Pander and Popa and Anor
[2013] FCCA 2177
•19 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PANDER & POPA & ANOR | [2013] FCCA 2177 |
| Catchwords: FAMILY LAW – Parenting orders – mother proposes relocation with children – property orders – whether loan by third party – whether debt owed by parties to third party and whether order should be made to repay debt – spousal maintenance. |
| Legislation: Family Law Act 1975, Part VII, ss.4AB, 60B, 60CA, 60CC, 65DA, 79, 72(1), 75(2), 81 Federal Circuit Court Rules 2001, r.15.27 |
| Vigano & Latimer [2010] FMCAfam 660 Goldstraw v Goldstraw [2002] VSC 491 Hohol v Hohol [1981] VR 221 |
| Applicant: | MS PANDER |
| First Respondent: | MR POPA |
| Third Party: | [A] PTY LTD |
| File Number: | MLC 387 of 2013 |
| Judgment of: | Judge Jones |
| Hearing dates: | 14, 15, 16, 17 & 18 October 2013 |
| Date of Last Submission: | 29 November 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 19 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hannan |
| Solicitors for the Applicant: | Ryan Carlisle Thomas |
| Counsel for the First Respondent: | Ms Paull |
| Solicitors for the First Respondent: | Waters & Co |
| Counsel for the Third Party: | Mr Moore |
| Solicitors for the Third Party: | Caleandro Guastalegname and Co |
ORDERS
PARENTING ORDERS
All previous parenting Orders be discharged.
Ms Pander (“the Mother”) and Mr Popa (“the Father”) have equal shared parental responsibility for the children of the marriage:
(i)[X] born [in] 2004;
(ii)[Y] born [in] 2009; and
(iii)[Z] born [in] 2009
(“the children”)
The children live with the Mother.
The Mother be permitted to relocate herself and the children to [F] New South Wales on or after 12 January 2014
Until Order 4 comes into effect, the Father spend time and communicate with the children by agreement or, where there is no agreement, as follows:
(a)From 10.00am 21 December to 6.00pm 22 December;
(b)From 2.00pm Catholic Christmas Day until 2.00pm Catholic Boxing Day;
(c)From 10.00am to 6.00pm on 29 December;
(d)From 10.00am 3 January 2014 to 5.00pm 5 January 2014;
(e)From 10.00am 9 January 2014 to 5.00pm 10 January 2014; and
(f)Thereafter, for each alternate weekend from Friday 10.00am to Monday 10.00am and each week from Wednesday 10.00am to Thursday 5.00pm.
All time spent as set out in paragraph 5 shall be with the Paternal Grandparents in substantial attendance and changeover shall be effected as follows:
(a)The children be delivered by the mother to the front of the Paternal Grandparents home at the commencement of time; and
(b)The Paternal Grandparents deliver the children to the former matrimonial home at the completion of time.
Upon Order 4 coming into effect, the Father spend time and communicate with the children by agreement or, where there is no agreement, as follows:
(a)During the N.S.W. Gazetted school term:
(i)In Victoria from Friday evening on 7 March 2014 to Sunday evening on 9 March 2014 and thereafter, on the fifth weekend after the commencement of the school term, from Friday evening to Sunday evening ; and
(ii)Upon the father providing the mother with at least 2 weeks written notice by SMS text or email, before each proposed weekend, two additional weekends in N.S.W., for time specified in writing by the Father, but no earlier or later than from after school on Friday to 5pm on Sunday.
(b)In each N.S.W. Gazetted school term holiday for one half of all gazetted school holiday periods, being the first half in odd numbered years and in alternate years thereafter and the second half in even numbered years and in alternate years thereafter:
(i)In odd numbered years, time spent shall commence no later than 5 pm on Saturday after the last day of the school term and shall finish no later than 5pm on the day which falls after the end of the first half of the school holiday period; and
(ii)In even numbered years, time spent shall commence no later than 5 pm on the day which falls at the beginning of the second half of the school holidays and shall finish no later than 3pm on the day before the commencement of school term.
(c)Subject to Order 10 below by telephone, Skype and other electronic methods on a liberal basis, with the Mother to facilitate with such communication;
(d)Where time spent by the Father is in Victoria, and where:
(i)The children travel by aeroplane, the Mother and Father do all acts and things necessary to deliver and/or collect the child from the airport at the commencement and conclusion of the time with the father;
(ii)The children are delivered to the Father by the Mother or Maternal Grandparent by car, all changeovers shall take place at the front of the Paternal Grandparents’ home;
(iii)The children are delivered to the Mother by the Father or Paternal Grandparents by car, all changeovers shall take at the front of the Maternal Grandparents home.
(e)Where time spent by the Father is in N.S.W., all changeovers shall take place at the front of the Maternal Grandparent’s home; and
(f)Pending the Father complying with Order 13, time spent with the children in Victoria shall be in the substantial attendance of one or both of the Paternal Grandparents and time spent in N.S.W. shall be in the substantial attendance of a relative of the Father as agreed to by the Mother.
During the N.S.W. Gazetted school term, the father shall be responsible for booking and paying the full ticket cost (whether discounted, or special or otherwise) of three return flights per year to enable time to be spent with him in accordance with Order 7(a)(i) and shall immediately advise the Mother in writing of the particulars of each and every booking.
In each N.S.W. Gazetted school term holiday:
(a)The Mother shall be responsible for the arranging and costs of travel (whether by car or plane) of the children at the commencement of time with the Father;
(b)The Father shall be responsible for the arranging and costs of travel (whether by car or plane) of the children at the end of time with him; and
(c)The Mother and Father shall advise each other in writing of the particulars of each and every travel arrangement at least two weeks prior to the trip they have arranged.
Both parents have liberal Skype, telephone, SMS text message and email communication with the children when they are living with or spending time with the other parent and, in default of agreement as follows:
(a)By Skype three times a week after school, and if not agreed, Monday, Wednesday and Friday between 5.00pm and 6.00pm and Saturday between 10.00am to 10.30pm;
(b)Both parents ensure that the child has access to a or their smart phone during non-school times and between 8.00 and 8.30 am each day for the purpose of telephone communication, SMS text message, email and the like.
Each of the Mother and Father undertake and complete a post separation parenting course and provide a certificate of completion to the other.
Each of the Mother and Father enrol in and complete a Parenting Orders Program to facilitate the implementation of these Orders.
The Father undertake and complete:
(a)a positive parenting course; and
(b)alcohol counselling.
at [omitted] Family Services with the Father to provide the Mother with certificates of completion of a positive parenting course and written statement by the Father’s counsellor or treating practitioner that his alcohol condition is in remission.
The Father shall be restrained from consuming alcohol during any time spent period with the children.
Each of the Mother and Father:
(a)keep each other informed in a timely fashion of any medical emergencies concerning the children and other issues pertaining to the health and welfare of the children;
(b)be restrained from using physical punishment on the children; and
(c)keep the other informed as to their residential address and telephone numbers at all times.
The children shall attend [F] Public School from the commencement of Term 1 in the 2014 school (NSW) year.
That each party is hereby authorised to obtain from the children’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
PROPERTY ORDERS
The application by the third party that the Husband and Wife direct the wife’s solicitors to pay to [A] Pty Ltd, $59,853.18 from moneys held in the solicitors trust account pursuant to orders made 14 October 2013 is dismissed.
The application by the third party that the Husband pay to [A] Pty Ltd $95,860.43 is dismissed.
The declaration sought by the applicant that [A] Pty Ltd holds the property situate at Property M, [M] (“Property M”) on trust for the Husband and Wife is refused.
The application by the Wife for Spousal Maintenance is dismissed.
Within 7 days of this order, the solicitor for the Wife, Ryan Carlyle Thomas pay to the wife $184,266.80 being moneys held in their trust account remaining from the application of the proceeds of the sale of the property Property K, [K] pursuant to Orders made on 14 October 2013.
Within 60 days of this order the Husband pay to the Wife $190,017.37.
That contemporaneously with the payment referred to in paragraph 22 herein:
(a)The Wife do all things and sign any documents as may be required to transfer to the Husband, at the expense of the Husband, all of her right title and interest in the property known as and situate at Property W, [W], more particularly described in Certificate of Title Volume [omitted] (“the former matrimonial home”);
(b)The Husband will indemnify the Wife against all liabilities pursuant to the mortgage with Bank West and, if necessary refinance the mortgage into his sole name; and
(c)The Husband will be responsible for and indemnify the Wife with respect to all rates, taxes and outgoings of or with respect to the former matrimonial home of whatsoever nature and kind.
That contemporaneously with the payment in Order 22 herein, the Wife will do all things necessary to withdraw the Caveats lodged over the following properties at her own expense:
(a)Property W, [W]; and
(b)Property M, [M].
That pending payment in accordance with Order 23 herein:
(a)The Wife have the sole right to occupy the former matrimonial home and during such right of occupation, the Husband continue to pay any instalments pursuant to the mortgage and all rates, taxes and like apportionable outgoings of the real property as they fall due;
(b)The parties hold their respective interests in the former matrimonial home upon trust pursuant to these Orders.
That within 14 days of receiving the payment referred to in Order 23 herein, the Wife will vacate the former matrimonial home and thereafter the Husband will retain the said property for his sole use and benefit.
In the event that the whole of the payment referred to in Order 23 has not been made, then the former matrimonial home shall be sold forthwith altogether out of Court (“the sale”) and upon completion of the sale, the sale proceeds be applied:-
(a)To pay all costs and commissions of the sales;
(b)To discharge the mortgage/mortgages and any other encumbrance affecting the real property;
(c)Payment then outstanding to the Wife with interest calculated pursuant to the Family Court Rules; and
(d)The balance to the Husband.
The Wife will retain the BMW motor vehicle, for her sole use and benefit absolutely and the Husband will forthwith do all things and sign all documents to transfer the registration of the vehicle in to her sole name.
The Husband will retain for his sole use and benefit the Toyota Hi-ace motor vehicle.
The Husband will be solely responsible and indemnify the Wife with respect to all liabilities including but not limited to tax liabilities, with the business [R] Pty Ltd and any and all other business dealings of the Husband.
That unless otherwise specified in these Orders and except for the purpose of enforcing the payment of any money due under these or any subsequent Orders:-
(a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) owned by or in the possession of such party as at this date. The furniture, personal possessions and like chattels in the matrimonial home are to be divided between the parties as agreed;
(b)Save as provided for in these Orders, each party hereby forgoes any claim they may have to any superannuation, long service leave or other employment entitlements or benefits belonging to or earned by the other;
(c)Monies standing to the credit of the parties in any joint bank account are to be divided equally between the parties;
(d)All insurance policies to become the sole property of the owner named therein;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Pander & Popa is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 387 of 2013
| MS PANDER |
Applicant
And
| MR POPA |
First Respondent
| [A] PTY LTD |
Third Party
REASONS FOR JUDGMENT
Introduction
This decision concerns competing proposals for parenting arrangements, property orders and an application by Ms Pander (“the applicant”) for spousal maintenance.
The parenting arrangements are in relation to the children of the applicant and Mr Popa (“the respondent”):
·[X] born [in] 2004;
·[Y] born [in] 2009; and
·[Z] born [in] 2009. (“the children”)
The applicant’s parenting proposal involves relocation of the applicant and the children to [F], New South Wales.
In addition, there is a claim by [A] Pty Ltd (“third party”) that debts and a loan, should be paid by the parties.
Background
The applicant was born [in] 1984, is of [omitted] decent and, until she commenced cohabitation with the respondent, lived in New South Wales with her parents in the [omitted] region. The applicant is a homemaker and has been so since the commencement of the relationship when she was 18 years old. Following the birth of the children, she has also been the primary care giver. The respondent was born [in] 1979 and is of [omitted] decent. The respondent was the income earner during the relationship, is a [occupation omitted] and operates his business, Mr Popa trading as [R] (“[R]”). Both parties, save when they resided together, have only lived with their parents.
The applicant and respondent met in or around June 2003 in New South Wales and on 18 June 2003 commenced cohabitation residing in Property M, [M], Victoria (“Property M”). The parties married on [omitted] 2004 and in 2006 moved into Property W, [W] (“the former matrimonial home”). The parties separated on 14 October 2012, the applicant remained in the former matrimonial home with the children and the Respondent moved in with his parents.
An Interim Intervention Order against the respondent was made, on the application of the police, on 15 October 2012 and Final Intervention Order, naming the applicant as the affected family member, was made on 21 January 2013 expiring on 21 January 2014. The Intervention Orders were in relation to events on 14 October 2012. The respondent was charged, found guilty without conviction of Unlawful Assault in relation to these events at the [S] Magistrate’s Court on 14 October 2013.
Pursuant to Orders made on 14 March 2013, the respondent had time with the children, supervised by his parents, for a period of four hours each Sunday. Pursuant to Orders made on 11 April 2013, the respondent has had time with the children, with the paternal grandparents being in substantial attendance, each Sunday from
10.00 am to 3.00 pm.
Material Relied On
I have read and considered the following material relied on by the applicant and respondent and third party.
For the applicant:
·the application of the applicant filed 22 January 2013;
·affidavit of the applicant filed 22 January 2013;
·applicant’s financial statement filed 22 January 2013;
·response to application in a case filed 8 October 2013;
·affidavit of applicant filed 8 October 2013;
·affidavit of Mr T filed 8 October 2013;
·affidavit of Ms T filed 8 October 2013;
·amended application of the wife filed 8 October 2013; and
·outline of case filed 14 October 2013.
The applicant, Ms T and Mr T gave oral evidence and were cross examined.
The applicant also tendered the following exhibits:
·student Reports – June 2013 – marked as mother’s exhibit 1;
·chattels sought by the applicant – marked as mother’s exhibit 2;
·Quarterly Business Activity for Mr Popa t/a [R] for year ending 30 June 2012 – marked as mother’s exhibit 3;
·[C] statement dated 25 January 2013, [T] Statement for the period of 1 October 2002 to 30 September 2003 and statement from [L] dated 5 February 2013 – marked as mother’s exhibit 4; and
·Respondent’s Westpac Bank Statements– marked as mother’s exhibit 5.
For the respondent:
·response to initiating application filed 6 March 2013;
·affidavit of respondent filed 6 March 2013;
·financial statement filed 6 March 2013;
·financial statement filed 19 April 2013;
·amended response to initiating application filed 10 October 2013;
·affidavit of respondent filed 10 October 2013; and
·outline of case filed on 14 October 2013.
The respondent gave oral evidence and was cross examined.
The respondent tendered the following Court exhibits:
·chattels sought by the respondent – marked as father’s exhibit 1; and
·undertaking with conditions, [S] Magistrates’ Court dated 1 October 2013 – marked as father’s exhibit 2.
For the third party:
·application in a case filed 14 March 2013;
·response of third party filed 9 May 2013;
·application in a case filed 3 September 2013; and
·outline of case filed 14 October 2013.
Following evidence given by Mr S, director of the third party, that he could not read English, three affidavits filed by him on 14 March 2013, 9 May 2013 and 3 September 2013, which did not contain in or below the jurat, the matters specified in Rule 15.27 of the Federal Circuit Court Rules 2001 (“the Rules”), were struck out by the Court.
The third party tendered the following Court exhibits:
·land transfer search and transfer of land in relation to certificate of title volume [omitted] – marked as third party exhibit 1;
·tax return for year ending 2012 of the Popa Family Trust – marked as third party exhibit 2;
·correspondence from [G] licensed real estate agents to Mr S dated 31 July 2006 – marked as third party exhibit 3;
·Contract Agreement by [A] Pty Ltd – marked as third party exhibit 4;
·bundle of documents being statements from the cheque account of [A] Pty Ltd – marked as third party exhibit 5; and
·Ledger in relation to Property M – marked as third party exhibit 6.
Mr S gave oral evidence and was cross examined.
In addition there was expert evidence:
·family report of Mr H dated 30 August 2013 and marked as Court exhibit 1; and
·report of psychiatric assessment prepared by Dr E and filed on 20 August 2013.
Dr E and Mr H were cross examined.
Creditability of witnesses
To avoid unnecessary repetition I propose to address issues arising from the evidence separately under the parenting, property and spousal maintenance claims when I consider the various factors requiring determination under the legislative framework. It is appropriate, however, to deal with the credibility of the witnesses as, as will be apparent, the Court has formed an adverse view of the credibility of the respondent and the witness for and director of the third party, Mr S.
The applicant responded to questions in a straight forward manner without hesitation or prevarication, conceding matters adverse to her interests. In relation to the applicant’s allegation of family violence by the respondent, she provided a detailed and credible account of the incidents, without the benefit of her affidavits being before her, detailing the incidents consistent with the description deposed in her affidavits. She was clearly distressed when recounting these incidents and the Court found her evidence credible and believable.
The respondent’s evidence was, in relation to financial matters, confusing, inconsistent and vague. He frequently responded, “I don’t know” or “I can’t recall”. By way of example, his inability to explain expense deductions listed in his business’ Quarterly Business Activity statement for the year ending 2012, including a deduction of $394,847.00 and described as costs of sales was unconvincing. He stated that the business income for the year ending 2012 of $517,219.00 reflected a one-off building of a “spec” home. Later he said that the business income for the period May 2012 to March 2013 of $197,661.47 also came from a one-off spec job. Further, he was unable to explain the failure to declare rental payments for Property M in his business’ Quarterly Business Activity statement for the year ended 2012, notwithstanding those payments were paid into the business’ Westpac account for many years.
In relation to parenting matters, the respondent denied that he engaged in family violence in his affidavits and oral evidence. Extraordinarily, the respondent denied that he had pleaded or been charged with unlawful assault against the applicant until shown correspondence from Victoria Police, dated 9 August 2013 (Annexure “VP 10” to applicant’s affidavit filed 8 October 2013). He first stated it did not happen, “not to my knowledge”, then stated “I can’t recall”. The reason he gave for not recalling was that there were other charges at the time. When asked what these other charges were he referred to the Intervention Order.[1] When Counsel for the applicant put the proposition to the respondent that deep down he believed he had done nothing wrong, the respondent agreed.[2] In respect to the unlawful assault, the respondent stated he pleaded to assault, “That’s all it was”, “There was none of this sexual fantasies…”.[3]
[1] Transcript of Proceedings, 16 October 2013, p.177 to 179
[2] Transcript of Proceedings, 16 October 2013, line 35, p.180
[3] Transcript of Proceedings, 16 October 2013, line 35 to 40, p.190
The respondent continued to deny family violence even when presented with the record of views of his children contained in the family report of Mr H.
Overall, I find the respondent was not a witness of credit and, to the extent that there is an inconsistency between the evidence of the applicant and the respondent, I prefer the evidence of the applicant.
Mrs T and Mr T (the applicant’s parents) gave their evidence in a straight forward manner. Both witnesses recited an incident of alleged family violence by the respondent against the applicant in the presence of the children on 3 March 2012, without reference to their affidavits, in a consistent way. Both were visibly distressed by recalling this incident and I am satisfied that their evidence on this is credible and believable.
Mr S, director of the third party and father of the respondent, commenced his oral evidence swearing to the truth and accuracy of three affidavits filed by him in these proceedings. In evidence in chief he also identified certain documents that he sought to rely on.[4] He was defensive in responding to cross examination in relation to the financial arrangements between the third party and his son. In the context of cross examination regarding the 2012 tax return of the Family trust (of which the third party is trustee) (third party exhibit 2), an extraordinary piece of evidence was given by Mr S, the flavour of which can only be truly appreciated from the following extract from transcript:
[4] Transcript of Proceedings, 18 October 2013, p.308, p.309 and p.310
“MR HANNAN: In this court you are, as I understand it, you are, through your lawyers and the documents that you have sworn, you are saying to this court that [A] Proprietary Limited is owed $100,000 by way of rent reimbursement. Is that, in fact, wrong?‑‑‑Is not wrong. Is true.
It’s true?‑‑‑Not wrong.
Well, have a look at the balance sheet. Can you show me where that money that you claim is owed?‑‑‑I can’t. I can’t tell you that because that’s my accountants. I can’t understand. I can’t read it here.
It’s not there, is it, in the 2012, 30 June 2012, trust return? There’s no money whatsoever claimed as a debt – a loan – moneys owed to the company by way of rent. It’s not listed as an asset, is it?‑‑‑I can’t answer that.
I beg your pardon?‑‑‑I can’t answer that.
Well, have a look at the document. You must have looked at the document when you signed off on it?‑‑‑I can’t look at it without the glasses anyway.
HER HONOUR: Where are your glasses, Mr S? Where are your glasses?‑‑‑I haven’t gotten any. ... gotten any glasses. I got one pair just broken last couple of days. I can’t get them any – three/four days ago was broken in my pocket.
MR HANNAN: What level of reading glasses, do you use? Is it prescription? I mean, I have a spare set here. Would that – it’s number one?‑‑‑I can’t read. Can’t read English what it say here anyway.
You can’t read English?‑‑‑Of course, I can’t. I can’t read the English.
You can’t read English? Your Honour, I ask – I seek a ruling that all the affidavits sworn by this witness be struck out.”[5]
[5] Transcript of Proceedings, 18 October 2013, line 25, p.318 to line 5 p.319
When then directly asked by the Court whether he could read English Mr S responded, “No, I can’t read English.”[6]
[6] Transcript of Proceedings, 18 October 2013, line 20, p.319
Sometime later in his evidence, however, when dealing with an arrangement whereby the respondent was permitted by Mr S and his wife to utilise their personal credit cards, generally for the purchase of supplies for the respondent’s business, to be paid back at the end of the month, Mr S gave evidence that he and his wife perused the credit card statements. His evidence was that he could read a certain amount of English:
“Now, when you talked about the credit card statement, how you did the MasterCard with you and your wife ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ going through it?‑‑‑Yes.
You’ve previously said you can’t read English. Is that what you told her Honour before lunch, wasn’t it?‑‑‑Yes, I can’t read very well. I can’t understand ..... but I can’t read – was reading right through, you know. I can read a bit but not much. I have never been to school for that anyway.
So when you read the credit card statement?‑‑‑Who understand that anyway?
Do you read well enough to know this is Coles or ‑ ‑ ‑?‑‑‑The credit card?
‑ ‑ ‑ this is the [omitted] supply or?‑‑‑Yes. Yes.”[7]
[7] Transcript of Proceedings, 18 October 2013, line 45,p.342 and line 5 & 10, p.343
Overall, I find Mr S was not a reliable witness. I am not satisfied that he was unable to respond to questions regarding the 2012 tax return of the Family trust, which was itself simply headings and numbers, not text in written English. I have formed the view that Mr S resorted to his claimed inability to read English to avoid questions which may not have assisted his case. I agree with Counsel for the applicant that the circumstances limited the ability of the applicant’s Counsel to cross examine Mr S on documentary material and was prejudicial.
Parenting Orders
Competing proposals
The parenting orders sought by the applicant are:
“1. All previous parenting Orders be discharged.
2. The children of the marriage:
(i) [X] born [in] 2004
(ii) [Y] born [in] 2009
(iii) [Z] born [in] 2009
(“the children”) live with the Wife.
3.Each of the Husband and Wife undertake and complete a post separation parenting course and provide a certificate of completion to the other.
4.Each of the Husband and Wife enrol in a Parenting Orders Program to facilitate the implementation of these Orders.
5.The Husband undertake and complete:
(i) a positive parenting course; and
(ii) alcohol counselling
at [omitted] Family Services with the Husband to provide the Wife with certificates of completion for both programs.
6.Pending the Husband complying with Order 5 hereof, the Wife have sole parental responsibility for the children.
7.Upon the Husband complying with Order 5 hereof, the Husband and Wife have equal shared parental responsibly for the children.
8.The Wife be permitted to relocate herself and the children to [F] New South Wales.
9.Pending the Husband complying with Order 5 hereof, the Husband spend time with the children as follows:
(a)during N.S.W. Gazetted school terms each third weekend in [F] New South Wales from Friday evening (or from Saturday morning if Friday flight unavailable) to Sunday evening.
(b)in each N.S.W. Gazetted school term holiday for a block period of 4 consecutive nights in [F] NSW as agreed between the parties and the default of agreement the first 4 night block of the holidays commencing on the evening of the last day of school and concluding at 2pm on the 5th day.
(c)in each N.S.W. Gazetted long summer holidays in [F] N.S.W. for 3 separate block periods of 5 consecutive nights as agreed between the parties and in default of agreement from 27 December to 1 January and 6 January to 11 January and 16 January to 21 January (12 noon changeover times).
(d)all changeover shall take place at the front of the Wife’s parents home.
(e)all time set out in 9 (a) to (e) hereof shall be with the Paternal Grandparents or Mr P and Ms P in substantial attendance and shall take place in [F] N.S.W.
(f)the Husband shall pay all of the travel costs for all time spent in 9 (a) to (e) hereof including but not limited to costs of airfares.
10.Upon the Husband complying with Order 5 hereof, the Husband spend unsupervised time with the children as follows:
(a)during N.S.W. Gazetted school terms each third weekend from Friday evening to Sunday evening (or from Saturday morning if Friday flight unavailable).
(b)for one half of each N.S.W. Gazetted school term holiday as agreed between the parties and in default of agreement the first half commencing on the evening of the last day of school and concluding at 2pm on the middle day of the holidays.
(c)for two weeks in each N.S.W. Gazetted long summer holidays as agreed between the parties and in default of agreement for a two weeks concluding at 3pm on the day prior to school recommencing.
(d)all changeover shall take place at the front of the Wife’s
myparents home.(e)all time spent in Order 10 (a) to (c) shall take place in [F] N.S.W. until 1 March 2016 (when [Y] and [Z] attain 7 years of age).
(f)all time spent in Order 10 (a) to (c) shall take place in Victoria commencing 1 March 2016 with the children to travel by place as “unaccompanied minors”.
(g)the Husband shall pay all of the travel costs for himself and the children for all time spent in Order 10 (a) to (c) hereof including but not limited to costs of airfares and the Husband shall book, pay for and advise the Wife of all flight arrangements and changeover times for the children.
11.The Husband shall have Skype and telephone communications with the children as agreed between the parties.
12.The Husband shall be restrained from consuming alcohol during any time spent period with the children.
13. Each of the Husband and Wife:
(a)keep each other informed in a timely fashion of any medical emergencies concerning the children and other issues pertaining to the health and welfare of the children.
(b)be restrained from using physical punishment on the children.
(c)keep the other informed as to their residential address and telephone numbers at all times.
14.The children shall attend [F] Public School from the commencement of Term 1 in the 2014 school (NSW) year.
The parenting orders sought by the respondent are:
“1.That the parties equally share parental responsibility in relation to the children.
2.That the children live with the Mother and spend time with the Father at all times as may be agreed between the parties, but failing agreement:
a. Each alternate weekend from 5.00 pm Friday until 8.00 pm on Sunday; and
b. From 5.00 pm to 8.00 pm each Tuesday and Thursday evenings.
3.That the children spend time with the Father for one half of all gazetted school holiday periods, being the first half in odd numbered years and in alternate years thereafter and the second half in even numbered years and in alternate years thereafter, and that the school holiday period commences at the conclusion of school on the last day of the term.
4.That unless otherwise agreed, and for the purposes of changeover, the Father shall collect the children from the Mother’s place of residence at the commencement of the time spent with him, and that the Mother will then be required to collect the children from the Father’s place of residence at the conclusion of the time spent.
5. That in all odd numbered years:
a. That the children spend time with the Father from 2.00 pm on Catholic Christmas Eve until 2.00 pm Catholic Christmas Day;
b. That the children spend time with the Mother from 2.00 pm Catholic Christmas Day until 2.00 pm Catholic Boxing Day;
c. That the children spend time with the Father from 2.00 pm on Orthodox Christmas Eve until 2.00 pm Orthodox Christmas Day;
d. That the children spend time with the Mother from 2.00 pm Orthodox Christmas Day until 2.00 pm Orthodox Boxing Day;
e. That the children spend time with the Father from 2.00 pm on Catholic Good Friday until 2.00 pm Catholic Easter Saturday;
f. That the children spend time with the Mother from 2.00 pm Catholic Easter Saturday until 2.00 pm Catholic Easter Sunday;
g. That the children spend time with the Father from 2.00 pm on Orthodox Good Friday until 2.00 pm Orthodox Easter Saturday;
h. That the children spend time with the Mother from 2.00 pm Orthodox Easter Saturday until 2.00 pm Orthodox Easter Sunday;
6. That in all even numbered years:
a. That the children spend time with the Mother from 2.00 pm on Catholic Christmas Eve until 2.00 pm Catholic Christmas Day;
b. That the children spend time with the Father from 2.00 pm Catholic Christmas Day until 2.00 pm Catholic Boxing Day;
c. That the children spend time with the Mother from 2.00 pm on Orthodox Christmas Eve until 2.00 pm Orthodox Christmas Day;
d. That the children spend time with the Father from 2.00 pm Orthodox Christmas Day until 2.00 pm Orthodox Boxing Day;
e. That the children spend time with the Mother from 2.00 pm on Catholic Good Friday until 2.00 pm Catholic Easter Saturday;
f. That the children spend time with the Father from 2.00 pm Catholic Easter Saturday until 2.00 pm Catholic Easter Sunday;
g. That the children spend time with the Mother from 2.00 pm on Orthodox Good Friday until 2.00 pm Orthodox Easter Saturday;
h. That the children spend time with the Father from 2.00 pm Orthodox Easter Saturday until 2.00 pm Orthodox Easter Sunday;
7.That the children spend time with the Father from 10.00 am to 5.00 pm on Father’s Day and the Father’s birthday, and that should the children be at school on the Father’s birthday that the children spend time with the Father from 4.00 pm to 8.00 pm, and that any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
8.That the children spend time with the Mother from 9.00 am to 5.00 pm on Mother’s Day and the Mother’s birthday and that any provision under this order that is inconsistent with this paragraph be suspended.
9.That the children spend equal time with the parties on the children’s birthdays, at times to be agreed between the parties, and failing agreement, the children shall spend time with the Father from 4.00 pm until 8.00 pm on those birthdays and the Mother at all other times on those days; and that any provision of time under this order that is inconsistent with this paragraph be suspended.
10.That each party is hereby authorised to obtain from the children’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
11.That each party communicate with the children by telephone at all reasonable times, and that neither party shall unreasonably refuse or prohibit the communication between the parent and children.
12.That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
13.That the parties inform each other in respect of any medical conditions or emergencies, in relation to the children, and that notification be given to the other party within 24 hours.
14.That the parties, his/her servants and/or agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to, with or in the presence of or hearing of the said children and from permitting any other person to do so.”
Applicant’s evidence
The applicant’s evidence is that during her marriage with the respondent she and the children endured family violence perpetuated by the respondent. She says that he abused alcohol, drinking beer and grappa daily. His alcohol consumption resulted in aggressive and threatening behaviour to her and the children. He denigrated her, including in front of the children, calling her “fat shit”, “big mamma”, “bitch” and “slut.” She was intimidated and controlled by the respondent. Because of his behaviour and his refusal to attend family functions, he prevented her from having contact with her family and friends. He controlled her access to money (she was given cash by the respondent, not having access to a bank account or credit cards) and he prevented her from obtaining paid employment.
The applicant deposes to the following specific episodes of family violence:
“6.On 14 October 2012 at approximately 9.30pm the Husband went to bed in a highly intoxicated state and I remained in the lounge room. The Husband (who has been ignoring me all evening) required that I come into the bedroom to talk to him. I refused and he continued to demand that I come into the bedroom. I eventually agreed. The Husband demanded sex from me and despite my protests, attempted to engage in activity to which I was not consenting.
7.I left the bedroom and the Husband followed me into the living room. The Husband then attempted to restrain me and take my mobile phone away from me that was in my hand at the time. The Husband started yelling at me and grabbing me and I fell to the floor. The Husband then climbed on top of me and continued to restrain me and he struck me with his elbow on the side of my chin and my forehead. I was short of breath and despite my attempts to get the Husband off me, I was unable to do so. The children heard me crying for help and [Z] came out of his room. [Z] was crying and pleading with the Husband to ‘get off mummy’. The Husband released me and took my mobile phone and smashed it on the wooden railing.
8.I ran into [X] and [Y]’s room and the children both woke up. We were in the bedroom when the Husband entered the room, carrying [Z]. The Husband pushed me out of the room and I attempted to retrieve my mobile phone from the lounge room. The Husband continued to hold [Z] and verbally abuse me. I approached [Z] but the Husband continued to hold [Z] and verbally abuse me. I was eventually able to call the police and they attended at the property. As the police drove up our driveway, I went to the front door to meet them and the Husband approached me handed me a note stating that I would not seek any of his assets. Annexed hereto and marked “VP1” is a true copy of that note. I refused sign it and he demanded that I return inside the house and he kicked me in the shin and spat in my face. I was holding [Y] at the time.”
“15.The Husband was also physically abusive towards the children. The Husband would hit the children with a stick, the most recent incident occurred in or about September 2012. The Husband was outside and drinking and the children and I were inside watching television. The Husband suddenly and without provocation, came into the lounge with a long stick from one of the trees outside. The Husband then hit the children repeatedly with the stick (which acted like a whip). All three children were crying and cowering from the Husband. [X] was calling for me and saying she was scared of Daddy. He followed them continuing to hit them, I was screaming at him to stop because he was hurting them. I called my parents for help. Eventually the Husband stopped and returned outside and continued drinking. I had to stay and sleep with [Z] that night because he was upset and I was frightened to share a bed with the Husband.”[8]
[8] Applicant’s affidavit filed 22 January 2013
The maternal grandparents, Mr T and Mrs T depose to witnessing an episode of family violence on 3 March 2012 and, when cross examined on this episode, confirmed their evidence and did so, clearly distressed by the events of that day.[9] The applicant describes the episode as follows:
“16.On or about [date omitted] 2012 at approximately 9.30pm the Husband also threatened, in the presence of me and my parents, that he would kill the children. My parents were staying with us because it was the twins’ birthday. The Husband (who was intoxicated), me and my parents were sitting in the sun room. The Husband started talking about me. He was telling my parents I was a ‘slut’. He kept saying to my Mother that she knew and she was keeping it secret. My parents tried to calm him down. He was saying in [language omitted], that I could go to hell and ‘let God take the kids’. This phrase in [language omitted] means that the ‘children should die’. The Husband telephoned the priest seeking a reading because of my alleged adultery. I became extremely emotional but my Father managed to calm the Husband down. I hold genuine concerns about the welfare of the children when they are in the presence of the Husband.”[10]
[9] Transcript of Proceedings, 15 October 2013, line 45, p.104 line 15 to line 20, p.111
[10] Applicant’s affidavit filed 22 January 2013
When taken to the episode of family violence on 14 October 2012 (this being the date of separation), in cross-examination, the applicant related the events consistently with those deposed in her affidavit.[11]
[11] Transcript of Proceedings 15 October 2013, line 20, p.66 to line 40, p.67
An Interim Intervention Order was made, on the application of the police, on 15 October 2012 and Final Intervention Order, naming the applicant as the affected family member was made on 21 January 2013 expiring on 21 January 2014. The respondent was charged, found guilty without conviction of Unlawful Assault in relation to these events at the [S] Magistrate’s Court on 14 October 2013.[12]
[12] Affidavit of applicant filed 8 October 2013, Annexure “VP – 10”
The applicant says that she was the primary care giver for the children, tending to their day to day needs with little involvement from the respondent who often worked long hours.
The applicant’s evidence is that, with no family support, she felt isolated living in [W]. Her cousin, [name omitted], who lives in Melbourne, was able to provide limited assistance in caring for the children when she had appointments. She described the difficulty of managing alone in September 2013 when her eldest daughter, [X] woke her up at 2.00 am with a fever. She had to take all three children with her to the doctors and then hospital by herself. Her parents have been travelling regularly to Melbourne since separation to assist her but this is not sustainable in the long run.
The applicant’s reasons for relocation are the absence of family to support her in caring for the children. There is no dispute between the parties that she is and will remain the children’s primary care giver. She does not want to remain in the former matrimonial home, she says it is run down and unsuitable for the children and isolated. She intends to live with her parents (if she is allowed to relocate) until she can establish her own accommodation. The children will benefit from the financial and emotional security from living with her parents. She hopes to purchase property once the property proceedings are finalised. Her employment opportunities, given she has not worked since she commenced her relationship with the respondent, would be better in [F]. Before she moved to Melbourne she worked in retail and hospitality for a limited period. She deposes that she formerly worked for a friend in hospitality and that he has indicated that, were she to return to [F], he would find her a position. Her parents would assist her with necessary child care. She believes her employment opportunities in Melbourne are extremely limited, she has limited skills and little employment experience. As the twins are young, she would need assistance with childcare and there is no family in Melbourne who could assist her with this. It is likely that [X] would have to change schools next year in any event. She has identified a school, [F] Public School, within walking distance from her parents place and annexured details of the school to her affidavit.
The applicant deposes to having a large family and friendship support base in [F], including many with children, many of whom who are the same or similar ages of the children and who attend [F] Public School.
The applicant gave evidence that the person she proposed in her parenting order to supervise the respondent’s contact with the children in [F] was Mr Popa’s cousin whom the respondent often visited when he was in New South Wales and with whom he had kept in contact. They live around a 20 minute drive from her parent’s house.
In cross examination she stated:
· when she moved to Victoria with the respondent he told her she was not allowed to work. She had applied to work in the city with Telstra but the respondent stopped her;
· she agreed that the relationship between her and the respondent was a traditional [omitted] marriage, that they had their ups and downs and that there were verbal arguments in relation to financial matters in 2011;
· Ms C lived around 30 minutes away from the former matrimonial home and she relied on her on occasions to assist with the children. There were other relatives of her parents who resided in Melbourne. She agreed that she had contact with her family in Melbourne during occasions such as christenings and weddings;
· she denied that she banged cupboards and denigrated the respondent by calling him worthless. She also denied that she kept a stick and hit the children with it;
· the respondent was controlling during the course of their relationship including with finances. When she spent money he gave her he would require her to produce a receipt;
· she was subject to abuse, violence and alcohol abuse;
· she believed that she would be able to work full time in [F], because of the assistance available from the maternal grandparents, whereas, if she remained “here” she could only work between the hours 9.00 am and 3.00 pm due to childcare needs;
· she agreed that the respondent’s relationship with the children would change if she relocated. She also agreed that the children have a good relationship with the paternal grandparents. Further, she agreed that relocation would place a financial burden on both her and the respondent;
· she stated she would be prepared to allow further time for the respondent to make telephone calls however, she said he had not used his existing time and this had disappointed the children; and
· she agreed that her cousin Ms C had helped her a few times with the children and that her Uncle [omitted] had helped a few times but that the other members of her family in Melbourne hadn’t looked after the children at all. She stated that there were other cousins of her former father in law in the [omitted] Region who were available to the respondent for the purpose of any time spent by him with the children if she relocated.
The applicant stated, in evidence in reply, that were the Court to order (as part of an order that she be permitted to relocate) that the twins fly as unaccompanied minors before the age of seven years, she would not comply with that order.
Respondent’s evidence
The respondent denies he has engaged in any family violence. He conceded, in cross examination, that he was found guilty of Unlawful assault in relation to a complaint made by the applicant about his conduct on 14 October 2012. He deposes that it was the applicant who engaged in violent and abusive behaviour towards him. She would slam doors and kitchen cabinets and this behaviour continued throughout the marriage. He deposes that the applicant used physical discipline against the children and denigrated him in the presence of the children, including telling them that he did not love them.
The respondent is critical of the applicant’s parenting capacity. He believes the applicant is seeking relocation out of spite. He is critical of the applicant for having not sought employment in Melbourne despite her capability to achieve gainful employment.
He maintains that he worked hard supporting the family and would spend as much time as he could after work assisting the applicant in the day to day care of the children. He believes that if the applicant was permitted to relocate with the children, there would be little opportunity for him to spend quality time with his children and this would have a detrimental effect on his relationship with the children. He points to the confusion expressed by [X] during the interview with the family consultant upon being advised that the applicant’s proposal involved the respondent spending time with the children four times a year. He deposes that job opportunities are better for the applicant in Melbourne than in [F].
The respondent readily agreed, in cross examination, that the applicant, during the course of the relationship and marriage, was a stay at home mum performing house duties and caring for the children and that both parties adopted traditional roles. When questioned regarding the value of the contributions of both parties, the respondent prevaricated, seemingly unable to answer and after considering the question for some time initially responded that he did not believe the contributions were equal. When questioned by the Court whether he saw the contributions as being of equal value, he responded “I do”. However, having responded in this fashion, he later said he did not accept that a home maker looking after children is work.
The respondent denied that he engaged in the episodes of family violence on 3 March 2012 and 14 October 2012 as described in the applicant’s affidavit. He stated that he never hurt his kids and that everyone has their ups and downs in a relationship and that he has always had a good relationship with his children.
The respondent stated, twice, that he saw no benefit from the children relocating with the applicant in [F], New South Wales. He agreed that he told Dr E that the applicant saw her family in Melbourne sporadically at family events. He accepted that the applicant had a large support network in [F], that the children would know a lot of kids there, that the school the applicant proposed the children should attend was close by in the same street as the applicant’s parents’ house, that the maternal grandparents would provide assistance by way of walking the children to school and that this would assist the applicant looking for paid employment. He stated that he had no objection to the school proposed by the applicant (were she allowed to relocate to [F]). The respondent accepted that the applicant feels isolated in [W] and wants the support of her parents.
As to the applicant’s evidence set out at paragraph at [39] to [44] of her affidavit filed 8 October 2013 in which she deposes to her experience in dealing with the onset of fever in her eldest child, he agreed that this experience was very difficult for the applicant and that, in the circumstances, she couldn’t call on her parents for assistance. He agreed that it was normally Ms C who assisted with the children.
The respondent agreed with the applicant’s evidence as to the time and cost of travel by car from [W] to [F], stating he had travelled to [F] many times. As to the applicant’s evidence in her affidavit filed 8 October 2013 regarding the costs of return flights from Tullamarine to Sydney airport, the respondent did not dispute the accuracy of the information. The respondent agreed that he considered the age of five too young to travel as unaccompanied minors and that seven is a more appropriate age. As to the proposal by the applicant in her proposed parenting orders that his contact with the children (if relocation were granted) be in [F] with him residing with his relatives, he stated that the relatives were distant cousins and that he would, “rather stay on my own”.
The respondent agreed that his skills were transferrable but stated he would not move to [F], New South Wales.
The respondent was taken to the report of the family consultant, Mr H and in particular the record of the views expressed by [X]. The respondent disagreed with the views recorded of his child. He denied he had a drinking problem, that the children were unhappy and that he was rough with the children. He stated that last week he had enquired about alcohol counselling. He stated that he did not accept the record of Mr A, who prepared an s.11F memorandum on 21 March 2013 of the views of [X]. He stated that he was social drinker not an alcoholic; “I’m just a social drinker, I will leave it at that.”[13] He stated that he will attend alcohol counselling if need be.
[13] Transcript of Proceedings, 16 October 2013, line 10, p.186
With respect to the family consultant’s alternate proposal (if relocation were granted) that the children spend time with him in Victoria and travel by airplane every 3 weekends during term time and during holidays, the respondent said “it would be a roller-coaster ride for the children on the plane” and that he does not have the capacity to pay for the flights. When asked by the Court what his response was, assuming the Court decided to order relocation, to spending time over weekends twice a school term as well as half holidays, the respondent stated this was not enough time. When asked by the Court about his response to the suggestion by the family consultants that a fund, utilising monies from the property settlement, be established to assist the parties meet the costs of airline travel, the respondent stated he would support this.
Psychiatric assessment by Dr E
Pursuant to orders dated 12 April 2013 Dr E prepared psychiatric assessments of the applicant and the respondent.
With respect to the applicant’s wish to relocate, Dr E recorded:
“Ms Pander’s account was that she wished to relocate to [omitted], NSW to be with her parents and brother who could help her find a job and manage the children. She grew up there and this is her home. She has lived in Melbourne for twelve years nonetheless. I closely questioned her about the supports and life that she had developed here. Somewhat surprisingly she indicated that she has no friends here and that her relatives are elderly. She does not get on well with and does not feel supported by Mr Popa’s family.
The essential thrust of Ms Pander’s argument was that she was treated like a slave, she didn’t go anywhere, and if she did go to the shops, she had to produce receipts. She and her husband were heavily under the control of his parents and he had not separated from them in any real way. In turn when under their control, Mr Popa was very controlling towards her also. She told me that she was under the thumb. She thinks that she stayed because at one point she must have loved him. They met when she was 18. She was naive and inexperienced in regard to relationships.”
Dr E noted that the applicant said that her mother in law would help out at times with the babysitting and the relationship between the children and the paternal grandparents was good and supportive one. Dr E recorded his view that, “it was somewhat surprising that she (the applicant) had not made in friends at all here, but that was her account. This may be a matter which could be tested if necessary.” With respect to the applicant’s life prior to relocating to Victoria in 2003, Dr E stated, “It was readily evident that much of the support and relationships before occurred in the context of an extended [omitted] family experience.”
With respect to the respondent and his relationship with the applicant and the separation, Dr E observed:
“Mr Popa (sic) gave every indication that there were matters he couldn’t explain, couldn’t express, or simply didn’t want to talk about.”
With respect to the mental state examination, Dr E reports:
“Talk – His account lacked spontaneity and detail. There was little in the way of an account by him and the manner in which he told his story lacked real conviction. He relied on simplistic notions, resorting to generalised statements, all the time giving every indication that in fact there were major concerns that he had about his wife and her family due to what he regarded as their plotting against him. There were conspiratorial notions and his account had a distinct paranoid flavour consistent with morbid jealousy in the context of more than likely heavy alcohol intake in a man of simple dependent nature who appears to have relied heavily on his parents to manage his business and relationship with his wife. He gave every indication that his idea of marriage was one which should have lived in the context of traditional [omitted] way. His lack of connection with the children and his infrequent references to them, suggest that his relationship with them may not be strong.”
The diagnosis by Dr E of the parties were:
·applicant – Adjustment Disorder with Anxious Mood in remission; and
·respondent – likely Alcohol Abuse, Morbid Jealousy Syndrome
Dr E’s opinion is as follows:
“OPINION
1.The relationship between Mr Popa and Ms Pander (sic) began in a rush. She gave every indication that she jumped at the change to marry him when he showed an interest in her.
2.There was every indication that the marriage soon ran into difficulties from as early on as the wedding. Each of the parties appears strongly reliant on their parents. Each complains about the other’s families being intrusive and controlling. Ms Pander (sic) had nothing good to say about her husband. In his confused and confusing way, Mr Popa (sic) indicated that on the one hand, everything was fine and that his wife had everything that she needed, at the same time, bitterly complained about her and her family conspiring against him, and gave every indication his wife had always intended to return to her mother who, being a compensation recipient, was well experienced in regard to matters involving the Courts.
3.Ms Pander (sic) was a large woman who was difficult to establish much in the way of rapport with. Her account of Mr Popa’s (sic) assault was believable and detailed. She clearly felt trapped in the marriage, was isolated, and there was little sense of any connection with her husband who she experienced as heavily reliant upon his father and controlled by both his parents. The only time there was any real sense of a marriage and togetherness was when they lived on the farm for a period, but this situation deteriorated further when Mr Popa (sic) once again linked up with his father in business.
4.For his part, Mr Popa (sic) now appears to have accepted the situation and is preparing for some form a property settlement and simply wishes to return to the farm. He continues to live with and is heavily reliant upon his parents. He is not participating in any psychological treatment and impressed as a man of little insight or psychological awareness in respect to his own inner workings and psychological needs of his wife. He was most unsophisticated in these areas.
5.Ms Pander (sic) has sought assistance via a Social Worker and is pursuing psychological treatment. In that respect she is different from him in that she appears to understand her need for such services and her account in the end was more believable than Mr Popa’s (sic) because of these factors.
6.To some degree, Mr Popa (sic) appeared resigned to the prospect of his wife returning to her mother in [omitted]. He provided little in the way of comment and appeared not to have thought those matters through simply stating that of course he wished to remain in touch with the children.
7.If Ms Pander’s (sic) account is to be believed, there are concerns in regard to Mr Popa’s (sic) mental health and drinking matters. He certainly demonstrated evidence of conspiratorial thinking and as indicated, there was a paranoid flavour to his account. I obtained the impression that he was not prepared to fully divulge specific details in regard to his concerns about her infidelity and the dream referred to by Ms Pander (sic) in the overall. His general lack of sophistication and reliance upon negative critical comments in regard to her family are quite likely to rise to the point of morbid jealousy and repeated questioning of her in those circumstances.
His drinking and these concerns may well have led him to become quite depressed, possibly impacting on his ability to work and provide for the family as well as performing the role of partner and father. It is likely that he is heavily reliant on his parents and has little parenting capacity and these are matters which the Court will no doubt ponder on in respect to its deliberations in regard to Ms Pander’s (sic) wish to relocate to NSW.
8.In the end, this assessment proved to be an unedifying experience in respect to both parties. I was left with the impression that Ms Pander (sic), despite Mr Popa’s (sic) criticisms of her as a mother, indeed was isolated during the marriage, that she too suffered from depression, but nonetheless was definitely the primary caregiver. On the other hand, Mr Popa (sic) was unconvincing in respect to his relationship with the children, and given those considerations, my own view is that the relationship with Ms Pander (sic) and the children and their connection with her is something that will be further borne out by a more complete Family Court Report.
9.It is also likely I believe that Ms Pander (sic) has, as she says, little in the way of supports here in Victoria, and that her seeking to relocate to be with her family will provide her with greater support and enhance her ability to act as a mother and care for their interests.
10.I have not seen the children and my report needs to be read accordingly.”
Family report by Mr H dated 30 August 2013
In accordance with orders of the Court dated 12 April 2013, Mr H prepared a family report pursuant to s.62G(2) of the Family Law Act 1975 (“the Act”) based on Court documents, interviews with the parties and [X] and observations of [Y] and [Z] and of the parties with their children.
With respect to his interview with the respondent, Mr H reported:
“10.Mr Popa gave a rather truncated overview of the relationship and post separation period from his perspective and consistent with his affidavit material. His mood and affect were somewhat blunted and restricted in range and his conversational style tended to consist of short abrupt explanations with little detail. The narrative themes of his account have a reductive logic that continuously returned to the culturally defined gender roles of the relationship, Ms Pander’s wish for a different lifestyle, and her deficits as a parent.”
Mr H noted that, “he categorically denies physically assaulting Ms Pander or the children during the course of the relationship. He did not believe the parental conflict had impacted on the children to any great extent.”
With respect to the interview with the applicant, Mr H observed:
“14.…Her mood and affect were somewhat defended and there were flashes of irritability when her account was questioned in detail. Her reasoning tends to be ridged and reductive; by way of example she could not see any impediments or negative aspects to the children being relocated, believes the children will be happier if they relocate, and does not think the relocation will impact on their relationship with Mr Popa. She found it difficult to contemplate the children’s needs as separate from her own.”
With respect to the relocation the applicant is reported as explaining that she wants to relocate to be near her family as she feels bereft of support in Victoria and because of the alleged enforced isolation by the respondent. It is noted, “Ms Pander does not anticipate the children will return to Victoria for every school holiday and expects Mr Popa to visit them in NSW on occasion.”
Mr H notes:
“18.She is of the opinion that skype and phone communication should suffice for contact in the term time and had not contemplated any weekend term time at all. She does not feel the children’s relationship with Mr Popa will be impacted significantly by her proposal. Ms Pander had given no thought to how the children might travel by plane to visit during term time and the writer discussed some options around this. She was not overtly opposed to the idea but requested further time to consider it.”
With respect to the interview with [X], Mr H stated:
“20.…She understood the interview to be about moving to [F] NSW and was enthusiastic in her description of friends and family there. [X] is not concerned about the prospect of moving school and feels her cousins in [F] will compensate for the loss of her school friends.
21.She describes her father drinking heavily in the evenings and playing roughly with them when drunk. This would become frightening and he would not listen to their pleas for him to stop. She described the whipping incident as the most obvious example of this behaviour but stated it was a frequent occurrence towards the end of the relationship. The parental arguments were often frightening in particular her father’s behaviour because he was often drunk when they argued. She recalls Mr Popa swearing at her mother and saying nasty things and identifies him as the protagonist in the arguments stating, “Dad doesn’t know how to agree with anything. He pretty much wants his way all the time”.
22.[X] describes her father smacking the twin’s on the bottom and being rough with all three children when disciplining them. When asked about her mother’s discipline she acknowledged her mother had also smacked the twins on the bottom. She perceives life is better since the separation because the arguing has stopped and she enjoys her time at the paternal grandparents and playing with her cousins.”
With respect to the relocation, Mr H noted that [X] appeared to have limited information about the proposal, “but anticipated seeing her father regularly throughout the school term and on holidays.” Mr H observed that when he explained that there was no provision for term time (in the mother’s proposal) which could mean as little as four visits a year, “[X] appeared shocked and stated, “I hadn’t really thought it through, everything’s jumbled up now”. Mr H noted that [X] subsequently became somewhat withdrawn and stated, “I’m not sure what I feel now”.
Mr H stated that the twins, [Y] and [Z], were at an age and stage that make it cognitively unlikely they would be able to comment on the relocation in any meaningful way. Mr H noted that: “[Z] made a comment about his father hurting their mother and conversation after this was laboured…”
With respect to the observations of each parent with the children, Mr H noted:
·In relation to the respondent – “The children clearly enjoyed their father’s attention and interaction with them.” and “There was no sign of any mutually understood roles around their play with Mr Popa or shared play experiences. However, the observation was otherwise unremarkable.”; and
·In relation to the applicant – “She displays the warm and intuitive rapport of the day to day care giver anticipating and interpreting the children’s physical and emotional needs and responding accordingly.”
Mr H evaluation is as follows:
“31.There is a hierarchy of issues relevant to the analysis for relocation in this case that concern the attachment roles, family violence allegations, the mental health of the parties, their overall cognitive and social functioning which is assessed as low, the risk issues pertaining to their parenting, and the likely impact of a relocation on the parenting capacity of Ms Pander.
32.The primary attachment of the children is at the core of the analysis and the starting point for this assessment. The parties are of [omitted] extraction and the gender roles throughout the relationship reflect a conservative and traditional division of labour with Mr Popa working long hours outside the home, and Ms Pander raising the children and tending to the domestic duties. She has had the primary responsibility for liaising with schools, medical and other services, and has been involved in the day to day care and organization of the children’s lives since birth. In the circumstances and history of this case Ms Pander is identified as the primary attachment figure for the children.
33.The allegations of family violence are significant and best seen on a spectrum of conflict that ranges between “Conflict Instigated Violence” and “Coercive Controlling Violence”. The former is characterized by hostile verbal exchanges over common disagreements that can escalate over time and are initiated jointly or by one or other of the parties. There is an inability to identify the underlying issues and problem solve around the cause of the disagreements and the couples respond to conflict with loud arguing, insults and accusations, and each refuses to submit to the others rules or demands. The constant arguments over money, autonomy, and domestic contribution fall into this category.
34.“Coercive Controlling Violence” is defined as an ongoing pattern of controlling threat, force, emotional abuse, and other coercive measures to unilaterally induce fear, submission, and compliance in the victim. It includes physical violence, emotional abuse, attacks on self-esteem, and insistence on sole authority in multiple domains. It is likely the parties moved between these definitions of family violence subject to their mental health status and Mr Popa’s increasing alcohol use and deteriorating mental health. Dr E’s report sheds some light on these aspects of Mr Popa’s difficulties. The dynamics of the relationship and Mr Popa’s behaviour in the last 18 months of the relationship increasingly reflected the behaviours associated with this category of family violence as his drinking and paranoia increased.
35.The outcome of this abusive behaviour has been to subject the children to high levels of frightening and chaotic parental conflict. The impact of family violence on children is well documented in the literature and to her credit Ms Pander lists this amongst her reasons for ending the relationship and has sought counselling for her and the children. The cognitive and social functioning of the parties is at the lower end of spectrum and there is an absence of insight and empathy in their behaviour toward each other that is unlikely to change. The possibility of a positive and cooperative post separation relationship with reasonable levels of communication is unlikely in the future regardless of where the children are located.
36.Dr E’s report indicates Ms Pander’s Adjustment Disorder and Anxiety are in remission, she is engaged in counselling, and has sought help for the children in this regard. These improvements in her mental health are likely related to the separation and relief from the destructive dynamics of the relationship. Alternatively, Mr Popa is described as heavily reliant on the paternal grandparents, appears to be in some denial about the role of alcohol in his difficulties, and there is no evidence or history of his capacity to parent the children independently. His disciplining and play with the children was problematic when the parties were together and he will need to address these deficits going forward.
37.Without some form of professional input it is unlikely Mr Popa’s mental health and behavioural difficulties will spontaneously resolve and his parenting of the children is likely to require some form of oversight or supervision in the future. Given his dependence on the paternal grandparents it is likely he will voluntarily seek them out when he has the children whether Ordered to or not. However; the writer recommends the paternal grandparents remain in substantial attendance during his time with the children until such time as he has completed the courses recommended below.
38.As stated, [Y] and [Z] are not cognitively capable of making an informed or meaningful contribution to the issue of spending time or relocation. [X]’s understanding of the relocation proposal appears to have been different from the reality. She had not expected to miss her father believing she would see him on a regular basis throughout the term and on school holidays. The writer notes the level of ambivalence by [X] concerning her relationship with Mr Popa was commented on by Mr A in the 11F report. [X] appeared confused when she realized the extent of the time frames between seeing her father and, given her lack of understanding about the proposal, and her obvious alignment with her mother, [X]’s wishes in the matter are seen as an unreliable guide at this point in time.
39.Ms Pander gives the impression of having given little or no thought to the children spending time with Mr Popa during the school term outside of skype and telephone contact. Her narrative around the relationship between the children and Mr Popa is overwhelmingly negative and her proposal underestimates the potential importance of the children’s relationship with Mr Popa.
40.As stated previously, the writer discussed the possibility of the children flying down to Melbourne once or twice a month to visit Mr Popa and while Ms Pander was not overtly opposed to this option she indicated she would need time to consider it. The financial resources for this type of structure may be problematic and would need to be explored. A possible option for both parties would be to contribute into a fund after the financial settlement to cover the cost of travel in the first 12 or 18 months of the arrangement to get it started. The twins are too young to fly as unaccompanied minors and this would need to be taken into consideration in the financial planning.
41.In conclusion, in cases where there are no definitive issues of family violence, mental illness, or drug and alcohol abuse, resilience factors to the diminution of the relationship with the non-moving parent would be identified as; the child’s developmental stage at the time of relocation, the level of attachment formation to the non-moving parent, commitment of the moving parent to maintaining the relationship with the other parent, and the frequency and duration of the time spent with the non-moving parent after relocation.
42.However, in the circumstances of this case the criteria for assessment described above is contraindicated and it is respectfully recommended the allegations of family violence, alcohol abuse, the parenting capacity of Ms Pander and her need for support, and the mental health of the parties, be given prominence in the decision making process. Under either proposal the bulk of the parenting will fall to Ms Pander and she will need practical and emotional support and this is unlikely to be forth coming from Mr Popa. Given the issues discussed above, and providing regular term time can be provided, it is likely the psychological and emotional outcomes for the children around their relationship with Mr Popa will be similar regardless of where they reside.”
Mr H did not provide an opinion regarding relocation, preferring to set out alternate recommendations for parenting arrangements dependent on the Court’s decision regarding relocation.
Mr H was crossed examined and his evidence is as follows:
·the degree of change for the applicant and children moving from the [W] property to the next neighbourhood by comparison to [F], New South Wales is vastly different and the children will undergo change as all children do at the point of separation;
·it was difficult and laborious to draw out information from the respondent He tended to repeat single phrases, “it’s all fixed up” or “it’s been sorted”;
·the respondent had failed to disclose that he pleaded guilty to unlawful assault. This reflects his avoidance around the issue of the dynamics of the relationship and his role in the conflict;
·the respondent lacked insight into his behaviour and doesn’t understand the effect that he has had on the applicant and children;
·with respect to the respondent’s mental health issues, alcohol abuse and depression are comorbid with family violence;
·although the respondent needed to be more proactive, it is encouraging that the respondent has made recent inquiries regarding alcohol counselling. If the applicant’s account is accepted, the respondent requires such counselling;
·with respect to his parenting capacity and ability to parent independently, the respondent needs to address the two issues of alcohol abuse and morbid jealousy syndrome. In this regard, he would be assisted by attending the [omitted] Centre which provides alcohol rehabilitation and parenting programs;
·the applicant was more child focused, she saw an impact of the parental conflict on the children as evidenced by the fact that high amongst her reasons for separation was the impact of family violence and parental conflict on the children;
·there are strong culture overtones to the way the parties interacted;
·the applicant undervalues the significance of the respondent’s relationship with the children;
·the twins are at an age where they can only just hold onto a construct of relationship and for this reason, if the applicant was permitted to relocate to [F], New South Wales, with the children, he had recommended time spent by the respondent with the children every third weekend during the school term. This dealt with the objective of maintaining a relationship between the children and the respondent;
·the fact that the applicant (as well as the respondent) are at the lower end of cognitive capacity and that the applicant is coming out of a period of depression relative to adjustment disorder, indicates the applicant requires a lot of intensive support. If she is isolated, potentially her mental health will deteriorate and this will adversely affect her parenting capacity. The more support the applicant has, the greater the benefit to the children;
·an order that the applicant have sole parental responsibility for the children would not be appropriate because both parties’ cognitive capacity is low;
·the concerns expressed in evidence by both parties regarding the twins travelling unaccompanied on air flights was understandable but not based on their cognitive and developmental capacity, noting they will travel with their older sister. Mr H suggested that consideration be given to providing for the children to be accompanied by their parents or grandparents for the first couple of times the children travelled by air between New South Wales and Victoria;
·providing for all time spent with the respondent, in the event the applicant relocated to [F], New South Wales, to be in New South Wales placed an unreasonable burden on the respondent;
·in the absence of an alcohol rehabilitation centre providing certificates in relation to alcohol rehabilitation counselling, correspondence from the counsellor or treating practitioner that the respondent was at a stage where alcohol abuse was in remission would be of sufficient comfort (subject to the completion of a parenting course) that the respondent had an appropriate capacity to parent the children unsupervised;
·relocation will pose issues of adjustment for the children but not necessarily be traumatic;
·with respect to any action taken by the applicant regarding time spent with the respondent in the early period following separation, this needs to be understood in the context of the aftermath of separation:
“…there are some basic things we know about when parents separate, but particularly when parents separate in the context of alleged family violence where there has been a traumatic incident, is there is a period of adjustment. And often in that period of adjustment, people are in survival mode, both the father and the wife. And it doesn’t all go according to plan, so there are instances where the father doesn’t get to see the children. There are some times – occasions where the children don’t want to go back to the mother. It’s chaotic, it’s confusing. So when you say does this surprise me, nothing surprises me. In the first 12 months of separation there is an adjustment period. And for adults that are not functioning at a very sophisticated level, it often goes awry. It’s a way of life in relation to adjustment to separation, to some extent.”[14]
·with respect to his observations of the respondent’s time with the children, the children clearly liked the attention of their father but the respondent did not have a good repertoire of shared play nor did he display intimate rapport with them. The observations were unremarkable; and
·The parties are quite polarised regarding each other’s contribution. However, if the parents take the lead and model containment and control anxiety then this will reflect well for the children in to the future.
[14] Transcript of Proceedings 17 October 2013, line 40, p.222 to p.223
Consideration of the Evidence
Having considered all the evidence, I make the following findings.
The roles adopted by the parties during their relationship were traditional ones with strong culture overtones from their [omitted] extraction.
I find that the applicant was and remains the primary care giver and is the children’s primary attachment figure. I am satisfied that the respondent played a minimal role in the day to day care of the children. I am further satisfied the respondent’s capacity to parent is limited and will remain so until he addresses his alcohol abuse and acquires appropriate parenting skills.
The sole parent pension is an income tested pension under s.23(1) of the Social Security Act 1991. By reference the relevant legislation, the base rate of the family tax benefit for each child under the age of 18 is $55.16 per fortnight. Hence $82.70 of the $600.00 per week would not comprise an income or means tested pension or benefit.
Clearly, by reason of her role as home maker and primary care giver, the applicant contributed to the respondent’s income, earning capacity and financial resources.
Having regard to the evidence and relevant considerations, I find that it is proper to make an order for the provision of spousal maintenance over the period from separation to the date of trial (around 60 weeks), reflecting a weekly amount of $400.00. I am satisfied the respondent was reasonably to support the applicant by the payment of that weekly amount. Over the relevant period, this translates into a lump sum or capitalised spousal maintenance of $24,000.00. In the circumstances, I find it proper to characterise the payment of the $25,000.00 to the applicant as capitalised spousal maintenance.
The valuation of the husbands business, [R]
In his financial statement filed 19 April 2013 the respondent lists the value of his business at $20,000.00. The applicant submits that the true value of the respondent’s business is set out in the Quarterly Business Activity statement of the business for the year ending 30 June 2012 (mother’s exhibit 3). In cross examination the respondent confirmed that the written down value of the plant, equipment and motor vehicles in the financial statements was $37,941.00. His reason for identifying a value of $20,000.00 in the financial statement was that it was one year later.[49]
[49] Transcript of Proceedings, 16 October 2013 p.152 to 153
In his written submissions the respondent correctly points out that the amount of $37,941.00 includes two vehicles listed separately in the property pool. The value of plant and equipment only is listed in the Quarterly business returns as $23,957.00.
I accept that there will have been some further write down in the value of the plant and equipment and hence accept the respondent’s valuation of $20,000.00.
The valuation of the BMW vehicle
The respondent in his financial statement values the BMW vehicle at $30,000.00. The applicant asserts that the BMW was purchased by the respondent in early 2013 “as a repairable write off” for $12,500.00 and that the current value of that vehicle would be approximately $10,000.00. The respondent confirmed that the vehicle was purchased as a repairable write off, however, his evidence was that the vehicle was repaired and his valuation includes parts, labour and fees.[50]
[50] Transcript of Proceedings, 16 October 2013 at line 30, p. 294
There is no dispute that the BMW vehicle owned by the respondent was purchased as a repairable write off in the amount of $12,500.00. It seems reasonable to expect that repairs would be done to a vehicle in that state. In cross examination the respondent stated that the value of the vehicle when he purchased it (after repairs) was $25,000.00.[51] As it is likely that the vehicle would have decreased in value, I find that the BMW motor vehicle be valued at $22,000.00.
[51] Transcript of Proceedings, 16 October 2013, p.294
Assets and Liabilities of the parties
The assets and liabilities of the parties are therefore as follows:
Assets Former Matrimonial Home $775,000.00 Property K (remainder following application of proceeds of sale in accordance with orders made on 14 October 2013) $182,266.80 [R] $20,000.00 Husband’s bank account $5,000.00 BMW vehicle $22,000.00 Husband’s Toyota vehicle $5,000.00 Husband’s Superannuation $24,199.00 Partial distribution of property settlement to the respondent $15,000.00 Total Assets (including superannuation) $1,048,465.80
Liabilities Bank West Mortgage $461,644.00 Net assets (including superannuation) $586,821.80
Whether it is just and equitable to alter the parties’ property?
Applying the decision in Stanford, the first matter to be considered is whether it is just and equitable to make an order under s.79 at all. In my view, it is just and equitable. The parties are no longer living in a marital relationship and have not done so since 14 October 2012. Both parties seek an alteration of their property interests.
There is clearly a need to make such orders as will finally determine the financial relationship between the parties and avoid further proceedings between them: s.81.
Contributions: s.79(4)(a), (b) and (c)
The assets the parties brought to the relationship were as follows.
The respondent purchased the Property K property in 2003, prior to the commencement of cohabitation. The purchase price was $285,000.00, he took out a loan with the CBA of $250,000.00, leaving an equity of $35,000.00. In addition, in or around 2002, the respondent purchased lots [omitted], Property S, [S]. The documentary material in relation to the purchase of these blocks[52] establish that the purchase price of the blocks was $89,100.00. A mortgage of $70,000.00 was taken out by the respondent leaving equity of $19,000.00. The total equity from the Property K and [S] properties is therefore $44,000.00. The respondent also claims that he bought to the relationship a bobcat and excavator estimated to be worth $20,000.00.[53]
[52] Affidavit of respondent filed on 10 October 2013, annexure “RP2”
[53] Transcript of Proceedings, 17 October 2013, p.298
The applicant states that she bought to the marriage $15,000.00 which was used for the purchase of the excavator. The respondent disputes this.[54]
[54] Transcript of Proceedings, 17 October 2013, p.243
During the course of the relationship and marriage, the parties lived from 2003 to 2006 rent free at Property M. In 2006, the parties purchased the former matrimonial home at a purchase price of $770.000.00. The respondent states that he sold the [S] property for the purpose of a deposit and took out two loans, a loan of $300,000.00 using the Property K property as security and a loan of $465,000.00 secured over the former matrimonial home.
The respondent’s evidence is that when he purchased the Property K property it was vacant and it took him around a year to find a tenant which resulted in a loss for him of around $17,000.00 to $18,000.00.[55]
[55] Transcript of Proceedings [insert date], line 5, p.272
In early 2011, the respondent defaulted on repayments of the CBA business loan over Property K property. The third party, pursuant to a guarantee commenced repayments, which are appropriately treated as contributions by the third party on behalf of the respondent.
In addition, in 2006 shortly after the purchase of the former matrimonial home, rental payments from Property M were paid into the respondent’s business’ bank account by the third party, which continued until March 2013. Again these are appropriately treated as contributions by the third party on behalf of the respondent.
The applicant contributed during the course of the relationship and marriage as the home maker and the primary care giver for the children. The respondent’s contributions were by way of being the primary income earner. I have early found that the respondent contributed very little if at all to the care of the children, the parties having adopted traditionally roles during the course of the relationship and marriage.
After separation the respondent contributed by way of payment of the mortgage over the former matrimonial home. Whilst clearly a contribution in the post separation stage, it also amount to preservation of a significant asset of the relationship. Other than medical insurance coverage for the children the respondent has not contributed at all to the support of the applicant or the children in relation to their day to day needs.
The applicant’s contributions have been significant by way of her primary responsibility for the children as they have resided with her at the former matrimonial home and spent time with their father only during the day on Sundays.
Conclusion
I am satisfied that the respondent provided a greater financial contribution at the beginning of the relationship by way of equity from property bought into the relationship.
During the relationship the parties, for a period of three years, lived rent free at Property M. The respondent contributed by way of being the income earner, although the decision to purchase the Property K property in 2003 without a tenant and this subsequent loss of around $17,000.00 to $18,000.00 reflects poor business decision making. Arguably, the purchase of the former matrimonial home with significant mortgages, it appears, more than 95 per cent of the purchase price, also reflects poor financial decision making by the respondent. It is to be borne in mind that the applicant played no part in this decision making. I have treated the rental payments from Property M and the payments on behalf of the third party in relation to the Property K property as contributions on behalf of the respondent. The applicant’s contribution by way of homemaker and primary carer was significant and contributed to the conservation and improvement of the property of the parties. I am satisfied that, in the course of the relationship, the parties contribution was equal.
I find that after separation the applicant’s contribution was greater than the respondent’s, taking into the account the fact that the applicant was virtually solely responsible for the costs associated with the three children and her significant care giving role. The contributions by the respondent to the former matrimonial home are relevant but are to be also treated as a preservation of the assets. The respondent has lived with his parents since separation and clearly been supported by them. Rental payments ceased shortly after separation (in March 2013), whilst the payments by the third party on the Property K property continued.
Overall, I am satisfied that the contributions by the applicant and respondent can be treated as being equal.
The section 79(4)(d), (e), (f) and (g) and section 75(2) factors
The applicant is aged 29 years and the respondent 35 years and both are, save as otherwise diagnosed by Dr E, in good health. The marriage was 8 years in duration.
Presently, the applicant depends for income on Centrelink benefit. In [F] she will initially live with and be supported by her parents. However, she wishes to purchase her own property and provide a home for the children.
The applicant was last in paid employment in 2003 at the age of 18, in positions in the fast food and the hospitality industry. There can be no doubt that her employment skills and employability are very limited and this has been contributed to by her role as homemaker and primary care giver during the marriage. She anticipates, on relocation to [F], obtaining employment in [F]. The earnings from this employment are unlikely to be significant. It will be some time, even with the support of her parents with the children, before she is successful in obtaining gainful part-time or full time employment. Unless and until she retrains and acquires suitable qualifications her income earning capacity will be limited.
The applicant will be primarily responsible under the proposed parenting orders for supporting the three young children. She has not been in receipt of any child support under the Child Support (Assessment) Act 1989, although she anticipates applying for same in 2014 once the Intervention Order expires.
The respondent is a [occupation omitted]. He maintains he is no better financial position than the applicant.
As set out earlier at [233] to [235], I have found that the respondent has not provide a satisfactory explanation or to put it another way, full and frank disclosure, of his financial circumstances over the period 2011/2012 and 2012/2013. His responses to cross examination on financial matters were vague and unconvincing, appeared evasive and reflected badly on his credibility. I have significant difficulty in reconciling his evidence regarding his business’ usual income, the income the business received over 2012/2013 with his claim he derives only $480.00 a week from his business.
The law is clear: there is a duty in proceedings of this type on every party to provide full disclosure of their financial position. If full disclosure is not provided, the Court is at liberty to make appropriate inferences and findings from a non-disclosure, not to be unduly cautious in doing so when making findings or drawing inferences against a non-disclosing party: Black & Kellner (1992) FLC 92-287 and Weir & Weir (1993) FLC 92-338 and Tate & Tate (2000) FLC 93-047; Chang & Su (2002) FLC 93-117. Callinan J in the High Court in Chang, on special leave application, commented:
“It does not matter what the principle might be seen to be, a court has to do the best it can. It does the best it can, having regard to the evidence that is adduced, and if the party is not frank, then naturally there is going to be a measure of imprecision about any findings that the court can make.”
In K & K (2002) FLC 93-135, the Full Court said that non-disclosure does not necessarily have to be deliberate because the duty to disclose is absolute.
I find that the future income and resources available to the respondent from his business and his earning capacity is significantly greater than the applicant. Further, I am satisfied that Property M will continue to be a substantial resource available to the respondent.
Mr S agreed with the propositions by Counsel for his son that he was generous dad, that if he had not entered into these arrangements his son would have lost the [property] ([W]) and that it was not likely he would help his son again. Expanding on this latter point Mr S said he was 60 years old and he couldn’t go through all of this again.
I do not accept that Mr S will not support his son Mr Popa financially into the future. No evidence was put before the Court that Mr S is unable to financially support his children. Mr S is clearly committed to ensuring that his children do not suffer financial distress and, in his words, “end up on the streets.”
Before I determine whether an adjustment which is just and equitable having regard to all the matters considered above should be made, it is appropriate to consider the applicant’s claim that she retain the BMW vehicle and that ownership be transferred to her. The respondent in his written submission acknowledges that the applicant seeks to retain the vehicle but has made no submission on this. It is apparent the applicant has retained the vehicle for her own use post separation. She no doubt needs a vehicle to meet her own and the children’s needs now and into the future. I will make the order the applicant seeks. I find it is just and equitable having regard to all relevant statutory consideration for the net asset pool to be reduced by half the value of the vehicle; that is $11,000.00. The net asset pool will, therefore, be $575,821.80.
Having regard to all the relevant matters specified under s.75(2), I am satisfied that it would be just and equitable to make an adjustment of 15% in favour of the applicant, such that the division of the net assets of the parties are 65% to the applicant and 35 % to the husband. It is appropriate to consider the effect of such an adjustment in monetary amounts. This percentage adjustment would result in a monetary amount of $374,284.17 to the applicant and $201,537.63 to the respondent.
Just and Equitable
I am satisfied that, in all the circumstances of this case, it is just and equitable to make property orders that provide:
a)the applicant be paid $374,284.17; firstly, by the payment of $184,266.80 being the balance remaining in the applicant’s solicitor’s trust account pursuant to orders made 14 October 2013, within 7 days of the property order. Secondly, by the payment by the respondent to the applicant of the residual within 60 days of the order ;
b)the applicant retain the BMW motor vehicle for her sole use and the registration of the vehicle be transferred into her name;
c)upon payment by the respondent, the applicant transfer all her interests in the former matrimonial home and the respondent indemnify her for all liabilities and costs associated with the former matrimonial home;
d)upon contemporaneously with the first payment, the applicant withdraw any caveats lodged over the former matrimonial home and Property M;
e)the parties divide their chattels as agreed in proceedings; and
f)the applicant and children remain in the former matrimonial home until payment by the respondent and that he be responsible for the mortgage and all relevant outgoings.
I am satisfied that this is a just and equitable outcome given:
a)The equal contributions of the parties;
b)The significantly greater income and financial resources available to the respondent;
c)The applicant’s limited income earning capacity; and
d)The applicant will be primarily responsible for the care and maintenance of three young children.
Spousal Maintenance
The applicant seeks an order for spousal maintenance of $650.00 per week. The respondent submits the application be dismissed.
The Full Court in the matter of Bevan & Bevan (1995) FLC 92-600 at 81-981 held that:
“An award of spousal maintenance requires:
(a) a threshold finding under s 72;
(b) consideration of ss 74 and 75(2);
(c)no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and
(d)discretion exercised in accordance with the provisions of s 74 with “reasonable in the circumstances” as the guiding principle.”
Where the Court is determining an application for both adjustments of property and spousal maintenance, the property application must be determined first as the outcome of the property application may be a factor in the determination of the maintenance application.
Further, where a matter involves both property and maintenance matters, the manner in which the Court applies section 75(2) factors in relation to the respective applications must not be confused.
The Full Court of the Family Court in the matter of Clauson & Clauson (1995) FLC 92-595 at 81-907 held that:
“Where spousal maintenance is sought in addition to a property order it becomes, in effect, the fourth step in the process. It is only to be exercised after the three step process under s. 79 has been completed and it is not to be confused with the s. 75(2) component in that latter exercise. The reason why it must be exercised after the s. 79 exercise is because that latter exercise establishes the background against which s. 74 must operate, that is, the financial circumstances of the parties.
The result of the s. 79 order may be such that the applicant for maintenance can no longer be described as being “unable to support himself or herself adequately” because he or she may have sufficient assets which, with or without income arising from the investment or use of those assets, will provide an adequate level of support. It also defines the other party’s capacity to meet any order.”
The first ‘step’ in determining whether an order be made for spousal maintenance in the wife’s favour is for the Court to determine whether the wife is unable to support herself adequately.
As a result of the s.79 order to be made, the applicant will receive an amount of $374,284.17. No doubt she wishes to apply this amount to the purchase of property. However, her evidence is that she will be able to earn from employment in hospitality once she has relocated to [F]. Moreover, when she relocates to [F] she will be residing with her parents. She will, no doubt, just as the respondent has while living with his parents, be much assisted with food and grocery bills in the short to medium term. In addition, by reason of the parenting orders, it will be the respondent who pays for air travel by the children during the school term. The applicant will be responsible for costs of travel for the children, once each school holiday. The orders will allow school holiday travel to be by car so as to enable the parties to reduce any costs of travel.
I am not satisfied, in these circumstances that the applicant is unable to adequately support herself.
Her application for spousal maintenance is, therefore, dismissed.
Having regard to all the circumstances of this case, I am satisfied that the orders set out at the beginning of these Reasons are just and equitable.
I certify that the preceding three hundred and twenty-two (322) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 19 December 2013
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Remedies
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