came closer and closer to the PINOP until she was pushed by his body causing the PINOP to fall over the lounge room couch.
And the final allegation:
Sixth occurrence: Around [mid] 2022 after a verbal argument between the DEFENDANT and PINOP, the PINOP has threatened to call the police. The DEFENDANT has told the PINOP with words to the effect of “If you call the police, I’ll kill you”. The PINOP did not call the police.
And the comments in relation to after the report was made:
The PINOP holds concerns for her safety and the safety of her [pet] due to the ongoing abuse by the DEFENDANT. The PINOP fears by coming fourth to the Police that the DEFENDANT may retaliate and act in a manner that may cause her or her [pet] harm. The PINOP refused to sign her typed statement with police before leaving. The PINOP later called police and said she did not want the DEFENDANT arrested, only that police intervene to allow her time to move out without having to face the DEFENDANT at the property. Police hold concerns for the safety of the PINOP due to the seriousness of the accusations made by the PINOP and the previous recorded history by the DEFENDANT. Police have applied for an apprehended violence order to protect the PINOP from the DEFENDANT while further …… are made in relation to the accusations. Police arrested the DEFENDANT as directed by and Detectives. Whilst reading the DEFENDANT his part 9, police were directed to discontinue the arrest as the PINOP had not signed her statement. Police advised the DEFENDANT to remain in the [Suburb QQ] police station foyer while an AVO was applied for. The DEFENDANT was offered an opportunity to be interviewed in relation to the accusations made by the PINOP and declined. The DEFENDANT stated he wants to report matters to the police now and have the PINOP arrested. Detectives advised police that they will follow up with the PINOP about proceeding further with the statement and any possible future charges.[9]
(As per the original with clarification)
[9] Exhibit M14.
A later narrative from mid-2022 reveals that the fourth allegation also involved Mr Rodelo spitting on Ms D.
A narrative dated three days later is the recant from Ms D:
… I spoke with you yesterday and made a statement that I wish to amend. Firstly, I have never been raped. I have never had non consensual intercourse. I have been going through severe grief and anxiety since losing our daughter […] this year. I feel that my depiction of events that I described may be skewed by this. I have hit [Mr Rodelo] once in the head with a slap on [an earlier date]. I am not innocent in this relationship. The sexual events I described were consensual, I did not say no or push him away, I was completely compliant. I cannot be totally sure that the facts I gave you were even accurate? I do not fear for my life. I have been under a lot of stress and naively thought I could have a temporary AVO put in place for my mental well-being. I was under too much stress when I rang police yesterday and I do not wish for [Mr Rodelo] to be charged for any of these offences. I simply wanted peace to be able to move out of the apartment and sell the property. I would like to change my statement. …[10]
(As per the original)
[10] Exhibit M14.
This is most concerning evidence and is a repetition of Mr Rodelo’s past behaviour, given Ms Muir’s evidence of his behaviour towards her. None of this material or the events described were disclosed by Mr Rodelo and it was simply fortuitous that the subpoena was sought and issued.
Emails between Mr Rodelo and Q Organisation
A two-page report from Q Organisation dated 20 March 2023 was produced regarding Mr Rodelo’s attempt to enrol in the Men’s Behaviour Change program. A copy of a report allegedly from Q Organisation is annexed to Mr Rodelo’s affidavit filed 28 March 2023, with the last paragraph appearing as follows:
Conclusion
This report confirms that the above client was assessed as not currently suitable to participate in the Men’s Behaviour Change program, and instead to seek a course to assist in dealing with conflict, trust and forgiveness post separation and divorce.
(As per the original)
The report produced by Q Organisation under subpoena and with the same date says something quite different in the last paragraph as follows:
Conclusion
This report confirms that the above client was assessed as not currently suitable to participate in the Men’s Behaviour Change program, as acknowledgement of abusive behaviour, and a willingness to change, form the central criteria for entry into this program.
At the assessment session [Mr Rodelo] stated that his use of abusive behaviours were in the past and blamed his former partner’s behaviour, as a reason for his abusive behaviour. [Mr Rodelo] also stated that he has told his lawyer on repeated occasions, that he does not need to do a MBCP Program. [Mr Rodelo] told the MBC Caseworker that he has no current need to work on any abusive behaviours.
(As per the original)
The first page of both versions of the report appears exactly the same, with the same content, and size and type font. However, the section ‘Conclusion’ in the version annexed to Mr Rodelo’s affidavit has a different size and type font as compared to the remainder of the report.
It is an inescapable finding that Mr Rodelo doctored the last page of the RA report to fit in with his narrative that he is not violent and has no need to change.
Dr B’s evidence
In respect of parenting, the matter ultimately came down to the significant and concerning risk of harm to the children in Mr Rodelo’s unsupervised care, how to ameliorate that risk, and how to provide the children with the time they craved with Mr Rodelo.
Dr B’s evidence was seminal to this balancing act. Dr B prepared three reports from November 2019, February 2022, and August 2022 for the proceedings.
Dr B opined that apart from Ms Muir’s emotional vulnerabilities arising from a mental health disorder, which is currently well managed, there was no risk of harm to the children in her care.
This was not so in respect of Mr Rodelo for reasons that will follow.
Ultimately, after the re-opening of the proceedings on 15 July 2022, Mr Rodelo and Ms D saw Dr B and a third report was prepared in August 2022. He recommended the children spend supervised time with Mr Rodelo, which occurred and was successful.
At the April 2023 hearing, Dr B recommended that time between Mr Rodelo and the children continue to be limited to daytime only. Dr B was repeatedly clear that overnight time was ruled out as it presented an unacceptable risk to the children. Much of the evidence in relation to the parenting aspect of the proceedings given at the May 2022 hearing had become somewhat otiose, given the explosive information that had been revealed in the material produced under subpoena by NSW Police in July 2022.
It had been recommended by Dr B in May 2022 orally and in the November 2019 and February 2022 reports that Mr Rodelo spend three to four days per week with the children, including overnight time, time on holidays, and that neither parent posed a risk of unacceptable harm to the children. The supportive relationship he apparently had with Ms D was a stabilising and important factor in his recommendations at that time.
The subpoena material from July 2022 evidenced that Ms D had made almost identical concerning allegations of family violence, including coercive and controlling behaviour, by Mr Rodelo against her, as had Ms Muir. Thus, it was of the utmost importance that this new evidence be tested before I could determine the orders to be made in the best interests of the children into the future.
At the conclusion of the April 2023 hearing, the ICL proposed that Mr Rodelo would spend time with the children each alternate Sunday during the school term and holidays, and an additional Wednesday during the school holidays. That there be personal protection orders made protecting Ms Muir from Mr Rodelo. Importantly, there was to be no overnight time between Mr Rodelo and the children.
The ICL’s position was cemented by the evidence of Dr B of the unacceptable risk to the children from Mr Rodelo’s behaviour as alleged by Ms D and Ms Muir and not accepted or acknowledged by him.
In the August 2022 report, Dr B says:
16.Despite acknowledging [Ms D’s] highly challenging circumstances, [Mr Rodelo] appeared to lack empathy for her experience. He acknowledged that he had failed to respect her wishes at the time. He justified this to the report writer. He claimed that [Ms D] had been bullied into making a statement by the police during their 5-hour interview and pointed out that it had never been signed. He assertively denied that [Ms D] had ever stated that she was in fear of him. He shrugged when challenged about his actions and could not see the relevance to his care of the children, which he asserted had always been exemplary. He was supported in this regard by [Ms D].
(As per the original)
And his conclusion:
26.Although it is a matter for the Court to determine such matters of fact, this additional material was strongly suggestive of a pattern of family violence and coercive control directed towards both his current partner and the children’s mother. This potentially placed both his current and previous partner at risk of harm. The nature and timing of such a risk is unpredictable. His apparent lack of empathy or remorse was concerning. His reference to PTSD as the cause of emotional dysregulation and problematic behaviour gave the report writer no comfort regarding his future behaviour. It was of particular concern that the father had previously made undertakings to desist from further complaints regarding the mother.
(As per the original)
Ms Shea asked Dr B what caused him to use the phrase “strongly suggestive”. He responded that his reasons were that Ms D had retracted all allegations the next day, adding he understood that to have maintained them would undermine the “possibility of being an intact family together”. Further, he had formed the view that due to his underlying personality traits, Mr Rodelo posed a significant risk of harm to the children.
Dr B said in cross-examination:
MS SHEA: Does all of that, [Dr B], impact on the weight that the Court can give to the allegations?
[DR B]: Well, yes. It was my understanding that there had been a consistent pattern over time of family violence, coercive control and in repeated actions, the father had refused to take responsibility with regard to that and continued to view his actions as contextual, as related to the circumstances he was placed in by his partners, and he was under stress. He was pushed to the point, and so he reacted in that – in that manner. And that was also evident when he went to enrol in the taking responsibility course with [Q Organisation]. It’s very clear in their statement and their conclusion – the conclusion of the team leader of family safety […] that that was his position. And as such, he was not suitable for that course. And of course, that goes with the concerns that were repeatedly identified about him lacking empathy, lacking remorse, lacking the capacity to learn from such experiences. Instead, he stated that in his mind, he would go over and over and over the ---
HER HONOUR: I think he used the word “mulled over” things or ---
[DR B]: Exactly. Mulled over ---
MS SHEA: Ruminated.
HER HONOUR: Ruminated. That was his word he used in the witness box? ---
[DR B]: About, you know, the injustices, you know, that he had faced. He had lost his children. He had lost 50/50 shared care. He had been placed in these circumstances, essentially, by, you know, the behaviour of others.[11]
[11] Transcript 13 April 2023, p.9 line 26 to p.10 line 4.
Mr Rodelo asserted that Ms D was bullied into making the statements to police. As I see the evidence in his mind, he had not behaved as alleged, and this was the reason for the retraction.
In the May 2022 hearing, Mr Rodelo admitted in cross-examination that he had retaliated against Ms Muir, and it is apparent that he continues so to do. This is an example of vengeful behaviour, which Dr B assessed as a risk to the children.
Dr B was taken to various messages between Ms Muir and Mr Rodelo annexed to Ms Muir’s affidavit filed 16 February 2022. These included one on 1 April 2021, and a reference to Mr RR; a person Ms Muir had an affair with, and a reference to Mr MM; Ms Muir’s new partner:
To get a divorce, we need finances settled. …
I hope that [Mr MM] supports you seeing [Mr RR] also.
One on 8 October 2020 from Ms Muir:
Over the past few weeks, I’ve noticed that [X] has started to use skewers (she may get from a cafe meal) and is causing marks on her […] skin. I’m about to professional seek advice …
And Mr Rodelo’s response on 9 October 2020:
[X] is almost 12 years and will shortly be in high school, I believe she is at an age appropriate to have access to pocket knives, scissors, craft knives and similar tools; particularly under direct parental supervision which I have provided to date.
…
Another one on 16 October 2020 from Ms Muir:
[Z] has mentioned her left leg being a tad sore this morning.
Just with the [medical history] in mind, could you please keep an eye on her …
And Mr Rodelo’s response:
This is a real concern to me, the last time this happened was because she had an open cut would on her leg that hadn’t healed and you made her swim in a public pool.
…
And if there is still a problem with hygiene at your home, let me know and I will help you arrange cleaner for you. I want to help.
Another one on 22 September 2021 from Mr Rodelo:
All the best for your Birthday and I hope [Mr MM] and [Mr RR] spoil you on your special day.
Finally, Another one on 27 September 2021 from Mr Rodelo:
Can you return by post as soon as possibly [Ms D’s] medical cream – this is her personal property and you should not have it. You have taken this without permission, she is now stressed that you have it and it has reinforced and confirmed her fears about your meddling in her personal medical affairs […].
(As per the original)
Mr Rodelo did not disclose source documents from U Finance or W Finance, instead preferring to provide to the Court a compilation he created of these accounts. The Court cannot accept these documents as genuine, given my findings in relation to Mr Rodelo’s credit.
There is also clear evidence that Mr Rodelo received, in three tranches of $20,000, $20,000, and $10,000, from the W Finance account, eventually paid into his CBA account #...05 during early 2021. The $10,000 was sent to Ms D in repayment of a car loan and the two tranches of $20,000 were applied to the Town C property mortgage. These transfers must be added back into the pool of assets for division, as they were matrimonial assets in Mr Rodelo’s hands and used to the exclusion of Ms Muir. I do not accept Mr Rodelo only dealt with this cryptocurrency and not all the cryptocurrency in accounts he set up and had the knowledge to access.
On this evidence, I find Mr Rodelo has used these matrimonial assets to the exclusion of Ms Muir, and that he has dealt with the cryptocurrency post-separation, as he did during the marriage.
The value of the cryptocurrency to be added back into the pool of assets for division is as follows:
(1)76,065 units of cryptocurrency, valued at the date the parties agreed the cryptocurrency be sold, being 13 May 2021: $128,723;
(2)The monies received from the W Finance account and used by Mr Rodelo to the exclusion of Ms Muir: $50,000; and
(3)24,407 units of cryptocurrency, which remains unaccounted for, valued at the date accepted by Mr Rodelo for the hearing: $21,727.
A total value of $200,450.
For Ms Muir, she received some $181,000 to the exclusion of Mr Rodelo. He has received some $20,000 more in matrimonial assets than Ms Muir post-separation, if I accept what has been discovered are all his cryptocurrency holdings. I seriously doubt that what Ms Muir has managed to discover is all that there is in his name.
In Black and Kellner,[102] the Full Court said the following:
[102] (1992) FLC 92-287 (Nicholson CJ, Ellis and Cohen JJ).
… the first step in proceedings for a property settlement is for the court to ascertain the wealth of the parties and in this regard it is of interest to note the remarks of the Full Court in the case of Giunti and Giunti (1986) FLC 91-759, particularly at 75,555 where the court commented:
“It is obviously desirable as a general principle that the Court should first of all identify the pool of assets available and evaluate it. If each party complies with his or her obligation to make a full and substantive disclosure of their financial affairs – see Briese and Briese (1986) FLC 92-714, affirmed by the Full Court in Oriolo and Oriolo (1985) FLC 91-653, there is no problem, although there may be disputes as to valuation.
However if, as here, one party fails to fulfil that obligation, it is open to that party then to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require? It would be simple, if that were the case, to evade the jurisdiction of this Court, not by outright refusal which would attract sanctions, but by obfuscation and evasion.”
The Full Court in Oriolo and Oriolo (supra) referred with approval to the remarks of Smithers J in the case of Briese and Briese, and it is perhaps worth reiterating portion of his Honour’s statement where he said, after referring to the decision of the House of Lords in Livesey v Jenkins (1985) All ER 106:
“I believe that the conclusion of the House of Lords in the case of Livesey v Jenkins … is apposite, namely that in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the Court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of discretion. This is quite different from common law litigation between strangers, in which such a general duty does not exist, and obligations would only exist in so far as statute or court rules required.
In my view it is fundamental to the whole operation of the Family Law Act in financial cases, that there is an obligation of the nature to which I have referred.”
…
Finally, another part of a judge’s obligation in cases of this nature in considering section 75(2) factors is to consider the respective incomes of the parties. Again, through the behaviour of the husband, this was something which the learned trial judge could not do.[103]
(As per the original)
[103] (1992) FLC 92-287 at 79,133–79,134 (Nicholson CJ, with Ellis and Cohen JJ agreeing), citing Giunti and Giunti (1986) FLC 91-759 (Fogarty, Murray and Nygh JJ), Oriolo and Oriolo (1985) FLC 91-653 (Emery, Fogarty and Murray JJ).
The phrase “obfuscation and evasion” describes the behaviour Mr Rodelo has engaged in.
Further, in Weir and Weir,[104] the Full Court said the following:
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follow from his Honour’s findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be though to provide a charter for fraud in proceedings of this nature.
…
… where there is clear evidence of non-disclosure as there was here, the Court should not be unduly cautious about making findings in favour of the other party. It has been said by one commentator (O’Ryan and Broadfoot, 5th National Family Law Conference Handbook, p 249) the failure to disclose undermines the whole process of adjudication of proceedings for a settlement of property in that the court is unable to identify the property of the parties, to properly assess contribution, or to properly assess s 75(2) factors.[105]
(As per the original)
[104] (1993) FLC 92-338 (Nicholson CJ, Strauss and Nygh JJ).
[105] (1993) FLC 92-338 at 79,593–79,594.
The comprehensive summary and observations by Harper J in Wei & Xia (No 5)[106] in relation to various evidentiary issues including discussion surrounding the duty of disclosure in this Court is also relevant and is as follows:
166As part of this discussion, it is important to have regard to obligations of disclosure under the Rules and its implications for evidentiary outcomes. The jurisprudence in this Court about the consequences of breach of the duty by incomplete or inadequate disclosure are relevant to the assessment of evidence, the drawing of inferences and ultimately may bear on the question of discharge of an onus of proof. …
167Rule 6.01 imposes a broad general duty on a party to give full and frank disclosure “of all information relevant to the proceeding, in a timely manner” and this duty continues until the proceedings are finalised. Although the Rules only came into operation on 1 September 2021, the same duty operated under the now repealed 2004 Rules. Rule 6.06 then sets out in detail the duty of disclosure in financial proceedings. …
…
170It has been settled law for decades in this Court that deliberate non-disclosure warrants the Court being not unduly cautious about making findings in favour of the innocent party (Weir and Weir (1993) FLC 92-338; Harris & Dewell (2018) FLC 93-839 at [120]). However, it has been said that it makes no difference, where a duty is absolute, whether non-disclosure was wilful or accidental, or was the result of misfeasance or malfeasance or nonfeasance (Kannis and Kannis (2003) FLC 93-135). Where there is clear evidence of a failure to disclose, even if not deliberate, this may lead the Court to draw adverse inferences against the person who fails to satisfy disclosure obligations (Stein and Stein (1986) FLC 91-779 at 75,677).[107]
(As per the original)
[106] [2023] FedCFamC1F 679 at [147]–[175] (Harper J).
[107] [2023] FedCFamC1F 679 at [166]–[167], [170].
Proceedings under the Act, in particular proceedings under Part VIII (and equivalently, Part VIIIAB) rely upon parties to uphold their duty to provide full and frank disclosure. There are certain avenues parties can pursue during the process of discovery (e.g. subpoenas, notice to produce, notice to admit) if a party does not comply with their duty. Ultimately if a party is devious and skilled enough to hide an asset, that that asset is not identified for division.
During cross-examination, Mr Rodelo accepted that the Court relied upon him to be honest about his cryptocurrency holdings. This is in circumstances where Mr R stated in his report that there are thousands of types of cryptocurrencies that can be purchased and a multitude of exchanges where cryptocurrency can be purchased. It would be an impossibility for a party to subpoena all cryptocurrency exchanges and this does not consider whether an exchange would comply with a subpoena. It was suggested by Mr R that there would be uncertainty of compliance with a subpoena in civil proceedings. Further, Mr R noted that exchanges can be government-licenced and regulated or unregulated, with the latter including dark market exchanges. I do not accept that Mr Rodelo has disclosed all his cryptocurrency accounts on this evidence or his own evidence.
I will add back to the pool the cryptocurrency and the $181,000 received by Ms Muir.
The money received by Ms Muir has increased the Town C property mortgage; a debt Mr Rodelo will be taking on if he is able to retain the Town C property. Consistent with the principles espoused in Omacini and Omacini,[108] and further relied upon in Trevi & Trevi,[109] this will be the most just and equitable way to deal with these now spent matrimonial assets for both parties.
[108] Omacini and Omacini (2005) FLC 93-218 (Holden, Warnick and Le Poer Trench JJ).
[109] (2018) FLC 93-858 at [27]–[30] (Murphy J, with Alstergren DCJ and Kent J agreeing).
Liabilities
Item 28: agreed at $306,073 in circumstances where this includes the $181,000 partial property settlement to Ms Muir.
Item 29: as the Suburb E property is not a matrimonial asset, the mortgage therefore is not part of the pool of assets for division.
Item 30: the personal loan from Ms UU is Mr Rodelo’s debt and not a matrimonial debt.
The pool of assets for division
The pool of assets for division, after the above determinations, is as follows:
Item Owner Description Value ASSETS 1 H G Street, Town C $1,400,000 2 H Motor Vehicle 1 $29,350 3 W Motor Vehicle 2 $26,000 4 H The Town C property contents, tools and building equipment $10,000 5 W T Company employee shares $4,326 6 W The partial property settlement $181,000 7 H The cryptocurrency addbacks $200,450 GROSS ASSETS $1,851,126 LIABILITIES 8 H Mortgage for the Town C property (CBA ending #...31) $306,073 NET LIABILITIES $306,073 NET ASSETS $1,545,053 Identification and evaluation of contributions to the property of the parties
Initial contributions
The initial contributions of Ms Muir were modest, being some $2,000.
The initial contributions of Mr Rodelo were as follows:
(1)50 per cent share in the Suburb GG property worth $155,000;
(2)Interest in EE Pty Ltd, which Mr Rodelo asserts had a 50 per cent share in another company, JJ Pty Ltd, worth $120,000;
(3)A motor vehicle worth approximately $16,000 (according to Ms Muir) and $40,000 (according to Mr Rodelo);
(4)Savings worth approximately $40,000 as asserted by Mr Rodelo;
(5)Home contents worth $5,000 as asserted by Ms Muir;
(6)Superannuation worth approximately $8,000 (according to Ms Muir) and $50,000 (according to Mr Rodelo);
(7)50 per cent share in the Suburb GG property mortgage worth $137,500; and
(8)A personal loan of approximately $4,000 as asserted by Ms Muir.
The total net initial contributions of Mr Rodelo were approximately $162,500 (on Ms Muir’s assertions) and $267,500 (on Mr Rodelo’s assertions).
In any event, Mr Rodelo’s initial contributions were superior to that of Ms Muir. However, I accept the submission of Ms Gillies SC that given the parties’ relationship was of some 15 years, Ms Muir’s contributions during the marriage must be taken into account when assessing the impact of Mr Rodelo’s initial superior financial contribution.[110]
[110] Pierce v Pierce (1999) FLC 92-844.
Contributions during the relationship
The Suburb K property was purchased shortly after the parties married, for $697,000. At that time, they had been co-habiting for almost three years in the Suburb GG property and Ms Muir made a contribution to the maintenance of that property. The purchase price was funded as follows:
(1)$100,000 from the proceeds of sale of the Suburb GG property;
(2)$25,000 from joint savings;
(3)$10,000 gifted from Ms Muir’s father;
(4)$15,000 from a loan from Mr Rodelo’s business partners at JJ Pty Ltd; and
(5)The remainder paid from a loan secured by mortgage over the property with the WW Bank of $547,000.
Both parties worked during the marriage and Ms Muir took minimal time off work after the birth of each child. Their contributions during the relationship and marriage were equal on the evidence.
The parties purchased the land at Town C and commenced building in 2015. The purchase price for the land was $275,000, which was funded as follows:
(1)$27,500 deposit paid from a portfolio loan with WW Bank;
(2)$40,000 of joint savings; and
(3)The remainder paid from a loan secured by mortgage over the property with WW Bank.
Mr Rodelo is yet to complete the building at Town C and has been dilatory in that regard. He has also used the Town C property at will despite orders not to do so and the mortgage was increased at times post-separation. The mortgage is now at an agreed level of $306,477 as at March 2021, which includes an increase of $181,000 paid to Ms Muir by way of partial property orders in May 2020.
Mr Rodelo has had exclusive use and occupation of the Town C property. Further, he used his ownership of that property as collateral when purchasing the Suburb E property with Ms D. These benefits were not available to Ms Muir. He now rents the property and uses the rent proceeds to pay the mortgage.
I accept that Mr Rodelo has solely maintained the mortgage and other outgoings on the Town C property post-separation and has expended money and effort in his unsuccessful endeavours to complete the building.
He has had unfettered use of the Town C property and used the equity in that property at will, and at times, contrary to orders of this Court. Unnecessary legal costs have been incurred by Ms Muir due to his conduct and behaviour and the hearing was extended only because he failed to disclose Ms D’s allegations against him and that an ADVO had been taken out against him in mid-2022, despite having filed an affidavit after that date in which he did not disclose these events.
Post-separation contributions
Post-separation, Ms Muir bore the brunt of parenting the children and was exposed to Mr Rodelo’s demeaning, aggressive, and litigious emails, derision at her concerns for X, and a parsimonious attitude to supporting his children to the best of his ability, preferring his own needs, for example, buying a property for himself rather than supporting his children at school.
Mr Rodelo’s conduct towards Ms Muir has been and continues to be unacceptable despite him proffering apologies to her in writing and telling the Court he needed to do better. He is well‑aware Ms Muir suffered from anxiety, and his treatment of her and dealing with their assets has only exacerbated her anxieties. He sought to sell the Town C property at a significant undervalue to a woman who was his girlfriend the time; a fact he did not disclose to Ms Muir. His girlfriend was restrained from completing the purchase in mid-2019, and only in late2019 did Mr Rodelo confirm that the sale had been rescinded.
He accused Ms Muir of stabbing him at separation and charges were laid and later withdrawn and dismissed with costs. In a vengeful pique in mid-2022, he asked the police to investigate alleged historical assaults by Ms Muir against him. That action was described by Dr B as vengeful and was undertaken three weeks after he wrote an apology to her for his past behaviour. Fortunately, the police took no action.
Post-separation, Ms Muir has made a superior contribution to the family than Mr Rodelo by way of caring for the children and in financially supporting them to the best of her ability, and at a higher level than Mr Rodelo at times. I accept Mr Rodelo has maintained the mortgage on the Town C property and has carried out some work on it, however, he has had exclusive use of it as well and it is now rented.
Although I accept Mr Rodelo made a superior initial financial contribution to the assets of the marriage with the sale of the Suburb GG property netting some $100,000, it is apparent that during the marriage, their contributions both financially and as parent and homemaker were equal. Despite a superior initial contribution by Mr Rodelo, having regard to the length of the relationship and marriage and Ms Muir’s superior contribution to the children post-separation both financially and emotionally, I assess Ms Muir’s contribution-based entitlement at 55 per cent and Mr Rodelo’s entitlement at 45 per cent.
Identification and assessment of the various matters in section 79(4)(d)–(g):
Ms Muir has relevant section 75(2) factors in her favour. Given the limited time the children will spend with Mr Rodelo due solely to his conduct and behaviour and the risk he poses to them, she will effectively have their sole psychological and emotional needs to cater for and will be effectively a sole parent. This was not a position Ms Muir sought at the commencement of this hearing.[111]
[111] Family Law Act 1975 (Cth) s 75(2)(c).
Both parties are in good health,[112] have a well-paid job, good career prospects,[113] and will now provide equally for their children in respect of school fees, school uniforms, textbooks and the like, and medical costs not covered by a health fund or Medicare pursuant to the departure order I will make.[114] Thus, Mr Rodelo will be supporting his children into the future to the same high standard Ms Muir has post-separation thus far.
[112] Family Law Act 1975 (Cth) s 75(2)(a).
[113] Family Law Act 1975 (Cth) s 75(2)(b).
[114] Family Law Act 1975 (Cth) ss 75(2)(d), 75(2)(na), 79(4)(g).
X has special needs and requires psychological assistance. Fortunately, both Z and Y appear to be robust children. Both parents are psychologically and emotionally comprised.
Mr Rodelo had made it difficult for Ms Muir to obtain any additional payment from him for the children over and above that which he is assessed to pay by way of child support, that being his vengeful nature, hence the departure orders made. However, he also has a new child and a partner to support,[115] and I took all these matters into account when making, in part, the departure order Ms Muir sought into the future.
[115] Family Law Act 1975 (Cth) s 75(2)(e).
I find in those circumstances there should be an adjustment in Ms Muir’s favour of 5 per cent for her effective sole emotional and psychological care for the children into the future.
The net pool of assets is $1,545,053, with 60 per cent being $927,031 to Ms Muir, and the remainder, $618,022, to Mr Rodelo.
From $927,031 must be deducted addbacks attributed to Ms Muir and assets in her name, being $181,000, her car ($26,000), and her employee shares ($4,326), totalling $211,326, leaving a total of $715,705 to be paid to her.
In addition, Mr Rodelo is to pay Ms Muir the debt of $4,655 (Item 27) and $2,816 (Item 26) from his share of the property.[116] These debts total $7,471.
[116] See above at [352].
I will order that Mr Rodelo to pay Ms Muir the sum of $723,176 within 60 days, and thereafter the Town C property be his, otherwise the property is to be sold.
I find these orders are just and equitable having regard to the facts as found above.
In relation to the sale of Town C, I accept Ms Muir’s position that if it is to be sold, she must be appointed as the trustee for its sale. Mr Rodelo has acted dishonestly and has been disingenuous in relation to this property, as he has in relation to many other matters relevant in this matter.
There are two prominent examples of this, first being when Mr Rodelo sold the Town C property to his then-girlfriend under the market value, and second when Mr Rodelo did not disclose his failure to be able to obtain an occupation certificate.
I cannot trust Mr Rodelo to act appropriately and quickly to sell the property to enable Ms Muir and he to obtain their respective entitlement to the proceeds of sale. Given his vengeful nature and that he is desperate to retain the Town C property, the exact opposite is likely to occur on a sale.
Mr Rodelo is on notice that should he fail to comply with any order or interfere with the orders being carried out, the Court will entertain any application for enforcement, including warrants for arrest or possession.
I will also make an order pursuant to section 106A of the Act that if Mr Rodelo fails to sign a document required to implement these orders, Ms Muir may approach a registrar of this Court to sign in his name on his behalf.
There is still work to be carried out prior to sale and a building information certificate would need to be obtained. Ms Muir sought $75,000 be provided to her. I am not clear of the basis for this sum, and I accept Mr Rodelo does not have surplus income at present, although he has received the benefit of the rent for the Town C property to Ms Muir’s exclusion.
I will order Mr Rodelo to provide Ms Muir $50,000 upon her obtaining an agent to sell the Town C property. This should be a sufficient sum to bring the property up to a standard to maximise its sale price and is more likely to be a sum he can borrow or find in the short-term.
Ms Muir must account to Mr Rodelo for the expenditure of that money, and if there are any moneys left over, it is to be returned to Mr Rodelo promptly. Whatever costs are required to bring the Town C property up to a standard for sale, they will be equally borne by each of the parties.
I will also make orders in relation to Mr Rodelo giving notice to any tenant or occupants of the Town C property, and such notice to be given 7 days after Ms Muir’s appointment as trustee.
Mr Rodelo’s position was for a superannuation splitting order be made. Rule 1.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) prescribes that, inter alia, if a party seeks to bind the trustee of an eligible superannuation fund, then the party who seeks that order must, at least 28 days prior to the first day of the hearing, notify the trustee of the terms of the order sought and the date of the hearing.[117]
[117] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.12(6)(a)(i)–(ii).
I will not make a superannuation splitting order for reasons already set out earlier, but I note Mr Rodelo has some $140,000 more in superannuation than Ms Muir.
Consideration of matters of justice and equity
Having regard to the preceding discussion, I am satisfied that this division of the pool of assets is just and equitable.[118]
[118] Family Law Act 1975 (Cth) s 79(2).
Injunctions
Ms Muir sought an array of injunctions pursuant to section 114 of the Act. These injunctions are in relation to the Town C property and when Ms Muir is appointed the trustee for its sale.
Mr Rodelo has previous experience in interfering with the Town C property, notably under‑selling it to his girlfriend at the time. In circumstances where I am making an order that Ms Muir be appointed the trustee for its sale, and where I am satisfied on the balance of convenience that Mr Rodelo have these restraints imposed upon him, given his vengeful nature and deceitful behaviour, it is appropriate such injunctions be made to ensure a smooth sale.
COSTS
The ICL sought costs in the sum of $8,640.50 from both parties, totalling $17,281.
Ms Shea informed me that these costs were only for the hearing days after the conclusion of the hearing on 15 July 2022.
It is appropriate I make an order for these costs to be paid, given the significant reduction in the costs that could have been sought and that it was essential an ICL be appointed in this matter.
Therefore, I will make the orders as sought by the ICL, noting that Ms Muir has paid the initial contribution of $1,650.[119]
[119] Family Law Act 1975 (Cth) s 117.
Further, Ms Muir sought orders in relation to costs. It is more appropriate that this be dealt with separately and each party may file such application as they deem appropriate.
CONCLUSION
I make the orders as set out in the forefront of these Reasons for Judgment.
I certify that the preceding four hundred and forty-two (442) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 6 October 2023
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