Niem & Tong
[2016] FamCA 1089
•19 December 2016
FAMILY COURT OF AUSTRALIA
| NIEM & TONG | [2016] FamCA 1089 |
| FAMILY LAW – PROPERTY – Interim proceedings – Whether it is appropriate to make interim orders – where the total asset property is not known – Where there are creditor District Court Proceedings pending – Where a trustee is to be appointed by agreement for sale of investment properties – Where both husband and wife seek that the property be sold – Where the wife is authorised to use funds to settle District Court proceedings. FAMILY LAW – CHILDREN – Interim proceedings – Where interim order for equal shared parental responsibility – Where discussion of applicable considerations as to the children’s best interests – Where there is a lack of parental insight – Where the parents are restrained from physically disciplining the children – Where the older children to live with the father – Where the younger child to live with the mother – Where the younger children to spend time together – Best interests of the children. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 79, 114 |
| Banks [2015] FamCAFC 36 Deiter& Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FLC 93 Goode and Goode: [2006] FamCA 1346 Harris & Harris (1993) FLC 92 Keats [2016] FamCAFC 156 Marvel & Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348 MRR v GRR [2010] HCA 4 Strahan & Strahan [2009] FamCAFC 166 |
| APPLICANT: | Ms Niem |
| RESPONDENT: | Mr Tong |
| FILE NUMBER: | PAC | 3572 | of | 2014 |
| DATE DELIVERED: | 19 December 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 14 November 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lethbridge |
| SOLICITOR FOR THE APPLICANT: | Maclarens Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Givney |
| SOLICITOR FOR THE RESPONDENT: | Steven Stefanou & Co |
Orders
Pending further order:
Parenting
That the mother and father have equal shared parental responsibility for the children B born … 2001, C born … 2005 and D born … 2010.
That the child B live with the father and spend time with the mother in accordance with his wishes.
That the child C live with the father.
That the child C spend time with the mother as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement each alternate weekend commencing on the first weekend after the date of these orders from after school (or 3.00 pm on a non-school day) Friday to before school (or 5.00 pm on a non-school day) the following Tuesday.
That the child D live with the mother.
That the child D spend time with the father as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement each alternate weekend commencing on the second weekend after the date of these orders from after school (or 3.00 pm on a non-school day) Friday to before school (or 5.00 pm on a non-school day) the following Tuesday.
That the mother and father be and are hereby restrained from physically disciplining the children.
That the mother and father are at liberty to attend on occasions significant to the welfare of the children and each of them in relation to the children’s schooling, religious education, extracurricular activities, and such other occasions significant to the welfare of the children where the attendance of either or both parents is to be reasonably expected.
That the mother and father keep each other informed at all times of their respective mobile telephone numbers and landline telephone numbers, if applicable, and notify the other in the event of any change within 24 hours of any such change occurring.
That the mother and father keep each other informed at all times of any general practitioner or other health practitioner on which any of the children attend and do all necessary things so as to authorise the other to be provided with any reasonably requested information in relation to the attendance on such practitioners.
That for the purposes of changeovers where not at school the father as necessary shall deliver the child C to the mother’s residence or any other venue agreed to and reasonably nominated by the mother for the commencement of the mother’s time with the child and the mother shall deliver the child D to the father’s residence or any other venue agreed to and reasonably nominated by the father for the commencement of the father’s time with the child and that at the conclusion of each parent’s time with C or with D, as applicable, the parent with whom the child has been spending time shall return the child to the other parent’s residence or any other venue agreed to and reasonably nominated by that other parent.
Property and Injunctions
That within 14 days from this date the husband as Appointor of the E Trust shall appoint Mr F, Solicitor as Trustee of the Trust for the purposes of selling by public auction the real estate properties 1 and 2 G Street, Suburb H for the best price reasonably obtainable and upon sale disburse the proceeds of sale in the following order and priority:
(a)in payment of auction and advertising expenses and agents commission on the sale;
(b)in payment of legal expenses of and incidental to the sale;
(c)in payment of the Trustee’s reasonable fees and expenses of and incidental to the sale of the said properties;
(d)in discharge of the mortgage encumbrances secured thereon including any arrears payable at the time of sale;
(e)in payment of the then remaining balance of proceeds of sale to an interest-bearing controlled monies account in the names of the solicitor for the husband and the solicitor for the wife jointly with such account to be held on trust for E Pty Ltd as trustee of the E Trust pending further order.
That forthwith upon final settlement of the sale of the real estate properties as provided for in the previous order, the husband shall do all things necessary as Appointor of the E Trust to reappoint E Pty Ltd as trustee of the E Trust.
That within seven days from this date the husband do all necessary things and sign all necessary documents and authorities so as to authorise and permit the wife to contact and negotiate with I Pty Ltd being the plaintiff in proceedings 2016/… in the District Court of New South Wales so as to procure, if possible, a compromise and final settlement of the claims made in those proceedings.
That within seven days from this date the husband do all necessary things and sign all necessary documents and authorities to authorise and direct Stephen Stefanou and Co, Solicitors to pay $50,000.00 of the trust monies presently held by him on behalf of the husband to the wife as she may direct the solicitor in writing and thereafter the husband be at liberty to direct the application of the balance then remaining.
That within seven days from this date the husband do all necessary things and sign all necessary documents and authorities to authorise and direct Mr J, Solicitor to account for the trust monies presently held by him on behalf of the husband in the following manner and priority:
(a)as to the sum of $50,000.00 provided for in orders made 13 October 2016 if not already paid, to be paid to the wife as she may direct the solicitor in writing;
(b)as to the balance of funds then remaining in trust (estimated to be about $142,000.00) to the wife’s solicitors to be held in trust by those solicitors for the parties jointly and only to be disbursed in payment of all or part of any settlement reached in relation to the I Pty Ltd proceedings.
That the wife is hereby authorised and permitted to apply funds presently held in the parties’ ANZ Joint Account as necessary in payment of any settlement reached in relation to the I Pty Ltd proceedings after payment of funds as provided for in the previous order.
That otherwise the husband and wife are restrained from dealing with in any way or permitting the withdrawal or diminution of the balance of funds thereafter remaining in their ANZ Joint Account pending further order.
That the wife, having sole use and occupation of the former matrimonial home at K Street, Suburb L to the exclusion of the husband by reason of orders made 13 October 2016, shall pay as they fall due and payable outgoings in relation to that property including but not limited to Council rates, water rates and property and contents insurances.
That the husband be and is hereby restrained from selling, mortgaging, leasing, encumbering or otherwise dealing with the property at K Street, Suburb L pending further order.
That otherwise all interim applications before the Court are dismissed.
That proceedings be adjourned for further judicial case management to 9.30 am on Friday, 10 February 2017 and it is noted that such listing is to facilitate the appearance of the Independent Children’s Lawyer appointed by order on 14 November 2016 and to give consideration to the appointment of an appropriate Chapter 15 expert as to parenting issues and an appropriate Chapter 15 expert for the purpose of corporate valuations.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Niem & Tong has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3572 of 2014
| Ms Niem |
Applicant
And
| Mr Tong |
Respondent
REASONS FOR JUDGMENT
The interim applications for determination relate to interim property and parenting issues.
Proceedings commenced in August 2014 promptly on the parties’ separation.
The husband relied on:
a)His affidavit filed 15 September 2016;
b)His affidavit filed 3 November 2016;
c)His affidavit filed 11 November 2016;
d)His affidavit filed 13 November 2016;
e)His financial statement filed 13 November 2016.
The wife relied on:
a)Her affidavit filed 28 September 2016;
b)Her affidavit filed 12 October 2016;
c)Her affidavit filed 11 November 2016;
d)Her financial statement filed 28 September 2016.
Context
The father is presently 48 years of age and was born in Country T. The mother is presently 41 years of age and was born in Country U.
The mother and father commenced cohabitation at the time of marriage in 1996.
There are three children of their relationship, B born in 2001 now nearly 15 years of age, C born in 2005 now 11 years of age and D born in 2010 now six years of age.
The parties finally separated in August 2014 when the father moved out of the former matrimonial home at Suburb L.
After separation the children resided with the mother at the Suburb L home until early February 2016 at which time the eldest child B moved to reside with the father. Thereafter in mid-April 2016 the child C also commenced to reside with the father. The youngest child continues to reside with the mother.
The eldest child is currently in Year 9 at a private school in Suburb L. The child C is presently in Year 6 at a private school in Suburb L. The youngest child is presently in kindergarten at a local public school.
The father is a suspended health professional who was suspended from practice in August 2014 for abuse of prescription medication. He asserts he is presently not engaged in any form of employment.
The mother is self-employed in a business as discussed below.
Some financial history
In 2001 the parties purchased the matrimonial home at K Street, Suburb L in the husband’s name. The property is unencumbered.
In April 2002 the husband purchased a home unit property at M Street, Suburb N for $300,000.00. The totality of the purchase was funded by borrowings of $323,000.00. This property was sold by the husband in March 2016 for $608,000.00 with net proceeds of $312,290.00 paid into the trust account of Stephen Stefanou and Co, solicitors. Of these funds $212,290.00 was paid to the husband on 31 March 2016, leaving a balance in trust of about $100,000.00.
In April 2004 the parties jointly purchased a home at O Street, Suburb P for $1.22 million. The totality of the purchase price was funded by borrowings of $1.29 million. The property also had a later ANZ Line of Credit Facility for $438,000.00 secured against it. It remained undrawn for a time. On 30 August 2012 $400,000.00 was drawn against the facility: the disposition of these funds is not clear. The Line of Credit Facility was discharged on sale of the property in December 2015 with a payment of $440,000.00 from the proceeds of sale.
This property was sold by the husband and wife in December 2015 for $1.651 million with net proceeds of $363,839.00 paid into the trust account of Mr J, Solicitor. Subsequently in January 2016 the husband and wife agreed to the release funds of $166,629.00 to the Australian Taxation Office to meet outstanding taxation liabilities of Q Pty Ltd. The balance of $197,209.00 remains in the solicitor’s trust account of which $50,000.00 is to be paid to the wife by reason of orders made by consent previously.
In May 2005 the husband purchased a property at R Street, Suburb S for $217,000.00. The amount that financed the purchase was $523,000.00. This property was sold by the husband for $645,000.00 in December 2015 with the net proceeds of sale of $192,242.00 held in the trust account of Mr J, solicitor. These funds were later transferred to the trust account of Stephen Stefanou and Co, solicitors and of those funds $142,240.00 was released on 6 April 2016 to the husband leaving a balance of these funds in the solicitor’s trust account of $50,000.00.
As at 31 March 2016 Stephen Stefanou and Co, solicitors held a balance in trust of about $292,240.00 on behalf of the husband. The husband directed that $142,240.00 of those funds be released to him leaving a balance in trust of $150,000.00. He has recently transferred a further $100,000.00 to the trust account from his available funds. Further legal fees have been debited against the trust account since leaving a balance in trust as at 13 November 2016 of $88,167.00.
In 2007 the husband financed with I Pty Ltd the purchase of a German motor vehicle (…) in the sum of $120,000.00. That loan was refinanced in May 2014 in the amount of $38,575.00. As at June 2016 the amount owing on the loan was about $30,000.00. Subsequently in August 2014 the husband financed with I Pty Ltd the purchase of a 4WD motor vehicle. The amount financed was $55,000.00 and the balance outstanding as at June 2016 was about $45,000.00.
From 2009 the husband by way of loan from Q Pty Ltd borrowed funds to meet other matrimonial liabilities and to purchase properties in Country T. The sum owed to Q Pty Ltd at present is about $1.3 million. Funds were deposited mainly to the parties joint ANZ account 8242 from which it appears the mortgage on the parties’ home at Suburb L was paid out.
In November 2014 the sum of $535,118.00 was held by the wife in ANZ Term Deposit 3393. These funds were later paid to the parties ANZ Joint account from which the husband received $50,000.00 and thereafter by reason of various direct debits the balance is now about $426,000.00.
The Corporate Entities
After marriage and in May 1999 the father incorporated Q Pty Ltd.
As at 30 June 2014 Q Pty Ltd has retained profits of $2.984 million. Available company funds were advanced by way of loans to the husband $1.152 million), the V Trust ($445,000.00) and W Pty Ltd $1.265 million) totalling $2.862 million. In 2014 Q Pty Ltd made a trading loss of $49,188.00 but from unappropriated profit paid dividends of $349,000.00.
In September 2009 the husband commenced through V Pty Ltd as trustee of the V Trust trading as a business and later “Q Pty Ltd Staffing” with this entity taking over the work of Q Pty Ltd with Q Pty Ltd thereafter providing management services to Q Pty Ltd Staffing.
In October 2009 E Pty Ltd was incorporated and subsequently was appointed trustee of the E Trust:
a)The husband is the appointor and default beneficiary of the Trust.
b)The trust owns two shops at 1 and 2 G Street, Suburb H that were tenanted by the husband’s entity V Pty Ltd as trustee of the V Trust. The husband asserts that the shops have a value of about $2.0 million with a secured mortgage debt of $1.175 million. In 2014 the Trust made a trading loss on rental operations of $129,000.00 mainly by reason of claimed depreciation but an overall loss of only $2,000.00 after receiving a trust distribution from the V Trust.
c)The trust as at 30 June 2014 had plant and equipment with a non-depreciated value of about $334,000.00.
d)The husband operated a business from the premises through the V Trust until, he says, July 2016. The shops at present are vacant.
e)In March 2015 this entity entered into a I Pty Ltd asset purchase agreement to purchase a German motor vehicle. The amount borrowed was $79,000.00. The amount owing under this loan as at June 2016 was $91,500.00 approximately. The increase in the balance is by reason of the requirement to pay a final balloon payment of $30,000.00.
f)In March 2015 this entity enter into a further I Pty Ltd asset purchase agreement for the purchase of equipment. The amount borrowed was $90,090.00. As at June 2016 the amount owing was $95,500.00 approximately. The increase in balance is by reason of a final residual payment of $9,090.00 being payable.
g)The Trust is indebted to I Pty Ltd in respect to the finance facilities as at 10 November 2016 for $119,870.00.
In November 2009 the husband incorporated V Pty Ltd that was appointed trustee of the V Trust:
a)The husband is the appointor and default beneficiary of the Trust.
b)The husband operated his business through the Trust (until he was suspended from practice) and later the operations of “Q Pty Ltd Staffing”. The 2014 balance sheet reveals non depreciated value assets relating to the husband’s business operations “X” as “Development Costs” of $195,949.00 and “Plant and Equipment” of $240,875.00.
c)As at June 2014 the Trust had income of about $818,000.00 of which about $642,000 was from staff placement.
d)The Trust paid to Q Pty Ltd management fees of about $271,000.00 in 2014 financial year. The Trust in the same year made a profit of about $279,000.00 with distributions to Q Pty Ltd ($40,325.00) and the E Trust ($123,087.00).
e)In May 2014 V entered into an asset Finance agreement with Y Pty Ltd (now I Pty Ltd) guaranteed by the husband to purchase equipment and fit out for the husband’s business. The amount borrowed was $298,800.00. The balance as at June 2016 was about $240,000.00.
f)The Trust is indebted to I Pty Ltd in respect to the finance facility as at 10 November 2016 for $237,046.00.
g)The Trust also owes Q Pty Ltd $262,266.00 as at 30 June 2014.
Also in 2009 the husband established the TONG Superfund, a self-managed super fund with the husband and wife as members. The husband contributed his income and other funds to the fund. The superfund’s primary assets it appears are shop premises at 3 G Street, Suburb L having an unencumbered value of about $500,000.00 and cash in CBA accounts of $139,720.00. There is no objective evidence of the respective member entitlements of the parties.
In 2010 the husband achieved higher professional qualifications and opened a business at Suburb L. In May 2012 the husband incorporated X Pty Ltd as trustee of the X Trust through which it appears he operated his business. There is no evidence as to the financial position of this entity through which the wife asserts that the husband continued to trade and earn income.
In August 2015 the husband and a partner incorporated X Supply Pty Ltd to import and sell health products. The husband spent $10,000.00 securing the import and distribution rights to the product. The company has at present $20,000.00 worth of stock. There are no financial reports for the business.
The husband also discloses that he is the sole shareholder of W Pty Ltd, an entity to which Q Pty Ltd has advanced as at 30 June 2014 $1.265 million. There is no disclosure as to the circumstances of this entity.
Events after separation
On 12 November 2014 it was noted by the Court that “the wife has deposited the sum of $535,118.00 in ANZ Term Deposit #…”. The Court further noted the wife’s undertaking to the Court that without admissions and until 8 December 2014 at 4.00 pm she shall not withdraw, transfer or otherwise deal with the term deposit.
The ANZ term deposit matured on 29 May 2015 and the proceeds of the term deposit were paid into the parties’ joint ANZ account #….
On 21 October 2015 the wife paid to the husband $50,000.00 from the joint account and with further direct and other debits to the account (see [39] below) the balance is at present about $426,000.00.
In November 2015 the husband transferred his interest in V Pty Ltd to the wife. The husband asserts that this was with the intention that the wife would thereafter operate and control the staffing operations previously conducted by the husband through his entities.
At the time of the transfer to the wife the V Trust was paying by direct debit ongoing periodic repayments associated with the various loans with I Pty Ltd and Y Pty Ltd referred to above. The wife cancelled these periodic debits causing the loans to go into default.
Subsequently the wife incorporated Q Pty Ltd Recruitment Pty Ltd and the husband asserts that she thereafter commenced to operate the business previously conducted through V through this company. As at September 2016 the company had cash funds of about $76,000.00. There is no other disclosure as to the financial position of this entity.
The I PTY LTD proceedings
In May 2016 the husband surrendered the two German motor vehicles to the financier I Pty Ltd and the vehicles were subsequently sold at auction with a shortfall. In August 2016 the 4WD motor vehicle was repossessed by the financier I Pty Ltd and also sold at auction.
As primary borrower or guarantor the husband has now received demands from I Pty Ltd and recovery proceedings have now been commenced by I Pty Ltd in the District Court of New South Wales (2016/…) against E, V and the husband in relation to two car finance agreements and in relation to his guarantee of the other corporate borrowings. The total liability is about $360,000.00 (See: Notice of Motion for Judgment).
More recent payments
The wife complains that in the period from May 2015 to June 2016 various debits have been made to their joint ANZ account … payable to “Z Australia” being mortgage payments for the Trust properties and funds drawn, the husband asserts to meet Suburb P mortgage payments until the property was sold. Those debits totalled about $81,000.00. The wife asserts that the Z debits were paid in relation to borrowings by the husband post separation for his business “X”.
On 13 October 2016 it was ordered by consent that the wife have sole use and occupation of the former matrimonial home at Suburb L and that the husband be restrained from attending at those premises without her consent. Otherwise, it was ordered by consent that the husband and wife do all things necessary to authorise the payment of $50,000.00 from funds held in trust by Mr J and solicitor to the wife or as she may otherwise direct in writing.
Funds retained or received by the husband
The husband has had access in the last 18 months to funds as follows:
$ 50,000.00 from joint ANZ account October 2015
$ 30,624.00 motor vehicle insurance payout June 2015
$ 195,000.00 funds from Country T March 2015
$ 304,958.00 refinance of the husband’s Country T properties November 2015
$ 150,000.00 legal fees debited to solicitors trust account from property funds
$ 212,290.00 funds paid to the husband CBA a/c from sale of Suburb N property
$ 142,240.00 funds paid to the husband CBA a/c from sale of Suburb S
$1,085,112.00
From these funds the husband has expended significant sums on his own legal fees and, it appears, the ongoing conduct of his business interests, in particular, the renovation and improvement of the properties owned by V Trust in respect to which in May 2014 V entered into an asset Finance agreement with Y Pty Ltd (now I Pty Ltd) guaranteed by the husband to purchase equipment and fit out for the husband’s business.
Many of the invoices provided by him relate to the period pre separation and provided little or no explanation for his asserted expenditure of the above funds more recently available to him.
His business, it appears, remained open until July 2016. He fails to account for any income that may have been derived from the business in respect to which he expended significant funds including payment of wages and continues to rent the property as a business: “Company AA”. He complains that he cannot complete the refurbishment without further funds.
The husband’s “Schedules” of expenditure reveal little regard as to his obligations to his creditors but more an abandonment of any responsibility. Indeed, the funds sourced from Country T could all but have liquidated the liabilities in respect to which he now seeks to apply other matrimonial assets to the detriment of the remaining asset pool such as it is known.
Available funds
At present available “matrimonial” cash funds appear to comprise:
$426,000.00 Joint ANZ account
$ 28,000.00 Wife CBA account
$ 88,167.00 Steven Stefanou Solicitor Trust Account
$192,242.00 Mr J Solicitor Trust Account
$ 40,428.00 Husband CBA account
$582,595.00
The funds in the Mr J trust account are subject to the payment ordered to the wife of $50,000.00.
The Asset Pool
The financial circumstances of the parties’ corporate interests are referred to above.
Otherwise, there is significant vagueness as to the remainder of the balance sheet: Exhibit “B” comprising the draft balance sheet as at 13 October 2016. There have been some movements since then as discussed above. As best can be ascertained the primary remaining assets are:
Joint K Street, Suburb L $1,000,000.00E
Joint ANZ Joint account $ 440,000.00E
Joint TONG Superannuation Fund $ 500,000.00E
Husband Steven Stefanou Solicitor Trust Account $ 88,167.00
Husband Mr J Solicitor Trust Account $ 192,242.00
Husband CBA account … $ 40,428.00
Husband Westpac accounts … and … $ 63,565.00
Husband Country T property interests (asserted as held
in trust for the children) $ Not Known
Wife CBA account $ 28,000.00
Joint The parties corporate/trust interests as above $ NK
Husband Country T Bank accounts $ NK
Husband Bank of China Accounts $ NK
Husband Shares in W Pty Ltd $ NK
Husband Contents and Personalty $ 60,000.00
Husband Japanese Car $ 8,000.00
Otherwise the husband asserts various credit card debts of about $66,000.00, unpaid personal tax of $34,799.00 (for which no assessment was produced) and a personal liability for unpaid wages of $24,561.00 notwithstanding that he traded through a corporate entity. The husband otherwise asserts he has borrowed from family $76,000.00 for living expenses.
The orders sought at interim hearing
In summary the husband sought orders that provided:
a)That the parties pay from the ANZ Joint Account and/or from funds held by Mr J Solicitor $353,034.00 or such other sum owed to I Pty Ltd by the husband and the liable corporate entities as discussed above.
b)The wife have sole use and occupation of the home at Suburb L and that she pay the property outgoings.
c)That E Pty Ltd as trustee of the E Trust cause properties at 1 and 2 G Street, Suburb H be sold and that pending sale mortgage payments be paid from the ANZ joint account and that proceeds of sale be paid into controlled money account.
d)That Mr F solicitor be appointed as trustee for the purposes of the sale.
e)That no further funds be released to the wife.
As to parenting the husband sought orders that provided:
a)That he have sole parental responsibility for all three children.
b)That all three children live with him.
c)That the children B and C spend time with the mother as they wish.
d)That the child D spend time with the mother as agreed and in default of agreement alternate weekends 9.00 am Saturday to 6.00 pm Sunday and Wednesday from after school or 3.00 pm until 8.00 pm.
The mother in summary sought orders that provided pending further order (Exh “F”):
Parenting:
a)That the child D live with the mother.
b)That the child C live with the father.
c)That the child C spend time with the mother from after school or 3.00 pm Friday to before school or 9.00 am Tuesday each alternate weekend.
d)That the child D spend time with the father from after school or 3.00 pm Friday to before school or 9.00 am Tuesday or 9.00 am each alternate weekend.
e)That during school holiday periods time on a Tuesday conclude at 5.00 pm
Property:
a)That pending further order the husband be restrained from dealing with funds held in trust by his solicitor Steven Stefanou.
b)That the husband do all things necessary to authorise the wife on his behalf and on behalf of the corporate Defendants to be able to deal with I Pty Ltd in relation to the present District Court proceedings.
c)That the husband do all things necessary to authorise and direct Mr J solicitor to pay funds held by him in trust for the husband as to $100,000.00 to the wife’s solicitors and as to the balance to the wife’s solicitors to be held in trust for both parties on interest bearing deposit.
d)That E Pty Ltd as trustee of the E Trust cause properties at 1 and 2 G Street, Suburb H to be sold by auction and, that pending sale, mortgage payments be paid from the ANZ joint account and that proceeds of sale be paid into a controlled money account.
e)That Mr F solicitor be appointed as trustee for the purposes of the sale.
Interim Property and Injunctions
The Court has power under s 114 of the Family Law Act 1975 (Cth) to make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate including an injunction in relation to the property of a party to the marriage or an injunction relating to the use or occupancy of the matrimonial home.
Both parties seek orders that would address liability and other issues where they are simply unable to agree.
The principles as to applications for interim property provision are well settled, (Strahan & Strahan [2009] FamCAFC 166) and require a two-step process.
Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.
In Strahan (supra), the Full Court said:
132. In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1) (h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
Secondly, the Court is to have regard to relevant matters in s 79 of the Family Law Act 1975 (Cth).
It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. Either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so.
It is important to have regard to an overall caution. In Harris & Harris (1993) FLC 92-378, the Full Court said (at 79929-79930):
As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings.
In Strahan (supra), the Full Court said at [132]:
… regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
It is now well settled that in property cases the Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order. Such a consideration should not be guided by an assumption that the parties’ rights to, or interests in, property are, or should be, different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
Both parties in this matter in any event seek that the Court makes final adjustive orders.
Regrettably, the asset pool is far from settled and there are significant issues as to the receipt and application of most significant funds by the husband since separation. The financial circumstances of the parties have been adversely affected by the husband’s professional misconduct in relation to the abuse of drugs leading to his suspension from practice. His inability to practice by reason of his personal misconduct and its effect on the available asset pool is a matter for final hearing.
There are also significant issues as to disclosure between the parties in particular as to the various corporate entities and their trading circumstances since separation.
In such circumstances it is readily apparent that the I Pty Ltd issue needs to be resolved as soon as practicable.
Otherwise, the husband has had significant funds with which to pay legal fees. He will need to find further funds from his own resources other than funds presently held by his solicitors. His asserted prospective liability for funds held drawn against corporate loan accounts has not been the subject of any demand or assessment and as such is merely putative with the prospect other accounting methods being available to minimise any such liability.
It is appropriate in the parties’ present financial circumstances as it best can be established that funds held by Mr J, solicitor be paid in part to the wife’s solicitors as part of the funds available to resolve the I Pty Ltd litigation and as to the balance on account of the wife’s costs.
Otherwise, the wife shall have access to such funds in the ANZ joint account as are required to for the purpose of resolving the I Pty Ltd litigation. The balance of the ANZ joint account shall be preserved for final adjustment.
The parties agree that E Pty Ltd as trustee of the E Trust affect a sale of its real estate interests. The husband as appointor for the purposes of the trust can replace the trustee with the parties’ agreed trustee for the purposes of the sale with that agreed trustee being removed subsequent to completion of the sale and E Pty Ltd being reinstated.
The wife otherwise has funds available to her or income from which she can resource the acquisition of an appropriate car.
Orders will be made accordingly.
Interim Parenting
In Marvel & Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court, discussed the difficulties associated with making findings on contested evidence as follows:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121.…………In SS & AH[2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
122. Later, at paragraph [100] their Honours amplified their comments and said:
“The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
In Deiter& Deiter [2011] FamCAFC 82 the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In Eaby & Speelman (2015) FLC 93-654 (“Eaby”) the Full Court (Thackray, Ryan & Forrest JJ) on the same issue observed at 80,331:
18.…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
In Banks [2015] FamCAFC 36 the Full Court said:
47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FLC 93-582.
50. When it is obvious that the findings made as to some of the s.60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CCfactor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
51. …
52. In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.
In Keats [2016] FamCAFC 156 the Full Court again noted:
[9] …the principles that emerge from cases such as SS & AH [2010] FamCAFC 13, namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
THE LAW: The Statutory Pathway
The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode: [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)],
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
c)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)]
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time [s 65DAA(6)].
Best Interests:
The Primary Considerations: s60CC(2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
The Additional Considerations:
Section 60CC(3) sets out the additional considerations:
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii)to communicate with the child;
ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)any family violence involving the child or a member of the child's family;
k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
m)any other fact or circumstance that the court thinks is relevant.
Discussion
The parties make allegations one against the other as to conduct both in the relationship and post separation. Both assert that the other has a narcissistic personality disorder and both agree that their relationship is conflictual.
They are fortunately in agreement as to the primary live with arrangements for the two older children with a dispute as to the primary residence of the youngest child and the time with arrangements for the non-resident parent as to the younger two.
A Childrens and Parents Issues Assessment Report was released on the day of the interim hearing. It is of utility to consider it in detail as it deals with many of the assertions made by each of the parties in their respective affidavit material.
As at the date of the assessment interviews the elder two children had been residing with the father since early 2016. They had not spent time with the mother for some months even though she was available to them. The youngest child was residing with the mother and was spending no time with the father even though he was not, and currently is not, working.
Such arrangements reveal what little insight both parents have as to the needs of their children.
The parties’ proposals were discussed by the family consultant in the following terms:
…
4. [Ms Niem] proposed, in her Application in a Case filed 12 September 2016, that she hold sole parental responsibility for the children and that the children live with her. [Ms Niem] made no proposal for Final Orders for the children to spend time with [Mr Tong]. She seeks that, in the interim, the children spend no time with [Mr Tong], until a Single Expert Report has been completed. At interview, [Ms Niem] proposed that the children spend supervised time with [Mr Tong] until his mental health has improved.
5. [Mr Tong] proposed, in his Application in a Case filed 15 September 2016, that he hold sole parental responsibility for the children and that the children live with him. He further proposed that [B] spend time with [Ms Niem] in accordance with his wishes and that [D] spend time with [Ms Niem] each alternate weekend from 9am Saturday to 6pm Sunday. [Mr Tong] made no proposal for Final Orders regarding when and if [C] should spend time with [Ms Niem], but said that, in the interim, she should spend no time with her until the release of the Child and Parent Issues Assessment (CPIA). At interview, [Mr Tong] said that the children should spend time with [Ms Niem] in accordance with their wishes.
The family consultant saw the key issues as:
•The most appropriate arrangements for parental responsibility for the children.
•The most appropriate arrangements for the children to live with and spend time with each parent.
•The parents have given different accounts regarding the history of family violence between them.
•Each parent alleges that the other parent suffers with mental illness.
•Whether or not Mr Tong continues to abuse prescription medication.
•Allegations Ms Niem had organised for the maternal aunt to inappropriately prescribe the drug ‘Duromine’ to B.
•The potentially negative impact on the children’s well-being and mental health from exposure to ongoing conflict between their parents.
More importantly the younger children were seen, with the family consultant reporting:
a)As to C, now 11:
24. [C] said that she likes it that [Ms Niem] is “happy” and that [Ms Niem] loves her. She described [Ms Niem] as “very adventurous” and stated “she kind of goes over the border sometimes. For example, we were in the city and she was drunk and she wanted me to take a sip.” [C] commented [Ms Niem] can be “very judgemental about everybody; she has a conclusion straight away.” [C] claimed that [Ms Niem] spends an inordinate amount of time on the telephone.
25. [C] said that she wants to spend time with [Ms Niem] but appeared confused about what a suitable arrangement may be. She initially said she would see her for dinner “every fourth night” before saying she would prefer weekend time with [Ms Niem] because of her schooling. [C] said that this may cause some difficulties because she has “Chinese school” on Saturdays and swimming classes on Sundays.
b)As to D now 6:
18. [D] described [Ms Niem] as “both grumpy and kind” although, she is “mostly kind.” He said that she gives him cuddles and kisses and “always brings me to fun places.” [D] declared of [Ms Niem] “she loves me a lot.”
19. When asked about [Mr Tong], [D] stated, “I’m not sure. I’m getting confused; they both say something bad” (about the other). [D] later stated that [Mr Tong] is “a kind Dad” who “used to be grumpy. My mummy showed me a video; he was saying the ‘F’ word.”
20. [D] stated that he wants to live with [Ms Niem] but “go to Dad’s for a little while and then come back to my Mum’s house.”
21. [D] initially said that he is not fearful of either parent but then stated, “Well, I’m a little bit scared of my Daddy. That my Daddy might kill my Mummy.” [D] said that he really wants his parents to be friends.
22. After the interview, [D] was observed to be interacting in a playful manner with [Mr Tong] and [Ms Niem] in the waiting area.
The family consultant addressed the risk issues in detail:
Family Violence
28. There is no history of any Final Apprehended Domestic Violence Order (ADVO) between the parties. Both parties indicated that an Interim ADVO had been put in place by each party to protect them from the other but that each party had withdrawn it.
29. [Ms Niem] claimed that [Mr Tong] had been verbally abusive and controlling throughout their relationship. She said he had kicked her on one occasion and had also thrown objects and pushed items off the table in anger. [Ms Niem] said that, whilst sleeping in separate rooms under the same roof, she had woken to find [Mr Tong] standing over her in a threatening manner. She further claimed that [Mr Tong] had once held the family dog by the neck until it “bubbled at the mouth.” [Ms Niem] stated that she is fearful of [Mr Tong].
30. Both parents admitted that they had used physical discipline on the children, including hitting them with a thin, bamboo like cane. Each parent claimed the other parent had hit the children more frequently than them. Each parent claimed they no longer hit the children.
31. [Ms Niem] said that the family had a brief involvement FaCS prior to separation because an unknown person had made a report that [Mr Tong] had a “hickey on his neck” and that “[C] had done it to him”. She said that FaCS had been satisfied that nothing untoward had occurred and had taken no further action. [Ms Niem] said she does not believe [Mr Tong] has sexually abused [C] but she reported that a notebook in which [Mr Tong] had made some explicit sexual remarks had come into [C’s] possession, which she maintains was inappropriate.
32. [Mr Tong] denied he had ever been physically violent towards [Ms Niem]. He stated that they had engaged in “a lot of verbal arguments but he maintained, “I’m the one concerned about my safety.” She said that [Ms Niem] had pushed him on one occasion.
Substance Misuse
33. [Ms Niem] reported, and [Mr Tong] confirmed, that [Mr Tong] had developed a prescription drug addiction, self-administering a range of medications. She said that on 7 July 2014, [Mr Tong] overdosed and she had contacted the maternal uncle to supervise him, who then called an ambulance. [Ms Niem] said [Mr Tong] had been hospitalised for several days.
34. [Mr Tong] claimed he had commenced abusing prescription drugs because of sleeping problems related to his problematic relationship with [Ms Niem] and the stress related to his business. He maintained that, since July 2014, he has ceased prescription drug use, except for a brief relapse in January 2015, after [Ms Niem] refused to allow him to spend time with the children. [Mr Tong] reported that he is currently suspended from practising … because of his drug use but hopes to have his …license returned to him.
Mental Health
35. [Ms Niem] said that [Mr Tong] had frequently threatened to commit suicide on occasion during their relationship, with the first occasion occurring not long after they had married. She indicated that he would do this in order to control her and the children and cause them to feel sorry for him. She said, for example, that on a holiday … he had taken a chair and climbed onto the balcony, threatening to jump off. [Ms Niem] said that this had occurred in front of the children.
36. [Ms Niem] said that [Mr Tong] suffers with a “narcissistic personality” and that this view is even held by his psychologist, [Mr BB]. [Mr Tong] claimed that he has made significant changes and that [Mr BB] is pleased with his progress.
37. [Mr Tong] said he believes that [Ms Niem] suffers with “narcissistic personality disorder”. He claimed he has observed the following behaviours in her which would constitute this disorder: “blame shifting”, “gaslighting” “triangulating” “projection” and “always the victim”. He said she had never been formally diagnosed with this condition.
Parental Conflict, Co-parenting Relationship and other Parenting Issues
38. [Ms Niem] and Mr [Tong] indicated they have no capacity to communicate or cooperate in a constructive manner at present. Both parents indicated they are involved in a complex property settlement and each claimed the other is seeking an unfair proportion of their assets. [Ms Niem] claimed that [Mr Tong] had been unfaithful.
39. [Ms Niem] claimed that [Mr Tong] had rarely spent time with the children because of his busy career. She claimed he had often travelled overseas for work and to meet mistresses. [Ms Niem] claimed that [Mr Tong] had engaged in a “slow and gradual manipulation with the kids”, causing the two older children to reject her. She claimed that [Mr Tong] had told the children she is a “psycho” and further claimed he had written a note to [C] saying that he is “done with his life” in order to garner her sympathy. [Ms Niem] said that [Mr Tong] regularly tells the children that she is the cause of his and the children’s problems, including his drug addiction, the fact that the children did not get into selective schools and the fact that they had been removed from their activities post separation. [Ms Niem] said that, in early 2016, [Mr Tong] had insisted on taking the children to an “AA meeting” and that, upon their return, the children had felt “sorry for Daddy” and had significantly changed their view of him to a more favourable view and immediately viewed her negatively. [Ms Niem] remarked, “This year and last year, he [Mr Tong] has taken on a fatherly role he never had and [C] missed that. He uses that to manipulate.” [Ms Niem] maintained that [D] wants to live with her.
40. [Ms Niem] said that [B] has experienced long-standing behaviour problems, as well as problems with his weight and health. She said that he had expressed anger towards both parents and has bullied his siblings. [Ms Niem] reported that [B] has behavioural problems at school, such as hitting other children, and has been suspended on several occasions. She said that [B] can be “manipulative.” [Ms Niem] reported that it was in this context that she had slapped [B] in February 2016.
41. [Mr Tong] said that [Ms Niem] had organised for the maternal aunt, who is a general practitioner, to prescribe Duromine to [B] for weight loss. [Mr Tong] said that [Ms Niem] did not seek his consent for this type of medication and his research has demonstrated that this was “off label use” and also unethical for the maternal aunt to have treated a family member as a patient. He said that [B], with his support, has made a complaint to the Health Care Complaints Commission (HCCC) but the maternal aunt has successfully argued that [B] is currently under pressure due to his parent’s highly conflicted family law matter and thus is not a reliable witness. [Mr Tong] claimed that [B] had been “forced” to take this medication which had caused him a series of adverse reactions, including bone fractures, insomnia, headache, toileting problems, and irritability. [Mr Tong] further claimed that, at meetings with the school to discuss [B’s] problematic behaviour, [Ms Niem] had declined to inform the school that [B] was taking Duromine. [Mr Tong] claimed that [B’s] behaviour problems at that time may have been caused by the effects of this drug but that “now the school thinks [B] is a bad kid.”
42. [Mr Tong] claimed that [Ms Niem] has spoken negatively about him to the children seeking to cause them to reject him. He further claimed that she had insisted that [B] provide her with information about him. He said, for example, that [Ms Niem] had witnessed him collapse from his drug use but had stopped to film this before calling an ambulance, later showing this film to [B] and [C]. He claimed that [Ms Niem] had asked [B] to steal his passport to check up on his travel history. [Mr Tong] claimed that, in contrast, he encourages the children on a daily basis to contact [Ms Niem] but they declined to do so. He stated that in response, he tells them “whatever your decision, it will not reflect well on me.”
In evaluation the family consultant expressed concerns that the children were aligned with the parent with whom they live. There is, she opined, no parental trust or respect. Concerns were held for the mental wellbeing of the children if they are subject to ongoing exposure to parental conflict.
Concerns were also expressed as to both parents’ physical discipline of the children with a “rod like implement”.
It was further recommended that drug testing of the father may be indicated. It is noted that in this regard an ICL was appointed on 14 November 2016 and should be empowered to request testing of both parents. The family consultant recommended that the parents attend the “Keeping in Contact” program at Unifam. It was recommended that a Chapter 15 Expert Family and Child Psychiatrist be appointed to report particularly in view of the problematic personality functioning of the parents. These issues will await the input of the ICL.
It is clear that at least some framework needs to be implemented to avoid ongoing conflict and to restore the younger children’s relationships with both parents and each other as best as can be managed at present.
As to the best interest considerations as relevant:
The younger children’s wishes are referred to above. They are indicative of the present live with arrangements being retained but with time for all children to be together for a period in the father’s household and the youngest two children to be together for a period in the mother’s household.
The children’s relationships with both parents are considered above and are overshadowed by the parental lack of insight into the effect of the children’s exposure to the parental conflict.
The engagement of both parents in decisions about the children’s lives post separation has demonstrated little insight into the needs of the children. The father refusing to make the two older children available to the mother, the mother likewise in relation to the youngest child in respect to whom she unilaterally changed school.
There is no practical difficulty in the children spending time with both parents.
Both parents have demonstrated little capacity to meet the children’s emotional needs, prioritising their own interests and conflict over the children’s needs and in so doing demonstrating less than appropriate attitudes to their responsibilities as parents and to the children.
Family violence was the subject of allegations and ultimately withdrawn applications for Apprehended Violence Orders. This will be an issue to be resolve at final hearing. There is no relevant family violence order.
There is nothing to suggest that in the best interest of the children at this time both parents should not have equal shared parental responsibility. To do otherwise would be a recipe for ongoing conflict. They will need to consult as to the major decisions in the interim period until final hearing.
Clearly in the circumstances discussed above, it is not in the children’s best interests for there to be equal time or substantial and significant time arrangements. Neither party sought such arrangements.
It is important for the two younger children to have time together in each household. Orders will be made to facilitate same.
Both parties should, by reason of the concerns expressed by the family consultant, be restrained from physically disciplining the children.
Orders will be made as set out at the forefront of these reasons for judgment.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 December 2016.
Associate:
Date: 16 December 2016
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