VASIL & VASIL

[2020] FamCA 357

FAMILY COURT OF AUSTRALIA

VASIL & VASIL [2020] FamCA 357

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of the child – Where the father seeks to spend additional time with the child – Where the mother considers it is up to the child and will respect any request made by the child to spend time with the father – Where the child is 14 years of age – Where a Family Assessment Report has been ordered but not yet completed – Court should adopt cautious approach until child’s wishes are known.

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Non-compliance – Where the father alleges non-compliance with the current time spending orders – Where the father seeks makeup time – Where the mother considers there have been very few occasions of non-compliance – Where the child is 14 years of age – Where a better understanding of the child’s wishes needs to be established – Where it needs to be established whether makeup time is in the best interests of the child - Court unable to make determination on makeup time on an interim basis.

FAMILY LAW – PRACTICE AND PROCEDURE – Discovery – Where the father seeks compliance with previous orders for the production of documents – Where the mother has provided documents to the father and further documents will be provided to comply with the previous order – No further order made.

FAMILY LAW – PRACTICE AND PROCEDURE – Discovery – Where the father seeks the production of additional documents including a Trust Deed for any trust which the mother has an interest in – Where the control the mother may have in the trust is a relevant consideration in terms of any interest she may have in the trust – Orders.

Family Law Act 1975 (Cth) ss 60CC, 62G(2), 79

Kennon v Spry (2008) 238 CLR 366

APPLICANT: Mr Vasil

RESPONDENT: Ms Vasil

FILE NUMBER: ADC 1397 of 2017

DATE DELIVERED: 14 May 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 23 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: Jordan & Fowler Family Lawyers

Orders

1. That paragraphs 2, 3 and 4 of the Application in a Case filed 17 February 2020 are dismissed.

2. That on or before twenty eight (28) days from the date of this order the mother use her best endeavours to obtain and produce to the father a copy of any Trust Deed (including any Trust Deed relevant to the mother’s entitlement to superannuation) for any entity in which she is an appointor, a trustee, an office holder of any trustee company or a (beneficiary) or trust object.

3. That the balance of interim orders sought in the Amended Response filed 16 March 2020 be dismissed.

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

Mr Vasil

Applicant

And

Ms Vasil

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. Ms Vasil (“the mother”) and Mr Vasil (“the father”) are the parents of X born in 2006 (“the child”).  The child is 14 years of age.

2. The parties are not agreed as to the future parenting arrangements for the child. 

3. The parties are also in conflict as to matters of property settlement and division.

4. On 16 October 2019 consideration was given to interim property and parenting issues.

5. The father contends that any indication by the child that she does not wish to be compelled by order to spend time with him but would rather make arrangements with him by direct communication is influenced by the mother and her maternal family.

6. For her part, the mother contends that she does not actively dissuade the child from spending time with the father but rather is content for there to be direct contact between them.  The mother’s stated position is that she will respect any request made by the child to spend time with her father.

7. On 24 October 2019 orders were made until further order that provided for the child to spend ongoing time with the father for some hours each week and further and other times as may be agreed, subject to the child’s wishes.

8. The interim property issues focus upon the value of the mother’s interests in a family business known as R Company.  By joint letter of instruction dated 22 November 2018, a single expert forensic accountant has been instructed to undertake the valuation.  The single expert has not been able to complete his report notwithstanding orders that have been made for the provision of documents, in particular as ordered on 21 August 2018 and 24 October 2019.

9. It is conceded that the ability of the single expert to complete the valuation report is dependent upon compliance by the mother with orders requiring the production of relevant documents.

10. On 23 April 2020 all applications for final orders were listed for hearing as a primary trial to commence on 7 September 2020.  Submissions were also heard in respect of the interim orders as contained in the father’s Amended Response to an Initiating Application filed 16 March 2020 (“Amended Response”) and paragraphs 2, 3 and 4 of the Application in a Case filed 17 February 2020 (“Application in a Case”).

PARENTING ORDERS SOUGHT

1. By way of his Application in a Case, the father seeks the following orders:-

   (1)That in addition to the present time provided under order, the father be allowed to spend additional time with the child X being each Tuesday from 3.30 pm until commencement of school on Wednesday;

   (2)That the mother be responsible for all drop offs for the child to the father where collection is not from the school, and that the father be responsible for all returns to the mother;

   (3)That the father receive and be compensated for makeup time for times nominated by the father (37 hours).

2. In my judgment delivered on 24 October 2019,[1] I explored the extent and weight that should be attached to any wishes expressed by the child.  In the circumstances of this case and relying upon the matters raised in the Family Assessment Report of Ms F and the Child Inclusive Conference Report of Ms G, I considered that the child’s wishes were important.

   [1]Vasil & Vasil (No 2) [2019] FamCA 773

3. Ms F rejected the father’s contention that the child had been coached her entire life to maintain a distance from the father.  She was satisfied that the child understood the father’s position but denied that she had been “brainwashed” by the mother or the maternal family.

4. The weight that Ms G and Ms F considered should be given to the child’s views was supported and enhanced by the observations of each of the single experts that the child was not alienated from the father, was prepared to see him and maintain a meaningful relationship but was concerned that the father did not give sufficient recognition to her consideration of the nature and the extent of her relationship with her parents.

5. There is a contention between the parties as to the current extent of time that the child has spent with the father.  The mother’s position is that there have been very few occasions when there has not been compliance with the current orders, whereas the father strongly disagrees.

6. I have carefully considered the affidavit material.  I am not able to determine on an interim basis that one version should be preferred over the other.

7. I am obliged to focus on the child’s best interests and it was with that in mind that I considered the Court, and possibly the parties, may be assisted by a report pursuant s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”) being prepared in anticipation of the trial.

8. The order for the report was made on 18 March 2020, however, the COVID-19 virus restrictions has adversely impacted upon the ability of the Director of Child Dispute Services to action the order earlier than was considered necessary namely, not later than 21 August 2020.

9. It is a reasonable expectation that having regard to the factors pursuant to s 60CC of the Act there will be little difficulty in finding that it is in the interests of the child that she maintain a meaningful relationship with her father. The issue between the parties is as to the nature and extent of the orders that will fulfil that requirement. It must be a substantial relationship, but it is not required to be an optimal relationship.

10. It is likely that significant weight will be given to the additional factors, in particular those that require the Court to consider the wishes of the child.

11. In this case, there is a background that supports that the Court should adopt a cautious approach until more is understood as to how the child would wish to interact with each of her parents.

12. Even were it to be uncontroversial that the father’s time with the child has been deficient to a total of 37 hours, it is not suggested by him as to how makeup time should be taken.  It may be that the father would ideally have liked block time occurring during the school holidays.  As is well understood, the plans of parents and the expectations of children have been disrupted to a greater and lesser extent by the COVID-19 virus restrictions.

13. Given her age, where the extent of the time that the child is to spend with the father may be significantly influenced by a better understanding of her current wishes, I do not consider that the Court should embark upon makeup time until and unless it is established that it is in the interests of the child to do so.

14. I accept that the father demonstrates a genuine level of distress at his perception that he is being denied the ability to experience the relationship with his daughter that he considers is in her interests.

15. Equally, the mother is litigation weary and asserts that she will do nothing to either dissuade or stand in the way of the child seeing the father on any occasion and under any condition that the child may reasonably request.

16. The mother seeks to underpin her position by reference to the father having provided a mobile phone with credit to the child.  The father agrees that there is currently no mpediment to him making separate and independent contact with the child other than a reluctance and reticence that he has to not exacerbate what he understands is already a high level of animosity between the parties.

17. I am not able to resolve the interim evidentiary dispute as to the father’s allegations of non-compliance with the orders and the mother’s denial that if it has happened it is by her instigation and by her design.

18. The father seeks that the child spend additional time with him each Tuesday from 3.30 pm until the commencement of school on Wednesday.

19. The interim orders of 24 October 2019 provide time for the child to spend with the father each alternate Saturday and each intervening Monday together with such other times as the parties may agree, subject to the child’s wishes.  The father is able to attend and observe the child’s soccer training, practice and games.  In addition, the orders provide that the child is to spend time with the father on special occasions and subject to the child’s wishes and as the parties may agree, each of the parties are at liberty to travel with the child either nationally or internationally.

20. I am not satisfied that if an order is made in terms of the father’s application, that the child would necessarily comply with the order.  Moreover, where the Court has determined that the wishes of the child ought properly to be given weight and a process has been put in place that would enable better information to be provided, I consider it premature to consider a substantial increase to the child spending time with the father.

21. A further concern is that a stage may well have been reached where even were it to be the case that the mother is highly supportive of the child’s relationship with the father, or at the very least does not seek to place any barriers in the way of a relationship, the child may bring her own decision and judgment to bear.  The litigation in this matter is extensive and the reports of Ms F and Ms G are clear in that the child has been adversely affected by the inability of the parties to reach an agreed position.  It may well be that the parties are not able to properly shield the child from unnecessary conflict.

22. Similarly, I do not propose to alter the current existing arrangements in terms of drop off and collection.  I can understand the strategy behind the order sought by the father.  In circumstances where there is a dispute as to why the child from time to time does not see the father, he considers that if the mother was required to bring the child to him then there would be no alternative but for the child to remain.

23. It is a position about which there is some sympathy, even were it to be put on the basis that the parties should share in the travel arrangements.

24. Again, the issue is not resolved if any reluctance by the child to see the father on a particular occasion or to resist any extended time is a matter of mature reflection by the child.  Whether the problem manifests itself by the child not wanting to leave the house to spend time with the father, refusing to get into the mother’s motor vehicle or refusing to exit her vehicle upon arrival at the father’s home, it is likely to arise.

25. It is also to be noted that the current order provides for the child to spend time with the father by a pickup from school on each intervening Monday from the conclusion of school until 7.30 pm.

PROPERTY ISSUES

1. The father seeks to be relieved from any order or application of any rule that would require him to particularise the final orders he seeks for settlement of property. Whilst it is incumbent upon all parties to do the best that can be reasonably done to articulate the orders that they seek and thereby better define the parameters of the dispute, I accept that the value of the mother’s interest in R Company and other entities is central to the father’s case. It is reasonable that once the valuation report of the single expert is to hand, each party would then be in a better position to assess the pool of property available for division and to consider and take advice on the reasonable range of outcomes consequent upon the application of s 79 of the Act.

2. It is part of the Court’s usual practice that upon the matter being listed for trial, standard trial direction orders require the parties to file and serve any amended application or response as to final orders sought.

3. I propose to make no further order in respect of the entities sought in paragraph 2 of the interim orders in the father’s Amended Response.  There have been orders made in respect of those entities and I note the submissions of the mother’s solicitor that a raft of documents have been provided and that further documents which will satisfy the order of 24 October 2019 have or will soon be provided.

4. Paragraph 3(a) of the father’s interim orders sought in his Amended Response seeks that the mother provide to the father a copy of the Trust Deed including any documents showing variation or amendment for any trust entity in which she has an interest.

5. The jurisprudence as to the extent that a beneficial interest pursuant to a trust may well be considered as property is complex and was given detailed consideration by the High Court in Kennon v Spry (2008) 238 CLR 366, in particular at [64] – [65].

6. A beneficiary or object of a trust has a right to seek information including documents that are directed to the due and proper administration of the trust by the trustee.  At this stage, I do not know the level at which the mother is involved in the various trusts in which she has a beneficial interest, but it is an important consideration in terms of the value of any interest that she may have in a trust entity to better understand who holds the power of appointment, who or what entity is the trustee and its office holders and the various classes of beneficiaries.

7. The issue of whether the mother either has direct control or may be influential in the control of a trust is a relevant consideration.  A copy of any Trust Deed in respect of any trust entity in which the mother has an interest or involvement should be provided.

8. The father also seeks a copy of the constitution of any company in which the mother has an interest.  At this stage I consider that this further request is unnecessary.  It may well be that the single expert requires some assistance but at this stage the father has not established a forensic purpose and I do not propose to make an order that the mother provide a copy of any company constitution in which she may have an involvement.  Paragraphs 4-8 of the interim orders sought in the Amended Response seeks a raft of documents, being the financial statements, bank statements and tax returns for the various entities that are already the subject of order in relation to the financial statements for the 2018 and 2019 financial years.

9. There is no forensic advantage to the tax returns being provided in circumstances where the financial statements are to be or have been produced.

10. At this stage, the bank statements for each of the entities as sought by the father would be an unnecessary exercise without any forensic focus.  After the single expert has delivered his report, issues may well be identified that would better target the need to consider bank statements of one or more of the relevant entities, but that rubicon has not yet been crossed.

11. I do not propose to make any order in respect of paragraphs 5 to 8 of the interim orders sought in the Amended Response.  I note that there are no further financial statements available in respect of the Ms Vasil Family Trust and accordingly no order will be made with respect to paragraph 4 of the interim orders sought.

12. The father seeks that the wife disclose all documents and correspondence that may have been forwarded by or on behalf of her sister Ms V to the single expert in respect of her own property settlement dispute with her husband Ms W.

13. The utility of the work undertaken by the single expert on the joint instruction of the mother’s sister and former brother-in-law has been a source of ongoing contention.

14. It is likely that much of the background work would be similar for both the mother and her sister.  To the extent that the parties may have been able to save some of the anticipated disbursement cost of the single expert preparing his valuation report, I consider that the inability of the parties to reach even partial agreement on any aspect of the litigation speaks against all reasonable attempts to avoid unnecessary costs.

15. The single expert is jointly instructed by the parties at their joint and equal cost to undertake a separate valuation report of the value of the mother’s interest in R Company and other entities.

16. The father seeks an order that the mother be restrained from selling, transferring, gifting or in any way encumbering or disposing of any asset in her name or in which she has a share or interest regardless of where located.  The father seeks a wide ranging injunction in circumstances where the parameters of the dispute have not been determined, nor has there been any evidence presented that the mother will do any act that will reduce the net property asset pool for the deliberate purpose of interfering with the Court’s ability to make a proper determination of property issues between the parties.

17. The father does not give an undertaking as to damages, nor does he concede that any order of injunction should be conditional upon a consideration that it should not apply in the ordinary course of business trading.

1. I do not propose to order that either party be the subject of any interim injunction until the Court has had the advantage of the single expert report.

2. The father seeks that he be given 120 days to review the discovered documents before providing to the Court an indication of proposed property settlement.  I do not necessarily understand the import of the husband’s application but I have already formed the view that the parties are unlikely to be able to better formulate their final orders sought until the single expert report is available.  There is likely to be a significant delay in the report being available, a first day hearing being set and then the matter being fixed for trial.

3. Paragraph 14 of the interim orders sought in the father’s Amended Response, seeks the appointment of a valuer to value the former matrimonial home at Z Street, Suburb A.  The parties are not the registered proprietors of the property.  The mother’s parents or an entity controlled by them hold the legal and beneficial interest.  The father’s proposition is that over the period of occupation the parties expended significant money on renovation and improvements to the property.  It seems that the father considers that in some way monies spent by the parties on improving the property should be considered as property and brought to account in the list of property available for consideration.

4. The father was challenged as to whether he intended to assert that money spent by the parties should be considered as the basis for an equitable interest in favour of the parties or either of them.  The father specifically rejected any intention to join the registered proprietor of the property to the proceedings or to assert any equitable interest.  Accordingly, I do not propose to make any order in terms of paragraphs 14 and 15 of the interim orders sought in the Amended Response.

5. Paragraphs 16 and 17 of the interim orders in the Amended Response, refer to orders made by Judge Cole on 27 April 2018 in respect of financial statements for the entities identified in sub-paragraphs (a) to (h) inclusive.

6. There is no application by the mother to extend time to enable compliance (if the orders of Judge Cole have not been complied with) to a future date.  I do not intend to make an order that does no more than reinforce an extant order.

7. The parties are well aware of their options in respect of an order to which there has not been compliance.  Again, the parties may well benefit by assisting the single expert to complete his valuation report in a timely fashion and thereby identify issues that have forensic value as distinct from a barren exercise.

8. The rules provide an ongoing obligation on parties to reasonably update their financial circumstances as they may change, particularly in respect of any relevant Court event.

9. The parties can be confident that as part of future trial directions, each party will be required to update their financial circumstances as part of their trial preparation.

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

I certify that the preceding sixty two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 14 May 2020.

Associate: 

Date:  14 May 2020