FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OWENS & OWENS (No.2) | [2010] FMCAfam 2 |
| FAMILY LAW ─ Practice and procedure – application for judicial officer to be disqualified on grounds of apprehended bias and actual bias – where submissions appear to confuse (a) reasonable apprehension that judicial officer might not bring an impartial and unprejudiced mind to his dealings with counsel with (b) reasonable apprehension that judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that the court is required to decide – where no nexus demonstrated between (a) the judicial officer's views regarding counsel or a party and (b) the resolution of the question the judicial officer is required to decide – where thrust of application appears to be apprehension that judicial officer will decide the case adversely to one party. FAMILY LAW – Practice and procedure – waiver – application of principles in Vakauta v Kelly (1989) 167 CLR 568 – delay in making application for disqualification of judicial officer on ground of bias – where application received late and without warning – where court had been led to believe that counsel was occupied preparing his client's closing submissions – where deadline for filing client's closing submissions allowed to pass in favour of preparation of detailed application for disqualification of judicial officer. FAMILY LAW – Practice and procedure – legal practitioners – counsel – where counsel has behaved inappropriately, including by showing disrespect to the bench and to opposing counsel and arguing with the bench – where counsel's behaviour in court demonstrates what appears to be a fundamental misunderstanding of the role of an advocate in proceedings in a busy trial court – power of court to control counsel – power of court to remove counsel – reference to principles in Grimwade v Meagher (1995) 1 VR 446. FAMILY LAW – Parenting orders – whether court should make orders for equal shared parental responsibility or sole parental responsibility – where orders made giving wife sole parental responsibility, subject to certain conditions, for children's education (including schools that they are to attend) and religious upbringing – where parties otherwise retain equal shared parental responsibility. FAMILY LAW – Parenting orders – parent with whom children should live – whether equal shared care or some other arrangement appropriate and in children's best interests – schooling – case turns on its own facts. |
| Family Law Act 1975 (Cth) |
| Anderson v National Australia Bank [2007] VSCA 172 Champness & Hanson (2009) FamCAFC 96 at para.101 Chappell (2008) FamCAFC 143 Hungerford & Tank (2007) FamCA 637 Mills & Watson (2008) 39 Fam LR 52 Re G: Children's Schooling (2000) 26 Fam LR 143 |
| Applicant: | MS OWENS |
| Respondent: | MR OWENS |
| File Number: | MLC 7175 of 2008 |
| Judgment of: | Walters FM |
| Hearing dates: | 8 – 12 November & 22 – 24 November 2009 |
| Date of Last Submission: | 15 December 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 1 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Teicher |
| Solicitors for the Applicant: | Mirabellas Solicitors |
| Counsel for the Respondent: | Mr M Testart |
| Solicitors for the Respondent: | Plaza Legal |
ORDERS OF 16 DECEMBER 2009
The husband's informal application (contained in a document headed "Memorandum of Submissions for the Respondent Husband; Application for Disqualification ─ Number 2" emailed to the court on 15 December 2009) be accepted for filing, notwithstanding non compliance with any relevant rules contained in the Federal Magistrates Court Rules 2001.
The said informal application be dismissed in its entirety.
The Court's reasons for dismissing the said informal application be delivered concurrently with the Court's reasons in the substantive proceedings between the husband and the wife.
The wife have liberty to apply for costs in relation to the said informal application upon delivery of the Court's reasons in the substantive proceedings.
ORDERS OF 29 JANUARY 2010
IT IS ORDERED THAT:
All previous parenting orders be discharged.
The wife have sole parental responsibility for the children [X] born [in] 2003 and [Y] born [in] 2004 in relation to the following issues about their care, welfare and development of a long-term nature –
(a)subject to paragraph 7 below, the children’s education (both current and future), including, but not limited to, the school/kindergarten each child is to attend and [Y]'s readiness to start school; and
(b)the children’s religion, and their religious and cultural upbringing.
In exercising sole parental responsibility in relation to the issues referred to in paragraph 6(a) and (b) above, the wife must:
(a)consult the husband in relation to any decision to be made about that issue;
(b)make a genuine effort to come to a joint decision about that issue; and
(c)in the event that the parties are unable to come to a joint decision about that issue, notify the husband of any decision relating to the issue within seven days of making such decision.
Subject to paragraphs 6 and 7 above, the husband and the wife have equal shared parental responsibility for both [X] and [Y] in relation to all other issues about their care, welfare and development of a long-term nature.
The wife be restrained by injunction from removing [X] from, or terminating [X]’s enrolment at, [H] School, [K] unless and until she has permanent accommodation for herself and the children within 3 km of [E], whereupon the said injunction shall be forthwith discharged – and for the purpose of this order "permanent accommodation" shall mean residential accommodation which is either –
(a)owned by the wife (whether solely or jointly with any other person); or
(b)leased by the wife (whether solely or jointly with any other person) for a period of not less than two years.
The children live with the wife.
The husband spend time with and communicate with the children as follows:
(a)each alternate week from the conclusion of school or kindergarten on Thursday until the start of school or kindergarten on Monday (or Tuesday in the event that Monday is not a school day);
(b)each other week from the conclusion of school or kindergarten on Thursday until the start of school or kindergarten on Friday;
(c)for one half of each of the first, second and third term school holidays as agreed between the parties and, failing agreement, for the first half in even numbered years and the second half in odd numbered years;
(d)subject to (e) below, for one half of the long summer vacation each year as agreed between the parties and, failing agreement, for the first half in the 2010/11 long summer vacation (and in each alternate year thereafter) and the second half in the 2011/12 long summer vacation (and in each alternate year thereafter);
(e)at the Christmas Period as follows:-
(i)in even numbered years:
(1)from 4 p.m. on 24 December to 4 p.m. on 25 December (and the wife's time with the children – if applicable – be suspended accordingly); and
(2)the husband's time with the children – if applicable – be suspended from 4 p.m. on 25 December to 4 p.m. on 26 December; and
(ii)in odd numbered years:
(1)from 4 p.m. on 25 December to 4 p.m. on 26 December (and the wife's time with the children – if applicable – be suspended accordingly); and
(2)the husband's time with the children – if applicable – be suspended from 4 p.m. on 24 December to 4 p.m. on 25 December;
(f)on the children’s birthdays and the husband’s birthday at times to be agreed, but failing agreement as follows:
(i)during the school week, from after school to 6.30 p.m.; and
(ii)on a weekend day, from 9 a.m. to 1 p.m.;
(g)from 9 a.m. to 7 p.m. on Father's Day and, should Mother’s Day fall during the husband's time with the children, then his time be suspended from 9 a.m. to 7 p.m. on Mother’s Day; and
(h)as otherwise agreed between the husband and the wife from time to time in writing.
The husband's time spent with the children pursuant to paragraph 11(a) and (b) above be suspended during all school term and long summer holidays, and do resume after such holidays in an unbroken cycle as if such holidays had not occurred.
The husband's time with the children – if applicable – be suspended on the children's birthdays and the wife's birthday at times to be agreed, but failing agreement as follows:
(a)during the school week, from after school to 6.30 p.m.; and
(b)on a weekend day, from 9 a.m. to 1 p.m.
The husband and the wife be permitted to telephone the children between 5 p.m. and 7 p.m. on a Saturday when the children are in the care of the other parent, and each parent must –
(a)allow the children to call the other parent whenever the children (or either of them) wish to do so; and
(b)provide the children with privacy during all phone calls with the other parent.
The husband or his nominee must collect the children from and return them to school/kindergarten at the commencement and conclusion of each spend time period pursuant to paragraph 11(a) and (b) above and, unless otherwise specified or agreed to by both parties, at all other times the husband must collect the children from the wife's residence at the commencement of his time with them and the wife must collect the children from the husband's residence at the end of the husband's time with them.
Each party must:
(a)advise the other party immediately in the event that either child suffers any serious illness or injury; and
(b)authorise any medical professional upon whom either child may attend from time to time, to communicate with the other party regarding the child's condition and/or requirements.
The wife must authorise all schools/kindergartens which the children may attend from time to time to:
(a)provide to the husband, at the expense of the husband, copies of all school reports, school notices and school photographs in relation to the children;
(b)permit the husband to attend all school functions (including school concerts or parent/teacher interviews) to which parents are ordinarily invited.
Nothing in the within orders shall prevent either the husband or the wife from having either child treated – as a matter of urgency – for any sudden injury or acute illness or other medical or dental emergency which may arise in relation to the child during their respective periods of care, but in the event of such treatment being required, the parent arranging such treatment must immediately notify the other parent of the following details:
(a)the name and contact details of the medical professional administering the treatment;
(b)the medical or other complaint for which the child was taken to the medical professional;
(c)any treatment and/or medication prescribed for or provided to the child; and
(d)the reasons for the prescription for or provision of such medication and/or treatment.
All extant applications for parenting orders otherwise be dismissed.
The parties’ competing applications for property settlement remain adjourned pending the delivery of reasons for judgment.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) & 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Owens & Owens (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 7175 of 2008
| MS OWENS |
Applicant
And
| MR OWENS |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the court are the parties’ competing applications for parenting orders, including orders regarding their children's education. Property settlement is also in dispute, but will not be dealt with (other than indirectly, or in the context of background information) in these reasons.
These reasons deal with three matters:
a)What I have described as "the second disqualification application" (being an informal application for me to disqualify myself on the grounds of both apprehended and actual bias, which application was emailed to my chambers by counsel for the husband on 15 December 2009). An earlier application for me to disqualify myself (“the first disqualification application”) was heard and dismissed in September 2009. The second disqualification application was dismissed pursuant to orders made on 16 December 2009.
b)The parties’ competing applications for parenting orders, of which the most significant components are:
i)whether the parties should have equal shared parental responsibility for the children (or some modified version of that form of parental responsibility); and
ii)whether the children should live with the parties on an equal shared care (week about) basis, or live primarily with the wife.
c)The parties’ competing applications for orders relating to the children's educational arrangements.
On 29 January 2010, I made orders in relation to parenting matters, and in relation to the children's educational arrangements. I felt that it was necessary for the parties to be made aware of the decision that I had reached at the earliest possible opportunity, and before the commencement of the 2010 school year. Unfortunately, and due to some fairly unusual features of the case and the manner in which it was conducted before me (which I shall discuss in more detail below), I was unable to publish my reasons at that time.
The husband has lodged an appeal from certain of the orders that I made on 16 December 2009. Relevantly, he has appealed against my decision to dismiss the second disqualification application and to provide my reasons for doing so concurrently with my reasons in the substantive proceedings.
As indicated above, I have not dealt with the issue of property settlement in these reasons (although, for the sake of convenience, I have referred to some of the parties' financial history, as it were, and some post-separation events relevant to the issue of property settlement, under the heading Background below). I will publish further reasons dealing with property settlement, and make appropriate orders, in the near future. Given the existence of the appeal from my decision to dismiss the second disqualification application, and given the fact that I have already made orders in relation to parenting issues (including schooling issues), I felt that it would be prudent to publish my reasons for making those orders without further delay.
My reasons in relation to the property settlement issue, when published, should be read together with these reasons.
These reasons contain certain observations about the parties, including findings regarding their credibility. For example, I have recorded that the wife's evidence should be preferred to that of the husband where there is a conflict between the two. Although I have yet to make orders in relation to property settlement (and to publish my reasons relating to that subject), that does not mean that I have not carefully reviewed all the evidence before me. Obviously, my reasons in relation to property settlement will deal in some detail with the evidence presented to me on that subject,[1] but it is fair to record at this stage that my findings regarding the parties’ credibility as it relates to the property settlement matter will not be inconsistent with my findings as recorded in these reasons. That is not to say that I will not be commenting on each party's evidence in relation to property settlement issues, but it is important to emphasise that the matter was conducted before me as a single justciable dispute and, as a result, it is not always possible to "compartmentalise" each party's evidence. Similarly, and obviously, my observations of the parties (including, for example, aspects of their character and personality) are applicable to their cases in the broadest sense. To that extent, it is abundantly clear that nothing that I have written in these reasons can properly be understood as amounting to any type of "pre-judgment" of the property settlement dispute. Indeed, I have (of course) already “judged” the property settlement dispute, but have yet to pronounce the orders that I propose to make and provide reasons as to why those orders are appropriate.
[1] Although, as explained above, for the sake of convenience the Background section of these reasons does deal (to some extent, at least) with aspects of the parties' financial history (in the broadest sense) and some post-separation events relevant to the issue of property settlement; it also touches upon some of the subjects that will be considered in the property settlement reasons.
For reasons that I shall expand upon below, I was impressed by the wife as a witness, but unimpressed by the husband as a witness. I have made reference to my views in this regard during these introductory comments because, as appears below, the unusual (to use a neutral term) behaviour of the husband's counsel had a profound effect on the length of the hearing and the way it was conducted (by both counsel, and by the court). I made it very clear to the husband on a number of occasions during the course of the trial, however, that I would not permit his counsel's behaviour to affect my view of him as a witness; nor would I allow such behaviour to affect my view of the merits of the husband's case generally. As will appear from these reasons, I have adhered to the assurances that I gave the husband. To the extent that I have formed views or made findings that might be perceived as critical of the husband or adverse to his interests, however, I confirm that those views and those findings were formed or made on the basis of the evidence before me, including the husband's demeanour as a witness. It follows that the husband cannot reasonably attribute any adverse findings that I have made about him to the conduct of his counsel (save in the ordinary sense, which applies in all trials, of a party's case being shaped or refined by forensic decisions made by that party's legal advisers during the course of the proceedings). Put another way, and to paraphrase Joseph Heller's words in Catch 22, the husband might be fairly regarded as "a self-made man who owed his lack of success (as a witness) to nobody (other than himself)".
Preliminary comments and definitions
In these reasons, and unless otherwise indicated, all statements of fact comprise findings of fact.
Although the law now refers to a child “spending time” with a person with whom the child does not live,[2] I shall use – from time to time in these reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[2] See, for example, s. 64B(2) of the Family Law Act 1975. See also Carpenter and Lunn (2008) FamCAFC 128 and Chappell (2008) FamCAFC 143
Ms R Teicher appeared for the wife at trial. Mr M C Testart appeared for the husband. Throughout these reasons, and unless otherwise indicated, all references to Mr Testart are to Mr M C Testart.
I shall refer to the wife's final submissions (which were prepared by
Ms Teicher) as WFS. For reasons which are explained below, the husband's final submissions were rejected when they were eventually supplied to the court.
I have referred to my reasons for dismissing the first disqualification application (which reasons were given orally on 17 September 2009, on an ex tempore basis) as "the first disqualification judgment". Neither party sought that I provide written reasons in respect of the first disqualification application until Mr Testart requested them in correspondence emailed to the court on 14 December 2009.[3]
[3] The first disqualification judgment has been published on as Owens (2009) FMCAfam 1397
Background
The husband and the wife were both born in 1973. They are now 36. They commenced living together in June 1997, and married [in] 2000. Neither had previously been married.
The parties separated on 28 August 2007. They were divorced on 3 February 2009.
There are two children of the marriage. [X] was born in 2003, and [Y] was born in 2004.
The wife [works in the hospitality and tourism industry]. She is employed by [Q] on a part-time basis. The husband [works in the law enforcement industry].
The proceedings between the parties commenced when the wife filed an initiating application on 7 August 2008. The initiating application sought (undefined) final orders in relation to property settlement. It also sought various interim orders, all dealing with property. No orders were sought in relation to parenting issues at that stage.
In paragraph 4 of her affidavit sworn 21 July 2008, the wife said:
The children have remained in my care and control since separation. I have been the primary caregiver to the children and I have provided for the children's emotional and physical needs. My husband is able to have liberal contact to the children and he does so at times agreed to between us. … I have no objection to my husband having reasonable contact to the children, subject to the work commitments of my husband and I.
Between separation in late August 2007 and mid-2008, the wife lived with the children in the former matrimonial home at Property W, [K] ("Property W)". Property W was then sold, with settlement occurring on 18 July 2008.
The wife gave evidence that she was "made to move" from Property W on or about 18 July 2008, even though she and the children had no accommodation into which they could move. She said:[4]
The settlement was to take place on 18 July at which time I had not been successful in finding anywhere for the children and I to move to, so at that time, without consultation with (the husband), and the reason I didn't consult was because of his hostility towards me, and I feared what he would have done if I had approached him about it, so I … contacted the buyer of the property to ask if they would consider a one-month extension to the settlement, knowing that I may have had to pay … some rent to stay there for the month. The buyer … agreed to the children and myself staying in the home for an extra month, at no cost, other than about $100 … Closer to the original settlement date I told (the husband), at which point (he) faxed a letter to the conveyancer, saying that he did not give his permission for it to do so and after conversations between (the husband) and myself where I begged and I pleaded for him to let the children and I stay there, he said: "Too bad, you've had plenty of time." And I again said, "The children don't have anywhere to go. Forget about me." So I asked then, at that point, "Can the children come and stay with you so I can spend the time to find alternative accommodation by myself?" And he still said no. So at that point, I had to move to my mother’s. My mother moved out of the house to go and stay with her boyfriend. (My mother's house is quite small). The children were … feeling very unsettled. My mother then had a fight with her boyfriend … and (she) had to move back in. So after being at my mother's for two weeks the children and I had to move out again, (that) being unsettling for the children again. We then moved to my dad's. We moved the children's beds again, very unsettling for the children. We stayed at my dad's for two weeks. It was very, very cramped. … (It was) a very rundown place and it was really not ideal for the children and I to be in. …
[4] See 10 November 2009 transcript at page 82
Shortly after the wife gave the above evidence, the following exchange occurred:
Mr M Testart: I just want to put to you … because my client will be giving evidence that you hadn't spoken to him about seeking the extension of time, and the reason why he didn't seek the extension of time is because the contract of sale for the house was uncertain and he didn't want to jeopardise the sale of the property?
The wife: That's not true.
The husband was cross-examined about his attitude to the extension of the settlement date in relation to Property W. His evidence was less than satisfactory. He was unwilling or unable to focus on the most significant issue, which was the impact upon the children of having to move out of Property W without having other accommodation to go to. It was only after comparatively lengthy questioning that the husband eventually conceded that the contract for the sale of Property W was not uncertain, and would not have been jeopardised if he had consented to an extension of time for the settlement. He also conceded that it was not necessary for him to take a hard-line approach (as it were) at that time, and that it would not have been difficult for him to clarify that the sale was not at risk before forcefully rejecting the wife’s suggestion that the settlement date be pushed back.[5]
[5] See 13 November 2009 transcript at pages 339 to 345
Ms Teicher submitted (in WFS paragraph 2) that the husband's actions at that time were "controlling and malicious". I accept her submission in that regard and find that the husband acted unreasonably at that time. I find that he wanted to punish the wife (by causing her as much inconvenience as possible) for seeking to delay settlement without consulting him beforehand, and that he gave no (or no adequate) thought to the effect of his actions on the children. Alternatively, if he did think about the effect of his actions on the children, than he did not care about the fact that they would be unsettled and inconvenienced.
The husband asserted that the children stayed with him for one week at that time,[6] but he later conceded that he only had them for four nights. According to the husband, the children were dropped off to him after
4 p.m. and collected by the wife at 7:30 a.m. the next morning. In other words, and as admitted by the husband, he assisted the wife to the extent of allowing the children to sleep at his place (for those four nights), but "not much more than that".[7] I accept that the husband was working during that period, but the relevance of his evidence is that:
a)he was prepared to exaggerate the assistance he gave the wife at that time; and
b)he was not prepared to inconvenience himself in order to assist or further assist the wife and the children at a time when the children were unsettled and the wife was under considerable pressure.
[6] See 13 November 2009 transcript at page 345
[7] See 13 November 2009 transcript at page 347
By far the most time-consuming single subject at trial (which subject I will deal with in my reasons relating to the property settlement issues) was the husband's assertion that the parties owe his late father's estate (“the Estate”) an amount of approximately $250,000. In broad terms, the husband alleged that his late father made a number of loans to the parties at various times during their relationship. He alleged that the loans have not been fully repaid, and that interest is owing on the balance currently outstanding. The wife denied (or, alternatively, disputed) that funds received from the husband's late father comprised loans. Indeed, all or almost all aspects of the husband's assertions regarding his financial relationship with his late father were disputed, in that the wife did not accept that any funds were owed to the Estate. Among other things, the wife argued that any loans from the husband's late father to the husband (if they exist) should be ignored for the purposes of the property settlement proceedings, because such loans are speculative or otherwise unenforceable, and because there was never any intention (on the part of the husband or his late father) that the loans should be repaid.
It is clear from the wife's first affidavit (sworn 21 July 2008) that she had little knowledge of the husband's financial dealings with his father. She was aware that some dealings had occurred between them, but deposed to being "unclear as to what percentage of money loaned to my husband (was) in fact gifts, as opposed to loans".[8] The wife also said:[9]
My husband has always controlled our financial affairs and I have been told by him that I should not question him with respect to financial matters. My husband has also indicated to me that I am to trust him with his verbal explanation as to the nature of (his financial dealings with his parents).
[8] See paragraph 10 of the wife's first affidavit
[9] See paragraph 15 of the wife's first affidavit
Property W was sold for $815,000. As indicated above, settlement occurred on 18 July 2008, more than 10 months after the parties separated. After paying out the mortgage then encumbering Property W (amounting to approximately $140,000), the balance of approximately $675,000 should theoretically have been available for distribution between the husband and the wife. In late June or early July 2008, however, the husband transferred $146,000 from the net proceeds of sale of Property W to his parents’ bank account. Less than two weeks later, the husband transferred a further $73,500 from the proceeds of sale of Property W to his bank account. The wife was not consulted in relation to these transfers, and did not understand their nature or purpose. She did not consent to the payments being made.
In her first affidavit, the wife expressed concern that the husband had not made full and frank disclosure of his financial position (including in relation to his financial dealings with his parents) and that he had not provided documents evidencing or relating to his financial dealings with his parents.
The wife's initiating application came before the court on 16 September 2008. Her solicitor appeared for her, and the husband (who had not yet filed any material) represented himself. Orders were made to the following effect:
a)an injunction was granted – until further order – restraining the husband from dealing with his interest in a property situated at Property C ("Property C");[10]
b)$15,000 was released to each of the parties (the characterisation of such sum to be determined by the trial Federal Magistrate in due course);
c)a conciliation conference was fixed for 27 November 2008; and
d)the matter was listed for trial on 1 June 2009 (with an estimated hearing time of two days).
[10] I shall explain the relevance of this property in my reasons relating to property settlement.
On 10 October 2008, the wife filed an application for divorce. In it, she recorded that the children live with her and that the husband "spends liberal time" with them. The divorce was eventually granted on 3 February 2009.
On 26 November 2008, the parties were advised that the trial date had been changed from 1 June 2009 to 22 June 2009 (still with an estimated hearing time of two days).
The conciliation conference took place on 27 November 2008.
Ms Teicher appeared for the wife and the husband represented himself. The matter did not settle, and the Registrar made directions to the following effect:
a)the husband's affidavit and financial statement sworn 12 September 2008 were to be filed by 4 p.m. on 3 December 2008;
b)the husband was to file a response by 4 p.m. on 16 December 2008;
c)
the husband was to provide documentary or other evidence of various financial transactions referred to in his affidavit sworn
12 September 2008 (including certain personal transactions and transactions with his parents); and
d)the wife was to provide documentary or other evidence of a "claim for overpayments by Centrelink" and "a claim by [Q] for overpayment during the course of the marriage".
In his affidavit sworn 12 September 2008 (but filed on 4 December 2008), the husband conceded that the wife had been the primary caregiver for the children. He said that he had "provided care for the children every second weekend, and one or more nights each month when required".
The husband also conceded that, during the course of the marriage, he was –
responsible for all the financial dealings including the day to day payment of bills and the financing of properties purchased. My wife never took an interest in our finances.
He also deposed as follows:
a)
he "continued to provide full financial support" for the wife and the children from the date of separation (28 August 2007) to
31 December 2007;
b)his father was suffering from a terminal illness;
c)he (or he and the wife) had borrowed significant funds from his father, his sister and his uncle, for various purposes, during the course of their relationship;
d)he "repaid" various amounts to his father after separation, being:
i)$40,000 on 26 September 2007;
ii)$19,800 in June 2008;
iii)$73,500 in July 2008; and
iv)$143,280 on 9 July 2008;
e)he spoke with the wife "in early July 2008" regarding "repayment of moneys owed to (his) father:[11]
I stated that my parents had limited access to funds to live as my wife and I had borrowed all of my father's life savings. My wife stated that as we had a large amount of funds sitting in bank accounts, I should use that money to repay some of the moneys owed to my father.
f)the "balance of the loan owing to his father" as at the date of the affidavit was $229,594 70; and
g)prior to July 2008, he was paying $2750 per month "interest" to his father, and in July 2008 he paid his father $1720 by way of "interest for the month of July 2008".
[11] See paragraph 30 of the husband's first affidavit
In his financial statement sworn 12 September 2008 (also filed on
4 December 2008) the husband recorded that he owed his father $114,792.35, being 50% of moneys allegedly borrowed by both parties from the husband's father by way of a personal loan. He made no mention of disposing of any property during the 12 months before separation, or since separation.[12]
[12] See item 59 of the husband's first financial statement
The husband filed his response to the wife's initiating application on
5 December 2008. He remained self represented at the time. In the response, he sought orders by way of property settlement only. Relevantly, he sought the following final orders:
1. The moneys loaned from my father during the course of the marriage be repaid in full. Currently, the balance of the loan owing to my father is $229,584.70. The interest payable on the loan to my father for the months of August, September, October and November 2008 be paid in full, the total interest payable as $4800.
2. The wife particularise her property claim within 40 days.
The husband filed an amended response on 6 April 2009. By this time, he had appointed solicitors to represent him. They prepared the amended response.
In the amended response, the husband still sought an order to the effect that his father be paid approximately $230,000 (together with "interest" totalling $4800). He also sought an order that the injunction made on 16 September 2008 be discharged (to enable Property C to be sold), with 50% of the net proceeds of sale – after discharge of the mortgage and other encumbrances "including the loan to (the husband's father)" – to be paid to the husband's brother, and the balance to be held in trust.
The husband also sought parenting orders in the amended response. Relevantly, he sought orders to the following effect:
a)the parties have equal shared parental responsibility for the children;
b)the children live in an equal shared care arrangement (on a week about basis);
c)the children spend certain other time with the husband, including half of each school term holiday period and two weeks during the long summer vacation;
d)the parties take steps to enrol [Y] at [H] School in [K] ("[H]") for the commencement of the 2010 school year; and
e)the wife pay his costs.
The husband also filed an application in a case on 6 April 2009, in which he sought similar orders to those sought in the amended response.
In his affidavit sworn 3 April 2009 (in support of both the amended response and the application in a case), the husband recorded that [X] was then attending [H], and that [Y] was then attending [A] three-year-old kindergarten in [E] ("[A]"). He said that [X] was also attending before and after school care at [H], and that [Y] was attending child care at the [Q] staff Club in [T].
The husband expressed concern that [Y]'s peers at [A] were much younger than him (given that [Y] was then four years and five months old). He said that [Y] "should be attending four year old kindergarten as is common for his age". He continued:
(The wife) has indicated to me that she will not allow [Y] to attend school when he is five years of age as is appropriate for him. She has told me that she wants him to start school in 2011 which means that he will be seven years of age in Prep. I consider that this will be detrimental to [Y]'s academic and social development. He is a very bright child and any delay in the commencement of school will certainly lead to boredom and possible regression in what otherwise could be the usual progress for a child his age. If [Y] does not attend school when he is the appropriate age he will be precluded from achieving age-appropriate milestones.
The husband said that he was then living with his partner in his (rented) apartment in the Melbourne CBD and that they had lived there since January 2008. He then deposed to the following:[13]
[13] See paragraph 7 of the husband's affidavit sworn 3 April 2009
I hold a Bachelor of [omitted] and a Post Grad Diploma in [omitted].
The husband later conceded in cross-examination that he holds neither of these qualifications, and that the statement in his affidavit to the effect that he does was simply untrue. He could give no explanation for his false statement.
After dealing with his work arrangements and his involvement with the children prior to separation, the husband said:
Since separation, I have cared for the children every second weekend from Friday night until Sunday night, as well as every Tuesday and every Thursday night from 4 p.m. until 8 p.m.
The husband then dealt in some detail with his communications with the wife regarding his time with the children (including the possibility of an equal shared care arrangement), and his involvement with the children when they are with him. He deposed to attending all functions for parents at both [H] and [A].
After complaining that the wife had interfered (to some extent) with his time with the children, the husband added:[14]
(The wife) generally acknowledges that I have a great relationship with the children and I am a good father to them.
[14] See paragraph 27 of the husband's affidavit sworn 3 April 2009
The husband's application in a case came before the court on 11 May 2009, in the duty list. Mr P H Testart appeared for the husband, and Ms Teicher appeared for the wife. Orders were made, by consent, to the following effect:[15]
a)until further order, the parties were to have equal shared parental responsibility for the children;
b)until further order, and the children were to live with the wife; and
c)until further order, the husband was to spend certain defined time with the children, including each alternate weekend from 3 p.m. on Friday to 9 a.m. Monday, and each alternate Wednesday from 3 p.m. until Thursday at 1:30 p.m. (at which time the husband was to deliver [Y] to [A]).
[15] The orders as sealed do not record that they were made "until further order", but the handwritten minute signed by the parties contains that qualification
The orders also dealt with collection and delivery arrangements for the children. The proceedings were otherwise stood over to the following day.
Further orders were made, by consent, on 12 May 2009. Once again, Mr P E Testart appeared for the husband and Ms Teicher appeared for the wife. The orders were to the following effect:
a)a family report was to be prepared; and
b)the injunction from 16 September 2008 preventing the sale of Property C was discharged (with the property to be sold, subject to certain conditions).
The orders made on 12 May 2009 dealing with the sale of Property C are important. They provided that, after payment of costs and expenses associated with the sale and the discharge of the mortgage, 50% of the net proceeds were to be paid "into an account in the husband's name on trust for (the husband's brother) to be dealt with pursuant to these orders on the written agreement of the parties or final order". These funds were referred to as "the brother’s trust account".
The remaining 50% of the net proceeds of sale of Property C were to be held in an interest-bearing trust account in the joint names of the parties, to abide the parties' written agreement or further order of the court.
The notations forming part of the 12 May 2009 orders record as follows:
A. The husband warrants to the wife that his brother … is and has at all material times been beneficially entitled to a one half interest in (Property C).
B. The husband warrants to the wife that his brother is in hospital suffering severe injuries and comatose and that he is in the process of obtaining guardianship orders from be Victorian Civil and Administrative Tribunals in respect of his brother's affairs.
Paragraph 5 of the orders made on 12 May 2009 is as follows:
In respect of the brother’s trust account:
(a) the husband shall be at liberty to expend therefrom on his brother's behalf any and all day to day living expenses and recurring financial obligations of the brother as at the date of his hospitalisation together with any and all medical, hospital and like expenses and shall provide the wife with copies of the trust accounts weekly;
(b) the husband shall give the wife not less than seven days notice in writing of his intention to spend any money therefrom not agreed to in subparagraph (a) hereof;
(c) the husband shall provide a written account with supporting documents to the wife as to all expenditure therefrom pending the final hearing.
Paragraph 6 of the 12 May 2009 orders provides that the wife was to have liberty to apply at short notice "in the event she objects to any proposed expenditure from the brother’s trust account".
The husband conceded in evidence that the orders in relation to his brother's trust account were not complied with. He said that his brother's health improved, to the extent that there was no need for him to obtain a guardianship order for his brother from VCAT. Thus, and without consulting the wife or obtaining the leave of the court, the husband caused or permitted the whole of his brother’s trust account to be paid out to his brother.
The wife filed a response to the husband's application in a case on
28 May 2009. In it, she accepted that the parties should have equal shared parental responsibility for the children, but opposed the husband's application for equal shared care. She sought that the children live with her and spend time with the husband on each alternate weekend (from 3:30 p.m. on Friday to 9 a.m. on Monday), for roughly half of all school holidays and on other special occasions.
In her affidavit sworn 11 May 2009 (in support of her response to the husband's application in a case), the wife explained why [Y] was in three-year-old kindergarten as opposed to four-year-old kindergarten. She said:
[Y] started speaking late. He was also late being toilet trained. [Y] was initially enrolled to start three-year-old kindergarten in 2007. It was decided to defer the commencement of kindergarten because he was late reaching these developmental milestones. The commencement date for school was also deferred because of this. [Y] attended group speech therapy from approximately July to October 2006. [Y] was not toilet trained until January 2007 when he was three years and two months. In February 2009, the husband and I met with … the teacher at [Y]’s kindergarten, to discuss whether [Y] was undertaking the appropriate level for his age and maturity. … The husband said that he did not see anything wrong with [Y] struggling (with his education) at that stage. At that meeting, the husband also said that he was not aware that [Y] did not attend three-year-old kindergarten in 2008 even though I did attempt to discuss this with him at the time. (Emphasis added)
Put shortly, the wife's case was that [Y] was held back because he was not ready to attend three-year-old kindergarten in 2008, and that it would be educationally unsound for him to be moved up to his correct age group in accordance with the husband's wishes.
The wife also said, in essence, that the husband had exaggerated his involvement in the children's day to day care. She noted that he worked long hours and had been away interstate at times when the children were younger. She added that she did not work for approximately 3 1/2 years after [X]'s birth, and that the husband provided "minimal support" for her in her role as primary caregiver for the children during that time (because he worked hard and had other interests which took up a lot of his spare time when he was not working, and whether or not he was home).
Importantly, the wife said:[16]
The husband did not voluntarily assume responsibility for the children's care and he was not an equal carer. Any assistance he provided had to be requested of him. …
[16] See paragraph 8 of the wife's affidavit sworn 11 May 2009
The husband had asserted that he had cared for the children while the wife was teaching aerobics classes on a number of occasions during the week. Again, the wife said that the husband had exaggerated the significance of his role in this regard. She added that her mother and the husband's mother had both assisted, where necessary, when she was involved in such classes. It was not until mid 2008 that the husband cared for the children in his apartment while the wife took her classes.
The wife also said that the husband did not care for the children every second weekend until approximately March 2008 (some six or seven months after separation), in spite of her requesting him to do so:[17]
When we separated, I asked the husband to take the children and have them stay with him every second weekend and he declined because of his personal situation. I suggested he take the children and stay at his parents home where there was more than enough room for them all to stay. He also refused this, so ultimately was arranged that the husband would come and stay in my home when I was working. If I did not go to work, then the husband … chose not to see the children.
[17] See paragraph 13 of the wife's affidavit sworn 11 May 2009
During the course of his evidence, the husband conceded that the wife's description of his attitude (as described in the previous paragraph) was accurate.
In her affidavit sworn 11 May 2009, the wife referred to other occasions when the husband was or appeared to be reluctant to spend time with the children. She also referred to her significant involvement in their lives. She said that she opposes an equal shared care arrangement for the following reasons:[18]
a)she has been the children's primary caregiver throughout their lives;
b)the children are too young for such an arrangement;
c)she and the husband "have great difficulty communicating" (to the extent that the husband is not prepared to listen to any of the wife's suggestions in relation to the children's care, and becomes hostile when she tries to discuss the children's routines and like matters); and
d)the husband is overbearing in his dealings with her (for example, he threatened that if she continued to dispute his claims in relation to property settlement, and if the husband's parents were required to give evidence, then the parties would have "no relationship whatsoever").
[18] See paragraph 16 of the wife's affidavit sworn 11 May 2009
The wife also commented that, save for the period of 17 days during the 2008/09 summer holidays referred to in the husband's affidavit sworn 3 April 2009, the children were not used to spending extended periods of time with the husband.
[X] attends gymnastic classes. The wife said:[19]
I have asked the husband to contribute to the cost of the gymnastics classes, but the husband continually refuses. He states that he will await the outcome of the property proceedings to see what he receives before he decides whether he will make any contribution. The husband's position is the same in relation to each of the activities the children undertake. [Y] has soccer lessons, swimming lessons and gymnastic lessons. [X] has swimming lessons, gymnastic lessons and ballet and tap-dance lessons. I pay for all of these without assistance from the husband who refuses to provide any assistance. I have paid for all of the children's activities since our separation and the husband has always refused to contribute to any of the children's activities. The husband only pays child support as assessed by the Child Support Agency …
[19] See paragraph 20 of the wife's affidavit sworn 11 May 2009
The wife's affidavit concluded as follows:[20]
As a result of our separation and the actions of the husband, I was required by the husband to leave the former matrimonial home. As the children and I had nowhere to live, I asked the husband if the children could stay with him for a few weeks while I found somewhere for the children and I to live and the husband refused.(Emphasis added)
[20] See paragraph 27 of the wife's affidavit sworn 11 May 2009
During the course of his evidence, the husband admitted that he had behaved as described in the previous paragraph. In my opinion, he had no satisfactory explanation for his actions, and I find that they were petty and vindictive. They do him no credit.
Shortly before the first trial date (which had been fixed for 22 June 2009), the husband filed a further affidavit. It was sworn on 17 June 2009. In his affidavit, the husband joined issue with some of the matters raised by the wife in her affidavit sworn 11 May 2009. He also attached a large number of documents dealing with financial matters. In relation to [X]'s education, he said:[21]
I wish for [X] to continue attending [H] for the remainder of her primary school education, and I also wish for [Y] to commence Prep at [H] in 2010. [Y] has been enrolled to commence Prep at the school in 2010 as a way of preserving a place at the school. The wife did not consult with me prior to enrolling [X] at school or provide me with an opportunity to participate in the school selection process. [X] commenced Prep at [H] in February 2009. … I have found that [H] has a good teacher to student ratio, a close-knit community, a caring and supportive environment, adequate resources and a good educational policy which I believe is being implemented in the Prep year level.
[21] See paragraph 4(b) of the husband's affidavit sworn 17 June 2009
In support of his application for equal shared care, the husband indicated his concern that if he were to care for the children for five nights or less per week, then [Y] would spend considerable time in child care and [X] would attend regular before school and/or after-school care to enable the wife to work. His view was that, with shared care, the wife "would be able to arrange her working schedule such that there was minimal need for her to place the children in care" (which necessarily involves early starts).
The husband also said that, in his opinion, the children were involved in more activities than was necessary or was in their interest.
The parties saw Terry Laidler, Psychologist, on 30 May 2009 for the preparation of the family report. The report is dated 15 June 2009 and comprises annexure DSMO 3 to the husband's affidavit sworn 10 September 2009.
The trial did not proceed on 22 June 2009. I have dealt with the circumstances surrounding the adjournment of the trial in the first disqualification judgment.[22]
[22] See Owens [2009] FMCAfam 1397 (17 September 2009)
At the completion of the hearing on 23 June 2009, detailed orders were made to ensure that the matter would be ready for trial on the next trial date. Indeed, the matter was adjourned to 9 November 2009 for final hearing with priority (with an estimated hearing time of two to three days). Relevantly, orders were made to the following effect:
a)each party was to file and serve a minute -- setting out (with particularity) the orders to be sought at trial -- by not later than 4 p.m. on 21 August 2009;
b)the estate of the husband's father was granted leave to intervene in the proceedings;
c)a further conciliation conference was ordered;
d)each party was ordered to give discovery on oath; and
e)a date for return of subpoenas (being 30 July 2009) was fixed.
At the same time, interim orders were made to the following effect:
a)the children live with the wife;
b)the husband spend time with the children each alternate weekend from the start of school or kindergarten on Friday until the start of school or kindergarten on Monday, and in each other week from the start of school or kindergarten on Thursday until the start of school or kindergarten on Friday;
c)the wife facilitate the children speaking to the husband by telephone at least once per week; and
d)the husband facilitate the children speaking to the wife at least once during all periods that they spend with him.
Given the dispute regarding [Y]'s education, an order was made to the effect that an educational psychologist be appointed by the parties to assess [Y]'s school readiness.
On 3 September 2009, the wife filed an application in a case. She sought urgent orders to the effect that:
a)[X] be enrolled in [S] School in [E] ("[S]") forthwith;
b)[Y] also be enrolled in [S] when he is to commence Prep; and
c)the orders made on 23 June 2009 be varied to require the husband to collect [X] from school and [Y] from either his child care centre or the wife's home at changeover, and to return [Y] to the wife's home or the child care centre.
The wife filed two affidavits (one sworn on 19 June 2009 and the other sworn on 1 September 2009) and her financial statement (sworn
1 September 2009) on 2 and 3 September 2009. The husband filed an affidavit (sworn 10 September 2009) in response to the wife's affidavit sworn 1 September 2009 – dealing (principally) with the schooling issue.
The wife's application in a case was listed for hearing (in a duty list) on 15 September 2009. Due to the intervention of the first disqualification application, however, the schooling issue was not dealt with until 18 September 2009. The events of 15, 16 and 17 September 2009 are described in the first disqualification judgment.
Having regard to the following factors:
a)the trial was due to commence on 9 November 2009;
b)the wife's application relating to change of schooling was being made during the course of the school year;
c)a change of school would involve a very significant change in [X]'s life; and
d)any change of school at that stage might be reversed at trial (which would obviously be extremely unsettling for [X]),
I indicated that I was not prepared to authorise a change in [X]'s school on an interim basis.
Various other matters were dealt with on 18 September 2009. Of significance was a relatively short argument[23] relating to paragraph 12 of the orders made on 23 June 2009. That order is as follows:
12. An educational psychologist be appointed by the parties to assess [Y]'s school readiness. The wife's solicitors shall forward a list of three psychologists to the husband's solicitor from whom the psychologist is (to be) selected and the husband shall pay the first $1000 of the cost of the psychologist, (with) the wife to pay the next $500, and the parties will be equally responsible for any balance thereafter.
[23] See 18 September 2009 transcript at pages 23-5
The wife had provided a list of three psychologists (as she was obliged to do), but the husband was not prepared to accept a psychologist from the list. Instead, he provided a list of his own (comprising six names) and insisted that the wife choose a psychologist from his list. Not surprisingly, I ruled that the parties must comply with the terms of the previous order, and that the husband must choose from the wife's list. But the husband's approach to this issue provides a good illustration of his attitude to the wife, and to the issues in dispute in these proceedings. According to his counsel, the husband rang the educational psychologists chosen by the wife and allegedly ascertained that they do not have experience with children. He then took it upon himself to locate six educational psychologists who allegedly do have experience with children. In my opinion, the husband’s approach was presumptuous, and insulting to and dismissive of the wife. It also revealed a lack of respect for orders of the court. Unfortunately, on the basis of my observation of the husband in the witness box, together with the affidavit and other evidence presented at trial, it is fair to say that the husband has a quiet self-assurance which, when coupled with his noticeably aloof demeanour and obvious disdain for the wife's opinions, borders on smugness. I have no doubt that the wife’s perception of him as “overbearing” is accurate. I shall return to this subject later in these reasons.
The trial (which had been listed for two to three days) commenced on 9 November 2009. It was not completed in the first five sitting days (9 to 13 November 2009 inclusive) and had to be adjourned part heard to
23 November 2009 It then continued on 23, 24 and 25 November 2009. Thus, it occupied a total of eight sitting days.
Ms Teicher represented the wife at trial. Mr Testart appeared for the husband.
Events subsequent to the end of the "evidence phase" of the trial
The "evidence phase" of the trial ended on 25 November 2009. After hearing counsel in relation to mechanical matters (including relevant time frames), I directed that closing submissions be in writing, and made orders to the following effect:
a)closing submissions were not to be longer than 20 pages;
b)the wife's closing submissions were to be filed and served by not later than 4 p.m. on Thursday 3 December 2009;
c)the husband's closing submissions were to be filed and served by not later than 4 p.m. on Friday 11 December 2009; and
d)the wife was given liberty to apply for leave to file brief written submissions in response to the husband's closing submissions.
The court received WFS late on 3 December 2009. On 10 December 2009, the wife's solicitors forwarded replacements for pages 4 and
19 of WFS, and advised that amendments had been made to paragraphs 14 and 65 of the document.
During the afternoon of 10 December 2009, my Associate received a letter from the husband's solicitors. The letter contained the following:
Unfortunately Auscript …has kept the husband waiting more than two days longer than it had quoted. In fact the transcripts have not been received despite having been ordered on 30 November 2009. This has caused a corresponding delay in the submissions of the husband, such delay being beyond his fault or control.
We write to (sic) way of courtesy, seeking the indulgence of the wife and the leave of the court that the closing submissions will be slightly later on this basis. We submit that such indulgence and leave is necessary in the interests of justice for the husband to present his case properly and that it will cause no prejudice to the wife.
The above letter having been brought to my attention, I directed my Associate to advise the husband's solicitors that I would allow a short extension for the filing of his submissions. Thus, at approximately 4:30 p.m. on 10 December 2009 my Associate advised the husband's solicitors that the deadline for the husband's closing submissions would be extended to 4 p.m. on Monday 14 December 2009.
At 3:10 p.m. on 14 December 2009, Mr Testart emailed a letter (addressed to me) to my Associate. The relevant parts of the letter are as follows:
I refer to the above matter and to the directions your Honour made with respect to closing submissions. I also refer to the email that I received from your Associate through my instructor on 10 December 2009 extending the time limit until today.
Transcript in this matter was ordered on 30 November 2009. Despite my instructor repeatedly following it up with Auscript … it did not arrive until after business hours on 10 December 2009, almost a week late.
There are more than 700 pages of transcript evidence in this matter. Unfortunately … it is simply not possible for me to prepare submissions properly on behalf of my client and fulfil my duties to both him and to the court without reviewing the transcript. Further … it has not been possible to review the transcript and finish the submissions within your Honour's time limit.
With respect, these circumstances are beyond my control and that of my solicitor and my client. I am aware that it is important for the parties to have this matter determined as soon as possible. Nevertheless, it is also important for me to review the evidence properly so that I can present proper submissions to the court. I assure the court that I am doing my utmost to do this in the most timely fashion, having prepared my submissions as much as possible in the absence of the transcript. My work on this matter has also extended well past regular business hours; I have been working past midnight every night since receiving the transcript, including on the weekends. I have also been hampered by the fact that my instructor went away on leave on 11 December 2009, thinking that transcript in this matter would have been received and submissions finalised. …
Having received the transcript, it has only become recently apparent that your Honour’s judgments (in terms of his rulings on applications made during the course of the trial) are omitted. …
It is necessary for me to review these judgments (which also include judgments from proceedings in September this year) before I can present my submissions to the court. On this basis I would be most grateful if your Associate could email all of the judgments that his Honour has made since 23 June 2009 to enable me to finalise my submissions as soon as possible. (Emphasis added)
The above letter was brought to my attention shortly after it was received. Having read it, I directed my Associate to respond as follows:
His Honour has requested me to inform you that no further time will be permitted for the filing and service of the husband's submissions. The wife's submissions were prepared without the assistance of the transcript, and his Honour is of the view that there is no need for a transcript to enable you to prepare the husband's submissions. Indeed, had time permitted, both counsel would have been required to present their closing addresses at the conclusion of the evidence phase of the trial. Obviously, no transcript would have been available at that time. The timetable for the filing of submissions was set (and agreed to) then.
Further, his Honour is unable to see the relevance of any of his interlocutory judgments in relation to the preparation of closing submissions. In any event, it is for counsel to make notes of any reasons given at the time.
Please note that if the husband's submissions are not received by 12 noon tomorrow (15 December 2009), then his Honour has indicated that the court will not receive them at all, and his Honour will proceed to prepare his judgment accordingly. (Emphasis added)
I note the following:
a)The husband's solicitors could have ordered the transcript well before 30 November 2009 if they had been minded to do so.
b)
The wife's closing submissions (WFS) were prepared by
Ms Teicher without the assistance of the transcript.
c)
Counsel could have requested settled reasons in relation to all rulings made since 23 June 2009 well before 3:10 p.m. on
14 December 2009. Relevantly, settled reasons for the dismissal of the first disqualification application (which reasons were delivered on an ex tempore basis on 17 September 2009) could have been requested well before 3:10 p.m. on 14 December 2009.
d)Rulings made during the course of a trial rarely form the subject of separate, detailed reasons.
e)
Although of only limited relevance, the fact of the matter is that, if the transcript was not received until after business hours on
10 December 2009, then there was only one weekend upon which Mr Testart could have been working "past midnight every night ".
At 11:37 a.m. on 15 December 2009, my Associate received a further email from Mr Testart. After acknowledging my Associate’s email from the previous day, he wrote:
Please find attached submissions seeking interlocutory orders in this matter for his Honour to consider.
The email of 15 December 2009 included:
a)an informal submission to the effect that counsel "… in no way waives the husband's right to make any address before his Honour makes any decision in this matter (and submits that he could not even if he wanted to)";
b)an informal submission to the effect that court timetables ought to be the servants of justice (as opposed to "the masters of justice"), followed by a statement that "counsel still intends to make address to the court by way of written closing submissions";
c)
repetition of the request contained in counsel’s letter of
14 December 2009 "for copies of all judgments which have been made ... in these proceedings after June 2009"; and
d)an assurance that the husband's closing submissions "will be ready for the court very shortly".
The "submissions seeking interlocutory orders" attached to the email of 15 December 2009 are headed: "Memorandum of Submissions for the Respondent Husband – Application for Disqualification (Number 2)". I shall refer to these submissions as "the second disqualification application".
The second disqualification application comprises 26 pages. Attached to it are a further 25 pages of annexures.
The second disqualification application purports to seek orders to the following effect:
a)that I disqualify myself;
b)that the proceedings be transferred to another Federal Magistrate (or to a Judge of the Family Court of Australia) for directions –
i)regarding "the need for the admission of further evidence (if any)"; and
ii)in order to "avoid the need for a retrial"; and
c)that costs be reserved.
The second disqualification application is based on two main grounds, namely apprehended bias and actual bias.
The email of 15 December 2009, and the second disqualification application attached to it, were brought to my attention shortly after they were received. A response was emailed to counsel at 12:35 p.m. on 15 December 2009, the relevant parts of which are as follows:
… As foreshadowed in (the Associate’s) email to you sent just after 4 p.m. yesterday, his Honour has asked me to confirm that no further time will be permitted for the filing and service of the husband's closing submissions. His Honour notes the following:
· Although you found time to prepare a 25 page submission in support of an application that his Honour disqualify himself, you apparently did not find time to prepare written submissions on behalf of your client in relation to the substantive issues at trial.
· In your letter to (the Associate) sent at approximately 3 p.m. yesterday, you made no mention of the proposed application for disqualification.
· No formal application has been made to the court to extend the time for filing written submissions on behalf of the husband, and no reasons for your failure to comply with the directions made regarding the filing of submissions have been provided beyond those contained in your letter to the court dated 14 December 2009 (and, perhaps, in your instructors' approach to [the Associate] on 10 December 2009). …
On 16 December 2009, I made orders to the effect that the second disqualification application be dismissed. I also directed that my reasons for dismissing it be delivered concurrently with my reasons in the substantive proceedings.
On 29 January 2010, I made orders in relation to parenting issues. I shall refer to these orders as "the final parenting orders". I was conscious that the children were about to resume at school/kindergarten and felt that it was appropriate to inform the parties of my decision as early as practicable. I was unable to provide my reasons for making the final parenting orders at that time. They are incorporated in this document.
The final parenting orders (made on 29 January 2010) are to the following effect:
1. All previous parenting orders be discharged.
2. The wife have sole parental responsibility for the children in relation to the following issues about their care, welfare and development of a long-term nature –
(a) subject to paragraph 5 below, the children’s education (both current and future), including, but not limited to, the school/kindergarten each child is to attend and [Y]'s readiness to start school; and
(b) the children’s religion, and their religious and cultural upbringing.
3. In exercising sole parental responsibility in relation to the issues referred to in paragraph 2(a) and (b) above, the wife must:
(a) consult the husband in relation to any decision to be made about that issue;
(b) make a genuine effort to come to a joint decision about that issue; and
(c) in the event that the parties are unable to come to a joint decision about that issue, notify the husband of any decision relating to the issue within seven days of making such decision.
4. Subject to paragraphs 2 and 3 above, the husband and the wife have equal shared parental responsibility for both [X] and [Y] in relation to all other issues about their care, welfare and development of a long-term nature.
5. The wife be restrained by injunction from removing [X] from, or terminating [X]'s enrolment at, [H] unless and until she has permanent accommodation for herself and the children within 3 km of [E], whereupon the said injunction shall be forthwith discharged – and for the purpose of this order "permanent accommodation" shall mean residential accommodation which is either –
(a) owned by the wife (whether solely or jointly with any other person); or
(b) leased by the wife (whether solely or jointly with any other person) for a period of not less than two years.
6. The children live with the wife.
7. The husband spend time with and communicate with the children as follows:
(a) each alternate week from the conclusion of school or kindergarten on Thursday until the start of school or kindergarten on Monday (or Tuesday in the event that Monday is not a school day);
(b) each other week from the conclusion of school or kindergarten on Thursday until the start of school or kindergarten on Friday;
(c) for one half of each of the first, second and third term school holidays as agreed between the parties and, failing agreement, for the first half in even numbered years and the second half in odd numbered years;
(d) subject to (e) below, for one half of the long summer vacation each year as agreed between the parties and, failing agreement, for the first half in the 2010/11 long summer vacation (and in each alternate year thereafter) and the second half in the 2011/12 long summer vacation (and in each alternate year thereafter);
(e) at the Christmas Period as follows:-
(i) in even numbered years:
(1) from 4 p.m. on 24 December to 4 p.m. on 25 December (and the wife's time with the children – if applicable – be suspended accordingly); and
(2) the husband's time with the children – if applicable – be suspended from 4 p.m. on 25 December to 4 p.m. on 26 December; and
(ii) in odd numbered years:
(1) from 4 p.m. on 25 December to 4 p.m. on 26 December (and the wife's time with the children – if applicable – be suspended accordingly); and
(2) the husband's time with the children – if applicable – be suspended from 4 p.m. on 24 December to 4 p.m. on 25 December;
(f) on the children’s birthdays and the husband’s birthday at times to be agreed, but failing agreement as follows:
(i) during the school week, from after school to 6.30 p.m.; and
(ii) on a weekend day, from 9 a.m. to 1 p.m.;
(g) from 9 a.m. to 7 p.m. on Father's Day and, should Mother’s Day fall during the husband's time with the children, then his time be suspended from 9 a.m. to 7 p.m. on Mother’s Day; and
(h) as otherwise agreed between the husband and the wife from time to time in writing.
8. The husband's time spent with the children pursuant to paragraph 7(a) and (b) above be suspended during all school term and long summer holidays, and do resume after such holidays in an unbroken cycle as if such holidays had not occurred.
9. The husband's time with the children – if applicable – be suspended on the children's birthdays and the wife's birthday at times to be agreed, but failing agreement as follows:
(a) during the school week, from after school to 6.30 p.m.; and
(b) on a weekend day, from 9 a.m. to 1 p.m.
10. The husband and the wife be permitted to telephone the children between 5 p.m. and 7 p.m. on a Saturday when the children are in the care of the other parent, and each parent must –
(a) allow the children to call the other parent whenever the children (or either of them) wish to do so; and
(b) provide the children with privacy during all phone calls with the other parent.
11. The husband or his nominee must collect the children from and return them to school/kindergarten at the commencement and conclusion of each spend time period pursuant to paragraph 7(a) and (b) above and, unless otherwise specified or agreed to by both parties, at all other times the husband must collect the children from the wife's residence at the commencement of his time with them and the wife must collect the children from the husband's residence at the end of the husband's time with them.
12. Each party must:
(a) advise the other party immediately in the event that either child suffers any serious illness or injury; and
(b) authorise any medical professional upon whom either child may attend from time to time, to communicate with the other party regarding the child's condition and/or requirements.
13. The wife must authorise all schools/kindergartens which the children may attend from time to time to:
(a) provide to the husband, at the expense of the husband, copies of all school reports, school notices and school photographs in relation to the children;
(b) permit the husband to attend all school functions (including school concerts or parent/teacher interviews) to which parents are ordinarily invited.
14. Nothing in the within orders shall prevent either the husband or the wife from having either child treated – as a matter of urgency – for any sudden injury or acute illness or other medical or dental emergency which may arise in relation to the child during their respective periods of care, but in the event of such treatment being required, the parent arranging such treatment must immediately notify the other parent of the following details:
(a) the name and contact details of the medical professional administering the treatment;
(b) the medical or other complaint for which the child was taken to the medical professional;
(c) any treatment and/or medication prescribed for or provided to the child; and
(d) the reasons for the prescription for or provision of such medication and/or treatment.
15. All extant applications for parenting orders otherwise be dismissed.
I also ordered that the parties’ competing applications for property settlement remain adjourned pending the delivery of reasons for judgment.
Dismissal of the second disqualification application
I read the second disqualification application (and the annexures attached to it) carefully on 15 December 2009, and gave it considerable thought before dismissing it on the following day. In my opinion, the test in relation to apprehended bias had not been met. Nor had actual bias been demonstrated. Further, and as indicated below, I formed the view that waiver had taken place.
I am reluctant to spend unnecessary time dealing with the second disqualification application. I have concluded – with considerable regret – that its primary purpose is or appears to be to endeavour to justify some of Mr Testart's extraordinary behaviour during the course of the proceedings and, unfortunately, to provide a further opportunity for him to pursue what might fairly be described as his personal grievances against this judicial officer.
At the end of the day, and having regard to the findings that I have made in these reasons and the terms of the final parenting orders, it seems likely that Mr Testart will seek to agitate his complaints against this judicial officer elsewhere. Indeed, he has strongly indicated that he proposes to do so.[24] That being the case (and even if it were not the case), I recognise and remind myself that I must not be swayed by the acrimonious nature of counsel's approach to the conduct of the proceedings. It is also important that the court not “descend into the arena” (as it were), and spend time unnecessarily or inappropriately responding to baseless accusations.
[24] See, for example, Mr Testart’s email to my associate received at 11:37 a.m. on 16 December 2009
Ordinarily, a judicial officer could comment that "the transcript speaks for itself" in relation to certain exchanges with counsel. In the present case, however, that is only partly true. It gives me no satisfaction to have to record that I cannot in good conscience, and do not, resile from any of the comments that I made about counsel’s behaviour during the course of the proceedings. I would add that counsel’s behaviour in court demonstrated what appears to be a fundamental misunderstanding of the role of an advocate in proceedings in a busy trial court (or, indeed, in any court). By way of example only,
Mr Testart –
a)seemed to regard most rulings made against him during the course of the hearing as a personal affront;
b)continued to argue with the bench well after rulings had been made, including by failing or refusing to sit down (where he had made an objection and it had been disallowed) or failing or refusing to adhere to directions regarding relevant questioning (where Ms Teicher had made a successful objection, or the court had indicated that a question was inappropriate for any reason);
c)giggled, rolled his eyes, scoffed and made sotto voce comments when Ms Teicher was examining her client, cross examining the husband or addressing the court;[25]
d)rolled his eyes, smirked, sighed, gesticulated and generally (and obviously) conveyed his displeasure or disagreement with events occurring within the courtroom, or comments made by the bench;
e)at one point, simply sat down while re examining his client (saying that he needed "to compose himself"), and remained sitting, in silence, for three or four minutes – and gave no signs of being close to resuming his role in the proceedings – before the court broke the silence by asking the witness to continue the evidence that he had been giving;
f)during the course of an interlocutory hearing (being the first disqualification application), turned his back on the court, and addressed the bench while facing the rear of the courtroom;[26] and
g)during the course of the same interlocutory hearing, endeavoured to explain to the court why he had estimated that a matter that was clearly likely to take the best part of a day "might take only five minutes" by indicating that he expected that the court "might be able to recall the proceedings (giving rise to the first disqualification application) and see that my submissions might be particularly strong and simply grant the application".[27]
[25] See, for example, 13 November 2009 transcript at page 343
[26] See 17 September 2009 transcript at page 21
[27] See 17 September 2009 transcript at page 3
I accept, however, that the husband has paid child support for the children. I do not suggest, therefore, that he has failed to meet his financial obligations to them. Still, there appears to be no reason why he could not have assisted the wife with school and kindergarten fees when he was asked to do so.
I have already referred to a number of examples of the husband's attitude generally, and to examples of his attitude and behaviour which reveal a reluctance or inability on his part to focus on the children's best interests (such as the evidence in relation to his failure or refusal to look after the children for more than a very limited period of time after separation, and after the sale of the former matrimonial home).[110]
[110] See, for example, paragraphs 64 and 65 above.
The bottom line in relation to this factor is that, in my opinion, and irrespective of the husband's criticisms of the wife, the wife can indeed be trusted to accept and successfully fulfil all the responsibilities and duties associated with parenting the children (including the responsibility to promote a close and loving relationship between the children and the husband). Regrettably, I am less confident about the husband's willingness (or perhaps ability) to "step up to the plate" (to use a colloquialism) in this regard.
Family violence
The evidence before me reveals that, fortunately, this is not a relevant consideration.
Orders least likely to lead to the institution of further proceedings
Having regard to the recommendations contained in the family report, there is a possibility that the husband will eventually be minded to make a further application for orders relating to equal shared care. On the other hand, and given that the parties’ property settlement dispute will soon be resolved (in this court, at least), there exists a possibility that the husband will simply leave in place the arrangement reflected in the final parenting orders made on 29 January 2010.
There is little point in speculating on either party's future intentions. To the extent that this consideration requires me to have regard to an arrangement that is least likely to generate a negative response from the children, or to prove unworkable for one reason or another, I am satisfied that the orders that I have made are those that are least likely to lead to the institution of further proceedings.
Other relevant facts or circumstances
Leaving aside the primary considerations (which are referred to below), there do not appear to be any other facts or circumstances that are of significance, and that I have not otherwise discussed..
Neither party has purchased accommodation as yet; each is renting. In my opinion, there is no credible evidence to suggest that either party is not capable of providing, or will not provide, adequate (or, indeed, comfortable) accommodation for the children in a suitable location. In my opinion, it is not important in the context of the present case whether the children are presently sharing a room or whether the accommodation chosen by the husband or wife is in the Melbourne CBD, in [E] or in any of the suburbs between the two. At the end of the day, both parties will ensure that they remain involved in the children's lives. Similarly, both will be spending substantial and significant time with the children.
Meaningful relationship
Having dealt with the considerations pursuant to section 60CC(3) that I consider relevant, I shall now turn to or revisit the considerations referred to in section 60CC(2).
In my opinion, there is little further that needs to be said about the benefit to the children of having a meaningful relationship with both of their parents. I have dealt with the children's relationship with the parties elsewhere in these reasons. I recognise the benefits to the children of having a meaningful relationship with each of the husband and the wife. On the basis of the evidence before me, I have done my best to determine how, consistently with the children’s best interests, orders can be framed to ensure that both children have and continue to have a meaningful relationship with their parents. The final parenting orders reflect my attempt to protect, preserve and promote that relationship.
Protection from harm
Fortunately, this does not appear to be a relevant consideration in the circumstances of the present case.
Conclusion as to most satisfactory proposal
In my opinion, and
a)bearing in mind that the children's best interests remain the overriding consideration;
b)taking into account the objects and principles set out in s.60B; and
c)having regard to my discussion of the section 60CC factors above,
I conclude that, in general terms, the wife's proposals are more likely to be in the children's best interests than the husband's proposals (subject to my findings in relation to the issue of parental responsibility). I have modified the wife's proposals to reflect my view that it is in the children's best interests to spend a little more time with the husband than was proposed by the wife.
Parental Responsibility
As indicated above, the presumption relating to equal shared parental responsibility (which clearly applies in the present case) can be rebutted by evidence that satisfies the court that it would not be in the children's best interests for an order to be made to that effect. For the reasons that appear elsewhere in this judgment, I have formed the view that it is in the children's best interests for an order to be made to the effect that the parties have equal shared parental responsibility for making decisions about the children's major long-term issues, save in relation to the children's education (including the schools that the children are to attend) and their religious and cultural upbringing. I have ordered that the wife should have sole parental responsibility in these two areas.
I have also ordered that, in exercising sole parental responsibility in relation to those two areas, the wife must:
a)consult the husband in relation to any decision to be made about the relevant issue;
b)make a genuine effort to come to a joint decision about the issue; and
c)in the event that the parties are unable to come to a joint decision about the issue, notify the husband of any decision relating to the issue within seven days of making such decision.
It is readily apparent that the first two requirements referred to above mirror the requirements that would apply if the parties were to have equal shared parental responsibility for the two areas to which I have referred. The third requirement, however, reflects the fact that the final decision should rest with the wife.
I have formed the view that the children's education (including the schools that the children are to attend) and their religious and cultural upbringing should be treated differently to other major long-term issues (in the sense that the wife should have the right to make the final decision in relation to them) because the evidence in relation to these two areas, when coupled with my observations of the parties, persuaded me that such should be the case. Relevantly, and without ignoring the section 60CC factors discussed above, I refer to the following:
a)I have mentioned exhibit W4 in the context of the second disqualification application (where I commented on Mr Testart’s alleged confusion as to the passage about which questions were then being asked). The exhibit comprises an email from the husband to the Principal of [S] dated 16 September 2009 (or, in fact, just after midnight on the night of 15/16 September 2009). In other words, the email was sent shortly after the wife's application to change [X]'s school on an interim basis (and, indeed, the first disqualification application) had come before the court in the duty list on 15 September 2009, but before that application had been determined.
b)
Exhibit W4 is self-explanatory. Among other things, I find that it was clearly intended to place the Principal and Board of [S] under pressure, with a view to persuading them to reject [X]'s enrolment at the school (irrespective of the outcome of the wife's application then before the court). Indeed, the email forcefully requests a response "no later than the close of business tomorrow" – in other words, before the wife's application to change [X]'s school could be dealt with (given that the hearing had been stood over to
16 September 2009 at 2:15 p.m., and given that the husband well knew that the first disqualification argument would have to be dealt with before the issue of change of school). The email contains the following passage:
Among other things, I am extremely concerned with the preferential treatment you have afforded to (the wife), it is apparent to me that some form of "short-circuit in of the school enrolment policy" is occurring and I want some answers from the School Board as to why this is occurring. I am sure the other families on the "waiting lists" would be horrified to think that someone who is prepared to falsify her address to get the child enrolled into their school of choice is being given preferential treatment over others. I'm sure you will agree that having someone in your community who is prepared to falsify documents for their own personal gain, at the detriment of others, is not someone who demonstrates the values and qualities [S] prides itself on.
c)When cross examined about the email, the husband initially refused to concede that there was anything "nasty" or inappropriate about it.[111] It was only after he was provided with a number of opportunities to rethink his evidence in that regard that he eventually (and most reluctantly) conceded that he should not have included some of the things that he had written.[112]
[111] See 13 November 2009 transcript at pages 319 and 321
[112] See 13 November 2009 transcript at page 322
d)The husband's evidence in relation to [X]'s enrolment at [S], and his response to the enrolment, was unsatisfactory. His answers to questions were often non-responsive. At times, they were contradictory. For example, the husband initially said that he had not read an email sent to him by the wife "in full". When it was pointed out to him that the email was annexed to one of his affidavits, he then said that he had read it "in full".[113] I find that the husband was prepared to say almost anything to justify the stance that he had taken regarding [X]'s enrolment at [S], without concern as to whether his evidence was true or untrue. As I have indicated above, where the wife's evidence conflicts with that of the husband, I have no hesitation in preferring the wife's evidence (and that is particularly so in relation to this subject). Further, I accept Ms Teicher's submission (in paragraph 4 of the WFS) that, given the timing of the husband's communication with the school, and his actions "cannot be excused or minimised".
[113] See 13 November 2009 transcript page 333
e)That is not to say that the husband's opposition to [X] being enrolled at [S] was without merit in itself. As indicated above, I concluded that [X] should not change schools at that time. In relation to the question of equal shared parental responsibility, however, the evidence to which I have referred (and other evidence) reveals a propensity on the husband's part to act manipulatively, and in a subtly oppositional fashion.
f)I have also referred to the events surrounding the husband's failure or refusal to comply with the order made on 23 June 2009 regarding the appointment of an educational psychologist to assess [Y]’s readiness for school. In my opinion, it is clear from the evidence that the husband actively defied the court order or, at the very least, refused to comply with the wife's request to select an educational psychologist from her list. I find that there was no adequate reason for him to behave in the way that he did. I find that he simply wished to impose his will on the wife (and to annoy and belittle her in the process). Ms Teicher submitted (in paragraph 6 of WFS) that the husband's behaviour demonstrated "two propensities" – namely, an inability to work cooperatively with the wife in making decisions for the benefit of the children (on the one hand) and a failure to comply with court orders (on the other). I accept Ms Teicher's submission in that regard. I also accept her submission to the effect that the orders were unambiguous.
g)
In addition to the above matters, I agree with and adopt
Ms Teicher's submissions in paragraphs 7 to 11 of WFS, where she refers to the following:
i)the husband being unaware that [Y] had not been enrolled in kindergarten in 2008 (and his obvious limited involvement with the children for a period after separation);
ii)the fact the husband did not apply for parenting orders until April 2009 (not August 2008, as Ms Teicher suggested);
iii)the husband's willingness to challenge (through his counsel) the wife's decision not to enrol [Y] in kindergarten in 2008 by questioning her "qualifications" to make such a decision – when the clear weight of the evidence supported the conclusion reached by the wife; and
iv)the husband's 11th hour decision to seek an order that [Y] be enrolled in [K], notwithstanding that he had not previously discussed the potential enrolment with the wife, and notwithstanding that such a proposal appears completely at odds with the husband's case up to that point.
h)I also accept Ms Teicher's submission to the effect that the wife has not sought to exclude the husband from making decisions in relation to the children's schooling. I find that, generally speaking, the wife sought and was willing to accept the husband's input, but that the husband was relatively uninvolved until he decided to seek a shared care arrangement. Further, I find that the wife was and is wary of the husband, who has demonstrated that he is easily annoyed by her and that he has the capacity to act in a spiteful or vindictive way towards her. The email comprising exhibit W4 is a good example of such behaviour.
i)In relation to the question of the children's religious and cultural upbringing, I have formed similar views regarding the husband's capacity to work cooperatively with the wife in relation to these matters as I have formed regarding the children's education. I need not repeat my findings as they relate to the husband's attitude to the wife and his (relatively recent) reluctance to accept her point of view in matters concerning the children's best interests. The husband's attitude to the children's religion appeared ambivalent, and his evidence on the subject was difficult to follow. The husband acknowledged that the wife is Catholic and said that he does not object to the children attending Catholic schools (although his preference would be that they not attend Catholic schools).[114] He then conceded that he would not object to the children being raised as Catholics (even though he is not a Catholic). After further cross-examination, the husband confirmed that he and the wife had been married in a Catholic church and conceded that the priest who marry them would not have performed the ceremony if the husband was not Catholic. Unfortunately, the husband's evidence in relation to this subject was vague and inconsistent. I am left with the view that, given his personality, his lack of respect for the wife, his potential for spiteful or vindictive behaviour towards the wife, his at times negativistic, critical and judgemental attitude towards the wife and what can fairly be described as his occasional (or not so occasional) passive resistance to the wife's efforts to promote what she perceives to be the children's best interests, the most sensible, practical and child focused approach is to give the wife of the final say (as it were) in religious and cultural matters. I have no doubt that such an approach is in the children's best interests, in that it will ensure that they are protected from the possibility (or, indeed, the probability) of inconsistent values and beliefs being pressed on them by the husband. Although the husband said that he does not oppose the children being raised as Catholics, I have little confidence in his assurance in this regard. If that was genuinely his view, then it is difficult to understand why he seems to have made the children's religion an issue and why he was not forthcoming from the outset regarding the fact that he had been baptised as a Catholic. At the very least, it is clear beyond argument that the wife's Catholicism is important to her and that the husband's religion is unimportant to him. Given the decision that the husband and the wife made to bring the children up as Catholics (whether that decision was direct or indirect, as it were), it cannot be in the children's best interests to give the wife other than sole parental responsibility (subject to the consultation provisions set out on the final parenting orders) in this area.
[114] See 13 November 2009 transcript at page 307
In addition to the above, I find that the husband's personality is such that (at least in relation to the two areas to which I have referred) he is likely to be unwilling or unable to accept any decision which does not conform with his views. Further, the evidence reveals that he is unable to relate to the wife constructively in the areas to which I have referred (and, arguably, in other areas as well). The parties have not been able to confer and discuss in a constructive and productive manner the issue of the children's schooling – and even if they have, they were unable to reach agreement.
I note, as well, the unpleasant (and arguably rude or offensive) tone adopted by the husband in his email communication with the Principal of [S]. In the light of that correspondence, I find that it would be more efficient and more effective (not to mention easier) if the schools that the children are to attend were required to communicate (in relation to substantive issues, such as matters pertaining to enrolment) with one parent only. Although I have no doubt that the husband wishes to be involved in the children's lives to a significant degree, and that he genuinely wants them to obtain a good education in a school that is appropriate for them, his current interest in the children's education is of fairly recent origin. The wife has always been primarily responsible for the day-to-day care and supervision of the children. I find that the husband was content to allow her to discharge that responsibility without interference -- until after (or shortly before) the commencement of the current proceedings. Having seen and heard the wife in the witness box, and having observed her demeanour during the course of the hearing, and having read the affidavit and other material currently before the court, I am satisfied that she can be trusted to discharge those responsibilities properly, effectively and in the children's best interests. Further, I am satisfied that she can be relied upon to comply with both the terms and the spirit of the final parenting orders that I have made. Unfortunately, I am unable to make such a finding as it relates to the husband (who has demonstrated that he has the capacity to circumvent orders if they do not suit his purpose).
I am aware that generic concerns regarding the potentiality of an impasse in decision-making brought about by the inability of one party’s view to prevail over that of the other, or regarding the limitation of communication between former partners who no longer like or respect each other, or even regarding the convenience (from, for example, a school's point of view) of being able to deal with one party instead of both … "are not – in themselves – sufficient to rebut the presumption of equal shared parental responsibility".[115] The Full Court in Chappell said, however, as follows:[116]
In order to rebut the presumption (of equal shared parental responsibility) it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child's best interests the Court must take into account the prescribed matters in sections 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child's best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, that the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. (Emphasis added)
[115] See Chappell at page 82,843
[116] See page 82,843
In the present case, I do indeed find that the application of the presumption across the board (as it were) would not be in the children's best interests because the track record of the parents suggests (or, arguably, guarantees) a high probability of deadlock, which will inevitably lead to further proceedings.
Leaving aside the areas to which I have referred (being the children's education and their religious and cultural upbringing), I am satisfied that it would be in the children's best interests for the parties to have equal shared parental responsibility. I cannot pretend that I do not have concerns about this subject, but there is no direct evidence before me that the parties will not be able to consult with each other, make a genuine effort to come to a joint decision about and indeed jointly decide major long-term issues outside the two areas to which I have referred. For the reasons that I have explained above, I have doubts that the husband can bring himself to make a genuine effort to come to a joint decision with the wife about such issues, because he does not respect her, and he places little value on her opinions. On the other hand, I find that the wife can be relied upon to inform the husband of all proposed arrangements that relate to major long-term issues. I also find that she can be relied upon to consult the husband and ascertain his views before proceeding to make any important decision. She is likely to respect his views and take into account any constructive input that he may have. I have no doubt that her decisions in relation to the children's long term care, welfare and development will be made with their best interests uppermost in her mind, and that she will neither minimise nor or trivialise the husband's views.
In the rather unusual circumstances of this case, however, I am not persuaded that is in the children's best interests to make an order for sole parental responsibility in the wife's favour without qualifying that order as I have done. So hard fought were the proceedings (and I refer, in that regard, to the comments that I made regarding counsel's behaviour in the first disqualification judgment, and in these reasons), and bearing in mind that the husband is ultimately responsible for the way in which his counsel saw fit to conduct the case (assuming that counsel was acting within the scope of his instructions), that I am prepared to accept that (in relation to major long-term issues other than the two areas to which I have referred, at least) the husband may simply have temporarily lost his sense of proportion.
I would add that there is a possibility that making an order for sole parental responsibility in the wife's favour could lead to a further escalation of friction between the parties (or, more accurately, an escalation of the resentment felt by the husband towards the wife). If that were to occur, then, given the husband's attitude and personality as I have described them above, there is a possibility that the husband would seek to involve the children in any potential dispute with the wife.
Nevertheless, and without minimising the findings that I have made about the husband and his attitude and behaviour, I am not persuaded that the parties’ relationship is such that they should not be given the opportunity to discuss and endeavour to resolve issues relating to the children's long term care welfare and development. The final parenting orders require consultation and dialogue in relation to all major long-term issues, but give the wife "the final say" in the two areas to which I have referred. In my opinion, the final parenting orders strike an appropriate balance between –
a)the concerns that I have regarding the husband's attitude and behaviour; and
b)the need to ensure that both parties have constructive input in major long-term issues relating to the children.
I am not unaware, as well, that (to date) the parties do not appear to have been unable to reach agreement in relation to issues other than those within the areas to which I have referred.
Regrettably, the husband seems unlikely to change the way that he thinks about the wife -- but I am satisfied that, generally speaking (and once these proceedings are over), it is probable that he will comply with orders of the court, and cooperate with the wife (on a practical level, at least) for the children's sake. Having said that, I remain firmly of the view that it is in the children's best interests for the wife to have sole parental responsibility for the two areas to which I have referred. Thus, although it is probable that the husband will abide by court orders when these proceedings over, he is likely to find it very difficult to cooperate with the wife in relation to the children's education (including the schools that the children are to attend) and religion, and to communicate with her about those matters in a mature, respectful and constructive way.
I accept that it will not be easy for the husband and the wife to discuss major long-term issues, and I accept that there is always the possibility that an impasse will be reached. For the sake of the children, and bearing in mind that the children's best interests comprise the paramount consideration in these proceedings, it seems to me that the orders that I have made regarding the allocation of parental responsibility are appropriate.
In the light of some of the comments of the Full Court in Chappell, I would add for the sake of completeness that the final parenting orders made on 29 January 2010 were drafted to replicate, as closely as possible, the terminology used in the Family Law Act. For that reason, I have used the somewhat awkward construction adopted in the definition of "major long-term issues". I have also endeavoured to reproduce the provisions of section 65DAC(3), and I have referred to "decisions" as opposed to (for example) "management of issues" or similar expressions.
Schooling
The final parenting orders reflect my conclusion to the effect that the wife should be ultimately responsible for decisions in relation to the children's schooling (including the schools that they are to attend), but that she should not be permitted to remove [X] from [H] until she is settled in the [E] area.
Clearly, the wife should not have an automatic "right" to select the children's schools simply because the children are to reside predominantly in her care. There is no presumption to that effect.[117] In broad terms, there are no "shortcuts" or presumptions to assist in determining the question of the schools that the children are to attend. The Court must make such decision as it considers is in the best interests of the children, after taking into account the matters discussed under the heading Parenting Orders -- The Law above, including, of course, the factors referred to in section 60CC. Thus, considerations such as a prior agreement about the school that a child is to attend can be taken into account, but are not necessarily determinative.
[117] See Re G: Children's Schooling (2000) 26 Fam LR 143
I do not propose to deal laboriously with the factors that I have already discussed in these reasons. I have already explained why, in my opinion, the wife should have sole parental responsibility for the children's education (both current and future), including the schools that they are to attend. To the extent that I may not have already dealt with the subject, however, I would add that I am not persuaded that [H] is a better or worse school for the children (or either of them) than any other school in the [E] area that might be selected by the wife. I have decided, however, that the wife should not be permitted to remove [X] from [H] at this stage because, in my view, it is in [X]'s best interests to ensure that she only has to change schools once. I understand the wife's desire to live in the [E] area, and accept it as genuine and long held. When she has permanent accommodation in that area, she will have the opportunity to choose a school for the children which is both nearby and suitable for their needs.
In my opinion, it is in the children's best interests to attend a school which is close to the wife's home. It is important to avoid further disputes regarding collection and delivery of the children at a location (including a school) that is no longer within the community in which the children reside and no longer convenient for either parent. Although the husband made much (in his correspondence) of ethnicity considerations, class sizes and the like, the reality is that the wife was not cross examined about such subjects. Nor, indeed, was the husband. It is for that reason that I have stated that I am not persuaded that [H] is a better or worse school for the children (or either of them) than [S] or any other school in the [E] area that might be selected by the wife. As indicated above, I have no doubt that the wife will choose a suitable school.
There is no credible evidence to the effect that the children will not be able to cope with a change of schools when the time comes. Relevantly, there is no credible evidence to the effect that they will be adversely affected by such a change. I have found that the wife is a sensible and caring parent, and I have no doubt that she will handle any change of schools sensitively, and with a view to promoting the children's best interests. Regrettably, the husband has demonstrated that he has the capacity to lose sight of what might be best for the children and to focus, instead, on his perceived grievances with the wife. I have doubts, therefore, that he would be able to handle any change of schools sensitively and with a view to promoting the children's best interests. Perhaps more importantly, I find that his personality and calm assertiveness are such that there is a strong likelihood that he will eventually have a falling out with the Principal, the teaching staff or the administration of any school that the children may attend (including [H]). If that were to occur, then there is a strong possibility that the children could experience discomfort in their school environment -- due, in part, to the natural defensiveness that professional staff might feel if confronted or challenged by the husband (for any reason whatsoever) in the manner reflected in his correspondence with the Principal of [S].
Conclusion
I have borne firmly in mind, throughout my consideration of the parties’ competing applications, the various factors and considerations referred to under the heading of Parenting Orders – The Law above. I have imposed no legal or other onus on any party, and have applied no presumptions of any sort (beyond those that the law requires me to consider and apply). I have deduced from the evidence, and from my assessment of the parties, the essence of their competing proposals ─ and I decide, having considered all the factors that I believe to be relevant, that the final parenting orders made on 29 January 2010 are the orders most likely to advance the children's best interests (which, after all, comprise the paramount consideration in these proceedings).
I certify that the preceding two hundred and seventy-nine (279) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Suzette De La Motte
Date: 1 March 2010
See, for example, Hungerford & Tank (2007) FamCA 637 and M & S (2006) FamCA 1408 at
para.36
- AGLC
- OWENS & OWENS (No.2) [2010] FMCAfam 2
- Case
- [2010] FMCAfam 2
- Decision Date
CaseChat Overview and Summary
The court had to decide whether there was a reasonable apprehension that the judicial officer might not bring an impartial mind to the resolution of the case, and whether the application for disqualification was made in a timely manner. The court also needed to assess the appropriateness of removing counsel for inappropriate behaviour and determine the best parenting arrangements for the children.
The court found that there was no reasonable apprehension of bias as there was no nexus between the judicial officer's views and the resolution of the case. The application for disqualification was deemed to be late and without warning, and the court had already allowed a deadline to pass in favour of preparing the detailed application. The court also found that counsel had behaved inappropriately and had demonstrated a fundamental misunderstanding of the role of an advocate in court proceedings. The court exercised its power to remove counsel from the case. In terms of parenting orders, the court decided that the wife should have sole parental responsibility for the children's education and religious upbringing, while the parties would otherwise retain equal shared parental responsibility.
The court ordered that the wife have sole parental responsibility for the children's education and religious upbringing, subject to certain conditions, while the parties retain equal shared parental responsibility for all other matters. The court also removed counsel from the case and directed that the case proceed with new counsel.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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