Rosic & Rosic
[2022] FedCFamC2F 1285
Federal Circuit and Family Court of Australia
(DIVISION 2)
Rosic & Rosic [2022] FedCFamC2F 1285
File number(s): ADC 2151 of 2020 Judgment of: JUDGE BROWN Date of judgment: 23 September 2022 Catchwords: FAMILY LAW – Parenting – parenting arrangements for child aged 7 – mother has been child’s primary carer since birth – where parents have no capacity to co-parent – family violence – coercive and controlling behaviour – assessment of risk – property – final hearing for property settlement – marriage of 5 years – where the property pool is modest – wife seeks sale of former matrimonial home – husband asserts no equity in property – asserted unsecured loan
FAMILY LAW – Practice and Procedure – Failure of a party to follow directions of the court – failure to defend proceedings with due diligence – application to proceed on undefended basis – matters to be considered
Legislation: Family Law Act 1975 (Cth) Pt VII, VIII, ss 4, 4AB, 60CA, 60CC, 62G, 68B, 68LA, 75(2), 79, 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 190
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules2021 (Cth) Pt 10.6, rr 1.04, 6.06, 10.26, 10.27
Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth)
Cases cited: Biltoft & Biltoft (1995) 19 Fam LR 82
Briese & Briese (1986) FLC 91-713
Clauson v Clauson (1995) 18 Fam LR 693
Deiter & Deiter [2011] FamCAFC 82
Ferraro v Ferraro (1992) 16 Fam LR 1
Hickey & Hickey (2003) 30 Fam LR 355
MZZGY v Minister for Immigration & Border Protection
Russell & Russell (1999) 25 Fam LR 629
Taylor v Taylor (1979) 143 CLR 1
Watson & Ling [2013] FamCA 57
Division: Division 2 Family Law Number of paragraphs: 183 Date of hearing: 12 September 2022 Place: Adelaide Counsel for the Applicant: Mr Roberts Solicitor for the Applicant: VP Lawyers Counsel for the Respondent: In person Counsel for the Independent Children's Lawyer: Mr Robinson Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 2151 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ROSIC
Applicant
AND: MR ROSIC
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BROWN
DATE OF ORDER:
23 September 2022
THE COURT ORDERS THAT:
1.The applicant, Ms Rosic (“the wife”) have sole parental responsibility for the child X (“the child”) born in 2015.
2.The said child do live with the wife.
3.Pursuant to section 68B of the Family Law Act 1975 (Cth) the respondent, Mr Rosic (“the husband”) is restrained and an injunction issues restraining him from:
(a)Removing the said child from the wife’s care; and
(b)Attending at the said child’s school of attendance as well as any extra mural activities attended by the said child including any Country B dance lessons or Country B School.
4.A copy of these Orders are to be served personally on the husband by the wife’s solicitor.
5.The husband has leave to apply to set aside these orders within forty-two (42) days of today’s date PROVIDED THAT he comply with the following directions:
(a)He file and serve an affidavit detailing the reasons:
(i)why he failed to attend upon the Family Report writer, Ms K, for the purposes of preparation of such a report;
(ii)failed to engage with Mr D or similar therapist in respect of obtaining therapy for anger and stress management; and
(iii)an explanation as why he has not engaged in the Circle of Security and Kids Are First parenting courses, as ordered by the court;
(b)He file and serve an affidavit to which the following is annexed:
(i)the discharge summary form from the hospital to which he was taken by ambulance from the court on 12 September 2022; and
(ii)a current medical report from a medical practitioner detailing his current psychiatric condition.
6.The order for the appointment of the Independent Children’s Lawyer is to be discharged at the conclusion of forty-two (42) days from today’s date PROVIDED THAT the husband has not complied with the requirements of Order 5 herein.
7.The husband provide to the wife’s solicitor and the Court, within forty-two (42) days of the date of the orders being 4 November 2022 all of the following annexed to an affidavit sworn by him:
(a)A valuation of the property known as and situated at E Street, Suburb F (“E Street, Suburb F property”) being the land contained in Certificate of Title Volume … Folio …, conducted by a licensed valuer, at the husband’s own expense;
(b)A current statement of the mortgage amount owing to Company G secured by registered mortgage on the E Street, Suburb F property;
(c)Details of the charge lodged on the title of the E Street, Suburb F property in favour of the Legal Services Commission of South Australia; and
(d)A bank statement or evidence of a bank transfer from the husband’s brother, Mr H to the husband in the amount of ONE HUNDRED EIGHTY THOUSAND DOLLARS ($180,000.00) said to have been advanced by Mr H to the husband to enable the husband to purchase the E Street, Suburb F property which advance is alleged to have occurred in or around October 2015.
8.Should the husband fail to comply with Order 7 herein, the following will apply:
(a)the husband is directed to vacate the E Street, Suburb F property on or before 31 December 2022, leaving the property in a good state of repair and cleanliness.
(b)the wife is given leave to make application for the hearing of her application filed in this court for property settlement to be listed for hearing on an undefended basis on a day to be specified by the court after 31 December 2022.
9.In the event the husband fails to give vacant possession of the E Street, Suburb F property in accordance with Order 8(a) herein, a Warrant for Possession be issued forthwith pursuant to rule 11.05 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 authorising the Marshal of the Federal Circuit and Family Court of Australia or his nominee to enter the property and give vacant possession of the property to the wife.
10.The wife’s costs of the hearing on 12 September 2022 are reserved.
11.The wife’s solicitor is directed to prepare a memorandum of the quantum of costs.
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 Rosic & Rosic has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to the final resolution of competing parenting and property settlement applications, in a case involving significant allegations of family violence and compromised parenting.
The most pressing issue for the court, at this stage, is whether it is fair for the parties and congruent with the best interests of the child concerned for the proceedings to be finalised without the significant involvement of one of the parties too it.
As will become apparent, in due course, the proceedings have been on foot for a lengthy period of time and have been marked by considerable difficulty. These reasons will be largely directed towards ascertaining who of the parties is more responsible for these difficulties and what, if anything, can be done to rectify them equitably.
It is not congruent with the overarching principles of civil litigation, including family law proceedings, contained in section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)[1] and the rules made under it that proceedings before the court be unduly protracted nor is such an outcome helpful to the emotional equilibrium of any child affected by such proceedings.
[1] Hereinafter referred to as “the FCFCOA Act”.
The court has a responsibility to manage cases efficiently and expeditiously in order to achieve a just outcome according to law. Given this obligation, the court cannot countenance one party being deprived of their entitlement to have their application appropriately finalised because of the unreasonable obstruction or intransigence of the other party concerned.
BACKGROUND
Ms Rosic[2] and Mr Rosic[3] were married in Country B in 2012. They are the parents of X, who was born in Adelaide in 2015.
[2] Hereinafter referred to as “the wife” or “Ms Rosic”.
[3] Hereinafter referred to as “the husband” or “Mr Rosic
The wife was born in Country B in 1988. The husband was born in Australia in 1973. He has previously been married and has two other children besides X, currently aged 21 and 16 years respectively, who are not relevant to these proceedings.
The parties met in Country B in 2012 and migrated to Australia in early-2014. They separated, in difficult circumstances, in January of 2017. The parties are now divorced, on the wife’s application, with the divorce order becoming final in August 2021.
The wife lives with her current partner, Mr H[4] (who is not biologically related to either of the parties), and X in rented accommodation. She is employed, on a casual basis, as a Carer. Mr J has a small business and two children aged 13 and 17, whom he parents in a shared care regime with their mother.
[4] I will refer to him as Mr J in these reasons – not out of any disrespect but to avoid confusion with the husband.
The husband lives in what was the former family home located at E Street, Suburb F.[5] He is the sole registered proprietor of the property, which is subject to a mortgage in favour of Company G and a charge in favour of the Legal Services Commission. He claims that his brother Mr H lent him the sum of $180,000.00 to purchase the property.
[5] Hereinafter referred to as the E Street, Suburb F property.
In this context, controversial issues arise as to the value of the E Street, Suburb F property and the extent of the equity available in it to the husband. In addition, there is a level of uncertainty regarding the husband’s income, particularly whether he is employed and so his financial capacity to pay child support to the wife for X. At present it is the wife’s case that he pays only the statutory minimum. The husband has been involved in the construction industry, though whether as an employee or the operator of a business is unclear.
These controversies must be viewed in the context of a comparatively short relationship between the parties, of about 5 years in duration, during which the wife concedes she made no direct financial contributions towards the E Street, Suburb F property and brought in no assets, of any significant value, into the marriage. However it is her case that she was principle provider of care for X, in difficult circumstances.
Given these factors, the emphasis in her case is on her prospective needs, which is informed by her financial responsibilities for X and her limited employment opportunities, on account of the fact that she has no specific skills to speak of and speaks English as a second language.
Essentially, at this stage, it is the position of the wife that, given the husband has failed to involve himself actively in the proceedings and has disregarded a number of court directions to him regarding the finalisation of the property aspect of the case, it is necessary for orders to be made requiring the sale of the E Street, Suburb F property, in order to crystallise the equity in it, so that it can be fairly distributed between the parties.
For reasons, which will be provided in greater detail, in due course, such an eventuality will inevitably worsen the parenting relationship between the parties. This relationship is already close to non-existent being categorised by extreme reactivity and hostility. For obvious reasons, such an environment is not conducive to the making of stable and long-lasting parenting arrangements for X, if it was ever possible.
The parents are not the only parties to the proceedings. Due to various controversies arising between the parties regarding their respective level of parental insight (or lack thereof), on 9 June 2021, an order was made directed that X be independently represented in these proceedings. Her representative is Anna O’Brien (“Ms O’Brien”),[6] an experienced family lawyer employed by the Legal Services Commission of South Australia.
[6] Hereinafter referred to as “the ICL”.
Pursuant to the provisions of section 68LA of the Family Law Act 1975 (Cth)[7] Ms O’Brien is under a statutory duty to gather and examine all relevant evidence and advocate the outcome, which she believes will best serve the interests of X. Ms O’Brien has briefed a barrister, Mr Robinson to appear on her behalf in the current proceedings.
[7] Hereinafter referred to as “the Act”.
In order to provide evidence to assist the court to make a decision conducive to the service of X’s best interests, it was ordered, on 6 October 2021, that a Family Report be prepared, pursuant to the provisions of section 62G of the Act. The report was prepared by Ms K (“Ms K”), a social worker by profession and a person who has been compiling numerous such reports, for the court, since 2006.
She interviewed the wife and observed her with X on 23 May 2022. She also interviewed X herself. Mr Rosic did not attend an appointment organised for him. There is no doubt that he knew about this appointment because he telephoned Ms K to confirm that he was going to attend. Of this conversation, Ms K said as follows:
He confirmed his intention to participate in the assessment and requested the use of an interpreter which the Consultant subsequently arranged. During this discussion, the father repeatedly shouted at the Consultant about his anger towards the Court, including his anger that the Court allowed the child to remain in the mother’s care despite her use of drugs. [Mr Rosic] appeared to struggle to manage his emotions during the phone call and struggled to pause from speaking long enough to allow the Consultant to speak.
Despite his earlier confirmation, the father failed to attend on the morning of the assessment. The Consultant called the father, however, this call was ended after a few short rings.[8]
[8] See Incomplete Family Report of Ms K dated 29 May 2022 at [23]-[24].
In June of 2022, Mr Rosic was given a further opportunity to attend upon Ms K in order for the ordered Family Report to be completed in a more comprehensive fashion. Mr Rosic, despite his indication that he would attend, did not do so and so Ms K’s report dated 29 May 2022 remains incomplete.
In these circumstances, Ms K reported as follows:
Whilst this assessment is limited by way of the father’s non-attendance, the Consultant would encourage the Court to consider taking a cautious approach to [X’s] needs and reducing her time spending with her father in line with her mother’s proposal, at least until the father was able to evidence a reduced risk of harm for [X] in his care. For example, his compliance with Court Orders, and a justifiable explanation for his non-attendance at the recent handovers and the Family Assessment.[9]
[9] See Incomplete Family Report of Ms K dated 29 May 2022 at [58].
Accordingly, at this stage, Ms K raised issues relating to the emotional risk Mr Rosic may pose for X. Necessarily, she was not able to assess this risk in any comprehensive manner given her lack of direct exposure to Mr Rosic. However, this lack of expert evidence regarding the husband does not expunge the court’s obligation to assess the potential risk of X coming to harm.
In Deiter & Deiter,[10] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.
[10]Deiter & Deiter [2011] FamCAFC 82
As will become apparent, as these reasons for judgment develop, Mr Rosic’s subsequent behaviour has exacerbated rather than lessened the wife’s and indeed the court’s concerns regarding the husband’s interaction with X. These concerns have not been ameliorated by the extremely unusual way Mr Rosic left court on 12 September 2022.
Mr Rosic has retained several solicitors during the proceedings to date. He has been self-represented most recently since 31 March 2022. Since that date, besides not attending the two appointments with Ms K, he has been inconsistent in his attendance before the court.
At an earlier Conciliation Conference, conducted on 27 September 2021, when Mr Rosic was represented, the registrar conducting the conference reported that there had been incomplete disclosure regarding the value of the E Street, Suburb F property and loans relating to it. In this context, on 1 October 2021, Ms Rosic’s solicitor wrote to the husband’s then solicitor proposing mechanisms for the formal valuation of the property.[11]
[11] See affidavit of Mr M filed 31 March 2022 at [4].
On 6 August 2021, with Mr Rosic’s ostensible consent, an order was made that he attend upon a therapist, such as Mr D, to engage in a process of anger and stress management. This followed earlier orders, made on 12 November 2020, applicable to both parents that they engage in either of the parenting courses known as Kids ‘R’ First and Circle of Security. Ms Rosic has completed her courses.[12] Mr Rosic has not. Nor has he consulted Mr D or any similar therapist. It is these omissions which, in part, informed Ms K’s recommendation recorded above, along with his failure to engage with her despite having indicated he would not least because he wanted to give voice to his significant criticisms of the wife.
[12] See affidavit of Mr M filed 31 March 2022.
On 17 June 2020, police officers applied for an interim invention order naming the wife as the protected person and restraining the husband from approaching, assaulting or threatening her. The basis of this order was stated to be that the husband had said to the wife that, if she divorced him, he would kill her. She also alleged that she had been approached by an unknown person, at her home, who had told her she had 5 days to sort things out with your partner. Police accepted that these incident had caused Ms Rosic to be scared of the husband. The order became a final one and has not subsequently been discharged on 8 April 2021.[13]
[13] See Exhibits 7 & 8 to the affidavit of Ms Rosic filed on 8 August 2022.
On 6 October 2021, the parties’ competing applications were fixed for final hearing in early June of 2022. Notwithstanding the fact that Mr Rosic was represented at this stage, an order was made formally providing the husband with notice of the application of the provisions of section 102NA of the Act to him.
This section specifically prohibits a party directly cross-examining a former spouse in cases involving allegations of family violence, if certain criteria are met. These include the existence of a final family violence order applicable to both parties or an injunction made under the Act for the personal protection of a party. Such an order had been made, naming Ms Rosic on 29 May 2020.
The notice also drew attention to the fact that an unpresented party, affected by the provision, was entitled to apply for legal aid, from a specific Commonwealth Scheme to fund any necessary cross-examination.
On 12 April 2022, the case returned to court for directions. By this stage, Mr Rosic was no longer represented. He did not attend on this date, having sent an email advising that he was required to attend another case regarding an unspecified matter at the Suburb N Magistrates’ Court. At this stage, a formal order was made restraining him from directly cross-examining Ms Rosic, at the trial, given the obvious satisfaction of two of the criteria specified in section 102NA.
However, at this stage, it also became apparent that the June trial could not proceed, due to delays in the preparation of the Family Report. The trial was re-fixed for 12, 13 & 14 September 2022 and the case listed for directions on 2 June 2022 with the intention of ensuring that: firstly Mr Rosic knew of the new trial dates; secondly he was aware of the prohibition on him cross-examining the wife; and thirdly he was appraised of the fact that he could apply for legal assistance in respect of this prohibition and how he could go about obtaining such assistance.
Mr Rosic did personally attend court on 2 June 2022. He was not represented. A Country B interpreter was also retained to assist him on this occasion. It was at this stage, he indicated his willingness to attend upon Ms K, who had indicated a preparedness to accommodate him, at short notice, given the imminence of the trial. At this stage, I endeavoured to impress upon Mr Rosic that his accommodation, by Ms K, was not to be considered a run of the mill arrangement and, as such, was expected to be respected and his indication of preparedness to attend honoured.
On 2 June 2022, in Mr Rosic’s presence, the trial dates of 12, 13 & 14 September 2022 were confirmed. The wife was directed to file her affidavit material, for the trial, on or before 8 August 2022; with the husband being directed to file his affidavit material on or before 22 August 2022. A formal order was also made requesting Ms K update her report on or before 5 September 2022.
In addition, the husband was ordered to allow a nominated valuer to access the E Street, Suburb F property, at the wife’s initial expense, upon the valuer giving Mr Rosic 24 hours’ notice of the time he would be available to undertake the valuation. The order specifically included Mr Rosic’s mobile telephone number, so there could be no later controversy regarding the valuation process.
Ms K scheduled the necessary appointments, with both the husband and the wife, for 9.00am on 3 August 2022. This was necessary so that she could observe X interacting with her father. A Country B interpreter was also arranged for this meeting.
At 10.44am, on 3 August 2022, Ms K wrote to the court in the following terms:
On the morning of the assessment the mother confirmed that she was in the process of attending as requested. She was later advised by the Consultant not to do so given the father failed to attend. He was contacted by the Consultant and stated that he had recently had surgery and could not attend on the day.[14]
[14] See email from Ms K on 3 August 2022 at 10.44am.
Mr Rosic did not indicate to the court what was the nature of his surgery and why he had been precluded from attending the relevant appointment. In these circumstances, I called the matter on for directions. This hearing was scheduled for 19 August 2022. On 8 August 2022, as directed, the wife filed her trial affidavit, along with an affidavit of Mr J.
In her affidavit, the wife detailed the attempts which she had made, through her solicitor to obtain a valuation of the E Street, Suburb F property. These included what I regard as respectful and detailed letters, from her solicitor, which were sent on a monthly basis, between April and July 2022, to Mr Rosic. They received no response.
Ms Rosic further deposed that the valuer nominated in the order of 2 June 2022 had telephoned Mr Rosic, as directed, to make an appointment with him to undertake a valuation of the property. However, Mr Rosic did not keep this appointment and provided no explanation as to why he had done so.[15]
[15] See Exhibit -19 to the affidavit of Ms Rosic filed 8 August 2022.
The husband did not attend court on 19 August 2022. I am satisfied that he was notified of the directions date and time by an email from the court to the electronic address nominated by him, which did not bounce back.I reach this conclusion because the email address utilised by the court, on this occasion, is also the email address, which Mr Rosic has recently utilised to make his own communications with the court, to which reference will be made shortly.
On 19 August 2022, in Mr Rosic’s absence, the case was adjourned until 29 August 2022 on the basis that it remained feasible that he would comply with the order for him to file his trial affidavit material, which had been made in his presence during the hearing on 2 June 2022. For obvious reasons, the wife and those advising her were entitled to know whether Mr Rosic was going to engage with the hearing in a proactive manner.
Mr Rosic did not comply with the order requiring him to file his affidavit material for the trial nor did he provide any explanation for his various failures to attend court and upon Ms K. Again, I am satisfied that the various orders made, in his absence, were either conveyed to Mr Rosic electronically or were accessible by him through the court’s online portal.
Mr Rosic did not attend court on 29 August 2022. On this date, it was ordered that the wife’s application would proceed on an undefended basis on 12 September 2022. At this stage, I was satisfied that Mr Rosic had failed to follow a court ordered step in the proceedings and was not defending them with due diligence.
On Friday 9 September 2022 at 4.40pm, the business day prior to the date fixed for the undefended hearing, Mr Rosic wrote an email to the court, utilising the email address which the court had used to contact him on earlier occasions. In his correspondence, he requested an adjournment of the trial on the basis that his solicitor (un-named) was overseas and he himself was in poor health. He also advised that he had a very important doctor’s appointment at the O Hospital on 13 September 2022.
I was not prepared to grant the adjournment administratively, in the absence of any submissions from the wife and those advising her. I was concerned that Mr Rosic had not specified the nature of his illness or incapacity; the nature of his medical appointment; and significantly why the factors precluded him from coming to court. In these circumstances, I directed that the husband attend at court on 12 September 2022 to make any application which he wished to make. A Country B interpreter who had been previously arranged for this date, also attended. As directed, Mr Rosic did attend court as directed. His appearance in court was heralded by fits of hacking coughing.
Counsel for the wife, Mr Roberts, opposed the adjournment of the proceedings and submitted that the case needed to be finalised on an undefended basis. For his part, Mr Rosic sought the adjournment, whilst vociferously asserting that he was feeling unwell; was feverish and sweating heavily. During his submissions, he continued to cough both loudly and forcibly. He did not indicate to me any specific condition from which he was suffering or explain why he was coughing so vigorously.
In these circumstances, I formed the judgment that he should provide some evidence on oath regarding his conduct in the proceedings to date, particularly in regards to the valuation issue and why he had not cooperated with the process of updating the Family Report. Interestingly, he stopped coughing when I remarked he had not coughed for a period of time. Regrettably, this precipitated a further paroxysm of coughing. In the witness box, Mr Rosic provided me with the following documents:[16]
·A loan agreement dated 30 October 2015 between the husband and his brother, Mr H indicating that the former had borrowed $180,000.00 to purchase the E Street, Suburb F property. The loan did not attract interest and was to be paid in full at the expiry of term, which was defined as being the satisfaction of one of the following:
·A demand in writing;
·A mortgagee taking possession of the property or the borrower becoming bankrupt;
·The involvement of the borrower in a family breakdown, defined to include any proceedings instituted by a spouse or former spouse of the borrower in respect of maintenance or property settlement.
·A discharge summary dated 9 July 2022 from the P Hospital indicating that Mr Rosic had undergone day surgery relating to a medical condition;
·Four medical certificates, each under the hand of Dr Q, addressed to Centrelink and dated respectively 8 February 2022; 13 May 2022; 2 August 2022; and 26 August 2022, each indicating a diagnosis of mixed anxiety / depression which was demonstrated by symptoms of poor sleep, palpitations and mood swings. The date of onset of the condition was said to be 2005 and the doctor’s prognosis was uncertain. In response to the pro forma question, as to what was considered necessary to assist Mr Rosic to return to work, Dr Q reported, on each of the certificates concerned the following: poor concentration, suicide prevention. The most recent medical certificate indicated Mr Rosic would be unfit for work/study until 10 November 2022.
[16] See Exhibit A.
I acknowledge that Mr Rosic was not anticipating entering the witness box. His presentation caused me concern, particularly his fits of coughing, given the circumstances arising from the pandemic emergency. I arranged for all who wished them to have the provision of a face mask but felt duty bound to at least try to ascertain what was going on from Mr Rosic’s perspective. Certainly, although I concede I am not medically qualified, I did not consider that I should desist from my inquiries on the basis of Mr Rosic’s presentation, given his conduct in respect of the proceedings, in the period preceding his appearance.
Overall, Mr Rosic was not an impressive witness. He was not able to specify the nature of his forthcoming medical appointment; provide details of any psychiatric medication prescribed to him; or satisfactorily explain why he had not attended recent court mentions, other than he indicated that he had been involved in a dispute regarding payment sought from him in respect of a footpath near his home, which had been listed in the Suburb N Magistrates’ Court, on 12 April 2022.
During the course of my questioning of him, Mr Rosic reiterated that he was feeling unwell and gradually began to slide from his chair in the witness box, until he was lying on the floor. It was impossible to question him given his posture. In these circumstances, I directed that an ambulance be called. As a consequence, Mr Rosic left the court precincts, later that morning, by ambulance, after having been attended to by security officers.
In my assessment, Mr Rosic’s response to these proceedings has been unacceptable. I concede that he may be significantly unwell, including the possibility that he suffers from a psychiatric disorder, which inhibits him from engaging in a useful way with the proceedings. However, the material which he has provided falls far short of establishing either of these factors, which he has not previously raised with the court.[17]
[17]See MZZGY v Minister for Immigration & Border Protection [2014] FCA 488 at [13] per Davies J.
I also accept that Mr Rosic cannot be regarded as a sophisticated person in terms of the legal process. I also accept that the pathway which he (and indeed Ms Rosic) must follow in order to resolve the controversies between them is one marked by many gateways and twists and turns, which are not always amenable to a ready and obvious comprehension. These include, not the least, the embargo on Mr Rosic being able to cross examine Ms Rosic.
In all these circumstances, I also accept that the court process is itself inherently stressful and demanding of those who must utilise it. However, the fact remains that Mr Rosic has consistently not done what was expected of him and has not taken advantage of what assistance has been available to him, in the form of the additional appointment with Ms K and the legal aid available through the Commonwealth Family Violence and Cross-Examination of Parties Scheme.
In addition, although I concede that I do not have any definitive medical explanation as to why Mr Rosic behaved in the manner in which he did on 12 September 2022, I am concerned that in the light of other aspects of his behaviour, he has not been fully candid with the court and has been inclined to frustrate rather than assist its processes. His presentation, although quite conceivably medically explicable, seemed to me to be bizarre in the extreme.
Necessarily, given the structure of the Family Law Act and its focus on the best interests of any child concerned, I must also be concerned at the implication of Mr Rosic’s behaviour on X, particularly given the inchoate suggestion, in Dr Q’s report of him being at risk of suicide.
Up until the stage of the final hearing, as I will detail in greater detail in due course, the wife has agreed to a range of orders which have seen X spending regular periods of time with her father. Although it has also been her position that Mr Rosic has not been reliable in his attendance on the child and X herself has not been particularly amenable to spending time with him.
Nonetheless, when she attended upon Ms K, for the purposes of the Family Report, Ms Rosic indicated her willingness to an order allowing continuing contact between the two, albeit on a scaled back basis. In her report, notwithstanding her reservations about Mr Rosic, arising from his failure to attend upon her; and explain why he had not undertaken the anger/stress management therapy directed towards him or the parenting course; Ms K endorsed some ongoing time between father and child.
As at 12 September 2022 this was no longer her position. On 6 September 2022, the wife filed a further amended application in which she abandoned her position that the husband should continue to have defined periods of time with X. Her position is that there should be no time. She also significantly altered the final property orders which she sought.
Following the medical withdrawal of the husband, she proceeded with her application and indeed the property aspect of her case, on the basis that the case remained undefended. She gave some brief evidence in respect of her changed position regarding time spending with X. I found her to be an honest and compelling witness.
In my assessment, she cannot be described as an unreasonable person. Rather, she presented as a person who was at the end of her emotional tether, with her former husband, who would not let her be, regardless of how she attempted to placate him. In particular, I do not think that her emotional reaction and asserted fear of Mr Rosic was feigned. Her tears shed in the witness box were genuine. I accept her evidence unequivocally that she is scared of Mr Rosic and, in my assessment, she has objectively reasonable grounds to be so, given his persistent attitude towards her.
At the outset of the proceedings, Mr Robinson counsel for the ICL, had been instructed to oppose any order resulting in the husband having no time with X, given the concessions Ms Rosic had earlier made to Ms K. In this context, he vigorously cross-examined Ms Rosic about her volte face. She indicated that she had been influenced by police records obtained for the case, which indicated Mr Rosic had taken X to police in January and October of 2021 in the context of the child having been allegedly assaulted by Mr J.
Mr Rosic has not ventilated these concerns directly with the court. From the wife’s perspective, this behaviour replicates Mr Rosic’s earlier conduct, in the period shortly after the parties separated, when he took the child to numerous medical practitioners in the context of making allegations that she had been physically assaulted by her wife. None of these complaints were substantiated. I accept her evidence that she believes that it emotionally harmful for X to be taken to police to make complaints about her mother at the behest of her father.
The most recent police entry, in respect of the complaint of 23 October 2021, concludes as follows: police noted that there had been similar reports in the past and when X is spoken to away from Mr Rosic, her version of events differs from her father’s.[18]In this context, the wife was concerned that the husband’s conduct was potentially harmful to the child. Mr Robinson pointed out that the complaints in question were now somewhat dated. This is so but does not, in my view, affect the bona fides of the wife’s concerns, given it is her position that she herself had only recently learnt of the complaints when her solicitor had obtained the police records.
[18] See Exhibit -2 to affidavit of Ms Rosic filed 8 August 2022.
From my perspective, there was some irony in the wife being cross-examined with some vigour by the ICL in the prevailing circumstances. In my view, the husband’s conduct on the day of the trial; his lack of cooperation with the trial process to date; his failure to engage with the anger management therapy to which he had ostensibly agreed; and the unelaborated upon medical certificate which he had presented to the court; created a significant level of doubt as to the safety of X in his care, notwithstanding the wife’s earlier agreement that the child should spend time with him.
In these circumstances, I requested Mr Robinson obtain up-dated instructions from Ms O’Brien as to whether her view had changed in the context of recent developments. In this context, I note that Ms O’Brien had apparently recently met with X. However, I have not been provided with any formal account of what was said between the two. Mr Robinson later indicated to the court, Ms O’Brien was no longer pushing for time to continue.
Given the sense of disquiet the husband’s presentation left and his lack of proper engagement with the court, I elected to make the following orders in respect of X:
1.The Applicant mother have sole parental responsibility for the child X born in 2015.
2.The said child do live with the mother.
3.Pursuant to section 68B of the Family Law Act 1975 the Respondent father is restrained and an injunction issues restraining him from:
(a)Removing the said child from the mother’s care; and
(b)Attending at the said child’s school of attendance as well as any extra mural activities attended by the said child including any Country B Dancing or Country B School.
4.A copy of these Orders are to be served personally on the Respondent father by the Applicant’s solicitor.
5.The Respondent father has leave to apply to set aside these orders within 42 days of today’s date PROVIDED that he comply with the following:
(a)He file and serve an Affidavit detailing the reasons he failed to attend upon the Family Report writer, Ms K, for the purposes of preparation of such a report; failed to engage with Mr D or similar therapist in respect of obtaining therapy for anger and stress management; an explanation as why he has not engaged in the Circle of Security and Kids Are First parenting courses, as ordered by the court; and a discharge summary form from the hospital to which he was taken by ambulance on 12 September 2022.
6.The order for the appointment of the Independent Children’s Lawyer is to be discharged at the conclusion of 42 days from today’s date PROVIDED the Respondent father has not complied with the requirements of paragraph 3 herein.[19]
[19] See Orders of Judge Brown dated 12 September 2022.
In making these orders, I was strongly influenced by the wife’s evidence filed in the proceedings to date, which raised significant concerns regarding her exposure to coercive and controlling behaviour. In addition, I was concerned that Ms K had not had an opportunity to observe Mr Rosic interacting with X and, as previously indicated, she had recommended the court be cautious in the light of the husband’s failure to engage with the professionals to whom he had been directed.
It is now necessary to turn to the wife’s evidence in more detail, before turning to the relevant legal principles and a determination of what should occur in respect of the property aspects of the proceedings. The major difficulty being Mr Rosic’s lack of cooperation with the legal process instigated by the wife.
THE WIFE’S CASE
It is Ms Rosic’s case that during the parties’ marriage, both before and after the couple left Country B, she was subject to coercive and controlling family violence, of the most serious character, by Mr Rosic.
The parties were unable to leave Country B, between early-2012 and late-2014, whilst the Australian authorities processed the wife’s spousal visa application. The wife asserts that whilst she and the husband were living together in Country B, she was subject to a number of assaults by the husband, including being beaten, kicked and tasered. It is her case that the Country B authorities were disinterested in the husband’s violence towards her.
More significantly, it is her case that this violence continued after the family arrived, in Australia, during her pregnancy with X and after her birth. Police records obtained by the wife, indicate police were called to the parties’ home, between 2015 and January 2017, in respect of complaints of domestic disturbances between the parties.
Police were involved in the incident, which precipitated the parties’ final separation, which occurred on 5 January 2017. This was categorised by police as being an incident of domestic abuse indicative of high risk. The wife complained that the husband had assaulted her, with a kick to the leg, whilst she was nursing X. She further deposed that the husband had attempted to strangle her a few days earlier.
In these circumstances, the husband was arrested and Ms Rosic was named as the protected person in an interim intervention order issued at the instigation of the police. Later, the wife concedes that she approached police to have the charges withdrawn and the interim intervention order discharged. In this context, the police records noted that Ms Rosic had moved from Country B 2 years ago and did not appear to have much in the way of supports in Australia.[20]
[20] See Exhibit -2 to affidavit of Ms Rosic filed 8 August 2022.
It is the effect of the wife’s evidence that she was frightened of the husband and, as a consequence, was too scared to report incidences of family violence to police, which ranged from physical beatings, to psychological abuse and control and the withdrawal of financial support. In this context, Ms Rosic has deposed as follows:
I didn't have anyone when I moved to Australia with him and was alone in a new country and he knew that. He always threatened me that he owned me and could have me deported any moment.[21]
[21] See affidavit of Ms Rosic filed on 8 August 2022 at [35].
The wife also asserts that X was often exposed to these various incidents of family violence and the child was also subject to excessive physical discipline, from her father, on occasions.
In her affidavit evidence, in support of final orders being made, in her favour in respect of X’s care, the wife deposes as follows:
There were numerous other incidents of family violence during the relationship. Another incident occurred on 31 December 2016, on this occasion [Mr Rosic] grabbed me around the neck and strangled me. This was after I asked him to look after our daughter while I had a shower.
Incidents of family violence occurred monthly and sometimes weekly including [Mr Rosic] yelling at me, threatening to assault me and threatening to kill me as well as physically assaulting me financially controlling me (he controlled all the finances during our relationship) and generally controlling almost every aspect of my life. I was not allowed to do anything without his permission and would constantly have to account for every minute of my day. I believe that this was primarily driven by his extreme jealousy and insecurity.
Incidents included physical violence perpetrated by [Mr Rosic] against me including hitting kicking, pushing, strangling and throwing objects at me. Threatening to cancel my visa before I became a permanent resident and to take [X] from me stating that I would never see her again. Instances of extreme jealousy which then would lead to abuse.
On one occasion [Mr Rosic] took a knife and threatened me with it while I was holding [X] I had to hide under the table and was extremely afraid. I also didn't want our child to witness that and I was trying to protect her.
On another occasion he threw some wet wipes at me while I was holding [X] who was around 6 months old at the time, he missed me and hit the child.
He would threaten me many times not to dare call the police, this would also sometimes turn into him begging me not to call the police and saying that they would jail him and it would destroy our family. I would often not call or sometimes even if l initially called them, he would beg me to not tell them anything or threated me and I would not tell the police anything once they arrived and just say it was just an argument when in fact it was a lot more.
He would take my car keys with him when he left the house so that I couldn't go anywhere.
He constantly threatened me with deportation.
He would yell and scream at me, and [X] would be present and witness it all. Often the child [X] would cry.
He would tell me who I could and couldn't be friends with and would ban me from being friends with certain people. He would ban me from seeing friends because he was also afraid I would tell them what he has been doing to me.
My bank card was always with him, he took it from me and I never had access to it. He would not give me any money. If we needed anything, he would go with me and purchase it. I never had any money on me cash or card. I was entirely reliant on him. He had complete control.[22]
[22] See affidavit of Ms Rosic filed on 8 August 2022 at [45]-[55].
The gravamen of these complaints is that there was a significant power imbalance between the parties as a consequence of the wife’s immigration status and her lack of family and financial support in Australia. The threats and conduct of the husband were directed towards controlling and coercing the wife, who must be regarded as highly vulnerable given her situation at the time.
It is the wife’s case that she was assisted to leave the marriage by workers from the Northern Domestic Violence Service, who initially placed her and X in secure accommodation. Apart from some incidents where Mr Rosic has withheld X from her, the evidence is unequivocal that Ms Rosic has been X’s primary carer since separation and almost certainly beforehand.
THE INSTIGATION OF PROCEEDINGS
It is the wife’s case that between separation and the early part of 2020, she agreed to Mr Rosic seeing X regularly. It is her position that she wanted the child to have a good relationship with her father and she herself to have a workable and cooperative parenting relationship with the husband.
At some stage, in the early part of 2020, the wife commenced her current relationship with Mr J. This seems to have been the catalyst for the parties’ relationship taking a turn for the worst, which has also had the effect of rendering the resulting proceedings extremely difficult to manage.
In this context, it is the effect of the wife’s evidence that the husband has a jealous personality and is fixated on her. Accordingly, he reacted in an extreme manner, when he learnt of her relationship with Mr J.
In this context, the wife deposes as follows in respect of the husband’s relationship, with X, between 5 January 2017 and 18 May 2020:
I have never stopped [Mr Rosic] from spending time with [X]. I have continually tried to promote their relationship as much as I could but for some reason [Mr Rosic] seems to be fixated on me and not on his relationship with [X].
Initially post separation the only thing I asked of him was to please let me know in advance if he wanted to spend time with her so that we could have a life and make plans of our own. He refused to have any set times with her or to at least let me know a day or two in advance. His position was that he will see her whenever he wants and suits him and there is nothing, I could do about it.
Prior to Monday 18 May 2020 he would see her sporadically when it suited him. Sometimes weekly on the weekend (say from Saturday after work around 6.30pm until 5pm on the Sunday), sometimes a few months would pass he would not see her. I never stopped him from seeing her he would just get angry and as a result not see her. He also would say "I work you don't" so would refuse to have her on weekdays.[23]
[23] See affidavit of Ms Rosic filed on 8 August 2022 at [58]-[60].
In mid-May of 2020, the husband sent multiple abusive text messages to the wife centred on her relationship with Mr J. She complained to the police about the husband’s conduct on 16 May 2020. On the following Monday, 18 May 2020, the husband attended upon X’s school and advised that she had a dental appointment, which she needed to attend with him.[24] This was not true.
[24] See affidavit of Ms Rosic filed on 8 August 2022 at [67]-[76].
Accordingly, when the wife attended at the school at the end of the day, to collect X as normal, she discovered that the child had been removed without her knowledge. Necessarily, this caused her extreme upset and confusion. In the interim, the husband attempted to enrol X at alternative schools.
Despite the fact that the wife had been X’s primary carer, since the parties separated, the husband withheld her from her mother until Ms Rosic commenced proceedings, in this court, which she did on 24 May 2020, requesting an urgent listing, which was granted to 29 May 2020. On this occasion, I was persuaded that X’s best interest dictated that she should be returned to her mother’s immediate care, within the foyer of the Suburb N Police Station, later that day.
At this stage, I also made an order for the personal protection of Ms Rosic and X pursuant to section 68B of the Act, particularly that the husband be restrained from approaching the child’s place of residence of school or removing her from such school or any extra-curricular activity, which she attended from time to time.
The husband responded to the wife’s application on 28 May 2020. He asserted that he had not returned X to Ms Rosic because he had been concerned about her safety after the child had disclosed to him that her mother had hit her and screamed at her. He was not in a position to provide any independent evidence in support of these allegations, relying on only upon what the child had allegedly said to him.
On 20 July 2020, with the agreement of each of the parties, they were directed to attend the various parenting courses, to which reference has already been made. At this stage, they were also referred to a process of Family Dispute Resolution (“FDR”), under the auspices of the Legal Services Commission of South Australia.
In in this context, when the case returned to court, on 12 November 2020, they were able to agree on Mr Rosic spending regular periods of time with X. Essentially, it was agreed that she would spend time with her father on alternate weekends from midday on Saturday to the commencement of school the following Monday and in the other week of each school fortnight, from the conclusion of school Thursday until school recommenced the following day.
In addition, orders were made for the husband to spend time with X on special occasions and for extended periods of time in school holidays. The parties were referred to a further FDR in April of 2021. The hope being that at this subsequent conference, the parties could consolidate and extend the agreement reached between them.
In this context, it is the evidence of Ms Rosic that she attended the various conferences, with Mr Rosic, in good faith and in hope that negotiations with Mr Rosic would calm the whole situation down so that each of them could move forward with our lives.[25] This has not proved to be the case.
[25] See affidavit of Ms Rosic filed on 8 August 2022 at [108].
It is also the wife’s evidence, as filed in anticipation of the trial, that Mr Rosic was inconsistent in the time he took with X and, when the school was involved, he left the child at Out of School Hours Care (“OSHC”), necessitating her to have to come and retrieve X and, in respect of school holidays did not take his time but rather enrolled her at OSHC.
More significantly, it is the effect of her evidence that the various concessions, which she has made to Mr Rosic, in respect of him having regular time with X had little, if any effect, in reducing tensions between the parties or negating his involvement of the child in their conflicted parenting relationship.
Essentially, she alleged that Mr Rosic continued in his attempt to co-opt X to make unfounded complaints to either police or medical practitioners that either she or Mr J were abusing her and this, of itself, was emotionally abusive of X.
On 17 May 2021, whilst acting on his own behalf, the husband filed an application seeking that both the wife and Mr J undergo a hair follicle drug test on the basis that they were subjecting X to continual abuse. Apart from his assertion of this fact, in my view, Mr Rosic was not able to provide any cogent evidence to support his allegation that the wife was either drug dependent or subjecting X to abuse. He did not, in any event, serve the application on the wife.
On 7 June 2021, the husband filed an affidavit, which he had prepared himself. To this was attached a variety of documents, particularly letters from medical practitioners, which were directed to establishing that the wife had subjected X to significant abuse and neglect. These include the following:
·Dr R dated 29 August 2020, to whom the husband reported that X had been physically abused since May of last year. The child apparently confirmed this account but the doctor concerned described her as playful and active with no evidence of bruises seen on her face, hands, leg or body.
·An unidentified letter dated 29 August 2020 from the S Medical Centre to Government of Child Protection (sic) indicating that the father had reported that X had been physically abused. The unspecified doctor indicates that he questioned the child in relation to this treatment but the child’s responses are not included.
·Dr T dated 25 October 2020 indicating Mr Rosic reported the child had constant bruising. X apparently reported that her mother inflicted the bruises and she did not wish to return to her.
·Dr Q dated 29 January 2021 referring the child to the Staff Government of Child Protection SA (sic) requesting an urgent assessment of X’s current social/housing situation after the father told the doctor that X had told him of being hit on her head, shoulders and feet by an open hand. A bruise on her left shoulder and lower leg/shin area was noted.
·A series of photocopied coloured photographs, presumably taken by Mr Rosic of X, which show small bruises or abrasions.
In periods since the filing of this affidavit, during which he has been legally represented, Mr Rosic has not attempted to expand upon this evidence or provide greater details of the incident raised with him with the various medical practitioners concerned.
In an affidavit filed on 8 June 2021, Ms Rosic deposes as follows:
[X] has told me that her father tells her that mum beats her and then makes her say it out loud and show her bruises on her legs while he is recording her. I am extremely concerned for my child if she is being subjected to this behaviour by the father. I have been told by some members of the [Country B] community that some people in the community have seen this video.
I absolutely deny any allegations about me hurting our daughter. If she has some bruises, these are through playing and being active. She is a very active child; she also plays sports like soccer.[26]
[26] See affidavit of Ms Rosic filed on 8 June 2021 at [29]-[30].
In the past, concerns relating to the wife’s treatment of X had been referred to the Department for Child Protection. It reported that its records indicated that there was a significant history of domestic violence perpetrated by the father but otherwise there were no concerns suggesting the mother was experiencing poor mental health or was unable to provide appropriate care for X.
It was in these increasingly conflicted circumstances that on 8 June 2021, Ms Rosic amended her application to include a resolution of matrimonial property issues between the parties. In general terms, she proposed that the husband retain the E Street, Suburb F property in consideration of her receiving a cash payment, in such sum as the court determined to be just and equitable. She also sought a splitting order in respect of any superannuation entitlements held by Mr Rosic.
Accordingly, in practical terms, the achievement of such an outcome required the court to be in a position to ascertain firstly, what was the value of the property concerned and secondly, what was the extent of any liabilities attaching to it. Thereafter, following its assessment of the various contributions made by each of the parties, to the remaining equity, it would be in a position to ascertain what, if any, was a just and equitable sum to be paid to the wife.
In support of her application, Ms Rosic deposed that she was fearful that her application would enrage Mr Rosic, whom she believed was likely to be inclined to conceal property from her. She also conceded that when the parties began their relationship, she had minimal assets. It was her case that she had both been the parties’ primary homemaker and major carer of X as well as having engaged in casual work from time to time.
The husband responded to this application on 23 September 2021. At this stage, he had instructed solicitors to act on his behalf. On a final basis, he sought orders that X live with him and that the wife’s application for property settlement be dismissed.
In his supporting affidavit, Mr Rosic asserted that he had purchased a vacant parcel of land, on which the former family home at E Street, Suburb F had been subsequently constructed, in 2015, for the sum of $180,000.00. He asserted that he had borrowed the entirety of this sum, from his brother, pursuant to the loan agreement to which reference has already been made. Thereafter, Mr Rosic deposed that the dwelling on the property had been built in February 2017 for the sum of $180,000.00. As a consequence, the property was subject to a mortgage in an amount of $250,847.22.
In all these circumstances, Mr Rosic calculated the pool of matrimonial property and the liabilities referable to it to be as follows:
Asset
Value
The Former Matrimonial home (E Street, Suburb F)
$320,000.00
Husband’s Motor Vehicle 1
$1,000.00
Wife’s Motor Vehicle 2
$2,500.00
Wife’s Bank Savings
E$6,000.00
Husband’s Bank Savings
$40.00
Wife’s Household Furniture & Personal Property
$5,000.00
Husband’s Household Furniture & Personal Property
$2,500.00
Total Assets
$337,040.00
Liabilities
Mortgage secured over former matrimonial home
$250,847.22
Loan owed to Mr H
$180,000.00
Statutory charge owed by husband to Legal
Services Commission
Unknown
Husband’s combined Commonwealth Bank Visa card debts
$10,400.00
Total Liabilities
$441,247.22
Net Asset Pool
($104,207.22)
Accordingly, it is the effect of Mr Rosic’s evidence that there is no equity to be divided between the parties. In addition, he has disclosed a modest amount of superannuation of less than $4,000.00. The wife asserts that she has superannuation of just over $1,000.00.
In September 2021, Mr Rosic asserted that he was employed as a manual worker by a construction company earning approximately $784.00 per week. Ms Rosic deposed that she was employed as a carer by the Employer U and received a parenting payment benefit, her earning was $864.00 per week. Each party asserted that their recurrent expenditure either equalled or exceeded their weekly income.
The wife’s major expenditure was her rent of $260.00 per week; whilst the husband’s major expense was his weekly mortgage payment of $420.00 per week. It is his position, which does not appear to be challenged by the wife, that he has paid the mortgage payments throughout the parties’ relationship and afterwards. Currently, Mr Rosic pays a modest amount of child support, for X, in an amount of $22.00 per week.
As indicated above, shortly prior to the commencement of the trial, Ms Rosic also amended the final property orders which she seek. This amendment became necessary in the light of the husband’s failure to facilitate the valuation of the former family home and so the impossibility of identifying what, if any, equity exists in it.
In these circumstances, Ms Rosic seeks to evict the husband from the property and be appointed as trustee to secure its speedy sale. Upon its sale, she seeks that the proceeds, if any, be divided 70/30% in her favour to reflect her superior contributions, as a parent and homemaker during the marriage and afterwards and her on-going responsibilities to provide financial support for X, which most likely not entail any assistance from Mr Rosic.
It is the submission of her counsel, Mr Roberts that the loan agreement proffered by Mr Rosic is a self-serving sham, unsupported by any independent documentary evidence that there ever was such an advance. In addition, Mr H is not a party to the proceedings and has provided no evidence in them.
THE FAMILY REPORT
Ms K described the wife in the following terms:
[Ms Rosic] willingly engaged in the interview process and provided a clear and articulate narrative. She presented as having a secure primary attachment to [X] and to be a caring and capable parent. She impressed as being emotionally attuned to [X’s] needs and sensitive to these needs. She also impressed as being child focused and balanced in her views.[27]
[27] See Incomplete Family Report of Ms K dated 29 May 2022 at [22].
Of her interview with X, Ms K described the child in the following terms:
[X] presented as an endearing, friendly, talkative, bright and well-adjusted 8-year-old child. She easily engaged with the Consultant and provided what appeared to be an open and honest account of her thoughts and feelings. These were made in age appropriate language and were consistent with her tone and affect.
[X] reported that she now attended [V School] R to 7 and was in Year 2. She spoke positively of her experiences at school, reporting to have “fun” and “friends” and most of all loving the school canteen.
[X] spoke positively of her experience in her mother’s care. She loved watching movies and television with her mother, and also loved sometimes sleeping in her bed. When asked if there was anything she did not like about her mother, or her mother’s care, [X] stated in a happy and excitable tone, “I like everything at Mum’s house”.
……
[X] reported that she played club soccer and loved it. She proudly added that when she was only 5 years of age she scored a goal. She also reported to participate in dancing and [Country B] school on Friday and Wednesday afternoons, and that she liked both so much she wished they were on every day. [X] explained that her mother took her to these activities and that “Dad wouldn’t, not ever to the festival or the dance”. She went on to say in a matter of fact and sad tone of voice, “my dad never takes me, he doesn’t like my mum, he always says the F word and the S and D word”. When the Consultant sought clarification as to some of these words, [X] spelt out “dickhead” and “idiot”. She went on to explain that she would also overhear her father speaking negatively about her mother to her grandmother and grandfather, and also when her father was on the phone to people in [Country B]. She stated that this made her feel “sad”. She added, “and I get really angry”.
[X] added, “and my dad doesn’t cook good food and he’s jealous about Mum and [Mr J] but not me”. She also explained that her father did not like her new school and he preferred her previous school because it was closer to his house. She added again in a sad tone, “he’s always angry at everyone; he yells at me sometimes and he yells at my brother”.
When asked if [X] felt safe in each parent’s care, [X] stated that she did feel safe in her mother’s care but not her father’s care. She stated that this was because when he took her to the park he would expect her to play alone whilst he sat in the car on his phone. She stated that sometimes there were other children and parents present but other times she was the only one left in the park alone.
[X] understood what the current time spending arrangements were. She stated that in the future she would like to “stay with Mum the whole week”. [X] understood that this would mean no time with her father, and she explained it was because his food was “always yuck”, for example, cold chicken which was “gross”. In contrast she considered her mother to be a “really good” cook who always cooked her delicious foods.[28]
[28] See Incomplete Family Report of Ms K dated 29 May 2022 at [41]-[43] and [45]-[48].
In respect of her observations of X interacting with her mother and Mr J, Ms K described them as a delight to observe. The mother and Mr J were described as being attentive, confident and caring in their approach towards X, who in turn was described as being playful, happy and relaxed with them.
In her evaluation of the mother, Ms K formed the view that she was genuine in the expression of her concerns regarding X’s emotional and physical safety, whilst in the care of her father, particularly in respect of his reported propensity for violence, poor emotional management and anger control. To sum, Ms K considered that these factors were likely to have a potential impact on X’s sense of safety, whilst in her father’s care.
In addition, and in my view of some significance, Ms K considered that the disclosures which X had made to her could not be prudently discounted and added weight to the wife’s safety concerns. Ms K described X’s disclosures in the following terms:
She described her father as someone who was angry, often yelling, directly denigrating her mother with offensive language causing her to feel “sad” and generally providing a parenting environment that left her feeling unsafe. [X’s] disclosures appeared to be a reliable account of her personally held thoughts and feelings and to be a reflection of her own life experiences. As such, the Court would be recommended to add particular weight to her comments in interview when considering her future best interests for time spending with each parent.[29]
[29] See Incomplete Family Report of Ms K dated 29 May 2022 at [56].
THE NATURE OF AN UNDEFENDED HEARING
It is a significant thing for proceedings to be determined in the absence of evidence from one of the parties concerned. The court has an obligation to ensure that the parties to proceedings before it have an opportunity to participate in those proceedings. However, there must be limits on such an obligation, which cannot be indefinitely prolonged.
Before a person can be adversely affected by a judicial order, they must be afforded an adequate opportunity to be heard.[30] I am satisfied that Mr Rosic has been given an adequate opportunity to appear in these proceedings and put his position before the court.
[30] See Taylor v Taylor (1979) 143 CLR 1, 20 (Murphy J).
Mr Rosic applied for an adjournment at a late stage, after failing to provide a trial affidavit and more significantly to cooperate in the process required to value the E Street, Suburb F property. In my view, his stance throughout the proceedings to date has been one of obstruction. As previously indicated, he did not provide a proper medical basis for the adjournment. In these circumstances, I am suspicious regarding the manner in which he behaved when he did appear in court.
Ms Rosic is entitled to have her application, for settlement of property matters and to finalise arrangements for X, determined within a reasonable period of time, pursuant to the applicable principles of law. This is important given the significant delays which have arisen in the conduct of the case, none of which are attributable to any act or omission attributable to her.
As such, she needs neither Mr Rosic’s formal imprimatur nor his cooperation to have her application determined. Rather, there is an obligation, on Mr Rosic’s part, if he wishes to be involved in the proceedings, for him to attend at court as required and pursue any application put by him or on his behalf with due diligence.
The Federal Circuit Court and Family Court is a court of private law. It determines disputes, between parties, according to law. In this case, according to the provisions of Part VIII of the Act, which relate to the division of property following the breakdown of a marriage relationship.
The court cannot compel a party to engage with litigation. It is however obliged to give each party the opportunity to put evidence before the court and, if he or she wishes to do so, contest any evidence relied upon by the opposing party.
However, a party, whether by intransigence, disinterest or manipulation cannot succeed in denying an applicant a just resolution, according to law, to his or her application, by choosing not to take part in proceedings because they do not proceed in the manner of his or her preference. That would be fundamentally unfair to the opposing party and an affront to the proper administration of justice, which requires that a properly instituted application be finalised within a reasonable period of time relative to the complexity and issues raised in such an application.
Part 10.6 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules2021 (Cth)[31] deals with the court’s authority to enter judgment against a respondent if that respondent defaults in complying with a court order, or fails to prosecute any proceedings with due diligence.
[31] Hereinafter referred to as “the Rules”.
Pursuant to rule 10.26 a party is in default if, among other things, he or she has failed to:
·comply with an order of the court in the proceedings; or
·produce a document as required; or
·do any act required to be done by these Rules; or
·prosecute the proceedings with due diligence.
I am satisfied that Mr Rosic has not prosecuted the proceedings with due diligence and has failed to comply with numerous orders of the court. In particular he failed to attend upon Ms K; he has failed to file a trial affidavit; he has not allowed the valuer to enter the former family home; he has missed several court mentions.
In these circumstances, pursuant to the provisions of rule 10.27(3) Ms Rosic is entitled to seek that the court enter judgment in her favour, on whatever terms the court considers just, on an undefended basis.
However, this power does not obviate the complexities inherent in the case nor negate the court’s obligation to ensure that the outcome, notwithstanding Mr Rosic’s obstructions, is a just and equitable, according to law. The court’s pre-eminent responsibility is to ensure a just result between the parties, notwithstanding the failure of Mr Rosic to participate properly in the proceedings.
Accordingly, the dilemma facing the court is clear. The only way in which the value of the E Street, Suburb F property can be determined is by directing its sale. Such an intervention will crystallise the amount owing to Company G, as it is secured by mortgage on the property. The sale may also flush out whatever, if any, is the equitable interest said to be owed to Mr Rosic’s brother.
However, to compel such a sale runs the risk of being perceived as a draconian outcome, particularly if what Mr Rosic asserts is true and there is no equity available in the property. Such an outcome will only intensify Mr Rosic’s sense that he is being unfairly targeted and has been unfairly and arbitrarily deprived of his home. Necessarily this will only exacerbate the acrimony in the relationship between the parties, which will not be helpful to X.
I am also conscious of the extraordinary amount of public funds which have been expended upon what should be regarded as a not unduly complex, in legal terms, property settlement. The wife is entitled to have an idea of what is the equity in the relevant property. She lived in the property and clearly, she has made contributions, in various and disparate ways, which have benefited the family as constituted by her, X and the husband.
In this context section 190 of the FCFCOA Act is relevant. It provides a directive to the court to, in the application of its practice and procedure, to facilitate the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible. This reflects the objects of the FCFCOA Act as contained in section 5 and is referred to as the court’s overarching purpose.
Pursuant to section 190(2) the overarching purpose also includes such case management concerns as the efficient use of the administrative and judicial resources of the court; its caseload as well as efficiency and timeliness. Division 2 of the Federal Circuit and Family Court is a busy court of first instance. Part of its raison d’être is to facilitate the just resolution of disputes through the efficient allocation of its resources.
Rule 1.04 of the relevant rules for Division 2 of the court delineates the obligation of parties to assist the court to achieve its objectives delineated in the overarching purpose. Parties are required to avoid undue delay, expense and technicality. They are also directed to consider options for primary dispute resolution as early as possible.
Due, in my view, in large part, to the husband’s approach to this litigation, none of these objectives have been achieved. The proceedings have been protracted and the expense incurred grossly out of proportion to the asset backing of the parties. Accordingly, if the outcome currently proposed by the wife can be considered draconian or harsh, it is largely as a consequence of the husband’s conduct. However, the fact remains that the court must be cautious at the prospect of it inadvertently engineering an outcome which can only be considered pyrrhic, so far as the wife is concerned. At the same time, the court cannot blithely look away and tacitly reward or endorse the husband’s non-compliance and obstruction.
LEGAL PRINCIPLES APPLICABLE
Property
The process to be followed for the division of the parties’ property is well-established by law.[32] The relevant legal principles are primarily contained in sections 79 and 75(2) of the Act. I am required to follow a number of specific steps.
[32] See Ferraro v Ferraro (1992) 16 Fam LR 1; Clauson v Clauson (1995) 18 Fam LR 693; Hickey & Hickey (2003) 30 Fam LR 355.
In the first step, I must ascertain what are the parties’ assets and liabilities available to be divided between them. The general rule is that those assets are to be determined as at the date of trial.[33]
[33] See Biltoft & Biltoft (1995) 19 Fam LR 82.
In the second step, I must ascertain the contributions, which each party has made towards the matrimonial pool of assets, as I find them, following the first step. Contributions fall into two broad categories.
The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property.
The second kind is contributions to the welfare of the family: in the words of the section, “the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.”[34]
[34] See Family Law Act1975 (Cth) s 79(4)(c).
It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
At this second stage, the task set for me requires the balance and comparison of a multiplicity of contributions, many of which are necessarily different in nature, within the framework of a marriage.
Many contributions in a marriage, such as being a homemaker, do not result in the direct acquisition of assets. They are also difficult to value in absolute dollar terms. In contrast, the monies contributed by a wage earner are easier to quantify. However these difficulties do not absolve the court of its obligation to undertake the required assessment of contributions.
The court’s discretion is a wide one but must be exercised judicially. The task conferred is to weigh and assess contributions, which are necessarily disparate in nature. In summary, contributions, within the framework of a marriage, which are different in quality and nature must be compared, in order to achieve a just and equitable division of property. It has been referred to as a holistic exercise.[35] Certainly, it is not to be approached as a simple accounting or arithmetical exercise.
[35] See Watson & Ling [2013] FamCA 57 at [13] (Murphy J).
The third step involves the assessment of the parties’ prospective needs, by reference to the factors set out in section 75(2) of the Act. Pursuant to section 75(2)(o), the court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
Finally in determining what order the court should make under section 79, the court must be satisfied that in all the circumstances, it is just and equitable to make the relevant orders. Overall, it is the justice and equity of the actual orders that the court must consider.[36]
[36] See Russell & Russell (1999) 25 Fam LR 629, 644 [80] (Ellis, Finn and Mushin JJ).
Obligations of disclosure
The parties to proceedings, under the Family Law Act 1975 (Cth), involving property issues are subject to a duty to make full and frank disclosure. This process is mandated by Rule 6.06 of the Rules. It is facilitated by the requirement to file a statement of financial circumstances and the production of a stipulated number of financial records, such as tax returns and superannuation records.
However, the duty to provide full and frank disclosure does not arise solely under the court’s rules but is also a fundamental principle of common law. This duty has been described as being “fundamental to the whole operation of the Family Law Act in financial cases…”[37]
[37] Per Smither J in Briese & Briese (1986) FLC 91-713 at 75,181 cited with approval by the Full Court in Black & Kellner (1992) FLC 92-287 at 79,133.
I am satisfied that the husband has not been candid to the court in regards to his financial circumstances. In my particular, he has actively obstructed the process put in train to ascertain the value of the E Street, Suburb F property. Necessarily, this process is directed towards identifying what is the extent of the parties’ marital pool. His obstruction, in this regard, does not permit the court to have any degree of confidence about other aspects of his financial disclosure.
Parenting Issues
Part VII of the Act deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration.[38]
[38] Family Law Act 1975 (Cth) s 60CA.
Section 60CC creates two classes of considerations, which apply to the court’s determination of how a child’s interests will be best served in proceedings before it. They are designated as primary considerations of which there are two and additional considerations, of which there are some fourteen in number.
The two primary considerations, set out in section 60CC(2)(a) and (b), are as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
In the past, these considerations were not formally ranked in regards to one another. They are now. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations, to give greater weight to section 60CC(2)(b), which is the primary consideration relating to the need to protect children from physical or psychological harm, from being subjected to or exposed to neglect, abuse or family violence.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration”.[39] Future protective issues for a child are the court’s priority.
[39] Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth).
Accordingly, the legislature has directed the court, in respect of how a child’s best interests are to be secured, to give pre-eminence to protective concerns raised in respect of the child’s exposure to abuse, neglect and family violence.
Family violence is defined by section 4AB(1) of the Act. It means:
[V]iolent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
•an assault;
•a sexual assault or other sexually abusive behaviour;
•stalking;
•repeated derogatory taunts;
•the killing of an animal;
•preventing the maintenance of family ties;
•intentionally damaging or destroying property; and
•the withholding of financial support.
The above incidents are not, in themselves, definitional of family violence. Rather they are examples of conduct which may constitute family violence. The definition to be applied is contained in section 4AB(1) of the Act. The essential elements of the definition are that the behaviour in question, to amount to family violence must coerce or control another family member.
The behaviour need not be violent, in itself, or cause fear in the person to whom it is directed. It is a definition directed towards coercion. The impugned conduct is centred on power in relationships and the use of such power to control another family member.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.
Again, in section 4AB(4), the legislature has included examples of conduct which may amount to such exposure, which include:
•overhearing threats;
•seeing or hearing an assault;
•comforting or providing assistance to a member of the child’s family, following an assault;
•cleaning up after property has been damaged; and
•being present when police attend an incident involving an assault.
Again, these examples are not definitional of whether a child has or has not been exposed to family violence. What is pivotal is that the child concerned experiences its consequences. In my view, the evidence strongly indicates that X has been exposed to family violence as defined by the relevant legislation.
In addition, the evidence also indicates that Ms Rosic has been exposed to coercive and controlling behaviour, originating with Mr Rosic, which has caused her to be frightened. It seems more probable than not that the husband is in a state of denial about the implications of his behaviour and its potential emotional consequences for X. This was the most significant factor in me determining not to finalise the proceeding on the basis initially posited by Mr Robinson but rather discharge the time spending regime until Mr Rosic provided further evidence as directed.
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act. It means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
If X has been taken to medical practitioners and the police, by her father, in order to make complaints of having been harmed by her mother and these complaints are not congruent with either her experience of her mother, in my view, this has may have the consequence of causing a serious degree of psychological harm to X.
In addition, the husband’s allegations are not consistent with the observations and assessment of the relationship between mother and child undertaken by Ms K. In this context, it is significant, I consider, that Mr Rosic did not attend upon the family report writer, when given the opportunity to ventilate his concerns about Ms Rosic’s parenting of her.
CONCLUSIONS
I am satisfied that Mr Rosic has failed to comply with a number of directions of the court. In particular, he has not filed a trial affidavit; has not cooperated with orders relating to the valuation of the E Street, Suburb F property; and has failed to attend at court on a number of occasions. He has also failed to take part in the Family Report and so ventilate the concerns, which he has asserted he has in respect of X’s care to an independent and expert person.
I am satisfied that Mr Rosic’s obstruction of the court’s investigation into X’s best interest has occurred in the context of the mother and child being exposed to significant incidents of family violence and possible abuse emanating from him. Given the unusual way Mr Rosic presented in court, in the context of his obstructive behaviour and the fact that he has provided limited evidence regarding his alleged medical incompetence, I am satisfied that it is likely to be in X’s best interests that time between her and her father not occur until Mr Rosic provides further explanation.
As a consequence of Mr Rosic’s conduct thus far, Ms Rosic has been frustrated in her application for settlement of property orders. I acknowledge that it is probable that there is not a large amount of property to be divided between the parties and, in these circumstances, the consequence of compelling Mr Rosic to vacate the E Street, Suburb F property and then ordering its compulsory sale run the risk of being an outcome out of proportion to the issues which the case throws up and potentially being perceived as being draconian in nature.
However, this unpalatable option is wholly attributable to the husband’s actions. At this stage, there is no reliable evidence regarding the value of the property or the extent of its encumbrance. I can appreciate why Ms Rosic and those advising her greet the purported loan agreement between the husband and his brother with extreme suspicion given that its unsupported by any cogent documentary evidence indicating the advance made in the loan agreement actually occurred.
In my view, in order to accord justice between the parties, there must be a proper valuation of the property undertaken and it is incumbent upon Mr Rosic to provide evidence, if it is available, regarding the alleged advance made by his brother to him. The best evidence of this is likely to be proof of an actual transference of funds from one to the other. As the evidence, presently stands, I do not consider that there is sufficient evidence to establish the purported loan.
Although Mr Rosic is entitled to assert that there is no property to be divided between the parties and what property there is solely attributable to his efforts, he is not entitled to frustrate Ms Rosic’s application. There can be no doubt that she has an entitlement to bring her application on the basis of her contributions as a parent and homemaker and her significant level of prospective needs, following a relationship between the parties of around five years in duration.
Regrettably, as these lengthy reasons for judgment indicate, there has been little progress in the case to date and that lack of progress is, in my view, solely attributable to the obstruction and intransigence of the husband. The court cannot stand by and blithely countenance such obstruction. On the other hand, notwithstanding Mr Rosic’s conduct, which is open to stringent criticism, there is a real risk that in compelling the sale of the property, there will be an unfair outcome imposed upon Mr Rosic.
The court must attempt to balance the competing claims of the parties, whilst bearing in mind the fault to be attributed to Mr Rosic for frustrating the proceedings. Ultimately, if he refuses to cooperate with the process, the court will have no other viable alternative other than to direct the compulsory sale of the property. There must be a process put in place to finalise the proceedings, notwithstanding the husband’s lack of cooperation.
In this context, I have determined that if Mr Rosic does not comply with a number of specific orders, which will require him to outlay some expenditure, an order will be made directing him to vacate the E Street, Suburb F property in approximately three months’ time. If he fails to comply with this direction, a warrant of possession will issue to forcibly evict him from the property.
However, if the husband provides a valuation of the property, by a licenced valuer, at his own expense, to both the wife and the court; together with a contemporaneous statement of the mortgage amount owing to Company G; and evidence in the former of a contemporaneous bank transfer or bank statement that his brother Mr H advanced him the sum of $180,000.00 in or around October 2015; the warrant will not issue and the case will be listed for directions.
In the event the husband fails to comply with these directions, the wife’s application for property settlement will be re-listed for undefended hearing at a date to be appointed by the court, at which stage it is inevitable that it will be inferred that there is no relevant loan from Mr H relevant to these proceedings and, in these circumstances, it will assess the respective contributions of the parties to the net proceeds of sale of the E Street, Suburb F property and make any further allowance relevant to any factor arising from section 75(2) of the Act, without any reference to the husband.
I will reserve the wife’s costs arising from the aborted proceedings of 12 September 2022 to the final hearing of this matter. In this context, I will direct her solicitor prepare a memorandum of the quantum of costs likely to be sought.
As yet, I am unable to make any definitive findings as to why the husband had to leave court, by ambulance, on 12 September. In his absence, no orders have been made which are not capable of being reversed provided that the husband’s adopts a more proactive attitude to the wife’s application. The onus is on him. If he declines to do what has been directed of him, the court will be left to conclude that there is substance to the wife’s contention that he is only motivated to thwart her application. In these circumstances, it must be the court’s responsibility to bring the litigation to an end.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and eighty-three (183) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 23 September 2022
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