Withers & Russell
[2016] FamCA 793
•20 September 2016
FAMILY COURT OF AUSTRALIA
| WITHERS & RUSSELL AND ANOR | [2016] FamCA 793 |
| FAMILY LAW – CHILDREN – Where the wife seeks that the children be permitted to live with her in the United States – Where the husband seeks that the children reside with him in Australia – Where the wife makes serious allegations of family violence and child abuse – Where the allegations of family violence and child abuse are largely made without substantial foundation – Where the risk posed by the wife to the children’s relationship with the husband is far greater than the risk posed by the husband to the children’s relationship with the wife – Where the husband is to have parental responsibility subject to conditions – Where it is in the best interests of the children to reside in Australia with the husband and spend time with the wife and the maternal grandparents – Where there is a delay in when the children will be permitted to spend time with the wife in the USA. FAMILY LAW – CHILDREN – PASSPORTS – Consideration of the provisions of s 11 of the Australian Passports Act 2005 (Cth) (“APA”) – Whether an order for sole parental responsibility is sufficient to give exclusive responsibility in the hands of the husband to apply for passports or travel related documents for the children – Where it is not – Consideration of power under APA exercised – Consideration of form of orders to be made. FAMILY LAW – PRACTICE AND PROCEDURE – Application to remove the ICL – Where the application is dismissed. FAMILY LAW – PROPERTY – Where the wife makes an application for the matrimonial law of California to apply when making the property settlement order – Where the application is dismissed. FAMILY LAW – PROPERTY – Where the parties’ net assets are almost entirely represented by the value of the husband’s superannuation interest –Where properties held by the wife’s trust are cross collateralised against other property and debt held by the parties – Where the wife made a significant initial contribution – Where the parties’ contributions during the marriage are equal – Where the wife received the net proceeds of the sale of two properties since separation – Where the wife has made greater contributions in the role of parent since separation – Where there should be a 5 per cent adjustment in favour of the wife based on contributions – Where the husband will have primary responsibility for the children – Where there is a 5 per cent adjustment in favour of the husband based on s 79(4)(d)-(g) factors – Where the assets and liabilities of the parties should be divided evenly – Where all properties need to be available to cover or repatriate debt but the parties are given a two month period in which to refinance or retain the properties – Where orders are made by consent dismissing the husband’s application against the 2nd respondent. FAMILY LAW – PRACTICE AND PROCEDURE – Disqualification application – Where the application is dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Where the 2nd respondent makes an application to reopen the parenting hearing and adduce further evidence – Whether it is necessary in the interests of justice and best interests of the children to reopen the case – Where the application made by the 2nd respondent is replicated in the alternate application made by the wife in the substantive parenting proceedings – Where considerable prejudice would be occasioned to the children and the husband if the case was reopened – Where the application is dismissed. |
| Australian Passports Act 2005 (Cth) Family Court Act 1977 (WA) |
| Crowley & Mendoza (2010) 43 Fam LR 463 |
| APPLICANT: | Mr Withers |
| RESPONDENT: | Ms Russell |
| 2nd RESPONDENT: | Ms Russell Snr |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Lloyd |
| FILE NUMBER: | CAC | 223 | of | 2015 |
| DATE DELIVERED: | 20 September 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 15 - 18 March 2016; 30 May - 9 June 2016; 7 September 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE 2ND RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jeanine Lloyd & Associates |
ORDERS (made 18.3.16)
The wife be granted leave to make an oral application to discharge the order appointing the Independent Children's Lawyer. I dismiss that application.
ORDERS (made 8.6.16)
The wife’s application that the matrimonial law of California apply when considering the alteration of the property interests between the husband and wife be dismissed and I reserve my reasons.
By consent:
1.The application for order 5 in the husband’s application filed 29 April 2016 against the 2nd respondent is dismissed;
2.The injunction in relation to the accounts contained in Order 2 of the orders made by the court on 18 February 2015 be discharged (Order 2 is an injunction in relation to account …70 BSB …2 and account …22 with the National Australia Bank).
ORDERS
The 2nd respondent’s Application in a Case filed 31 August 2016 be dismissed.
Parenting
All previous parenting orders are discharged.
The husband have sole parental responsibility for the children A born … 2009 and B born … 2011 (collectively “the children”).
To avoid any doubt, and subject to order 10, a decision in respect of the immunisation of the children and whether the children may consume gluten are decisions about a major long term issues to which the preceding order applies.
The husband shall have parental responsibility subject to the following conditions:
5.1.Except in the case of an emergency, the husband shall give the wife at least 14 days written notice of his intention to make any decision about a major long term issue in relation to either of the children, setting out what he intends to do and the reasons he intends to make the decision;
5.2.The husband shall not implement the expressed intention until the expiration of a period of 14 days;
5.3.Within that 14 day period, if the wife disagrees with the husband’s intention, the wife may give the husband her views about the husband’s intended decision in writing;
5.4.For a further period of 14 days the parties are to consult in writing about any such decision about a major long term issue as proposed by the husband with which the wife disagrees and make a genuine effort to come to a joint decision about that issue;
5.5.In the event the husband and wife are unable to reach a joint decision after the expiration of that consultative period of a further 14 days, the husband is to make the decision in respect of that major long term issue.
Should there be any medical emergency involving the children, including but not limited to serious illness, accident or hospitalisation, the parent with the care of the children at that time must:
6.1.Immediately contact the other parent;
6.2.As soon as practicable, provide to the other parent all documentation and information in their control or possession regarding the medical emergency;
6.3.Notify the other parent of the name of any medical practitioner, paediatrician or other specialist who treats the child whilst the child is in that parent’s care.
The wife and the maternal grandparents are able to take a child or the children for medical attention in the case of an emergency but are otherwise restrained from arranging medical treatment for the children without the written consent of the husband and in particular, restrained from taking a child to a chiropractor or osteopath at any time for any reason without the prior written consent of the husband.
The wife is restrained from permitting the use of any surname of the children other than “Withers” when the children are in her care.
The husband is to forthwith authorise any preschool or school the children may attend to provide to the wife copies of reports, newsletters and announcements of centre/school activities or otherwise pertaining to the education of the children, and the husband shall authorise staff members at any preschool or school the children may attend, to discuss the children’s progress with the wife.
The court notes that the parents disagree about the immunisation of the children and the ability of each of the children to tolerate gluten:
10.1.The husband is not to make any decision in relation to the immunisation of the children until he has obtained an advice from an appropriate medical specialist and provided a copy of that advice to the wife;
10.2.The husband is to keep the children on a gluten free diet until he obtains the advice from an appropriate medical specialist that the children can tolerate eating gluten. The specialist is to be told that the mother of the children is (at least) gluten intolerant. A copy of that written advice is to be provided to the wife.
Otherwise the provisions of order 5 apply.
Without the need to comply with order 5 the husband may, at the conclusion of the current school term, change A’s schooling from F School to L Primary School.
Subject to these orders, the children live with the husband from Thursday 22 September 2016.
If the wife is in Australia, the children are to spend time with their parents in Australia as follows:
13.1.With the wife on each alternate weekend from after school and preschool on a Friday (or 3 pm if Friday is a non-school day) to before school and preschool on Monday (or 9 am if Monday is a non-school day) with the wife to pick the children up from school and preschool (or if a non-school day, absent any other agreement, the husband’s residential address) and deliver them back to school and preschool (or if a non-school day, absent any other agreement, the husband’s residential address);
13.2.With the wife on each alternate Tuesday night in the off week from after school and preschool on Tuesday (or 3 pm if Tuesday is a non-school day) until before school and preschool on a Wednesday (or 9 am if Wednesday is a non-school day) with the wife to pick the children up and drop them off from and to school and preschool (or if a non-school day, absent any other agreement, the husband’s residential address).
13.3.With the husband for the whole of the term 3 2016 school holidays;
13.4.From term 4 2016 school holidays and each other term 4 school holidays, with the husband for the first half of all school holiday periods commencing in years ending in an even number and the second half of all school holiday periods commencing in years ending in an odd number;
13.5.From term 4 2016 school holidays and each other term 4 school holidays, with the wife for the first half of all school holiday periods commencing in years ending in an odd number and the second half of all school holiday periods commencing in an even number;
13.6.From term 1 2017 and upon the wife giving the husband 4 weeks notice in writing, for two one week periods during any school term, which weeks are not consecutive school weeks (but not to include the last week of term 4 or week one of term 1);
13.7.From term 1 2017 school holidays with the wife for the whole of term 1, 2 and 3 school holidays provided the wife gives to the husband 2 months notice of her intention to have the children with her during any particular school holiday period;
13.8.With the wife from 9 am until 5 pm each Mother’s Day and with the husband from 9 am until 5 pm each Father’s Day;
13.9.On the children’s birthdays each year with the parent with whom the child is living to make the children available to spend time with the other parent for a period of at least three hours at a time to be agreed between the parents but failing such agreement from 4 pm to 7 pm;
13.10.On each of the parent’s birthdays if the children are not with the parent who is having the birthday then the other parent will make the children available to spend time with that parent for at least three hours at a time to be agreed upon between the parents but failing such agreement from 4 pm to 7 pm.
13.11.On Christmas Eve, Christmas and Boxing Day the following orders apply to the time the children spend with the parents:
13.11.1.In even numbered years from 10 am on Christmas Eve to 10 am on Christmas Day with the wife and from 10 am Christmas Day to 10 am on Boxing Day with the husband;
13.11.2.In odd numbered years from 10 am on Christmas Eve to 10 am on Christmas Day with the husband and from 10 am Christmas Day to 10 am on Boxing Day with the wife;
13.11.3.Such further and other times as the parties might agree.
For the purpose of the preceding order, the husband is entitled to request and the wife shall then provide, evidence that she will be or is in Australia.
For the purposes of the preceding orders, in the absence of any written agreement between the parties to the contrary, the following orders apply:
15.1.The first half of school holidays will commence at the end of classes on the last day of school;
15.2.The second half of the December/January school holidays will commence at 5 pm on the Friday in January that falls approximately three weeks after the last day of the fourth school term of the previous year;
15.3.The second half of all other school holidays will commence at 5 pm on the middle Saturday of the school holidays or the middle Wednesday of the school holidays if the relevant holiday period has an odd number of weeks;
15.4.One half of the school holiday period be calculated by dividing the total number of days the children do not attend school by two. If the number of days are not even the husband is to have the extra day in even numbered years and the wife is to have the extra day in odd numbered years.
For the purposes of the preceding orders, if handover does not occur before or after school or preschool at the children’s school, it is to occur at a location agreed by the parties in writing and failing agreement, at the husband’s residential address.
The children shall not travel with or to be with their mother outside Australia until December 2017.
For the purposes of s 11 Australian Passports Act 2005 (Cth):
18.1.It is noted the above orders allow:
18.1.1.The children to travel internationally;
18.1.2.The children to live with both their parents when those parents are outside Australia
18.2.The wife is restrained from making an application for an Australia passport or travel-related document for the children;
18.3.The children are permitted to have an Australian passport or travel-related document provided the application for that document is made by the husband, who may sign any declaration on the application in the form approved by the relevant Minister.
From the first half of the term 4 2017/18 Australian summer school holidays, the children are permitted to travel to City C, Colorado, United States of America to spend one period of time each calendar year with their mother, for a length of time equivalent to the time the wife would otherwise be entitled to spend time with the children during the school holidays in Australia pursuant to these orders (which period can be increased by one week by adding one week after term 1 or before or after terms 2 or 3 school holidays (in accordance with orders 13.6 and 13.7 hereof)) provided that the wife gives the husband two months written notice of her intention to have the children with her in the United States including the dates of the children’s departure from and arrival back to Australia.
From the second half of the term 4 2018/19 Australian summer school holidays, the children are permitted to travel to City C, Colorado, United States of America for two periods of time each year on the same basis as set out in order 19.
The parties are to consult and attempt to agree in writing in respect of the international travel arrangements to enable the children to spend time with the wife in the United States, but failing agreement:
21.1.In the event the wife gives two months written notice as referred to in the preceding order, the wife shall indicate to the husband whether or not she intends to escort the children from Australia to the United States, and if she does, the wife shall collect and return the children to a place agreed to between the parties but failing agreement, Sydney International airport;
21.2.If she fails to do so the husband can indicate to the wife in writing that he intends to escort the children to and from the United States with drop off and pickup to be agreed between the parties and failing agreement to be at Los Angeles International Airport;
21.3.If neither party is prepared to escort the children, the children can fly as unaccompanied minors between Sydney and Los Angeles. The husband to deliver and pick up the children from the aircraft at Sydney International Airport and the wife to pick up and deliver the children from the aircraft at Los Angeles International Airport;
21.4.The wife will be responsible for purchasing air tickets for the children. Each party shall be equally responsible to meet the costs of the children’s air tickets. The husband within 14 days of the wife demonstrating in writing she has purchased air tickets for the children, is to pay to the wife one half of the cost of those air tickets. Each party will otherwise be responsible for the cost of their own airfares associated with accompanying the children on international travel and any other costs associated with that travel;
21.5.In the event the wife is unable to pick the children up herself personally at the commencement of the time or redeliver them at the conclusion of the time, the wife is to ensure that the husband is advised by way of SMS text message confirmation as to the name of the person facilitating all changeovers on her behalf no later than one hour prior to the commencement and/or conclusion of the time.
At least 14 days prior to their departure from Australia, the wife is to provide the husband with:
22.1.A copy of return tickets for the children;
22.2.A copy of the confirmed flight itinerary and proof of payment including return airfares for the children;
22.3.Contact details including mobile and land line contact telephone numbers where the children can be contacted by telephone for the duration of the time they are away from the husband.
The children are to spend time with the wife’s parents Ms Russell Snr and Mr R (“the maternal grandparents”) each fourth weekend during school term from after school Friday to before school Monday during periods when the wife is not otherwise exercising alternate weekend time with the children in Australia provided the maternal grandparents organise in their time that the children attend any sporting or extra-curricular activity that the husband has given them written notice the children normally attend on the weekend.
The children are to have telephone, Skype, Facetime and/or Whatsapp communication (at the wife’s election) with the wife every Sunday and Wednesday when with their father at a time to be agreed upon between the parties and failing agreement 7.30am (Canberra time) and any other reasonable time the children request to speak to their mother.
The children are to have telephone, Skype, Facetime and/or Whatsapp communication (at the husband’s election) with the husband every Sunday and Wednesday during any period they are with the wife for more than three nights at times to be agreed between the parents and failing agreement 7.30 am (Canberra time) and any other reasonable time the children request to speak to the husband.
Each parent use their best endeavours to ensure that the children communicate by telephone, mobile or video linkup with the other parent at the times provided for in these orders and to do everything to facilitate that communication.
Each parent is required to provide to the other parent their mobile and landline numbers so that the children are able to communicate with the other parent.
Each parent is required to give the children access to the mobile phone and landline so that the children are able to communicate with the other parent.
Neither parent change the children’s place of residence from either the Australian Capital Territory or Town G area without first obtaining the written consent of the other parent or further order.
In the event that either parent intends to change their place of residence within either the Australian Capital Territory or Town G area they are to provide the other parent 14 days before doing so with notice of their intention to do so setting out the proposed address.
In the event that either parent intends to change their contact telephone number they are to forthwith inform the other of their new telephone number.
Neither parent is to say any unkind or uncomplimentary things about the other to or in the presence of the children or one of them, nor cause or allow anybody else to do so.
Both parents be restrained from discussing these proceedings with or in the presence of the children.
Neither parent is to attempt to contact the children by telephone at times other than those provided for in these orders unless in the event of an emergency.
In the event that either parent wishes to travel out of either the Canberra or Town G region when the children are with them for three nights or more, they must provide the other parent with:
35.1.Written notice of the travel before the travel occurs;
35.2.A contact telephone number.
Within 7 days the wife or her nominee deliver the child B’s current passport to the husband. The husband is to hold the children’s passports and travel-related documents. The husband is to make the children’s passports and travel related documents available to the wife in a timely way to facilitate the children’s international travel in accordance with these orders.
In the event that the husband wishes to travel overseas with a child or the children, he must provide the wife with at least two months’ notice of the intention to travel, along with copies of return tickets for the child/children at least 14 days prior to the departure and a detailed itinerary providing addresses and phone numbers for accommodation in which the children will be staying at least 14 days prior to departure.
Until further order, or else subject to the authenticated consent of Mr Withers born … 1974 for the period or periods specified in that consent, Ms Russell born … 1980, her servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child A born … 2009 and the child B born … 2011 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist, until the Court orders its removal, or with the consent from time to time of Mr Withers.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
PROPERTY
Pursuant to s 79 Family Law Act 1975 (Cth), an order is made in the terms of paragraphs 41 to 59.
Within two (2) months the husband, at his option, do all things and sign all necessary documents to:
41.1.Discharge the current liability, including any arrears, on the property situated at and known as Z Road, Town D (“the D property”) in the approximate sum of $354,868;
41.2.Partly pay off the NAB loan …55 to the extent of 35.08 per cent of its balance as at the date of payment (in the approximate sum of $195,132).
And if the husband makes those payments then thereafter the husband will be declared to have sole right title and interest in the D property and the husband shall indemnify the wife in relation to any liability associated with that property.
Within two (2) months the husband is to provide the wife with written confirmation that he has complied with the provisions of the preceding paragraph.
If the husband fails to comply with paragraphs 41 and 42 then within a period of five (5) months, the husband is to do all things and sign all necessary documents to sell the D property, by private treaty at a price to be agreed upon between the parties and failing agreement at a price to be determined by the nominee or nominees of the President for the time being of the Australian Valuers Institute and the net proceeds of the sale be distributed as follows:
43.1.Payment of any agents fees;
43.2.Legal costs associated with the sale;
43.3.Rates and levy adjustments and any other costs of the sale;
43.4.Discharge of any mortgage on the property;
43.5.Payment of 35.08 per cent of the NAB loan …55;
43.6.Balance if any to the husband.
Within two (2) months, the wife and the wife and Ms Russell Snr as trustees of the K Trust either jointly and severally, at their option, do all things and sign all necessary documents to discharge any liability the husband has in respect of any loan, liability or outgoing, including any arrears of same, in respect of which any of the following properties are security or are related:
44.1.H1 property, Town XX
44.2.H3 property, Town XX
44.3.I Street, Town W, Queensland
44.4.AA Street, Canberra
(“the K Trust properties”)
And to pay:
44.5.all of the NAB loan …25 (in the approximate sum of $270,601)
44.6.64.92 per cent of the NAB loan …55 (in the approximate sum of $361,103)
Within two (2) months, the wife and/or the trustees of the K Trust are to provide the husband with written confirmation that they have complied with the provisions of the preceding paragraph.
In the event that the wife and/or the trustees of the K Trust fail to comply with paragraphs 44 and 45, then:
46.1.The wife and the trustees of the K Trust shall within a period of five (5) months from the date of these orders, either jointly or severally cause each of the K Trust properties to be sold at a price to be agreed upon by the husband and wife and failing agreement at a price to be determined by the nominee or nominees of the President for the time being of The Australian Valuers Institute and the net proceeds of such sales be disbursed as follows:
46.1.1.Payment of agent’s fees;
46.1.2.Legal costs associated with the sale;
46.1.3.Payment of any outstanding council rates, water rates, strata levies, land tax (including those referred to in items 25 to 38 on the balance sheet in the Reasons for Judgment);
46.1.4.Discharge of any mortgage on any of the properties;
46.1.5.Payment of debts referred to in items 39 to 45 of the balance sheet contained in the Reasons for Judgment;
46.1.6.Payment of the whole of the NAB loan …25 in the approximate sum of $270,602;
46.1.7.Payment of 64.92 per cent of the NAB loan …55 in the approximate sum of $361,103;
46.1.8.Balance to the wife and/or K.
The husband and wife equally pay any capital gains tax that is incurred as a result of the sale of any property pursuant to this property settlement order.
In accordance with s 90MT(4) of the Family Law Act 1975 (Cth), a base amount of $400,878 is allocated to the wife out of husband’s interest in the Military Superannuation & Benefits Scheme.
In accordance with Section 90MT(1)(a) of the Family Law Act 1975 (Cth):
49.1.The wife (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
49.2.The entitlement of the husband in the Military Superannuation & Benefits Scheme (or the entitlement of such other person who becomes entitled to receive a payment out of the husband’s superannuation interest) is correspondingly reduced by force of this Order.
The trustee of the Military Superannuation & Benefits Scheme (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
50.1.Calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) the entitlement awarded to the wife in the immediately preceding clause of this Order; and
50.2.Pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the Military Superannuation & Benefits Scheme.
This Order has effect from the operative time and the operative time is 21 days after service of these orders on the trustee.
After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“the SIS Regulations”), the wife shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife’s request in accordance with the SIS Regulations, for the retention of the non-member spouse interest in the wife’s name in the Military Superannuation & Benefits Scheme.
The Court notes:
53.1.The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
53.2.Any payments from the husband’s superannuation interest in the Military Superannuation & Benefits Scheme made after the trustee has created a new interest in the wife’s name in the Military Superannuation & Benefits Scheme are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001 (Cth).
The trustee of the Military Superannuation & Benefits Scheme has liberty to apply to the court for variation of the order splitting the husband’s superannuation interests within 21 days after being served with these orders.
Each party be solely entitled to the exclusion of the other to all other property, assets, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.
Unless the husband is required to make a payment to the Australian Attorney-General’s Department in respect of attorney fees and costs relating to the order made by the USA Federal Court on 15 July 2015 in the approximately sum of USD$64,984.90, the husband will indemnify the wife in relation to any liability in respect of that costs order and the husband’s ability to seek reimbursement from the wife in relation to that costs order will be limited to any amount he is required to pay the Australian Attorney-General’s Department in respect of the costs of the proceedings in the USA Federal Court in 2015 and the husband shall not commence any action to seek reimbursement of any monies paid by him to the Attorney-General’s Department until such amount has actually been paid by him.
The wife indemnify the husband in relation to any debt owed by the husband to herself, the K Trust, Ms Russell Snr, her firm or any trust, company or other entity controlled by Ms Russell Snr including E Pty Ltd.
The husband is to forthwith return to the wife all keys that he might have in respect to the wife’s property and the K Trust properties.
The husband, the wife or the 2nd respondent may apply on 21 days’ notice to the court and the other parties for any order implementing the property settlement order.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of s 106A of the Family Law Act 1975 (Cth) to execute such documents on behalf of such party.
The wife’s application for spousal maintenance is dismissed.
The wife’s application pursuant to the Child Support (Assessment) Act 1989 (Cth) is dismissed.
All other outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Withers & Russell and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: The form of the order is subject to the entry of the order 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 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 SYDNEY |
FILE NUMBER: CAC 223 of 2015
| Mr Withers |
Applicant
And
| Ms Russell |
Respondent
And
| Ms Russell Snr |
2nd Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The husband and wife fundamentally disagree about the future parenting arrangements for their two children A (“the older child”) born in 2009 (six years of age) and B (“the younger child”) born in 2011 (four years of age) (“the children”).
The wife intends to live in the United States of America (“USA”) whatever the outcome of the proceedings. The wife seeks that the children be permitted to leave Australia to live with her.
The husband seeks that the children reside with him in Australia.
The wife, in the alternative, seeks that if the children are to remain in Australia, they primarily live with her parents (“the maternal grandparents”).
A central feature of the wife’s case are serious allegations of family violence and child abuse. The husband denies the allegations and says that if the court permits the children to live with the wife in the USA, their relationship with him will be lost.
The husband and wife also seek different property settlement orders. The husband had sought financial orders against the 2nd respondent, but by consent, that part of his application was dismissed.
The hearing in relation to parenting issues took place in two parts. On 1 February 2016 I made it clear that I intended to commence the final hearing of this matter by hearing evidence in relation to allegations of child abuse, family violence and risk of family violence in the week commencing 14 March 2016 (see notation 6).
The first four days were devoted to hearing evidence relevant to the wife’s serious allegations in relation to family violence.
The wife’s evidence during the final hearing was provided to the court over time in increasing volume. After the first four days of the final hearing, the wife filed an affidavit consisting of 1531 paragraphs with 557 attached documents. Some of this affidavit covered the evidence that had already been given in the first four days of the hearing in relation to family violence and it was excluded on that basis. Not all of what is in the affidavit and not all of the attached documents made it into evidence. Exhibit 57 sets out the evidence which the wife was permitted to rely upon in the final part of the hearing. In relation to orders relating to financial matters, the wife sought to tender 60 or 70 new documents on the 13th day of the hearing. She was permitted to tender some of them.
The 2nd respondent is the wife’s mother. The 2nd respondent has a well-established professional practice in Canberra. The wife worked for her mother during periods of the marriage. Throughout these reasons, reference will be made to the maternal grandfather or the maternal grandparents. The maternal grandfather is not the wife’s biological father but is her mother’s husband and the man whom the wife considers to be her father.
APPLICATIONS
The text of the final orders sought by the husband are set out in Schedule 1. The text of the final orders sought by the wife are set out in Schedule 2.
The orders originally sought by the 2nd respondent are set out in Schedule 3. The 2nd respondent did not participate in the proceedings to pursue her application for parenting orders but indicated that she supported whatever orders her daughter sought. During the 13 day hearing, the 2nd respondent said that she supported her daughter’s application to place the children in the care of herself and her husband if the children were to remain in Australia.
The 2nd respondent did not press the application against the husband for an undertaking as to damages (as sought in her application), as she had discovered he had already given one. The order removing the injunction and the dismissal of the order sought by the husband against the 2nd respondent were made by consent on 8 June 2016.
The Independent Children's Lawyer, in final submissions, supported the children remaining in Australia and living with their father and for the husband to be granted sole parental responsibility for making decisions about major long term issues relating to the children. The Independent Children's Lawyer also generally supported most of the other orders that were sought by the husband save for orders relating to extra-curricular activities, the children’s international travel to be with their mother in the USA, taking the children to chiropractors and/or osteopaths and the place of changeover.
In final submissions the Independent Children's Lawyer stated that the children should not be able to spend time with their mother in the USA until the school holidays in Christmas 2017. She said that her reasoning for this was that there had been many allegations in relation to the husband posing a risk to the safety of the children which on the Independent Children's Lawyer’s submission, were unfounded. She also submitted that to some degree the wife has fabricated evidence and actively concealed evidence. The Independent Children's Lawyer explained that until the children have a more solid and strong relationship with their father and are a bit older, she feared that the same type of allegations would be raised by the wife in the USA. She said this provided her reasoning for suggesting the children’s travel to the USA to be with the wife should be delayed but said that should not prevent the wife from travelling to Canberra to spend time with the children if she so chose.
The Independent Children's Lawyer submitted that if the wife did choose to travel to Canberra to spend time with the children she would have to give sufficient notice to the husband and her time could not amount to an equal shared care arrangement but could be up to two weeks during school term and up to four weeks in school holidays. The Independent Children’s Lawyer suggested the wife could see the children in Australia for block periods of up to 10 days in mid-term breaks.
The Independent Children's Lawyer proposed that once the children were able to travel to the USA to see the wife then there should be a less generous regime of time in Australia
The 2nd respondent’s application to reopen the case
On 31 August 2016 the 2nd respondent filed an Application in a Case and an affidavit in support of that application. In effect, it was an application by the 2nd respondent to reopen the parenting hearing and adduce further evidence after the case had been concluded but before judgment had been delivered.
The application seeks final orders that the children continue to reside with the maternal grandparents during any period in which the wife is overseas or unable to care for the children and that they continue to attend F Primary School and Preschool while they reside in Australia.
The orders then go on to set out a regime for the children to spend time with their father and to travel to the USA to visit their mother during school holidays in Australia and return in time to attend school. A further order is sought to include the children within the family private health care insurance of the maternal grandparents.
The husband and the Independent Children's Lawyer oppose the application by the 2nd respondent to reopen the case. The wife said on 7 September 2016 that although she had been served with the documents on 1 September 2016, she had not yet had an opportunity to read them. The wife however did point out that what the 2nd respondent was seeking was substantially the same as the wife’s alternate application in the event it was found that it was not in the children’s best interests to reside with their mother in the USA.
Background
It is relevant when considering the 2nd respondent’s application to reopen the parenting hearing, to record the relevant history of the 2nd respondent’s previous involvement in the parenting proceedings. The 2nd respondent is an experienced legal professional.
When the matter first came before me on 28 October 2015 the 2nd respondent announced her appearance without actually filing or making any application. On 28 October 2015 the 2nd respondent indicated to the court that she did not want to participate in the parenting proceedings (see exchange between the 2nd respondent and the court at page 22 of the transcript on 15 March 2016, lines 25 to 31).
The final part of the hearing was scheduled to commence on 15 March 2016. The 2nd respondent attended court on that day and filed in court a Response to Initiating Application. That application sought amongst other things orders in favour of the 2nd respondent that the children continue to reside with the maternal grandparents during any period in which the wife is overseas or unable to care for the children and for the children to continue to attend F Primary School and Preschool while they resided in Australia.
The 2nd respondent also filed in court on 15 March 2016 her affidavit sworn 26 October 2015 which contained evidence relevant both to parenting issues and financial issues.
On 15 March 2016 there was a lengthy exchange between the 2nd respondent and the court as to what part she wished to play in the final hearing (see page 22, line 5 to page 25, line 19 of the transcript of 15 March 2016). It was clear at the end of that interchange, that the 2nd respondent’s position was that she did not seek to be a party to the proceedings for the purposes of seeking parenting orders but wanted to support the wife’s parenting application and be involved as a witness in the wife’s parenting application.
The 2nd respondent gave oral evidence on 18 March 2016. She was cross examined by the husband and the Independent Children's Lawyer.
The matter went part heard to recommence on 30 May 2016. On 19 May 2016 the wife filed a document entitled “Response to Initiating Application”. In schedule C to that application, the wife set out the orders that she sought if the children remained living in Australia. Relevantly, the orders sought by the wife included that her parents have legal custody of the children for the time that the children are in the wife’s care and the wife is not in Australia and that the children remain enrolled at F School.
On 29 May 2016 the 2nd respondent filed a further affidavit which contained evidence relevant to both parenting issues and financial issues. On 30 May 2016 the 2nd respondent appeared at the bar table. The 2nd respondent was informed that the wife’s application contained, in the alternative, an order in the favour of herself and her husband in the event that the children were in Australia and her daughter was overseas. The 2nd respondent indicated that she had not seen the orders her daughter had sought but that she was not opposing them.
On 8 June 2016, by consent, the husband’s application against the 2nd respondent (relating to financial issues) was dismissed, costs were reserved and an injunctive order made by Rees J was discharged. At that time the 2nd respondent ceased to be a party to the proceedings.
Legal principles
The 2nd respondent, in effect, is seeking to reopen the hearing which had concluded prior to judgment being delivered, for the purposes of adducing further evidence and to make an additional application in relation to health insurance. The application to reopen the case is not an application for a parenting order. Consequently, the court is not required to regard the best interests of the children as the paramount consideration. The best interests of the children in this case however is relevant to the question of whether or not the case should be reopened to allow the 2nd respondent to adduce further evidence and to prosecute a case that she had previously not pursued.
Further, the 2nd respondent’s application to reopen the case requires a decision about the conduct of this child-related proceedings and as such, the principles for conducting child related proceedings are applicable (see s 69ZN(1)(b) of the Family LawAct 1975 (Cth) (“the Act”)).
Those principles provide that the court must consider the needs of the children concerned and the impact that the conduct of the proceedings may have on the children in determining the conduct of the proceedings (s 69ZN(3)) and the requirement to conduct the proceedings without undue delay (s 69ZN(7) of the Act).
I also bear in mind the usual criteria governing the exercise of the discretionary power to reopen a case to admit further evidence which was said by Habersberger J in Reid v Brett [2005] VSC 18 to be as follows:
(a)the further evidence is so material that the interests of justice require its admission;
(b)the further evidence, if accepted, would most probably affect the result of the case;
(c)the further evidence could not by reasonable diligence have been discovered earlier; and
(d)no prejudice would ensue to the other party by reason of the late admission of the further evidence.
The 2nd respondent’s evidence
Much of what is in the 2nd respondent’s affidavit is information relevant to various issues which attracted considerable attention over the 13 days of the hearing.
It is difficult to judge what is actually new given the lack of precision with which the 2nd respondent has set out the evidence (particularly in relation to the time in June things were said to have happened).
I find that any further “new” evidence referred to by the 2nd respondent is not so material that the interests of justice would require its admission nor would its admission most probably affect the result of the case.
In my view considerable prejudice would be occasioned to the children and the husband if the case was reopened and dates had to be set for a further hearing.
I take into account that the 2nd respondent is an experienced legal professional and the opportunities she has already been afforded to participate in the parenting proceedings.
The 2nd respondent seeks orders in favour of her husband. He at one point filed an affidavit but he has never participated in anyway in the proceedings, including making himself available to be tested upon his written evidence.
As the wife pointed out, substantially what the 2nd respondent is seeking is replicated in the alternate application made by the wife in the substantive parenting proceedings in respect of which judgment was reserved.
I find that it would not be in the best interests of the children to reopen the hearing. Accordingly, I dismiss the application filed by the 2nd respondent on 31 August 2016.
CREDIT
Wife
Over 13 days of the final hearing there were occasions when the wife’s presentation gave me considerable cause for concern. Although most of the time the wife remained measured in her tone, on occasion she became quite belligerent. The wife was single-minded in presenting her case in a way which she perceived would lead to the result of the children being with her in the USA.
As I discuss later in the reasons, I have concluded that the large number of serious allegations of family violence catalogued by the wife against the husband have been made by the wife without proper foundation. Although later in these reasons I analyse each allegation in detail, for the purposes of the discussion in respect of the wife’s credit, I refer to a number of examples.
The wife gave evidence that in 2011 she flew back to Canberra from Town O in Queensland for an ultrasound following the husband punching her in her pregnant stomach at a shopping centre. For reasons discussed below, I do not accept the wife’s evidence in relation to this incident as being truthful.
I am unable to accept the wife’s evidence that she lost consciousness during an incident involving herself and the husband on 14 April 2013. Whilst I accept the wife bumped her head on the car during this incident, I find that she embellished her version of the story by claiming she lost consciousness.
The wife claims that on 27 August 2014 the younger child sustained an injury to his right eye. The wife gives two versions. At [40(n)] of her affidavit of June 2015 the wife claims that the husband dragged the child by the arm and threw him into the bathroom vanity, splitting the child’s head. She claims the incident happened whilst they were in the USA. The wife says that she remembered that they had just arrived in the USA and there was difficulty finding medical treatment, adding the comment that in the USA it is not easy to get a doctor. Annexure E to the wife’s June affidavit is a copy of the wife’s domestic violence application dated 12 June 2015. Under the heading “Violence Chronology”, the wife records that what happened on 27 August 2014 was that the husband threw the younger child off his lap and the child fell “again splitting his head”. I find that there is no truth in the wife’s assertion that on 27 August 2014 the younger child suffered an injury to his head at the hands of his father on either version given by the wife. Evidence that the husband has produced, which I accept as authentic, and which I discuss in more detail below, demonstrates that the wife’s evidence as to the date of this injury is unreliable. The wife relies upon the fact that there is what apparently is an automatic computer generated date on the photograph that she has produced. I find however, based on other evidence which I have accepted, that that date is incorrect. I accept that evidence given by the husband supported by photographs taken at the time (in the normal course of the children’s holiday) would indicate that the child had no injury to his head at this time.
The wife has, in other documents (Exhibit 20 and annexure E to the wife’s June affidavit) also alleged that the injury in relation to the younger child’s eye at the hands of his father involving an en suite vanity happened in January 2014. The wife’s evidence is, in part, unreliable and in part contradictory to an extent that I cannot place any weight upon it. I find on balance the wife has fabricated the evidence that the child was injured when his father threw him into a bathroom vanity.
The Notice of Risk of Family Violence and Child Abuse is an extensive document prepared by the wife who is a trained legal professional and who has had experience in family law whilst working at the 2nd respondent’s firm. When looked at overall, the Notice of Risk of Family Violence and Child Abuse contains very serious allegations, all of which were denied by the husband, and were almost entirely, not substantiated. The wife produced many photographs of abrasions and bruises on the children claiming that they were the product of either the husband’s intentional or reckless behaviour. There is nothing to indicate that that could be substantiated, particularly in circumstances where, for example, the younger child had always had difficulties with his gross motor skills and was always falling over and bruising himself.
The wife had a tendency to embellish her version of an event. One example of that was her tendering pictures of the children and the husband and the maternal grandparents in an unfinished swimming pool. The wife gave this as an example of the husband putting the children at risk when the photographs were innocuous.
Another example of the wife’s subjective hyper-vigilance was her tendering of photographs of the children and their father observing elephant seals in California. There is nothing in those photographs which would indicate the husband was other than watchful and mindful of the children’s safety at the time.
In the Colorado, proceedings, the attorney whom the wife was instructing (the wife was present), apparently upon the wife’s instructions, told the court in the Hague proceedings that she was “scared to death of her husband” and “gravely fearful of her husband”. On 7 July 2015 the wife told the family consultant that the children were “petrified” of their father. The wife had deliberately and grossly exaggerated any concern that she had for her own safety at the hands of the husband. I find that the wife and the children were never scared to death or petrified of the husband. Those statements are not consistent with the wife’s assertions that during the period of time leading up to the Hague proceedings in the USA she was attempting to encourage the husband to spend time with the children and not consistent with my observations over a 13 day period of the interaction between the parents.
The wife, immediately upon coming back to Australia as result of the order made in Colorado for her to return with the children, commenced family violence proceedings in the ACT Local Court which excluded the husband from seeing the children until an order was made under the Act. The wife, having excluded the children from the husband for a period of time, continued to do so. The wife (she says on legal advice) took a literal reading of the words of the family violence order to stop the children from seeing their father with the family consultant on the first occasion that was attempted. After a four day defended hearing, the Local Court in the ACT found that there was no basis for the interim order to have been made in the first place, either for the protection of the wife or the protection of the children. Given that the wife has deliberately developed a version of the husband’s behaviour into one of systemic family violence and that I will find that version is substantially without substance, I am unable to accept anything the wife says without more.
On 18 March 2016 the wife’s application to discharge the Independent Children's Lawyer was dismissed and very short reasons for doing so (which are set out below) were given. It is worthwhile setting out in a little more detail the evidence that the wife relied upon in respect of that application. It is demonstrative of how the wife has an ability to take a view in her own mind about something that has happened when plainly there was no basis for the wife holding the views that she did.
The wife gave evidence on 17 March 2016 she observed the husband and the Independent Children's Lawyer discussing things “off to the side” and passing documents between each other in the court room when it was not in session. The wife also said that she has observed the husband and the Independent Children's Lawyer interacting in a very jovial manner outside the court room.
The wife agreed that on one occasion the Independent Children's Lawyer had asked a question in cross examination based upon a document which the wife, who was sitting next to her at the bar table, had handed to her.
I accept the Independent Children's Lawyer’s evidence that the only document she had received from the husband was a transcript of the Magistrate Court proceedings and that the only interaction about documents she had with the husband in the court room related to identifying what affidavits the husband was relying upon. I accept the Independent Children's Lawyer’s evidence that apart from that she has not talked to the husband about any of the court processes at all.
The wife conceded that the Independent Children's Lawyer had inquired on two occasions about the wife’s physical wellbeing and conceded that that concern was a display by the Independent Children's Lawyer of friendliness towards her.
The wife had in her mind that the husband and the Independent Children's Lawyer may well have been friends on Facebook. I accept that the Independent Children's Lawyer does not have a Facebook account and that the wife’s suspicions were fanciful.
The wife’s perceptions and “observations” were highly subjective and without any apparent factual underpinning.
In very similar behaviour by the wife, her application on 3 June 2016 that I disqualify myself was made immediately after she had received an unfavourable ruling in relation to her ability to rely upon forensic expert evidence. The application was brought without any proper foundation (as detailed below) and seemed to me to be more an emotional response without any rational basis.
Husband
The wife asserts that on 12 February 2012 the husband signed a document in the following terms:
“I [the husband] hereby irrevocably agree that in the event that my marriage to [the wife] breaks down that I will not oppose my wife changing the names of our children’s surnames to [Russell]. I further irrevocably undertake to sign any relevant documentation for our children’s surnames to be changed to [Russell]. I agree that the initial naming of the children as [Withers] was conditional on this.”
The authenticity of the husband’s signature on this document is an issue between the parties. The husband has both maintained that it is not his signature, that it is a forgery, and that he did not know if it was his signature.
The wife wants the husband charged with perjury in relation to his signature on this document and more generally in relation to evidence that he has given that she asserts is untrue.
For reasons discussed below, I did not allow the wife to rely upon expert forensic evidence about the authenticity of the husband’s signature.
Exhibit 34 contains a chain of emails which are dated 1 December 2011, 16 December 2011, 20 December 2011 and one which is dated 18 December 2011 (it probably was not sent on that date). They include an exchange of emails between the parties in which the wife was expressing the wish that in the event that she agreed that the younger child’s surname was “Withers”, the husband would agree that if they separated the children’s surnames would be changed to “Russell”. In an email of 20 December 2011 the husband complains that “You’re the one trying to hold me to ransom”.
The wife complained that during the proceedings in Colorado the husband’s lawyer led evidence from the husband that the wife was left handed (this evidence related to the slope at which the signature on the document of 12 February 2012 was written). The wife initially asserted that the husband’s evidence to the Colorado court that she was left handed was untrue. The wife however told me that she does occasionally write things with her left hand.
I take into account the evidence I have, including what was happening in the relationship of the husband and wife at that time, as set out in Dr S’s notes (discussed below). Looking at the admissible evidence about the signature of the husband on the 12 February 2012 document, it is likely on balance that it is the husband’s signature and I find the husband has not been truthful when he says it is not his signature.
Whilst I find he signed the document, it is unlikely that the last sentence in the document “I agree that the initial naming of the children as [Withers] was conditional on this” is true in relation to the older child’s naming at the time of the child’s birth.
In oral evidence on 18 March 2016 the husband gave evidence that he had never had a heated argument with the wife. The husband claimed that he and the wife never really had any heated discussions and that he certainly didn’t have any heated discussions in front of the children. The husband was reminded of “the tow bar incident” on 14 April 2013 at the maternal grandparents’ property (discussed below). The husband asserted he could not remember where the children were at that time but said he did not believe that they were present and asserted there was not a heated argument and certainly not significantly raised voices.
SCHEDULE 4 – documents relied upon
Husband
Amended Initiating Application filed 29 April 2016;
Affidavit filed 18 February 2015;
Affidavit sworn 16 February 2015;
Affidavit filed 5 May 2015;
Affidavit filed 12 June 2015;
Affidavit filed 15 June 2015;
Affidavit filed 23 October 2015;
Paragraph 7 of affidavit filed 27 January 2016;
Affidavit filed 4 February 2016;
Affidavit filed 12 February 2016;
Affidavit filed 26 February 2016;
Affidavit filed 7 March 2016;
Affidavit filed 8 March 2016;
Affidavit filed 12 March 2016;
Affidavit filed 12 March 2016;
Affidavit of Mr JJ filed 14 March 2016;
Affidavit filed 11 April 2016;
Affidavit filed 29 April 2016;
Affidavit filed in the ACT Magistrates Court;
Financial Statement filed 23 October 2015;
Affidavit of Mr YY filed 1 March 2016; and
Affidavit of Mr CC filed 4 March 2016.
Wife
Response to Initiating Application filed 19 May 2016;
Affidavit sworn 19 February 2015;
Notice of Risk filed 29 June 2016;
Affidavit filed 29 June 2015;
Affidavit filed 28 October 2015;
Affidavit filed 31 January 2016;
Affidavit filed 9 March 2016;
Part of affidavit sworn 18 May 2016 and part of annexures (see Exhibit 57);
Financial Statement filed 28 October 2015;
Affidavit of Mr OO filed 27 October 2015;
Affidavit of Mr R filed 27 October 2015; and
Affidavit of Ms BX filed 9 March 2016.
2nd Respondent
Response to Initiating Application filed 15 March 2016;
Affidavit filed 15 March 2016; and
Affidavit filed 29 May 2016.
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