NABATI & NABATI (No.2)
[2020] FCCA 3079
•13 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NABATI & NABATI (No.2) | [2020] FCCA 3079 |
| Catchwords: FAMILY LAW – parenting and property – application to vary interim parenting orders – application to vary spousal maintenance order pursuant to section 83 of the Family Law Act 1975 – Father asserts change of circumstances and deterioration of income – serious non-compliance with interim orders – appropriateness of supervised time – inconsistent evidence in relation to the Father’s financial position – change of circumstances not demonstrated – supervised time necessary – child’s best interests – hair follicle drug testing orders made – application otherwise dismissed. |
| Legislation: Family Law Act 1975 ss.60CA, 60CC(2A), 60CC(2)(a), 60CC(2)(b), 68Q, 69F, 83 |
| Cases cited: Foo v Foo (1994) FLC 92-482 |
| Applicant: | MR NABATI |
| Respondent: | MS NABATI |
| File Number: | MLC 4892 of 2019 |
| Judgment of: | Judge Blake |
| Hearing date: | 7 September 2020 |
| Date of Last Submission: | 7 September 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 13 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mort |
| Solicitors for the Applicant: | Vernon Da Gama and Associates |
| Counsel for the Respondent: | Mr Salamanca |
| Solicitors for the Respondent: | KCL Law |
ORDERS
Orders 6 and 7 of the Orders made on 21 November 2019 be vacated.
The Father undergo hair follicle drug testing on two further occasions prior to the final hearing listed on 26 April 2020, the first to occur in the week commencing 1 December 2020 and the second to occur in the week commencing 15 March 2020, such testing to be paid for by the Father AND FURTHER there be Orders set out in terms of Annexure ‘A’ to facilitate same.
The Father provide the results of the hair follicle testing to the mother’s solicitors forthwith upon receiving them.
The Father provide a letter from his General Practitioner explaining the presence of any illicit substance (if applicable).
No later than 14 days prior to the final hearing, the Father file and serve an updated supervision report from a professional supervisor, at his sole expense, with respect to his time spent with X born in 2016.
The application in a case filed on 28 July 2020 be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Nabati & Nabati (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4892 of 2019
| MR NABATI |
Applicant
And
| MS NABATI |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter arises from an Application in a Case filed by the Father on 28 July 2020 (‘Application’). It concerns both parenting and financial matters in respect of which the Father seeks interim orders.
In the Application, the Father seeks, inter alia, the following:
a)His time with the child of the marriage, X born in 2016, be unsupervised. During the hearing, the Father modified his position and accepted some supervision was necessary. He proposed a private supervisor;
b)The Court discharge orders relating to the Father being required to attend drug screening;
c)The Court discharge order 5 made by consent on 26 August 2019 in which the Father agreed to pay a range of living and other expenses for the Mother’s benefit;
d)The Court discharge order 13 made on 21 November 2019 that the Father pay spousal maintenance of $400 per week to the Mother.
The Application is opposed by the Mother.
Background
The background may be briefly summarised as follows.
The Father is aged 43 years of age. The Mother is aged 38 years of age. The parties married in Country G in 2011.
The Father is engaged as a health care worker. The Mother is not presently working, but is studying and caring for the parties’ only child.
The child of the marriage is X born in 2016 (‘X’). X is presently four years old.
The parties separated in early 2019.
The Father commenced proceedings in this Court on 8 May 2019.
On 26 August 2019, the matter first came before me. Interim parenting and property orders were made by consent on that date (‘August Orders’). Relevantly for the purposes of the Application, the August Orders provided for, and contemplated that:
a)X live with the Mother and spend two hours per week with the Father professionally supervised;
b)the Father be responsible for paying a range of expenses, including mortgage payments on a property, council and water rates and other fees, utility services, the Mother’s motor vehicle registration and motor vehicle accounts, the Mother’s mobile telephone plan, and the Mother’s health insurance;
c)the amounts referred to in paragraph (b) above were not to be credited against the Father’s child support liability.
On 7 October 2019, a family report was prepared by Dr D.
On 30 October 2019, the Court conducted an Interim Defended Hearing in relation to, inter alia, the Mother’s application for spousal maintenance, and parenting arrangements. The Father did not appear at the hearing. His legal representative was present but was not able to contact him and sought leave to withdraw. Ultimately, no substantive submissions were received by the Father. The Court proceeded to hear the Mother’s case.
On 21 November 2019, I delivered judgment and provided written reasons and orders (‘November Orders’) in relation to the Interim Defended Hearing held on 30 October 2019. Among other things, I:
a)made parenting orders broadly consistent with the terms of the Family Report prepared by Dr D. The orders provided, among other things, for the Father’s time to increase, but to continue to be supervised professionally, for the Father to contact X by Skype or Facetime each Tuesday, and for the Father to continue a regime of screening for illicit substances;
b)ordered that paragraph 5 of the August Orders remain in full force and effect, that is, that the Father continue to be responsible for meeting expenses of the Mother identified in order 5 of the August Orders;
c)ordered the Father to pay the Mother spousal maintenance, until further order, in the sum of $400 per week.
On 30 January 2020, the matter returned before me in the duty list for mention. At that time, I programmed the matter for final hearing and made various other ancillary orders.
It is common ground that:
a)the Father spent supervised time with X from September 2019 to 6 January 2020;
b)the Father has not seen X since 6 January 2020;
c)the Father has not contacted X by telephone or Skype since 6 January 2020;
d)the Father has not kept up to date with the spousal maintenance payments payable to the Mother pursuant to the November Orders and is therefore in contravention of order 13 of the November Orders;
e)the Father has not kept up-to-date with all of the payments he is required to make pursuant to order 5 of the August Orders and accordingly is in contravention of order 5 of the August Orders;
f)the Father has not undertaken blood and urine testing for drugs, nor quarterly hair follicle tests for illicit substances, in the terms contemplated by the November Orders (though he has undertaken other testing);
g)the Father has not undertaken testing as contemplated by order 7 of the November Orders;
h)the Father has not registered for the My Family Wizard App as required by order 10 of the November Orders.
The Application for parenting orders
Should the Application be considered?
The Mother submitted that the Court should not entertain the Father’s application in respect of parenting orders on two grounds.
First, the Mother submits that the Father is in contempt of Court by not complying with the orders previously made in this proceeding. Parenting orders with which the Father has not complied are said to include orders 2, 4, 6, 7, 10 and 11 of the November Orders. The Mother therefore asks the Court to apply the historic common law rule that a party in contempt of Court orders should not be heard: Foo v Foo (1994) FLC 92-482 (‘Foo’); Watson v Watson [2013] FamCAFC 25 (‘Watson’).
There is no dispute that the Father has not complied with a range of parenting and financial orders made by this Court. I discuss the details of the non-compliance in greater detail below. The nature of the non-compliance is extremely concerning and it is a matter that I raised with his Counsel during the hearing. The concerns I have about the Father’s general attitude to compliance with orders of this Court, which emanate from his conduct, are supported by statements he has made to a third party. The observational report from the professional supervisor, contained at page 19 of Annexure -2 to the supervisor’s affidavit filed on 12 August 2020, records the following notation when referring to a conversation with the Father. She states:
‘I assured him if his lawyer had made a formal request that it would be actioned in a relevant timeframe. I asked when he was in Court next and he said, “I don’t even know or care. I’m not letting this rule my life I’m just doing my own thing”’
It is in this context that I am asked by the Mother to consider not entertaining the Application by the Father to vary the existing parenting orders or financial orders. I propose to deal with Mother’s submission in relation to parenting orders below, and to deal with the Mother’s submission in relation to financial orders later in these reasons.
At the outset, in respect of parenting matters, I do not accept the contention by the Mother that the Father has breached orders 2 and 4 of the November Orders. Both of those orders provide for the Father, at his election, to spend time with X. The fact that he has elected not to spend time with her for the majority of the period since the November Orders were made does not constitute a breach by him of those orders. It simply means he has elected not to spend time with X.
What flows from the above is that the Father has also not contravened orders 6 and 7 of the November Orders. Those orders deal with drug screens for the Father. Importantly, the opening words to order 6 make clear that the contact with X referred to in orders 2 and 4 of the November Orders is subject to the undertaking of the drug screens. As the Father has not been in contact with X since January 2020, I do not accept that he has breached orders 6 and 7 in the period since January 2020. It seems there may have been a breach of the urine drug screen orders in November or December 2019, but I was not addressed on this and in any event, would give it little weight given the events that have occurred since. To summarise in respect of the Mother’s overall contention, however, orders 6 and 7, it seems to me, are enlivened only where the Father seeks contact with X.
In light of the above, the only parenting orders that the Father appears to have clearly and consistently breached are order 10 (he has not subscribed to or communicated using the ‘My Family Wizard’ App) and order 11 (he has not attended a post separation counselling course) of the November Orders.
The submission of the Mother needs to be considered in light of section 69F of the Family Law Act 1975 (‘Act’). That provision permits a Court to proceed with hearing proceedings in relation to a child even though a person who instituted the proceedings has failed to comply with an order of the Court. Clearly, whether the Court should proceed to hear the application is a matter about which the Court may exercise discretion.
The most important consideration, however, and one that goes among other things to the exercise of the discretion whether to entertain the application or apply the common law rule, is what is in the child’s best interests. The Act makes clear that the best interests of the child are paramount when embarking upon a consideration of parenting matters and parenting orders. In Foo, upon which the Mother relies, the Family Court emphasised the importance of having regard to the welfare of the child when it was faced with a submission that an application by the husband in that case should be struck out.
The second reason that the Mother advances as to why the Court should not entertain the Father’s application is the principle in Rice v Asplund (1979) FLC 90-725. The Mother says the Father has not demonstrated any material change in circumstances that would justify revisiting the parenting orders contained within the November Orders.
Interim parenting arrangements and orders are varied regularly in this Court in the lead up to final hearings. In light of that, I asked the Mother’s Counsel whether he could point me to any authority to indicate that the principle in Rice v Asplund applied to interim hearings. He was unable to do so.
In SPS v PLS [2008] FamCAFC 16 (‘SPS’), Warnick J made a number of observations in respect of the principle in Rice v Asplund. Warnick J observed that the application of the principle in Rice v Asplund is to be understood as a manifestation of the best interests principle. Further, any application of the principle must take account of the provisions of the Act.
In the present matter, I am of the view that I should consider the Father’s application for parenting orders. I do not propose to apply, in the circumstances of this case, the principle that a party in contempt of orders should not be heard. First, for reasons which I will come to later, I do not regard it in X’s best interest that that occur. Secondly, preventing a party from having his or her case heard is a serious matter. The contempt in my view, would need to be serious. The contempt here is not serious insofar as it relates to parenting orders. I would be reluctant to prevent a party from pursuing his or her case in circumstances where, as in this case, the contempt arises principally from failing to use or subscribe to a parenting app, or from failure to attend a parenting course during a time when attendance at such courses has been made difficult because of the COVID 19 pandemic.
I regard it as being in X’s best interests that I consider the Father’s application and not apply, among other things, the principle in Rice v Asplund. As Warnick J noted in SPS, the application of the Rice v Asplund principle is to be understood as a manifestation of the best interests principle. At present, this matter is listed for final hearing on 26 April 2021. It may be anticipated that final parenting orders will be made at that time. The Father has not spent time with X since January 2020. It is important that consideration be given to there being an opportunity for the Father to spend time with X including, if ultimately appropriate, time supervised by family members or unsupervised time. The Court will be better placed to make final orders if it does not simply freeze the parenting arrangements as they subsisted in November 2019, without considering the matter further.
A primary consideration under section 60CC(2)(a) of the Act is that a child have the benefit of a meaningful relationship with both of the child’s parents. Simply insisting that there be no change to the existing parenting orders without considering the matter further may well produce the result that X does not have an opportunity to develop a relationship with the Father prior to trial. That in turn may limit the time the Court is prepared to order that X spend with the Father in any final hearing.
Finally, applying the principle in Rice v Asplund in the present circumstances will not bring the proceedings to end. A final hearing is still to be conducted. The parties will incur the expense of preparing for that hearing. X will in all likelihood be subject to an updated family report. Accordingly, one of the significant benefits of applying the Rice v Asplund principle will not arise in this case.
Of course, in a case such as the present, it may be said that the Father has created the present situation. That much may be true given, on the face of things, he has elected not to spend time with X since January 2020, and not even contact her by phone or social media. The task with which I am engaged, however, is not to punish the Father. Rather, the task is to ensure that any orders made by this Court, either now or at any final hearing, are in X’s best interests. That necessarily incorporates providing an opportunity for X to have a meaningful relationship with the Father.
For all of the above reasons, I now propose to consider the Father’s application in respect parenting orders.
The Application to vary parenting orders
Relevant Principles
The Full Court in Goode & Goode [2006] FamCA 1346 set out at paragraphs [81]-[82] the approach to be adopted in interim parenting matters. The Full Court emphasised that the legislative pathway must be followed.
The Court cannot determine factual issues in dispute in an interim hearing. That does not mean that the Court ignores allegations as to risk if they are plausibly made. The Court at an interim stage must assess the risks to the child as best as it can with the limited information available to it.
In determining interim parenting matters, section 60CA of the Act provides that I must regard the best interests of the child/ren as being the paramount consideration.
In determining the best interests of the child/ren there are two primary considerations and several additional considerations to take into account.
The two primary considerations are:
a)The benefit to the child/ren of having a meaningful relationship with both parents; and
b)The need to protect the child/ren from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I am required pursuant to section 60CC(2A) of the Act to give greater weight to the second of those two primary considerations, being the need to protect the child/ren from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the hearing, the parties addressed me on an issue by issue basis, and not by reference to each factor set out in section 60CC of the Act. These reasons follow that course.
Consideration
In respect of the parenting matters, the Father effectively seeks two things. First, in the Application, the Father sought that his time with X become unsupervised. By the time of the hearing, however, he accepted that some supervision was necessary given the length of time that he had not seen X. He sought that time be supervised by a private supervisor, a person by the name of Ms H, a health care worker who previously worked for him. Second, he also sought the removal of those orders contained within the November Orders, under which he was not to consume or ingest illicit substances, was required to undertake regular drug screen testing at clinics nominated by the Mother, and that his time be suspended in the event of a positive drug screen.
I deal firstly with the question of supervised time. Time is ordered to be supervised ordinarily where there is a risk of the type contemplated by section 60CC(2)(b) of the Act. In my view, the Father’s time needs to be supervised by a professional supervisor for the following reasons.
First, for reasons articulated later in this judgment, and on which I rely, the Court remains concerned as to whether the Father continues to use illicit substances. The Court acknowledges that the Father has placed before it, evidence which indicates he may be free from illicit substances. For the reasons articulated later in this judgment, the Court has given that evidence little weight. Accordingly, any risks to X in the short to medium term from any drug use that the Father may have engaged in is best eliminated by ensuring that time X spends with the Father is professionally supervised.
Second, the Family Report by Dr D outlines, in my view, a range of behaviours of the Father which warrant continued professional supervision. I do not accept the submission of the Father that Dr D’s report was overly influenced by the positive drug screen result, and/or that she has displayed bias. While the Father made those submissions, the fact remains that Dr D was not requested to give evidence, or be subject to cross-examination. Her evidence therefore needs to be carefully considered and appropriate weight given. In that context, in paragraphs 58-83 of her Report, Dr D refers to a number of matters that she took into account in preparing her report. These include, among other things:
a)that the attachment between the Father and X was tenuous;
b)that the Father focused on illness concerns in his interactions with X which may increase X’s anxiety;
c)that the Father’s capacity to parent independently remained untested;
d)that telephone contact was important for the Father to maintain his relationship with X (which as I have noted, he has not done);
e)the tendency of the Father to blame others for his feelings and his need to learn appropriate coping and communication strategies.
Third, the Court has before it the report prepared by the previous supervisors at J Family Services. That report dated 10 August 2020 discloses behaviour of the Father that, in my view, warrants continued professional supervision. The behaviour to which I refer includes the Father bringing the grandmother to the supervised visit without prior agreement, and not engaging with the supervisor’s questioning of this, the grandmother taking a video throughout the session, and the Father’s apparent indifference to listening to messages from the Mother about the welfare of X.
Fourth, I regarded professional supervision as being in the best interests of X when I made the November Orders. Very little has changed since I made those orders. The Father has not spent any time with X since January 2020. He has not contacted her since that time. The Family Report describes the attachment between the Father and X as tenuous, something that will only likely have been exacerbated by the Father failing to spend time with X. Professional supervision in my view is required given the length of time that the Father has not seen X. Further, a professional supervisor will be able to prepare a report for the final hearing, which is likely to be of benefit to the Court in determining what is in X’s best interest at that time.
Fifth, there is no material before the Court in relation to the Father’s proposed private supervisor, Ms H. She is not on affidavit. She has not provided an undertaking prior to hearing. The Court knows nothing about her.
There two further matters that require mention. The Father says that he ceased supervised time in January 2020 because he was unable to afford the cost. I have some doubts about that explanation given the financial position of the Father (which I examine in some detail later in these reasons). The Father on his own evidence earned approximately $140,000 in the FY2020. He also made withdrawals totalling $20,000 from his superannuation account in April and July of this year. Fathers with far fewer means than the Father come before this Court every day and make serious sacrifices to see their children in professionally supervised circumstances. The situation of this Father does not even come close to others who are here regularly. Yet he maintains he could not afford supervision. Even if it was the case, however, that there was some restriction on his finances, it does not explain the Father’s decision not to contact X by telephone at all since January 2020, an option that was available to him under the existing orders. This was a cost free option. The Father elected not to utilise it.
When I raised the matter of the Father’s failure to contact X by phone or Skype at the hearing, his Counsel indicated that he was prevented from doing so because an intervention order had been made in December 2019, and the present orders of the Court had not been varied to deal with the advent of that intervention order. Again that excuse is less than compelling. Eight months have passed and the Father did not take a formal step to rectify the matter. He could easily have come to this Court and sought an order that the orders made by this Court prevail over any intervention order under section 68Q of the Act. He did not do so.
I turn then to deal with the question of drug screens. The previous orders requiring the Father to undertake drug screens arose in circumstances where an earlier test result on 7 March 2019 disclosed a positive result for Sympathomimetic Amines and benzodiazepine use. That result was subsequently taken into account by Dr D when she prepared the Family Report. Two things have happened since that time. First, the Father has placed before the Court evidence from experts which indicates that the positive result on 7 March 2019 was likely a false positive. Second, the Father has undertaken five urine tests (on 13 March 2019, 5 June 2019, 8 November 2019, 27 January 2020 and 10 August 2020) and two hair follicle tests (on 11 November 2019 and 27 August 2020) all of which do not disclose any positive results.
The following observations may be made about the drug screen results the Father placed before the Court. First, the undertaking of the drug screens by the Father did not occur in a manner consistent with that contemplated by the November Orders. The urine drug screens were to occur monthly. Clearly this has not occurred. Further, the hair follicle tests were to occur quarterly. That has not occurred. I note that two of the urine screens relied on by the Father pre-date the November Orders. The hair follicle test results are 10 months apart, and not three months apart as contemplated by the November Orders. The Father therefore seeks to remove a regime of drug screen testing that the Court considered appropriate and in X’s best interests, without even having complied with it.
The Father needs to understand that the purpose of the comprehensive regime set out in the November Orders was to ensure that he was drug-free on a long-term basis and as a result, did not pose a risk to X. By not complying with the regime set out in the November Orders, the Court cannot be satisfied that he has remained drug-free on a long-term basis and that he poses no risk to X. It is no answer to non-compliance with the regime established in the November Orders to produce drug screens or hair follicle tests as the Father has done in this case, at times that he has selected. It is entirely possible that the Father has undertaken the tests at times that he knows that he is free from illicit substances. Further, the Father is a health care worker and it cannot be discounted that he knows how to influence certain test results. That is certainly what the Mother contends.
Turning then to deal with the expert reports that the Father placed before the Court which indicate that the positive drug screen result in March 2019 was a false positive. The Mother objected to that evidence on the basis that, among other things, the evidence was hearsay evidence and that the experts who provided the results were not on affidavit. The objections of the Mother carry some weight and I will not have regard to those reports. The Father has had ample opportunity prior to making this application to call the experts and place them on affidavit. He has elected not to do so. Further, and in any event, the entire issue as to whether the Father uses illicit substances would have, by this time, receded well into history had the Father undertaken the relevant drug screens in accordance with the November Orders.
The Mother’s submission in relation to all of this is to say that I should simply not make any alteration to the November Orders. While I understand the basis for that submission, it is an outcome that does not accord with what is in X’s best interests. As matters presently stand, the matter will proceed to final hearing in April 2021. It is incumbent upon me to consider what steps might be reasonably and safely taken between now and the final hearing to enable the Father, if he chooses, to develop a relationship with X. If no change is made to the arrangements, the likely position will be that the Father will appear at the final hearing still subject to a regime of supervised visits and a regime of stringent drug testing. That may well lead to a situation where the Court severely limits the time he spends with X under any final orders of this Court. It will certainly not aid the Court in making final orders that are in X’s best interests.
The November Orders contemplated a drug screen regime of 12 months and assumed that the Father would see X in that period. He has not seen X from January to now and approximately 12 months have passed since those orders. My job is to decide a sensible regime that appropriately takes into account risk in circumstances where the Father has not seen X for 8 months, but has produced some clean drug screens.
Weighing all of the above matters, I consider the following to be in X’s best interests:
a)I will make an order that orders 6 and 7 of the November Orders be vacated and in their place, make an order that the Father, at his cost, undertake two final hair follicle tests in the lead up to trial. The first test must occur in the week of 1 December 2020, and the second test must occur in the week commencing 15 March 2020. The tests are to occur at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee. The Father must provide the results of those tests to the solicitors for the Mother upon receiving them;
b)given the further tests to be completed, I will not discharge orders 5 and 8 of the November Orders; and
c)the Father should file with the Court and serve on the Mother, an updated report from a professional supervisor prior to final hearing.
There is one final matter that requires mention. From what I have seen, I harbour doubts about the commitment of the Father to X. He has not complied with orders of the Court. He has not availed himself of supervised time for eight months. He has not taken the opportunity to telephone his child. Yet, he came to this Court initially seeking orders that all his time with X be unsupervised. In my view, the Father between now and the final hearing needs to demonstrate a serious and sustained commitment to building a relationship with X. Her time with him is not something that he can simply switch on and off according to his whims. That approach will simply hurt X. If the Father fails to demonstrate a serious and sustained commitment to building a relationship with X between now and final fearing, then, regrettably for X, there may consequences that the Father will have to face.
The Application in relation to Financial Matters
The Father seeks orders discharging order 5 of the August Orders (which deals with the payment of various expenses for the benefit of the Mother) and order 13 of the November Orders (which deals with spousal maintenance). The Application is pursued under section 83 of the Act.
Should the Court entertain the application?
As with the parenting aspect of this matter, the Mother submits that the Court should not entertain the Application. The Mother submits that the Court has a discretion not to deal with the Application on the basis of the Father’s non-compliance with previous orders of the Court.
There is not any dispute that the Father has not complied with financial orders made by this Court. The Court ordered the Father to pay spousal maintenance of $400 per month on 21 November 2019. The Father, on his own evidence, has not paid spousal maintenance since the period ending 28 January 2020. The Father has also, on his own evidence, not paid the mortgage repayments on the property owned by the parties since at least 19 April 2020, and perhaps earlier, having placed a freeze on the mortgage repayments. The Father’s reason for not making these payments is that his income has deteriorated significantly since the orders were made.
The Father’s contravention of the orders referred to above is significant, serious and sustained. The order in respect of spousal maintenance was made after a hearing in this Court. The Court formed the view not only that the Father had the capacity to pay, but that the Mother was in need of the payments. He has flagrantly disregarded the order. Not only did he disregard it, but he appears to have disregarded it a mere 2 – 3 months after the order was made and continued to do so for months until he filed the present Application.
Accordingly, the Father now comes before this Court having contravened the orders for months now, knowing it would cause financial pain, and seeks to have the orders changed.
In Watson, a Full Court of the Family Court of Australia considered an appeal by the husband. The husband appealed orders from a Federal Magistrate. The Federal Magistrate had refused to hear the husband’s application because the husband had not complied with Court orders in earlier, separate, proceedings.
The Full Court allowed the husband’s appeal. In doing so, however, Strickland and Kent JJ (with whom Murphy J agreed) reviewed the development of the rule that a party in contempt of orders ought not be heard. Having examined the history and development of the rule, Strickland and Kent JJ were satisfied that the rule could apply in proceedings under the Act. At paragraph [36] of their reasons, Strickland and Kent JJ distilled a number of propositions requiring consideration when a Court is considering the discretionary rule that a party in contempt may not be heard when a court is exercising jurisdiction under the Act.
The Father submitted that I ought not have regard to Watson on the basis that it was a case concerning proceedings related to section 79A of the Act. I reject that approach. The principles enunciated by the Full Court in Watson clearly apply to a matter such as the matter presently before me.
At the outset, it is to be observed that the issue which arose in Watson does not arise here. In the present matter, the non-compliance by the Father with orders has occurred in the same proceeding in which the present Application arises. That being the case, whether I should exercise my discretion depends upon matters including those identified by Strickland and Kent JJ in paragraph [36(g)] of their reasons. It is important to observe that the matters referred to by Strickland and Kent JJ in paragraph [36(g)] of their reasons are not to be taken as an exhaustive list of factors that the Court may consider in exercising its discretion. The Court may take into account other appropriately relevant matters.
I now turn to identify and assess the factors that I consider to be relevant to whether I should exercise my discretion.
The Father has, in the circumstances of this matter, contravened orders of significance and substance. The contraventions by the Father are not contraventions of what might be described as procedural or ancillary orders. They are contraventions which have denied the Mother access to money which, in respect of spousal maintenance, the Court has determined after a hearing that it is appropriate to pay.
In respect of the above, the Father might well say that he has now offered to make up those shortfalls in payments up to the time he filed his Application. While that might be true, it does not dissuade me from the view that the contraventions are serious. The Father did not initiate this application on the basis that he would make up the shortfalls. He came to Court seeking that the amount he is required to pay be reduced to nil, with no offer from him to make up the amounts owed. It was only my intervention, and displeasure at his non-compliance during the hearing, which ultimately extracted a commitment from his Counsel that amounts due up to the date of the filing of the Application (at least) would be paid.
In addition to the above may be added the following. It is well and good for the Father to make up the payments now. That, however, does not rectify the difficulties that the Mother and X may have faced because of the Father’s non-compliance with the orders. As the Father might well appreciate given his claimed circumstances now, regular expenses or maintenance payments are important to the overall welfare of an individual. Making good any shortfall now is simply appropriate. It does not however, alleviate or rectify the very real difficulties, stress and anxiousness likely to have been faced by the Mother who was waiting for payments month on month, only to find they did not materialise. In short, the Father’s conduct has resulted in the Mother not having the benefit of the orders obtained by her. In that sense, she has been denied justice.
It is then necessary to consider the public policy considerations that arise in this case. The Father comes to Court eight months after the spousal maintenance order was made, and the August Orders were affirmed. His Application sought to have the amount payable by him be reduced to nil. He made no offer in his Application to repay the amounts owed. He does this in circumstances where he never sought to appeal the November Orders, and simply seeks that the Court reconsider his situation.
In my view, public policy considerations do not weigh in favour of this Court entertaining the Father’s application. To do so would simply encourage litigants who have received unfavourable interim decisions to not comply with the orders of the Court but some time to later bring an application seeking to change those orders where there has been serious and sustained non-compliance. That is a situation to be avoided. It would encourage ongoing applications. It would increase the number of hearings in this Court, which is a Court plagued by already lengthy waiting times, and in turn it would undoubtedly increase costs for all parties. The overall effect would be to increase the length of time it takes litigants to reach final hearing and encourage non-compliance with Court orders.
I have given some consideration, in the context of the discussion above, as to the position of the Father. In short, his case is that his income has deteriorated to such a point that he can now no longer comply with the previous orders, and he seeks to have those orders changed. In that context, it is relevant to consider whether applying the principle that the Father ought not be heard deprives him (and others in his position) of a substantive right to, among other things, pursue an application to modify spousal maintenance orders under section 83 of the Act.
In my view, nothing I have said sensibly impedes the rights of a party to pursue an application under section 83 of the Act. The Father, except for a short period, has not complied with the current Orders. Had he complied fully, there would be no impediment to his pursuit of the application. It might be that there are cases where circumstances change which means payments from one spouse to another can no longer be made. If that is the case, then one would expect an application to be brought in this Court quickly, rather than waiting 8 months to do so. Finally, and in any event, in this matter, for reasons that are set out below, I consider the Father has failed to demonstrate a change in circumstances.
For all of the above reasons, this is a matter in which I exercise the discretion available not to hear the Father’s application.
The Father’s application
In the event I am wrong, and for completeness, I add that I would nevertheless have come to the view that the existing orders not be varied for the reasons that follow.
Section 83 of the Act relevantly permits a Court to:
a)discharge an order with respect to maintenance if there is any ‘just cause’ for doing so (section 83(1)(c) of the Act);
b)vary an order for maintenance so as to increase or decrease the amount if it is satisfied that since the order was made the circumstances of the person liable to make payments under the order have so changed (ss 83(1)(f) and 83(2)(a)(ii)).
The Act does not define the term ‘just cause’. A cause will be just only if having regard to the provisions in the Act, it can be said that it is right or proper that the orders be discharged: In the Marriage of Lutzke (1979) 5 Fam LR 553. Self-evidently, the Court must have regard to, inter alia, the considerations set out in sections 72 and 75 of the Act.
Importantly, in respect of a change in circumstances, it is an applicant that must demonstrate a change of circumstances to justify the variation: In the Marriage of Astbury [1978] FamCA 28. The circumstances to be considered relate to the financial needs and the capacity of the parties, and not to the conduct since the order was originally made.
The Father’s case may be summarised briefly as follows. The Father’s taxable income in the year ending 30 June 2018 was $274,976. The current maintenance orders were based on income at or about this level. The Father claims to have experienced a significant deterioration in his income. As at January 2020, his claimed gross weekly income was $2,914 per week. Further, by 20 July 2020, his claimed gross weekly income was $1,438 comprising $688 from his private business and $750 from the Job Keeper scheme. Against this, the weekly amounts payable to the Mother under the existing orders amount to $1,143 per week and the Father’s personal expenses amount to $1,431 per week. Accordingly, the Father says he is suffering a weekly deficit of $1,136 per week
In my view, the Father has not demonstrated on the evidence a change of circumstances to justify the variation sought.
The evidence before the Court is that until very recently, the Father earned a good income and that income increased year on year. I outlined the increases in income over several years in my decision in November 2019: Nabati & Nabati [2019] FCCA 3368 at [17] (‘Nabati No.1’). Suddenly, the Father claims that this upward trajectory in income has not only stopped, but declined to almost a pittance. The Father asserts that this stems from a decision to set up his own business and leave his current business.
I harbour some doubts about the Father’s explanation in relation to his decline in income. First, the Father foreshadowed a decline in his income in his affidavit of 26 January 2020. No explanation was provided at that time as to why he foreshadowed such a decline. On his own evidence, he was not contemplating setting up his own business at that time. Second, the evidence from the Father as to the circumstances of his leaving his employment at Employer K is brief and vague. He simply deposes to discussions he had with the principal and says it was agreed he would leave the premises. No explanation is provided as to what occurred, or why it is that a person on a good income, in the middle of a family law dispute with significant legal bills being accrued, would leave to set up his own business in the middle of a global pandemic.
There is then the Father’s evidence in relation to the establishment of his new business. The evidence is once again scant at best. The Father deposes, among other things, to taking up premises in L Street, Suburb M, to set up costs incurred and to insurance taken out. He has not annexed to his affidavit, however, any supporting documentation. For example, there is no lease agreement attached confirming his leasing of the premises in L Street, Suburb M. He has not annexed any professional indemnity insurance schedule taken out in his name. He has not annexed any of the ordinary documents one expects to see when establishing a business, such as a business plan, financial plan or budget. In summary there is no evidence, other than the bald statement in the affidavit, to support the Father’s claim that he has established himself in independent employment.
The Father says in his Financial Statement dated 30 July 2020 that he is now in receipt of the Job Keeper supplement. Once again, however, he has not included in his evidence, any documents that support his receipt of the Job Keeper allowance. For example, he has not included the application he submitted in order to obtain any allowance, any supporting documentation he submitted in order to obtain the allowance, or any bank statements supporting his receipt of the allowance.
There is then the evidence that the Father has submitted in order to demonstrate that his income has declined. The Father claimed that he has suffered a decline in income in FY2020. In order to demonstrate this, the Father relies on Annexure -2 to his affidavit of 28 July 2020, and Annexure -1 to his affidavit of 26 August 2020 which contains a letter from his accountant. I give each of these documents little weight. Annexure -2 comprises a document in table form prepared by the Father, as well as documents such as payment summaries. He has not attached any independent evidence supporting the income he claims to have earned in FY2020, for example, a tax return or source documents. Insofar as the letter from the Father’s accountant at -1 to the affidavit of 26 August 2020 is concerned, the following is relevant. First, the entire letter is nothing more than hearsay. If the Father wanted to rely on the opinion of his accountants, they should have been put on affidavit. Second, the opinion has been provided on the basis of an apparent review of source documents, but none have been provided. Third, the document confirms that gross fees earned in the FY2020 were $407,437 according to the Father’s BAS Statements. I accept that gross fees are not income and that it is not appropriate to regard the Father as having received in income the amount of $407,437 contained in his BAS statement. The difficulty, however, with accepting that the Father’s income is as stated by the accountant is that the accountant is not on affidavit, and there is no source documentation which enables me to be satisfied that gross fees of $407,437 produced the legitimate result that the Father earned the amount of $140,558.75 he claims to have earned in that year.
Further, a close review of that evidence discloses some other inconsistencies within the Father’s evidence. For example:
a)In Annexure -2 to the affidavit of 28 July 2020, the Father claims that his income for the FY2020 year was approximately $140,000. The calculations provided by his accountant however at exhibit -1 to his affidavit of 26 August 2020 disclose an income for that year of approximately $180,000. The accountant in his statement says that the differential is because certain invoices relate to income that was earned in the prior year being FY2019. That might well be the case. If it is the case, however, one would expect to see an amendment to the tax return for the FY2019 year that reflects the adjustment. No amendment to the FY2019 tax return is in evidence before me.
b)An issue with ascertaining the Father’s income is the level of management fee he was required to pay to Employer K. In his affidavit of 26 August 2020, the Father deposes that the service fee was increased to 50% from March 2019 and remained that way for the remainder of that financial year. That assertion of the Father’s, however, is not supported when one has regard to his FY2019 tax return, which is exhibit 9 to his affidavit of 26 January 2020. In that affidavit, gross income of the Father is stated to be $361,401, and the management fees for Employer K are said to be $124,548. $124,548 is 34.4% of $361,401 over the 12 month period. It cannot be that the Father was paying a 50% management fee to Employer K in the months of March 2019 – June 2019, and 35% prior to that, when his tax return discloses a management fee of 34.4% of the entire 12 month period.
c)The calculations provided by the Father’s accountant at exhibit -1 to his affidavit of 26 August 2020 indicate that earnings from his business for the FY2021 year to date, from 1 July 2020 to 19 August 2020, total $5,268.58. A quick calculation discloses that over that 7 week period, the Father’s average weekly income based on that figure would total approximately $752.65. This is different from the amount asserted by the Father in his Financial Statement dated 30 July 2020, and re-affirmed by his Counsel during the hearing, of $688 per week.
The inconsistencies above, and the lack of evidence from the Father concerning his establishment of a business, lead me in turn to doubt the Father’s claims in his material that his income has been in decline for the past 8 months, and that his current year (FY2021) earnings from fees equate to approximately $5,674.
There are three other matters that are relevant to the Father’s capacity to continue to pay spousal maintenance and other expenses contained within previous orders of this Court, and his claim that he has been subject to a change in circumstances.
First, the Father has had access to $80,000 that he withdrew unilaterally from the parties’ bank accounts and separation: see paragraph [20] of Nabati No.1.
Second, he has apparently had the capacity to continue to incur significant legal fees. His Counsel indicated that so far, his fees incurred are in the range of $58,000 - $60,000.
Third, and significantly, it is the Father’s own evidence that whatever his claimed state of income is at present, he expects his income levels will improve in coming months. That statement by the Father is telling. In the absence of any explanation by the Father as to why he chose to leave Employer K, it is open to the Court to consider that the Father would only have set up his own business if he believes it would ultimately be in his long-term financial interest to do so, and that he would be better off financially as an independent contractor, rather than working at Employer K and having to pay Employer K management fees.
Insofar as the Father contends that there exists a just cause for modifying the orders, I reject the contention. It is not just to contemplate varying the orders in circumstances where the Father has for a lengthy period of time not complied with those orders. It is also not just to vary the orders in circumstances where, as I have found above, the Father has not been able to demonstrate a change of circumstances on the evidence before me.
Accordingly, in relation to this matter, I have concluded that I should exercise my discretion not to entertain the Father’s application to vary the financial orders made by this Court. If I had been required to consider the matter, for the reasons above, I conclude that the Father has not demonstrated that there exists a just cause or a change in circumstances which justify a variation to the previous financial orders made.
There is one final matter requiring mention. The pool in this matter is a modest one. The parties’ legal expenses in the matter are horrendously high, given what is available. It is to be hoped that common sense may soon prevail, and a resolution reached, which will save the parties what little they appear to have left.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 13 November 2020
ANNEXURE ‘A’
The Father make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of- Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:
(a)The Father is required to maintain his head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(b)Within seventy-two (72) hours of the date of these orders, the Father is required to make an appointment with AWDTS by telephoning 1300 37 84 83 for the purpose of providing a hair sample for hair drug testing purposes;
(c)Each party or their legal representatives is at liberty to provide AWDTS with a copy of these orders;
(d)Written notice to undertake hair collection for hair drug testing purposes may be sent to the Father care of his solicitors and shall be deemed to have been received by the Father at the date and time it is sent via email;
(e)The Father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to both parties, their legal representatives and the Independent Children’s Lawyer (if applicable) upon receipt of such test results;
(f)The hair drug test may screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this order as required.
AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available.
Key Legal Topics
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Family Law
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Civil Procedure
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Appeal
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Jurisdiction
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