Simon and Michel - [2010] FMCAfam 1055

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIMON & MICHEL

[2010] FMCAfam 1055

FAMILY LAW – Section 79A application – husband’s failure to disclose well-paid job – application for change of children’s names – application for vacation of costs orders.

Family Law Act 1975, ss.75(2), 79A, 117
Federal Magistrates Court Rules 2001, r.13.11

Rice & Asplund (1979) FLC 90-725
SDW v JCL (2005) FMCAfam 210

Applicant:

MS SIMON

Respondent:

MR MICHEL

File Number:

MLC 2979 of 2009

Judgment of:

Burchardt FM

Hearing date:

2 September 2010

Date of Last Submission:

2 September 2010

Delivered at:

Melbourne

Delivered on:

5 October 2010

REPRESENTATION

Counsel for the Applicant:

Mr C. Arnold

Solicitors for the Applicant:

Roger O’Halloran & Co

The Respondent:

In person

DRAFT ORDERS

There be a further splitting order in the superannuation benefits of the parties, such that the wife receives a further $15,000 of whatever sums the husband now presently has to his benefit.
The husband pay the wife each week spousal maintenance of $43 effective from 30 November 2009.
Discharge that part of paragraph 7b(i) final parenting orders dated

8 September 2009 fixing changeovers for the commencement of time spent at the paternal grandparents’ residence and substitute the foyer of the supermaket in Victoria.

THE COURT DECLARES THAT:

It is in the best interests of the children [X] born 2004, [Y] born 2006 and [Z] born 2008 to be known as MICHEL-SIMON.

THE COURT ORDERS THAT:

The Mother be authorised to apply to the Registrar of Births, Deaths and Marriages in the State of Victoria to change the surname of the children previously registered as MICHEL to MICHEL-SIMON.

THE COURT DIRECTS THAT:

A sealed copy of this order be served upon the Registrar of Births, Deaths and Marriages in the State of Victoria who is requested to give effect to any such application.

THE COURT FURTHER ORDERS THAT:

Each party notify the other forthwith in the event a child in their care sustains a significant injury or illness.
Order 31 of the orders made on 1 February 2010 be set aside.

IT IS NOTED that publication of this judgment under the pseudonym Simon & Michel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 2979 of 2009

MS SIMON

Applicant

And

MR MICHEL

Respondent

REASONS FOR JUDGMENT

Introductory

By the further amended application, filed on 13 August 2010, the applicant Ms Simon (“the wife”), seeks orders made pursuant to s.79A of the Family Law Act 1975 (“the Act”) to vary orders made by the Court on 1 February 2010, and for spousal maintenance and parenting. The wife also seeks that the costs orders made on 1 February 2010 be set aside. For the reasons that follow, I will order that there be changes to the orders made on 1 February 2010 but not to the full extent that the wife seeks. Given the multiplicity of the various applications, it is not possible to be more precise in any concise way at this stage.

The history of the matter

The applications before the Court cannot be understood without some understanding of the regrettably lengthy litigation history between the parties. As long ago as 7 April 2009 the husband commenced proceedings. Since then no less than four files have been created to contain the parties’ numerous applications and affidavit material. It is sufficient to say that bitterly fought proceedings eventually produced orders in relation to children and in relation to property. The final property orders were made on 1 February 2010.
It is important to note that the hearing of the property matters, which were heard as a secondary and subsidiary issue after the children’s matters had been resolved, took place between 20 and 22 October 2009 inclusive. The Court delivered Reasons for Judgment on 4 December 2009.
Because of the very complicated position in relation to chattels, the Court directed the parties to prepare and file minutes of orders to give effect to the Reasons for Judgment within seven days and noted that in the event of disagreement, the matter would be listed for further mention.
Doubtless because of the time of year neither party complied with that direction. In the ultimate the husband alone submitted minutes of orders. The reason for the wife’s non-participation in the process is the subject of ongoing controversy, and I note that the wife says that her failure to do so arose because of negligence on the part of her then solicitor.
Be that as it may, in the ultimate the Court, faced with no other proposal, made the orders of 1 February 2010.
It should be noted that the Court’s original Reasons for Judgment noted that the father had superannuation entitlements of about $80,000. In fact on re-reading it is clear that the Court’s Reasons for Decision contained an internal fallacy. I noted at paragraph 24 that the husband had superannuation worth approximately $77,000 in total and I accepted at paragraph 25 that the wife’s superannuation was worth $10,777, these figures in total obviously being approximately $88,000. In the end I decided to give 60 per cent of the husband’s superannuation to the wife and noted that this would give her slightly in excess of $50,000 of the parties’ “approximately $80,000 superannuation.” The figure should of course have been $88,000 but in any event, there has been no appeal or other challenge to the orders that I then made. The order ultimately made in February 2010 as to superannuation was to set the wife’s base amount allocated out of the husband’s interest in the superannuation fund at $30,000. I do not now recall why that figure was deemed satisfactory at the time.
On 28 May 2010 the wife filed her application seeking to set aside the February orders and seeking various other interlocutory orders in relation to the sale of the former matrimonial home amongst other matters. Her affidavit in support of that application was unfortunately in a somewhat disordered form.
Thereafter the wife and the parties generally have filed voluminous materials and a number of applications and responses culminating as I say in the final further amended application filed on 13 August 2010 and the further amended response filed on 1 September 2010.
It should be noted that the wife was representing herself until the very latter stages of this application. Without being critical of her, it has to be said that her material was extremely disordered, many of her applications being overlapping, and the affidavit material put in such a fashion as to be very difficult to follow.
I should express my thanks to counsel for the wife for the way in which he brought order into the prior chaos and the way in which he structured his submissions and presentation to enable the Court to have a clear appreciation of what was in issue and what the evidence being relied upon was.
So far as the history of the matter is concerned it is sufficient to say only further that the husband brought an application to dismiss summarily the entirety of the wife’s application. For the reasons which I gave at the commencement of the hearing on 2 September 2009, the application was itself dismissed.

A brief background to the parties

The husband is a very well qualified professional who has in the past, and as shall be seen now again is, very successful in obtaining highly paid employment in rural parts of Victoria. For some years he worked in rural Victoria on a very good salary package and it is quite clear that the parties lived a very luxurious and self-indulgent lifestyle while that was the case. Amongst other things they bought and renovated a property in the countryside which is presently for sale and is unlikely to do any better on sale than to discharge the debts owing on the mortgage and the like.
Things went well enough until the husband lost his job. The parties separated amidst considerable bitterness and when the hearing came on in October 2009 they were both in straitened financial circumstances.
The proceeding has been characterised by the very considerable interpersonal bitterness that so clearly obtains between them. The wife, Ms Simon, presents in Court as a person deeply distressed by what she perceives to be the dastardly behaviour of the husband to her, in part but by no means wholly constituted by his, as she sees it, dishonesty in relation to his financial affairs. The husband, by way of contrast, feels no less bitter towards the wife although his demeanour is less tense.

The issues in the trial

In the ultimate the issues the Court is now requested to determine are:
a)The wife’s application pursuant to s.79A to set aside the February 2010 orders and also to revisit those orders in the light of full disclosure sought as to the husband’s redundancy.
b)An application for spousal maintenance in the sum of $43 per week (this claim was in the ultimate conceded at trial by the husband).
c)An alteration to arrangements for changeovers such that they take place in the foyer of a [omitted] department store close to where the husband’s parents live.
d)A request that the husband collect the children from the Bellarine Peninsula in the event that the wife’s car is not serviceable.
e)A request that the extant orders providing for the children to spend three weeks in the long summer vacation be changed so that they spend no more than eight day blocks of time with him.
f)An application that the children’s surname be changed from Michel to Simon.
g)An application in respect of notification of any injuries to the children (which is now agreed).
h)An application by the wife to set aside cost orders made in favour of the husband in the February 2010 orders.
I will deal with those matters still in dispute seriatim.

Section 79 application

As I have earlier indicated, the hearing of the property dispute took place in October 2009 and judgment was published in December 2009. Orders were ultimately made in early February 2010.
Unbeknownst to the wife, her solicitors, the husband’s solicitors and the Court, it now emerges that the husband in fact was notified as early as 17 November 2009 that he had obtained new employment at a salary package of $200,000. So much is confirmed by the husband’s affidavit sworn on 22 July 2010. He actually started working (and therefore earning pay) on 30 November 2009.
The husband did not disclose the fact of his employment to his own lawyers until well after the orders were taken out, although the lawyers concerned brought the matter to the attention of the Court at first opportunity to do so, once they knew of it.
The husband is a highly intelligent, well educated man. He has an MBA, in addition to his professional qualifications, and has recently commenced a professional degree.
I have no doubt that the husband was well aware of his continuing obligation to disclose his employment circumstances. Indeed, he has not seriously for a moment suggested otherwise. Rather the husband, when the matter returned before me for this trial, made ready concessions that he had not revealed his income, and did so in a manner that suggested to me a total absence of remorse and an insouciant disregard for his obligations of discovery.
In my original Reasons for Judgment, I had noted at paragraphs 43 and 44 that the husband had every hope he would be engaged relatively shortly in well-paid employment. I noted that those hopes must inevitably be said to be speculative. I went on to say:
“The husband impressed me as a man of resource and determination. It is, in my view, more probable than otherwise, that he would obtain well paid employment within a reasonably short period of time.”
As events had transpired, that conclusion was clearly prescient.
It is certainly the case that I went on to make the orders that I did make against the background of the finding I have just set out.
Section 79A of the Family Law Act relevantly reads:
“(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the Court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;
…
the Court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.”
Here, it is difficult to imagine circumstances that more clearly fall within the ambit of that section. The husband’s failure to reveal the fact of his new employment and the important income it gave rise to had two effects. First, it meant that the Court proceeded on a misunderstanding of the true state of affairs. Secondly, it had the effect of concealing from the Court, as at 1 February 2010, the fact that the husband had earned two months’ worth of salary on a package of $200,000. That package included a component of superannuation which altered, albeit perhaps not in a dramatic way, the nett figures as to the parties’ superannuation entitlements.
In my view, such circumstances clearly amount to suppression of evidence being a stark failure to disclose relevant information, and if I am wrong as to that matter, it would plainly contemplate “another circumstance.”
It is one thing to say, as the husband did, that the Court clearly foreshadowed the outcome that in fact occurred. It is not possible, retrospectively, to turn one’s mind back to imagine what the position or outcome would have been if the Court had indeed known what the true position was.
In my view, the circumstances are such that the Court’s discretion under s.79A has plainly been enlivened.
The second question is whether that discretion should be exercised.
Here the position now is, according to husband, that he has superannuation in the combined total of $36,000 (see his Financial Statement filed 1 September 2010), in respect of which he was not relevantly cross-examined.
The wife’s most recent financial statement, filed 13 August 2010, assesses her superannuation at $11,500. The wife gave evidence, if I understood the matter correctly, that she had accessed some of the superannuation, that I had caused to be ordered in her favour by the February 2010 orders, on hardship grounds. Indeed, she made much of the fact that the amount of $10,000, being the maximum she could access, was not enough to obtain a reliable car, an assertion with which I would disagree.
Indeed I would interpolate briefly at this point that the wife seems to have struggled altogether to adapt to her new and more straitened circumstances. Very unfortunately for her, she has gone from being in a position of riches to a position of relative poverty. She will have to learn to cut her coat according to the cloth now available to her.
That this is so is because although the husband has an excellent earning capacity, the assets of the parties are, apart from superannuation, simply debts. That was the finding I made in my decision in December 2009, and nothing in the evidence now presented suggests that things have materially altered. I have no doubt that the husband will amass assets relatively quickly as time goes by, but there are none there to be divided now.
In the circumstances, I think that the husband’s failure to reveal his employment, and the fact that he has obtained employment well structured to his advantage in taxation terms, at such a substantial amount at $200,000, causes me to decide that I should exercise my discretion favourably to the wife. I will order that there be a further splitting order to apportion a further $15,000 of his superannuation, from the amount admitted by the husband, to the wife.
These are not areas of precision. It will have the net effect of giving the wife approximately $65,000 of the parties’ approximately $88,000 superannuation (assuming those figures were originally correct). In view of the now more clear position of the parties as to future earnings and likely benefits, it is in my view an outcome that properly reflects an application of the s.75(2) factors. Furthermore, in this regard, I note that now that the husband is back in employment, there must be every prospect that he will be able to obtain yet further employment and further benefits by way of salary and emoluments. As I indicated in my earlier Judgment, he is a man of resource and energy. I would anticipate that his star will rise yet further.
A subset of the s.79A application related to the husband’s disputed redundancy payment. The wife was of the view that the husband had deliberately understated it at $15,000 and had suppressed other amounts. Having heard the parties’ evidence, in this regard at least, I roundly prefer that of the husband. I accept that he received only $15,000 in redundancy and I accept that this was disclosed in the prior proceeding.
Accordingly, the only order I will make is, subject to submissions, that there be a further splitting order in the superannuation benefits of the parties, such that the wife receives a further $15,000 of whatever sums the husband now presently has to his benefit.

Changeover

One matter that neither party addressed me about in submissions was the application of what might be described as the rule in Rice & Asplund in relation to children’s matters. Counsel for the husband, when still retained, had clearly flagged this but the husband did not press the matter. I note that although he is undertaking further studies, he is only in its very early stages.
The Court is nonetheless required to consider whether there has been a material change in circumstances, such as to make setting aside the earlier orders appropriate.
The order as to changeover at the husband’s parents followed a contested hearing. It seems clear, however, that on 21 September 2009, an incident occurred at changeover. The wife says that she was assaulted and the husband denies this.
Irrespective of whose version is correct, and I made it plain to the parties that the Court would not be in a position to determine the matter, it is clear that the wife has developed a fear of the husband that did not obtain at the time the original parenting orders were made.
The wife’s fear was vividly expressed, and whether the basis for it is justified or not, it is palpably clear that it is there.
This fear can only be upsetting not only to her but to the very young children with whom this case is concerned.
The husband’s breezy dismissal of the wife’s fears was uttered with an insouciance which tended to characterise his behaviour in Court generally. His objections to the foyer of a supermarket as a changeover point were in my view self-serving and specious. In my opinion, there is nothing to suggest that the foyer of a supermarket is an inappropriate place for children to be, although of course it is desirable in circumstances such as those that will obtain, where there will doubtless be many people moving about, that both parties endeavour to be punctual. It remains to be seen whether parties with this measure of disdain for one another will be capable of any measure of maturity in their dealings, but they will be well-advised to have mobile phones to hand when changeover is about to take place, so that any minor delay can be accommodated.
Nonetheless, in the circumstances I have described, it is plainly desirable that the changeover sought by the wife in this regard be ordered. It is clearly in the children’s best interests that the fears of their mother be assuaged.

Collection from the Bellarine Peninsula

The next matter in respect of which there was dispute as to changeover refers to the requirement in current orders for the wife to deliver the children to Geelong. The wife complained bitterly of the unreliability of the car that her parents make available to her with which to conduct this task.

I have already said that the wife’s assertions as to the cost of a reliable car strike me as being exaggerated and considerably so. I accept the husband’s position that to require him to drive to The Bellarine Peninsula when he is already driving all the way from rural Victoria to Geelong would be entirely unreasonable. The wife does not work and she has the time available to her to transport the children.
I do not think that such issues as might be found to obtain about the possession of the car by the wife are a new circumstance such as to overcome the Rice & Asplund point in any event. There has been no material change in circumstances since the original order was made, and that aspect of the order will be maintained.
I accept the husband’s submission that if I make the change the wife seeks, the wife will simply declare herself unable to transport the children to Geelong on any, or in any event most, occasions.

The apportionment of time in the long summer vacation

Here again, I do not think there has been any material change in circumstances since the orders were originally made. Evidence has been called by both parties and by their parents seeking, on the one hand, to suggest that the children are agitated and may not wish to spend time with their father, and on the other hand that they do and that they thoroughly enjoy it.
While it is true that a period of three weeks is a lengthy period of time with the father, the fact is that that was the period of time envisaged by the orders originally made. I appreciate that these orders were made without the input of any submissions from the wife in circumstances where she says, vividly, that she would have wished to have that input.
Nonetheless, there must be an end to litigation and this is a case in which, even if I am wrong as to whether the Rice & Asplund point is decisive, I think that the orders should remain as they are. The fact is that there is no basis yet satisfactorily established to suggest that a period of three weeks with their father is too long.
The suggestion that the father can readily obtain blocks of eight days in the summer holidays is one that I reject. I accept the husband’s evidence that he already receives latitude from his employer in respect of his time with the children and the proposition that the employer would readily accede to eight day blocks of holidays over the Christmas holidays is one which is inherently difficult to accept. In short, I accept that the father simply cannot provide time in such blocks. Accordingly, and given that there is no challenge to the proposition that the children should spend equal time with each parent during the long Christmas summer holidays, in my view the children’s best interests will be served by leaving the orders as they stand.
In this regard, although once again it will be perhaps an overly optimistic view, I would expect the parents to revisit the matter on a cooperative basis in the event that in truth, three weeks proves too long a time for the children to be away from their mother.

The application for change of name

The mother seeks that the names of the children be changed from Michel to Simon-Michel.
In paragraph 15 of her affidavit filed on 13 August 2010, the Mother deposes that she only started to use the name Michel within a year or so of final separation and that she had at all times retained her maiden name of Simon. She went on to depose as to alleged difficulties in finding one of the children’s medical records under the surname Michel in circumstances where the mother’s records are under Simon. She said “if his name was changed to Simon-Michel it would be easier to identify him as my child”.
She went on to depose to confusion at [X]’s school that when items of school clothing are missing she has to explain her connection to the school as [X]’s mother and that the parents of other children have expressed confusion as to the children’s names.
The wife was not cross-examined about this evidence, although the husband’s position is that the names of the children should remain as is, he said that the children’s names should stay as they are and that the children should be left to make their own decision when they are sufficiently old enough to do so.
In SDW v JCL (2005) FMCAfam 210, Ryan FM, as her Honour then was, set out at paragraph [99] a number of relevant issues that fall to be considered in change of name cases. They include relevantly:
·Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control;
·Any confusion of identity which may arise for the child if his or her name is changed or not changed;
·The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
·The contact that the non custodial parent has had and is likely to have in the future with the child;
·The degree of identification that the child or children have with their non custodial parent; and
·The degree of identification which the child or children have with the parent with whom they live.
There is no evidence before the Court as to the extent to which the three children concerned, all of whom are after all young, identify themselves by reference to their surnames. The oldest, [X], is only six years old and the youngest is just two.
Given that [X] will only have started school in recent times, any formal usage of his name will only be of recent commencement.
Given that the mother is the primary custodial carer and given that the children will have an ongoing regular relationship with their father, it seems to me appropriate that the children’s names be changed to Michel–Simon.
This has the advantage that in a very real way the children, to the extent unknown as it is that they may have any identification of themselves with their surname, will still have the name Michel. It also, however, adds the name of their mother with whom they spend the most time.
There is no perfect answer to dilemmas of this sort, which are driven in my view more by parties’ emotions about one another than by any objective comprehension of the children’s best interests. Nonetheless in the circumstances, and bearing in mind the obvious possibility of some confusion or embarrassment given that the parents can have separate names, in my view the children’s best interests will be served by giving them the name of Michel-Simon.

Costs issues

The costs orders made were eminently consistent with the proper application of s.117 of the Act, albeit that the orders made in order 31 of the February 2010 orders were not the subject of any explanation in the Reasons for Judgment.
However, had the Court known of the husband’s wages, as at the date those orders were made, this would plainly have been a matter that the Court would have taken into consideration. In circumstances where one party has $200,000 of annual income, structured to his advantage in taxation terms and where the other is living on statutory benefits and child support, the approach towards a costs order would have been in my view likely to be very different. Whether this be seen as a further application of s.79A or as a new circumstance is in my view immaterial. It is entirely appropriate for the Court to mark its displeasure at the husband’s outrageous suppression of the circumstances of his employment that these orders should be set aside, and I will do so. I note further that in any event, the husband has disclaimed any likelihood of ever enforcing those orders in any event.

Conclusion

I believe I have disposed of all matters in dispute between the parties, and I have prepared orders to give effect to these conclusions. In view of the miasma of confusion that has attended this case generally, however, I will give the parties a brief opportunity to consider these Reasons for Judgment and draft orders and I will hear from them further.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:

Date: 5 October 2010