Vasil and Vasil (No 2)

[2019] FamCA 773

FAMILY COURT OF AUSTRALIA

VASIL & VASIL (NO. 2) [2019] FamCA 773

FAMILY LAW – CHILDREN – With whom a child spends time – Child’s views – Where the child is now 13 years old – Where the child has clearly stated her views about spending time with the father to two family consultants – Where the child is considered by the family consultant to demonstrate an understanding of the conflict between the parties and impressed as mature for her age – Where the father believes the mother and her family have coached the child or “brainwashed” the child – Where the mother does not oppose the father spending time with the child but seeks that the father and the child make the arrangements between themselves for time spending – Orders.

FAMILY LAW – PROPERTY – Discovery – Where the single expert requires the 2018 and 2019 financials for various entities in order to value the mother’s interest in those entities – Orders.

Family Law Act 1975 (Cth) ss 60CA, 60CC

H v W (1995) FLC 92-598
Marvel & Marvel [2010] FamCAFC 101

APPLICANT: Ms Vasil

RESPONDENT: Mr Vasil

FILE NUMBER: ADC 1397 of 2017

DATE DELIVERED: 24 October 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 16 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT: Jordan & Fowler Family Lawyers

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That on or before sixty (60) days from the date of these orders the parties do produce for inspection and provision to Mr H, single expert, the following documents:-

   (a)       As to the mother:-

   (i)The financial statements for J Trust for the 2018 and 2019 financial years;

   (ii)The financial statements for K Pty Ltd for the 2018 and 2019 financial years;

   (iii)The financial statements for K Family Trust for the 2018 and 2019 financial years;

   (iv)Statements for L Pty Ltd for the 2018 and 2019 financial years;

   (v)The financial statements for M Super Fund for the 2018 and 2019 financial years;

   (vi)The financial statements for N Super Fund for the 2014 to 2019 financial years;

   (b)       As to the father:-

   (i)The financial statements for P Pty Ltd for the 2018 and 2019 years;

   (ii)Documents in relation to enforcement proceedings by O Group.

2. That all previous parenting orders be discharged.

3. That the parties have equal shared parental responsibility for X born … 2006 (“the child”).

4. That the child shall live with the mother.

5. That the child shall spend time with the father as follows:-

   (a)Each alternate Saturday from 11:00 am to 6.00 pm commencing 26 October 2019;

   (b)Each intervening Monday from the conclusion of school until 7.30 pm;

   (c)Such further and other times subject to the child’s wishes, NOTING THAT the parties and the child have agreed that the father is able to attend and observe the child’s sports training, practice and games.

6. That in addition to orders made, the child shall spend additional time with the parties as follows:-

   (a)       On Father’s Day with the father from 10.00 am to 5.00 pm;

   (b)       On Mother’s Day with the mother from 10.00 am to 5.00 pm;

   (c)On the child’s birthday for a period of not less than three (3) hours with the party with whom the child is not spending time or as may be agreed;

   (d)With the father on his birthday for a period of not less than three (3) hours or such times as may be agreed;

   (e)With the father on 25 December 2019 from 9.00 am to 3.00 pm and each alternate year thereafter;

   (f)With the mother on 25 December 2019 from 3.00 pm to 8.00 pm and each alternate year thereafter;

   (g)With the father on 25 December 2020 from 3.00 pm to 8.00 pm and each alternate year thereafter;

   (h)With the mother on 25 December 2020 from 9.00 am to 3.00 pm and each alternate year thereafter.

7. That the father be at liberty to communicate with the child by telephone or text message subject to the child’s wishes.

8. That each of the parties be at liberty to travel nationally or internationally with the child as may be agreed and subject to the child’s wishes.

9. That each party keep the other informed of their current residential address, telephone number and email address and advise the other party of any change to same within forty eight (48) hours.

10. That each party immediately inform the other of any serious illness, injury or accident involving the child, with each party at liberty to visit the child during regular visiting hours in the event that the child is admitted to hospital.

11. That each party be at liberty to receive reports, notices, and any other information that is usually provided to parents by any school, educational institution, sporting body or extra-curricular organisation at which the child may from time to time be enrolled or attend.

12. That each party be at liberty to attend all school functions and school sport and related extra-curricular activities and events to which parents are ordinarily invited to participate in and/or attend.

13. That all handovers that do not occur at the child’s school occur at the mother’s residential address or such other location as may be agreed between the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1397 of 2017

Ms Vasil

Applicant

And

Mr Vasil

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Amended Initiating Application filed 19 June 2019, Ms Vasil (“the mother”) seeks parenting orders in respect of X born in 2006 (“the child”). The child is aged 13 years.

2. The mother proposes that the parties have equal share parental responsibility for the child who shall live with the mother and spend time with the father as follows:-

   (a)Each alternate Saturday from 11.00 am to 5.00 pm;

   (b)Each intervening Monday from the conclusion of school until 7.00 pm;

   (c)Such further or other times subject to the child’s wishes.

3. The mother makes provision for the child to spend time with each of the parties on special occasions.

4. The mother also seeks orders for settlement of property.

5. By Response filed 16 May 2017 the father seeks that the parties have equal shared parental responsibility for the child and that the child lives with each of the parties on a week about basis. Similar to the mother, the father seeks orders that the child spend time with each of the parties on special occasions.

6. On 13 June 2019 the father filed an Application in a Case seeking the following parenting orders:-

   (1)That [the child] be allowed to travel with the father home after her school curricular activities, instead of having to catch the bus home.

   (2)That [the child] be allowed to have dinner with the father prior to being dropped off home.

   (3)That [the child] be allowed to be collected on Tuesday evenings and spend time with the father whilst the mother is away from her care.

   (4)That [the child] be allowed to spend the night with the father on Tuesday evenings and be dropped off to school on Wednesday morning.

7. The mother filed an Application in a Case on 2 September 2019 seeking to suspend the parenting orders made on 18 May 2017 and to provide for the child to spend time with the father in accordance with the child’s wishes and as may be agreed between the father and the child.

8. The father filed a Response on 13 September 2019 seeking more detailed orders that would effectively represent an extension of the father’s time with the child pursuant to the orders of 18 May 2017.

9. Separate to the parenting issues between the parties, by Application filed 19 June 2019 the father seeks general orders that the mother provide full and frank disclosure of documents as set out in an annexure to his affidavit filed in support.

10. The father seeks other orders in respect of the redaction of documents provided by the mother and the provision of documents that would enable him to better understand issues of income, expenses, stock, assets and cash reports that impact upon the mother’s financial circumstances.

Interim property issues

1. The mother is 50 years of age and is employed in a family business known as R Company. The father is 49 years of age and is self-employed as a consultant.

2. The parties were married in 1994 and separated on 1 April 2016. There are three children of the marriage with the youngest child under the age of 18 years.

3. The mother’s Initiating Application seeks final orders that the non-superannuation assets of the parties be divided 70 per cent to the mother and 30 per cent to the father. The father’s response seeks only a general order for settlement of property.

4. There is significant disagreement between the parties as to the assets and liabilities necessary to determine the pool of assets available for division.

5. A significant issue between the parties is the value that is to be attributed to the mother’s interest in R Company.

6. By joint letter of instruction dated 22 November 2018, the solicitors for the parties jointly instructed Mr H, forensic accountant, as a single expert instructed to value the parties’ interest in various entities but in particular, the mother’s interest in R Company.

7. The letter of instruction provides a brief history of the acquisition of the mother’s interest in R Company. The business was started by the mother’s parents Mr and Ms N together with a business partner.

8. R Company was owned by K Pty Ltd and traded via the N Family Trust.

9. The interest of the third party business partner was purchased in 1993 and the business was rearranged such that K Pty Ltd held land and real estate and the business of R Company traded via N Pty Ltd as trustee for the K Family Trust.

10. A succession plan was put in place in 2012 whereby the mother and her siblings took over the day to day operation of R Company and an entity known as S Pty Ltd became the trustee for R Company Unit Trust which took over the R Company business pursuant to a license agreement.

11. The business of R Company is conducted by the mother, her siblings and sister-in-law.

12. The direct instruction to the single expert was to value the mother’s interest in R Company by reference to the following entities:-

    (1)S Pty Ltd;

    (2)The R Company Unit Trust;

    (3)The Ms Vasil Family Trust;

    (4)J Pty Ltd; and

    (5)The J Trust.

13. Various documents have been provided to the single expert but it was conceded (at the time) that the single expert would need the financial statements for the year ending 30 June 2018 which had not yet been completed.

14. The single expert was also instructed to value the father’s interest in the business operated by T Pty Ltd.

15. The mother concedes that the single expert is not able to complete his valuation without receiving financial statements for the various entities for financial years ending 30 June 2018 and 2019.

16. The application of the father is supported by his Affidavit filed 17 June 2019.

17. The tenor of the father’s affidavit is that the mother has refused to provide full and frank disclosure that would enable a proper assessment of the value of the mother’s interest in R Company.

18. The mother does not accept the father’s assertion and considers that she has provided substantial discovery.

19. To the extent that the father’s application could be seen as attempting to assist the single expert in completing his valuation report, there appears to be agreement between the parties.

20. The mother apprehends that the father seeks to undertake an effective audit on the mother’s financial affairs that is not relevant to the inquiry necessary to ascertain the value of the mother’s interest in the business.

21. At this stage I am not able to make a determination as to the precise category of documents that are likely to be relevant to the orders sought by each of the parties.

22. The test for discovery and production of documents is not that a document exists and therefore should be disclosed but rather, that a document or category of documents has relevance to the case being presented by either of the parties.

23. The joint letter of instruction to the single expert highlights that a significant focus should be on placing a value of the mother’s interest in R Company.

24. Whatever may be the view of the father or the mother as to the extent of documents that should be required, at first instance the Court should be guided by the documents necessary to enable the single expert to discharge his obligation to the Court as a single expert.

25. The mother’s counsel presented a memorandum at the commencement of the proceedings which contained a list of the documents that the mother concedes needs to be prepared and finalised and presented to the single expert.

26. I am satisfied that the documents relating to each of the particular entities accord with the entities identified in the joint letter of instruction.

27. I propose to make orders that the parties produce the 2018 and 2019 end of financial year statements for each of the relevant entities within 60 days.

Interim parenting issues

1. The mother seeks to vary the interim parenting orders such that they are either suspended with the ongoing arrangements to be subject to the wishes of the child as may be conveyed directly to the father, or in the alternative, that the time the child spends with the father is reduced in scope such that it more closely reflects the current informal arrangements.

2. The father does not accept that the current parenting arrangements reflect any agreement between the parties but rather, he contends that he has been forced to accept a reduction in his time by the mother’s continued refusal to comply with the orders of 18 May 2017.

3. The parties agreed to orders that the child spend time with the father each Saturday from 9.00 am to 6.00 pm and from the conclusion of school to 7.30 pm each alternate Monday.

4. The first period of time spent commenced on 20 May 2017.

5. As reflected by the contravention applications filed by the father, he alleged that there had been a breach of the orders from as early as 27 May 2017.

6. I am left in little doubt that the history that surrounds the father’s contravention applications of 2017 and 2018 whilst not necessarily amounting to a breach of the order, nonetheless reflects that the parties have not been able to put in place a harmonious arrangement for the child to spend time with the father.

7. The mother has sought that the father’s time on Saturday should be reduced to 11.00 am until 5.00 pm and in any event she considers that the frequency should be each alternate weekend rather than each week.

8. The child has received therapeutic assistance from Dr C and the parties at one time agreed that Dr D, psychologist, should provide family therapy.

9. Judge Cole in his judgment delivered 20 December 2017 rejected the mother’s application for a variation of the time the child would spend with the father which would have reduced the father’s time to 9.00 am until 2.00 pm.

10. His Honour was concerned that the child was being required to undergo therapy in circumstances where the problem was more likely to be an inability on the part of the parents to agree on the appropriate arrangements to be put in place.

11. In particular, his Honour was not enamoured with the idea that the extent of time the child should spend with her father should rest entirely upon her. At the time of his Honour’s consideration the child was 11 years of age.

12. Two years has now elapsed and it is a reasonable observation that the parties have not reconciled their differences and if anything there is a widening of the position adopted by each of them.

13. The mother seeks that the child’s relationship with the father be subject to her wishes, whereas he seeks that the child spend equal time with each of them.

Interim parenting

1. In Marvel & Marvel [2010] FamCAFC 101 the Full Court considered the approach to be adopted when presented with contested evidence on an interim hearing:-

   120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (section 61DB).

2. I consider that a cautious approach should always be adopted in circumstances where the evidence has not been tested. That does not mean that the Court is not able to make an appropriate interim order and whilst a Court should generally be risk-averse and cautious, that does not mean that I am obliged to only make orders consistent with the current practice of the parties.

3. The competing applications of the parties must be considered pursuant to s 60B of the Family Law Act 1975 (Cth) (“the Act”) which outlines the objects and principles underlying Part VII of the Act.

4. Section 60CA of the Act requires that in deciding whether to make a particular parenting order the best interests of the child is the paramount consideration. In order to determine what is in the child’s best interests, the Court must consider the provisions of s 60CC as to the primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).

5. It is obvious that I have the advantage of the evidence between the parties having been tested.

Report of Ms G

1. Ms G undertook a child inclusive conference following orders made on 18 May 2017. Her report forms Exhibit “2” in the proceedings.

2. The interviews with the parties and the child occurred in August 2017.

3. The parties each alleged that they had been the subject of family violence.

4. The mother’s position was that the father had only a limited relationship with the child, whereas the father believed he was more involved with the child than he was with her older siblings.

5. In interview, the child stated that she had only a limited emotional connection with the father with her primary emotional attachment being with her mother. Regrettably, she had witnessed conflict between the parties which at times caused upset and fear. She was comfortable in confiding in her mother but not her father.

6. Fortunately she has navigated the ongoing conflict between her parents and she is able to spend time with her father but considers that it feels normal to be with her mother.

7. Of relevance to the current application is the child’s stated position in 2017 that the frequency of time spent with her father upset her. The following extract summarises the child’s attitude:-

   [The child] posited that the Court ordered time upset her due to its frequency, due to lack of recent time spent with her father and past limited emotional connection with him; she stated she felt significant distress as a consequence, but had been assisted in managing this by her psychologist (for example, using a journal). [The child] also appeared of the view that her father’s decisions dominated their time together and that he did not consider her point of view. She suggested she would prefer having a say in how they spent time together, and she conveyed her thoughts that spending time together at her father’s house may assist with this, rather than going out all the time. [The child] noted her preference was to instigate time with her father (rather than having a schedule of time), and she considered she may instigate contact “two to three times per month”.

1. Ms G’s assessment of the child was that she had attained “an age and state of development where it is difficult to compel her to act contrary to her wishes”.

2. The extent to which the child would spend time with the father was related to the ability of the father to improve his relationship with the child.

3. The mother was not without criticism. The child was aware that the mother’s extended family dislike the father. Ms G considered it important that the mother and her family understand that their mistrust and dislike of the father is overt and impacts adversely on the child.

Family report Ms F

1. In 2018 the parties agreed that there should be an update family assessment undertaken in recognition that the child was now nearly 13 years of age. Ms F provided her report dated 27 March 2019.

2. The child presented to Ms F as mature for her age and expressing strongly held views about her family, her relationship with her parents and siblings and the future parenting arrangements.

3. Similar to the child’s presentation to Ms G, the child described as having a close emotional attachment to the mother. The child’s position was that her mother was her confidant. She was fortunate in having close and happy relationship with her extended maternal family and it appears that much of her time is engaged with her grandparents, her maternal aunt and various cousins of similar age.

4. She described her father as being “alright”, but was not comfortable spending extended time with him and described him as “someone who could have been a better parent if he was more involved in her life from the beginning not just now”. There are aspects of her time with her father that she railed against and expressed surprise that he sought that she spend equal time with him.

5. The child was aware of the father’s position, namely, that her reticence to spend time with him was as a result of having been “brainwashed” by the mother and the maternal family.

6. She rejected his contention that she had been coached her entire life to maintain a distance from him and was not able to understand his seeming inability to accept that she held a strong view as to her future care arrangements, had expressed a dislike of her father’s conduct when with him and her increasing desire to spend time with her friends and see her father when it was convenient for both of them to do so.

7. She was also aware of her father’s dislike of the mother and the maternal family.

8. The child enjoys her curricular and extra-curricular activities, in particular sports. The father has a keen interest in sports and a routine has developed whereby he would attend her school and observe her play. The father’s attendance was not objectionable in and of itself, but his persistence in taking videos of the child caused her discomfort in circumstances where no other parent did so.

9. The child set out the current arrangements with the father complaining that the significant extension in time was a surprise. She considered it unfair.

10. At the time, she wanted to see her father from 11.00 am on Saturday rather than 9.00 am. She did not want to remain overnight and that her time with him should be on alternate Saturdays.

11. The child was clearly cognisant of the significant changes in her life caused by the separation of her parents and their ongoing conflict. She and her mother had moved to the Suburb B residence which was a smaller and older home where she was required to share a bedroom with her mother. She was embarrassed about the property.

12. She wanted her mother to purchase a more comfortable home and she was well aware of the nature of the arguments and disagreements between her parents.

13. Despite the father’s misgivings, the child did not present to Ms F as being alienated from her father.

14. She currently spends alternate Saturdays and intervening Mondays with the father. This has resulted in the child having an improved relationship with the father compared to a high level of resistance exhibited by the child at the time of the commencement of the current orders.

15. The observed interaction between the child and her father revealed a pleasant and seemingly happy interaction. The child was observed to be respectful towards her father, with their time highlighted by chatting and laughing.

16. Ms F recorded the child’s concerns that the father was not significantly involved with her in earlier times and was concerned at her father’s unwillingness to place weight on her views.

17. The child does not want to upset her father but it is important to her that her views in respect of the future parenting arrangements be understood and brought to account.

18. There has been much emphasis on the weight that should be attached to the child’s wishes.

19. The issue was considered by Judge Cole in 2017 at which time his Honour decided that it was premature and potentially harmful to the child to allow the future parenting arrangements to be determined by the child’s wishes.

20. The issue was again considered by Ms G in her report of 23 August 2017.

21. As noted, the child had considerable support from Dr D and Dr C. Ms G noted that at the time, the child had reached an age and state of development where it may be difficult to compel her to act other than in accordance with her wishes.

22. The extent to which weight should be placed on the child’s wishes was the subject of further exploration by Ms F. Her recommendations incorporated the child’s proposal that she see her father on alternate Saturdays from 11.00 am to 5.00 pm or 6.00 pm, on intervening Mondays from after school until 7.30 pm and any additional time to be subject to her wishes.

23. At the commencement of the submissions on behalf of the mother, her counsel advised that there was no opposition to the father attending at the child’s after-school sports practice and games.

24. The mother remains content for the child to deal directly with the father. The mother will respect any request by the child to spend extra time with her father. There is no suggestion in the evidence that the mother has not allowed the child to spend time with the father contrary to her wishes.

25. It is likely that the child would desire orders that do not compel her to spend time with her father other than as she may request by direct arrangement with him. The father continues to believe that the child’s wishes are predominantly influenced by her mother and the maternal family. There is no evidence to support that belief. There is strong evidence that the child understands the inter-parental conflict, is distressed by it but her actions are independent. She seeks a relationship with her father and if generally left to her own devices will willingly engage with him.

26. The wishes of children are important. Proper and realistic weight should be attached to any wishes expressed by children. In H v W (1995) FLC 92-598 the Full Court considered the treatment to be afforded to the wishes of a child. Fogarty and G JJ said at 81,947 – 81,948:-

    As a matter of practical day-to-day experience, the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background, the Court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issues before the court and their longer term implications. Ultimately, the overall welfare of the child is the determinant.

Conclusion

1. I propose to make orders that reflect the wishes of the child as to the general level of her engagement with the father which includes a base order that the child will spend alternate Saturdays between 11.00 am and 6.00 pm and the intervening Monday from after school until 7.30 pm with the father. All other time will be determined by the child making a separate arrangement with her father.

2. I consider that the child has now developed a level of maturity and insight which will not place her at emotional risk in her direct discussions with her father. To do otherwise may well result in the child resisting any fixed arrangement that comprises longer periods and of greater frequency.

3. I have given careful consideration to the competing applications of the parties. I do not consider that it is in the child’s interests at this stage to remove any obligation that the child spends time with her father and leave the ongoing parenting arrangements entirely at the child’s discretion. That time may well be fast approaching but it has not as yet arrived. Equally, the weight I give to the child’s expressed wishes speaks strongly against the orders that the father seeks namely, for equal time and that he be able to collect the child from school at the end of each day, return the child to her mother’s home after an evening meal and to include an overnight period in each week.

4. As demonstrated by the mother’s concession regarding the father’s attendance at the child’s sports training, there is no impediment to the child discussing with her father what extra and other time and activities she would be prepared to engage in.

5. I make orders as appear at the commencement of these reasons.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 24 October 2019.

Associate:

Date: 24 October 2019