Teitzel & Olman & Anor (No.2)
[2019] FCCA 3518
•6 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TEITZEL & OLMAN & ANOR (No.2) | [2019] FCCA 3518 |
| Catchwords: FAMILY LAW – Parenting and property proceedings – Notice of Constitutional Matter pursuant to section 78B of the Judiciary Act 1903 (Cth) – application for an adjournment – first and second respondents failure to participate in the trial – proceeding on an undefended basis – final parenting and property orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.69ZN (7), 60B, Part VII, 65C(c), 64B(2), 60H, 65CC, 69ZN(7), 60CA, 60CC, 65D(1), 61DA(1), 61DA(2), 61DA(4),60CC(2A), 60CC(1b), 60CC(1a), 64B(2)(g), 102QB, 102QE, 102QB(4), 90SM(4), 90SF(2), 90SM 4(d) to (g), 117(1), (2) and (2A) |
| Cases cited: Olman & Teitzel [2018] FamCAFC 11 |
| Applicant: | MS TEITZEL |
| First Respondent: | MR OLMAN |
| Second Respondent: | MS M |
| File Number: | MLC 547 of 2017 |
| Judgment of: | Judge Boymal |
| Hearing dates: | 17 & 20 June 2019 |
| Date of Last Submission: | 20 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 6 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Renwick |
| Solicitors for the Applicant: | Westminster Lawyers Pty Ltd |
| The First Respondent: | In person via telephone |
| The Second Respondent: | No appearance |
| Counsel for the Independent Children’s Lawyer: | Mr Marchetti |
| Solicitors for the Independent Children’s Lawyer: | Trapski Family Law |
ORDERS
THE COURT ORDERS THAT:
The applicant mother and the Independent Children’s Lawyer have leave to proceed on an undefended basis.
The first respondent father’s application in a case filed 15 March 2019 be dismissed.
The applicant mother have sole parental responsibility for the children X born in 2009 and Y born in 2013 (the children).
The applicant mother advise the first respondent father within 7 days of any major long term decisions she has made in relation to the children or either of them.
The children live with the applicant mother.
The children spend supervised time with the first respondent father in Melbourne on such days and times as may be agreed between the applicant mother and the first respondent father such supervision to be conducted by the Family Contact Service, N Family Services or at a Children’s Contact Centre or by such other supervisor as may be agreed in writing between the applicant mother and first respondent father.
The costs of all supervision be paid by the first respondent father.
The children communicate with the first respondent father via telephone each Tuesday between 7.30pm and 8.00pm with the first respondent father to initiate the call to the applicant mother.
The first respondent father shall keep the applicant mother informed at all times of his residential address, contact telephone number and email address.
The applicant mother shall keep the first respondent father and second respondent informed at all times of her contact telephone number and email address.
The applicant mother shall advise the first respondent father and second respondent of any serious illness or injury suffered by the children (or either of them) as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the first respondent father to obtain information directly from any treating medical practitioners.
Paragraph 5 of the Orders made 14 February 2017, where the applicant mother be restrained from moving within a 10 kilometre radius of Suburb E be discharged.
Each of MS TEITZEL born in 1981 and MR OLMAN born in 1972 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X born in 2009 (male) and Y born in 2013 (male) from the Commonwealth of Australia.
X born in 2009 (male) and Y born in 2013 (male) be and are hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List for a period of two years.
Upon expiration of the period referred to in Order 15 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Watch List.
That X’s birth certificate and passport be released to the applicant mother MS TEITZEL born in 1981 from the documents produced under subpoena from the Department of Home Affairs.
The monies currently held in the ANZ Controlled Money Investment Account No ...22 and the monies currently held in the ‘protected monies’ account administered by Westminster Lawyers, be disbursed after 28 days of the date of these orders as follows:
(a)Firstly, to repay Mr O and Ms P the sum of $30,000.00;
(b)Secondly, the balance (of approximately $335,917.00) to be paid to the applicant mother.
The applicant mother retain to the exclusion of the first respondent father:
(a)Her superannuation entitlements;
(b)Any monies in her personal bank accounts;
(c)The household chattels and furniture in her possession; and
(d)The $10,000.00 part property payment paid to her.
Unless otherwise specified for in these orders, the parties each remain liable for any liabilities in their respective names, including credit card debt.
The first respondent father retain to the exclusion of the applicant mother:
(a)The house and land in Country L;
(b)His superannuation entitlements; and
(c)The $10,000.00 part-property payment received by him.
Unless otherwise specified in these Orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)Monies standing to the credit of the parties in any joint bank account are to become the property of the applicant mother and the account thereafter closed;
(c)Each party forego any claims they may have to any superannuation benefit belonging to or earned by the other;
(d)Insurance policies remain the sole property of the named owner;
(e)Each party be solely liable and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these Orders; and
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Within 60 days, the first respondent father pay or cause to be paid to the mother:
(a)The sum of $3,283.60 together with interest accrued from 29 January 2018 pursuant to the costs order made on 29 January 2018;
(b)The sum of $4,053.00 together with interest accrued from 4 February 2019 pursuant to the costs order made on 4 February 2019;
(c)The sum of $2,840.00 in relation to mother’s costs of 27 October 2017; and
(d)The sum of $4,053.00 in relation to the mother’s costs of 17 June 2019.
Within 60 days the first respondent father pay or cause to be paid to the Independent Children’s Lawyer:
(a)The sum of $2,199.00 pursuant to the costs order made on 4 February 2019; and
(b)The sum of $1,548.00 in relation to the Independent Children’s Lawyers costs of 17 January 2019.
Pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001 (“the Rules”) the first respondent father and second respondent may seek leave to set aside these orders upon filing an application and affidavit within 21 days of service of these orders.
Within 48 hours the applicant mother’s solicitors and the Independent Children’s Lawyer forward a copy of these orders and reasons to the first respondent father at his email address ... .com and to the second respondent at her email address ... .com.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.
That all extant applications are otherwise dismissed and removed from the Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym is Teitzel & Olman & Anor (No.2) approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 547 of 2017
| MS TEITZEL |
Applicant
And
| MR OLMAN |
First Respondent
| MS M |
Second Respondent
REASONS FOR JUDGMENT
These proceedings concern a dispute over parenting and property orders.
The dispute over parenting orders concern X born in 2009 (X) and Y born in 2013 (Y) (“the children”).
The applicant is the mother of Y (“the mother”). The first respondent is the father of both Y and X (“the father”). The second respondent is the mother of X, who resides in Country D and has not taken an active part in these proceedings (“the second respondent”).
The property dispute concerns the appropriate orders that should be made following the breakdown of the mother and father’s de facto relationship.
The mother is 37 years of age and is employed as a professional.
The father is 47 years of age, was born in Country L and is a permanent resident of Australia. The father has been living in the Northern Territory since 2018.
The mother and the father commenced their de facto relationship in 2009 whilst they were both living and working in Country B.
The mother returned to Australia in 2011 and the father moved to Australia in 2011 on a partner visa.
X was brought to Australia with the second respondent’s consent in 2013 and Y was born later that year.
The mother and father lived with the children in Melbourne until September 2016 when they separated under the one roof. In November 2016 the mother left with Y because she says she was in fear of her life.
Whilst the children were initially separated from late December 2016, following police intervention, they have both remained in the mother’s care. The mother commenced these proceedings the following month.
The Court is required to determine:
a)Whether the substantive parenting and property proceedings should be adjourned because the father has served a Notice of a Constitutional Matter under section 78B of the Judiciary Act 1903 (Cth) (the Notice) upon the Attorneys-General;
b)The father’s Application in a Case filed on 15 March 2019;
c)The substantive parenting and property proceedings; and
d)Costs applications by the mother and the Independent Children’s Lawyer.
For the reasons that follow the Court:
a)Did not adjourn the proceedings because of the Notice or otherwise:
b)Dismissed the father’s Application in a Case;
c)Heard the substantive financial and parenting matters in the absence of the father and second respondent; and
d)Heard the costs applications in the absence of the father.
History of Relevant Events
On 20 January 2017 the mother filed her Initiating Application seeking parenting orders (which was abridged) and Judge Williams (as Her Honour then was) made an ex parte Watch List Order.
The matter returned on 2 February 2017 and the mother was legally represented and the father appeared in person. On this occasion Judge Williams made orders for a s.11F conference, for the second respondent to be served and orders requiring the father to file responding Court documents, which he filed on 10 February 2017.
When the matter returned on 14 February 2017 following the s.11F conference, both parties were legally represented and Judge Williams made interim parenting orders. The orders provided that both children live with the mother and that the children spend time with the father on Tuesday evening, and each alternate weekend on Saturday and Sunday from 10:00am to 5:00pm, amongst other orders.
On 22 March 2017 the mother filed an amended application seeking property orders and the father filed an amended response on 1 April 2017. On 7 April 2017 Judge Williams made further interim orders providing for the children to spend overnight time with the father.
Prior to the interim hearing on 13 October 2017, the father filed an Application in a Case seeking that Judge Williams recuse herself from hearing the proceedings. This application was returnable on 27 October 2017. On this occasion Judge Williams dismissed the father’s Application in a Case, and granted the father leave to make an oral application for recusal. The costs of the mother and the Independent Children’s Lawyer were reserved and the matter was otherwise adjourned to 15 February 2018 for interim hearing.
The father then filed an Application in an Appeal on 15 December 2017 seeking an extension of time for filing and appealing the interim orders of Judge Williams of 20 January 2017, 14 February 2017, 7 April 2017 and 25 October 2017.
The Family Court Appellate Jurisdiction dismissed the father’s Application in an Appeal on 29 January 2018 and ordered the father pay the mother’s costs of $3,283.60. Those reasons are set out in the decision Olman & Teitzel [2018] FamCAFC 11.
The matter then returned before Judge Williams on 15 February 2018 for the interim hearing and Her Honour heard submissions in relation to the father’s recusal application and reserved her decision.
The father then filed an Application for Special Leave in the High Court of Australia on 9 April 2018. The Application for Special Leave was subsequently refused on 13 June 2018 and is set out in the decision of Olman v Teitzel [2018] HCASL 156.
Judge Williams delivered her judgment on 25 July 2018 dismissing the father’s recusal application for the reasons set out in Olman & Teitzel [2018] FCCA 2006.
The matter returned for a mention on 9 August 2018 before Judge Williams and there was no appearance by or on behalf of the father and the second respondent. The mother and the Independent Children’s Lawyer were represented by Counsel. Her Honour made orders on 9 August 2018 vacating the final hearing listed on 30 August 2018 and adjourned the final hearing to 4 February 2019. Orders were also made for the preparation of a Family Report pursuant to s.62G(2) of the Family Law Act 1975 (Cth) (“the Act”), trial directions for the filing and serving of further affidavits and the Independent Children’s Lawyer to forthwith serve the father and the second respondent with a copy of the order by post and email.
On 10 December 2018 the mother and the children attended upon the Family Consultant for the purpose of the Family Report. The father attended the assessment but did not participate.
The father filed an Application in a Case on 30 January 2019 seeking an adjournment of the trial listed on 4 February 2019. The mother filed a response to the father’s Application in a Case on 1 February 2019.
On 4 February 2019 the matter returned before Judge Williams for the trial that was listed with priority. The father appeared in person via telephone and the mother and the Independent Children’s Lawyer were represented by Counsel. The father had not filed trial material pursuant to the orders of 9 August 2018. At the trial the father sought an adjournment and “gave his word” that he would file all his Court documents if he was given further time and would attend on the adjourned date. The father said he was in the Northern Territory and could not otherwise travel to Melbourne. Judge Williams made orders adjourning the trial to 17 June 2019, made further trial directions for the father to file his Court documents, ordered that the father attend in person on the adjourned date and made a notation putting the father on notice that in the event he fails to comply with the orders the mother will be seeking to apply to proceed undefended. Judge Williams also made an order that the father pay the costs thrown away of the Independent Children’s Lawyer fixed at $2199 and of the mother fixed at $4053 with the time for payment to be determined at trial.
On 1 March 2019 the mother filed an Application in a Case to suspend the father’s time with the children pursuant to the Orders made 7 April 2017.
On 4 March 2019 the father filed another Notice of Appeal seeking Judge Williams be prohibited from hearing the matter and her orders be “quashed”.
On 6 March 2019 the mother’s Application in a Case filed 1 March 2019 was returnable before Judge O’Sullivan. Legal representatives for the mother and the Independent Children’s Lawyer appeared and the father failed to appear. Judge O’Sullivan gave leave to the mother and the Independent Children’s Lawyer to proceed on an undefended basis to suspend the father’s time with the children pursuant to the orders of 7 April 2017. Those orders were made for the reasons set out in Teitzel & Olman & Anor [2019] FCCA 718.
On 15 March 2019 the father filed an Application in a Case seeking that the mother’s application filed 1 March 2019 be dismissed with costs, the orders made 6 March 2019 be set aside, that leave be given to him to appear via telephone or video link and the interim parenting orders be adjourned to the Family Court of Australia.
On 28 March 2019 the mother filed a response to the father’s Application in a Case filed 14 March 2019.
On 2 April 2019 the father failed to appear before Judge Curtain at the return date of his Application in a Case filed 15 March 2019. Legal representatives for the mother and the Independent Children’s Lawyer appeared. His Honour adjourned the father’s Application in a Case to the date of the final hearing on 17 June 2019. His Honour reserved the costs thrown away in the sum of $1,867 in relation to the mother and in the sum of $950 in relation to the Independent Children’s Lawyer.
On 23 April 2019 the father’s appeal to the Full Court of the Family Court of Australia was deemed abandoned after the father failed to file the draft index to the appeal books.
On 12 June 2019 the father filed an Application in a Case seeking that Y spend equal time with both parents and that the property be distributed between the parties with 70 per cent in favour of the mother and 30 per cent in favour of the father.
Also on 12 June 2019 the father forwarded by email and fax to the Attorneys-General a Notice of a Constitutional Matter under section 78B of the Judiciary Act 1903 (Cth) (the Notice). The Court, the mother’s solicitors and the Independent Children’s Lawyer were notified and provided with a copy of the Notice by email on Friday 14 June 2019 at 6.21am.
The Trial
At the trial, Ms Renwick of Counsel appeared for the mother and Mr Marchetti of Counsel appeared for the Independent Children’s Lawyer. There was no appearance by or on behalf of either the father and the second respondent.
At 9:32am on 17 June 2019 the father sent an email to chambers and to the mother’s solicitor and Independent Children’s Lawyer as follows:
Dear Associate,
I am writing to advice that:
Due to mechanical failure of my vehicle on Friday I missed my flight to Melbourne on Sunday morning.
The Attorney General of Country D/Minister of Justice has indicated they would like to intervene in this matter and should be given time to respond to represent the position of X and Ms M.
I am preparing my affidavit to explain the circumstance of my failure to attend Court today.
I am in Darwin and unfortunately have to return to Town R.
Yours sincerely
--
Mr Olman
Counsel for the mother indicated she would be making an application to proceed with the substantive proceedings on an undefended basis given the father’s failure to attend Court and in the event he did not make himself available by telephone. Counsel for the mother queried why the father waited until the morning on the day of the hearing to email to say that he is not attending. The contents of his email indicates that the father experienced car trouble on Friday.
The Court telephoned the father and advised him of the three matters before the Court being his Notice, his Application in a Case and the substantive proceedings. The father said he was in Darwin, he was having mechanical car difficulties, he had been travelling for three days and he had missed his flight to Melbourne. The father complained of the cost of travelling to Melbourne. He indicated he had to return home, which was about two days away. He said he was taking a bus to City Q in about 30 minutes and that he would be back home on Thursday.
Having regard to the complaints of Counsel for the mother and the Independent Children’s Lawyer in relation to the previous delays and non-compliance by the father in this matter, to the father’s predicament and in light of his statement that he would be back home on Thursday, the Court made orders adjourning the matter to a priority hearing later that week on Thursday 20 June 2019. The Court also made orders requiring the father to appear in person or by telephone on 20 June 2019 and that should the father fail to appear or is not able to be contacted by telephone that the mother and Independent Children’s Lawyer be at liberty to apply to proceed on an undefended basis with all outstanding applications. Costs for this day for the mother was fixed at $4,053 and the Independent Children’s Lawyer fixed at $1548 were also reserved until 20 June 2019.
When proceedings recommenced on 20 June 2019, Ms Renwick appeared as Counsel for the mother and Mr Marchetti appeared as Counsel for the Independent Children’s Lawyer. The father was not present in person at Court but appeared by telephone. There was no appearance on behalf of the second respondent.
Counsel for the mother pressed for all outstanding matters to be dealt with that day.
The father prevaricated between wishing to proceed with the hearing, or parts thereof, seeking an adjournment of the proceedings, and not participating in the proceedings. The father submitted that he was in City Q and was under an obligation to return the company vehicle to his employer. The father submitted that he did not want to participate in the trial and said, amongst other things:
… your honour, I’m not going to participate in this process because I don’t have evidence and because I’ve not been granted that opportunity to give the evidence. I will not participate in the process, and, your honour, if you want to proceed with the proceeding that is totally okay by me, but I cannot participate in a process that kind of has been prejudged.
…
Your Honour, if you are inclined to give permission to proceed with that application (his application in a case) I can definitely make my submissions
…
I just didn’t know that you wanted me to make these applications today because the last time we spoke your Honour was a little bit tough on me but today you’re different.
The father was aware that the final hearing was before the Court this day.
Counsel for the mother suggested the father could make his submissions over the telephone. However, the father ultimately requested an adjournment.
I considered several factors in coming to my decision not to adjourn the proceedings.
I considered the principles set out in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, where the majority of the High Court said at [114]:
…delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants… It would impact upon other litigants seeking a resolution of their cases...
I considered the object of the Federal Circuit Court Rules2001 (Cth), which is to assist the just, efficient and economical resolution of proceedings and that the parties to proceedings must avoid undue delay, expense and technicality to assist the Court.
I considered s.69ZN (7) of the Act which states in part “that proceedings are to be conducted without undue delay…”
If the Court acceded to the father’s application, this would have been the fourth time the final hearing had been adjourned, having previously been adjourned on 30 August 2018, 4 February 2019 and 17 June 2019. The father had appeared by telephone on 2 occasions, failed to appear either personally or by telephone on 2 occasions and was present but failed to participate in the Family Report.
Section 78B of the Judiciary Act 1903
The father requested an adjournment of the trial on the basis that he had served a Notice of a Constitutional Matter under section 78B of the Judiciary Act 1903 (the Notice) upon the Attorneys-General. Counsel for the mother and the Independent Children’s Lawyer opposed the adjournment. Counsel for the mother prepared a summary of argument with respect to the Notice.
The father put forward his arguments in support of his application to adjourn pending further responses of the Attorneys-General including:
a)The Attorneys-General needed time to respond;
b)The argument that was advanced in Duarte and Anor & Morse [2019] FamCAFC 93 is that if an issue involves a Constitutional matter it must be addressed;
c)That by obtaining sole parental responsibility the mother is trying to change the status of X to that of an Australian citizen;
d)That he is challenging the jurisdiction of the Federal Circuit Court of Australia in making decisions that it did, for example, can it extinguish a child’s citizenship;
e)Section 60B of the Act talks about “parents” and their duties;
f)Whether the Family Court of Australia has authority to offer citizenship. He conceded that the Minister (for Immigration) has all the powers; and
g)The processes of the Family Court of Australia is preventing X from enjoying his constitutional right as a Country D citizen.
The father indicated that some of the Attorneys-General had responded to the Notice. His statements in relation to responses received include:
The response from the Attorney-General of the Commonwealth came in yesterday and he said that they would like to intervene after the final orders have been made.- that is what he indicated The Attorney General of … South Australia indicated they would like to intervene at the High Court level – when the matters go to the High Court.
…
I’ve heard from the Attorney-General of Country D whose said that he is instructed to respond to my… X’s situation.
The father emailed to the Court via the Independent Children’s Lawyer the documents enclosing the Notice to the Attorneys-General and their responses.[1]
[1] See exhibits F1, F2, F3 and F4.
I disregarded any response the father may have received from Country D as s.78B of the Judiciary Act 1903 does not require the Court to consider responses from other countries.
The Commonwealth of Australia acknowledged receipt and indicated it would write again once a decision has been made on the question of intervention. Victoria, Queensland, and the Northern Territory either acknowledged receipt of the Notice or acknowledged receipt and forwarded on the Notice. South Australia and Western Australia indicated they did not wish to intervene.
Counsel for the mother broadly characterised the issues raised in the Notice as follows:
a)Whether the Court has the jurisdiction and power to make an order in relation to an alien child with the father defining alien child to be a child whose parents are both non-Australian citizens;
b)Whether the Court can bind the Minster of Immigration; and
c)Whether making an order in favour of a non-biological parent would be in breach of the Constitution.
The father’s first Notice of Appeal to the Full Court of the Family Court contained a ground that the granting by Judge Williams of the Airport Watch List order was against the best interests of X as a foreign citizen, with his mother and relatives living overseas, and the order was against the child’s civil and political rights.
Justice Strickland said in Olman & Teitzel [2018] FamCAFC 11:
[29] I am not satisfied that the father has provided any explanation for the failure to file Notices of Appeal within time. I am also not satisfied that the father has any reasonable chance of success in relation to any of the proposed appeals, and indeed, I am not satisfied that any of the proposed appeals have any merit at all.
The High Court held in Olman v Teitzel [2018] HCASL 156 on 13 June 2018 that:
The summons filed on 9 April 2018, seeking leave to rely on amended application for special leave, should be granted. However, the application for special leave to appeal from the Family Court of Australia’s refusal to extend the time within which to appeal from interlocutory orders made by the Federal Circuit Court of Australia does not raise any question of principle suitable for the grant of special leave.
The father’s Final Amended Application for Special Leave to Appeal to the High Court wherein the father argued that Judge Williams decision was “ultra vires” and a “jurisdictional error” and states that:
But most critical, however, was her Honour’s ultra vires decision to replace a child’s mother with a non-parent as “mother”, an error that has been adopted from the expert report.
Counsel for the mother submitted that the issues raised in the Notice were the same arguments raised by the father before the High Court of Australia and the Full Court of the Family Court of Australia. Counsel for the mother further submitted that at no time did the High Court of Australia or the Full Court of the Family Court of Australia raise that there was a constitutional matter that needed to be taken into account. I agree with those submissions.
The father responded with arguments including:
a)A reference to his High Court application;
b)“that no single section of the Family Law Act had been cited by the previous Judge for 2 and a half years”;
c)A reference to Goode v Goode [2006] FamCA 1346; and
d)A reference to Minister of Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20 as to which the father stated that Kirby J agreed with all the other Judges and the argument that the Family Court’s jurisdiction is not unlimited and cannot order the Minister of Migration.
I considered the authorities referred to in the summary of argument and the submissions made by Counsel for the mother.
I also considered Duarte and Anor & Morse [2019] FamCAFC 93, a matter wherein the mother served the Attorneys-General with a Notice pursuant to s.78B of the Judiciary Act 1903 on the morning of the trial before the Family Court of Australia and where an earlier application to vacate the final hearing had been refused.
The Full Court of the Family Court said in Duarte and Anor & Morse:
44. It is correct that where there are proceedings pending in a court which involve a matter arising under the Constitution or involving its interpretation “it is the duty of the court not to proceed in the cause unless and until the court is satisfied” that the Attorneys-General of the Commonwealth and States have been given notice of the nature of the matter and that “a reasonable time has elapsed since the giving of the notice” (s 78B(1) of the Judiciary Act).
45. That requirement is subject to two matters.
46. First, the duty not to proceed only arises where the Notice of Constitutional Matter really and substantially involves the Constitution or its interpretation. This was explained by the Full Court of the Family Court in Xuarez & Vitela [2017] FamCAFC 139 in the following manner:
8. The cases and general principles surrounding the application of s 78B were considered by Burchett J in Amrit Lal Narain v Parnell [1986] FCA 89; (1986) 9 FCR 479 at 486-489. At 489 Burchett J said:
Section 78B only operates when the circumstances it postulates are made to appear to the court; it does not operate simply because a party asserts those circumstances. It is clear, from the reference to the possibility of intervention or removal of the cause to the High Court upon the initiative of an Attorney-General, that what the section contemplates is a constitutional question which is a live issue in the proceedings.
9. On the basis that the ostensible constitutional point relied on an erroneous construction of the legislation under consideration, Burchett J determined that the pending cause did not “really and substantially...involve a matter arising under the Constitution or involving its interpretation.” The phrase “really and substantially” derives from Re An Application by the Public Service Association of New South Wales [1947] HCA 31; (1947) 75 CLR 430 at 433 per Williams J.
10. The application of s 78B was considered by French J in Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; (1999) 167 ALR 303 (“Berbatis”). Concerning the obligation to adjourn, French J said:
14. Section 78B does not impose on the court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation: Nikolic v MGIC Ltd [1999] FCA 849; cf Australian Securities and Investments Commission v White (Fed C of A, Drummond J, 16 July 1998, unreported).
11. The word “matter” in s 78B has the same meaning as in Chapter III of the Constitution (Berbatis at [19]). Assertion or non-assertion of a constitutional question is not determinative of the character of the matter. Where the assertion is made, it is nonetheless a matter for the court to be satisfied that the challenge does involve a matter arising under the Constitution or involving its interpretation (Abbott & Abbott [1995] FamCA 5; (1995) FLC 92-582; Vella (10 August 1992, unreported)).
12. Section 78B will not be engaged merely because a party is interested in the resolution of a particular question. For the provision to be engaged the resolution of the Constitutional question “becomes necessary upon the ascertained or ascertained facts of the case...” (R v Bevan Ex parte Elias [1942] HCA 12; (1942) 66 CLR 452 per Williams J at 480). In other words, the facts relied upon are raised bona fide and are sufficient to raise the question (Hopper v Egg and Egg Pulp Marketing Board (Vic) [1939] HCA 24; (1939) 61 CLR 665 per Latham CJ).
During the course of the morning the father confirmed that he had read:
a)Xuarez & Vitela [2017] FamCAFC 139;
b)Duarte & Anor & Morse [2019] FamCAFC 93, judgment having been delivered on 6 June 2019;
c)Masson v Parsons [2019] HCA 21, judgment having been delivered on 19 June 2019, the day before this hearing. I referred paragraph 27 of that judgment to the father around which some discussion ensued;
d)Section 78B of the Judiciary Act 1903 (which was discussed with the father); and
e)Part VII of the Act (of which specific sections were discussed were with the father).
The father conceded the mother:
has rightly made a parenting application against X. She is seeking sole parental responsibility as “mother.” Per her Final Application she is also seeking Injunction Orders against X in effect that he should not enjoy the freedoms, privileges and rights of his country of birth and citizenship, culture and family[2]
[2] Affidavit of the father filed 12 June 2019 at [40] – [42].
Section 65C(c) of the Act provides that a person concerned with the care, welfare and development of a child may apply for a parenting order. Section 64B(2) provides that a parenting order may deal with the allocation of parental responsibility, live with, spend time and communication orders and any aspect of the care, welfare and development of the child or any other aspect of parental responsibility of a child.
In Masson v Parsons [2019] HCA 21 the High Court of Australia discussed the meaning of “parent” within the context of s.60H of the Act and said:
27. So to conclude does not mean that the only persons who, by law, have parental responsibilities are persons who are parents according to ordinary acceptation or are otherwise defined in the Family Law Act as parents. And it does not mean that the only persons who may seek parenting orders under s 61D are parents according to ordinary acceptation or are otherwise defined as parents. The range of permissible applicants is broader than that. But it is implicit in each of the provisions that have been mentioned that the Family Law Act proceeds from the premise that the word "parent" refers to a parent within the ordinary meaning of that word except when and if an applicable provision of the Family Law Act otherwise provides.
The father had read Masson v Parsons. He was familiar with the nature of those proceedings. The father attempted to persuade the Court that the principles in Masson v Parsons did not apply to the facts in this case as Masson was a matter dealing with IVF and parenting.
Pursuant to s.65CC of the Act the mother is a person concerned with the care, welfare and development of X. She seeks orders in accordance with s.64B(2) of the Act. The Act has defined the mother as a person able to seek orders in relation to X including an order for sole parental responsibility.
Counsel for the mother’s summary of argument includes that if the mother is successful in her application for sole parental responsibility for X, she will progress his pending application for Australian Citizenship.[3] I propose to make an order that the mother have sole parental responsibility for X.
[3] Appendix B at [22].
The decision to grant X Australian Citizenship cannot be made by this Court. The father had conceded the Minister (for Immigration) “has all the power”. Furthermore, on 4 February 2019, the father replied “Yes I do” when Judge Williams asked him whether he understood that she does not have power under the Act to make any order against the Immigration Department in relation to issuing visas.
No party seeks an order binding the Minister and I do not propose to make orders binding the Minister of Immigration and Home Affairs.
The issues raised by the father in his Notice were raised before the High Court and the Full Court of the Family Court in proceedings between the mother and the father. The issues raised in the Notice have already been raised and determined in established authorities of the High Court and the Full Court of the Family Court of Australia.
The issues raised by the father do not require further consideration by the High Court. The issues raised by the father do not contemplate a constitutional question which is a live issue in these proceedings.
The Court also had regard to the late raising of the Notice by the father. Over 2 and a half years have passed between the making of parenting orders and the father’s initiation of the Notice (which was served three business days prior to the commencement of the final hearing on the Attorneys-General and provided to the Independent Children’s Lawyer and the Court one business day prior).
The character or nature of the issues raised in the parenting proceedings have not changed since 2017. The father has demonstrated that he has considerable experience in the Family Law jurisdiction as a litigant. He is aware of procedures in litigation and with legislation and case law. He waited until the last opportunity before the final hearing to prepare the Notice and serve it on the Attorneys-General and the parties to this proceeding. I have referred to the previous conduct of the father in proceedings before this Court.
Counsel for the mother submitted the Notice was frivolous, vexatious, without merit and an abuse of process to assist a further adjournment by the father to delay the proceedings. She likened the situation in this matter to the circumstances of the filing of the Notice in Xuarez & Vitela wherein the Full Court of the Family Court held that the Notice was incompetent and almost certainly frivolous. There is also a similarity to the facts in this matter to the facts in Duarte. The Notice was without merit. Despite the father’s knowledge of the authorities in relation to s.78B, the relevant sections of the Act, and relevant authorities, he nevertheless with late notice, pursued the s.78B Notice.
I agree with Counsel for the mother’s statement that “the assertion that this fact scenario raises a constitutional question to which s.78B would apply is wrong”.[4] I was not satisfied that the Notice raised any arguable question as to the jurisdiction of the Court to make parenting orders in relation to X. Furthermore, the orders by the mother in this Court in relation to X neither impinge on his rights as an Australian citizen nor bind the Minister.
[4] Appendix B at [27].
As the cause pending in these proceedings did not involve a live constitutional issue as contemplated by s.78B of the Judiciary Act 1903 I did not accede to the father’s request for an adjournment in order to receive further responses from the Attorneys-General.
Further Application for an Adjournment
Despite being unsuccessful in obtaining an adjournment on the basis of the Notice, the father again applied for an adjournment. The father complained about the conditions he found himself in and said that I should take that into consideration in this hearing. He also said that he was not prepared to present the Constitutional matter this day as he was under the impression, having regard to discussions on the morning of 17 June 2019 that the Court did not want to proceed with it. I remarked to him that he should have been prepared on Monday and if he was prepared on Monday then he should have been prepared today.
The father was aware that the application to adjourn on the basis of the Notice, his Application in a Case and the substantive proceedings were listed for hearing on 17 June 2019. The orders made on 4 February 2019 and 2 April 2019 describe 17 June 2019 as a final hearing date. The second order also provides for the Father’s Application in a Case to be adjourned to 17 June 2019.
The father had given “his word” to the Court on 4 February 2019 in relation to his preparedness for the trial. The father had also filed his trial affidavit on 12 June 2019. The father was familiar with the provision of s.79 of the Judiciary Act 1903 in relation to adjournments.
From the nature of discussions in Court on 17 June 2019, he was aware that those matters would proceed on 20 June 2019. Counsel for the Independent Children’s Lawyer had sent an email to the father and the second respondent at 3.07pm on 17 June 2019 confirming the adjournment of the final hearing to 20 June 2019.[5]
[5] See exhibit ICL1.
The second respondent was given notice of the hearing on 20 June 2019 via the Independent Children’s Lawyers email of 17 June 2019. She was called outside the Court in the morning and the afternoon sessions of the Court. The second respondent did not respond to the call on both occasions. The second respondent was also aware of the proceedings being listed on 17 June 2019 by way of the email forwarded to her pursuant to order 7 of the orders made on 4 February 2019.
The father responded to the Independent Children’s Lawyer and the mother’s solicitors via email at 2.07pm on 18 June 2019[6] as follows:
[6] See exhibit ICL1.
Unfortunately Ms M or i cannot participate in this doubtful process called “Trial”. I cannot just walk in and validate a pre-written script. Neither can Westminster Lawyers on Ms Teitzel’s behalf try to gag me having obtained several judgements improperly including the most recent at the Magistrates Court.
I have filed a Notice of Constitutional Matter per s 78B of the Judiciary Act 1903:
1. Challenging the jurisdiction of that Court.
2. Challenging its proper interpretation and application of the Statute.
3. Seeking the invalidation of the section by which Ms Teitzel and yourself filed an application to this Court.
As these are Constitutional matters challenging the very basis of that Court’s Statutory power and the Orders that have already been made or you’re seeking, it is important that the proceeding is adjourned until those matters are disposed of by the relevant Courts.
Matter is not legal proceeding between parties, they are substantive rights, duties and responsibilities conferred by the Constitution.
The view that children need stability when the Statute that is supposed to be applied to make those decisions has not been followed, is unacceptable.
As a matter of fact i do not need legal advice from anyone, i can read and understand abstract legal texts in Statutes and judgements of the High Court. All I need is a fair playground to plead my case.
I would also like to inform you that i have the capacity and will to stand up for my and my son’s rights and I will lead a formidable challenge against you and Westminster Lawyers (Ms Teitzel), even without legal training. Please do not underestimate my determination to bring this case to a successful conclusion. The law is on my side and no one can take it.
Finally i notice with concern the several Cost Orders you have obtained in this proceeding. It is apparent you and Ms Teitzel would like to appropriate the whole matrimonial property through legal Costs. Please be advised I do not have the capacity to pay such costs and will challenge them.
Please respond to my Notice served to you earlier by COB tomorrow Wednesday 19 June 2019. Also respond to a letter I wrote challenging Court’s jurisdiction to transfer foreign legal documents to your client’s possession, also by COB tomorrow.
Thank you,
The father was told that the trial on the substantive issues would be proceeding this day and that he could continue to appear via telephone for the rest of the day. The Court attempted to explain the trial process to the father on a number of occasions and the father repeatedly submitted that “I beg to excuse myself from this process now, because I’m going very far away, I’m disadvantaged. I already told you that…”
The Court attempted again to explain the trial process to the father and he said “Your Honour, no comment from me” and later:
Your Honour, no comment. Please, I beg you to excuse myself from this proceeding. I’ve already submitted my views about the Constitution and you’ve made the order…
Again, on the basis of the principles referred to herein in at paragraphs 48 to 50 and taking into account the Full Court decision in Duatre, the Court was reluctant to adjourn the proceedings.
The father then submitted that he had to be back in Town R by 6.00pm that day to return the company vehicle, according to company policy, to his employer and that his employer was not paying for him for another day. The Court required the father to provide evidence from his employer to that effect before 2.15pm and indicated that unless he provided evidence of his inability to participate by telephone that afternoon, the trial would be proceeding at 2.15pm.
I observe the trial was listed with an estimated hearing time of 3 days by Judge Williams on 4 February 2019. If the matter had run its course the father would not have been in a position to return the car to his employer on Thursday at 6.00pm and would have been away on the Thursday, the day of this hearing, in any event. He had air travel back to Darwin and then according to what he told the Court on the morning of 17 June 2019, a 2 day drive back to Town R.
The decision to proceed on an undefended basis
The Court telephoned the father twice in the afternoon of 20 June 2019 and on both occasions the telephone calls went through to his voicemail facility. The Court or the Independent Children’s Lawyer did not receive any communications from the father during the short adjournment. The father had telephone and email facilities available to him earlier in the day.
The second respondent was called outside the Court in the morning and the afternoon sessions of the Court. The second respondent did not respond to the call on both occasions. The second respondent was given notice of the hearing on 20 June 2019 via the Independent Children’s Lawyer’s email of 17 June 2019.
Rule 13.03C of the FCC Rules provides that if a party to a proceeding is absent from a hearing, the Court or a Registrar may, amongst other things, adjourn the hearing to a specific date or generally or proceed with the hearing generally.
The High Court authority of Allesch v Maunz [2000] HCA 40 stands for the authority that a party has the right to appear or be heard on a matter. Justice Kirby says at paragraphs 38 to 40:
“…Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principal require.
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be a factored. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.”
I also considered the following:
a)the object of the FCC Rules;
b)Aon Risk Services Australia Limited v Australian National University;
c)the mandatory requirement of s.69ZN(7) of the Act;
d)that Judge Williams had made provision in her orders of 4 February 2019 requiring the father to attend Court and put the father on notice that if he did not comply with those orders that the matter may proceed on an undefended basis;
e)the statements the father made to Judge Williams on 4 February 2019;
f)the father’s various comments during the proceedings on 17 June 2019 and in the morning of 20 June 2019;
g)the procedural history of the matter and its effects on the mother (and indirectly) on the children;
h)the content of the father’s email of 18 June 2019.
I also considered paragraphs 96 to 98 of the father’s affidavit filed on 12 June 2019 which is as follows:
96. I cannot participate in a Trial where:
a) Court makes orders without jurisdiction.
b) Where both Ms M and I have been denied procedural justice through bad faith judgements and fraud.
c) My evidence has been suppressed.
d) And the case has been prejudged in Ms Teitzel’s favour through carefully orchestrated judgements and family reports.
97. I seek orders stated at the beginning of this application, short of which I will file express Appeal and seek writs of Mandamus, Certiorari and Prohibition pursuant to s 76, 76 and 77 of the Constitution.
98. If those routes fail I will seek other avenues. I cannot accept Orders made without jurisdiction.
During the course of the morning of 17 June 2019, the father made it clear that he understood the option he had of attending personally at Melbourne or making himself available by telephone.
There is no room for the view that the father could reasonably have assumed that his Application in a Case and/or the substantive parenting and property matters would not proceed on either of 17 or 20 June 2019. He may have presumed the success of his application to adjourn on the basis of the Notice but that in my view is not an answer to any misunderstanding of the matters before the Court on 17 and 20 June 2019.
The second respondent was also aware that proceedings would be listed on both 17 and 20 June 2019 and the nature of the substantive proceedings in relation to Orders concerning her.
The mother and the Independent Children’s Lawyer were prepared to proceed with all matters on both 17 and 20 June 2019. The Court was ready to proceed with all matters on both days. The Court has many other matters requiring a determination.
The father was provided with the opportunity to participate at 2.15pm on 20 June 2019 to further address, at the very least, his application for an adjournment of the substantive proceedings and with the ability to participate in the hearing of his Application in a Case filed 15 March 2019 and the substantive proceedings. The father did not avail himself of the opportunity to appear (either personally, by telephone or any other form of electronic communication) to prosecute his oral application for an adjournment, prosecute his Application in a Case, defend the orders the mother sought in her Amended Initiating Application or pursue the orders he sought in his Application in a Case and his affidavit filed 12 June 2019.
The father did not advise either the Independent Children’s Lawyer or the Court of any inability to attend by telephone at 2.15pm even though he was equipped with the electronic means to do so.
In relation to the consequences of my orders on the father and the second respondent, they are both at liberty to invoke Rule 16.05 of the FCC Rules and apply to this Court to set aside the orders I have made on an undefended basis.
Having regard to all of these matters the Court was satisfied that the hearing in relation to the father’s Application in a Case filed 15 March 2019 and the substantive parenting and property matters should proceed in the absence of the father and the second respondent.
The hearing in relation to parenting and property matters
The mother relied on her Amended Outline of Case filed on 19 June 2019, her affidavit filed on 7 December 2018 (trial affidavit), her affidavit filed on 1 April 2019 (response affidavit), her financial statement filed on 7 January 2019, her parents’ affidavits filed on 7 January 2019, the s.11F child inclusive memorandum dated 14 February 2017 and the Family Report dated 19 December 2018.
The Independent Children’s Lawyer relied on the s.11F child inclusive memorandum dated 14 February 2017, the Family Report dated 19 December 2018 and her Outline of Case filed on 30 January 2019.
For the purpose of this proceeding the material filed on behalf of the father is his Application in a Case filed on 14 March 2019, his affidavit filed 14 March 2019, his Application in a Case seeking orders including final parenting and property orders filed 18 June 2019 (I will refer to this document as the Response) and his affidavit filed 12 June 2019 in support of his Response. This latter affidavit purports to be a trial affidavit but largely deals with the father’s grievances towards the Court and the mother rather than address the substantive applications.
The Family Consultant said of the mother that she “impressed as a little nervous however was able to express her views in a capable, thoughtful and clear manner with the report writer. At times she was close to tears when discussing the described challenging nature of the current situation.”[7] This description aptly describes the mother while she gave her evidence, notwithstanding the father was not in personal attendance or on the telephone. The mother was nervous and appeared consumed with trepidation. Her presentation was the same when she sat in the body of the Court during the times the father attended by way of telephone. Despite her anxiety the mother gave clear and cogent evidence. There was nothing to suggest that the fear she held about the father was not genuine.
[7] Family report dated 19 December 2018 at [28].
The mother’s parents, the family consultant who prepared the s.11F memorandum and the family report writer were not required for cross examination by the Independent Children’s Lawyer.
The standard of proof to be applied when determining issues raised in these proceedings is the balance of probabilities.[8]
[8] s.140 of the Evidence Act 1995 (Cth).
In determining what parenting and property orders should be made I have considered and taken into account the affidavits the parties relied upon, the Outline of Cases, the Family Reports, the oral evidence of the mother, the exhibits tendered and the submissions made by both Counsel. I have also considered several statements made by the father when the father appeared by telephone on the mornings of 17 and 20 June 2019.
The parenting proceedings
An analysis and consideration of the merits of the father’s Application in a Case filed on 15 March 2019 is now redundant as final parenting proceedings are before the Court. The father did not appear to prosecute the orders he sought in that application.
Proposals
The mother seeks the orders set out in her amended Outline of Case.
Counsel for the mother identified the difference in these orders from those sought in her initial Outline of Case filed 13 June 2019. Those differences were the addition of paragraphs 5 and 9.
5. The children communicate with the Respondent via telephone each Tuesday between 7:30pm and 8:00pm with the Respondent to initiate the call to the Applicant.
…
9. Pursuant to section 64B(2)(g) of the Family Law Act 1975 (Cth) (‘the Act’) the Respondent be restrained from making any application under Part VII of the Act in relation to X and/or Y without first making an ex-parte application seeking and obtaining leave of a Judge of the Federal Circuit Court of Australia and for that purpose:
(a) the Respondent must file an application setting out the specific orders sought and an affidavit setting out the evidence and reasons for seeking these orders together with evidence of payment of all costs orders made in these proceedings;
(b) unless otherwise ordered such application is not to be served on the Applicant or any other person; and
(c) if possible, any such application for leave be listed before Judge Boymal.
The Independent Children’s Lawyer seeks the orders set out in her Outline of Case.
The father’s proposal in his Response was silent in relation to X save to the extent that he sought that all previous orders made in this case are impugned from Court records. In relation to Y he sought that Y spend equal time with his parents.
On 20 June 2019 during his telephone attendances the father confirmed that in the substantive proceedings he was seeking parenting orders that X live with him. In relation to Y, he sought that Y “lives between Ms Teitzel and I and spends time, you know, with both of us” In relation to airplane travel for Y he said “Yes, once in a while. I don’t know. We work it out. We can always definitely work it out, find a way”.
The Approach to Parenting Matters
Part VII of the Act sets out the provisions relating to children. Section 60B of the Act sets out the objects and principles underlying Part VII.
Section 60CA of the Act requires a Court to regard the best interests of the child as the paramount consideration when making parenting orders. The primary and additional considerations necessary to be taken into account in determining what is in a child’s best interests are listed in section 60CC of the Act.
Section 65D(1) of the Act provides that the Court may make such a parenting order as it thinks proper, subject to the presumption of equal shared parental responsibility and parenting plans.
The presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility of the child is found in section 61DA(1) of the Act.
However, if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child who at the time was a member of the parent’s family (or that other person’s family), or family violence, then pursuant to s.61DA(2) of the Act the presumption does not apply.
Further, pursuant to s.61DA(4) of the Act the presumption may be rebutted if there is evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
The relevant considerations and the evidence
The benefit to the child of having a meaningful relationship with both of the child's parents
There is a benefit to the children of having a meaningful relationship with the mother, father and the second respondent.
The children have a rich cultural background and heritage which could be supported by the father. The father submits that this is a significant consideration to be taken into account.
The father says that X is of Country D-Country L race and culture, “is Country D and that [the mother], her parents, relatives and friends are Anglo- Saxon”.[9] He asserts that the mother and her family “share no history, culture, language, space or religious beliefs”;[10] X’s religion and values are Catholic and conservative, whereas the mother and her parents are of no religion and progressive.[11]
[9] Affidavit of the father filed 12 June 2019 at [28].
[10] Affidavit of the father filed 12 June 2019 at [29].
[11] Affidavit of the father filed 12 June 2019 at [28] and see table referred to at [46].
The mother gave evidence that X understands that he is Country D by birth and that his patrilineal heritage is Country L. X’s understanding is that the second respondent is his biological mother and lives in Country D and that the mother is his stepmother or “mother in practice”. Upon his arrival in Australia he called the mother “Mummy-Ms Teitzel” for a period of time and then changed to calling her “Mum”.
Y is very clear about his Country L/Australian background.
The family report writer recognised that the children’s racial and cultural heritage are important aspects of their lives.[12]
[12] Family Report dated 19 December 2018 at [48].
The mother gave evidence that she believes the cultural connections of the children are extremely important. She maintains the children’s cultural connections by discussing them openly at home with them. The mother provides them with books about their cultures. They interact with other children of different Country L heritage at school. The mother has spent time in Country L and Country D and says she feels confident to speak with them about the cultural background from her own personal knowledge.
The mother says that during the relationship nothing active was done in respect to cultural background.
The father elected to live and work in the Northern Territory. He has spent no face to face time with the children (other than briefly at the family report interviews) since September 2018. The mother’s evidence was that there has only been two telephone calls since separation.
It is unfortunate that the father has sought to emphasise the importance of the children’s backgrounds and expend his energy on a theoretical and legal basis rather than in a real sense. The Independent Children’s Lawyer refers to the father being “more focused on form rather than in substance and the practical reality of the lives of the children on a day to day basis.”[13] The father has shown no insight in relation to the impact of his absence in the children’s lives and their relationship with him caused by his decision to move to Northern Territory and his lack of electronic communication. He has also shown no insight into the loss of his ability to support and be involved with their cultural heritage.
[13] Outline of the Independent Children’s Lawyer at [4].
X would also benefit from a meaningful relationship with the second respondent. However, the ability of X to share a meaningful relationship with the second respondent is practically difficult given she lives in Country D.
Prior to separation X maintained communication with the second respondent via telephone calls, text messages, sharing of reports and sharing of images.[14]
[14] Family Report dated 19 December 2018 at [7].
The mother gave evidence that telephone contact between X and the second respondent is sporadic and that the infrequency and uncertainty of that telephone communication has an impact on X. The mother said that she would like there to be more regular and scheduled communications and she would be open to the second respondent to indicate some commitment for regular times.
The second respondent has the mother’s telephone number. The second respondent changes telephone numbers frequently so it is in the hands of the second respondent to initiate the calls to the mother’s telephone number.
The father has not demonstrated any insight in relation to the benefit of the children having a relationship with the mother and there are concerns surrounding the father’s capacity to support the mother’s relationship with the children given the nature of his criticism and the derogatory comments he directs toward the mother.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The mother asserts that the children are at risk in the father’s care.
Since separation the mother has felt unsafe and concerned the father may try to hurt the children or her.[15] She deposes that during a changeover on 29 September 2018 the children witnessed the mother shaking and crying when the father made an ugly verbal attack upon her.[16]
[15] Affidavit of the mother filed 28 March 2019 at [3].
[16] Affidavit of the mother filed 7 December 2018 at [26].
The mother deposes to the father’s inadequate quality of care of the children. She provides examples of his unwillingness to provide permanent, suitable accommodation for continuity and stability for the children, his inability to assist the children during illness, injuries they may suffer and his inability to feed the children appropriately.[17] The examples of past events involving the father’s conduct toward the children are concerning.
[17] Affidavit of the mother filed 7 December 2018 at [122] to [131].
The father has failed to properly supervise the children. Following separation the father left the children unattended between 7.00pm and 12.00am when the father was at work.[18]
[18] Affidavit of the mother filed 7 December 2018 at [81].
The mother deposes to Y telling her the father threatens and hits him with a stick when he calls out for her during the night. The mother believes that this is a contributing factor to Y’s continued fear of going to sleep, nightmares and the need to ensure that she is close to him during the night.[19]
[19] Affidavit of the mother filed 7 December 2018 at [128(b)].
The mother also deposes to Y being accidentally hurt when the father slammed down a pot of water and the lid hit Y on the head causing it to bleed.[20]
[20] Affidavit of the mother filed 7 December 2018 at [39(a)].
The mother sets out in detail her allegations of the nature of the family violence.[21]
[21] Affidavit of the mother filed 7 December 2018 at [29] to [52].
Having observed the mother’s genuine fear of the father and her distress in Court during the 2 days I have no doubt as to the veracity of her evidence in relation to family violence perpetrated upon her by the father and any of her other evidence.
The mother describes the dynamics of “financial, emotional, psychological control and abuse which heightened after we had children and worsened as the relationship deteriorated”. She also deposes to him being sexually coercive. She deposes to the father telling her that he had engaged an agency to “hack” into her telephone, that he had her under surveillance and accused her of giving him a sexually transmitted disease.
The mother alleges the children have witnessed incidents where the father has humiliated, threatened and screamed at the mother to the point where the children have become emotionally distressed and afraid.[22]
[22] Outline of Case of the Independent Children’s Lawyer filed 30 January 2019.
Counsel for the mother referred me to what she has gleaned from the father’s affidavit filed 30 January 2019 that the father has been charged with a breach of an intervention order when he refers to having a criminal record. This breach apparently is in relation to incidents occurring in December 2017.[23]
[23] Affidavit of the mother filed 7 December 2018 at [53] to [55].
The mother gave evidence that on 13 June 2019 at the Heidelberg Magistrates Court she obtained an Interim Intervention Order against the father.[24] She feared for her and the children’s safety as there had been a history of physical abuse prior to separation and a continuation of abusive tactics during the proceedings. She was concerned that there would be a potential for escalation into the physical violence following these proceedings.
[24] See exhibit M2.
The mother obtained an Intervention Order for 2 years against the father on 9 January 2017 naming her and only Y as the Affected Family Members (as X was not in her care at the time), albeit made without the consent of the father.[25] The mother says she did not have the emotional, practical or financial resources to proceed with an application to extend the Intervention Order in relation to the circumstances of December 2017 when the father tried to obtain her address.
[25] Affidavit of the mother filed 7 December 2018 at [40] to [41].
The father’s Application for an Intervention Order against the mother naming the children and him as Affected Family Members was dismissed on 3 October 2017, as was his application to revoke the Intervention Order he had consented to in January 2017.
The mother remains concerned, given the father’s behaviour continues to escalate in emotion and irrational thought, that he may take the children out of the Commonwealth of Australia or to a remote location within Australia without her knowledge or consent.
She had sought the assistance of Victoria Police and the Department of Health and Human Services to locate X and the father when he failed to return X to her care in December 2016/January 2017 and after some weeks was successful in obtaining a Watch List Order on 20 January 2017. The mother was also successful before Judge O’Sullivan on 6 March 2019 in suspending time between the children and their father because of her fear of the father removing them from her care during his impending visit to Victoria.
On 1 November 2018 the father sent a letter to the mother’s solicitor which in part reads as follows:
I am not your client’s substitute to help her achieve her goals while mine is wasted. I am Country L first and foremost, X is a Country D person first and foremost and Y is Australian. We all have rights to travel and visit places. There is no law that bars me or the kids from leaving Melbourne. The State has no right to limit the movement of people across states or national borders without any reason. The State does not grant rights are inalienable; the State promotes and protects human rights as stipulated international instruments and Charter (emphasis added)[26]
[26] Affidavit of the mother filed 7 December 2018 at annexure T-01.
There is no Watch List Order presently in force as the order made on January 2017 has expired.
The father lives in a remote isolated community in Northern Territory. If the father were to take the children there, the mother asserts that she would not know where to begin looking for them.[27]
[27] Affidavit of the mother filed 28 March 2019 at [23].
The father has declined to provide information as to his personal accommodation to the mother, citing as his reason that the mother will not disclose her address to him. The mother has not disclosed her actual address because of safety concerns.
The mother remains concerned that the father will continue to expose the children to negative, derogatory comments and criticism about her. Such denigration would undermine the children’s relationship with her and also detrimentally impact the children’s emotional wellbeing.
At the s.11F conference interviews on 3 February 2017 X expressed a wish to “go back to my country to see my mum.” The report writer remarks that this was expressed in the context of him believing that the mother is preventing him from being permitted to travel to Country D as has seemingly been explained to him by the father. She further remarked that the father has been promoting to X that the mother does not care about him and blames her for causing the breakdown of the family.
In a letter to the mother’s solicitor dated 30 November 2018 the father said that he thinks the mother “is delusional or suffering from a white person’s superiority complex. This kind of arrogance and assumed privilege is never unheard of”.[28]
[28] Affidavit of the mother filed 7 December 2018 at annexure T-03.
The mother gave evidence in relation to the circumstances of 10 December 2018, the day of the Family Report interviews. She confirmed the report writer had told her the father was not going to participate but that he might arrive at some point to give presents to the children. She and the children left the venue at the conclusion of their part of the assessment and when heading back to her car the father “accosted us on the street and held the children”. The mother asserts that when the father approached the children the father asked the children “why is your mother not letting me see you”.[29] Despite being panicked they went back to the report writer. The mother agreed to the children seeing their father at the assessment. The mother’s evidence was that the children were happy to see their father albeit it was a very stressful interaction.
[29] Family report dated 19 December 2018 at [40].
During the brief observation session at the Family Report assessment the father made the comment to the children “why have you not called dad, I have tried calling you many times.” The Family Report writer requested the father to restrict such comments.[30]
[30] Family report dated 19 December 2018 at [41].
The Family Report writer recommended supervised time. At paragraph 50 the report writer says as follows:
… It is also considered important to the children that they have the opportunity to spend predictable and planned time with their father, knowledge in their parental relationship with him. There have been concerns expressed that the children have been exposed to continuing parental conflict and openly expressed critical views of the mother by Mr Olman. This is clearly not in their best interests and likely to cause them further distress and confusion. Given this situation consideration may need to be given to the parties engaging in a supervised contact service, either at a nominated and available children’s contact Centre or through a private supervision agency in order to manage both time of changeovers and to ensure the children are safe and protected from described and alleged paternal behaviours and responses that have the potential to be emotionally damaging to them and undermining the parental relationship they have with Ms Teitzel.
I note that the Family Report writer’s recommendation for supervised time is predicated only on the risk of harm to the children arising from the children’s exposure to denigration by the father of the mother. There are other risks to the children as identified.
There are many established authorities in relation to “unacceptable risk”. I refer to Stott & Holgar and Anor [2017] FamCAFC 152 wherein the Full Court succinctly considered the law with respect to unacceptable risk. At [34] to [38] the Full Court stated:
The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:
In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
35.The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A [1998] FamCA 25…
36.In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:
the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
37. As an eminent former judge of this Court has said (emphasis added):
…unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’
38.We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm…
The mother does not suggest that there should be no time spent between the children and the father because of the risks she has identified. The mother desires the children to have an ongoing relationship with the father however, having regard to the risks the father poses to the children, she maintains that such time should be supervised.
The father was spending time without supervision prior to his departure to live and work in the Northern Territory.
I must determine whether there is a likelihood of those risks occurring, and if so, whether the appropriate safeguard to reduce and ameliorate those risks is by imposing a condition of supervision of time.
I am satisfied, pursuant to the higher standard required in matters in this Court involving risk that on the balance of probabilities the children are at risk in the father’s care of being subjected to, or exposed to abuse, neglect and family violence. I have set out the past conduct of the father generally and toward the mother and the children.
The father has continued to act irrationally during these proceedings. He has no insight in relation to the impact on others of the consequences of his behaviour. The mother is of the view that because of the way the father has irrationally conducted himself during the proceedings that his anger continues to grow, he appears paranoid and socially isolated.[31]
[31] Affidavit of the mother filed 7 December 2018 at [25].
On 17 June 2019, the father suggested that other people had put the mother up to the Court process and that if the mother is positive, they could definitely negotiate things, finish up and move on. That is an unrealistic thought and an unrealistic expectation.
The father’s email to the Independent Children’s Lawyer, as recent as 18 June 2019 included the statement “Please do not underestimate my determination to bring this case to a successful conclusion. The law is on my side and no one can take it”.
I do not propose to make orders in relation to any matter which was discussed of which the father has not received notice. I propose to make parenting orders linking the proposals of the mother and the Independent Children’s Lawyer, both proposals being known by the father.
The mother does not have a record of X’s birth. A copy of his birth certificate and passport was produced pursuant to a subpoena issued for the purpose of these proceedings. The documents produced were not released for photocopying. The mother needs his birth certificate and passport for various purposes. As I propose to make an order that she have sole parental responsibility for X, I propose to make an order in the terms of Order 10 of the mother’s proposed minute of orders sought.
Order sought pursuant to Section 64B(2)(g)
In support of the order proposed by the mother in paragraph 9 of her proposed minute, Counsel for the mother submits the mother, who will be the primary carer, should not have to be burdened with ongoing litigation. The mother has had to deal with litigation between the father and her in several Courts and she “has had to take extensive time off work over the past two years due to the stress, anxiety and adverse impact on my health in these proceedings have had, as well as the time demands of legal proceedings caring for the children”.[53]
[53] Affidavit of the mother filed 7 December 2018 at [3].
Counsel for the mother further submitted that the children have been exposed to the effects of litigation between the parents, including most likely witnessing the effects the litigation is having on the mother. The father has been obstructive by his attempts to thwart the parenting dispute between the parties from concluding.
Section 64B(2)(g) of the Act provides that a parenting order may deal with the steps to be taken before an application is made to a Court for a variation of the order to take into account the changing needs or circumstances of a child to whom the order relates or the parties to the proceedings in which the order is made.
The making of such an order as proposed by the mother is tantamount to an order that may be made in vexatious proceedings pursuant to ss.102QB and 102QE of the Act. Such an order pursuant to these sections have serious consequences on a litigant. The making of such an order “is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s right. It is, therefore, not lightly to be made”.[54]
[54] Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [2].
Orders made pursuant to s.102QB of the Act are not parenting orders. The sections of the Act pertinent to vexatious proceedings are not included in Part VII of the Act. The principle of best interests of children being the paramount consideration, and the consideration of the factors when determining best interests, do not overarch the determination of whether orders pursuant to s.102QB of the Act should be made. Very different considerations apply in vexatious litigant proceedings.[55]
[55] See for example Pencious & Searle [2017] FamCAFC 210.
Section 102QB(4) of the Act provides that a Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard. The father was not present either personally or by telephone. In any event, the father has no notice of proceedings pursuant to ss.102QB and 102QE being the subject matter of this proceeding and, furthermore, evidence was not produced or submissions made addressing the matters required to be considered in determining whether a vexatious proceeding order should be made.
Accordingly, I do not propose to make the order sought by the mother pursuant to s.64B(2)(g) of the Act.
The property proceedings
The mother seeks:
1. That the monies currently held in the ANZ Controlled Money Investment Account No ...22 and the monies currently held in the ‘protected monies’ account administered by Westminster Lawyers, be disbursed as follows:
(a) Firstly, to repay Mr O and Ms P the sum of $30,000;
(b) Secondly, the balance of approximately $335,917 to be paid to the Applicant.
2. That the Applicant retain to the exclusion of the Respondent:
(a) Her superannuation entitlements;
(b) Any monies in her personal bank account; and
(c) The household chattels and furniture in her possession.
3. Unless otherwise specified for in these orders, the parties each remain liable for any liabilities in their respective names, including credit card debt.
4. That the Respondent retain to the exclusion of the Applicant:
(a) The house and land in Country L;
(b) His superannuation entitlements; and
(c) The $10,000 part-property settlement received by him.
5. Unless otherwise specified in these Orders:
(a) Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at date of these orders;
(b) Monies standing to the credit of the parties in any joint bank account are to become the property of the Mother and the account thereafter closed;
(c) Each party forego any claims they may have to any superannuation benefit belonging to or earned by the other;
(d) Insurance policies remain the sole property of the names owner;
(e) Each party be solely liable for an (sic) indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these Orders; and
(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
6. That within 7 days, the Respondent pay or cause to be paid:
a. The sum of $3,283.60 together within interest accrued from 29 January 2018 pursuant to the costs order made by Justice Strickland on 29 January 2018.
b. The sum of $4,053 together with interest accrued from 4 February 2019 pursuant to the costs order made by Judge Williams on 4 February 2019.
7. The Respondent pay the costs of and incidental to the Applicant’s application for a property settlement.
The father seeks that there be a property adjustment between the parties as to 70% in favour of the mother and 30% in favour of the father.
The principles to be applied
In considering applications for the division of property interests in a de facto relationship the Court must[56]:
a)Identify the existing legal and equitable interests of the parties in their property;
b)Consider whether it would be just and equitable in the particular circumstances to make an alteration;
c)If an alteration should be made, to examine the matters contained in ss. 90SM(4) and 90SF(2) of the Act in arriving at an adjustment; and
d)Determine whether the adjustment under consideration would be just and equitable.
[56] Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FamCAFC 116.
The Asset Pool
The mother’s outline of case sets out an asset pool as follows:
Asset
Owner
Value ($AUD)
1
Monies held by Westminster Lawyers in Controlled Money Investment Account
Joint
$342,797
2
Monies held by Westminster Lawyers in Protected Trust (proceeds of food truck and car)
Joint
$23,120
3
House & land in Country L
Joint
E $26,000
5
Part property settlement
Ms Teitzel
$10,000
6
Part property settlement
Mr Olman
$10,000
Total
$411,917
Liabilities
7
Monies owing to T Finance Company (legal fees)
Ms Teitzel
$50,000
8
mother’s credit card debt
Ms Teitzel
$5,500
Total
$55,500
Total non-superannuation asset pool
$356,417
Superannuation
9
Super Fund U
Ms Teitzel
$90,979
10
Super Fund V
Ms Teitzel
$2,000
11
Super Fund W
Mr Olman
$3,500
Total Superannuation
$96,479
TOTAL
$452,896
The mother included in her asset pool $4,053 and $3,283.60 being monies owing to her by the father by way of the costs orders of 4 February 2019 and 28 January 2018 respectively. I propose to deal with the costs orders separately and exclude them from the asset pool. I also do not propose to include monies owing to T Finance Company (legal fees) and the mother’s credit card debt.
The mother’s financial statement discloses the mother has superannuation entitlements of $92,979.
The father’s view of the asset pool is unknown including his superannuation entitlements. Counsel for the mother submitted that the asset pool cannot be accurately quantified because of the lack of financial disclosure by the father. The mother does not seek an adjustment of property which may otherwise be owned by the father and unknown to her. I accordingly use the non-superannuation asset pool of the mother less the costs and monies owing to T Finance Company, and the mother’s superannuation entitlements for the purpose of adjusting the property of the parties.
I am satisfied that it is just and equitable to make orders adjusting the property between the parties for the following reasons:
a)the parties’ relationship has broken down;
b)the parties have each brought applications before the Court seeking orders altering their respective property interests;
c)the parties have acquired and conserved various property and superannuation interests either jointly or individually during the course of their relationship;
d)the parties hold real estate and property in Country L to which they have both contributed; and
e)the parties hold the proceeds of sale of various assets of the relationship.
Contributions during the relationship
When the mother and father were in Country L in 2010, they purchased land and a house in Country L for $12,000 USD (approximately $15,000 AUD) and $6,000 USD (approximately $7,800 AUD) respectively. They also purchased a car for $5,000 USD (approximately $6,500 AUD). The mother asserts that she contributed financially as to one half of the cost of these assets. They all remain registered in the sole name of the father.
The father completed his professional qualifications in 2011 and was undertaking Certification. He was also dedicating a lot of time to a small community foundation to support community development in his home village in Country L.
In 2011 the mother purchased in her sole name the property at Z Street, Suburb AA (the Suburb AA property) for $315,000. The deposit of $31,500 was gifted to her by her parents and a further $188,305 was gifted to her by them as a contribution towards its purchase. The mother applied her savings of approximately $10,000 and obtained a mortgage with the Commonwealth bank of approximately $100,000.
The mother had superannuation entitlements of approximately $30,000 prior to cohabitation in Australia.
The mother asserts as far as she is aware the father did not own any assets of significance at the commencement of cohabitation save for the jointly acquired assets in Country L.
The mother and father lived rent free with the mother’s parents until settlement of the purchase of the Z Street, Suburb AA property. The mother and father moved into the Z Street, Suburb AA property in 2011.
During this time the mother worked part-time at Employer DD, undertook her professional qualifications and developed Chronic Fatigue Syndrome.
Between 2012 and 2013 the mother was forced to take unpaid sick leave as her health was fragile and she was suffering greatly from her chronic fatigue. During this period of time, the parties lived off her savings, the father’s modest salary, some cash money from the mother’s parents and some consultancy work the mother undertook. The father did not contribute to the cooking, cleaning or general housekeeping despite the mother being completely debilitated. The mother deposes the father had very little interest in understanding her illness.
In anticipation of the birth of Y and X coming from Country D, the Z Street, Suburb AA property was sold in order to purchase a bigger house. The mother and father purchased BB Street, Suburb E (the BB Street, Suburb E property) for $600.000. The proceeds of sale of the Z Street, Suburb AA property of $175,000 was applied to the purchase of the BB Street, Suburb E property.
In 2013 the mother’s parents gifted the sum of $150,000 to assist with the purchase of the BB Street, Suburb E property.
The father did not work in paid employment until the middle of 2012, initially with the Employer BB and thereafter with Employer CC in its Country L employment Program earning $60,000 per annum. He became disillusioned with his employment experience in Australia and the mother deposes that he placed pressure on her to use most of the $150,000 to purchase a food truck and establish a business to cook and sell Country L food.[57] The parties used $120,000 of the gifted monies towards the establishment of the business and reserved the remaining $30,000 as savings to see them through the first year of their mortgage as the mother was then on maternity leave. $15,000 was used towards furniture and a motor vehicle.
[57] Affidavit of the mother filed 7 December 2018 at [169].
In 2014 the mother’s parents provided a further $30,000 to the mother and father to enable them to complete the food truck. The mother asserts that this money is a loan from her parents and was intended to be repaid in regular increments from the proceeds of the food truck business.
The mother then returned to full time employment with Employer DD in 2015 due to financial pressures after taking some time off after Y’s birth. The mother deposes that the food truck business did not appear to be making considerable money and that her salary was drawn upon and small loans were obtained from her parents.[58]
[58] Affidavit of the mother filed 7 December 2018 at [177].
The mother deposes that the father refused to maintain the garden and showed little interest in maintaining the property. She deposes that her father worked in the garden at least each fortnight and did much of the maintenance and funded repairs.[59]
[59] Affidavit of the mother filed 7 December 2018 at [184].
The mother provides a comprehensive summary of the financial contributions totalling $419,501 made by her parents during the course of the relationship.[60] This is corroborated by the evidence of both of her parents in their respective affidavits. Her father annexes bank statements to corroborate their evidence.
[60] Affidavit of the mother filed 7 December 2018 at [177].
The mother deposes that she was the primary homemaker and parent. The mother deposes that the father was not an active, caring father to the children nor contributed to household chores. She further deposes that the maternal grandparents often took over parenting duties when the mother was required to travel interstate for work.[61]
[61] Affidavit of the mother filed 7 December 2018 at [74].
The father held high expectations of the mother that she would be the primary carer for the children as well as the main income earner.[62]
[62] Family Report dated 19 December 2018 at [32].
Post separation contributions
The mother arranged for the sale of the BB Street, Suburb E property. The net proceeds of sale of $339,672.83 were initially deposited in the Westminster Lawyers trust account and are now invested in a Controlled Money Account.
The mother continued to meet mortgage repayments, insurance and utility expenses totalling $19,263.68 in relation to the BB Street, Suburb E property until its sale. The mother was on long service leave and family violence leave during this time.
The mother paid $2,630 in repairs and changes to the BB Street, Suburb E property at the recommendation of the selling agent in preparation of its sale.
The mother, her parents, her uncle, sister and brother-in-law and many friends expended their time (calculated at approximately 420 hours) and labour in preparing the BB Street, Suburb E property for sale.
The mother arranged for the sale of the food truck. Her family and she spent numerous hours preparing the food truck for its sale. The net proceeds of sale was $42,003. The parties agreed to distribute $10,000 to each of them, characterised as a part property distribution, from the net proceeds of sale. The balance is now held by Westminster Lawyers in Protected Trust.
The mother prepared and arranged for the sale of the motor vehicle. Notwithstanding the vehicle remaining in the possession of the father until October 2018 and him refusing to return or transfer it to the mother in breach of the order made on 7 April 2017, the mother continued meeting expenses of the vehicle in excess of $6,000 until its sale. The net proceeds of sale of $1,117 is held by Westminster Lawyers in Protected Trust.
Since January 2017 the mother has continued being the primary carer of both children. They have spent nominal time with the father. She deposes in 2018 that she was forced to resign from her position at Employer DD and the payment of $15,000 she received was applied to general living expenses for her and the children.[63]
[63] Affidavit of the mother filed 7 December 2018 at [203].
The mother has had to obtain litigation funding and she calculates that in addition to primary funds loaned, fees and interest could be as high as $12,000. The mother’s father deposes that between February 2017 and September 2018 his wife and he have paid $79,878.99 toward the mother’s legal fees. The mother also carries the debt of T Finance Company for her legal fees.
The mother has been solely responsible for the financial support of the children, the father paying no child support or otherwise assisting financially toward them.
Section 90SM 4(d) to (g) considerations
Other orders I propose to make affecting the mother and the father are the parenting and costs orders. The mother will, in practical terms, be solely responsible for the day to day care of the children and their emotional, psychological and financial upbringing. The father may spend only very limited time with the children, at his election, pursuant to the orders of the Court.
The mother is 37 years of age and has previously suffered from Chronic Fatigue Syndrome. She is not cohabiting with another person.
The commitments of the mother are set out in her financial statement. Her financial commitments approximate her income. The mother is also in receipt of Family Tax Benefits. Her legal costs have been and still are significant.
The mother’ current role as a professional will likely end shortly. It is unlikely that she will be able to maintain full time employment whilst caring full time for two children.[64] She may derive an income from either part time or full time employment. The financial orders I propose to make do not affect the earning capacity of the mother.
[64] Affidavit of the mother filed 7 December 2018 at [205].
The father is 46 years of age. Save for a medical certificate dated 11 June 2019, the Court has no further information in relation to the state of his health. Likewise the Court has no information in relation to whether he is cohabiting with another person.
The father has not filed a financial statement. The Court has no information in relation to the income or commitments of the father. It is not known whether the father is eligible for a pension allowance or benefit.
At the end of last year the father was engaged in employment as a professional with the Employer F earning $67,000 per annum. It is not known whether he remains in that role nor what is his income. What is known to the Court is that he remains employed as identified by his statements that he was required to return a company vehicle to his employer.
The father has the capacity to maintain full time employment due to his qualifications and work experience. The financial orders I propose to make do not affect the earning capacity of the father.
Counsel for the mother refers to paragraph 31 of the father’s affidavit filed 30 January 2019 wherein he deposed that he has paid “thousands of dollars” to his lawyer. She added that during March and April when the matter was in Court the father was in Country L for approximately 6 weeks. She submitted that there is a possibility that the father does have some money.
The father has an obligation to contribute toward the support of X and Y. He has not paid any Child Support nor contributed to any of the children’s costs since separation. The mother has not applied for a Child Support assessment.
Adjustment of interests
An analysis of the evidence inexorably leads to the conclusion that the mother has made by far the overwhelming superior contributions to the assets of these parties both during and post their relationship in all forms. She has undertaken the primary role of homemaker and parent, she has made a greater direct financial contributions through her income and savings and by the advances made to her by her parents. She expended personal energy, with the assistance of friends and relatives post separation in an endeavour to finalise the financial matters between the parties by arranging for the sale of their assets. Accordingly, I find that the mother has satisfied the Court that because of her superior contributions in all forms it is appropriate to provide for an adjustment in her favour in relation to contributions.
The father’s evidence in relation to financial matters is that the mother’s case has purely been driven by greed of her parents, who want to “claw back gifts they donated to her”.[65] The father conceded on 17 June 2019 that “Well, the mother is applying to take everything. I don’t even know whether I will get anything from there” and “Ms Teitzel contributed a lot of money – I totally appreciate that.”
[65] Affidavit of the father filed 12 June 2019 at [94].
The monies advanced by the mother’s parents is a “contribution made by or on behalf of the spouse whose parents made it”[66] that is, a gift made by the parents to the mother. In reaching my determination of the adjustment of the parties’ interests I have considered those gifts as a financial contribution made by the mother.
[66] Pellegrino & Pellegrino [1997] FamCA 52.
The mother suffers from chronic fatigue symptoms that inflame under stress. [67] The mother’s ability to work full-time may be impacted upon because of her primary care of the children and her health. The mother is unlikely to receive any form of financial support from the father in relation to the children. She will remain the primary caregiver of the children and the sole provider for all of their physical, emotional, psychological, education and health needs.
[67] Affidavit of the mother filed 7 December 2018 at [3].
The total of the non-superannuation assets of the parties still to be adjusted between the parties is $391,917. This is less than the amount advanced to the mother by way of the loan and monetary advances to her by her parents being $419,501. The mother had existing superannuation entitlements at the time of cohabitation.
The Court will take a holistic approach to the matter. The orders will provide for the father to retain the assets in Country L totalling $26,000 and other assets he may have within his control that he has not disclosed, if any. He has already received $10,000 from the total asset pool.
The orders will provide for the mother to retain all of the monies in the Controlled Money Investment Account and the Protected Trust. After she repays her parents the sum of $30,000 she will retain $361,000. She has already received $10,000 from the total asset pool. She will also retain her superannuation entitlements.
Such an adjustment provides for the wife receiving 93% of the total of the non-superannuation and superannuation assets and the father receiving 7%.
I am satisfied that in the circumstances of this matter that such an adjustment is just and equitable.
Costs
Counsel for the mother requested the Court to:
a)Make an order requiring the father to pay the mother’s costs fixed at $4,053 and ordered to be paid by the father on 4 February 2019 within 7 days. The order provided for the determination of time for payment to be adjourned to the trial;
b)Make a costs order in relation to mother’s costs of 27 October 2017 which were fixed at $2,840 and reserved. The father was notified of the mother’s intention to seek that order at the final hearing by way of a letter forwarded to the father via email on 26 July 2018, Annexure T-09 of the mother’s trial affidavit and in the mother’s Outline of Case filed 13 June 2019 and her amended Outline of Case filed 19 June 2019;
c)Make an order for the father to pay the mother’s costs order of 17 June 2019 which on that day were fixed at $4,053 and reserved to 20 June 2019;
d)Make an order that the costs of $3,283 ordered to be paid by Justice Strickland on 29 January 2018 be paid by the father within 7 days. The mother’s Outline of Case and amended Outline of Case seek that order; and
e)Make a costs order for 20 June 2019 in the sum of $4,053. The father was present at the hearing on 17 June 2019 when I made that order.
Counsel for the Independent Children’s Lawyer requested the Court to:
a)Provide a timeframe within which the costs of the Independent Children’s Lawyer fixed at $2,199 on 4 February 2019 and ordered to be paid by the father. The determination of the time for payment was adjourned to the trial; and
b)Make a costs order in relation to the Independent Children’s Lawyer’s costs of 17 June 2019 which were fixed at $1,548 and reserved to 20 June 2019.
The father has had notice of all these orders being sought at trial (save for the mother’s application for her costs of 20 June 2019).
Section 117(1), (2) and (2A) of the Act provides for the parties to bear their own costs unless the Court is of the opinion that there are circumstances that justify making another order and sets out the factors that the Court takes into account when departing from the general rule.
The return date of 27 October 2017 was occasioned by the father initiating his application for recusal. His application was dismissed. His oral application for recusal was subsequently dismissed on 25 July 2018. The father was wholly unsuccessful in those proceedings.
The costs of the legal representatives of 17 June 2019 were thrown away. Nothing of substance was achieved other than to provide an adjournment and provide an opportunity to the father to participate in the proceedings. The father failed to comply with the order requiring him to attend personally on that date. He had not made arrangements to otherwise attend in the face of him encountering car troubles. He indicated he was not ready to proceed in any event.
The father has been wholly unsuccessful in his Application in a Case filed 15 March 2019.
Counsel for the mother submitted any suggestion the father doesn’t have the ability to pay costs must be rejected because the father is earning $67,000 per annum, has paid money to lawyers and has travelled to Country L.
I note the father said in the morning of 20 June 2019 that “If we are done with this court, I will have money, I will be set...” in relation to travel costs of Y.
I note the father in his letter to the Independent Children’s Lawyer dated 18 June 2019 indicates that the father does not have the capacity to pay costs.
The Court has no clear evidence whether or not the father is a person of limited means. However, in Nada & Nettle (Costs) [2014] FamCAFC 207[68] the Full Court stated:
That a party is impecunious, even indigent, is not a bar to the making of a costs order if the court is otherwise of the opinion that such an order ought to be made.
[68] Nada & Nettle (Costs) [2014] FamCAFC 207 at [11].
I propose to make the costs orders sought by the mother save for her costs of 20 June 2019. I do not propose to make that costs order on the basis that on at least one or other of 17 June 2019 or 20 June 2019 an appearance at Court was required to prosecute her application.
I propose to make the costs orders sought by the Independent Children’s Lawyer.
I propose to make the time for the payment by the father of all costs orders to be within 60 days of this order. The father has the ability to invoke Rule 16.05 of the FCC Rules. I consider that it would be appropriate to defer payment of the costs by him in the event he does decide to invoke that rule to vary or discharge these orders.
Conclusion
In order to ensure that the father and the second respondent have notice of my orders and these reasons, in addition to the Court forwarding those documents to the email addresses used by the Independent Children’s Lawyer to communicate with them, I will direct the Independent Children’s Lawyer and the mother’s solicitors to forward copies to the same email addresses.
I certify that the preceding three hundred and seventeen (317) paragraphs are a true copy of the reasons for judgment of Judge Boymal
Associate:
Date: 6 December 2019
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