Resnick & Haber
[2022] FedCFamC2F 94
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Resnick & Haber [2022] FedCFamC2F 94
File number(s): MLC 11233 of 2019 Judgment of: JUDGE HARLAND Date of judgment: 4 February 2022 Catchwords: FAMILY LAW – Parenting and property – parental responsibility – 5 year old child – husband lives in USA – short marriage – small asset pool – narrow property dispute. Legislation: Australian Passports Act2005 (Cth), s.11
Family Law Act 1975 (Cth), pts VII, VIII, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 75, 79Cases cited: Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Stanford v Stanford (2012) 247 CLR 108
Waterford & Waterford [2013] FamCA 33Division: Division 2 Family Law Number of paragraphs: 88 Date of hearing: 24 January 2022 Place: Melbourne Counsel for the Applicant: Mr Meehan Solicitor for the Applicant: Susan Snyder Counsel for the Respondent: Mr Potter Solicitor for the Respondent: Dandenong Family Lawyers ORDERS
MLC 11233 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RESNICK
Applicant
AND: MR HABER
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
4 FEBRUARY 2022
THE COURT ORDERS THAT:
PARENTING
1.The Applicant Wife have sole parental responsibility for the child, X born in 2016 (‘the child’).
2.The child live with the Applicant Wife.
3.Not less than once a month the Applicant Wife send to the email address of the Respondent Husband a video and/or photographs of the child.
4.The Applicant Wife advise the Respondent Husband immediately or as soon as possible thereafter, in the event that there is any medical emergency relating to the child.
5.The Applicant Wife advise the Respondent Husband not less than once each three months of the child’s educational progress.
6.The Respondent Husband spend time with the child in Australia as follows:-
(a)Upon giving the Applicant Wife not less than one month’s notice:-
(i)For a period of two hours;
(ii)The contact supervisors on three further occasions each for a period of four hours, provided that such occasions are not more than three months apart and that the first such further occasion take place not more than three months after the first contact visit as provided for in paragraph 6(a)(i) hereof.
7.The Respondent Husband’s visits referred to in paragraph 6 will be suspended by an agreed professional supervisor and failing agreement, the Applicant Wife shall nominate at least two services and the Respondent Husband shall choose one. The Respondent Husband shall be solely responsible for the costs of supervision including reports. After the fourth visit the Respondent Husband shall obtain a response from the supervisor and will provide a copy to the Applicant Wife.
8.Subject to the Respondent Husband spending time with the child as set out in paragraphs 6 and 7 hereof the parties shall attend a family counsellor experienced in counselling separated parents for the purposes of discussing future contact between the Respondent Husband and the child. If the parties are unable to agree the Applicant Wife shall nominate three counsellors and the Respondent Husband shall choose one. The costs of such counselling to be paid by the Respondent Husband.
9.The mother is authorised to apply for and receive an Australian passport for the child X born in 2016 without first obtaining the written consent of the other parent pursuant to section 11 of the Australian Passports Act2005 (Cth).
PROPERTY
10.Each of the Respondent Husband and Applicant Wife authorise Michael Kraus solicitor to distribute the monies he is holding as follows:-
(a)as to 80% to the Applicant Wife or at her direction;
(b)as to 20% to the Respondent Husband or at his direction.
11.The Applicant Wife be entitled to retain the amount held by her uncle representing the net proceeds of sale of a motor vehicle.
12.Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders ;
(b)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(c)Insurance policies remain the sole property of the owner named thereon;
(d)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;
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
13.All extant Applications and Responses be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Resnick & Haber has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
X is five years old. He was born in 2016. His parents separated before he was born. The husband lives in City B, United States of America with his parents. The wife lives in Melbourne, Australia with her parents. The parties had an arranged marriage of short duration.
The husband was born in 1993 and is almost 29 years old. The wife was born in 1993. She is 28 years old.
It is clear that there is little trust between the parties and no direct communication between them. The marriage was arranged by the parties’ parents. The parties did not live together before they married. The husband was born in the United States and moved to Australia for the marriage. They married in 2012 and separated on 17 June 2016. They are divorced. The husband returned to the United States after the parties separated and before X was born. The husband did not have any supports in Australia and said that if he stayed he would have had to remain attending the same congregation which he felt was biased against him.
Both parties have relied on extended family members and close religious figures to assist them negotiate the issues in dispute. Both parties are practising members of the Orthodox Jewish faith and X is being brought up in that faith. There is little direct evidence before me as to the important tenets of their faith noting there is no dispute between the parties with respect to religious issues.
Despite the level of conflict between the parties, when the issues are more closely examined it is clear there are many matters which are agreed.
The husband has been legally represented for most of the proceedings. He instructed his current lawyers on 27 October 2021 after the last occasion this matter was in Court. The disadvantage for those lawyers is not having been in Court on the previous occasions. This is particularly relevant with respect to the parenting matters, given that when the matter was before me on 7 July 2021 I raised concerns then about how realistically parenting aspects of the matter could proceed in the event the husband was not able to come to Australia to spend time with X. I again expressed my concerns about the husband’s proposals for video communication being the way he was introduced to X before visits in person commenced. His lawyer at the time informed the Court that the husband would try and come to Australia for the trial, which was listed 14 and 15 October 2021. On 14 October 2021 the husband appeared via video from the United States unrepresented, not having filed material for the trial. The week prior to the trial the husband sought an adjournment, complaining that his lawyers had recently ceased acting. His lawyers ceased acting on 14 September 2021. The wife opposed the matter being adjourned and referred to the orders made on 15 November 2020, which listed the matter for trial, made trial directions and referred to the possibility of the matter proceeding on an undefended basis. As I had another trial running and could not guarantee that time would be available the following day, I adjourned the matter for a two day hearing on 24 and 25 January 2022.
The husband instructed new lawyers. Both parenting and property matters remained in dispute. The property aspect of the matter primarily proceeded on the basis of submissions with counsel acknowledging that the disagreement is centred on whether the net proceeds of sale of the former matrimonial home in the sum of $138,150 should be divided on an 80/20 basis in the wife’s favour or for 70/30 basis in the wife’s favour. In monetary terms, this is a difference of $13,815.
As I commented at the outset of the trial I was somewhat concerned that the husband’s proposals ignored the issues I had raised previously. One explanation would be that the husband did not tell his new lawyers about this. The husband’s current lawyers emailed the wife’s lawyers on 2 December 2021 seeking to engage in the counselling that was contemplated in the 4 December 2019 orders. The email also stated that whilst the husband was a stranger to X they did not think that counselling was necessary before video calls commenced and emphasised the wife’s obligations in facilitating the calls, and that they should last for a minimum of 5 minutes the first 5 times and then a minimum of 10 minutes. There is much emphasis in that correspondence on what the wife could do to assist these calls to make them work. There is nothing in that correspondence or the husband’s evidence that givens any indication that the husband has turned his mind to what he could do to assist. Quite properly the wife’s lawyers informed the husband’s lawyers of the comments made in Court on previous occasions by a registrar and by me. The husband does not engage with these concerns at all.
Given the nature of the issues in dispute, which in some senses are narrow, and the sensible way the matter was run, much of the focus is in these reasons is on the husband’s evidence and proposals, which he will probably feel is unfair. I have no doubt that these proceedings and the inability to travel to establish a relationship with his son has been stressful and difficult for him.
DOCUMENTS RELIED ON AND ISSUES IN DISPUTE
The wife relied upon the following documents:
(1)Amended Initiating Application filed on 2 June 2020;
(2)Affidavit of the wife filed on 19 January 2022;
(3)Financial Statement of the wife filed on 12 September 2021.
The husband relied upon the following documents:
(1)Further Amended Response filed on 21 January 2022;
(2)Affidavit of the husband filed on 13 December 2021;
(3)Financial Statement of the husband filed on 21 December 2021.
THE WIFE’S CASE
The wife commenced proceedings on 4 October 2019, seeking interim and final orders that she have sole parental responsibility for X, for X to live with her, and such other orders as the Court considers appropriate.
The wife says the husband has taken little interest in X. She says it would be good for X to have a relationship with the husband but says X needs to be introduced to his father in person first, beginning with several supervised visits, and provided they go well. The wife thinks that once X has an established relationship with his father, X will be able to engage in video calls with his father. She acknowledges that the pandemic has prevented the husband from travelling to Australia in 2020 and 2021.
The wife does not think that exercising equal shared parental responsibility is workable and says the husband has not taken up opportunities to be involved in X’s life and long-term decisions regarding his care.
With respect to property matters, the wife seeks 80% of the net proceeds of sale of the former matrimonial home, which is the primary asset of the parties.
The wife’s proposed parenting orders relied on at trial in summary provide for the following:
·The wife have sole parental responsibility for the child and the chid live with the wife.
·The wife will email videos and photographs of the child to the husband not less than once a month and also notify the husband about any medical emergencies relating to the child.
·The wife advise the husband about the progress of the child’s education not less than once each three months.
·The husband spend time with the child in Australia upon providing the wife with not less than one month’s notice for a period of two hours. This order is subject to there being no negative reports from the contact supervisors on three further occasions each for a period of four hours, provided that such occasions are not more than three months apart.
·Other occasions of contact are to be supervised by an independent supervisor and the cost be paid by the husband. After the contact visits, the independent supervisors be requested to provide a report and the cost of the report be paid for by the husband.
·The parties attend a family consultant nominated by the wife for the purpose of discussing future contact between the husband and the child and the counselling be paid for by the husband.
On the day of trial, the parties were unsuccessful in their negotiations after inspecting subpoena material. The trial then ran in the afternoon with both counsel taking an efficient approach given that there was little factually in dispute particular with respect to the property and that the parenting matter was significantly limited by the practical and logistical concerns. Due to their efficiency it was possible to complete the matter in one day and I thank both counsel and their instructors in this regard.
THE HUSBAND’S CASE
The husband says he has made sense of attempts to negotiate with the wife in order to establish a relationship with X but says the wife and her family have been unwilling to negotiate and do not want him to have any involvement in X’s life. The husband makes numerous complaints in his affidavit and also his oral evidence however in many instances failed to substantiate them.
In his amended response filed on 18 May 2020 the husband sought orders with respect to parenting in summary:
·There be equal shared parental responsibility for the child;
·The child live with the wife and spend time and communicate with the husband as determined by the Court.
·On an interim basis, the husband sought to spend time with the child in June 2020, August 2020 and October 2020 and December 2020 and every three months thereafter.
As order 3 is significant I will set it out in full:
Upon X reaching the age of 9 and in order to commence his Jewish studies under the guidance of his father, that he lives with the father in the United States of America and spend time with the mother at such times and on such terms as may be ordered by this Honourable Court.
The husband filed a further amended response very late just before the start of the trial. The wife did not oppose the husband relying on it. In summary his parenting orders are:
·The parties have equal shared parental responsibility for the child and the child live with the mother.
·The child spend time and communicate with the husband twice weekly via video call at times nominated by the husband at least 24 hours in advance and the phone calls to be a minimum of 10 minutes for the first five occasions and a minimum of 20 minutes per call thereafter. During the video calls, the husband seeks that either the mother, or another adult be present to facilitate the video calls. He also seeks one or both of the paternal grandparents to be present, however he specifies that the focus is to build the relationship between the child and the husband.
·The husband also sought orders that he spend time with the child for a two week period at a minimum of two occasions per year (presumably in Australia but the order does not specifically state this).
·The remaining orders provide for the husband to have liberty to apply for further parenting orders for the child to spend time and communicate with the husband in the event he resides in Melbourne.
The orders he seeks with respect to spending time and communicating with X are telling. It shows the husband’s continuing lack of insight into X’s developmental needs.
There are several instances where the husband has missed opportunities to show his interest in X and has made proposals and taken actions which did not assist his own case. I was left with the impression that the husband has a somewhat proprietary and entitled view. I did not have the impression that he had given much practical thought as to how he could make things work. I also have some doubts as to how willing and able he is to follow through on what he asks.
With respect to the property aspects, he seeks that he be paid 30% of the net proceeds of sale.
NEGOTIATIONS BEFORE PROCEEDINGS
On both parties’ cases, there is agreement they have engaged in extensive negotiations between the parties with assistance of family and community members, which have been unsuccessful. The husband unreasonably blames the wife and her family without considering his own conduct and attitude.
The husband acknowledges in his trial affidavit that the wife sends him photos of X every three months, starting with sending him photos of X as a newborn in 2016. He says “they are all very precious to me and I have emailed my thanks.” What he has never done is take the opportunity to ask the wife questions about X, to otherwise show his interest. The husband confirmed this in cross-examination. It did not seem to occur to him that he could otherwise ask about X’s wellbeing or day-to-day life to get to know him better.
He also refers to gifts he has sent X every few months which the wife acknowledged.
The husband says that he and his parents bought tickets to fly to Australia to be at X’s Bris and name giving ceremony. He claims that when they got to the airport and checked in that they were told that the wife’s family cancelled the tickets. He complains that they rebooked but those were also cancelled and it was not possible to arrive on time. He claims that C Airlines staff told him the flights were cancelled from the email address “……”
The wife denies having any part of this and said so in cross-examination. She asked her family about it and none claimed to have been involved. Significantly, the husband does not provide any supporting evidence. He does not provide any documentation from C Airlines. When pressed, he claimed that he made a complaint to C Airlines and that that investigation was ongoing. I do not accept the husband’s evidence. This occurred in 2016. If he had supporting evidence, he would have provided it. It stretches credulity that the wife or her family would be able to not once but twice cancel his tickets without his consent or prior knowledge. He says that the wife knew his flight numbers. There is a big difference between knowing the flight numbers and having details sufficient to login to someone else’s account and cancel the booking and that they would do this twice. It is a serious accusation. One also has to wonder that if they were willing to go to those lengths would they really flag their involvement by the use of such an email address?
The husband states in his affidavit that “I have continued relate to and care for young children since I returned home to the USA”. This is not evidence of anything. What is far more telling is what he has not done with respect to X.
Throughout the husband’s evidence, he complains about being denied the opportunities to meet with X and his desire to be a significant part of his life to be a positive parental influence, despite the geographical difference. The husband, however, does not proffer any evidence to support these statements. Instead he has failed to take up very simple opportunities he could have taken to show a genuine interest in his son.
The husband annexes a letter from his then lawyers dated 9 August 2019, wherein he proposed travelling to Australia to be introduced to his son with an agreed supervisor beginning on or around his third birthday in 2019, as the hair cutting ceremony also takes place around this time. His proposal was accepted. He proposed to stay for about two weeks and then proposed over the next 6 to 12 months to travel about every three months or so and have one to two weeks to build up his relationship with X and then after a 12 month period to continue regular visits building up to overnight stays. The wife responded through her lawyer proposing that he not attend at that time but provide proper notice so that she could prepare X for meeting him. Whilst the hair cutting ceremony is clearly an important event, the husband gives no explanation as to why this approach through his lawyers was only made two weeks before the event.
Particularly in the context of this matter where both parties referred to extensive negotiations between 2016 and 2019 that had been unsuccessful, it is surprising that the husband did not give greater notice than two weeks of his intention to travel to Australia for the ceremony. The wife would have no reason to think that he intended to attend. The husband acknowledged receiving a response from her lawyers, but rather than engaging with that response, the wife’s evidence shows that she found out through members of the community that the husband was in Melbourne.
The husband together with the paternal grandfather and their rabbi attended and participated in the hair cutting ceremony. The wife says what she was aware that the husband was in Melbourne. Arrangements were made for his rabbi to meet with her solicitor and a member of her family to negotiate his attendance and other issues. Whilst they did not reach a final agreement, an agreement was made with respect to his attendance.
The husband makes various complaints about restrictions on his involvement in the ceremony but gives no acknowledgement at all that given the lack of notice, the wife could have easily simply refused to engage in negotiations, and not allowed him to be present at all.
The husband travelled to Melbourne for the first return date on 4 December 2019. At the first return, the parties agreed to interim orders providing the timetable for the husband to file his response and for both the parties to file further material joining property issues to the proceedings. The husband filed his response the day after the first return date. From his response, it does not appear that he put much planning or forethought into it to maximise the prospects of spending time with his son.
The husband makes several assertions in his affidavit without providing evidence to support them, and makes various complaints about his attempts to negotiate through their respective families and the wife refusing to negotiate. This does not sit well with his evidence confirmed when cross-examined that there were 12 proposals in a mixture of English and Hebrew exchanged between the parties. If the wife was simply refusing to negotiate there would not be that kind of number of draft proposals. The husband also complains that he granted the wife a Get (Jewish divorce) in 2018 after she signed a statement agreeing to deal with parenting and property issues in the future.
The husband refers to the religious dispute resolution process called Beth Din, which is an Orthodox Jewish Court that rules on divorce in those matters. The husband says that under the religious rules parties are not permitted to commence civil proceedings until those religious proceedings are exhausted. The husband complains that the wife was summoned to the Orthodox Jewish Court in City D on 14 July, 21 July and 1 September 2017 and she refused to attend. I note the husband does not say in his affidavit that the wife proposed as an alternative for the Beth Din take place in Melbourne. When cross-examined the husband said that that was not appropriate as it was biased against him. The husband conceded that at the time the wife had the care of their one year old child, but gave no acknowledgement as to the practical difficulty in expecting her to fund and travel to the US for this purpose and simply said he offered to meet halfway and that they could have met in City E or elsewhere. The husband’s further amended response seeks that the wife pay the costs for refusing to participate in the Beth Din. Apart from the lack of evidence and submissions, the Court can only make costs orders with respect to proceedings before this Court.
The husband’s various proposals with respect to parenting during the course of these proceedings does not give the Court confidence that the husband appreciates the developmental issues for his young son. He has acknowledged that initially his time should be supervised. However, throughout the trial the husband continued to propose that he immediately have communication with X via video. Again, this is despite the concerns I expressed at previous Court events about the practicality of expecting X to successfully engage via video with his father, who is a stranger to him. I note again that his current lawyers were not being involved with previous Court events. The wife said in cross-examination that her parents have a computer at home for their work. The family does not have a television and X does not have a computer. The wife has an iPhone and says that X has spoken on a traditional phone once or twice for perhaps 10 seconds. She says that X is very active and does not sit still for more than a minute and she does not think that he would successfully engage via video without having met his husband first in person. I accept her evidence and have real concerns that if such an arrangement had been tried it would be setting up the parties for failure and it would be likely that the husband would blame the wife. I have doubts that the husband would be able to successfully engage with X without assistance. The wife said she did not think that the video calls would be a problem after X had had some visits with his father in person.
In his trial affidavit the husband claims that he worked on the wife’s parents business. He also says he provided significant care to the wife’s eight younger brothers and sister. He simply makes this general statement and does not provide any particulars. The wife’s counsel suggested to the husband in cross-examination that in fact the wife’s parents employed a nanny full-time during the week. The husband denied this but when challenged further about it, he said he was living in the same house. Just because someone lives in the same house does not mean they were actively involved in caring for children and so on.
The husband’s answers in cross-examination were at times dismissive and petulant. The husband is aware that X attends a private Orthodox Jewish school in accordance with both families’ religious beliefs. The husband was asked about whether he has paid any of the school fees, he replied that he has never been sent a bill. When asked if he ever offered, he said “they are not interested in me offering”. For someone who emphasises his strong desire to be involved in his son’s life, including the decision-making for his welfare, he takes a very passive approach and has missed many opportunities to demonstrate his interest and commitment to his son.
The husband claims in his affidavit to be very grateful for the photos and videos he has received from the wife via her father but admitted that the most he has replied is “thank you”. In this regard, the husband has again missed the chance to show an interest in X such as asking about his health or his studies or other interests. He was asked why he had not done so, the husband said, “because based on past negotiations, they are not reasonable in any way.” Nevertheless, the husband’s case is that it is in X’s best interests for his parents to exercise equal shared parental responsibility.
PARENTAL RESPONSIBILITY
The wife’s case is that since X was born, she has been solely responsible for all aspects of X’s care, including making decisions for his welfare and supporting him financially. She says the husband has not taken up steps to seek information about X from her and has not asked to be involved in any of the decisions. She says it would not be in X’s best interests for the parents to exercise equal shared parental responsibility, given the lack of communication between the parties and the husband’s lack of involvement.
The wife says she and the husband had not communicated directly since he sent two texts shortly after separation which disturbed the mother. He sent the first message on 16 June 2016 saying “I would like to personally invite you to my funeral tomorrow if all goes as planned, with love, love you always and forever.” He sent the second message on 21 June 2016 saying “I will be killing myself tonight, let me know if you want to watch, I’ll send you the details, love you always and forever.” It is not surprising since receiving those messages that the wife has expressed reticence in communicating with the husband directly. The husband admitted sending those messages but rejected the notion that those would have concerned the wife saying “absolutely not I don’t think anyone would be in a different position.” This particular comment is telling. Making these kinds of threats can be a form of family violence designed to manipulate and control the other person. It is certainly not a common or normal reaction to the end of a relationship.
When cross-examined, the husband’s counsel suggested to the wife for the first time that the parties could use a parenting application which prevents abusive messages being sent to each other to communicate and that that would address her concerns. The wife maintained her position that she would prefer a third party to be involved to assist them. When asked who their third-party could be, she said someone she knows and trusts and suggested one of her parents. Unsurprisingly, she said she would not feel comfortable communicating with one of the husband’s parents and I have no doubt that the husband would not be comfortable with communicating via one of the wife’s parents. In reality what limited communication there has been has been either via lawyers or via the wife’s father.
There is no evidence before me that either of the parents has previously considered using a parenting application to communicate and I have doubts that in the circumstances of this case that that would be an effective means of communication for them. This is the type of matter where, in the event there being further parenting proceedings or issues with respect to parenting matters arise, that the parents would be assisted by a parenting coordinator. Both parents would benefit from a post separation parenting course. The husband would also benefit from attending a tuning into kids course focussing on young children. Many of these courses can be found online or alternatively could be provided through individual counselling with an experienced family law counsellor.
The wife agreed when cross-examined that the husband did not obstruct her decision-making with respect to X’s school or religious instruction. I think something more than not being obstructive is needed, particularly given that the husband has had opportunities to show his interest in these matters, and has failed to do so. There have been several missed opportunities by the husband and I have little confidence that that is going to change after the proceedings. The husband says in his affidavit that he has no challenged the wife’s decisions about X’s education and health but wants to have regular communication with the wife. The reality is that the husband not made any serious attempt to involve himself in decision-making or even show to the wife an interest in being involved.
Order 5 of the consent orders dated 4 December 2019 provide as follows:
The parties attend (as per telephone or in person) before a counsellor at F Family Clinic or G Centre (as agreed within 14 days or otherwise on the Husband’s nomination) for the purpose of confidential counselling concerning parenting arrangements in respect of the said X born in 2016 at the joint expense of the parties.
The counselling referred to in that order never took place. The husband says that the wife nominated a counsellor he had no knowledge of and despite agreeing to jointly paying for the counselling she sought that he pay for all of the counselling. He then simply says no agreement was reached.
The husband does not have a relationship with X. Much of the difficulties in this case is due to logistical factors and also a somewhat passive-aggressive approach taken by the husband.
Whilst some cultural and religious issues may well have contributed to the husband’s manner, he struck me as having little insight and gave the impression that he expects things to be done for him rather than taking active involvement. Whilst the outbreak of the pandemic a few months after these proceedings began has meant the husband has not been able to travel to Australia in order to establish a relationship with X, I am not confident that the husband will in fact do what he says he will do.
It is significant that he makes numerous complaints about the wife and her family but shows little acknowledgement and understanding of the developmental issues for X. I agree with the wife’s counsel characterisation of the husband’s attitude as being somewhat proprietorial with respect to X.
LEGAL PRINCIPLES APPLYING TO PARENTING MATTERS
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3). These considerations include the views of the child, the nature of the child’s relationship with their parents and significant others, the extent to which the parents have or failed to take opportunities to participate in decision-making, spending time with and communicating with the child, the likely effect of separation on the children, the attitude of the parents to the responsibilities of parenthood and the capacity of the parents and significant other persons to provide for a child’s needs.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
The geographical distance between the parties means that it is not practicable for the father to spend substantial and significant time with X. Both parties acknowledge this. The father has not been able to visit Australia since the start of the pandemic. As I have indicated earlier, the father has not taken the opportunity to be involved in decision-making with respect to issues concerning X’s long term care, welfare and development. There is no child support assessment and he does not provide financial support for X.
DISCUSSION AND CONCLUSION WITH RESPECT TO PARENTING
I accept that the husband is interested in X and wants to establish a relationship with him. It is just unfortunate that he has done little to demonstrate this.
I do not think it would be in X’s best interests for his parents to exercise equal shared parental responsibility. The parents do not communicate directly. The husband is not familiar with X’s needs and routines and lives half way around the world. Whilst the husband says he intends to travel to Australia and to make regular trips to Australia, I am not confident that the husband will actually do this. The husband agreed in cross-examination that he is not vaccinated. That will be preclude him travelling to Australia for some months. That would have been an obvious matter he could have addressed in anticipation of international borders reopening.
I am satisfied that the wife will keep the husband informed of decisions as she has done previously. Her proposed orders require her to send photos to the husband monthly. If this were not her proposed order I would not require her to do so as often. It will be up to the husband to take advantage of those and demonstrate his interest in X. I have largely made the orders proposed by the wife. The husband indicated during cross-examination that he was agreeable to those. The wife’s orders required the husband to obtain a report after each visit. This is excessive. I will order the husband obtain a report after four visits. The wife will be able to ask the supervisor about the visit at handover.
The wife refers to wanting to travel internationally in the future to see family and friends and clearly if she travels to the united States that would also be an opportunity for X to see his father and paternal grandparents. I will make an order pursuant to section 11 of the Australian Passports Act2005 (Cth) enabling the wife to obtain an Australian passport for X without the husband’s consent. The husband says he will cooperate with signing the documents for a passport but in the event he does not, including for logistical reasons, the wife should be able to obtain the passport herself.
I will not make the order sought in both parties’ orders for liberty to apply with respect to parenting orders. It is clear that both parents contemplate there being further parenting proceedings in the event they are unable to agree. At this stage it is impossible to predict as X does not know his father and it is not known when the husband will be able to come to Australia and how often he will visit.
I have also removed the reference to negative visits in the mother’s proposed minutes. The purpose of professional visits is to have someone skilled to assist and facilitate the visits, to ensure X is comfortable if necessary and to end the visit early if he appears too distressed. What makes a visit positive or negative is subjective. It would not be surprising if X is hesitant at the first visit. It may take a couple of visits, in part that will depend on the parents’ skills in preparing for the visits and in part on X’s personality. The parties may engage in counselling concurrently with the visits to assist in preparing for the visits.
I removed the reference to a family consultant providing the counselling as that may be unduly restrictive. To be effective, the counselling should be conducted by a counsellor experienced in helping separated families. That does not necessarily need to be a family consultant. I have included a mechanism for the parties choosing a professional supervisor and counsellor if they cannot agree.
PROPERTY
The parties’ marriage was short, just 4 years. As I indicated earlier, the dispute is narrow. The dispute is whether or not the wife should receive 80% or 70% of the net proceeds of sale of the former matrimonial home.
Legal Principles applying to property matters
Part VIII of the Family Law Act 1975 (Cth) governs property, spousal maintenance and maintenance agreement between married couples. The major provisions relating to marital property division are contained in ss.79(1); 79(2); 79(4); & 75(2) of the Family Law Act.
Until the High Court decision in Stanford v Stanford (2012) 247 CLR 108, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39].
The High Court considered the operation of s.79 of the Family Law Act (which has almost identical terms to s.90SM) in the matter of Stanford. In this case, the majority stated at [35]-[36] that:
It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.”
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of s.79, which can be summarised as follows:
Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing’.
Secondly, although s.79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to s.79(2) in addition to the matters referred to in s.79(4).
In Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation. Both parties seek property adjustment orders.
The High Court also pointed out that what is just and equitable is different in every case.
It is important to have regard to the myriad of contributions the parties have made over the whole of their long relationship and take a holistic approach to the assessment of the parties’ contributions.
Discussion
There are many factual matters agreed between the parties. They agree that at the commencement of the relationship, the wife had savings of approximately $30,000. During the relationship the wife received gifts from her family totalling the sum of $5,000 and the husband received gifts from his family, totalling the sum of $1,000. The parties purchased a unit at Suburb H, Victoria in 2014 for $435,000. They paid the deposit from savings and monies loaned from families and friends and took out a mortgage to cover the rest. The parties sold the property and the balances held in trust in the amount of one hundred and $138,150. By agreement, the parties repaid the various amounts they owed family and friends from the proceeds of sale.
The husband does not disclose having assets of any significance at the commencement of the relationship. The wife had approximately $18,000 in superannuation however accessed those funds during the COVID-19 pandemic and used those funds to support herself and X. The wife says her parents operate a catering business that was adversely affected by the pandemic. She wished to be able to support herself and X during that period. She has nominal amount super and duration of $59 remaining. The wife was not challenged about this evidence. The husband does not have any superannuation or other retirement accounts.
The wife says that for the first 12 months of their marriage the husband did not work and studied which is practice in their community. She says he then worked part-time.
The only other assets the parties have is the proceeds from the sale of the motor vehicle sum of $2,000 which the wife’s uncle is holding. The wife seeks to retain that sum as well.
The husband is employed as a customer service officer and earns approximately USD $19,200 per annum. The husband was cross-examined about his employment and he said he works by commission. The husband does not work full-time, however conceded that he could. The fact that the husband is not fully utilising his earning capacity is significant in circumstances where he asks the Court to take into account the significant costs associated with him spending time with X.
The wife agrees she has never sought child support from the husband. She sought and was granted an exemption from Centrelink. The wife is not currently employed, and is reliant on Centrelink benefits and support from her family. In an email from the husband’s current lawyers dated 2 December 2021 he offered to pay child support of AUD $75 per week and requested the wife’s bank account details. The wife’s lawyer replied that the wife was not comfortable giving in her bank account details and proposed that the child support be paid into her trust account and she would afford those sums to the wife. When cross-examined the husband agrees that he is not paid any sum to the wife. Initially the husband said because there was no set amount and he was waiting for the Court to set the amount. When asked why did not pay the amount he offered, he said he was waiting for negotiations these past two years, then referred to it being him offering. The wife’s counsel suggested that he did not pay the amount he offered because he wanted to create pressure with respect to the spend time with arrangements. The husband responded saying the wife did not ask. This does the husband no credit. His offer appears to be somewhat disingenuous. What is apparent throughout these proceedings is that the husband is reactive. He has not taken the initiative and has not taken up several opportunities. He has had to show that he has an active interest in his son.
In closing submissions the wife’s counsel made the point that given the circumstances of the case, noting the husband’s concessions about the direct financial contributions by the wife and her family, the short relationship and the fact that she has sole car of X and does not receive any child support. I accept that submission. As mentioned earlier the difference between the two positions in monetary terms is $13,815. The husband’s counsel emphasised the expenses that the husband will incur in travelling to Australia for visits, paying for supervision, counselling and a family report in seeking 30%. I am not confident that the husband will in fact incur those expenses given the lack of follow through in many instances which I have referred to above. I also take into account that he has not paid child support in 5 years (acknowledging she has not applied for it) and his concession that he is not fully exercising his earning capacity.
I am satisfied that it is just and equitable for the wife to receive 80% of the net proceeds of sale.
For these reasons, I will make the orders appearing at the beginning of these reasons.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 4 February 2022
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