Shamon & Shamon (No 14)
[2024] FedCFamC1F 856
•11 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shamon & Shamon (No 14) [2024] FedCFamC1F 856
File number: SYC 2375 of 2021 Judgment of: CHRISTIE J Date of judgment: 11 December 2024 Catchwords: FAMILY LAW – FINAL PARENTING ORDERS – Where both parties agree mother should have sole parental responsibility for major long-term decisions –– Where the Court finds father perpetuated family violence – Where unsupervised time may expose child to family violence – Where there is risk to children from exposure to psychological harm in particular due to father’s attitude towards mother - Where mother seeks injunctions restraining father – Youngest child to live with mother and spend supervised time with father – Older two children to live with mother and spend time with father in accordance with their wishes – Injunctions granted.
FAMILY LAW – PROPERTY – Property settlement – Just and equitable – Where husband’s evidence about relevant financial transactions was inadequate – where husband made significant financial transactions immediately after separation which had the effect of reducing assets available for adjustment – Where wife sought addbacks with respect to transactions made by husband – Where amount expended by husband not added back but considered under s75(2).
Legislation: Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 61C(1), 62B, 65DA(2), 68B, 75(2)(o) and106B Cases cited: C & C [1998] FamCA 143
In the Marriage of Af Petersons [1981] FLC 91-095
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56
L & T (1999) FLC 92-875; [1999] FamCA 1699
NHC & RCH (2004) FLC 93-204; [2004] FamCA 633
Omacini & Omacini (2005) FLC 93-218; [2005] FamCA 19
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Wild v Meduri [2024] NSWCA 230
Division: Division 1 First Instance Number of paragraphs: 419 Date of hearing: 4, 5, 8, 9, 10, 11 & 12 April; 30 & 31 July; 1 & 2 August; 4 October 2024 Counsel for the Applicant: Mr Elachkar Solicitor for the Applicant: Lawbridge Lawyers & Consultants Counsel for the First Respondent: Mr Dura SC Solicitor for the First Respondent: Barkus Doolan Winning Counsel for the Second Respondent: Ms Spain Solicitor for the Second Respondent: BF Lawyers Third Respondent: Did not participate Fourth Respondent: Did not participate Fifth Respondent: Did not participate Counsel for the Independent Children's Lawyer: Ms Shea Independent Children's Lawyer: Bleier Family Law ORDERS
SYC 2375 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHAMON
Applicant
AND: MR SHAMON
First Respondent
MR B SHAMON
Second Respondent
MS C SHAMON (and others named in the Schedule)
Third Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders in relation to X born 2007, Y born 2011 and Z born 2018 (“the children”) are discharged.
2.The children live with the mother.
3.The mother have sole parental responsibility for making major long-term decisions in relation to the children.
4.X and Y shall spend time and communicate with the father in accordance with their wishes.
5.Until Z attains the age of 12, and conditional upon the father’s compliance with Order 7, Z shall spend supervised time with the father as follows:
(a)On the first, second and third Saturday of each calendar month, from 10.00 am to 4.00 pm, or such other days and times agreed in writing between the parties;
(b)In the event Z is enrolled in a sporting activity on Saturdays, the time in Order 5(a) will take place on Sundays instead of Saturday;
(c)In addition to the time in Order 5(a), on one day during each school holiday period as agreed in writing between the parties and failing agreement on the first Sunday of the school holiday period from 10.00 am to 4.00 pm;
(d)In addition to time in Orders 5(a)–5(c):
(i)On particular religious holidays from 2.00 pm to 8.00 pm; and
(ii)On Father’s Day from 10.00 am to 4.00 pm.
(e)The time referred to in Orders 5(a)–5(d) is to be supervised by AD Contact Centre or such other professional supervision agency agreed in writing between the parties; and
(f)The father is to bear the costs of supervision.
6.From the age of 12 years, Z shall spend time with the father as agreed in writing between the parties and subject to Z’s wishes.
7.The father’s time with Z in accordance with Order 5 is conditional upon:
(a)The father continuing to attend upon Dr AB for psychological therapy at such frequency as recommended by Dr AB and for as long as Dr AB deems appropriate; and
(b)The father providing a written authority to Dr AB authorising and directing Dr AB to notify the mother (by email at: …@...) if the father ceases to attend for psychological therapy and to inform the mother as to whether the cessation of therapy is in accordance with Dr AB’s recommendations.
8.Within 7 days of the date of these Orders, the father is to provide a sealed copy of these Orders, a copy of these reasons for judgment and the written authority referred to in Order 7(b) to Dr AB and written confirmation to the mother’s solicitor and Independent Children’s Lawyer (“ICL”) that this Order has been complied with.
9.The parties are to continue to attend family therapy with Dr AT, and for the purposes of this Order:
(a)Each party is to attend therapy sessions with Dr AT in accordance with Dr AT's recommendations;
(b)The father is to bear the costs of the family therapy; and
(c)The mother is to provide a sealed copy of these Orders and these reasons for judgment to Dr AT within 7 days of the date of these Orders.
10.The parties shall communicate with each other by email or text message in relation to matters concerning the children only and shall only telephone each other in the event of an emergency concerning any of the children.
11.Pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”), the father is hereby restrained from:
(a)Assaulting, intimidating, molesting, harassing, threatening or in any way interfering with the mother or the children;
(b)Approaching, contacting or attempting to approach or contact the mother or the children, except in accordance with these Orders or through his legal representatives;
(c)Attending at the home or workplace of the mother at any time except with the mother’s express consent in writing; and
(d)Attending at any school at which the children are enrolled at any time except with the mother’s express consent in writing.
12.For the purposes of s 61C(1) of the Act, the injunctions in Order 11 are injunctions granted under s 68B for the personal protection of the mother and the children and if a police officer believes, on reasonable grounds, that the father has breached any injunctions by:
(a)causing, or threatening to cause, bodily harm to the mother or any of the children; or
(b)harassing, molesting or stalking the mother or any of the children then the police may arrest the father without warrant.
13.The mother has leave to provide a sealed copy of these Orders to any school at which the children are enrolled.
14.Each party shall refrain from:
(a)Denigrating or making critical or derogatory remarks about the other party, or any member of the other party’s family, to or in the presence or hearing of, any of the children;
(b)Allowing any of the children to remain in the presence or hearing of any other person who is denigrating or making critical or derogatory remarks about the other party or any member of the other party’s family; and
(c)Discussing these proceedings, or proceedings involving either of the parties in any other court, with the children or in the presence or hearing of any of the children.
15.Each party shall notify the other as soon as practicable in the event any of the children are hospitalised or suffer a major illness or injury while in that party’s care and shall advise the other party of the name and contact details of the hospital and/or medical practitioner providing treatment to the relevant child or children.
16.Each party shall keep the other informed of their mobile telephone number and email address and shall notify the other party of any change in these details within 24 hours.
17.The mother shall provide the father with copies of the children’s school reports within 14 days of receiving such reports from the children’s school(s).
18.Unless granted a waiver, each party shall pay to Legal Aid NSW the sum of $15,888.50 within 3 months of the date of these Orders, being their contribution towards the costs of the ICL in these proceedings.
19.The appointment of the ICL is discharged.
20.Pursuant to ss 65DA(2) and 62B of 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 those particulars are included in these Orders.
Financial orders
21.Within 7 days of the date of these Orders the husband and wife do all acts and things and sign all documents necessary to pay the whole of the funds in controlled monies:
(a)In the name of Ms G Shamon; and
(b)In the names of the husband and wife,
to the bank account nominated by the wife in writing.
22.Within 7 days the husband do all acts and things necessary to remove the caveat on title to the property at D Street, Suburb F NSW (“the Suburb F property”).
23.Within 28 days the husband pay to the wife the sum of $487,564.
24.Within 28 days the wife elect whether she proposes to retain her units in the Shamon Fixed Trust.
25.In the event that wife elects to transfer her units in the Shamon Fixed Trust to the husband then simultaneously with receipt of $68,579, she sign all documents necessary to transfer those units to the husband.
26.Upon receipt of the payment referred to in Order 23 the wife shall do all acts and things, take all steps and execute all documents necessary to resign as Appointor of the Shamon Trust, with the husband to prepare and provide the transfer documents to the wife for her signature at his sole cost.
27.Other than as provided in these orders:
(a)Except as specifically provided for by any Order comprising these Orders to the contrary, as against the husband, the wife is sole owner of and the husband has no interest in all personal property (including choses in action) of whatsoever nature and kind in the possession of the wife at the date of the making of this Order.
(b)Except as specifically provided for by any Order comprising these Orders to the contrary, as against the wife, the husband is the sole owner of, and the wife has no interest in all personal property (including choses in action) of whatsoever nature and kind in the possession of the husband at the date of the making of this Order.
28.Both parties do all acts and things and execute all documents, authorities and writings as are necessary to give effect to all or any of these Orders.
29.Except as specifically provided for by any Order comprising these Orders to the contrary:
(a)The husband hereby indemnifies the wife from and in respect of all actions, claims, tax, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband.
(b)The wife hereby indemnifies the husband from and in respect of all actions, claims, tax, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife.
30.Except as specifically provided for in these Orders, each of the husband and wife release the other from all debts owing from one to the other.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Shamon & Shamon has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
These are proceedings in which Mr Shamon (“the husband” or “the father”) and Ms Shamon (“the wife” or “the mother”) each seek orders relating to both parenting and financial matters. I will use the designations husband and wife in these reasons when I am dealing with the financial aspects of the matter and mother and father when dealing with the parenting proceedings.
The wife also seeks orders against third parties in the financial proceedings between her and the husband.
The parties were married in 2004 and separated on 30 June 2020. They are the parents of four children: X, Y and Z (“the children”). Their daughter, AU, died in 2014.
The children’s interests were represented in the proceedings by an Independent Children’s Lawyer (“ICL”).
The property of the parties
The parties prepared and tendered a Joint Balance Sheet the contents of which are set out in the table below:
Ownership Description Mirna’s value Adel’s value ASSETS 1 W D Street, Suburb F NSW 2195 $ 418,000 $ 418,000 2 W CBA, account # …76 $ 32 $ 32 3 W CBA, account # …57 $ 2,457 $ 2,457 4 W Westpac, account # …54 $ 875 $ 875 5 W Westpac, account # …11 (previously …) $ 1,184 $ 1,184 6 W Motor Vehicle 2 $ 16,000 $ 16,000 7 W Household contents $ 12,000 $ 12,000 8 W Gold and jewellery $ 17,000 $ 17,000 9 H CBA, account # …44 $ 821 $ 821 10 H CBA, account # …88 $ 8 $ 8 11 H CBA, account # …14 $ 0 $ 0 12 H Gold and jewellery $ 15,000 $ 15,000 13 J Monies in controlled monies account $ 90,859 $ 90,799 14 W Shamon Fixed Trust $ 81,657 $ 68,579 15 H 100% ownership in T Pty Ltd $ 28,079 $ 28,079 16 H 100% interest in S Pty Ltd $ 42,000 $ 42,000 17 H Controlled Monies Account (Ms G Shamon) $ 252,672 $ 252,672 18 W Units in Country UU $ - $ 199,764.96 Total $ 978,644 $ 1,165,272 ADDBACKS 19 H $560,000 retained by Ms G Shamon $ 560,000 $ - 20 H $170,000 transferred to V Pty Ltd and withdrawn in cash $ 170,000 $ - 21 H Refund to H $80,000 following sale of 5 units in V Unit Trust to EE Trust in February 2021 $ 80,000 $ - 22 H $110,000 paid by H to Mr AV $ 110,000 $ - 23 H $50,000 paid to Ms C Shamon $ 50,000 $ - 24 H $145,000 paid to Mr AN $ 145,000 $ - 25 H Profits retained by Mr B Shamon from BB Pty Ltd $ 160,000 26 W Litigation funding received from Orders dated 21.06.21 $ 83,423 $ 83,423 Total $ 1,358,423 $ 83,423 LIABILITIES 27 W Mortgage on D Street, Suburb F NSW $ 58,231 $ 58,231 28 H Individual Tax Liability $ - $ 41,339 29 H Loan from Ms C Shamon $ - $ 159,991 30 H Loan from Mr AW $ - $ 52,000 31 H Loan from Mr AX $ - $ 110,000 32 H Loan from Mr AY $ - $ 20,000 33 H Loan from Mr GG $ - $ 120,000 34 H Outstanding spouse maintenance $ 59,325 $ 31,756 35 H H outstanding cost order to Wife $ 15,000 $ 15,000 36 W W outstanding cost order to Husband $ 1,485 $ 1,485 37 W 50% of family therapy owed to Husband $ - $ 1,404 38 H Debt owing to Ms G Shamon $ 252,672 Total $ 134,041 $ 863,878 SUPERANNUATION Name of Fund 39 H Shamon Self Managed Super Fund (as at 30.06.23) $ 90,103 $ 90,103 Total $ 90,103 $ 90,103 FINANCIAL RESOURCES 40 J Shamon Trust $ 659,656 $ - TOTALS NET TOTAL POOL INCLUDING SUPERANNUATION $ 2,293,129 $ 474,919 (Footnotes omitted)
BACKGROUND
The parties commenced cohabitation after marriage in 2004. At the time the wife was 20 years old and the husband 25 years old.
At the time the parties started to reside together the husband was the registered proprietor of 1 M Street, Suburb P NSW but it was not part of either parties’ case at trial that the husband was the beneficial owner of that property. The husband’s affidavit evidence set out modest savings in his possession. It is uncontroversial, as a consequence, that neither party submits that he or she made an initial contribution of any significance.
The husband has a lengthy criminal record but it is confined (in so far as convictions are concerned) to the period 1995-2000. This included a period of incarceration prior to the parties’ relationship from 1998 to 2000.
On 24 June 2020 the mother indicated to the father that she intended to separate.
On 29 June 2020 the mother attended at a police station.
In mid-2020 there was an incident between the parents when they both attended at the grave of their daughter AU at the same time as one another. The children were present.
In mid-2020 the father was charged with multiple offences against the mother. In early 2022 the father was found guilty of one charge of breach of ADVO and a final ADVO was made for a period of two years. In mid-2022 the father’s appeal against the conviction and the making of the ADVO was allowed.
On 9 September 2021 interim parenting orders were made which saw the children spend time with their parents during school term: nine nights with the mother and five nights with the father plus one additional dinner each fortnight. School holidays were divided evenly.
On 19 May 2022 further interim parenting orders were made which provided that Z spend supervised time with the father. The attendance of X and Y was at their election. Z has spent time in accordance with the orders. X and Y have not attended.
CONSIDERATION
Assessing the evidence of the parties
This is a case where it was necessary to consider whether there was a basis to prefer one party’s evidence over another party’s evidence in respect of key relevant factual disputes.
The respondent’s credibility was impugned in four identifiable ways which at times overlapped:
(1)Failure to make obvious concessions;
(2)Self-serving non-responsive answers at the expense of the applicant;
(3)Evasiveness in response to questions; and
(4)Inconsistencies between affidavit and oral evidence.
Failure to make obvious concessions
The father was seemingly incapable of accepting that text messages which were shown to him were from his phone or exchanged between he and his former wife. Following acknowledgment that the telephone number indeed belonged to him he remained reluctant.
This reluctance persisted even after the parties’ lawyers were able to review all messages in context.
In 2022 a text message was sent from the father to the mother saying “Wednesday is [Y’s] birthday… I have arranged for my birthday present to be delivered on Tuesday night at 8.30”. In cross-examination the father did not accept that his message creates the impression that the father would not attend personally on the home.
The father was asked about a message which read:
How could u speak to my mum like that in front of a child how should I believe you’ve changed when u would do something like that don’t expect me to speak to u if u come to my home again
(As per original)
The father was unable to concede that the message was reflective of the views of X, insisting that the text message was from or induced by the mother.
As will be discussed later in these reasons the father engaged in email correspondence with AL Psychology (the employer of a psychologist treating X). His insistence (both in his correspondence and in his evidence) that he had behaved appropriately when viewed in light of the account by a non-partisan third-party gave pause about the weight that could be attached to his evidence.
The father’s cross-examination was replete with self-serving accounts at the expense of the mother.
The father in his evidence made repeated reference, unprompted, to the criminal history of the mother’s family in a manner which was non-responsive to the questions he had been asked, and in the most part, irrelevant to the relief which he sought.
Evasiveness
On numerous occasions throughout the evidence of the father his answers in cross-examination were evasive. An example is when counsel for the mother was asking whether, in light of historical small distributions from the Shamon Trust, the large post separation distribution received by him was an anomaly. The husband answered by saying that transferring money was not an anomaly but the husband’s repeated failure to address the question he had been asked indicated a wilful avoidance (as opposed to misunderstanding).
The father also engaged in personalising the cross-examination by criticising counsel for the form of questions, objectively unreasonably, asserting he didn’t understand question.
There were numerous unexplained inconsistencies between the father’s oral and affidavit evidence and when pressed the father would contend that that which appeared in his affidavit was accurate.
The father’s demeanour in cross-examination was also unusual, for example, the father started humming in the witness box during cross-examination on 11 April 2024 at 12.14pm.
In contrast, the oral evidence of the mother was consistent with her affidavit evidence and the objective material.
It follows from the above observations that where the evidence of the husband and wife was different I have preferred the evidence of the wife unless explicitly indicated or contradicted by documentary evidence.
Parenting
The parents were initially at issue about both parental responsibility and the time the children should spend with each parent. At the conclusion of the proceedings, it was the position of the parents and the ICL that an order should be made that the mother have sole parental responsibility.
At the conclusion of the proceedings the mother largely adopted the parenting proposal proffered by the ICL.
That Minute of Order seeks orders that the parties’ two older children live with the mother and spend time with their father in accordance with their views. It seeks an order that Z have supervised time with the father between now and age 12. After Z turns 12, the Minute proposes that time be as agreed in writing between the parties and subject to Z’s views.
The Minute of Order sought by the father at the conclusion of the evidence accepted that the older two children should spend time and communicate with him in accordance with their views. The father sought a graduated regime of unsupervised time with Z which would, by Term 1 2029, see Z spend time with him on a fortnightly cycle during school terms on five nights in 14 and from Term 1 2025 for half of all school holiday periods.
The parties’ respective applications fall to be considered having regard to the relevant matters in s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”) as it was at the time the trial commenced.
Issues in the parenting case
The evidence reveals the following issues as relevant to adjudication of the parenting dispute:
(a)Has either parent engaged in family violence?
(b)If so, does this conduct create a risk to the children in the future?
(c)Has the father involved the children in the adult dispute in a manner which may be regarded as psychologically abusive?
(d)If the father has engaged in such conduct, is there a risk that this could continue?
(e)What are the views of X (now aged 17) and Y (aged 13) and those of their younger sister Z (aged 6)?
(f)What is the nature of the relationship between all three children and:
(i)The father;
(ii)The mother?
(g)What are the advantages and disadvantages of long-term supervision from the perspective of Z?
Parental Responsibility
The mother, father and ICL all sought an order that provided for the mother to have sole parental responsibility for long term decisions.
The father sought an order that the mother be restrained from arranging psychological care for the children without his consent. I consider this to be an inappropriate curtailment of her parental responsibility in circumstances where she has diligently facilitated the children’s attendance upon appropriately qualified experts and I decline to make the order.
Family violence
This is a case where the two primary considerations are squarely engaged. The mother’s application seeks orders which provide for time between the father and the two older children in accordance with the views of the two older children. Presently there are interim orders in similar terms and the children have elected not to attend time with the father. It therefore seems likely that if orders in the terms sought by the mother were to be made final orders, the older children would be unlikely (at least in the short to medium term) to spend time with their father. No meaningful relationship is possible in these circumstances.
The mother seeks an order that the father have supervised time with the parties’ youngest daughter Z. Interim orders for supervised time between Z and the father have been in place now for about two and a half years. The evidence supports the conclusion that Z enjoys the time she spends with her father.
The mother makes specific allegations of physical violence and otherwise gives evidence about the father’s conduct in support of a submission that he has engaged in coercive and controlling conduct towards her. The father denies these allegations. The father says that the mother has engaged in acts of physical violence towards him in the context of arguments between them.
The first instance of physical violence about which the mother gives evidence is said to have occurred when she was heavily pregnant with the parties’ daughter Y. Y was born in 2011, which places the alleged event in early 2011. She said:
[Mr Shamon] and I got into a verbal argument which resulted in [Mr Shamon] grabbing me by the arm and pinning me against the wall on the front porch of our matrimonial home. I tried to escape from [Mr Shamon’s] grasp and run across the road to seek refuge at [Mr Shamon’s] parents' home. [Mr Shamon] initially prevented me from doing so by grabbing me, and dragged me back into our matrimonial home. In the process of my struggle with [Mr Shamon], I fell onto the ground and suffered a bruise to my knee. I also scraped my arm against the brick wall, causing it to bleed. I eventually managed to escape from [Mr Shamon’s] grasp and made it to his parents' home across the road. [Mr Shamon’s] mother noticed I was bleeding from my arm.
In mid-2022, the District Court of NSW set aside the Final Apprehended Violence Order (“ADVO”) and the conviction in respect of contravene prohibition/restriction in AVO (domestic).
I must approach the evidence in respect of family violence and make my own findings.
An ADVO was made in 2005. The father says the order was made because his mother-in-law misunderstood that he and the mother had travelled to Brisbane on a three-day holiday. He further says the ADVO was revoked when the mother attended the police station several weeks later.
In evidence before me were COPS records from late 2005 (Exhibit 167). Those records indicate that the parties separated in early July 2005 but the mother left possessions at the parties’ home. The maternal grandmother told police that in mid-2005 the father had taken the mother for a three hour-drive and “threatened to kill them both”. In late 2005 the mother reported to the police that the father unexpectedly attended at her mother’s home and picked her up to take her to their home to collect some of her possessions and contrary to her expectation (and against her will) he did not drive to their home but instead began driving towards Brisbane. The maternal grandmother made a missing persons report. The record says that the mother needed medication but the father refused to return home, instead driving for 16 hours. The record states that “[i]t is believed that at some point during the trip, the POI has assaulted the victim by grabbing her around the neck and punching her to the stomach.” The police applied for an obtained a telephone interim order.
The COPS records record that the mother did not want the father to be charged but did support the application for an AVO.
I do not accept that the father collected the mother for a pre-planned 3-day holiday to Queensland because the parties were separated. The father’s parents did not appear to give this explanation to the police when they attended and the account which was provided to police was not reliant only on the report of the maternal grandmother but included direct report from the mother. I accept the incident was an occasion of family violence.
The mother gave evidence that she was injured in 2010 (while pregnant with Y) when the father grabbed her arm during an argument and pinned her against the front wall of the porch at their home. During a struggle the mother said she fell, bruised her knee and scraped her arm. She said she took refuge at the home of her in-laws. The father’s evidence is a categorical denial to the effect that he is saying the mother has invented this event. I do not accept that the mother has fabricated an incident of violence between herself and the father.
The mother gave examples of verbal abuse by the father including being told upon leaving the hospital with AU: “It’s all your fucking fault that we had another girl. If you had gotten pregnant right after [Y] was born, we wouldn’t have had another girl”.
Following AU’s death, the mother said she and the father initially agreed that they would not have further children but the father persuaded her to try. Given the genetic basis for AU’s terminal condition the parties engaged in IVF. The mother said the father asked if they could choose a boy.
In this context the parties argued in early 2017 and the mother ingested a large number of prescription and non-prescription medications and was admitted to hospital in early 2017. While the mother indicated that she did not intend to take an overdose it seems likely that she ingested the tablets as a response to the stressors in her life at the time. There does not appear to be any evidence of a similar nature since this date and I do not accept this conduct presents a current risk.
Mid-2020 – Altercation about the time of separation
In mid-2020, the father returned home from what both parties described as a “getaway”. At trial it was agreed that the father had spent the weekend with Ms AZ, with whom he was in a relationship at the commencement of the hearing, but he did not concede to the mother, at the time, that they were in a relationship prior to the “getaway”.
The mother says in her affidavit:
62.I believed that [Mr Shamon] was having an affair and that he was in fact on a getaway with his girlfriend rather than his male friends. I discussed my concerns with [Mr Shamon’s] father and asked him to come to our matrimonial home prior to [Mr Shamon’s] return from his getaway. I was concerned that once I confronted [Mr Shamon] about the alleged affair, he would get angry at me and become aggressive towards me. [Mr Shamon’s] father waited with me for several hours at our matrimonial home for [Mr Shamon] to return. Once [Mr Shamon] returned, I had a verbal exchange with him to the following effect:
Me: “Welcome back from your honeymoon.”
[Mr Shamon]: “I don’t know what you’re talking about, I told you I was on a […] trip with the boys.”
63.Following [Mr Shamon’s] return home, I requested that he give me some space and time, and he agreed.
The father gave the following evidence in his affidavit:
59.[In mid] 2020, I returned home from a weekend getaway with a female friend. We spent some time together at a beach house […]. When I walked through the front door of the former matrimonial home, [Ms Shamon] grabbed my arm and, without warning, began pushing against my chest and scratching my arms, whilst yelling at me words to the effect of: “Where were you this weekend? Were you cheating on me?” and “Watch what I am going to do to you!”
60.My parents, who lived across the road, were present at the former matrimonial home when this took place. My father pulled [Ms Shamon] away from me. I looked down and noticed [Ms Shamon] had ripped my shirt.
61.I tried to calmly speak to [Ms Shamon], but she just approached me again and began to push, scratch, and slap me saying to me words to the effect of, “you were cheating on me!” As [Ms Shamon] approached me, I held up my arms in my defence across my chest and face. Again, my father separated [Ms Shamon] from me. I decided to let [Ms Shamon] cool down and walked away to another room in the house.
62.About 10 minutes after that incident, [X] (who was in the house together with [Y] and [Z]) approached me with a look of concern and said to me words to the following effect:
[X]: “[Dad], we saw mummy hitting you. Is everything okay?
Me: “Yes everything is okay. Don’t worry about it.”
63.My father then said to me words to the effect of: “you should leave and allow [Ms Shamon] to calm down” to which I said words to the effect of, “ok”. That night, I stayed at my sister, [Ms G Shamon’s] home in [Suburb P] approximately 5-minute drive from the former matrimonial home.
The mother conceded that she did push the father during this incident. The mother said during cross-examination that she fell to the floor because of her emotions of feeling overwhelmed and exhausted.
Orally, the father repeatedly and at times unprompted described the incident as a “physical assault”. Unprompted, the father said that eight days later he was putting cream on his body over scratches and red bruises he says he received from the incident. When asked whether he had taken photos of the alleged scratches and bruises the father said, peculiarly, that he does not have them anymore and had deleted them after sending them to his sister who then also deleted them. The father suggested that they may be retrievable from his old phone. The photos have not been produced and are not in evidence.
I accept that an incident occurred between the parents in mid-2020. I accept that the mother’s actions may be characterised as an assault. I do not accept that the father was injured in the way he sets out given the evidence which he gave about the photos, the lack of evidence from his sister and the mother’s account of the event. The more significant matter for my determination is whether the mother’s conduct (or that of the father) on that day has consequences for the orders I propose to make. I conclude that the events of that day do not persuade me that the children are at any ongoing risk in the mother’s care.
When the mother approached the police for assistance after separation, it is recorded:
There has been previous unreported domestic violence incidences which the victim alluded to but did not disclose any further on this occasion as she is in fear for her safety if the Defendant is aware that she has reported to the police.
The mother consulted her GP (ex 166) in mid-2020. The GP made notes of the consultation which were in evidence before me. They are consistent with the mother’s account and in part read: “says he told her if she leaves him he will killher [sic] and the kids … fearful to take out AVO … feels trapped”.
Later in mid-2020, the mother says that the parties argued after her request to separate and the father would not allow her to sleep. She says she told him that lack of sleep could trigger her medical condition to which she says he responded: “That’s what I want, I want you to die” (Mother’s affidavit filed 11 March 2024 at [66]). The fight continued into the next day. The mother says she went to her in-laws.
The mother says she was attempting to go to the home of her in-laws and the father grabbed her phone and pushed her in an effort to prevent her. The father denies attempting to prevent the mother from leaving the home. The father did not give any detail of this in his evidence in chief but accepted in evidence in the Local Court that at 7.00am on that date the mother was at his parents’ home.
The mother’s evidence about the events of those dates in her police statement, her oral evidence in the Local Court, her affidavit evidence and her evidence in this Court was consistent and I accept it.
A few days later the mother reported to the police her desire for an ADVO and informed police that the father has threatened her on numerous occasions such as “I am going to kill you” and “You can’t leave. Even if it means I kill you and the kids.”
As discussed below the mother was a reluctant complainant to the police – fearing that the act of reporting the father may place her in greater danger. The mother made a contemporaneous complaint in respect of the threats to her GP, Dr DD, when she attended at his practice in mid‑2020. The record says in Exhibit 165:
says police advised her to put AVO and did so
says husband threatened her life and her kids life
feels very fearful
I accept that the father made the threats. In accepting this evidence, I am aided by the manner in which the mother gave her evidence and her contemporaneous complaint to her GP.
In mid-2020 the mother was at the cemetery with the children for the purpose of visiting the grave of AU. The mother says that the father pulled his car up next to her and said “who the fuck do you think you are” and “you can’t take my fucking kids away from me, I won’t allow you to do that”. The mother says that the father started to record with his phone and she asked him to leave and said she would phone police if he did not. The mother says the father grabbed her right wrist and grabbed her phone. He then proceeded to take X and leave the cemetery.
The father gave evidence in the Local Court that he was not aware the mother would be going to the cemetery but he knew it was likely. Even on his evidence it is of concern that while the ADVO was current the father went to the location he anticipated would be attended by the mother and then when he could tell she was there he chose to attend at the same time as her.
The mother also made a contemporaneous comment about the events to her GP at an appointment in mid-2020 where she told Dr DD:
… [Mr Shamon] confronted her in cemetary [sic]
Says [Mr Shamon] grabbed older daughter and put her in his car and tried to speed off
Pt says to [Mr Shamon] she wanted to call police, but he snatched her phone and grabbed her in the process hurting her R wrist and arm
I am persuaded that the incident on that date was an occasion of family violence perpetrated by the father against the mother in the presence of the children.
When the mother was cross-examined in the Local Court she was asked whether she had twice denied to the police that her husband had hurt her. She accepted it was likely she had done so and commented “I don’t like getting him in trouble.”
Grabbing of Y’s throat
The mother said in cross-examination that in December 2020 Y had come home from spending time with the father and told the mother that the father had grabbed her around the throat. The mother said that she thought it was just an accident that occurred that day “if he [the father] was frustrated or something” and that it was the first time such an event had happened post‑separation. The mother did not report it to the police because her evidence was that she did not want to get the police involved notwithstanding there having been already a provisional AVO in place. The mother explained that she did not cease time between the father and the children because she wasn’t thinking of whether the children were at risk but thinking of them spending time with him.
The father denies that this incident ever happened.
At first blush the mother’s failure to report the incident may be regarded as consistent with the conclusion that such a serious event did not actually occur.
I need to be cautious not to conclude on the basis of lack of contemporaneous complaint alone that the mother’s allegation is untrue. The failure to make a complaint is consistent with the mother’s reticence over a long period of time to escalate matters, report to authorities or take action which she considered may upset the father. I take into account the manner in which she gave her evidence throughout the trial – which was candid, responsive and consistent. As a consequence on the balance of probabilities I accept that the mother accurately informed the court of what she had been told by Y. I am not in a position to find that what Y reported occurred.
Incident in January 2021
Exhibit 18 is letters from Ms PP, psychologist, regarding X and Y. The letters dated 7 April 2021 and 18 May 2021 each record:
[Y] reported an instance around [January 2021] … where her father asked her if she had been to her aunt’s home. Upon answering yes, [Y] reported her father grabbed her tightly and hit her across the arm very hard. [Y] stated she was feeling so afraid that she decided to never visit her aunt again. Both [Y] and [X] reported that their father threatens them to not visit their aunt and her family. They feel intimidated by him so have ceased visiting their aunt.
The father denies that he physically assaulted Y. At [330] of his affidavit he says:
I have held and continue to have grave concerns about [Ms PP] as I did not and do not believe she was/is truly independent as she would not communicate with me, and I did not know/still do not know what [Ms PP] had been instructed by [Ms Shamon].
I accept that the children’s reports to their psychologist are a true reflection of what occurred. There is no foundation for the conclusion that the mother influenced the children to make reports nor is there any basis to conclude that Ms PP was partisan. The nature of the assault and the basis upon which it occurred create significant concern about future physical risk to the children in the unsupervised care of the father.
Early 2022 - X
There was an incident between the father and X in early 2022. The mother and ICL submit that the incident meets the definition of family violence in the Act. The father denies that he was violent. It is necessary for me to make a finding about what occurred on that day.
Turning to the evidence relating to the events of early 2022 – Exhibit 25 was of a file note of an attendance by X (with the mother) upon the family’s GP, Dr DD, in early 2022. It records:
says struggling to sleep
says father woke up angry and started punching walls
says father grabbed her and pulled her hair
says was not hit
says father was screaming a lot
says triggered due to father found out pt [patient, presumably] talked to maternal aunt
says feels scared when with father
says does not want to go back with father ‘for a while’
tender over apical scalp ‘where he pulled my hair’
neck N ROM
no external signs of bruising or lacerations
advised to d/w lawyers re options to avoid returning to father as pt feels fearful
also adivsed [sic] if feel unsafe to make police statement
I have considered whether the account provided by the child to the doctor may have been influenced by the presence of the mother. I am not persuaded this is the case. This account is consistent with other evidence discussed below. There is no evidence which persuades me that the mother has been involved in encouraging the children to provide untrue accounts to assist her in the proceedings.
In evidence (Exhibit 17) were handwritten notes from X in her diary in early 2022. The diary entry is titled “Notes for argument against dad”. It reads in part:
He forbade us from talking to half of mums family although we didn’t want to. Recently he found out I didn’t tell him about talking to [Ms LL]. He punched holes into my walls and pulled me out of bed screaming his head off. I got a bump on my head cause he pulled my hair really hard.
Similarly, I have considered whether the notes in X’s diary may have been in some way encouraged or influenced by her mother. I accept that the heading “Notes for argument against dad” appears to suggest an involvement of the child in the dispute. But it is also consistent with her recording her thoughts and feelings in support of the conclusion she has reached about attendance at her father’s home.
The single expert says:
When asked if she felt safe around her father, [X] stated that she did not feel safe when he lost his temper. She said he had always had a really bad temper but not as bad as she had seen on some occasions since the separation. She referred to the incident that occurred in [early] 2022 after her father discovered that she had spoken to her maternal aunt against his wishes. During this incident, she reported that during this incident, her father had punched holes in the wall and had pulled her by her hair.
(Single expert report dated 3 January 2024)
The mother in her affidavit says that in early 2022:
246. [X] then said words to the effect:
“[The father] got so angry when he found out that we had dinner with [Ms LL] and her kids. I was having a nap in my room because I was fasting and [the father] came in yelling and screaming ‘Get up! Get up! You think you can fucking lie to me’. He grabbed me from my hair from the top of my head close to my scalp and he lifted me up out of bed by my hair. When I touch my head now, it still hurts. [Z] was watching tv but started crying when she heard all the yelling and screaming from [the father] and she came into my room.”
“[The father] was so angry, he punched 4 holes in my bedroom wail. Afterwards, he was more focussed on repairing the holes he had punched in the wall to hide what he had done than to make sure we were ok. He took my phone away.”
247. [Y] then said words to the effect:
“[The father] told me that I would have to make it up to him for betraying him and having dinner with [Ms LL]. He told me that I would have to tell him something that he can use against you. My heart was pounding I was so scared. I told [the father] that when we go to [Mr MM’s] house, we don't just sit by ourselves on the couch like he tells us to do, we hang out with our cousins. I told him that you went to Melbourne in January when we were with him during the school holidays. And I told him that you told me that I didn't have to tell [the father] that we had. dinner with [Ms LL]. [The father] got angry and yelled at me saying ‘What's any of this shit going to do for me! Give me something else’. I didn't have anything else to tell him.”
248. [X] informed me that she was still experiencing pain in her head following the incident of [early] 2022. I then made the first available appointment for [X] with our family GP, [Dr DD], which was [in early] 2022. During the appointment, [X] spoke with [Dr DD] about the incident of [early] 2022 …
The father in his affidavit at [160(f)] says:
I deny that I yelled and screamed at [X] “Get up! Get up! You think you can fucking lie to me”. I categorically deny grabbing her hair from the top of her head and lifting her out of bed by her hair. I deny that [Z] started crying. I deny punching 4 holes in [X’s] bedroom role because I was so angry. I deny that I interrogated [Y].
In his oral evidence the father agreed that he raised his voice but he did not characterise that as being “angry”. The father was resolute in cross-examination that nothing physical happened between him and X on this occasion notwithstanding that he could not provide an explanation why in a note by his therapist Dr AB said:
… there was an incident that involved a heated interaction between himself and [X] he did not hit her, said it got “a bit physical” – I asked for more details and he said it involved “nudging” – seemed unsure, although [X] claimed he pulled her hair and reported this to Gp at mother’s encouragement and this led to no contact three weeks later.
The father’s evidence in cross-examination was that X is lying about him having punched holes in the wall and pulling her hair.
Unprompted the father offered the following in cross-examination:
[THE FATHER]: The only reference – if – it may assist you, the reference pertaining to punching the walls, my father, who lives across the road from us, had just moved. And my parents had every intention of knocking down their old home. So that weekend we had actually gone across the road to my parents’ former home – because it became their former home – and because we knew the property was going to be demolished, we took a few [tools] – and not just my children, some of my other nieces and nephews – and we started demolishing the home. Putting on safety gear. But it’s something that I have children do as a form of stress relief
[COUNSEL FOR THE ICL]: You think that’s what [X] is talking about, when she reported to her mother that you punched holes in the walls?
[THE FATHER]: That’s the only connection I can make between that statement and reality
[COUNSEL FOR THE ICL]: You don’t think … that [X] distinguished between demolishing a wall at her grandparents’ former home – because it was getting torn down for renovations – and her dad punching holes in a wall. You don’t think she made – could make that distinction?
[THE FATHER]: She also stated that I pulled her hair, and that didn’t happen.
In 2023, X commenced treatment with a new psychologist, Ms BA. On 19 December 2023 X met with Ms BA whose notes were in evidence (Exhibit 34). The note about the events of early 2022 reads:
Dad pulled her hair, punched the wall, and hit her face which was bruised (all because she lied about seeing her aunty). At the time [X] normalised this but now knows it is abuse
I accept that the account recorded by the psychologist in December 2023, nearly two years later, contains one material difference from X’s earlier accounts. It was submitted on behalf of the father that this additional allegation should cast further doubt on the veracity of the allegations. While I could not on the evidence find that the father had hit and bruised X’s face in early 2022, the inclusion of this in the psychologist’s later notes does not persuade me that the earlier accounts should be disregarded. The single expert was reluctant to conclude X had embellished the account and surmised it may have been a conflation by her of different events. It was submitted by the ICL that the inclusion of this further detail in X’s later account may be consistent with her feeling obliged to say more in order to be heard to address the pressure she felt she was facing to see her father. This is speculation, and while it may be accurate, I am not in a position to draw that conclusion.
I find that in early 2022 X was resting in the home of her father. The father entered the room and yelled at X and accused her of lying about interacting with the maternal family. The father grabbed X by the hair causing her pain. Further, the father punched multiple holes in her bedroom wall. The interaction caused Z to leave the room where she had been watching television and began crying. I find that this incident was an act of family violence perpetrated by the father on the child and each of the three children was exposed to that violence. The father’s denial to the Court is an additional source of concern (given my finding) because it creates uncertainty about whether such conduct would be repeated if it cannot and has not been acknowledged.
Other incidents which viewed cumulatively inform concern about coercive and controlling conduct
The evidence contained examples of conduct which could not be characterised as physical violence but would otherwise be considered as abuse or psychological violence.
The mother said that in the context of the parties’ discussion about IVF in 2017 the father said to her “[j]ust wait and see what I am going to do to you” (at [40]).
I have also found that the father made a threat to the mother and children at the time of separation.
Threats which engender fear are family violence and I find that the father made threats to the mother.
Violence directed at others
The father has been convicted of various offences between 1995 and 1998 as an adolescent, serving a custodial sentence in respect of some offences.
While the proceedings were on foot, the father received a court attendance notice detailing the two counts of a domestic violence offence. In the Facts Sheet, the victim was named as the father’s current partner, Ms AZ. Ms AZ described to police having been in a relationship for a long period but having “made their relationship official in 2019 when they essentially became fiancees [sic] to each other”.
The father told the Local Court that his “affair” with Ms AZ was for a period of two months in 2020. He told the single expert that he had been “seeing” Ms AZ for six months prior to separation. And, as set out above Ms AZ told police a different time frame.
Ms AZ was not on affidavit in the father’s case.
As recorded in the police Facts Sheet (Exhibit 49): Ms AZ told police the father’s “behaviour was controlling and becoming increasingly worse.”
The statement also contained the following:
The Accused would often deprive the Victim of anything she has should he not get what he wants or needs. Victim feels as though the Accused would punish her if his needs have not been met by the Victim. The Accused would often give things to the Victim she did not ask for, but later complain about her being unappreciative and would often punish her.
[In mid] 2024, when the Victim and the Accused had attended an appointment in the city of Sydney, during their conversation, the Accuse[d] had said words to the effect of “If you ever move on or if you break up with me, don’t think I’m ever gonna let you live. I’m gonna hire someone to shoot you”…
Ms AZ indicated that she and the father continued their disagreement and he threatened her on a phone call of mid-2024 saying:
“If you don’t listen to every word I say, if you don’t obey me, I will make sure I kill the whole [AZ] family and if they don’t die, I will humiliate them so much that I will make them commit suicide.”
The police took a statement from Ms AZ in mid-2024 which resulted in the charges.
The father, as he is entitled, declined to give evidence about the allegations.
The father tendered a statement from Ms AZ prepared by a criminal law firm and said to have been executed in mid-2024. That statement indicates that the police attended at the request of Ms AZ’s family (and not Ms AZ). The statement says Ms AZ felt stressed and anxious and “as though I may have overexaggerated some things”. This is similar to the incident between the parties where the father attributed police involvement to the maternal grandmother.
The statement said Ms AZ said she was not fearful of her partner and he had not hit her.
The evidence about the father’s recent involvement with police and the Local Court is relevant to the assessment of risk. The narrative which Ms AZ provided to the police was very similar to that provided by the mother in this case. Both the mother and Ms AZ were reluctant to report the father’s conduct and now both have asked police not to charge the father following a report.
Both Ms AZ and the mother have detailed the father threatening physical harm and death if the relationship were to end. Both Ms AZ and the mother have reported that the father is generous and then subsequently seeks to use his generosity to exert emotional pressure.
I accept that the evidence about what occurred between the father and Ms AZ has not been tested in a state court but that is not a reason for me to ignore the evidence when it comes to making an assessment about future risk of being exposed to family violence.
The father’s history of violence, my findings about specific contested incidents (set out above) and the information in the recent police documents provides a holistic picture which allows me to safely conclude that unsupervised time would constitute an unacceptable risk.
If there had been some recognition of the conduct by the father and this had been the subject of his therapy with his treaters then this may have gone some way to a conclusion that risk could be ameliorated. However, the evidence is that the father did not raise with his psychologist his arrest or the recent charges and (at least in so far as the notes and reports of his psychologist are concerned) the acknowledgment of family violence by the father in session has been oblique. The father said he prefers to focus in his sessions on the difficulties he experiences in being separated from his children (it would seem at the expense of acknowledging and working on the underlying reasons why this situation has come about).
Exposure to psychological harm
Having concluded that Z would be at risk on the basis of my findings about past violence and the concern about future repetition of like conduct it is not necessary to spend significant time assessing the other risks but it would be appropriate to acknowledge for the reasons discussed below that there is also a significant risk of psychological harm. I have considered some of the evidence which underpins this conclusion below.
Preventing the children from taking items to the mother’s home
The mother asserted in her affidavit [244] that the children were returned to her in the middle of the school holidays dressed in their school uniforms. As recounted in the mother’s affidavit X said that the paternal grandfather had tried to persuade the father not to send the children in their uniforms but that the father has said he would not let the mother have anything he had paid for.
In a similar vein, the mother’s affidavit recorded:
451.On one occasion in 2021, [X] returned home and I recall that she said to me: “Dad said he would put everything in my name if I choose to live with him, but if I choose to live with you, I will get nothing.”
452.On another occasion, [Y] said to me: “I can't take the iPad Dad bought me from his house, I am only allowed to use it when I am staying with him.”
The above examples demonstrate limitations in the father’s capacity to appreciate the children’s psychological needs.
Father’s engagement with treating psychologists
The father has engaged with psychologists since separation. This is important because I have to consider whether this engagement is protective of the children and has functioned to enhance his parenting capacity.
Dr AB is the father’s most recent treating psychologist. Her notes about sessions with the father also provided important information about the father’s propensity to assert control even after separation. He was discussing the mother’s proposal that the parties pay half each in respect to the children’s school fees. The notes in Exhibit 43 record that the father wanted to pay the whole amount:
However, feels in a dilemma – how can he give someone money who is pursuing him in court for money? [Mr Shamon] does not like being told what to do – wants to only do things when they are his idea. Posed question, What would it say about you to do what she wanted? He did not know. He will reflect on this further. Commented that he does not like the idea of doing things that directly benefit the mother when they are meant for his children.
The father’s continued engagement with a psychologist appears to be a positive factor for his engagement with Z as the father appears motivated to address his capacity to meet the children’s emotional needs. Dr AB described gains but with areas for improvement remaining. As recently as August 2023 in a session with Dr AB her notes recorded (Exhibit 43): “[Mr Shamon] thinks it is OK for children to be fearful of father – he is/was fearful of his own father, this is a part of discipline in their culture”.
The ICL sought that the father’s time be conditional upon his continued attendance with Dr AB. I accept that this is in Z’s interests and so consistent with L & T (1999) FLC 92-875, I propose to make such an order.
Exposing the children to the father’s attitude towards the mother
The father’s inability to shield the children from his attitude towards their mother was key to the original imposition of supervision. The mother gave evidence about an incident which occurred in late 2022 which is an example of the conduct supervision is designed to protect against.
In late 2022 the father attended the mother’s home after a supervised visit with Z. The father attended with his niece.
The father attended uninvited but explains that he had ordered food during the visit which did not arrive in time and then delivered it to the mother’s house once it did.
The mother says in her affidavit:
333.After closing the door and returning inside my home, I asked [X] and [Y] if they wished to speak to [Mr Shamon] to which they both declined.
334. Upon returning to the door, [Mr Shamon] and I had a conversation to the following effect:
Me: The girls said they don't want to see you.
[Mr Shamon]: Take the [food].
Me: [Z] has already eaten.
[Mr Shamon]: What are you feeding her? Lubricant cream?
335. After closing the door, I turned around and noticed [X] looking visibly upset after overhearing [Mr Shamon’s] comment. [X] later informed me that she forwarded a text message to [Mr Shamon] in relation to his comment.
(Emphasis in original)
The father’s account is that he said sarcastically and not in front of the children, “I hear all you’re feeding them is ice cream and liquorice” (Father’s affidavit at [204]). I reject the father’s evidence for the reasons which follow.
First, the father’s evidence itself is problematic. Why would he come to the mother’s house uninvited and when he has been asked not to attend and then proceed (in the children’s presence or otherwise) to criticise the manner in which the children were being fed by the mother in a manner which suggests it has been the subject of gossip-like discussion. The father has invented that comment to try to decrease his culpability.
I am persuaded by the existence of contemporaneous documentation that the mother’s account is accurate. X sent a text message to her father:
How could u speak to my mum like that in front of a child how should I believe you’ve changed when u would do something like that don’t expect me to speak to u f u come to my home again.
(Father’s affidavit filed 11 March 2024, p.32)
The father maintained in his oral evidence that he was not confident that X sent that message or that it came from her, citing that it may have been some other person in the house he was not aware of or could have come from the mother. The content of that message picked up on a repeated disrespectful theme continued by the father and on balance I am satisfied that he said the words attributed to him.
There were a number of occasions on which the father attended at the mother’s home uninvited in late 2023.
Late 2023
In late 2023 the mother informed the father by text message that X was in hospital after a medical episode.
On the following day the father attended the mother’s home. The mother asserts that the father demanded to see X and asked to see Z and it was only after the mother encouraged him that he went to speak to Y. The mother asserts that she observed Y to look upset and uncomfortable and after approaching them could overhear their conversation. The father asserts:
232.…I deny that I demanded to see [X] as alleged by [Ms Shamon] in these proceedings. I calmly asked to see [X], and [Ms Shamon] agreed. I was overwhelmed with relief to see that [X] was well, despite her admission into hospital. I spoke to [X] and [Y] for around 15 minutes, within ear shot of [Ms Shamon]. I then left the [Suburb F] property. As I was leaving the property, I received a phone call from [Ms Shamon] at 8.37pm requesting that I return to the house as the children wanted to continue speaking to me. I agreed and returned to the house to find [X] and [Y] waiting for me downstairs on the street in front of the property. I spoke to [X] and [Y] for an additional 15 minutes and then I left. I was not privy to any conversations the children purportedly had with [Ms Shamon] once I left the residence.
On the following day the mother sent the father a text message at 12.16pm saying: “Don’t come here again uninvited.”
The father at [235] of his affidavit says:
…This message was sent after I filed and served my Application in a Proceeding seeking to join [Ms Shamon’s] brother to the property proceedings and seeking additional supervised time with [Z] ([in late] 2023).
When asked in cross-examination why he included that phrase in his affidavit he said: “because that’s what happened”. The father could not see at the time he attended the mother’s home, at the time he swore his affidavit or at trial that the mother’s request that he not attend uninvited was genuine.
Late 2023
In late 2023 the father had a supervised visit with Z where again food was ordered during the supervision which did not arrive during the supervision. The father asserts that he attended to deliver the food and did not see or speak to the mother but when he was walking away, he heard the door open and shut, followed by Ms Shamon screaming “[X] did you hear what your father just said?”
The father maintained in cross-examination that this is what happened. In effect, he was contending that the mother had, on that day, invented a comment by him and involved X in her fabrication.
The father was asked by counsel for the ICL whether he thought he could just ignore the request she made three days earlier to not attend her home. The father said in response:
At the time I did think I could just ignore. In hindsight maybe it wasn’t the right thing to do. If I could just add to that, your Honour, she attended my parent’s home in September of ’23 uninvited, and with the children also, so …
The father’s response to the question was to, in effect, deflect from his own conduct by implying that the mother’s conduct prompted his action. The difficulty with that response was that the mother had, contrary to her own interests, facilitated the children spending time with the paternal family in recognition of the death of the husband’s father. Her actions were unimpeachable and ought not to have been interpreted as an invitation to the father to attend uninvited at her home.
The mother’s account was that when the father showed up uninvited, she asked him to leave and indicated Z was eating so did not need the food to which she said the father said: “[g]o cop it in the ass” (Mother’s affidavit at [384]). The mother said X was present and appeared distressed.
I accept that the father attended uninvited and was asked by the mother to leave. I accept the father insulted the mother as described and was overheard by X. The insult the mother describes is in keeping with the manner the father derided the mother which I have discussed elsewhere in the reasons. This is an example of the father’s inability to accept restrictions on his conduct.
February 2024 – AL Psychology
In February 2024 Y was to attend her psychology appointment with Ms AM at AL Psychology. The mother agreed for the father, per his request, to meet with Ms AM before Y’s session.
The father, when asked about safety concerns for Y, told Ms AM “[t]he mother's immediate family are known [drug] importers, and I am worried that the children may be exposed to drugs or violence in her household” (Father’s affidavit at [377]).
The mother provides an account in her affidavit of what occurred in February 2021. She says that when the father came out of the psychologist’s office, he took the seat next to her and said: “[w]hy have you been ignoring my calls?” to which she responded: “[t]here is nothing for us to discuss” (Mother’s affidavit at [430]).
According to the mother the conversation continued as follows:
[Mr Shamon]: My mum told me to move out of the home because you need to move in here with the girls.
I believe this was in reference to my conversation with [Ms AE] the day prior as referred to above in this Affidavit.
Me:That would never happen
[Mr Shamon]: Or if you let me put a ring on it [i.e., If I decide to marry him again]...
Me:this is not the time and place, please leave.
[Mr Shamon]: You look like you gained weight, you need to go to the gym.
Me: I don't trust a word that you say, it’s getting embarrassing, please leave.
(Mother’s affidavit filed 11 March 2024, p.72)
The father says that the conversation at this time was about payment for the session but it is likely that he is conflating what occurred later when the session was finished.
The mother left the waiting room and the practice and the father followed her. The mother says that outside the father continued the conversation:
[Mr Shamon]: You know, whatever Judge Christie decides, I will appeal it or try to adjourn it. I can go on for 10 to 15 years. It doesn't bother me. I am actually enjoying this. I've got nothing to lose.
Me:[X] will be 18 soon anyway.
[Mr Shamon]: But there's still [Z]
(Mother’s affidavit filed 11 March 2024, p.72)
The mother says when she was walking away, back inside she heard the father say: “walking behind you, I really think you should hit the gym” (Mother’s affidavit at [433]).
Consistent with the notes from the psychology clinic, when the mother came back inside the receptionist offered her water and sat next to her. The mother says she saw the father ““standing outside the waiting area glass door, making faces and opening and closing the door saying “Ha! Made you smile” and “Smiled again” making me uncomfortable.””
The father’s account is that he said to the mother words to the effect of, “smile, [Ms Shamon], smile”. Even the father’s version of this interaction seems entirely inappropriate given the nature of the parties’ relationship.
The receptionist made an offer to the mother that she could wait in the staff room which she did. Subsequently, there was a disagreement about payment of the invoice and the mother paid it in full. The father says it was not a disagreement – but insisted that upon receipt of an invoice by email he would make payment. It would appear that this was not the practice of AL Psychology and so the mother paid.
The discussion had occurred in the presence of Y who the mother says told her she felt sick.
On that day at 3.58pm, Ms AM wrote an email to two staff members of AL Psychology, including the Principal Psychologist:
I’m writing to summarise the situation that occurred on […]/02/2024 during my 11AM appointment with Miss [Y]. Her father, [Mr Shamon], and I had previously agreed upon a time to meet for 5-10 minutes during his daughter’s session at his request to introduce himself and provide a summary of what he is hoping for within [Y’s] care (court-ordered psychological care).
[Mr Shamon] came into the practice and informed [Ms BC] that he had an appointment with [Ms AM] at 11AM, that he would be waiting outside the practice doors, and for [Ms BC] to come and get him when [Ms AM] was ready. I was sitting with [Ms BC] and responded to the statement by saying “Hi, I’m [Ms AM], if you just take a seat here (pointed to waiting room chair), I will be with you in a few minutes. I got the impression that the statement he had made before I introduced myself was quite demanding in nature, and I wanted to ensure a boundary was set that we do not collect people from outside the practice, but rather we have them sit in the waiting room.
Whilst I cannot disclose the details of what was discussed in my session with [Mr Shamon] and then subsequently with [Y], [Mr Shamon’s] manner of speaking and the content of the conversation at times appeared to be less related to [Y’s] case and more focused on [Ms Shamon], [Y’s] mother and his opinions towards her. I believe the content of his conversation and how it was stated is congruent with my ongoing formulation of [Y’s] presenting concerns.
I brought [Mr Shamon] out of the consulting room to bring [Y] in for her session and she was visibly uncomfortable but was aware that her Father would be here as it had been discussed prior. I got [Y] to stand beside me as she briefly spoke to [Mr Shamon] and walked her into the room. [Mr Shamon] was present when I had finished my session with [Y], unbeknown to me. My expectation was that he would leave straight after. I witnessed an argument between himself and [Ms Shamon] regarding payments and exhibited great distress on [Y] and [Ms Shamon’s] faces. [Ms Shamon] expressed her desire to leave as quickly as possible after she had requested [Mr Shamon] not be outside with [Y] unsupervised. As they left I observed [Ms Shamon] and [Y] walking very quickly and [Mr Shamon] pacing after them asking a question …
(Mother’s affidavit filed 11 March 2024, p.319)
The Principal Psychologist, at 7.02pm two days later sent an email to the father, mother and the ICL stating the following:
I am emailing to report some concerning conduct that occurred in our clinic.
On Tuesday […] roughly between the hours of 10:45am and 12:00pm, [Y], her mother [Ms Shamon], and her father [Mr Shamon], attended our clinic for [Y’s] 11am scheduled psychology session with [Ms AM].
•[Ms Shamon] and [Mr Shamon] sat next to each other in the waiting area, at some points, [Ms Shamon] got up to leave, to which [Mr Shamon] followed her outside.
•[Ms Shamon] appeared visibly distressed and uncomfortable when she returned, she was seated in a chair in the reception area, had her head down and was shivering.
•Our receptionist asked [Ms Shamon] if she was okay to which she responded saying she was uncomfortable due to the presence of her ex-husband, who she mentioned would keep following her in and out of the clinic.
•Our receptionist offered her to sit in the staff room located at the back of the clinic, to which she accepted.
•At one point [Mr Shamon] opened the clinic front door and said to his ex-wife ‘smile, baby, smile’.
•He also loudly proclaimed “Your opinion matters hey?” in reference to a poster we have placed in our clinic asking for clients to leave us feedback.
•Multiple clients were present in the waiting room at the same time.
•These clients appeared visibly uncomfortable during the whole ordeal.
•They also asked our receptionist if [Ms Shamon] was okay and mentioned that they noticed how distressed and uncomfortable she was.
I have also attached below this email, an email we received from [Y’s] psychologist [Ms AM], regarding some other concerning occurrences on that day. Please read the below email for more information.
The purpose of this email is to inform you of the abovementioned conduct, and highlight the unacceptable manner in which this situation unfolded. We have a strict policy regarding client and employee comfort and safety whilst in our clinic. During this time, both our employees and clients felt uncomfortable and unsafe. We will not tolerate this type of behaviour and conduct moving forward. In future, if this type of behaviour or any type of inappropriate and unacceptable behaviour occurs, we will be forced to cease all services …
(Emphasis in original, Mother’s affidavit filed 11 March 2024, pp.317–318)
In cross-examination, the father was questioned about this email by the applicant’s counsel. He said he felt like he had walked into a “set up”. The inference was that he has been set up by the mother (or perhaps by joint efforts between the mother and the psychologist’s practice). He said he felt “like the psychologist that [Ms Shamon] insisted that my daughters go see and, ultimately, went to see could potentially, at face value, be compromised”. The father questioned the psychologist’s objectivity and impartiality. The parties had jointly agreed to Ms AM.
The following day at 12.47 pm the father sent a reply:
I dispute the events as described in your email. I am deeply concerned with your email and the fact you failed to confirm any of the information stated in your email. It seems you simply conveyed what was told to you without verifying or seeking to assess independently what you were told verbally.
This is deeply concerning in particular as you are a ‘Principal’ .
For the record -
•[Ms Shamon] invited me to have a conversation with her outside (I did not follow her as you incorrectly stated in your email). Video and audio footage will confirm this .
•I challenge you to provide video footage of me 'following her in and out of the clinic'. This simply did not occur.
•At no point did I say ‘Smile baby Smile’. My words were ‘Smile [Ms Shamon] Smile’. Again audio of our conversation will confirm this.
•There were two other people and your receptionist in the waiting room. I challenge you to provide a statement from these people.
Finally, I notice that [Ms Shamon] insisting I pay for the psychological consult in the presence of [Y] and me asking [Ms Shamon] to avoid having this discussion in [Y’s] presence was not noted in [Ms AM’s] email.
In addition to the video and audio footage, I ask for [Ms AM] to comment on her witnessing the mother asking me to pay for the session in the presence of [Y] which in my view caused [Y’s] distressed. It is not appropriate for the mother to badger me to pay for a fee in the presence of [Y] yet [Ms AM] who was present when this badgering was taking place seemed silent on the issue. Kindly ask [Ms AM] to comment on this.
The only comment I made in reference to the mother in our consult was the fact the mother’s [relatives] have been convicted for [drug offences] and that I was concerned about this. Please provide copies of [Ms AM's] notes so as to validate this position. I don [sic] not recall making any other reference to the mother.
Please advise when we can expect the video and audio footage to validate the hearsay comments made by the Principal and a copy of [Ms AM’s] notes.
(Mother’s affidavit filed 11 March 2024, pp.316)
The father did not agree in cross-examination that in his reply email he was intending to defend accusations against him. Rather he said that it was to clarify what happened in circumstances where the sender of the email was not present during the incident.
The following day in cross-examination, the husband said that he did not know that BD Pty Ltd was an entity of his sister until after yesterday when he asked her. The husband confirmed that he did not ask his brother why he directed him to make a declaration of $397,000 in favour of BD Pty Ltd.
I am further persuaded that the evidence of the husband and the second respondent to the effect that the distributions made in 2020 from the Shamon Trust were not in furtherance of an agreement to run BB Pty Ltd effectively as an equal “partnership”, by the fact that the distributions were not equal. According to the husband about $557,010 was paid “at the direction” of the second respondent (from a dividend of $958,000 or $910,000) with no explanation from either witness as to why this approach reflected their alleged agreement.
The wife contends and I accept that the husband made payments to his siblings after separation which had the effect of reducing the value of the assets available for adjustment between the husband and wife. I do not accept that the allocation to the company associated with Ms G Shamon was referable to the entitlements of Mr B Shamon.
It follows then against the above factual findings that I must determine whether the funds which were paid to the husband’s sister are appropriately added back.
In Trevi the Full Court said at [30]:
Two fundamental premises emerge from Omacini and the authorities preceding it. First, “adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.
(Footnote omitted)
It is with this in mind that I have determined that it is necessary to approach the funds paid to Ms Shamon, by adjustment pursuant to s 75(2)(o).
It is also apparent from the above findings that the husband has operated the Shamon Trust as his alter ego. In 2019, the only distribution was to the wife. In 2020, the distributions discussed above saw $958,000 paid to the husband and his siblings/entities with minor amounts allocated to the husband’s parents and the parties’ minor children. In 2021, the only distribution from the trust was paid to the husband ($18,000).
Further, after separation, the husband determined that the shares in BB Pty Ltd owned by the Trust would be transferred to his brother (and on what terms). He then accepted the transfer of the shares back to beneficial ownership by the Trust. Given the value attributed to the shares by the single expert the first transaction was significantly under value and the reconveyance without consideration explicable only in light of the husband’s actions having been the subject of scrutiny in these proceedings.
The assets of the Shamon Trust are plainly those built up during the marriage. I have no hesitation in concluding that the Shamon Trust should be considered an asset in the hands of the husband notwithstanding that the Trust Deed establishes the trust as a discretionary trust.
$170,000 transferred to V Trust
On 5 August 2020 the husband transferred $170,000 from his CBA account …44 to the CBA account of the V Trust ending …53. The husband says that he then withdrew these funds from the V Trust account and paid them to his sister Ms G Shamon. The husband says that the $170,000 was part of $240,000 he owed his sister.
The round robin nature of the transactions is entirely unexplained by the husband. The husband’s account requires the Court to accept that Ms G Shamon would receive money from her brother at the end of July 2020 which exceeded what she was owed. Return it to him in early August 2020 only to have him inexplicably pay into the bank account of another entity only to withdraw it and pay it to her. Apart from the husband’s evidence that he paid those funds to his brother-in-law there is no other evidence to support this. The husband says it was paid in cash. It was withdrawn from V Trust by cheque. I am satisfied that $170,000 should be considered as a premature distribution of funds to the husband.
The husband says he owed his sister $240,000. The amount said to be owing has been calculated by the husband by reference to the $700,000 which the husband received from his sister on 4 August 2020 and his acknowledgment that $460,000 of those funds were his own funds. The wife contends that the entirety of the $700,000 were the husband’s funds or funds to which the husband (and not his sister) was beneficially entitled and accordingly there was no indebtedness in the sum of $240,000 (or any other amount). It follows, she submits that the $170,000 was not required to be paid. I agree for the reasons outlined at [271] – [276].
I agree that the evidence has not established any basis upon which to conclude the husband owed the $170,000 to his sister. In those circumstances, the husband has not adequately explained the transactions or the withdrawal and it follows that I accept that he has had the benefit of those funds (or should be treated as having had the benefit of those funds).
I propose to deal with this premature distribution of funds pursuant to s 75(2)(o).
Refund of $80,000
The wife seeks that the Court addback as against the husband the sum of $80,000 said to have been payable to the Shamon Fixed Trust as a consequence of the sale of shares in February 2021. The husband resists such an addback.
When the husband sold units in the V Trust on behalf of the Shamon Fixed Trust he said in an affidavit of 12 May 2021 that the Shamon Fixed Trust was paid an amount per unit plus a reimbursement for capital contributions.
The wife’s position is that, consistent with the husband’s earlier evidence, there should have been an $80,000 reimbursement to the Shamon Fixed Trust.
The husband’s evidence does not address the reimbursement, its receipt or its application. It does not explain why the earlier transaction included a reimbursement for capital contribution and the latter one did not appear to – or at least he had not said in his evidence that it did.
If the funds were received, then I am not sure that the evidence establishes they were paid to the corporate trustee. The evidence does not establish that they were paid to the husband. While the wife may suspect that the husband has received funds the evidence falls short of establishing receipt. I decline to include this amount as an addback. It would have been payable to the Shamon Fixed Trust and not the husband and may have had an impact on the value of the Shamon Fixed Trust (or not, depending on valuation methodology).
I am, however, satisfied that the husband has not adequately addressed the issue through documents, discovery or evidence and so it contributes to the concern about the accuracy of his evidence and the discharge by him of his disclosure obligations. I do not propose to include $80,000 as an addback in the balance sheet but will consider this issue and its non-disclosure aspects when I come to consider the question of adjustments under s 75(2)(o) of the Act.
$110,000 said to have been paid to Mr AV
The wife asks that the sum of $110,000 which the husband says was paid to M AV (“Mr AV”) be included as a premature distribution of property to the husband and added back against him on two alternate bases: either she does not accept that the funds were paid to Mr AV, or in the alternative, the husband’s participation in a Ponzi scheme meets the definition of “reckless, wanton and negligent”. The husband says the money was legitimately used by him to repay a loan and should not be added back.
The husband says that in 2019 he borrowed $90,000 from his best friend Mr AV. Mr AV is not on affidavit. The husband says he did not inform the wife but invested the funds in a company known as BE Company. The husband does not annex a bank statement showing receipt of funds from Mr AV or any document to demonstrate payment of those funds to a third party. The husband does not rely on any documentation in respect of his investment. The husband is a university qualified finance professional.
The husband’s affidavit is silent about any repayment to Mr AV.
The husband relies on a reconciliation of his CBA account ending …44 for the period 1 July 2020 to 31 December 2021 to support repayment of funds to Mr AV. Exhibit 133 – the reconciliation – attributes certain withdrawals to repayment of Mr AV. It cannot be accurate since the notes the husband made record the balance being paid down to nil on 6 April 2021 and again on 15 April 2021 (this accounts for the disparity between the $90,000 which the husband says was owed and the recorded $110,000 which the husband indicated was paid in Exhibit 133).
The husband says that this was an imprudent investment and the wife should “take the good with the bad”. The husband certainly withdrew funds from his bank account but there is no evidence they were paid to Mr AV. The husband produced a schedule of repayments (a document he had created) which were said to total $90,000 between 5 November 2020 and 15 April 2021. The amounts attributed to repayment of Mr AV did not actually total $90,000. The husband does not explain this anomaly. It is, as the wife submitted, consistent with the proposition that the loan to Mr AV was fictional.
It stretches credulity that the husband would borrow such a significant sum of money and not have a single document referable to the investment of the borrowings. I find that his failure to call evidence from the lender also supports the conclusion that such evidence would not have assisted his case.
I do not accept that it is credible that he would have no documentary evidence to establish the borrowings or their application. I am not satisfied that the husband borrowed the money from Mr AV and therefore needed to repay and did in fact repay Mr AV. If I am wrong then the wife’s lack of knowledge of the investment, coupled with the lack of documentation (given the husband’s qualifications) satisfy me that the investment was reckless. On either view I propose to treat the $110,000 as a premature distribution in favour of the husband. I do not however propose to add it back to the pool but rather to take it into account under s 75(2) of the Act.
$50,000 paid to Ms C Shamon and monies paid to Mr AN
Under this heading, I am considering a number of payments made by the husband to his sister Ms C Shamon after separation. The wife says those funds were effectively the husband’s funds and he paid them to his sister in order to remove them from the pool of assets available for adjustment as between the parties.
The husband’s affidavit is silent as to the distribution by the Shamon Trust to his sister Ms C Shamon. Ms C Shamon’s affidavit is silent as to any distribution received by her from the Shamon Trust.
The husband says that his sister lent him $50,000 in about 2007. The husband’s sister gave evidence to the same effect. The husband says the money was used to fund renovations and that he proposed to pay her back when she asked. At the time of the parties’ separation some 13 years later, she had not made a request.
I have no reason to doubt that the husband’s sister provided money in 2007. It is less clear that it would have the character of a loan at law and the timing of the husband’s repayment creates doubt about whether in fact the monies would have been repayable.
In any event the husband transferred significantly more than $50,000 to his sister.
The evidence (Exhibit 100) demonstrates the following payments to Ms C Shamon’s NAB account ending …35:
Date Amount Particulars 3 Nov 2020 20,000 Mr Shamon 9 Nov 2020 10,000 Mr Shamon 7 Dec 2020 10,000 Mr Shamon loan repa 7 Dec 2020 10,000 Mr Shamon Drawing 7 Dec 2020 10,000 Mr Shamon Loan repay 7 Dec 2020 15,000 Mr Shamon Repay 21 Dec 2020 5,000 Mr Shamon Repay 27 Jan 2021 5,000 Mr Shamon Drawings 22 Feb 2021 10,000 Mr Shamon 26 Feb 2021 20,000 Mr Shamon 1 Mar 2021 5,000 … 2 Mar 2021 20,000 Mr Shamon 10 Mar 2021 20,000 Mr Shamon 11 Mar 2021 20,000 Mr Shamon 8 April 2021 3,000 Mr Shamon 8 Apr 2021 7,000 Mr Shamon 13 May 2021 1,800 Thanks Mr Shamon Subtotal $191,800
The 10 and 11 March 2021 payments totalling $40,000 described in the husband’s affidavit as “Repayment of loan to [Ms C Shamon] and monies to [Mr AN]” did not come from the husband’s CBA personal account …44 – or at least they are not listed in his reconciliation which became Exhibit 133.
Inexplicably, Ms C Shamon’s affidavit said that between 15 September 2020 and 14 September 2021 she received $50,000 from her brother by way of bank transfer. She annexed the bank statements from which the above table is drawn. In fact, she received well in excess of $50,000. The effect would appear to be that when she says she then loaned money to her brother she was, in actual fact, returning his own funds.
Ms C Shamon gave no evidence in her affidavit to the effect that her brother gave her money which was owed to her husband. The fact that some of the significant transfers are annotated as “drawings” is inconsistent with the husband’s position.
Monies said to be owed to Mr AN
Mr AN is married to Ms C Shamon. The husband says he was obliged to pay Mr AN $145,000 because he had collected this sum for him and it was stored in cash at the parties’ home. He says that at separation it was gone and the Court should infer the wife retained it. He says he still felt duty bound to return the funds and so paid Mr AN $145,000.
The wife says she did not take $145,000 and if the husband paid Mr AN $145,000 that amount should be included as an addback as against the husband.
Exhibit 127 is a photocopy of a handwritten document dated February 2019. The agreement was an agreement between Mr AN and his business partner whereby the business partner agreed to buy out Mr AN for $160,000 plus $70,00 bond or a total of $230,000 payable in instalments of $10,000 a month commencing 27 February 2019 – with the first payment (which is recorded as having been donated) and the second payment to be paid 1 April 2019 and then monthly. According to a post-it note $75,000 remained owing as at 6 February 2020 and $145,000 had been paid. The calculation assumes that no more payments were received and stored at the parties’ home between February and separation. The evidence is silent.
The husband’s affidavit says he collected the cash. His oral evidence was that Mr AN’s brothers did so – this was consistent with the post-it note. The evidence does not address why Mr AN’s brothers would collect the cash and give it to the husband to store save that the husband says generally he would assist family members by holding cash.
I accept that Mr AN entered into an agreement. I am less convinced that the evidence establishes to the requisite standard that the husband needed to pay Mr AN $145,000.
Mr AN’s oral evidence was to the effect that the money owed to him was collected by his brothers and given to his wife. He says his wife then gave it to her brother. Mr AN said the arrangement that Mr Shamon hold the funds arose because he would be overseas but he confirmed this trip was from February 2019 returning within three months.
The accounts of the witnesses were significantly inconsistent with one another.
The husband did not give the cash he says he owed to Mr AN. The husband made a series of payments to his sister Ms C Shamon, Mr AN’s wife. Ms C Shamon annexes her bank statements for the period 15 September 2020.
Together the deposits total $191,800. It is not clear why the witness’ affidavit says she received $50,000 by way of bank transfer when her bank records suggest an entirely different position. Her affidavit is silent on this discrepancy. Had the husband made payments to his sister of the $50,000 he says was owed to her and $145,000 those payments would have totalled $195,000.
The evidence falls short of establishing on the balance of probabilities that the money the husband paid his sister was money to which his sister or Mr AN were entitled. I propose to take this into account under s 75(2) of the Act.
Disposal of interest
In October 2020 the husband ceased to be a director of BB Pty Ltd and the shares he held on behalf of the Shamon Trust were transferred to the second respondent, Mr B Shamon.
The husband says at [669] of his affidavit:
[Mr B Shamon] and I also entered into a Control of Sale Agreement. The terms of the sale included:
a.The [Shamon Trust] is to receive $4,000 per month for 12 months (a total of $48,000);
b.That I keep possession of the 2 cars held in the name of [BB Pty Ltd] with [BB Pty Ltd] to meet all expenses;
c.That [BB Pty Ltd] continues to pay for my mobile phone expenses;
d.I continue to service client's and transition [Mr B Shamon] as the contact person;
e.[Mr B Shamon] indemnify me against any rent payable by [BB Pty Ltd] to [V Pty Ltd].
f. A restraint of trade against me.
The husband identified payments of $4,000 per month into the bank account of the Shamon Trust as payments by Mr B Shamon to acquire the Trust’s interest in BB Pty Ltd. Firstly, this is inconsistent with the proposition that the shares were held by the trust in furtherance of the “partnership” between the husband and his brother. Secondly, the husband provided a bank statement to support the payments having been received by the Trust as he asserted. When the whole of the trust bank statements (as opposed to the section upon which the husband relied) came into evidence it was apparent that there had been regular monthly payments of $4,000 from BB Pty Ltd into the bank account of the Shamon Trust predating the “Control of Sale Agreement”.
The husband asserts in his affidavit:
716. By July 2023, [Mr B Shamon] said to me, “I don't want to be part of [BB Pty Ltd] anymore. I want to get out of the business”. [Mr B Shamon’s] employee entitlement was approximately $70,000 (being unpaid leave etc), but as [BB Pty Ltd] was unable to pay this amount, I agreed for [Mr B Shamon] to transfer this 100 out of 100 ordinary shares in [BB Pty Ltd] to me non‑beneficiary and for [Mr B Shamon] to remain working as a 9am to 5pm employee. This then allowed him to work outside these hours while still working for [BB Pty Ltd]. I agreed with this proposal on the basis that in accordance with Orders dated 20 May 2021, such a transfer of shareholding is by way of reconveyance of my interest in [BB Pty Ltd], and thus in compliance with the Orders.
717. On 22 August 2023, my solicitors wrote to [Ms Shamon’s] solicitors to put them on notice of my intention to accept the transfer of shares from [Mr B Shamon]. I asked [Ms Shamon] to respond by no later than 31 August 2023 if she objected to the transfer occurring. I did not receive any response from [Ms Shamon] or her solicitors.
718. [In] September 2023, [Mr B Shamon] transferred his 100 out of 100 ordinary shares in [BB Pty Ltd] back to me, non-beneficially, as trustee of the Shamon Trust. At [MRS-“84”] is copy of the ASIC search and share transfer document. No consideration was paid.
719. On 3 November 2023, my solicitors proposed to [Ms Shamon’s] solicitors to sell [BB Pty Ltd] and to deposit the net sale proceeds into a controlled monies account pending a final resolution of our matter. I did not receive a response from [Ms Shamon’s] solicitors until 11 December 2023 where I understand [Ms Shamon] verbally refused to accept the proposal.
(Emphasis in original)
I have found that the Trust has a value derived from its ownership of the shares in BB Pty Ltd and that the husband has effective control of the Trust.
Profits retained by Mr B Shamon
The wife sought inclusion as a notional asset in the balance sheet the sum of $160,000 described as “profits retained by [Mr B Shamon] from [BB Pty Ltd]”. In her final orders sought the wife sought the following orders:
4.That [Mr B Shamon] account to the Husband for any profits and other benefit in excess of a reasonable quantum of renumeration obtained or received by [Mr B Shamon] by way of his receipt of the Husband's shares and interests in [BB Pty Ltd] from […] October 2020 to date.
5.In the event the Husband or [Mr B Shamon] oppose the relief sought in order 4, then the party who opposes such relief, and in the event they both oppose that they jointly and severally, pay the Wife's costs of the rectification of the disposition and the accounting for profits pursuant to order 4
s 1, 2 and 3on an indemnity basis.(As per original, Wife’s Case Outline filed 3 April 2024)
The husband and second respondent oppose that relief.
The two approaches are mutually exclusive. Either the wife is seeking to treat monies paid to Mr B Shamon as a premature distribution in favour of the husband or she seeks an account of profits.
The husband submitted that the wife had not articulated an evidentiary basis for the figure of $160,000.
The wife did identify the source of the claim for $160,000. It arises from the Balance Sheet of the Trust for 30 June 2020. The Balance Sheet which the husband discovered for the Trust was, consistently with the wife’s alter ego contention, headed “[Mr Shamon]” but was plainly from a set of financial statements for the Shamon Trust. In that statement, $160,000 was allocated to the beneficiary loan account for Mr B Shamon. That, however, does not take into account the distribution to BD Pty Ltd.
Mr B Shamon is a beneficiary and so allocating a distribution to him was within the discretion of the trustee, but as discussed above at length, entirely out of step with any pre-separation conduct by the trustee.
The wife made no application under s 106B to set aside any of the transactions.
I cannot be certain that Mr B Shamon (and not the husband) ultimately had the benefit of the funds which were notionally allocated to Mr B Shamon. It is this inability to determine with precision where the money was finally paid that makes an approach whereby I consider holistically the impact of removal of the funds from the pool and to the benefit of the husband and or his family as a consideration under s 75(2)(o) of the Act the most appropriate course in this matter.
Husband’s personal income tax liability
As a general rule, it is appropriate to have regard to all the assets and liabilities of the parties when reaching a conclusion about the net pool of assets available for adjustment as between the parties.
The husband says, to that end, I should include the income tax liability in his name. Exhibit 157 is a copy of a print-out from the Australian Taxation Office. It shows that on 8 June 2021 the husband was assessed for tax payable for year ended 30 June 2020 in the sum of $41,870.30. The amount was reduced by a refund for the following year in the sum of $7,357.87. The statement shows calculated interest and some small payments, such that as at 5 March 2024, the amount outstanding was $41,398.58.
I accept the liability exists and is referable to pre-separation income from which the wife would have derived a benefit. The husband does not give any evidence to explain why he has not paid his debt and let it accrue interest. His own affidavit evidence is replete with uncontroversial evidence that he has had funds sufficient to meet this debt. While the husband will remain responsible for payment of the debt, I do not propose to include it in the calculation of the net assets available for adjustment, consistent with the principles in In the Marriage of Af Petersons (1981) FLC 91-095.
The husband made no submissions to the effect that I should include the various loans he has obtained from family members (Items 28-33 on the Joint Balance Sheet) and I do not propose to do so.
I deleted amounts each party owes the other as well, because to include them in the “Joint Balance Sheet” would distort the analysis and have the potential to make one party in part “responsible” for a debt owed to them.
Shamon Trust: Asset or financial resource?
The Shamon Trust was placed in the Joint Balance Sheet under the heading “financial resource”. The wife contends it has a value of $659,656. The husband submits nil.
Two separate issues arise. Firstly, is the Trust an asset or a resource? And secondly, what is its value?
The second issue is more straightforward. The single expert valued the Trust and ascribed a value of $659,656 as at 30 June 2023. The husband does not challenge the value, he merely challenges its categorisation as an asset available as between the parties for adjustment. The submissions on behalf of the husband included this statement: “…consistent with the very nature of a discretionary trust, it is not open to the Court to place a value of such resource in the hands of the Husband”: Husband’s Written Submissions at [27]. While it is not possible to adjust interests in a financial resource it can be taken into account for the purpose of considering the relevant matters under section 75(2) and for that reason there is no prohibition on giving it a value.
In order to determine whether the Shamon Trust is appropriately regarded as an asset of the husband (or a financial resource of the husband with value) it is necessary to make some findings about its operation. The husband and wife were effectively able to exercise the power of appointment. It is not suggested by either party that the wife undertook any role in respect of the Shamon Trust in reality – save being named as an appointer and beneficiary.
The shares in BB Pty Ltd were only transferred to the Shamon Trust more than a year after separation. The wife submitted that to the extent that shareholding had value it had been built up through the efforts of the husband during their marriage: see Kennon v Spry (2008) 238 CLR 366 at [66], [69] and [137]. The husband could not argue that he had not been substantially involved in the establishment of the shareholding as an asset of value but argued that the value was also attributable to the efforts of his brother.
The husband was the sole shareholder between 2013 and 2017. The husband did not transfer shareholding to his brother in 2017 but to the Shamon Trust. The Trust transferred that shareholding to Mr B Shamon in October 2020 and in September 2023 Mr B Shamon transferred the shareholding back to the Shamon Trust.
Mr B Shamon did not graduate until 2015. After graduation, but before he was a registered professional, he was employed and paid as an employee. Given these circumstances, it does not appear as though his labour entitled him to an interest in the underlying asset (shares in the company which employed him). After the Trust held the shares in BB Pty Ltd the nature of the benefits enjoyed by Mr B Shamon in the business did not change to mirror those of Mr Shamon – in so far as he did not receive a car or dividends via the Trust.
Mr B Shamon’s evidence is that he “demanded” his brother provide him with a share of the profits after separation in July 2020.
Arising from the above findings, the assets (including notional assets), liabilities and superannuation of the parties is as set out in the following schedule:
Property, superannuation and liabilities
Ownership Description Value ASSETS 1 W D Street, Suburb F NSW $418,000 2 W CBA, account # …76 $32 3 W CBA, account # …57 $2,457 4 W Westpac, account # …54 $875 5 W Westpac, account # …11 (previously …68) $1,184 6 W Motor Vehicle 2 $16,000 7 W Household contents $12,000 8 W Gold and jewellery $17,000 9 H CBA, account # …44 $821 10 H CBA, account # …88 $8 12 H Gold and jewellery $15,000 13 J Monies in controlled monies account $90,859 14 W Shamon Fixed Trust $68,579 15 H 100% ownership in T Pty Ltd $28,079 16 H 100% interest in S Pty Ltd $42,000 17 H Controlled Monies Account (Ms G Shamon) $252,672 39 H Shamon Self Managed Super Fund (as at 30.06.23) $90,103 40 J Shamon Trust (owner of shares BB Pty Ltd) $659,656 Total $1,715,325 ADDBACKS 26 W Litigation funding received from Orders dated 21.06.21 $83,423 Total $83,423 LIABILITIES 27 W Mortgage on D Street, Suburb F NSW $58,231 Total $58,231 NET TOTAL POOL INCLUDING SUPERANNUATION $1,740,517 CONTRIBUTIONS
The contributions of the parties at the commencement of the relationship and during its subsistence are unremarkable. Each contributed – the wife more significantly in the role of homemaker and parent and the husband as an income earner. Although, I accept that wife also contributed income and the husband also undertook unpaid work as a parent and in respect of the parties’ home.
Until the time of the parties’ separation, there is little significant difference in a quantifiable sense between the parties’ contributions in their different spheres and I would regard them as equivalent.
After separation the wife has undertaken the majority of all parenting and since 19 May 2022, that has involved the full-time care of the three children.
The wife’s post-separation contributions require a further adjustment to the contribution-based entitlements of the parties such that she would be regarded to have made contributions which are recognised 55/45 in her favour at the time of trial.
MATTERS ARISING UNDER SECTION 75(2)
The husband is a self-employed finance professional. His declared income is low. I do not accept that he is presently exercising his pre-separation earning capacity. This is not addressed by Dr AB’s evidence as it does not establish that he is unable to work full-time.
The wife is a homemaker with limited previous workforce participation.
Based on the level of the husband’s income in the lead up to separation, it would be anticipated that he will have a significantly greater income than the wife for the foreseeable future. I note that in addition to income and dividends or distributions, the husband has benefits of employment not available to the wife such as provision of a car and payment for a phone.
The wife details her payment of outstanding school fees for the children. The husband gave evidence of a payment plan with Services Australia to pay $40 per month referable to child support and spouse maintenance. On this basis, it does not appear that the wife is likely to be in receipt of any substantial child support from the husband. However, given the parenting orders, the husband will have a significant expense of supervision.
Also highly significant are my findings about the amounts which the wife sought be added back. As indicated, I propose to take some those funds into account as premature distributions in favour of the husband when I consider what further adjustment is warranted pursuant to s 75(2) of the Act. The quantum is not precise, but the sums paid to the husband or at his direction are very significant when seen in the context of the pool available to the parties now. As indicated above, the two most significant transactions which have had an impact on the pool were the trust distributions of $958,000 and withdrawal of $400,000 from the mortgage over the former matrimonial home. As against that the wife had $75,000 from the mortgage secured over Suburb F. I am also conscious that the manner in which the transactions were undertaken by the husband and the failure to address some of them by correspondence and his evidence in chief have made the process of determining what occurred with precision difficult, and in some cases, impossible.
Given the size of the pool of assets available for adjustment it is important to take into account the dollar value of any adjustment orders.
The pool of assets for division is modest and in order to recognise the above matters, in particular the fact that the children will be cared for by their mother, in Z’s case for the next 12 years and the income disparity, the adjustment to recognise those matters will need to be 25%.
Overall, that will result in the wife receiving 80% and the husband 20%. The net pool is $1,740,517. A 25% adjustment in dollar terms is $435,129. Given the significant concerns discussed above about disclosure and diminution of the pool in the post separation period (together with the other matters discussed), no lesser adjustment would result in a just and equitable division.
The husband has the following assets:
(a)Bank accounts (…76, …57, …54, …11 (previously …68)) $829
(b)Gold & jewellery $15,000
(c)Shares in T Pty Ltd $28,079
(d)Shares in S Pty Ltd $42,000
(e)Shamon Self-Managed Super Fund $90,013
(f)Shamon Trust $659,656
Subtotal $835,577
The wife has the following assets:
(a)D Street, Suburb F $418,000
(b)Mortgage on Suburb F ($58,231)
(c)Bank accounts (…44, …88) $4,548
(d)Car (Motor Vehicle 2) $16,000
(e)Household contents $12,000
(f)Gold and jewellery $17,000
(g)Monies from 22 June 2021 order $83,423
(h)Units in Shamon Unit Trust $68,579
Subtotal $561,319
Given that the net identifiable assets and superannuation total $1,740,517 and the wife has assets which total $561,319 she will need a further amount of $831,095 to result in an 80/20 division. In the first instance she will receive the sums in controlled monies of $252,672 and $90,859. The husband will be required to make a further payment of $487,564 to achieve the overall settlement.
I accept that that may require the husband to realise assets. The husband’s application sought orders for sale of the shares in BB Pty Ltd. I do not propose to make that order – nor do I consider that a sale is necessarily required in order to enable the husband to make the payment which I propose to order. I take that view because of my findings about the manner in which the husband transferred his funds to family members after separation. I accept that if the husband does realise assets to make a payment then there may be costs associated with that realisation but I do not propose to make a specific allowance for them for two reasons: firstly, because as earlier noted, I am not satisfied that sale is required and secondly, because I do not have admissible evidence of the likely costs. The husband had asked the single expert to express an opinion about the potential tax implications if the shares in BB Pty Ltd were sold. He did so but his evidence was undermined by two matters – the first was the single expert’s concession that it was properly a matter for a tax accountant and he was not a tax accountant, and secondly, his ambivalent answer to the question about whether it would make a difference if the shares were sold by a trust or by an individual.
Structure of orders
Neither party sought an order concerning the husband’s interest in the self-managed superannuation fund and hence it will remain with him.
The husband sought an order that the wife transfer the Suburb F property to him. I do not propose to make that order. The wife wishes to retain that property in which she and the children currently reside.
The husband sought orders concerning the sale of the interest of the Shamon Trust in BB Pty Ltd. The wife sought orders for sale in default of the husband’s compliance with orders she otherwise sought. As already indicated, I do not propose to order that the husband in his capacity as trustee sell the shares where the evidence does not establish that it is required.
The husband and wife both sought the controlled monies account in the name of the husband and wife be paid to the wife. I will make that order.
The husband sought payment of the controlled monies in the account in the name of his sister be paid to his sister. For the reasons discussed above, I propose those funds be paid to the wife.
Both the husband and wife seek to retain the units in the Shamon Fixed Trust. They are currently in the wife’s name and have always been in the wife’s name. The units in the Shamon Fixed Trust entitle the holder to income derived from rents payable to the V Trust. While I accept that it is appropriate that the wife retain this income producing asset, I am concerned about the practicality of this in circumstances where S Pty Ltd is the corporate trustee of the Shamon Fixed Trust. I propose to give the wife 28 days in which to elect whether she wishes to retain the Units and if she does not elect to retain them, the husband is to pay her $68,579.
I certify that the preceding four hundred and nineteen (419) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 11 December 2024
SCHEDULE OF PARTIES
SYC 2375 of 2021 Respondents
Fourth Respondent:
ESTATE OF THE LATE MR R SHAMON
Fifth Respondent:
MS G SHAMON
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