SIMONS & SIMONS

[2013] FamCA 92

FAMILY COURT OF AUSTRALIA

SIMONS & SIMONS [2013] FamCA 92

FAMILY LAW – CHILDREN – Wife in prison for a long time – No application by her for parenting orders – Husband satisfies Part VII of the Act.

FAMILY LAW – PROPERTY – Wife seeks adjournment – Short adjournment for lawyer to see whether there is any cause to be litigated.

Family Law Act 1975 (Cth)

APPLICANT: Ms Simons

1^st RESPONDENT: Mr Simons

FILE NUMBER: MLC 2476 of 2010

DATE DELIVERED: 5 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 February 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Andreou

SOLICITOR FOR THE APPLICANT: Victor C Andreou

THE 1^ST RESPONDENT: In person

SOLICITOR FOR THE DEPARTMENT OF HUMAN SERVICES Mr Gelfand

Orders

1. That the husband have sole parental responsibility for the children D and B both born … March 2008.

2. That the children live with the husband.

3. That the children have leave to travel internationally with the husband without consultation or notice to the wife.

4. That the orders this day be provided to the Department of Human Services and in due course, a copy of the reasons for those orders.

5. That the property proceedings set out in the husband’s amended response filed 25 January 2013 are adjourned for mention at 9.00am on 28 February 2013 at which the wife is to attend by video link and the Court arrange such video link subject to the requirements of the Department of Corrections Victoria.

6. That the parenting orders sought in the amended response filed 25 January 2013 are otherwise dismissed.

7. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simons & Simons has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2476 of 2010

Ms Simons

Applicant

And

Mr Simons

1^st Respondent

REASONS FOR JUDGMENT

1. This is an application by the wife through her solicitor for an adjournment of proceedings that have been described as “a mess” concerning both parenting and property proceedings.  The application for the adjournment was initially made this morning in the absence of the wife who is currently in prison.  She claimed she had never been served with any material ever.  The court record shows that between March 2010 and now there have been at least two firms of solicitors acting for her and, no doubt, during that period of time she was distracted by criminal proceedings in the Supreme Court of Victoria.

2. There has never been any application that I can find in the material for parenting orders by the wife.  It is almost three years since the originating application began so there is no basis for me to hold up the husband’s application for parenting orders.  In addition, I have, as amicus curiae, the Department of Human Services who, effectively, are controlling the lives of the children through an order of the Children’s Court.  They are of the view that if the husband has orders of this Court they can seek to discharge the orders in the Children’s Court and hand over responsibility for parenting of those children to Mr Simons.  On that basis, there is no logical reason why the application for an adjournment for the parenting orders ought succeed.

3. The property proceedings are a little bit more complicated. This family had interests in three real properties and a variety of other things and s 79 of the Family Law Act1975 (Cth) (“the Act”) empowers the Court to divide property of the parties but only in circumstances where it is satisfied that it is just and equitable to do so.

4. In the intervening period since the proceedings began the wife was charged with and convicted by a jury in the Supreme Court of Victoria with a crime.  She has been sentenced to a long period of imprisonment.  In addition, an order has been made, presumably on the basis of a claim by the husband in the County Court, for substantial damages.  That order seems to have been made in December.

5. In January, in chambers, upon a request by the husband, Judge King made an order for the wife to transfer her interest in the three properties that would have formed the property of the parties and, as such, pursuant to her Honour’s order, the husband is now the equitable owner of the three properties, at least as to the interests of he and the wife and probably 50 per cent interest in the third property that seems to be owned by other people.

6. There is no property left to divide unless the wife is now going to seek to claw back some of that property and to do that she would first have to seek to set aside the damages award in the County Court.  If it was as simple as that, this case could be dealt with expeditiously.  The problem is that the husband has also sought orders in relation to a specified asset, a car and some jewellery and a payment of $200,000 because the wife took that from the bank account before he was seriously injured.

7. The specified asset is in the name of a man who has been described as the wife’s “then lover” and her first name is part of the title.  Just what that means I am not sure but, in any event, the lover has not been joined as a party to these proceedings. 

8. The car could be anywhere and, certainly, the wife would not be driving it. 

9. The jewellery, even on the husband’s version of fact, was taken from him by the wife’s parents whilst the wife was in prison.  There is no application for orders that I could see realistically succeeding, bearing in mind that the parents are not parties to these proceedings.

10. If, in fact, all of the property is given to the husband by virtue of the damages award and he retains his own legal interests then the reality is that there is no other property that the wife could satisfy a $200,000 in an “add-back” argument.  Be that as it may, all of these matters are very confusing and the solicitor for the wife is not in a position at this stage to tell me with any certainty what orders the wife would seek.  That is presupposing, of course, that I accept she has never seen any of the material and that is doubtful.

11. The court file shows that a variety of documents of the husband have been left for her with prison officers.  Whether that is appropriate service in this jurisdiction is a matter for argument but having regard to the fact that a solicitor is now telling me that his instructions are that she has never seen documents I need to at least be cautious about making orders that would simply exclude her from those proceedings.

12. On that basis, everybody needs to have a look at whether or not there is a justiciable cause of action here at all.  I propose, therefore, to adjourn that part of the proceedings to be dealt with by video-link for mention to see whether or not there is still an argument.  If there is no claim by the wife to any property, bearing in mind what she sought when she filed her application, there is nothing to divide.  That may now change, and, if the husband realises that it is pointless to proceed with the applications that he is now seeking, the matter can be very quickly resolved on 28 February.  On that basis, the application for the adjournment in relation to the property proceedings should succeed.

13. I turn, then, to children’s matters.  This is an undoubtedly sad case involving children who are still very young.  M was born in March 1996, so she’s about to turn 17 years of age.  There is a problem involving M, in relation to her relationship with the husband but she still needs to be recorded in these reasons as part of the family.  The children who are really the subject of these proceedings are D and B.  They are twins born in March 2008, so they are about to turn five years of age. 

14. I have had the advantage of reading the sentencing remarks of the Supreme Court of Victoria judge.  In those reasons, her Honour noted that these children were going to miss out, in their formative years, by not having a mother.  Whilst there may be a prospect of an application being made in the future by the wife for some contact with those children, at this stage that is not what I am dealing with and I do not propose to consider it any further.  The Department of Human Services has been involved in this case and it has been trawled over in the Children’s Court.  There are a variety of allegations made, all of which now seem to have settled on the basis that the children are in the husband’s care and the Department is prepared to step out of the proceedings and seek to discharge the Children’s Court orders on the basis that I make orders in favour of the husband. 

15. I have read a lot of material in this case set out in the affidavit of the husband which he filed on 9 January and a subsequent affidavit on 25 January. Whilst much of that material may not be admissible normally, there is enough information there to enable me to make a finding that it is in the best interests of the children that they live with their father. Section 61DA of the Act requires that the Court apply a presumption that when making a parenting order, it is in the best interests of children that their parents have equal shared parental responsibility. That is, that they share equally the responsibility of making long-term decisions about their children.

16. That presumption is rebutted in two circumstances.  The first is a mandatory rebuttal of the presumption where there is a finding that a person has been found to have effected family violence on the other.  The alternative is a discretionary rebuttal where it is not in the best interests of the children that the parents have that responsibility.  In this case it seems to me that both legs of that test are met.  There is no communication and it is unlikely that there will ever be communication between these parents.  Having regard to what has occurred, it will be the husband who makes all the decisions about these children’s welfare in the future. 

17. It would seem that the wife is going to be missing out of the children’s lives, at least until they are into their teenage years. On any view, however, and more important, is that the wife has been found guilty of conspiring in an assault on the husband.  The husband would not be here today, according to the Supreme Court judge, but for the fact that two medical professionals happened to come on the scene almost immediately after the assault.  On the basis of her Honour’s remark about violence, the presumption must be rebutted and I find that it is in the best interests of the children that the husband have the sole parental responsibility for their long-term welfare. 

18. The husband also seeks an order that the children live with him. Section 60CA of the Act says that when making a parenting order the Court must consider what is in the best interests of the children. The wife has no application before the Court. The husband is doing a good job. All of the reports indicate that these children have settled well in his care and he has a variety of support mechanisms. I do not need to go through, seriatim, all of the factors set out in s 60CC of the Act but it would seem to me that on reading the material of the husband I can be satisfied about all of those factors and accordingly, I find that it is in the best interests of the children that they live with him.

19. If I then turn, finally, to the orders sought by the husband in his amended response filed 25 January 2013, he seeks that the children have no access or communication with their mother in gaol.  I do not propose to make that order.  There is no application by the wife at this stage and it is unlikely that that sort of communication would occur unless she initiated it or someone on her behalf initiated it.  There is no evidence therefore that would entitle me to make that order.

20. There is also a further application by the husband that the children have no access with a maternal aunt and that application is now no longer before the Court, so there is no basis for me to make that order either.

21. A similar order is sought in relation to the maternal grandparents and they too have not attended the Court, nor sought any orders and on that basis I propose not to make that order.

22. Importantly, the husband seeks an order that he be given permission to relocate the children either interstate or overseas if needs be.  This is a case where I have given him sole parental responsibility for these children.  The wife has no application currently before the Court.  There seems to me no reason, even on the suggestion that the wife might be bringing an application, to conclude that she will ever have a significant involvement in the children’s lives.  There is no evidence before me that she has written to the children, provided them with presents or arranged for her family to do just that.  At this stage therefore, I see no reason why I should, in any way, restrict the husband’s responsibility as a parent.  Parental responsibility is about making all of the decisions for the future of children.  Parents who live together in a functional relationship decide whether they are going to live interstate or overseas because they work their arrangements around the children. 

23. Absent any involvement of the wife and certainly on the basis that the husband seems to be making the right decisions for the children, there is no reason why I should restrict him, in any way, in relation to his movements.  On that basis I propose to simply order that to the extent that he seeks to travel internationally, that he have the sole parental responsibility to make those decisions.

ORDERS DELIVERED

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 February 2013.

Associate: 

Date:  13 February 2013