FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vedastus & Alvar [2023] FedCFamC1F 1073
File number: SYC 4704 of 2020 Judgment of: BRASCH J Date of judgment: 13 December 2023 Catchwords: FAMILY LAW – PARENTING – Where orders made by consent for children to live with the mother and she have sole parental responsibility – Where father guilty of assaulting the mother – Where the children did not spend time with the father for three years post-separation – Where some supervised time thereafter – Where supervised time ordered for a further six months for both children – Where graduating unsupervised time for younger child thereafter – Where older child to spend time according to her wishes following the supervised time.
FAMILY LAW – PROPERTY – Where contributions found to be equal – Five per cent adjustment made in the wife’s favour on account of care and control of the children and income disparity.
Legislation: Child Support (Assessment) Act 1989 (Cth)
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, VIII, VIIIAB ss 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 64B, 65AA, 65D, 75(2), 79, 79(1), 79(2), 79(4), 114
Cases cited: Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124
Bevan and Bevan (1995) FLC 92-600; [1993] FamCA 95
Black and Kellner (1992) FLC 92-287; [1992] FamCA 2
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
Cotton & Cotton (1983) FLC 91-330; [1983] FamCA 18
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Dovgan & Dovgan [2021] FamCA 306
Fielding and Nichol [2014] FCWA 77
G and G (2000) FLC 93-043; [2000] FamCA 1075
G & C [2006] FamCA 994
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Isles& Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Kowalski and Kowalski (1993) FLC 92-342; [1992] FamCA 54
Loddington & Derringford (No 2) [2008] FamCA 925
Maine & Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270
Martell & Martell [2023] FedCFamC1A 71
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Perrin & Perrin(No 2) [2018] FamCAFC 122
R & C [1993] FamCA 62
S & S [2005] FamCA 1304
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
W v W (1997) FLC 92-723; [1997] FamCA 3
Division: Division 1 First Instance Number of paragraphs: 329 Date of last submissions: 24 November 2023 Date of hearing: 12–13 September 2022 and 3–6 October…
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CaseChat Overview and Summary
The court concluded that while the father did not pose an unacceptable risk to the children, the best interests of the children were served by a cautious approach to contact. The court ordered that the children spend six months under supervision with the father, with the older child then having the autonomy to decide her contact post this period. The court also considered the mother's argument that the children needed exposure to their father to form their own opinions about him, balancing this against the father's history of violence. In terms of property, the court found that the contributions were equal and made an adjustment in favour of the mother to account for her care of the children and income disparity.
The final orders included sole parental responsibility for the mother, with specific provisions for the father's involvement in major decisions regarding the children. The court also detailed a phased approach to the children's contact with the father, beginning with supervised visits and transitioning to unsupervised time based on the children's wishes and maturity. Property-wise, the court ordered a transfer of properties between the parties and stipulated the process for selling properties if either party failed to transfer their respective assets. Additionally, the court addressed the division of proceeds from the sale of properties and the distribution of assets from a family trust.
Orders
Orders of the court
SYC 4704 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR VEDASTUS
Applicant
AND:
MS ALVAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
13 DECEMBER 2023
BY CONSENT IT WAS ORDERED ON 3 OCTOBER 2023:
1. That the mother shall have sole parental responsibility for the children X born 2009 and Y born 2012 (hereinafter “the children”) provided that in the exercise of such parental responsibility the mother shall:
(a) notify the father of any proposed decision relating to the long-term care and welfare of the child or children and:
(i) ensure that such notification is given to the father in writing via email as soon as is reasonably practicable and in any event no less than twenty‑eight (28) days before a final decision is made, except in the case of an emergency;
(ii) reasonably consider any views expressed by the father in respect of such proposed decisions;
(iii) communicate to the father in writing her decision in the exercise of parental responsibility within 48 hours of having made any such decision.
2. That the children shall live with the mother.
3. That without admission, neither party is to use the email address of the other party other than to give effect to this Order.
4. The mother’s application to relocate with the children to Country B is withdrawn and dismissed.
5. The parties are to ensure that they provide to the other an email address which is monitored by each of them at least weekly.
THE COURT FURTHER ORDERS THAT:
Supervised time
1. The children spend time with the father for a period of six (6) months from the date of these Orders under the continued supervision of C Contact Service:
(a) On each Saturday (including school holidays) for a period of three (3) hours, at such times nominated by C Contact Service, or such other times and duration as the parties may agree with the supervision service;
(b) If necessary, the parties are to forthwith do all things and sign all documents required by C Contact Service to continue the appointment of C Contact Service as the supervisor; and
(c) The parties must:
(i) Comply with any requests and the rules of C Contact Service;
(ii) Comply with requests and directions from the staff of C Contact Service to arrange the supervised time; and
(iii) The father is to bear the costs of the supervision; and
(d) Unless otherwise agreed by the parties in writing, the father is not to permit any other person to attend the time supervised by C Contact Service.
Unsupervised time
2. Following the six (6) months of supervised time as specified in Order 1 of the disputed orders, and unless otherwise agreed in writing between the parties, X shall spend time with the father consistent with her wishes.
3. Following the period of six (6) months of supervised time as specified in Order 1 of the disputed orders, and unless otherwise agreed in writing between the parties, Y shall spend unsupervised time with the father as follows:
(a) For the first three (3) months immediately after the conclusion of the supervision period, each alternate Saturday for six (6) hours from 9.00 am to 3.00 pm;
(b) For the next three (3) months, each alternate weekend, from 9.00 am Saturday to 9.00 am Sunday;
(c) Thereafter, each alternate week during the school term, from the conclusion of school or 3.00 pm on Friday to the commencement of school or 9.00 am on Monday;
(d) The time in Orders 3(a) and 3(b) shall continue during school holidays as they arise during these periods of time;
(e) Upon Y spending Friday to Monday time with the father, then, during the short school holiday periods being after Terms 1, 2 and 3:
(i) For the second half of such holidays commencing from 9.00 am on the second Saturday and concluding at 9.00 am on the Saturday immediately preceding the first day of the new school term.
(f) For the end of Term 4 holidays in 2024 Y shall spend:
(i) Two (2) non-consecutive weeks (being seven (7) night weeks) with the father;
(ii) The father must advise the mother which two (2) weeks by the start of Term 4; and
(iii) The two (2) non-consecutive weeks must be at least one (1) week apart from each other.
(g) Commencing at the end of Term 4 holidays in 2025:
(i) In even numbered years, from 9.00 am on 24 December until 9.00 am on 9 January; and
(ii) In odd numbered years, from 9.00 am on 8 January until 9.00 am on 22 January.
(h) Upon unsupervised time occurring, on Fathers’ Day from 9.00 am until 6.00 pm, if not already in the father’s care pursuant to these orders; and
(i) If Y is spending time with the father on Mothers’ Day, then Y’s time with the father shall end at 9.00 am on the morning of Mothers’ Day and Y will remain in the mother’s care until the next period of time between Y and the father pursuant to these orders.
4. Unless otherwise agreed between the parties in writing, and where changeover does not occur at school, changeover shall occur at the mother’s residence, and:
(a) The father is not to enter the curtilage of the mother’s residence; and
(b) The mother is at liberty to remain inside her residence.
Communication
5. The father is to provide the mother with 48 hours written notice if he is unable to attend time with the child/ren.
6. Each of the children be at liberty to communicate with the parent with whom they are not spending time by Our Family Wizard and for the purposes of this order within seven (7) days of the date of these Orders:
(a) Each parent must establish a parent account at www.ourfamilywizard.com;
(b) Each parent enrol in the Our Family Wizard program with a two year subscription, with such subscription to include ToneMeter and the children’s messenger function;
(c) Each parent will meet the cost of their respective subscriptions; and
(d) Nothing in this Order prohibits the children communicating with the father by other electronic means.
Restraints
7. Pursuant to s 68B of the Act, each party is restrained from:
(a) Discussing these proceedings with either of the children, or in their presence or hearing;
(b) Showing either of the children any documents produced for the purpose of, or related to, these proceedings;
(c) Questioning either of the children in relation to their views or preferences concerning their living arrangements or the time they spend with each of the parties;
(d) Encouraging either of the children to express particular views or preferences in relation to their living arrangements or the time they spend with each of the parties; and
(e) Using the children as intermediaries in matters of parental dispute, or to convey messages or requests to the other party.
8. Neither party shall denigrate, nor allow any third party to denigrate, either of the children’s parents or members of the children’s family in the presence or hearing of either child or in a manner likely to come to their attention.
9. Each party be restrained by injunction from physically disciplining, hitting or striking either child, or allowing, causing or permitting any third party to do so.
Information Sharing
10. Using Our Family Wizard, each party is to give the other party 14 days’ notice of any proposed change to the residential address of the children, with such notice to include the full residential address of the place where it is intended that the children will live.
11. The parties be permitted to provide a copy of these orders and reasons to any counsellor, psychologist and psychiatrist attended by either party or child.
12. The parties be permitted to provide a copy of these orders and reasons to the children’s school/s.
13. The father is at liberty to request and receive a copy of all school reports, progress reports and photo order forms from the children’s schools, at his cost.
14. The father is at liberty to communicate with each of the children’s medical providers and allied health practitioners in relation to the health and wellbeing of each child and, to facilitate such communication occurring, the mother shall:
(a) Using Our Family Wizard, within 14 days of the date of these orders, and within seven (7) days of the children commencing with a new medical provider or allied health practitioner, the mother is to provide the father with details of each of the children’s current treating General Practitioners, psychologists or allied health practitioners (including but not limited to speech therapist and occupational therapist) with such details to include the practitioner’s, name, practice address and contact telephone number; and
(b) Do all things and sign all documents required by the medical and allied health practitioners to facilitate the father being able to obtain information in respect of the children, or either of them.
Independent Children’s Lawyer
15. The Independent Children’s Lawyer is discharged.
16. Within 28 days of these orders each party is to pay $8,022.50 to Legal Aid NSW on account of the costs of the Independent Children’s Lawyer.
Property
17. On or before the expiration of 90 days from the date of these orders (“the due date”) and simultaneously:
(a) The husband will transfer to the wife the whole of his right, title and interest in D Street, Suburb E NSW (“the Suburb E property”);
(b) The wife will discharge at her sole cost the mortgage to F Bank secured over the Suburb E property, or otherwise re-finance it to remove the husband’s name from any mortgage secured over the Suburb E property;
(c) The wife will transfer to the husband the whole of her right, title and interest in:
(i) G Street, Suburb H NSW (“the Suburb H property”);
(ii) J Street, Suburb K NSW (“the Suburb K property”);
(iii) L Street, Suburb M NSW (“the Suburb M property”);
(iv) N Street, Suburb P NSW (“the Suburb P property”)
(“the husband’s properties”); and
(d) The husband will discharge at his sole cost the secured mortgages over the husband’s properties, or otherwise re-finance them to remove the wife’s name from any mortgage secured over any of those properties.
The wife’s Suburb E property
18. In the event the wife cannot comply with Order 17(b) (“the wife’s non-compliance”), the parties will, within 14 days of the wife’s non-compliance, do all acts and things and sign all documents necessary to execute an Agency Agreement with Q Real Estate (“the agent”), to sell the Suburb E property by public auction (“the auction”).
19. Simultaneously with Order 18 above, the parties do all acts and things and sign all documents necessary to instruct a solicitor or conveyancer to act on the sale as agreed between them, or failing agreement:
(a) Within seven (7) days, the husband nominate three (3) local solicitors or conveyancers to act on the sale;
(b) Within seven (7) days thereafter the wife select one (1) of the solicitors or conveyancers nominated to act on the sale; and
(c) If the wife or husband do not comply with their obligations under this Order, then the other party will select the solicitor or conveyancer.
20. The parties are to cause the auction of the Suburb E property:
(a) Within 90 days of the wife’s non-compliance;
(b) Using a reserve price as agreed between the parties not less than 14 days prior to the auction; and
(c) In the event the parties cannot agree on the reserve price, the parties will adopt the advice of the agent as to the reserve price.
21. In the event the Suburb E property is to be auctioned, the wife is to keep the property in a reasonably neat and clean state for inspections and auction and cooperate with the agent in relation to open houses and inspections for the purposes of the sale.
22. In the event the reserve price for any Suburb E property is not reached at the auction, then:
(a) The parties, by this Order, will instruct the agent to negotiate with the highest bidder or other interested party subsequent to the auction;
(b) The parties will sell the Suburb E property for the highest price negotiated by the agent through this process unless otherwise agreed in writing; and
(c) In the event a contract for the sale of the property is not exchanged within 14 days of the auction, then the parties do all acts and things and sign all documents necessary to instruct the agent to conduct further auctions at eight (8) week intervals until the property is sold on the same terms and conditions provided for herein, save and except that the reserve price decrease by five per cent, or as otherwise agreed by the parties in writing, at each successive auction until the property is sold.
23. The proceeds of sale of the Suburb E property shall be paid in the following manner and priority:
(a) The amount required to discharge the mortgage to F Bank;
(b) Payment of the sales agent’s commission and expenses;
(c) Payment of the legal cost and outlays relating to the sale; and
(d) The balance be paid according to the calculation clauses at Orders 38 and 39.
The husband’s properties
24. In the event that the husband cannot comply with Order 17(d) herein (“the husband’s non-compliance”) the parties will, within 14 days of the husband’s non-compliance, do all acts and things and sign all documents necessary to execute an Agency Agreement with Q Real Estate (“the agent”), to sell by public auction (“the auction”) whichever of the husband’s properties is/are required to be sold to discharge the mortgage/s or re‑finance, and the husband will elect which property/s are to be sold.
25. Simultaneously with Order 24 above, the parties do all acts and things and sign all documents necessary to instruct a solicitor or conveyancer to act on the sale as agreed between them, or failing agreement:
(a) Within seven (7) days, the husband nominate three (3) local solicitors or conveyancers to act on the sale;
(b) Within seven (7) days thereafter the wife select one (1) of the solicitors or conveyancers nominated to act on the sale; and
(c) If the wife or husband do not comply with their obligations under this paragraph, then the other party select the solicitor or conveyancer.
26. The parties are to cause the auction of the relevant property/s:
(a) Within 90 days of the husband’s non-compliance;
(b) Using a reserve price/s as agreed between the parties not less than 14 days prior to the auction; and
(c) In the event the parties cannot agree on the reserve price/s, the parties will adopt the advice of the agent as to the reserve price/s.
27. In the event any of the husband’s properties are to be sold, the husband is to keep the property/s in a reasonably neat and clean state for inspections and auction and cooperate with the agent in relation to open houses and inspections for the purposes of the sale.
28. In the event the reserve price/s for any property is not reached at the relevant auction/s:
(a) The parties, by this Order, will instruct the agent to negotiate with the highest bidder or other interested party subsequent to the auction/s;
(b) The parties will sell the property/s for the highest price negotiated by the agent through this process unless otherwise agreed in writing; and
(c) In the event contracts for the sale of the property/s are not exchanged within 14 days of the relevant auction/s, then the parties do all acts and things and sign all documents necessary to instruct the agent to conduct further auctions at eight (8) week intervals until the relevant property/s are sold on the same terms and conditions provided for herein, save and except that the reserve price decrease by five per cent at each successive auction until the relevant property/s are sold.
29. The proceeds of sale of the husband’s property/s shall be paid in the following manner and priority:
(a) The amount required to discharge the mortgage over the property;
(b) Payment of the sales agent’s commission and expenses;
(c) Payment of the legal cost and outlays relating to the sale; and
(d) The balance be paid according to the calculation clauses at Orders 38 and 39.
Family Trust
30. Within 28 days of this Order, the husband, as Trustee of the Vedastus Family Trust (“the Trust”), must do all things and sign all documents to:
(a) Receive the Trust’s share of the sale proceeds from the sale of R Street, Suburb S NSW into the Trust; and
(b) Declare and distribute one half of the funds held by the Trust to himself, and the other half to the wife using a bank account nominated by her.
31. Each party is responsible for any tax consequences arising from the distribution of Trust funds set out in the previous order.
32. Within 28 days of the distribution to the wife required by Order 30, the husband will provide to the wife’s solicitors a Deed of Release for the wife to be removed as a beneficiary of the Vedastus Family Trust.
33. No later than 14 days after receiving the Deed of Release, the wife will execute the Deed of Release and provide it to the husband’s solicitors.
Joint bank accounts
34. Within 14 days of this Order, the husband is to provide the wife’s solicitors, all documents necessary to close the parties’ joint bank accounts.
35. No later than 14 days of receiving the documents necessary to close the joint accounts, the wife will execute and return those authorisations.
36. The husband will attend to the closure of the joint bank accounts and shall be entitled to transfer to himself any credit balances.
Cash adjustments and re-calculation
37. In the event no properties are required to be sold, then the wife will pay the husband $78,758 within 28 days of the date of this order.
38. In the event any properties are sold, the parties will use the nett sale proceeds to re‑calculate the pool (“the re-calculation”) and arrive at a 55 per cent adjustment to the wife and 45 per cent to the husband, using the following items and values:
The wife to retain:
(a) The Suburb E property valued at $2,300,000 with a mortgage of $605,333, or the nett proceeds if sold;
(b) The wife’s bank accounts, with the individual balances as set out in the notes to Item 23 in Annexure A to these orders, with a total value of $862,127;
(c) Superannuation Fund 1 with a value of $1,509; and
(d) 50 per cent of the Trust funds required by Order 30.
The husband to retain:
(a) The Suburb H property valued at $840,000 with a mortgage of $585,187, or the nett proceeds if sold;
(b) The Suburb K property valued at $1,020,000 with a mortgage of $601,428, or the nett proceeds if sold;
(c) The Suburb M property valued at $510,000 with a mortgage of $379,890, or the nett proceeds if sold;
(d) The Suburb P property valued at $650,000 with a mortgage of $309,695, or the nett proceeds if sold;
(e) The husband’s bank accounts and the parties’ joint accounts with the individual balances as set out at Items 6 to 10 in Annexure A to these orders, with a total value of $11,258;
(f) The husband’s shares with the individual balances as set out at Items 11 to 20 in Annexure A to these orders, with a total value of $423,578;
(g) Motor Vehicle 1 with a value of $6,000;
(h) Superannuation Fund 2 with a value of $109,569;
(i) Superannuation Fund 3 with a value of $126,639;
(j) 50 per cent of the Trust funds required by Order 30; and
(k) The husband’s liabilities with the individual balances as set out at Items 33 and 34 in Annexure A to these orders, with a total rounded up value of $1,482.
39. On the above re-calculation, if the property retained by the either party has a value greater than the overall adjustment of 55 per cent to the wife and 45 per cent to the husband, then the party who stands possessed of assets greater than their entitlement will make such cash payment to the other to achieve the overall adjustment of 55 per cent to the wife and 45 per cent to the husband.
Section 106A
40. In the event that either party refuses or neglects to execute any Deed, document or instrument necessary to give effect to all or any of these Orders, then a Registrar of the Federal Circuit and Family Court of Australia shall be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such Deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the Deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
That is a different argument to family violence, which I will consider later under capacity to parent. That said, the submission needs to be considered alongside: (a) the consent order which sees the mother consulting with the father on major long-term decisions; (b) the mother’s position at the end of trial that the children have six months of supervised time with the father; and, (c) the mother’s position in subsequent written submissions that Y spend time as agreed between the parents; that is, the mother proposed some kind of communications with the father to agree time or not. These three matters are notwithstanding what was said at her paragraph 17 extracted just above. Section 60(CC)(2A) balancing the primary considerations In applying the considerations set out in s 60CC(2), I must give greater weight to the harm considerations in s 60CC(2)(b). As determined, the father does not pose an unacceptable risk to the children. I also consider the prospects of the children being exposed to family violence as between the parents, or the mother and paternal grandfather, to be minimal. I will however make an order that when changeovers are to occur, the father remain outside of the curtilage of the mother’s residence, and that the mother is at liberty to remain inside the home. I do not make that order because I consider the father to be a risk of doing harm. Instead, I will make the order so the mother sees there is some physical distance between the parties and to quarantine the children from any tensions that may arise if the parents see each other. But, just because I have determined protection from future harm to a low prospect, that does not automatically mean I must fashion orders to provide for a meaningful relationship between either child and the father. Instead, I must look prospectively and consider whether I would be making time orders for the sake of time orders, or whether such a future relationship would be beneficial, healthy and advantageous to each child. I have also been invited to consider the impact on the mother of making orders for time. It was ultimately Dr DD’s evidence that even if I found long standing family violence at the hands of the father against the mother (which I do not, as set out later), the children need to have exposure to the father “so that they can have their own experience of their father, so that they’re not left always looking or thinking about him through their mother’s lens”. The Single Expert added:[DR DD]: ...if they’re left with this sense of their father is merely an assaultative, violent person, unfortunately, that leaves those traits available for them to identify with and – in the sense of, you know children think, you know, “There’s this bit of me – of dad in – there’s this bit of dad in me, there’s this bit of mum in me”. If all the children have as a role model is this violent man who was too – too violent that the judge thought he was too big a risk to them, then the children’s identification goes to a very dark place, and I – I do have concerns about that. So just for them to be able to make their own assessments, particularly, you know, over time, and especially when they gain maturity, they can perhaps see something else about their father, which is something better for them to identify with.(Transcript 12 September 2022, p.17 lines 18-28)