Roussos and Vasco & Anor
[2014] FamCA 1053
•21 November 2014
FAMILY COURT OF AUSTRALIA
| ROUSSOS & VASCO AND ANOR | [2014] FamCA 1053 |
| FAMILY LAW – CHILDREN – Where the wife seeks parental responsibility, that the children live with her and spend time with the husband – Where the husband seeks an order for equal shared parental responsibility and that the children live week about with each parent, or alternatively, that the children live with him and spend time with the wife – Where the wife seeks to change the children’s school – Where the husband has expressed clear animosity towards the wife – Where the husband has little ability to communicate and co-operate with the wife – Where there has been family violence between the parents – Where it is found that the parents do not currently have a capacity to reach a joint decision about a major long term issue affecting the children because of the high level of conflict between them – Where it is not in the children’s best interests for the parents to have equal shared parental responsibility – Order made that the wife have parental responsibility on the condition she consult with the husband and make a genuine effort to come to a joint decision with the husband –Where it is found that it is in the children’s best interest to live with the wife and spend time with the husband. FAMILY LAW – PROPERTY – Where there has been a significant material non-disclosure by the husband when the parties entered into consent orders in 2010 – Where the wife signed consent orders which were objectively unjust and inequitable – Where there has been a miscarriage of justice by reason of the husband’s failure to disclose relevant information – Order made that those consent orders be set aside pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth)(“the Act”) – Where the wife seeks a declaration that the second respondent holds a particular property on trust for the husband – Where the wife seeks that that property be transferred to her or that she be appointed trustee for the sale – Where the wife seeks a declaration that any loan between the second respondent and husband be found to be a sham and any relevant instrument be set aside pursuant to s 106B of the Act –Where the husband opposes the wife’s applications – Where the second respondent opposes the wife’s application and seeks the husband pay to her $600,000 plus interest – Where the husband says he lost all his money through gambling activities and the receipt of sexual services – Where it is found that the second respondent and husband colluded to alienate assets so those assets were beyond the reach of the wife – The purported loans by the second respondent to the husband were a sham – Where an order is made pursuant to s 106B of the Act to set aside a related mortgage – Second respondent is declared to hold right, title and interest in a particular property on behalf of the husband as beneficiary – Order made that the second respondent transfer that interest to the husband – Order made that the husband transfer to the wife his entire interest in that particular property including his current beneficial interest – Where the wife made significant contributions during the marriage and has continued to fulfil the role of parent since separation – Where it is unknown as to what the husband has done with the majority of assets – Where it is determined that it is just and equitable for the wife to receive any assets that remain |
| Evidence Act 1995 (Cth) Family Law Rules 2004 |
| Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 Briginshaw & Briginshaw (1938) 60 CLR Callo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Ms Roussos |
| RESPONDENT: | Mr Vasco |
| 2nd RESPONDENT: | Ms Gianakos |
| FILE NUMBER: | SYC | 7622 | of | 2009 |
| DATE DELIVERED: | 21 November 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 8 - 11 October 2013; 31 October 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Todd |
| SOLICITOR FOR THE APPLICANT: | Jordan Djundja |
| COUNSEL FOR THE RESPONDENT: | Mr Cook |
| SOLICITOR FOR THE RESPONDENT: | KP Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Freidlander |
| SOLICITOR FOR THE 2ND RESPONDENT: | J. Kartsounis & Co |
Orders
Parenting
The wife shall have parental responsibility for making decisions about major long term issues about the children, W Vasco born … 2004 and T Vasco born … 2005 (“the children”) on the condition that:
1.1.the wife will contact the husband in writing and provide her views about any such issue;
1.2.The wife shall request the husband to provide his views in writing with regard to any such issue;
1.3.The wife and husband will further communicate in writing and make a genuine effort to come to a joint decision about any such issue; and
1.4.if no agreement is reached between the parties, then within 14 days the wife shall make the final decision and advise the husband in writing of the decision about any such issue.
1.5.To avoid any uncertainty, the wife is to have sole responsibility for giving consent and making arrangements for the issue of the children’s passports and is to have the right to make the final decision in relation to any decisions about education (including home tutoring) or health issues in respect of the children.
The parents shall each have responsibility for the day-to-day decisions in relation to the care of the children during the periods that the children are in his/her care respectively. To avoid doubt, this order does not give the husband the right to make the final decision about any significant tutoring the husband wishes the children to have while they are with him, if there is disagreement about that tutoring taking place.
The children live with the husband as follows:
3.1.On every alternate Friday from 3.00pm until 8.00pm the following Tuesday.
3.2.The first half of all gazetted school holiday of every year (excluding Easter, Christmas Eve/Day, and New Years Eve/Day which are the subject of separate orders).
3.3.In the event Father’s Day falls on a weekend when the children are not with the husband, the children are to be with their father on Father’s Day weekend from 3.00pm Friday to 8.00pm Tuesday and the children shall not have time with their father on the next weekend pursuant to order 3.1 herein.
3.4.In the event that any weekend falls on a long weekend, including a Friday, then the time that the husband time spends with the children shall commence at 6:00pm on Thursday.
3.5.On the husband’s birthday:
3.5.1.If such a day falls on a weekend, and such weekend is not a weekend that the husband is spending time with the children, from 9.00am to 6.00pm on that day.
3.5.2.If such day falls on a school day and is not a day that the children are otherwise spending time with the husband, from after school until 8.00pm.
3.6.On children’s birthdays:
3.6.1.If such a day falls on a school day and the children are with their mother, then from after school until 6.00pm.
3.6.2.If such a day falls on a weekend and the children are with their mother, then from 9.00am until 1.00pm on that day.
3.6.3.If such a day falls on a holiday, when the children are otherwise spending time with the wife, then from 9.00 am until 1.00pm on that day.
3.7.From 6.00pm on every alternate Christmas Eve commencing 24 December, 2015, until 1.00pm on 25 December of that year (with the children to be with the wife at these times in every other alternate year).
3.8.From 6:00pm on every alternate New Year’s Eve commencing 31 December 2015 until 1:00pm New Year’s Day (with the children to be with the wife at these times in every other alternate year).
3.9.On every alternate Greek Orthodox Easter commencing Easter 2015 from 3.00pm on Good Friday until 6.00pm on Easter Sunday (with the children to be with the wife at these times in every other alternate year).
3.10.Such further times as the parties may agree from time to time.
The children live with the wife at all times other than those referred to in order 3 above.
In the event the children are with their father on their birthdays:
5.1.The children are to be with their mother from after school on that day until 6.00pm.
5.2.If such a day falls on a weekend, then the children will spend time with the wife from 9.00am until 1.00pm on that day.
5.3.If such a day falls on a holiday, the children will spend time with the wife from 9.00 am until 1.00pm.
On the wife’s birthday:
6.1.If such a day falls on a weekend, and such weekend is not a weekend that the wife is spending time with the children, the children will spend time with the wife from 9.00am to 6.00pm.
6.2.If such day falls on a school day and is not a day that the children are otherwise spending time with the wife, the children will spend time with the wife from after school until 8.00pm.
Both parties do all things necessary and in a timely manner to provide all authorities necessary to enable the husband to communicate with the children’s school and request all information and copies of documents be sent to both parents.
Apart from changeovers which happen at the children’s school, if the children are with their mother at the commencement of a period of time when they are to be with their father, the wife is to deliver the children to the husband’s residence at the commencement of the children spending time with him and the husband is to deliver the children to the wife at her usual place of residence at the conclusion of the children’s time with the husband.
Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975 (Cth) (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Property
Pursuant to s 79A(1)(a) of the Act, the orders for property settlement made 30 June 2010 be set aside.
The application of the second respondent, Ms Gianakos, be dismissed.
The second respondent, Ms Gianakos, be declared to hold any right, title and interest in the real property situated at Town F (Folio Identifier …) (“F property”) on behalf of the first respondent, Mr Vasco, as beneficiary.
The second respondent, Ms Gianakos, forthwith transfer the whole of her right, title and interest in the F property to the husband, by delivering to the husband a duly executed transfer of such right, title and interest.
The husband is to pay stamp duty on the transfer referred to in the preceding order together with any associated costs of ensuring that that transfer is in registrable form, and in the event the husband fails to do so within 28 days, the second respondent is to pay the stamp duty on the transfer, and that payment is to be an enforceable debt owed by the husband to the second respondent.
It is noted that a finding is made that the second respondent did not lend the husband the total principle sum of $600,000 by payments to the husband dated:
15.1.23 January 2012 - $250,000;
15.2.23 January 2012 - $100,000;
15.3.30 August 2012 - $110,000;
15.4.30 August 2012 - $140,000
Pursuant to s 106B of the Act, the unregistered mortgage between the second respondent and the husband dated 25 September 2012 securing the sum of $600,000 purportedly repayable by the husband to the second respondent, be set aside.
Pursuant to s 79 of the Act an order be made in accordance with paragraphs 18 to 20 below.
The trustees for the sale of the property at Suburb K pay the whole of the net proceeds of the sale currently held by them, or which in the future are held by them, to the wife.
Within 28 days the husband transfer to the wife his right, title and interest in the F property, including providing transfers from the second respondent to himself and from himself to the wife in registerable form.
Each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.
Both the husband and the second respondent provide vacant possession to the wife of the F property within 28 days.
Liberty granted to any party to apply within fourteen (14) days for orders relating to the implementation of these orders.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of s 106A of the Act to execute such documents on behalf of such party.
Any application for costs be made within the time prescribed by the Family Law Rules 2004.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Roussos & Vasco and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7622 of 2009
| Ms Roussos |
Applicant
And
| Mr Vasco |
Respondent
And
| Ms Gianakos |
2nd Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings involve Ms Roussos (“the wife”), Mr Vasco (“the husband”) and Ms Gianakos (“the second respondent”), who is an unrelated third party but a close friend of the husband.
There are four broad controversies. Firstly, there are issues between the husband and wife as to what parenting arrangements should be made in relation to their two children. Secondly, there is the question of whether or not consent orders which were entered into by the husband and wife on 30 June 2010, should be set aside pursuant to s 79A Family Law Act 1975 (Cth) (“the Act”), or alternatively, that the time to review the Registrar’s decision to make those consent orders be extended. Thirdly, in the event that the wife’s application to set aside the orders, or have a hearing de novo in relation to the orders is successful, there is the question of what order under s 79 of the Act would be just and equitable. Fourthly, connected to the third question, is a significant issue as to whether or not the husband and the second respondent have involved themselves in a set of sham activities which have had the effect of removing from the husband any presently discoverable net property (after liabilities are taken into account).
For convenience, and in circumstances where all applications were to be heard together, evidence and submissions during the hearing in relation to the applications against and by the second respondent were dealt with first so the second respondent did not need to be at the hearing of the other controversies between the husband and wife. In this judgment however, I will deal with the parenting issues first, then deal with the application by the wife to set orders aside pursuant to s 79A of the Act, or alternatively to grant leave to the wife to review the registrar’s decision out of time. Given that the wife will be successful in her application to set aside the consent orders, I will then deal with the applications involving the second respondent. The fourth part of this judgment deals with what, if any, adjustment of property should be made between the husband and wife.
APPLICATIONS
Parenting
The wife seeks parental responsibility. She seeks the children live with her and spend four nights per fortnight with their father. The wife seeks to change the children’s school.
The husband also seeks an order for equal shared parental responsibility.
The husband seeks the children live week about. In the event that an order for equal time is not made, the husband sought the children live with him and spend alternate weekends with the wife.
Property
In relation to property, as indicated, the wife seeks the consent orders of 30 June 2010 be set aside pursuant to s 79A of the Act, or alternatively that the time to review the Registrar’s decision to make those consent orders be extended, and that such orders are set aside. At the outset of the hearing, the wife sought to receive 65 per cent of the proceeds of the sale of the matrimonial home, with the husband to bear the entirety of the mortgage liability incurred since 30 June 2010. In effect, this is an application that the wife receive the whole of the net proceeds of the sale of the matrimonial home at Suburb K (“the K property”) after the liability to Westpac Bank is taken into account. The wife did not seek to challenge the first mortgage on the matrimonial home to Westpac Bank. On 11 October 2013 I made orders for the sale of the matrimonial home and that the net proceeds be held in trust. A further order was made on that day that required the second respondent to remove a caveat over the K property to enable completion of the sale. The net proceeds of the sale were to be held in trust pending the outcome of these proceedings. Further machinery orders were made in relation to the sale of the K property on 31 October 2013
The wife seeks a declaration that the second respondent holds the property at Town F (“the F property”) on trust for the husband. The wife seeks that the property at Town F be transferred to her, or alternatively that she be appointed trustee for its sale. She further seeks a declaration that any loan between the second respondent and the husband be found to be a sham and, in so far as it is necessary, relevant transactions should be set aside pursuant to s 106B of the Act, including the unregistered mortgage which the second respondent holds upon the K property, which was the basis of the caveat lodged by the second respondent on that property.
The wife no longer seeks an order the second respondent discharge the current liability on the F property.
The husband seeks that the wife’s application in relation to property be dismissed.
The second respondent opposes the wife’s applications. The second respondent seeks an order that the husband pay to her the sum of $600,000 plus interest. She also seeks that those monies be fully or partly paid from the proceeds of sale of the K property in priority to any payment to the wife. She further seeks a declaration that neither the wife nor the husband have any interest in the property at Town F.
DOCUMENTS RELIED UPON
The documents the parties relied upon are set out in Schedule 1.
SHORT HISTORY
The second respondent was born in 1955 and is now aged 58 years old.
The husband was born in 1961 and is currently aged 53 years old.
The wife was born in 1979 and is currently aged 35 years old.
The husband and wife married and commenced cohabitation in 2003.
The parents’ first child, W, was born in 2004 and is currently aged 10 years old.
The parents’ second child T was born in 2005 and is currently aged nine years old.
The husband and wife separated under one roof in 2008. The parties physically separated in or around April/May 2010 when the wife left the former matrimonial home.
CREDIT
Wife
At no point in the wife’s evidence did I form the view that the wife was deliberately seeking to mislead the court.
The only relatively minor reservation I had about the wife’s oral evidence was when she was describing her conversations with the child T prior to T being interviewed by the family consultant. I formed the view that the wife may have glossed over precisely what it was that she had said to T.
Counsel for the husband did not make any submission about the wife’s credit.
Husband
The husband gave evidence in relation to two aspects of his financial dealings with the benefit of a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) (“the Evidence Act”). The husband asserted that he had not disclosed to Australian officials at the airport, when leaving the country, that he had approximately $300,000 cash in Australian currency in his possession in a carry-on backpack and was able to get that through airport security checks without detection. Putting aside consideration of whether it is inherently unlikely that security scanning of carry-on luggage would not detect the presence of $300,000 in cash, if what the husband says is true, the husband admits he has committed a serious offence.
The husband also admitted that he had colluded with a Mr G to invent letters to support loan applications for both himself and the second respondent.
Both the husband and the second respondent failed to give honest evidence about the deposits in cash into the second respondent’s accounts, and most obviously about nine deposits amounting to $83,000 between 27 January 2012 and 1 February 2012. I find that the source of these funds were monies withdrawn in that period from the husband’s account. The husband said that he lost all the monies from those withdrawals by gambling them away and that none of those funds were deposited into the second respondent’s account. The second respondent says the deposits came from cash she had secreted in her house. However, the documents from the financial institutions compel a finding that both the husband and the second respondent were fabricating their accounts about these transactions.
The husband made no secret of the fact that in his view the original property settlement, by way of payment of $40,000 to the wife, was fair. When she filed an application to attempt to reverse the consent orders, the husband sought legal advice about what the wife’s prospects of success in that application might be. He agreed that when he was told what her claim might be he was agitated and disturbed to the point that he wished to retaliate against the wife.
I find that the husband was motivated to take actions to place his assets beyond the reach of the wife.
A significant matter going to the husband’s credit relates to his non-disclosure in 2010 at the time consent orders were made of a significant insurance claim he was to receive from Westpac Insurance. The husband was not prepared to concede when giving oral evidence that he knew he was getting these funds at the time the consent orders were lodged but I find he well knew his entitlement to those funds. I discuss this matter below when dealing with the wife’s s 79A application.
The husband developed a narrative in which he described losing, by gambling, an amount of approximately $1.062 million (being the $600,000 he received from the second respondent plus the $462,000 he removed in cash from the mortgage facility on the K property in October 2012). Despite the magnitude of the alleged gambling losses at reputable casinos, the husband can provide little evidence of his activities. Crown Casino and The Star Casino have never heard of him. He says he lost at the Crown in Burswood, Perth, but there is no evidence he did. It is inherently unlikely that a player who has lost so much cash in such a reasonably short period of time, at a limited number of establishments, would leave virtually no trace of doing so. The husband is an experienced property investor and I do not accept his feigned ignorance of having no knowledge, or having made no inquiry about any benefits that might be available to him from the establishment where he lost so much money.
The husband gave inconsistent evidence about his fear of security risks. At one point I asked him why he went to a bank branch at Suburb R twice in the one day to firstly take out $40,000 and then take out $20,000. He indicated that it was because of security concerns. This does not sit easily with his later evidence that on 25 October 2012 he took the sum of $462,000 in cash in a backpack out of the bank with only his brother there to give some protection.
The husband conceded that although he was seeking assistance from a Dr Y, he did not at any time tell that professional, or any other doctor, that he considered that he might have had some type of gambling addiction.
Counsel for the husband submitted that in relation to the husband’s credit, it is not permissible to cherry pick admissions made by the husband and then make findings against his credit. The submission was to the effect that if some of what the husband says is relied on, then everything he says should be accepted. I am unable to accept that submission. It does not follow that the husband’s admission that he had been devious, means I should now trust him in everything else he says.
Unless there is no contest about a fact because it is agreed or inherently likely, I do not accept anything the husband says without there being objective evidence to corroborate his statement.
The second respondent
The second respondent and the husband are close friends. The second respondent has a close relationship with the husband’s mother.
The second respondent gave her evidence through a Greek interpreter, although it was obvious throughout that she had a good command of the English language.
The second respondent was given a s 128 certificate pursuant to the Evidence Act, to give evidence about the representation she made to the bank in respect of her monthly income. The second respondent asserts she was duped by the husband as much as the wife was duped by the husband. Throughout the second respondent’s evidence I found her protestations unconvincing. I find that the second respondent had been, and I find still is, a very close friend of the husband.
I have already mentioned that the second respondent has not been truthful about cash deposits into her accounts, particularly those between 27 January 2012 and 1 February 2012.
The second respondent gave false evidence about her dealings with the real estate agent when the F property was purchased and about how the deposit was paid to that agent.
The second respondent had difficulty in conceding that a number of entries on her Westpac loan application did not bear any relationship with what she asserted to be the true situation (that in itself may not be an unusual circumstance). However, the second respondent indicated in her loan application that the amount of cash or money in bank accounts she had at the date of the application, 14 December 2011, was in the sum of $48,000. As discussed later, the second respondent’s evidence of how much cash she had secreted in her home varied significantly between the start and the end of the hearing. The second respondent’s final position was that as at the date of the hearing, she actually had cash at home in the sum of $577,000. She was asked why she only put $48,000 in cash on her loan application. Her answer was that she had a compensation claim pending and she did not want that compensation claim affected by any document that she signed that indicated she had so much in cash at home. She asserted that part of her compensation case was that she was subject to financial hardship. This evidence sits very uncomfortably with the fact that on the same loan application she had falsely and dramatically inflated her weekly income. At page 286 of the wife’s tender bundle, there is a certificate from L Company dated 15 December 2011. This certificate is signed by Mr G and certifies that the second respondent had been working with his company since 30 November 2010 as a secretary on a full time basis and that her annual gross salary was in the sum of $69,900 and her fortnightly net pay was $2,130. This letter was brought into existence a day after the second respondent signed a loan application with the bank indicating that her base monthly income (net) was $4,529. The second respondent was asked why it was that she would sign a document indicating her income was that high, in circumstances where she had a pending compensation claim in respect of which her earlier evidence was that she was not prepared to disclose what cash she had because of her pending compensation claim. There was no satisfactory answer given to that inconsistency in her evidence.
The second respondent asserted that the reason why she started making deposits of the cash she had at home in December 2011, was because she had had a second attempted break-in to her home. She then says she went about moving $250,000 from her home by way of making cash deposits between 6 December 2011 and 23 January 2012. She also says she deposited a further $83,000 into her Westpac account between 27 January 2012 and 1 February 2012. The second respondent then ceased to make cash deposits and only recommenced making them four months later. The second respondent gave no credible explanation as to why, if she was so motivated as a result of the alleged second break-in to move the cash out of the home and into a bank, there was a four month hiatus in her moving what she claimed to be the remaining $237,000 in cash into the bank.
In July 2010 the second respondent borrowed $254,000 to discharge the debt on her property at Suburb B and to pay her ex-partner an amount so that she became the sole registered proprietor of that property (her partner’s name was Mr P). That borrowing was disbursed as to an amount of $165,638 to Mr P and a discharge of the mortgage of $85,866 that existed prior to the refinance. The second respondent gave no acceptable reason why, if in 2010 she had over $500,000 in cash in her home, that cash was not used as a source of funds to pay Mr P out, particularly as the second respondent said that some of the cash had actually come from gambling activities associated with horses that she and Mr P owned together. As I will find, much of the cash deposited into the second respondent’s accounts was a recycling of cash received by the husband from those accounts. It was not until July 2012 when the second respondent got the bulk of her compensation payout that she discharged her 2010 mortgage.
Again, unless there is no contest about a fact, because it is agreed or inherently likely, I do not accept anything the second respondent says without there being objective evidence to corroborate her statement.
THE COMPETING APPLICATIONS FOR PARENTING ORDERS
The wife
The wife’s Initiating Application filed 4 April 2013 is set out at Schedule 2. The wife had initially sought that the parents have equal and shared parental responsibility for the children, but in submissions sought sole parental responsibility based on the clear animosity expressed by the husband towards her, which was asserted to be likely to continue for the foreseeable future. It was submitted by the wife that the husband has an inability to communicate and co-operate with the wife in matters relating to the children.
The wife seeks that the children live with her and spend time with the husband each alternate weekend from 3.00pm Friday to 8.00pm Tuesday, and for the first half of all school holidays.
The wife filed an Application in a Case on 2 August 2013 (also set out in Schedule 2) seeking to change the children’s school. The wife sought that should she not be given sole parental responsibility, the children be enrolled at D Public School because of the proximity of the school to the wife’s residence, the short travelling distance and in the wife’s view, the better education the school offers.
The husband
The husband’s application is set out in Schedule 3.
The husband seeks that the parents have equal shared parental responsibility for the children, and that the parents jointly make decisions about major long term issues relating to the children.
The husband seeks that the children live with the parties on an equal shared basis, specifically, every alternate week with the husband from 3.15pm Monday to the following Monday at 9.00am.
The husband seeks that both children continue to attend their current school, E Public School.
The husband seeks that both parents attend post separation counselling in relation to communication post separation.
The approach
The objects of Part VII of the Act are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.
For reasons set out below, I shall conclude in this case that no order should be made for equal shared parental responsibility and consequently, the provisions of s 65DAA of the Act are not activated (Marvel and Marvel (2010) 43 Fam LR 348).
PRIMARY CONSIDERATIONS
The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))
There is a meaningful relationship between each of the children and each of the parents. The orders proposed by each of the parties will continue to promote the importance of the children’s relationship with each of the parents. The husband seeks an equal time arrangement, and on the proposal of the wife, the children will spend four nights a fortnight with the husband, half school holidays and other special days.
The need to protect children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b))
During the period of time the parties were together there were a number of incidents of family violence. On at least two occasions, at least one of the children was present. Those incidents of family violence are more fully discussed below. Whilst in my view that threat of physical violence by the husband to the wife is no longer ongoing, the level of acrimony and bitterness between the parties continues. It has been greatly acerbated by the husband’s behaviour in relation to financial matters. There is a need to protect the children from the psychological harm of being subjected or exposed to that continuing acrimony.
THE ADDITIONAL CONSIDERATIONS
Children’s views (s 60CC(3)(a))
The child T, who was then aged eight years, when describing her relationships with her parents to the family consultant, said that she has fun with both of them and loves them both. She said she wants to see more of both of them and wants them to live in the same house so that “I don’t have to move all the time.” She said she wants to live with her parents “every second weekend and I want it to happen NOW!” In oral evidence the family consultant initially said this response was a mixture of something the wife had coached T to tell the family consultant, and a genuine view. She then conceded that it was a genuine view that T wanted to spend every second weekend with her mother, and she wanted that now.
It is the evidence of the family consultant that T appeared stressed as to what to say in the interview and that she made several comments that indicated that her mother had prepared her for the interview. T said “I am trying to remember what me and mum talked about”, and “it is hard to remember what I should say”.
The family consultant said in oral evidence that when W came to the interview he was quick to start talking about his mum and dad. He was consumed with the dispute between them and despite not having asked him initially about his parents or family or any problems within the family, W was raring to blurt out what he understood were all the problems between his parents. When asked if much of what he said to the family consultant was what he had been told by his mother about past events between the wife and the husband, the family consultant answered “there was a lot about financial problems between the parties. Let me just say that”.
The weight which I can place upon the children’s expressed views is compromised to some degree by their exposure to the wife’s views. Whilst the wife downplayed the fact that she and T had spoken about what she might tell the family consultant prior to the interview with the family consultant, it is probable that the wife said more to T than she was prepared to admit during cross examination. W has been exposed to adult concerns, most probably in the wife’s household, in relation to financial matters.
The family consultant made it plain during her oral evidence that in her opinion (an opinion which I accept) in this parental relationship with high animosity and conflict, the story telling about the other parent is not one sided. It is happening both ways.
Having said that, no expressed view of either child significantly affects the decisions that have to be made in relation to their future which will be decided based on other more weight considerations.
Relationships of the children with the parents and other persons (s 60CC(3)(b))
It is not in dispute that the children have a very strong relationship with both parents.
The family consultant commented in the family report that the children appeared happy and engaged with both the parents.
The wife has a platonic relationship with a man named “J”. There is no indication that he is an ordinary member of the wife’s household nor is there any concerns raised in relation to the children’s relationship with J.
The husband resides with his mother, the children’s paternal grandmother. The family consultant gave oral evidence that “despite not having evaluated the paternal grandmother and her care giving, or even how her household runs, [she] could say in general that another adult who is supportive in the life of the children would be of advantage to the children. The children know her and that’s a plus”. The family consultant also asserted that “[she] got no sense that there were any issues around [the paternal grandmother] or her role with the children”.
Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent (s 60CC(3)(c), noting (s 60CC(4))
The family consultant said that she suspected that the legacy of the court case and the severity of the allegations by each of the parties against each other may have a lasting impact on the parenting relationship given their history to date, and what the parents even now refer to as happening a number of years ago that is impacting obviously on their view of each other, and how they think they can relate to each other.
It is concerning that when invited to talk about whatever he wished at the commencement of the interview with the family consultant, W made numerous complaints about his father, for instance that; he pays for nothing and “mum pays for everything”, he does nothing and “mum does everything”, and that his father calls his mother a “pig”. In contrast, W said that his mother cooks him nice food, helps him with his homework, washes his clothes and puts him to bed at the right time.
T also commenced the interview with a list of complaints about the husband.
The family consultant suggested in oral evidence that the wife engaged in alienation of the husband and had a more tenuous relationship with the children than did the husband. The family consultant also stated that the husband is less influencing the children negatively about the wife than the wife may be about the husband.
Whilst both the parents are able to facilitate and encourage a relationship between the children and the other parent, there may be issue as to encouraging a “close and continuing relationship”. There is evidence to suggest that both parents often denigrate the other in the presence of the children.
The husband suggested to the family consultant that the wife was “poisoning [the children] against [him]”. He asserted that he felt he could not discipline the children adequately because the wife has eroded his authority with them by her messages of disrespect of him to them. The husband alleges the children have made comments to him such as, “Mum says ‘your Dad’s lazy, should be working, injuries are a load of shit, your Dad sits on his backside all day’.”
There is also evidence about the husband’s denigration of the wife. W told the family consultant “Dad hangs up because of Mum’s attitude –because she is a pig and leaves a mess”. The wife says in her affidavit that on 23 September 2011 W said to her “Daddy doesn’t want to see or speak to you and doesn’t like you because you’re trying to take his house.” In her interview with the family consultant the wife alleged that the children have said to her that the husband says that she is an “idiot”, “greedy”, a “pig” and that “everyone hates your mother.”
Notwithstanding the level of denigration, the parties have not gotten to the stage where they have failed to comply with mandated parenting arrangements.
Likely effect of any change in the children’s circumstances (s 60CC(3)(d))
The family consultant indicated that there would be some advantage to the children becoming involved in the location of where their school is, in order to develop a sense of community and a place of belonging with peers, and to engage in extra -curricular activities.
The wife lives 20 – 40 minutes away from where the children are currently going to school. At the moment the children are doing a lot of travelling. They are not staying with their father during a school night (the children currently live with the husband from after school Friday until 8.00pm Monday night each week), but they are travelling a reasonable distance to and from school each day to attend school near the husband’s home. The wife would propose that if the children live with her and she had sole parental responsibility, she would move them to a school near her residence. The children’s travel time to school would be reduced.
On the wife’s proposal, the children would be with the husband on Friday, Saturday, Sunday and Monday nights, which would involve the children travelling to school on Monday morning for 20-40 minutes from the husband’s home, and back again on Monday afternoon and back again on Tuesday morning. That is four trips of up to 40 minutes. On the husband’s equal time proposal, there would be 10 trips of 20-40 minutes in a fortnight whether or not the children went to a school near the husband’s home or near the wife’s home. This, however, would not be so on the husband’s alternate proposal.
The children will be subject to change whichever orders proposed by the respective parents are preferred. The husband’s proposal would have the children remain at their current schools until high school.
The other major change on the husband’s proposal, is that the children would spend week about time with him. There is no track record in relation to the children being with their father during the school week.
I am of the view overall that the proposal of the wife contains changes that are of a positive nature for the children, whereas the proposal of the husband contains changes for the children which have a significantly negative aspect.
Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))
As indicated, mandated parenting arrangements have taken place to date without practical difficulty.
The family consultant suggested that because of the parties’ lack of ability to communicate, an arrangement with minimal interaction required between the parents would most facilitate the children’s relationships with both parents and reduce the stress on the children.
The capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f)) and attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60CC(3)(i), noting (s 60CC(4))
The wife has played a significant role in the provision of the children’s physical needs. I accept the wife’s evidence as to her attending to the provision of laundry services in respect of clothing when they are in their father’s care. When the children are to spend time with the husband, the wife sends a bag full of clean clothes, including all of their outer wear, all of their underwear and their socks and shoes. At the end of the time spent with the husband, the husband sends all of the dirty clothes back to the wife and she re-washes them and gives them back to the husband on the next Friday the children commence spending time with him. During the school holidays, the wife has to pack enough clean clothes for the children for seven days. When the children return to the wife’s care the husband returns all of the dirty clothes to the wife.
The family consultant in oral evidence described the wife’s parenting style as authoritarian and the husband’s parenting style as more permissive. She observed that the children seemed to be more compliant with the husband’s parenting style, although the family consultant conceded that given that the husband had all weekends and the wife had to deal with the children during their routine week, may have meant that the children were very used to the husband’s more relaxed and flexible arrangements.
The husband asserts that W’s school has several concerns about him including; behavioural problems, fine motor skill deficits, poor concentration and inattention, speech difficulties, and his standard of work being behind in his peers by two years. The husband has taken W to a paediatrician and speech pathologist and has hired his nephew to tutor W for three hours on the weekend.
The wife appears to be somewhat in denial of W’s problems. Despite his class teacher having assessed him as working at a year one level in numeracy and basic maths, the wife asserts that she does not agree with that and in oral evidence stated that she knows her son much better than a school teacher. The wife said that whilst she doesn’t deny W has difficulty in concentration, she doesn’t believe he has the capabilities of a year 1 student. Despite the current school suggesting that W see a speech pathologist and paediatrician, the wife did not take W to see either, and in oral evidence stated “I don’t believe my son has a problem. There is no problem with him.” However, in her affidavit she states that she has had discussions with the principal at D Public School about W’s difficulties. When giving oral evidence the wife asserted she told the principal her view; “[W’s] attention span isn’t great, he’s pretty good at reading, but his maths is suffering. His spelling is okay, but the main problem is his attention span over many hours”.
The family consultant suggests in her report that W’s many developmental, emotional and social difficulties are likely to be significantly exacerbated by the stress of the family context, or indeed, may be a direct reflection of the stress of his parent’s dysfunctional relationship. The family consultant recommended that the children be shielded from their parents’ relationship problems and the court dispute to afford them a better developmental trajectory into adolescence than is currently on the course.
Neither party displayed any real understanding or appreciation of how their denigrating the other party in front of the children, or exposing the children to issues relating to the court proceedings, may cause anxiety and stress in the children.
The husband has at times shown a greater understanding for the children’s intellectual needs. Whilst he might be otherwise criticised for the attitude that he has taken to providing the wife with financial support for the children, he has paid for outside tutoring for the children on weekends and engaged his nephew and niece to also assist in that regard.
The wife has provided T’s national literacy and numeracy assessment report for 2013 which shows T’s competency levels around the national average.
Any family violence involving the children or a member of the children’s family (s 60CC(3)(j) and (k))
The wife’s case generally is that shortly after she and the husband were married, the husband commenced to physically and verbally abuse, threaten and intimidate her. The wife makes certain allegations of physical abuse by the husband during the period of time they were together and asserts she has “always been frightened of the [husband] and felt powerless to stop his behaviour”. The husband denies the contents of these allegations and gives a different version in relation to each allegation. I accept the wife’s evidence in preference to the evidence given by the husband.
The wife says in or about 2004, when she was seven months pregnant, the husband grabbed the wife by the throat, choked her and pushed her back against the kitchen bench. The husband’s version of this incident was that the wife lunged towards him and commenced swinging violently with a kitchen knife and he defended himself. He asserts that in the scuffle he was cut on the right arm below the elbow. He produced a poor reproduction of a photograph which may be of a scar on his arm. I place no weight on that evidence. The wife denies attacking the husband with a knife and denies that that attack is the reason for any scarring on the husband’s arm. I accept the wife’s version of what happened in 2004.
In or about 2006 the wife reported an assault committed upon her by the husband to the police. The husband grabbed hold of her and slammed her against the wall, he then approached her and threw a set of keys at her which struck her in the face cutting her lower lip. This incident occurred in front of the children who were distressed and crying. The wife called the police. The husband agrees he threw keys at the wife striking her lip. The husband says that this incident involved the wife grabbing W who was aged two at the time, by the ear, and pulling his hair, as he had been misbehaving. The husband alleges that he walked up and grabbed the wife’s wrist and forcibly removed her grip on W’s hair. He says the wife walked away and returned with a large wooden spoon swinging it at him and he forcibly pushed her backwards and walked away. He alleges that the wife then picked up a set of keys and threw them at him, striking him at the back of the head, and the husband then threw them back at the wife, striking her lip. The husband deposes in his affidavit that he “regret[s] [his] action at the time and should have walked away”. The wife denies the husband’s version of these events and I accept that what took place was as the wife has described it.
In October 2009, after the parties had separated, the wife alleges the husband was sleeping in T’s bedroom with the children when she heard T scream. The child came running to the wife and effectively said “daddy pinched me really hard.” The wife confronted the husband as to what happened. The husband “did a karate style kicking action towards [her] head”. The wife moved back to avoid being kicked and the husband then jumped up from the bed and punched her in the shoulder. This occurred in front of W. In relation to this incident the husband asserts that he was playing with T, holding hands, and his overgrown nail pinched her pinky finger. The husband alleges the wife became angry and pushed the husband back causing him to cut his toes on the bed. The husband agrees that W was in the room and alleges W said “leave dad alone.” In oral evidence the husband denied he did a karate style kick as he has a cracked coccyx and could not do that. He also denied he punched the wife in the shoulder. I accept the wife’s version of this event.
I accept the wife’s oral evidence that she has never raised her arms to the husband, “never ever”.
On Friday 25 March 2011, when the husband picked up the children, he said to the wife in the presence of the children “this is only the beginning. Wait for what I’m going to do to you, you stupid bimbo idiot”. This statement is entirely consistent with the contempt that the husband has in relation to the wife making any financial claim against him.
As I have indicated above, I do not assess that there is a risk of ongoing physical family violence. The husband’s negative attitude towards the wife, however, remains at a high level.
The family consultant reports that the children are apparently aware of their parents’ conflict and of particular incidents of violence of several years ago. These events remain alive and prominent as a part of the narrative of their childhood. The family consultant affirms that such an emphasis on past difficulties is likely to impact on the children’s relationships with both parents and impede their healthy emotional development into the future.
Likelihood of order leading to further proceedings (s 60CC(3)(l))
Neither proposal in relation to the children spending time with their parents is more likely than the other to lead to future litigation. The area that is most likely to lead to future litigation, if such an order was made, would be an order for equal shared parental responsibility in relation to major long term issues.
EQUAL SHARED PARENTAL RESPONSIBILITY
The presumption in s 61DA(1) of the Act does not apply given that there has been family violence between the parents. Nonetheless, I shall consider whether it would be in the best interests of the children for an order for equal shared parental responsibility to be made. I conclude that had the presumption applied, it would have been rebutted given that I find that it is not in the children’s best interests for the parents to have equal shared parental responsibility.
The husband points to the wife’s lack of understanding that W has learning difficulties and her refusal to take W to a paediatrician or speech pathologist as recommended by his class teacher. I accept the family consultant’s opinion that the husband has shown an ability to be in tune with the children’s needs, notwithstanding the fact that he does not spend the majority of time with them. However, the husband did not discuss the tutoring with the wife and said in oral evidence “no it’s in my time and in the kids best interests”. When put to him that he had to discuss it with the wife he said “I will take appropriate measures to make sure they get up to speed with the schooling.”
The overwhelming consideration at the moment is the toxic nature of the parties’ relationship. The husband’s devious conduct in relation to financial matters which is more fully explored later in these reasons, creates the background against which the current paucity in the parties’ ability to communicate should be understood. There is a clear animosity expressed by the husband towards the wife that is unremitting and likely to continue for the foreseeable future. The husband said that he and the wife cannot talk face to face or via electronic communication. The husband said that in the past if the parties needed to do something in respect of the children, or wanted the children earlier than in the orders, requests were made via the children. When asked when the parties had last spoken face to face about the kids the husband responded “we haven’t”. When asked in oral evidence what discussions the wife had with the husband prior to moving the wife responded “None. He refuses to talk to me.”
I asked the husband during his oral evidence whether any major long term issue had been jointly agreed to and he asserted that none had been. The husband stated, in regards to the wife, “she’s got attitude, she’s self-opinionated.” He suggested “I’m easy to get along with. I don’t have a problem.”
The family consultant in her report recommended that the parents seek assisted negotiation from community mediation services to alter parenting arrangements and by extension, to assist them to reach a joint decision about any major long term issue in respect of the children, in respect of which they could not reach agreement on an unassisted basis themselves. The family consultant however backed away from that recommendation during oral evidence to a significant degree. The family consultant was asked, knowing what she knew about the features of the parenting relationship, what confidence she had in an order which required the parties to attend mediation and attempt to reach a decision about a major long term. She said she did not have very much confidence that that would work. I have even less confidence.
An order for equal shared parental responsibility, as sought by the husband, carries with it the statutory requirement for the parties to be able to reach a joint decision about major long term issues in respect of the children. The parties are currently at loggerheads in relation to the future education of the children. The wife was questioned about how it might be that she would be able to fund her wish for the children to attend private schooling. The husband does not pay for anything in relation to the children’s excursions, school uniforms, shoes or stationery at the current time. He asserts that he has no capacity to make a contribution towards private schooling. In the event that the wife obtained an order for parental responsibility for decisions, amongst other issues, in relation to education, it would be a matter for her to take into account the likelihood that she would be able to obtain any contribution from the husband towards the cost of schooling when making a decision about the school at which the children should attend.
I find that the parties do not currently have the capacity to reach a joint decision about major long term issues affecting the children. The level of conflict between the parties is currently so high and it is difficult to see any improvement in the parties’ ability to work together in the future.
By way of example, on 22 October 2013 the wife tried to telephone the husband in relation to a concern that she had in respect of W having bad dreams about the deceased paternal grandfather. The husband screamed over the telephone at the wife in an aggressive manner using the words:
You better stop ringing me. I’m going to get an AVO out against you. I don’t want nothing to do with you. I don’t want to speak to you.
I am of the view that no order for equal shared parental responsibility should be made in this case. Parental responsibility for major long term issues should be exercised by the parent with whom the children will ordinarily live.
CONCLUSION ABOUT BEST INTERESTS
Given that no order will be made for equal shared parental responsibility, the provisions of s 65DAA of the Act are not triggered, but nonetheless, a proposal for equal time or substantial and significant time can still be considered, and when doing so, it is appropriate to look at whether or not those proposals are reasonably practicable as part of an overall consideration as to whether or not those arrangements would be in the best interests of the children.
That to the extent necessary, the Applicant/Mother have the right to execute any necessary consent or authority by the Respondent/Father in lieu of the Respondent/Father executing such documents for the purpose of facilitating the change of the school at which the children are to attend in accord with Oder 1 above. (syc)
That the Respondent/Father pay the Applicant/Mother costs of an incidental to the application herein. In such sum as determined by the trial judge within 1 calendar month of this order.
That this matter be heard on an urgent basis.
SCHEDULE 3
Father’s application for parenting orders
That the parents shall have equal shared parental responsibility for the children, [W] born … 2004 and [t] born … 2005 (“the children”).
That the parents shall jointly make decisions about major long term issues relation to the children.
That the parents shall each have responsibility for the day to day decisions in relation to the care of the children during the periods that the children are in his/her care respectively.
That the children live with the father as follows: -
a.On every alternate week from Monday from 3.15pm to the following Monday at 9.00am
b.The first half of all gazetted school holidays every year (excluding Easter and Christmas which are the subject of separate Orders).
c.On every Father’s Day is such day falls on a weekend where the children are not with the father from 9.00am to 6.00pm.
d.The father shall not have the children on a weekend which includes Mother’s Day but in substitution the father shall have the children on the following weekend between the time set out in 4(a) above,
e.That the mother shall not have the children on a weekend which includes Father’s Day but in substitution the mother shall have the children on the following weekend between the times set out in (a) above.
f.In the event that any weekend falls on a long weekend, including a Monday then the time that the father spends with the children shall be extended to 6.00pm on Monday.
g.In the event that any weekend falls on a long weekend, including a Friday then the time that the father spends with the children shall commence on 6.00pm on Thursday.
h.On the father’s birthday: -
i.If such a day falls on a weekend, and such a weekend is not a weekend that the father spends with the children then the father shall spend time with the children from 9.00am to 6.00pm;
ii.If such date falls on a school day and is not a day that the children are otherwise spending time with the father, from after school until 8.00pm.
i.On the children’s birthdays: -
i.If such a day falls on a school day then from after school until 9.00pm;
ii.If such a day falls on a weekend then the children will spend time with the father from 3.00pm until 9.00pm;
iii.If such a day falls on a holiday, such a day when the children are otherwise spending time with the father from 3.00pm until 9.00pm.
j.On every alternate Christmas Eve commencing 24 December, 2011, from 6.00pm until 1.00pm on 25 December of that year.
k.On every alternate New Year’s Eve commencing 31 December, 2011 from 6.00pm New Year’s Eve until 1.00pm New Year’s Day.
l.On every alternate Greek Orthodox Easter commencing Easter, 2012, from 3.00pm on Good Friday until 6.00pm on Easter Saturday.
Such further times as the parties may agree from time to time.
That the children live with the Applicant wife at all other times than those set out in Order 4 herein.
That the father is to deliver the children to school at the conclusion of the children spending time with the father and the mother is to deliver the children to the school at the conclusion of their time with the mother.
That both children continue to attend [E] Public School.
That both parents attend post separation counselling in relation to communication post separation.
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Constructive Trust
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Res Judicata
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Procedural Fairness
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