Yanez & Yanez

Case [2023] FedCFamC1F 284

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Yanez & Yanez [2023] FedCFamC1F 284

File number(s): PAC 5502 of 2018
Judgment of: HANNAM J
Date of judgment: 18 April 2023
Catchwords: FAMILY LAW – UNDEFENDED HEARING – PARENTING AND PROPERTY – Where the father poses an unacceptable risk of harm to the child – Where the mother seeks orders supported by the ICL – Where orders are made for the child to spend no time with the father – Where wife seeks orders that she receive 80 per cent of the property pool – Where the wife contends several sums should be added back – Where one significant sum relates to wastage – Where orders are made that the wife receive 70 per cent of the total pool.   
Legislation:

Child Support (Assessment Act) 1989 ss 116, 117, 123A

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 79, 75(2)

Cases cited:

AJO & GRO [2005] FLC 93 – 128

Bevan & Bevan [2013] FamCAFC 116

Brandt & Brandt (1997) FLC 92-758

G & C [2006] FamCA 994

Mazorski & Albright (2007) Fam LR 518

McCall & Clark (2009) FLC 93 – 405; 41 Fam LR 483

NHC & RCH [2004] FamCA 633; (2004) FLC 93-204; (2004) 32 FAM LR 518

Pierce & Pierce [1998] FAMCA 74

Stanford v Stanford (2012) 247 CLR 108

Trevi & Trevi [2018] FamCAFC 173

Williams & Williams [2007] FamCA 313

Division: Division 1 First Instance
Number of paragraphs: 269
Date of hearing: 19 August 2022
Place: Parramatta
Counsel for the Applicant: Ms Lioumis
Solicitor for the Applicant: Coleman Greig Lawyers
Solicitor for the Respondent: Litigant in person (did not participate)
Solicitor for the Independent Children's Lawyer: Ms Dufty, Legal Aid Nsw Parramatta Family Law

ORDERS

PAC 5502 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS YANEZ

Applicant
AND:

MR YANEZ

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HANNAM J

DATE OF ORDER:

18 April 2023

THE COURT ORDERS THAT:

1.The mother shall have sole parental responsibility for the child X born 2010 (“the child”).

2.The child shall live with the mother.

3.The child shall spend no time with the father.

4.The father is restrained pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) from attending at any school the child attends from time to time.

5.Within forty-eight (48) hours of the date of these Orders, Coleman Greig Lawyers (“CGL”) pay any arrears of school fees associated with the child’s enrolment at M School from funds held in the controlled monies account.

6.On twenty-eight (28) days of the date of these Orders, CGL pay to the husband $164,039 from funds held in the controlled monies account.

7.Within forty-eight (48) hours of the date of the last mentioned order, CGL pay to the wife the balance of funds held in the controlled monies account.

8.Within forty-eight hours of the date of these Orders, CGL pay to the wife the balance of funds held in the Coleman Greig…

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AGLC
Yanez & Yanez [2023] FedCFamC1F 284
Case
[2023] FedCFamC1F 284
Decision Date

CaseChat Overview and Summary

The matter of Yanez & Yanez involved proceedings in the Federal Circuit and Family Court of Australia, focusing on parenting and property issues following the separation of the parties. The applicant, Ms Yanez, sought sole parental responsibility for their 12-year-old daughter, with no contact with the respondent, Mr Yanez, due to concerns about his mental health and drug use. Additionally, Ms Yanez sought an 80 per cent division of the property pool, arguing that certain sums should be added back, including a significant amount related to wastage.

The court had to decide whether the father posed an unacceptable risk of harm to the child, which would warrant no contact, and whether the mother’s claim for a larger share of the property pool was justified. The court found that the father's conduct, including drug use and compulsive behaviours, made him an unacceptable risk to the child. Consequently, the court ruled that the child would live with the mother and have no contact with the father. Furthermore, the court accepted that some sums should be added back to the property pool but reduced the wife's share to 70 per cent, considering the evidence presented.

The reasoning behind the court's decision was grounded in the best interests of the child and a fair division of the property pool. The court highlighted the mother's demonstrated capacity to care for the child and her child-focused approach, contrasting sharply with the father's irresponsible and self-centred behaviour. Regarding the property settlement, while the court acknowledged the mother’s contributions and the need to account for wastage, it ultimately deemed a 70 per cent share equitable. The orders reflect these findings, granting sole parental responsibility to the mother and a 70 per cent property division in her favour.

Orders

Orders of the court

PAC 5502 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS YANEZ

Applicant

AND:

MR YANEZ

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HANNAM J

DATE OF ORDER:

18 April 2023

THE COURT ORDERS THAT:

1. The mother shall have sole parental responsibility for the child X born 2010 (“the child”).

2. The child shall live with the mother.

3. The child shall spend no time with the father.

4. The father is restrained pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) from attending at any school the child attends from time to time.

5. Within forty-eight (48) hours of the date of these Orders, Coleman Greig Lawyers (“CGL”) pay any arrears of school fees associated with the child’s enrolment at M School from funds held in the controlled monies account.

6. On twenty-eight (28) days of the date of these Orders, CGL pay to the husband $164,039 from funds held in the controlled monies account.

7. Within forty-eight (48) hours of the date of the last mentioned order, CGL pay to the wife the balance of funds held in the controlled monies account.

8. Within forty-eight hours of the date of these Orders, CGL pay to the wife the balance of funds held in the Coleman Greig Trust account.

9. The wife is appointed trustee for the sale of the property situated at and known as F Street, Suburb D in the state of New South Wales being the whole of the land contained in folio identifier … (“the Suburb D property”).

10. For the purposes of Order 9, the Suburb D property shall vest in the wife and the wife as trustee shall do all things necessary and sign all necessary documents to sell the Suburb D property for the best price reasonably obtainable by such method of sale as she may in her sole discretion determine and upon the sale of the Suburb D property the wife as trustee shall pay the proceeds of sale in the following order and priority:

(a) In payment of agent’s commission, advertising and selling fees and legal costs of sale;

(b) In discharge of any registered mortgage encumbrance secured against the Suburb D property;

(c) In payment of any outstanding council and water rate arrears;

(d) The balance to herself or as she directs.

11. As between the husband and wife and subject to these Orders the husband and wife shall each respectively retain all interest in and entitlement to:

(a) All personal property now in his/her respective possession or control;

(b) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name;

(c) All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.

12. Subject to these Orders, the wife shall be solely responsible for all liabilities in which she has an interest, whether solely, jointly with another person or as part of an entity, both incurred prior to the date of these Orders and in future, including but not limited to all credit card debts and taxation debts and the wife hereby indemnifies and shall keep indemnified the husband in relation to these liabilities.

13. Subject to these Orders, the husband shall be solely responsible for all liabilities in which he has an interest, whether solely, jointly with another person or as part of an entity, both incurred prior to the date of these Orders and in future, including but not limited to all credit card debts and taxation debts and the husband hereby indemnifies and shall keep indemnified the wife in relation to these liabilities.

14. Pursuant to s 81 of the Act the parties intend these orders to finally determine all financial relations and issues between them and avoid further proceedings between them.

15. Each party shall doe all things necessary including providing all consents to give effect to these orders in the time periods prescribed in these Orders.

16. In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to s 106A of the Act 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.

17. The parties are granted leave on seven days’ notice to the Court and to the other party to relist the matter for further Orders or Directions to implement these orders.

18. Both the husband and the wife hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.

19. Within twenty-four (24) hours of the date of these Orders the wife is to inform the intended intervener that reserved judgment has been delivered and provide the intended intervener with a copy of these Orders.

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

It is important to note here that given the matter proceeded on an undefended basis as against the husband due to his non-compliance and failure to engage in the proceedings. I have no regard to any affidavits filed by him in determining this application.BACKGROUND The mother who is 50 and the father who is 59 (“the parties”) were both born overseas. The mother migrated to Australia at a very young age, while the father migrated to Australia when he was a young adult. Prior to the parties commencing a relationship, the father had a former partner with whom he shares three children all now aged in their thirties (“the child’s half-siblings”). It is unclear exactly when the parties formed a relationship, though they began living together sometime in 2010. At that time, both of them were working on a full-time basis, the mother as a professional and the father running his own business. When the relationship commenced the parties each had certain property interests. The wife had a 45 per cent interest in a property she purchased with her brother in 2006 (“the Suburb E property”) and this property was encumbered by a mortgage. The husband had two properties located in Sydney (“the Suburb D property” and “the Suburb L property”), and another located interstate (“the Melbourne property”). The husband owed money on at least two loans which were secured by a mortgage over two of the properties (“the Suburb D loan account” and “the Suburb L loan account”). It is unknown whether there was a third loan and associated mortgage on the Melbourne property. Early in their relationship the parties initially lived together in the Suburb D property. In 2010 the parties’ only child, a daughter now aged 12 (“the child”), was born. In 2012 the parties purchased land in Sydney upon which the family home was built (“the Suburb C property”). This property was encumbered by a mortgage securing a loan (“the Suburb C loan account”). In 2013 the Suburb L property was sold and the wife applied her share of the net proceeds of that sale of $49,000 towards the Suburb C loan account. In about mid-2014 the wife was made redundant from her employment. She received a redundancy payment of $50,353 of which she advanced $45,000 towards the Suburb C loan account. By the end of 2014, the parties and the child had vacated the Suburb D property and moved into their new home in Suburb C. Both the Suburb D and Suburb L properties owned by the husband were then used as investment properties from which the husband received rental income for some years. In 2015 the husband’s Melbourne property was sold for over $400,000. There is no evidence of the value of the net proceeds following sale and the wife is not aware how those funds were used by the husband. In 2015 the parties were married. Although the mother deposes that for the most part of their marriage the parties enjoyed what she considered to be a “normal and healthy relationship”, she also makes a litany of complaints in her affidavit about the father’s conduct over the years including his conduct towards her and in his role as a parent. The mother’s concerns in this regard will be touched upon in this background and will be discussed at greater length later in these Reasons.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The father’s incapacity in this regard is to be contrasted with the mother’s demonstrated capacity to provide for the child’s needs throughout her entire life. I accept the opinion of the expert that the mother has demonstrated a child-focused and appropriate attitude to the child and parenthood in stark contrast to the immature, irresponsible and self-focused attitude that the father has towards the child and the responsibilities of parenthood. Conclusion Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child. Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)). The presumption of equal shared parental responsibility is easily rebutted in this case where only one parent is pursuing parenting orders and seeks involvement in the child’s life including through the exercise of parental responsibility. In any event, all of the foregoing matters and the recommendation of the expert indicate that it is undoubtedly in the child’s best interests for the mother to exercise sole parental responsibility for her. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order I will make must mean that the mother will have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father will have none of the duties, powers, responsibilities and authority with respect to the child. There is only one parent participating and seeking parenting orders in relation to the child. Having regard to this matter and to each of the foregoing best interest considerations, I am satisfied that the orders proposed by the mother and supported by the ICL are in the child’s best interests. Accordingly it is proper that I make those orders set out at the forefront of these Reasons.PROPERTY SETTLEMENT APPLICATION It is the wife’s contention that she is entitled to 80 per cent of the parties’ property interests. Curiously, it was confirmed in oral submissions made on her behalf that if orders are made as she proposes her share of the parties’ total property interests will be 72 per cent and the husband will receive a 28 per cent share. The terms of the orders that are sought by the wife will be revisited after the merits of her application are considered. THE LAW & DISCUSSION

Ratio Decidendi

Legal Principle Established

A short time after becoming aware of the full extent of the father’s mental health difficulties the mother and child became increasingly distant from the father and they soon ceased engaging in activities together as a family. These circumstances, along with the mother’s continuing concerns about the father’s behaviour and functioning, precipitated the parties’ separation on 10 September 2018. Events following the parties’ separation Upon the parties separating in September 2018, the mother vacated the Suburb C property and moved with the child to live at a friend’s apartment. The father subsequently removed the mother’s access to his credit card and thereafter did not provide any financial support for the child. In the two days after the parents separated in September 2018 the mother received two text messages from the father in which he wrote about his conduct relating to drugs and his compulsive practices. Both text messages are translated into English and annexed to the mother’s affidavit.[4] The general tenor of these messages is that the father either minimises his use of drugs and engagement in compulsive activities, or deflects the blame for his behaviour on the mother and issues they experienced in their relationship. [4] Annexures “MY-5” and “MY-6” to the mother’s trial affidavit, pgs 25-32. Despite her many qualms about the father’s behaviour and his overall treatment of her and the child, for several weeks after separation the mother continued to facilitate telephone communication between the child and the father in order for the child’s relationship with the father to be maintained. The mother also took steps to organise for the child to spend supervised time with the father including in October 2018 when she instructed her lawyer to send correspondence to the father proposing supervision arrangements but no response was ever received from him. In late 2018 three separate requests were also made by the mother through her lawyer for the father to undertake drug testing. The father again provided no response to the mother and did not follow through with any of these requests. The proceedings On 19 November 2018 the mother commenced proceedings seeking parenting and property orders. Her initial proposal in summary was for the child to live with her and spend time with the father at times nominated by a contact service (“the nominated contact service”). She also sought that the father be restrained from consuming illicit substances prior to any future contact events. In relation to property the mother sought a number of financial orders including that the father transfer the Suburb C property into her sole name. At around the time she instituted proceedings, the mother stopped sending the child to school for a couple of weeks due to fears that the father would collect the child from school and withhold her in his care. The child resumed attending school in late 2018 when at the request of the mother’s solicitor the father provided an undertaking that he would not remove the child from school grounds.