Zanetti & Zanetti
[2023] FedCFamC1F 136
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zanetti & Zanetti [2023] FedCFamC1F 136
File number: SYC 6314 of 2021 Judgment of: REES J Date of judgment: 10 March 2023 Catchwords: FAMILY LAW – INTERIM PARENTING – Where the husband seeks to spend time with the child – Express wishes of the child – Application dismissed.
FAMILY LAW – SPOUSAL MAINTENANCE – Where the husband seeks to vary orders for spousal maintenance – Where the wife remains unemployed – Where the husband’s financial circumstances has not changed to warrant the variation of orders for spousal maintenance – Application dismissed.
Legislation: Family Law Act 1975 (Cth) s 83 Division: Division 1 First Instance Number of paragraphs: 36 Date of hearing: 9 March 2023 Place: Sydney Counsel for the Applicant: Mr Dura Solicitor for the Applicant: Marando Solicitors Counsel for the Respondent: Mr Kearney SC Solicitor for the Respondent: York Law Family Law Specialists ORDERS
SYC 6314 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ZANETTI
Applicant
AND: MS ZANETTI
Respondent
order made by:
REES J
DATE OF ORDER:
10 March 2023
THE COURT ORDERS:
1.That the application in a proceedings filed by the husband on 2 November 2022 is dismissed.
2.That the response to an application in a proceeding filed by the husband on 7 March 2023 to vary orders for spousal maintenance is dismissed.
3.That the husband forthwith do all acts and things and sign all documents required to provide the wife with only such access as is required to permit the wife to view only by internet access all accounts of and referrable to each of the Zanetti Entities.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zanetti & Zanetti has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Mr Zanetti (“the husband”) and Ms Zanetti (“the wife”) are engaged in proceedings relating to the parenting of their son, X born 2009 and the division of their property.
Before me are a number of applications for interim orders, most of which have been resolved by agreement. There remain three outstanding issues which have been the subject of submissions, those are the husband’s application to spend time with X; the husband’s application to vacate the orders for spousal maintenance and the wife’s application for “view only” access to the bank accounts of businesses run by the husband.
PARENTING
X, who is 13 years old, does not presently spend time with the husband who seeks orders requiring X to spend time with him in a graduated progression, initially each Saturday and each Wednesday afternoon and ultimately each alternate weekend from Friday afternoon until Monday morning and each Wednesday. The husband also seeks time on special occasions.
The mother opposes the application.
A report has been prepared by a single expert, Ms C and that report, dated 6 February 2023 has been available to the parties.
The parents separated when X was nine years old and it is not in dispute that until about January 2022, X spent time regularly with the husband.
The husband’s new partner and her two children started living with the husband in mid-2021 and a short time later, in 2021, the husband told the wife that he was no longer in a position to keep supporting her and X as he had in the past.
X has been attending a private school in Suburb B since early 2022. He is now in Year 8. Both parents signed the enrolment forms for X to attend that school and the father agreed to pay the fees. X told Ms C that he “loves” his school.
These are interim proceedings and there are disputed issues of fact as to the reason X may have stopped seeing his father. Each parent has a different explanation for that and I can make no determination here. However, Ms C has explored with X his perception of events. She reported:
It was apparent that, for considerable time, [X] enjoyed weekends at [Suburb E] with his father but he described a weekend in or around [late] 2021 which seemed to be a turning point in the level of confidence and security he felt with his father and that led to increasing reluctance to return to his father’s home. [X] said that he had not tidied his room and that he was on the phone to his mother and his father became very angry. [X] stated that his father was yelling and he, [X], began crying and wanted to return to his mother’s care. He said his father mocked and belittled him for being “weak”. [X] described getting so upset that he had difficulty breathing. [The husband] said that he had given [X] a number of warnings about being ready on time. It should be noted that [the husband] states that the descriptions provided by [X] and his mother are inaccurate and/or exaggerated.
[X] said that, in [early] 2022 his father began expressing negative opinions about his mother and suggesting that he was ‘like his mother’. He said that his father told him about the possible change of school.
It is not disputed that the husband told X about changing school although the timing may be in dispute.
Ms C reported:
[X] said that he “loves” his school. He is aware of the [motor vehicles] that his father has and views his father’s possession of the [vehicles] as his father valuing these more than his education and happiness. He associates his father’s changing attitude toward his school with his father’s new relationship and he has been resistant to engagement with his father’s new partner.
X told Ms C that his father was “nice to him prior to forming a relationship with his current partner”.
Ms C reported:
[X] said that he wants an extended break from feeling pressured, or required to, spend time with his father. He said that it has been better since having a break from seeing his father because “I’m not worried”. [X] said that, if he was made to attend his father’s home, he would find it necessary to refuse to see his father.
As a result of orders made by consent on 9 March 2023, X will remain at his school and his mother will assume responsibility to pay the school fees.
It may be that, when X has had time to process that information, his attitude to seeing his father will change. However, Ms C, in her report, set out the likely consequences of forcing X to spend time with the husband against his wishes. She said:
If [X] were forced to spend time with [the husband] at this time, against his stated wishes, conflict and incidences between them could intensify and undermine the potential for them to reestablish a better relationship. It is the opinion of the Single Expert that [X] may refuse to comply with orders and that this would place him in a situation of intensified parental conflict. He would be likely to express and experience increasing distress that would detrimentally affect his sleep, schooling and relationships.
It is difficult for parents who are dealing with teenagers who do not want to see them or move between two parents and households. While the parent can feel rejected by the child, there is nevertheless a risk that the children end up feeling rejected by the parent who may withdraw from the relationship.
Were [the husband] to respect [X’s] expressed need and desire to not be required to attend prescribed visits, it is suggested that he maintain expression of his interest and support for [X] via the telephone calls that they have, that he attend important events [X] may be involved in, and ensure [X] is invited to outings with him and to important events the paternal family may have.
There is uncertainty as to how long their relationship may take to recover or rebuild. It is difficult when litigation is still active. Although [the husband] perceives [X] as assuming an unprecedented level of control and power, [X] feels vulnerable in relation to his father’s authority and he is apprehensive of his father’s anger. If [the husband] continues to reassure [X] of his understanding and love in the face of [X’s] resistance to moving between his parents at this time, this will hasten the rebuilding of their relationship.
I am conscious of the fact that Ms C’s evidence has not been tested but there is no suggestion that she has not correctly related X’s views. Regardless of the controversy about X’s reasons, and the husband’s belief that the wife is influencing X’s views, it is not, objectively unreasonable to assume that X’s opposition to spending time with his father stems, at least in part, from his distress at being told that he will have to leave the school he loves.
It is difficult to see how making an order that X spend time with his father against his expressed wishes will help heal the rift between them. The husband will need to work on mending the relationship with his son as Ms C suggests.
The orders made on 9 March 2023 allow the husband to attend X’s school, sporting and extra-curricular activities and X is able to initiate communication with the husband as he wishes.
I do not propose to make any further order relating to X’s time with the husband and his application will otherwise be dismissed.
VARIATION OF SPOUSAL MAINTENANCE
The current orders for spousal maintenance were made on 24 February 2022 and varied by consent on 26 May 2022.
The orders provide for the husband to pay periodic spousal maintenance of $1,314 per week; the rent on the wife’s home; private health insurance and all of the costs of running the wife’s motor vehicle, including the lease payments and providing her with a petrol account. The husband now seeks to discharge all of those orders and to sell the motor vehicle which she drives.
The provisions for variation of spousal maintenance orders are found in s 83 of the Family Law Act 1975 (Cth), (“the Act”). Section 83 (2) provides:
(2)The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:
(a) that, since the order was made or last varied:
(i)the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);
(ii)the circumstances of the person liable to make payments under the order have so changed; or
(iii)in the case of an order that operates in favour of, or is binding on, a legal personal representative — the circumstances of the estate are such;
as to justify its so doing;
(b)that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;
(ba)in a case where the order was made by consent — that the amount ordered to be paid is not proper or adequate;
(c)that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.
The husband bears the onus of proving that, after 26 May 2022, either his financial circumstances, or those of the wife, have so changed that variation is justified.
The wife was not employed in May 2022 and she remains unemployed. She deposed that she has made more than 100 job applications since late 2021.
On behalf of the husband, it is submitted that, because by virtue of the orders made 9 March 2023, he will pay the wife by way of interim property settlement $667,500, she is no longer unable to support herself. I do not accept that submission. The payment of the interim amount is referrable to the wife’s application for litigation funding. She deposed to estimated future legal costs in excess of $537,000.
The husband relies on a Financial Statement sworn on 7 March 2023 and, on his behalf, it is submitted that his expenses exceed his income. He discloses an income of $4,828 per week and expenses of $5,729. However, that is not the whole story.
The husband’s income is derived from a suite of corporate entities which he controls. His real income, for the purpose of this consideration, is not what he chooses to pay himself by way of salary but the net profit of the corporate entities.
The husband relies on a report by the single expert accountant, Mr D, which was prepared in November 2022. However, that report is based on the Financial Statements of the corporate entities for the year ended 30 June 2021 and cannot be evidence of a change in the husband’s financial position after 26 May 2022.
The Financial Statements of the corporate entities for the financial year ended 30 June 2022 are not in evidence and the husband has not put forward any evidence to show that the corporate entities have suffered any significant downturn in profit.
It is not necessary for me to consider the disparity between the profit determined by Mr D in the financial years ended 30 June 2020 and 30 June 2021, and the profit which the husband disclosed to his financiers in the same period.
The husband has not demonstrated that his financial circumstances have changed since the making of the orders for spousal maintenance and his application to discharge those orders must fail.
VIEW ONLY ACCESS TO BANK ACCOUNTS
The wife seeks access to the accounts of the corporate entities limited to being able to view the accounts electronically. The husband opposes that application.
The husband contends that the wife is provided with hard copies of the bank statements and that should be sufficient for the wife to be able to monitor the accounts.
However, it is clear from the husband’s own evidence that the bank statements are not provided promptly or regularly and it appears not to be disputed, for example, that on 6 March 2023, the husband provided the wife with five months of bank statements.
The husband does not assert that there is any prejudice to him or the corporate entities if the wife is able to look at the bank accounts.
It is appropriate that she be able to do so.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 10 March 2023
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