Zemin & Kaba (No 2)
[2024] FedCFamC1F 377
•4 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zemin & Kaba (No 2) [2024] FedCFamC1F 377
File number(s): PAC 571 of 2020 Judgment of: BERMAN J Date of judgment: 4 June 2024 Catchwords: FAMILY LAW – CHILDREN – Where the two subject children live with the applicant and spend no time with the respondent – Where the parties’ now adult child lives with the respondent and spends no time with the applicant – Consideration of the children spending time together – Consideration of risk – Where the Court finds the respondent has perpetrated family violence – Where the Court finds that orders for time spending with the respondent would place the children at an unacceptable risk of psychological or emotional harm – Consideration of best interests of the children – Orders for the children to live with the applicant and spend no time with the respondent.
FAMILY LAW – PROPERTY – Modest asset pool – Where the Court considers it appropriate to take a two-pool approach – Consideration of addbacks – Where the respondent has redirected rental income – Allegations of significant post separation wastage and expenditure – Where the Court finds the funds no longer exist and have been dissipated – Contributions – Adjustment made in favour of the applicant on account of the respondent’s redirection of the rental income – Future Needs – Where the applicant has the sole care of the children – Consideration legal fees – Where the respondent receives s 102NA funding for the proceedings and the applicant is liable for her significant legal fees – Where the applicant was a victim of serious assault to which the respondent plead guilty and spent time in jail – Where the Court brings to account the legal fees as a s 75(2) factor – Orders made for a 70:30 division in the applicant’s favour.
Legislation: Evidence Act 1995 (Cth) ss 91, 140.
Family Law Act 1975 (Cth) Div12A, ss 69ZT, 4AB, 60B, 60CA, 60CC, 61DA, 75(2), 79(2), 102NA(2).
Cases cited: Ainsworth v Burden [2005] NSWCA 174
Amador & Amador [2009] FamCAFC 196
Baglio & Baglio [2013] FamCA 105
Briginshaw v Briginshaw (1938) 60 CLR 336
Fitzwater v Fitzwater (2019) 60 Fam LR 212
Grandhouse & Grandhouse [2012] FamCAFC 13
Harridge & Harridge [2010] FamCA 445
Isles & Nelissen [2022] FedCFamC1A 97
Kalant & Jordain [2021] FedCFamC1F 319
La Costa & La Costa [2007] FamCA 1176
M v M [1988] HCA 68
N & S & The Separate Representative (1996) FLC 92-655
NHC & RCH [2004] FamCA 633
Sawant & Karanth [2014] FamCAFC 235
Schorel v Schorel (1990) FLC 92-144
Truman & Truman [2013] FamCA 765
Vasser v Taylor-Black (2007) FLC 93-329
Watson & Ling (2013) FLC 93-527
Division: Division 1 First Instance Number of paragraphs: 281 Date of hearing: 4, 5, 6, 7 and 8 March 2024 Place: Heard in Sydney, delivered in Adelaide Counsel for the Applicant: Mr Rosic Solicitor for the Applicant: Sui Juris Lawyers Counsel for the Respondent: Mr Gu Solicitor for the Respondent: Solve Legal Counsel for the Independent Children's Lawyer: Mr Keserovic Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers ORDERS
PAC 571 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ZEMIN
Applicant
AND: MR KABA
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
4 JUNE 2024
THE COURT ORDERS THAT:
1.Ms Zemin (“the applicant”) have sole parental responsibility for X (“X”) born 2008 and Y (“Y”) born 2014 (collectively referred to as “the children”).
2.The children live with the applicant.
3.Y shall spend no time with Mr Kaba (“the respondent”). X shall spend time with the respondent subject to her wishes.
4.The applicant is to retain the children’s passports.
5.Order 12 to 16 of orders made 26 November 2020 be discharged.
6.The applicant shall authorise the children’s school to provide the respondent with school reports for each of the children and school photographs at his sole expense annually and the respondent shall keep the school updated as to his current address and telephone number.
7.The applicant shall notify the respondent in the event of an emergency in which the children suffer any illness, accident or other medical issue requiring hospitalisation including the nature of such, the location of the children and the details of any treating practitioner and/or hospital.
8.Within twenty-eight (28) days from the date of these orders, the respondent shall vacate the property situate at N Street, Suburb O, NSW being the whole of the land contained in Certificate of Title Folio Identifier … (“the Suburb O property”).
9.The applicant be appointed as trustee for sale of the Suburb O property.
10.Within twenty-eight (28) days from the date of these orders, the Suburb O property shall be listed for sale by auction or private treaty.
11.The applicant and the respondent do all acts and things and sign all documents and authorities necessary to list the Suburb O property for sale by auction or private treaty and in particular within fourteen (14) days of the date of these orders shall:
(a)Nominate a Real Estate Agent and Conveyancer.
(b)Instruct a solicitor to prepare a contract for the sale of the Suburb O property.
(c)List the Suburb O property for sale with the chosen Real Estate Agent.
(d)List the Suburb O property for sale by auction or private treaty at a reserve price of ONE MILLION ONE HUNDRED THOUSAND DOLLARS ($1,100,000).
(e)Execute all documents requested by the agent and the solicitor for the sale of the Suburb O property.
(f)Execute all other documents necessary to complete the sale of the Suburb O property.
PROVIDED THAT if the parties are not able to agree as to the method and manner of sale and in particular the appointment of the Real Estate Agent, Conveyancer and/or solicitor then fourteen (14) days after the nominated date for agreement, the applicant shall be empowered to do so without reference to the respondent.
12.Upon completion of the sale of the Suburb O property, the proceeds of sale shall be disbursed as follows:-
(a)In discharge of any outstanding council rates and water rates.
(b)In discharge of all mortgages over the Suburb O property.
(c)In payment of all arrears of the Westpac home loan account ending #...07.
(d)In payment of all arrears of the Westpac home loan account ending #...15.
(e)In payment of all arrears of the SMSF NAB home loan account ending #...98.
(f)In payment of any other legal costs and disbursements of an incidental to the sale.
(g)In payment of real estate agent’s commission and expenses.
(h)In payment of the conveyancer’s expenses and commission.
(i)In payment of outstanding professional fees owed by the parties to P Accountants in the payment of outstanding invoices in relation to the Self‑Managed Superannuation Fund presently in or about the sum of THIRTEEN THOUSAND AND NINETY DOLLARS ($13,090).
(j)That the remaining proceeds of sale shall be divided between the parties as follows:
(i)70 per cent to the applicant with the further sum of TWELVE THOUSAND ONE HUNDRED AND TWENTY-NINE DOLLARS ($12,129) less the sum of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500); and
(ii)The balance to the respondent.
13.In the event that either of the parties fail, refuse or neglect to sign any document or to execute any deed or instrument or writing necessary to give effect to these orders, then a Judicial Registrar or other officer of this Court is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to sign any document or execute the required deed, instrument or writings necessary to give effect to these orders.
14.Within seven (7) days from the date of these orders, Mr Q of P Accountants shall be instructed to take steps to ensure that R Pty Ltd as trustee for R Self-Managed Superannuation Fund (“the super fund”) is compliant with the relevant superannuation legislation by, including but not limited to, preparing, and lodging the outstanding tax returns, reviewing bank statements, preparing required financials and Member Statements.
15.Upon completion of order 12(e), namely the payment of the super fund NAB home loan account ending in #...98 (being the shortfall after the sale of the property located at S Street, Suburb T, Victoria which was owned by the super fund) the applicant be appointed as trustee to ensure that the super fund is wound up and that each parties’ respective entitlements shall be rolled out and paid into industry funds of their choice.
16.The respondent shall indemnify and keep indemnified the applicant from all liabilities and debts arising from the R Self-Managed Superannuation Fund and R Pty Ltd.
17.Unless otherwise specified in these orders and except for the purpose of enforcing the payment of any money due under these orders, each party:
(a)Shall be solely entitled to the exclusion of the other to all property and/or chattel in their respective possession as at the date of these orders and for that purpose this includes the following:
(i)Personal items, motor vehicles, bank, credit union, building society and other like deposit or credit accounts deemed to be in the possession of the person named as the account holder.
(b)Shall do all acts and things necessary to ensure that any bank accounts held in the parties’ joint names are closed.
(c)Shall be solely liable for and indemnify and keep indemnified the other against all liabilities attaching or relating to the property in their respective name and/or possession and all liabilities in their respective sole names.
18.The respondent is solely responsible for any debts he has at the date of these orders in his sole name or as a result of him being an officer of a corporation or the registered proprietor of a business name including liabilities he has or may have as a result of him leasing and financing motor vehicles.
19.The applicant and the respondent indemnify each other in respect of any liabilities that they have as at the date of these orders in their sole name.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Ms Zemin (“the applicant”) and Mr Kaba (“the respondent”) are unable to reach agreement in respect of parenting and property matters.
There are three children of the relationship namely, Mr F (“Mr F”) born 2005, X (“X”) born 2008 and Y (“Y”) born 2014. During the course of litigation, Mr F turned 18 years of age and is no longer a subject child of these proceedings. X is presently aged 15 years old and there is a concession by the parties that the orders sought in relation to parenting matters predominately relate to Y, aged 9.
At present, and for reasons detailed below, Mr F lives with the respondent and spends no time with the applicant and X and Y live with the applicant and spend no time with the respondent. The applicant alleges that Mr F has become enmeshed in the parties’ dispute as a result of the respondent’s behaviour.
The applicant deposes to a significant history of family violence perpetrated by the respondent including acts of physical violence, coercive and controlling behaviour including financial control. There were two significant incidents of violence perpetrated by the respondent in 2019 and 2020 which ultimately led to the respondent spending a term in jail.
The respondent is steadfast in his denial of the criminal offences notwithstanding his plea of guilty to the charges and his term of imprisonment.
By Amended Initiating Application filed 27 November 2023, the applicant seeks final orders that she have sole parental responsibility for X and Y and that they live with her. In addition, she seeks an order that the children’s names be removed from the Airport watchlist pursuant to the orders 26 November 2020. No order is proposed in respect of any time spending as between the respondent and X and Y.
The respondent seeks orders as set out in his proposed minute of order dated 8 March 2024. He seeks that the parties have equal shared parental responsibility, that the children live with the applicant and spend supervised time with him for six months, or twelve supervised sessions, such that he eventually spends unsupervised time with the children each alternate weekend from Friday after school until 4.00 pm Sunday together with half school holidays.
The Independent Children’s Lawyer (“ICL”) promotes orders as set out in their Case Outline document filed 28 February 2024. Those orders provide for the applicant to have sole parental responsibility, for the children to live with the applicant and spend no time with the respondent.
BACKGROUND
The applicant is 42 years old. She was born in Country U, moved to Australia in 1996 and was granted an Australian citizenship in 2009.
The respondent is 41 years old. He was born in Country V and immigrated to Australia in 2003.
The parties commenced their relationship in or about 2004 and were married in 2005. They separated in late 2018 when the respondent vacated the former matrimonial home but reconciled in early 2019 at which time, the respondent moved back into the home with the applicant and the children. The parties separated on a final basis on 22 November 2019 and an order for divorce was ultimately made in 2019.
The applicant deposes to a significant history of physical assaults occasioned to her between 2006 and 2014 including an incident in 2006 whereby the respondent injured her and in 2013, the respondent punched her in the head resulting in a provisional Apprehended Domestic Violence Order (“ADVO”) being issued.
However, of more relevance, are the two violent incidents that occurred in 2019 and 2020 which resulted in the respondent being charged with a breach of an ADVO and multiple other offences.
In mid-2019, the respondent accessed the applicant’s device and found intimate photos of her that she had sent to another male. The respondent concedes that upon discovering the photos, he contacted the applicant’s place of employment to ascertain who the male recipient of the photos was and that he also showed the photos to his mother-in-law and the parties’ son, Mr F.
In mid-2019 when the applicant returned to the former matrimonial home, the respondent had let himself in and confronted her about the photos. An altercation arose and the applicant alleges that the respondent slapped her, punched her in the head several times and kicked her whilst she was on the floor. The child, Y, was present during the assault.
The police charged the respondent with assault and a provisional ADVO dated mid-2019 was issued listing the applicant as the protected person and the respondent as the defendant.
In late 2019, the applicant alleges that whilst the respondent was in Melbourne, he called Mr F’s telephone and threatened to harm the applicant. The applicant asserts that she was fearful of the respondent, decided to leave the former matrimonial home with the three children and reported the breach of the ADVO to the police.
A few days later, the respondent, having returned from Melbourne, attended at the maternal grandmother’s home and the applicant alleges that he threatened to report to the police that the children had been kidnapped by the applicant. The applicant says that the respondent hacked into her mobile phone and deleted all threatening messages that he had sent. As a result, the applicant changed her mobile telephone number and contacted the police to report the further breach.
The applicant further alleges that between late 2019 and early 2020, the respondent contacted her place of employment and threatened her and her colleagues, created an email account, sent her an email enclosing the intimate photos with words to the effect of “your call how far you want to take this” and used Mr F’s phone to send the intimate pictures of the applicant, to her mobile.
In early 2020 the respondent was arrested, and he was ultimately charged with violent offences and other offences.
In early 2021, the respondent appeared in the Local Court and plead guilty and in late 2022, he was sentenced to imprisonment of which a period was the subject of a non-parole period. A final ADVO was made in late 2022 and will expire five years from the date of order being late 2027.
The respondent appealed the sentence and in early 2023, he was given a Community Correction Order, an Intensive Correction Order and was ordered to complete several online courses and community service.
The children have been subjected to various time spending arrangements since the parties separated on a final basis in 2019. At separation, the respondent remained in the former matrimonial home and the applicant reaccommodated herself with the children however, Mr F and X decided to return to live with the respondent because the former matrimonial home was situated in close proximity to the children’s school. Y remained living with the applicant.
At the conclusion of the 2019 school year, X returned to the applicant’s care and the parties agreed that X and Y would live with the applicant and spend time with the respondent each Saturday from 10.00 am until 4.00 pm and that Mr F would remain living with the respondent and spend time with the applicant each Sunday from 10.00 am until 4.00 pm.
The respondent’s time with X and Y ceased between March and June 2020 due to Covid-19 restrictions, between June and November 2020 following the respondent withholding X and between December 2020 and March 2021.
On 30 November 2021, orders were made by consent for X and Y to spend time with the respondent on Saturday for six hours and following three weeks that time increase to each alternate weekend from 10.00 am Saturday until 4.00 pm on Sunday. Orders were made for Mr F to spend time with the applicant in accordance with his wishes.
Mr F has not spent any time with the applicant in accordance with the orders and further, in 2022 when the respondent commenced his term of imprisonment, Mr F decided to live with the paternal aunt rather than the applicant.
The children spent time with the respondent in accordance with the orders until 2 April 2022 when the respondent withheld the children. An order was made for the recovery of the children and following the children being returned into the applicant’s care, time spending between the respondent and the children ceased.
X and Y have not spent any time with the respondent since he went to prison in 2022.
Notwithstanding that the children have not spent time with the respondent for two years, the applicant continues to raise concerns and asserts that X and Y do not want to spend overnight time with the respondent and that prior to April 2022, it caused them to become distressed, anxious and clingy in the lead up to handovers. There are also concerns raised about the respondent’s lack of insight into his behaviour, his ongoing coercive and control and his preparedness to undermine the applicant in the presence of the children.
However, X and Y report that they enjoy spending time with Mr F who has a particularly close relationship with X.
Notwithstanding that the respondent argues that he did not commit the acts for which he spent time in jail for and that the Court cannot have regard to sentencing remarks from another court in circumstances where the issues are in dispute, this Court is required to consider the best interests of the children. In determining whether the children will benefit from a meaningful relationship with the respondent, the Family Assessment Report writer highlights that the respondent has difficulty accepting responsibility for his own actions, has little respect or regard for the applicant and for the children’s emotional and psychological wellbeing and further, that it is unlikely that he has the capacity to prioritise the children’s needs over his own.
The Court is also required to consider whether the respondent is capable of facilitating a relationship between the children and the applicant in circumstances where there is no dispute that the children should remain living with the applicant.
The Court is therefore faced with determining what orders should be made, if any, for the respondent to spend time with the children having regard to the risks set out in these reasons whilst also balancing the children’s expressed wishes to maintain a relationship with their brother.
DOCUMENTS RELIED UPON
The applicant relies upon the following documents:
(1)Amended Initiating Application filed 27 November 2023;
(2)Notice of Risk filed 10 September 2020;
(3)Affidavit of the applicant filed 15 February 2024 (“the applicant’s trial affidavit”);
(4)Amended Financial Statement filed 28 February 2024;
(5)Case Summary Document filed 28 February 2024;
(6)Balance Sheet filed 3 March 2024;
(7)Cost Notice filed 5 March 2024; and
(8)Outline of Submissions tendered 8 March 2024.
The respondent relies upon the following documents:
(1)Amended Response to Initiating Application filed 10 September 2020;
(2)Affidavit of the respondent filed 1 March 2024 (“the respondent’s trial affidavit”);
(3)Affidavit of Mr F filed 29 February 2024;
(4)Amended Financial Statement filed 6 March 2024;
(5)Case Summary Document filed 2 March 2024;
(6)Balance Sheet filed 4 March 2024;
(7)Cost Notice filed 6 March 2024; and
(8)Outline of Submissions dated 8 March 2024.
The ICL relies upon the following documents:
(1)Case Summary Document filed 28 February 2024; and
(2)Family Assessment report of Mr W dated 20 June 2022.
The applicant and the respondent also filed a Tender Bundle prior to the commencement of the trial.
PROCEDURAL HISTORY
The proceedings were commenced by the applicant in 2020 with the matter first being listed for trial to commence on 4 October 2022. Given the history of the matter, and in particular, the respondent’s plea of guilty to serious criminal charges in early 2020 involving the applicant as a victim, orders were made pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”).
The final hearing was vacated given that the respondent was in custody awaiting sentencing.
The proceedings were transferred to Division 1 of the Federal Circuit and Family Court of Australia (“the FCFCOA”) and the matter was eventually listed for trial to commence on 4 March 2023 and then on 29 May 2023.
The respondent was able to secure legal representation with:
(1)Z Lawyers;
(2)AA Lawyers; and
(3)Solve Legal.
The respondent’s solicitors at trial were funded by way of a grant pursuant to s 102NA of the Act.
THE TREATMENT OF THE EVIDENCE
At the commencement of trial, the Court highlighted the provisions of Division 12A of the Act and in particular whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
The applicant’s contention is that the respondent perpetrated ongoing family violence.
In M v M [1988] HCA 68 (“M v M”) the High Court gave consideration to the treatment of allegations of sexual abuse. The Court considered that treating an allegation of sexual abuse as the paramount issue was an error.
In Vasser v Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind. Their Honours quoted at [51] with approval, the following passages from M v M (supra) at pages 77,080-82:-
19.…In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
20.But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds(1973) 47 ALJR 499; McKee v. McKee(1951) AC 352, at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J v Lieschke (1987) 162 CLR 447, at pp 450, 458, 462, 463; 69 ALR 647.
21.Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22.In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336, at 362. There Dixon J said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
Neither party sought that the Court dispense with the provisions of s 69ZT of the Act notwithstanding that the respondent had entered a plea of guilty to certain criminal charges and the allegations of family violence are serious.
The respondent was charged with several offences.
The criminal proceedings were heard by a Magistrate in 2021 and then in late 2022 with sentencing in late 2022.
In mid-2022, the respondent signed a Statement of Facts which included a plea of guilty to the charges of breach of AVO and some other charges.
The respondent maintained his plea of not guilty to one of the violent offences.
In late 2022, the Magistrate was satisfied beyond reasonable doubt that the respondent had assaulted the applicant. He was also found guilty of intimidating the applicant in respect of a threat to cause physical harm.
In summary, the respondent was found to have committed serious offences of domestic violence exacerbated by the breach of an AVO which according to the agreed facts statement included extensive abuse throughout nearly 100 text messages and nearly 50 phone calls with a threat to find the applicant “and beat the shit out of [her]”.
The respondent’s bail was revoked in late 2022 on the basis that the Magistrate considered that the only appropriate penalty should be a period of imprisonment.
For several of the charges, the respondent was indicatively sentenced to various periods of imprisonment.
The Magistrate determined the cumulative period of imprisonment with a non-parole period.
In the respondent’s Outline of Submission document tendered 8 March 2024, the respondent’s attempts to contextualise the criminal proceedings and his conduct as follows:
33.The respondent father does not seek to excuse his prior violence but disputes the suggestion by the applicant mother that he is abusive, controlling and prone to irrational violent outbursts. The instances of violence were disputed by the respondent father as being false or overstated, and the circumstances surrounding the major incidents arose in moments of heated emotion between the respondent father and applicant mother. However, it is acknowledged that the father has been convicted of serious physical violence offenses […]. It is submitted that such risk is not one of unabated concern, given by the following factors:
33.1 The injuries sustained by the mother were of a relatively lower degree.
33.2The mother and children have continued to live with the father under one roof following serious allegations of physical violence.
33.3The mother sought reconciliation with the father about two months after the incident, which indicates her lesser fear of the father.
33.4The credibility of the mother is a serious factor in these instances; evidence has shown that the mother was slow to answer questions in cross-examination and has acknowledged lying in previous interactions with health professionals or work colleagues.
33.5For the major incidents that occurred in 2019, which appears to involve relationships with other parties, the allegations and the mother’s version of the major incidents have been inconsistent, and her reconciliation efforts on multiple occasions are contrary to the seriousness of the allegations she made against the father.
33.6For non-major incidents, the mother’s credibility is also of particular concern, lacking evidence to support her version of events, which is especially the case with the mother’s inconsistent statements reflecting the family’s love and thankfulness to the father.
…
The respondent deals with the criminal charges and the criminal trial at paragraphs [116] to [210] inclusive of his trial affidavit.
A summary of the respondent’s position is that he considers he received poor and unprofessional legal advice. In particular, he contends that his new lawyer and counsel, persuaded him to plead guilty to all of the charges contrary to the evidence, which he considered was insufficient to sustain a finding of guilt.
The respondent complains that the Magistrate did not conduct a thorough consideration of evidence in particular, a medical report that did not corroborate the allegations of violence.
The respondent relies upon annexures to his trial affidavit including transcript of the criminal proceedings (‘MK-20’), text message communication from the applicant to the respondent between August and November 2019 (‘MK-21’), Local Court transcript (‘MK-22’) and in the respondent’s tender bundle, further transcript including the sentencing remarks of the Magistrate.
Section 91 of the Evidence Act provides:
Exclusion of evidence of judgments and convictions
(1)Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2)Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
However, s 91 of the Evidence Act is not a prohibition on the admission into evidence of a judgment in other proceedings. Rather, as the NSW Court of Appeal held in Ainsworth v Burden [2005] NSWCA 174 as per Hunt AJA (with Handley JA and McColl JA agreeing):
109.It is clear that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts. If they are admissible for some other purpose — as they are in the present case, in order to demonstrate that they would have persuaded any honest-minded person that the defendant’s allegations were false — they may not then be used to prove the existence of those facts, a consequence which would otherwise have flowed from s 60 of the Evidence Act…
(Emphasis as per original)
In the Full Court decision of Grandhouse & Grandhouse [2012] FamCAFC 13, it was said as follows:
113.Counsel for the mother’s submissions appeared to proceed on an assumption that the trial Judge was bound by the findings made in the Local Court, which would include accepting that the father had not acted in self-defence. On the other hand, counsel for the father submitted that s 91 of the Evidence Act 1995 (Cth) (“the Evidence Act”) prevented the Court from making any use at all of those findings.
114.Although counsel for the father did not have the opportunity to defend his submission, we doubt this proposition is valid in proceedings such as these, which were conducted pursuant to Division 12A of Part VII of the Act. Subsection 69ZT(1) of the Act provides that Part 3.5 of the Evidence Act (of which s 91 forms part) does not apply to such proceedings.
115.Although we do not have the benefit of submissions, we consider that s 69ZX(3) of the Act governs the admissibility and effect of the evidence given, and the findings made, in the Local Court. That subsection provides that a court “may” receive in evidence the transcript of evidence in proceedings in another court and “draw any conclusions of fact from that transcript that it thinks proper” and, in addition, “adopt any recommendation, finding, decision or judgment” made by that court.
116.Assuming, as we do, that s 69ZX(3) applied, it was open to the trial Judge to receive into evidence the transcript of the Local Court proceedings, and the judgment given by the Magistrate. However, the use of the permissive “may” makes plain that the trial Judge was not bound to adopt all of the Magistrate’s findings. Accordingly, to the extent that the trial Judge may not have accepted those findings, it was open to him to do so.
(Emphasis as per original)
In the present case, it is the respondent that seeks to rely upon the transcript of proceedings arising from the Local Court hearing. The respondent relies upon the transcript, not to reinforce the correctness of the guilty pleas and the findings of guilt in respect of the serious charges but rather to support the contrary contention namely, that the reasoning of the Magistrate was flawed, and that the respondent was induced to enter pleas of guilty to the lesser criminal charges against his better judgment.
Whilst no argument of issue estoppel was raised by the applicant (see Schorel v Schorel (1990) FLC 92-144) the following observation in Kalant & Jordain [2021] FedCFamC1F 319 by Gill J has application:
10.Identifying (at [94]) from Carl Zeis Stiftung v Rayner and Keeler Ltd (No 2) (1967) 1 AC 853 that the overriding consideration in the application of an issue estoppel is that it be applied to work justice, the Full Court, however, did not reject the notion that the parties may be considered bound by a previous finding:
95. However, we would also emphasise that it should not be thought that every inconvenient finding of fact can be avoided in later proceedings. We can envisage cases where findings of fact from a previous trial become incontrovertible – apart, perhaps, from an appeal with those findings based on the admission of further evidence on appeal.
LEGAL COSTS
The applicant’s legal costs are set out in a Cost Notice filed 5 March 2024. As at 5 March 2024 the applicant has incurred professional fees and disbursements to date in the sum of $162,722.85. It was anticipated that the applicant’s future costs (including preparation for hearing, solicitor’s attendance at final hearing and counsel fees) would be in the further sum of $65,842 making her total costs about $227,842.
The respondent’s costs are set out in a Cost Notice filed 6 March 2024. At the time that the respondent instructed his former solicitors, the total of his costs incurred was estimated to be $116,000. Thereafter, from 8 April 2022 being the date of an order made pursuant to s 102NA(2) of the Act, the respondent has incurred no fees.
Even though the proceedings also encompass property settlement and division, upon first consideration, the respondent has received funding pursuant to the s 102NA scheme arising out of the criminal proceedings which found that the respondent had engaged in serious and entrenched family violence whereas the applicant is responsible for her own legal fees.
ORDERS SOUGHT
The applicant seeks orders summarised as follows:-
(1)That the applicant have sole parental responsibility for the children.
(2)That the children live with the applicant.
(3)That the applicant is to retain the children’s passports.
(4)That the Australian Federal Police remove the children’s names from the Airport Watch List.
(5)That within 28 days from the date of the orders, the applicant be appointed as trustee to effect the sale of the property situate at N Street, Suburb O, New South Wales (“the Suburb O property”).
(6)That after the payment of all liabilities and outgoings in respect of the Suburb O property the net balance of any remaining proceeds shall be paid to the applicant.
(7)That each party shall be entitled, to the exclusion of the other, all property in their respective possession and control including but not limited to personal items, motor vehicles, bank accounts, credit union accounts, building society and other like deposits.
(8)That the parties appoint Mr Q, accountant, to take all necessary steps to ensure that R Pty Ltd as trustee for R Self-Managed Superannuation Fund (“the super fund”) is compliant with relevant legislation.
(9)That upon payment of all arrears of the super fund NAB Home Loan account and upon the super fund being considered compliant, if necessary, the applicant be appointed as trustee to ensure that the super fund is wound up and that each party receives their respective member entitlements.
The respondent seeks orders summarised as follows:[1]
(1)That the parties have equal shared parental responsibility for the children.
(2)That the children live with the applicant.
(3)That the children spend time with the respondent after either a period of six months or twelve sessions of supervised time of up to two hours in each alternate week.
(4)That following the completion of order 3, the children spend time with the respondent from after school on Friday (or 4.00 pm) until Sunday at 4.00 pm during even numbered weeks of the year and for one half of school holidays.
(5)That the Suburb O property be placed on the market for sale and that the net proceeds be divided equally between the parties.
(6)That within 60 days of the date of the order the parties shall, in equal share, cause to be paid out the liabilities in respect of BB Bank, CC Finance and DD Finance credit cards.
THE EVIDENCE
[1] Respondent’s Proposed Minute of Order dated 8 March 2024.
The applicant
The applicant relied upon the evidence contained in her trial affidavit filed 15 February 2024. The applicant was not challenged in respect of her evidence outlining the increasingly aggressive and violent behaviour and conduct of the respondent.
The applicant agreed that she was a practicing a religion and would attend religious activities approximately once a month and sometimes with the children. As such, whilst the applicant is a vegetarian, she agreed that she did not object to the children eating meat when not in her home.
The gravamen of the applicant’s evidence was that over time, the respondent was controlling of her contact with her family and engaged in verbal and physical abuse towards her. The applicant was not challenged on her assertion that the respondent would often refer to her as “a bad wife”.
The applicant alleges that the respondent would check her phone and she could only go out if he agreed. Even when together, the applicant states that the respondent directed her not to speak to anybody without his permission. She was accused of being flirtatious, a transgression as perceived by the respondent, that would result in physical and verbal abuse. Again, the applicant was not challenged.
The applicant alleges that it was a regular feature and tactic of the respondent following an argument that she should leave the home and move to her parents’ place.
The applicant alleges that upon returning home, following a work-related dinner in early 2013, the respondent accused her of engaging in an inappropriate relationship. The respondent slapped the applicant and then later punched her to the face and body. The applicant asserts that she sustained injury following the assault evidenced by multiple bruises. The conduct of the respondent was reported to the police. The applicant then left the home the following day with the children and stayed at her parents’ home.
It is further alleged that the respondent took the applicant’s car from the street. The respondent was arrested and an Apprehended Violence Order (“AVO”) was put in place. When the applicant returned to her home, she found that the respondent had damaged the car tyres to stop the car being driven.
The evidence given by the applicant was credible and was not the subject of significant challenge.
Despite the parties separating in late 2018, there was a relatively brief reconciliation in early 2019.
Even after the divorce order was made in mid-2019, the parties continued to live under the same roof and the evidence of the applicant is that she was controlled by the respondent and not able to refuse his sexual demands.
In mid-2019, the applicant states that she received a phone call from the respondent and was told to come home immediately because he had discovered messages on her phone to a woman that the applicant alleges the respondent was having a relationship with up until early 2019. The respondent expressed concern that he had also discovered a naked photo of the applicant that she had sent to another person following separation.
The applicant contends that she arrived home between 8.00 pm and 9.00 pm and was thereafter assaulted by the respondent. The applicant alleges that the respondent then further assaulted her. The assault was witnessed by Y.
After the assault the applicant says that the respondent took her phone and iWatch.
The consequences of the assault were serious. The applicant had difficulty maintaining balance, was sick and vomited and she was observed to crawl to the toilet. As a result, the applicant’s mother took her to the hospital and a statement was made to the police.
The applicant left the home in November 2019. Her evidence is that upon the respondent’s return from a work commitment in Melbourne he went to the applicant’s mother’s home and threatened her. The applicant complains of a litany of abusive emails and text messages sent through the children’s mobile phones.
Thereafter, the applicant alleges that there were numerous breaches of the AVO with the respondent’s conduct escalating such that in early 2020 he forwarded naked images of the applicant to a number of family and friends via Mr F’s mobile phone.
The applicant’s evidence of the respondent’s conduct between late 2019 and early 2020 forms the basis of the criminal charges.
The applicant’s evidence also expressed concern at the continuing conduct of the respondent in contacting the children’s school and threatening to change Y’s school. The applicant’s evidence also referred to communication from the X’s school principal that the respondent had attended and made contact with the school on a number of occasions and had indicated that he would enrol the children at a private school and that the applicant would not be able to find them.
The applicant was not challenged as to the information she had received from the school principal nor her understanding of the frequent and aggressive interaction of the respondent with the children’s school.
An aggravating aspect of the allegations directed against the respondent was his involvement with Mr F. Whilst Mr F was intended to be called by the respondent to give evidence in support of the respondent’s orders sought, he did not attend.
The applicant considers that her relationship with Mr F is effectively non-existent and became so after the respondent shared naked photos of her with him.
The clear assertion by the applicant is that the respondent would forward threatening communication to the applicant via Mr F’s phone.
Orders were made on 26 November 2020 that provided for Mr F to live with the respondent and spend time with the applicant each Sunday from 11.00 am to 4.00 pm and for X and Y to live with the applicant and spend time with the respondent each Saturday from 10.00 am to 4.00 pm. The intention of the order is that the siblings would be reunited.
I accept the evidence of the applicant that for a significant period of time she complied with the order, but that Mr F did not spend time with her.
Ultimately, the arrangements in respect of X and Y spending time with the respondent came to an end following further threats by him that the children would not be returned and that they may well be attending a different school.
The evidence of the applicant was credible and she was not challenged as to her narrative of the respondent engaging in entrenched family violence and coercive and controlling conduct. In particular, the applicant’s evidence was entirely consistent with the particulars of offending consequent upon the respondent pleading guilty to charges of contravene an AVO, Crimes Act 2007 offences involving domestic and personal violence and the use of a carriage service to harass, menace or offend.
Of significance is that the applicant’s evidence that formed the basis of the further serious charges of domestic and personal violence, was consistent with the evidence and sentencing remarks of the Magistrate and were not the subject of successful challenge.
The applicant raised the issue of child support and in particular, information received by her consequent upon an objection to an assessment of child support in October 2021.
Despite the contents of the material provided by the respondent as to disputed income and assets of the applicant, there is a challenge to the veracity and provenance of emails that the respondent relied upon to support Mr F attending a private school. The applicant denies being the author of any emails sent.
The applicant was not challenged on her position that the respondent had made a false representation. The applicant gave credible and reliable evidence and was prepared to make concessions when it was appropriate to do so.
The respondent
The respondent gave evidence that he is not currently employed but remains living in the Suburb O property. Of more significance is the respondent’s admission that he has not paid the mortgage for three years and given his current circumstances, there is little likelihood that he would resume.
At the commencement of the respondent’s evidence, he still sought that the applicant transfer her interest in the Suburb O property to him. At the conclusion of his evidence, the respondent conceded that it was inevitable that the property be sold.
The overarching position adopted by the respondent was that he has never assaulted the applicant. By reference to a Family Assessment Report prepared by Mr W (“the family consultant”) dated 27 June 2022, Mr W records the denial by the respondent that he had engaged in family violence and further that any allegations made by the applicant were fabrications, that he had been “set up” and that she had played the “woman’s card”.[2]
[2] Family Assessment Report dated 27 June 2022 at [104].
The respondent agreed with the report writer that he had sent a message to the applicant in the following terms: “I’m going to find you and beat the shit out of you”.[3] His explanation was that because he could not see the children, he became very upset, he was jet lagged and he snapped.
[3] Family Assessment Report dated 27 June 2022 at [107].
The respondent was challenged as to the nature of his relationship, if any, with Ms EE and a further person known as “[Ms FF]”. The applicant’s contention is that the respondent had been engaged in an intimate relationship with both women but in particular with Ms EE. The issue concerns money forwarded by the respondent to Ms EE allegedly for her rent for premises at GG Street, Suburb HH. Exhibit “2” is a residential tenancy lease agreement for the Suburb HH property dated early 2014. The respondent’s evidence was unconvincing as to both the extent and nature of his relationship with Ms EE and the further person known as “[Ms FF]” together with his reasons for entering into a tenancy agreement.
The report writer asked the respondent why he had showed an intimate photo of the applicant to her mother. It was evident from his response that either he did not think it significant given that he stated she laughed or that it was intended to embarrass and upset the applicant. The respondent’s evidence that it was only now he realised that his conduct in circulating the image of the applicant was inappropriate and hurtful, did not impress.
In addition to the Suburb O property, the parties held an interest in a property at JJ Street, Suburb KK, Queensland (“the Queensland property”) and a further property at S Street, Suburb T, Victoria (“the Suburb T property”) which formed part of the asset base of the R Self‑Managed Superannuation Fund (“the super fund”). In September 2022 it came to the attention of the applicant that the loan repayments in respect of the Queensland property were in default.
On 1 December 2022 the applicant filed an Application in a Proceeding seeking orders that the two properties be sold. Orders were made for the sale of the Queensland and Suburb T properties on 23 December 2022. A further order was made that the super fund be joined to the proceedings.
Upon further search it was discovered that the super fund had been deregistered due to non‑compliance issues but in particular, the non-payment of company fees and charges. Simply put, the super fund was deregistered.
On 16 March 2023, an Application in a Proceeding was filed by the applicant who sought orders to cause the super fund to be reinstated thereby enabling the receiver who had been appointed to sell the Suburb T property, to comply with the orders made.
On 21 April 2023, extensive orders were made that reinstated the super fund and placed the Suburb T property on the market for sale. An accountant was appointed to ensure that the super fund was compliant, that the Queensland property be sold and that the respondent pay the full amount of all monies in arrears on the mortgages secured against the Suburb T property. If the respondent failed to comply with the orders, a further provision provided for the applicant to be appointed as the trustee for sale of the Suburb T property.
After some difficulty and delay, the Suburb T property was sold in early 2024. The applicant alleges that the respondent resisted the sale of the property and further orders were required from the Court before sale and settlement could take place.
Upon further investigation as to the extent of the arrears, it was revealed that the rent in respect of the Suburb T property was being paid into an account in the name of the respondent rather than the existing account linked to the super fund.
The contention of the applicant is that the respondent diverted rental payments in the sum of the $31,521 to an account controlled by him rather than to the super fund’s bank account.
The respondent conceded that the rental payments had been diverted but it was his position that the money was used to, in part, pay some of the mortgage arrears, other household expenses and the rental accommodation either with or for the respondent’s friend for a period of between three and six months.
The applicant conceded that between May 2021 and July 2023, he retained the sum of $19,771.18.
The respondent’s evidence on this issue was unreliable and unsatisfactory. Initially he was not prepared to concede that there had been any diversion of rental payments and when ultimately the evidence in support of the respondent controlling rent money that should have gone into the account attached to the super fund was presented, the explanation given was inadequate.
The respondent conceded that the last time he had contributed his income into the joint account was in April 2018.
Given the level of prevarication in the respondent’s evidence as to the status, if at all, of any prior relationship he may have had, the respondent was confronted with his evidence in the Local Court as follows:
Question: No I’m just asking what you said and what was actually in your mind.
Answer: So as I said
Question: Did you end a relationship with a lady so that you could reconcile the relationship with [Ms Zemin] so you could be with your kids. Did that happen?
Answer: I don’t recall exactly like that, but that is the …
Question: That’s what you told the police.
His Honour: In all fairness, he then goes on and says another reason for why he broke off.
Prosecutor:Yes, that’s right. That’s the next question your honour.
Question:Did you make a decision to reconcile with your wife, [Ms Zemin], and end a relationship with another lady? Did that happen.
Answer:So the relationship ended before, but then I end up reconciling with her. That’s how it happened.
Question:With [Ms Zemin].
Answer:Yes. Again, that’s a request at her request.
Question:You told the police that [Ms Zemin] was calling your partner at that time, trying to cause trouble. Is that true.
Answer:She called many times in the past, yes. And, from, from memory, there was a subpoena done …
The respondent conceded that the applicant never controlled or had access to the joint account hence the control of the family funds was entirely under his control.
As considered, the respondent has paid $116,000 in legal fees to his former solicitors before being able to access funding pursuant to s 102NA of the Act.
The respondent agreed that he was able to pay his legal fees from monies borrowed from his aunt, possibly from rental income in respect of the investment properties and from other funds not disclosed.
It was put to the respondent that in 2006 he injured the applicant requiring hospitalisation. The respondent denied that he had caused the injury.
The respondent did not recall the assault, as alleged by the applicant, occurred when she returned from a work function allegedly smelling of smoke. The particulars of the alleged assault were put to the respondent.
The respondent conceded that he continued to send threatening emails to the applicant in late 2019 and in particular, that he distributed an intimate picture of the applicant.
The evidence of the respondent was inherently unreliable. He did not concede readily that he had diverted rental income when it was apparent on the face of the documents that he had done so. No credible justification was given for the respondent’s conduct in disseminating intimate photos of the applicant other than to humiliate and cause her distress and anxiety. The initial reluctance to concede that he had been in a relationship with Ms EE was entirely undermined by his evidence on oath in the Local Court.
Whilst I am entitled to bring to account the transcript and reasons for judgment in the Local Court, the evidence of the applicant when subjected to a consideration of s 140 of the Evidence Act is such that I am readily satisfied on the balance of probabilities that the various allegations of family violence and in particular, those matters to which the respondent was found guilty either by his own plea or by the determination of the Magistrate, are easily satisfied.
Where the evidence of the applicant and the respondent contradict, subject to other evidence that provides adequate corroboration, the evidence of the applicant is to be preferred.
The report writer
Mr W (“the report writer”) is an accredited mental health social worker and child and family consultant/ therapist. He has experience as being a Social Worker for nearly 30 years and extensive experience in the preparation of Family Assessment Reports. For a number of years he has been employed as a private Child and Family Consultant in Sydney specialising in the preparation of family reports.
By consent orders made on 30 November 2021, the report writer was appointed as a single expert to undertake and prepare a Family Assessment Report. The Family Assessment Report dated 20 June 2022 (“the report”) indicates that the report writer met with the parties and the children on 12 April 2022 as well as the maternal aunt and the maternal grandmother. Interviews were conducted as well as observations between the respondent with each X and Y.
In interview the report writer records that the respondent alleged that the maternal aunt was abusive towards him and had made sexual advances.
The respondent also complained of the maternal grandmother as a person having power and influence over the applicant in particular, in terms of an obligation that the applicant and the respondent would attend religious ceremonies. The respondent referred to the family’s adherence to religion as a cult.
Relevant to the serious allegations of family violence raised by the applicant, the respondent denied hurting the applicant in 2006, and whilst conceding that the applicant had sustained serious injuries in 2013, he did not know how it had occurred.
For his own part, the respondent alleged that the applicant accused him of having an affair and attacked him during the night by attempting to strangle him. He apparently made a complaint to the police however, they considered that he was the perpetrator, and he was subsequently arrested for breaching an AVO.
The respondent presented to the report writer as a victim and made light of the applicant’s allegations by his assertion that she was playing “the ladies card”.
The report writer records the respondent’s view of the applicant’s parenting capacity as follows:
97.Throughout his interview, [the respondent] made a number of disparaging statements and complaints about [the applicant] and her parenting capacity. By way of example, [the respondent] said that [the applicant] did not pack enough clothes for the children if they went out as a family, it was difficult to get [the applicant] to leave on time in the morning if they were going out as a family, she was dismissed from work for hurting a child and she failed to inform him, she hurts their children when angry (“she slapped the children many times”), she has difficulty explaining to the children if she wants them to do something for her, she yells at the children “super loud”, and she withheld physical affection from [Mr F] and [X]. [The respondent] asserts that the children are “so scared” of [the applicant] and that her attitude towards the children is “totally anger driven”.
The respondent agreed that he had knowledge of naked photos of the applicant that he stated he found on her iWatch.
The respondent said that it was Mr F who saw the photos first and that he sent them to the maternal grandmother and maternal aunt. The respondent denied that he had sent the photos but conceded he was angry with the applicant upon discovering that she was having an affair. He conceded that he had shown the maternal grandmother the photos of the applicant but that she did not seem overly concerned.
The respondent is recorded as denying the applicant’s allegations of family violence and it was his view that she was a person who told many lies. He also denied that he had behaved aggressively towards Ms EE when confronted with information apparently received from a police report.
Consistent with the respondent’s evidence, he conceded that he had sent a message to the applicant threatening that “I’m going to find you and beat the shit out of you”. He denied that he intended to carry out the threat and blamed his remarks on being “jet lagged”, “tired” and making a poor spur of the minute decision.
The unfortunate consequence of the circumstances in which the parties now find themselves is that Mr F remains living in the primary care of the respondent whereas X and Y live with the applicant.
In interview, Mr F was complementary of the parenting capacity of each of the parties and whilst his preference is to live with the respondent, given what he considered was the less strict parenting regime in the respondent’s home, if X and Y were able to spend more time with the respondent, he would spend more time with the applicant.
Mr F considered that he had a close relationship with his sisters, in particular X, and it is likely that this consideration underpins his preparedness to engage with the applicant.
Mr F is now 18 years of age and was to be a witness in support of the respondent’s orders sought. Mr F was not called. The report writer records that Mr F was not disparaging of the applicant, did not consider that either party had been physically abusive to him or his siblings and in summary Mr F considered that the applicant was responsible, religious and supportive.
In interview, X recalled that there was arguing and yelling between the parties but that she did not see either party behave in a violent or aggressive manner towards the other.
X recalled the interim arrangements following separation when she and Y spent every Saturday with the respondent from 10.00 am to 4.00 pm. She also recalled that the respondent had spoken to her prior to interview with the family consultant urging her to say that she wanted to spend equal time with the parties.
As at the date of the family assessment, X had spent some overnight time in the respondent’s care. Broadly speaking, X did not consider that there were any adverse issues, but she felt anxious when the respondent would speak to her about the applicant, the Court proceedings and the respondent’s preferred outcome namely, that she spend equal time with the parties.
It was apparent that X was distressed and uncomfortable about the respondent’s proposal and was troubled by the respondent’s ultimatum that if she decided to live primarily with the applicant, then the respondent would have little to do with her in the future.
Y was seven years of age at the date of the interview. Similar to the concerns expressed by X, Y did not want to stay with the respondent for extended periods and was concerned that if she saw the respondent he would keep her against her will.
Y expressed fear when the respondent would shout and become aggressive whereas she was not fearful of the applicant.
The differing views of the parties as to whether X and Y should maintain a vegetarian diet remained an area of conflict. In the applicant’s home X and Y do not eat meat whereas in the respondent’s home they feel forced to eat meat.
The report writer considered that the presentation of the applicant in the assessment process together with what was considered to be a consistent narrative, lends weight to the veracity of the applicant’s allegations that the respondent perpetrated coercive controlling family violence against her.
At the time of the assessment the Local Court proceedings had not yet resolved.
The report writer summarised the impact of family violence on each of the parties, but in particular the children as follows:
214.If [the applicant]’s allegations are accurate, then, from an emotional and psychological perspective, [the respondent] has difficulty understanding or accepting, or has no regard at all, to the feelings and needs of others, he lacks empathy for others and relates to others with an authoritarian and dominating/domineering attitude and style, he prioritises his own needs over others, and he eschews and obfuscates from taking responsibility for his actions, such as the statements made by him about being upset, jetlagged and tired when he threatened to physically harm [the applicant]. He also appears to hold and display entitled and chauvinistic beliefs and attitudes. There is a significant concern and risk to the children that [the respondent] will undermine [the applicant]’s parenting and that his attitudes, impulse control and interpersonal difficulties and emotional dysregulation, will negatively impact the children and lead to poor role modelling. Parents are their children’s most important and influential role models and there is a risk that [Mr F] could adopt [the respondent]’s negative views about [the applicant] (and possibly women more generally) and [X] and [Y] could learn that it is acceptable to be treated with abuse and disdain in intimate relationships.
A further concern raised by the report writer was that if there is some factual support for the applicant’s allegations of serious physical assault perpetrated by the respondent, the nature of the conduct appears to have increased in intensity possibly explained by the respondent losing control and being consumed by rage.
The report writer considered the views of the children. In respect of Mr F’s decision to cut himself off from the applicant, there was little evidence to support that decision. Rather, the report writer considered that whilst Mr F presented as mature, thoughtful and considered, he was likely substantially influenced by the respondent’s position that unless X and Y were permitted to resume a relationship with him, Mr F should not engage in a meaningful relationship with the applicant.
X was ambivalent in respect of the relationship with the respondent and whilst she did not speak about the respondent in a way that suggested she had been influenced by the applicant and/or the extended maternal family, X’s reluctance to engage with the respondent was likely to be based upon her own observations of the respondent’s conduct in making her change her clothes because they were inappropriate, old and ugly.
X’s preparedness to spend time with the respondent was likely motivated by her desire to engage with Mr F.
The report writer considered that if X and Y did not spend time with the respondent this would provide them with the best level of protection from psychological and emotional harm but would also result in significant loss arising from an absence of a relationship with Mr F.
The report writer considered that the respondent had limited insight as to the level of psychological harm that could be experienced by the children by his conduct and negative attitude towards the applicant. The summary of presentation of each of the parties is highlighted as follows:
257.[The applicant] presents as wanting what is in the children’s bests interests. She has reconsidered her proposal for [Mr F] to live with her based on his resistance to see or spend any time with her. Whilst she still holds concern for [Mr F’s] emotional and psychological wellbeing in [the respondent]’s care, her change of proposal suggests that she is mindful of not wanting [Mr F] to feel forced into time with her against his wishes. In this respect, [the applicant] has demonstrated a capacity to prioritise [Mr F’s] immediate needs over those of her own whilst not being rejecting of him because of the hurt and pain she is experiencing due the breakdown of their relationship.
258.Whilst [the respondent] asserts that he wants the children in his care equally so that he can develop better relationships with them and have more of an influence over their lives, he presents as believing it his inalienable right to have the children live with him in such an arrangement. It is also probable that he is highly motivated by a sense of injustice about [the applicant] having [X] and [Y] in her care for the majority of time and wanting to exact some sort of retribution on [the applicant] for leaving the relationship, making family violence allegations against him and for, what he perceives to be, shifting power from him to herself.
The recommendations of the report writer hinge upon whether there is credible evidence that the respondent engaged in coercive controlling family violence. If so, then the report writer considers that X and Y would be exposed to serious emotional and psychological risk whereas if no finding of family violence is made then there should be no impediment to X and Y spending time with the respondent as was occurring in early 2022, with the potential for the time to increase as the children got older.
At the time of trial and the report writer’s evidence, the outcome of the Local Court proceedings was well known.
The report writer considered that there had not been time spent between X and Y with the respondent for some time and given that their most recent expression of their wishes is that they do not want to spend time with the respondent, significant weight should be given to the expressed position of X with slightly less weight to the expressed position of Y.
Unless the respondent was able to accept that his behaviour was unacceptable, demeaning and damaging in particular to the children and if he was not committed to reform and proper rehabilitation, a necessary consequence would be that X and Y would not change their attitude towards him and it may not be in their best interests to do so. The evidence of the report writer was not the subject of effective challenge and I consider that his evidence should be given considerable weight.
STATUTORY FRAMEWORK
I consider it necessary that I adopt the approach that considers the practical reality of the separate parenting proposals of the parties.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties, in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act, are to be considered and if more weight is to be given to one or more of the matters raised, then it must be the subject of delineation and comment;
(7)Section 61DA of the Act requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard to the matters as set out in s 61DA(2) which would rebut the presumption if a person or persons living with the child has engaged in:-
(a)abuse of the child or another child who, at the time, was a member of the parents’ family, (or the other persons family); or
(b)family violence.
(8)Section 61DA(4) of the Act provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The applicant seeks an order for sole parental responsibility for X and Y and that they live with her and spend no time with the respondent.
The respondent seeks an order for equal shared parental responsibility for X and Y, that they live with the applicant and after a period of supervised time, spend time with him each alternate weekend from after school on Friday to 4.00 pm on Sunday and one half of school holidays.
I have regard to the considerations pursuant to s 60CC(2A) of the Act. The gravamen of the proceedings focuses upon the allegations of the applicant that the respondent engaged in coercive control and family violence that comprised serious physical assault and controlling conduct resulting in the respondent being charged and convicted of serious criminal offending.
The applicant considers that the respondent presents as an unacceptable risk of psychological and emotional harm to the children but in reality, involving the child Y who is currently 9 years of age as opposed to X who will soon be 16 years of age.
PARENTING CONSIDERATIONS
Meaningful relationship
As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and the absence of such a relationship had “the potential to cause [the child] harm in the long term”.
As considered, the Court is required to focus on the practicality of each of the parties’ proposals and to consider the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
As properly and appropriately summarised by the report writer, the focus is upon whether the respondent engaged in conduct consistent with serious physical violence and coercive control. Whilst the views as expressed by the children but now, in particular, Y is that she does not want to spend time with the respondent, it is likely in the absence of the purported history of family violence that there would be advantage in a relationship resuming.
As has already been observed, Mr F and X are able to determine their own arrangements in respect of each of the parties acknowledging that there is evidence to suggest Mr F would wish to spend more time with his sisters and therefore the applicant but is not encouraged to do so by the respondent’s opposition to such an outcome unless and until X and Y resume a relationship with him.
I consider that a chance of a meaningful relationship may well benefit the children but in particular, Y, providing it is safe for it to occur and is practically possible.
Are the children at risk
In Harridge & Harridge [2010] FamCA 445 Murphy J, referred to N & S & The Separate Representative (1996) FLC 92-655, and proceeded to adopt the following list of inquiries with respect to risk assessment and analysis:-
73. …
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
(B Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569).
As discussed by the report writer, the risk to the children arises from the consequences of their involvement in family violence and the potential for a child to consider that aggressive physical conduct and coercive control is a normal aspect of parenting and future relationships.
At present, X and Y do not wish to spend time with the respondent, are fearful of his conduct and increasingly resistant to the potential denigration of the applicant even though they are keen to resume a sibling relationship with Mr F.
Family violence
Section 4AB of the Act came into effect on 7 June 2012 and significantly broadened the former definition of family violence. Section 4AB states:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
(Emphasis as per original)
The definition includes examples of particular behaviour but is not intended to be exhaustive. It is noted that there is no requirement in the definition that a victim of family violence experience fear. The definition has both subjective and objective elements.
In Amador & Amador [2009] FamCAFC 196 the Full Court held:-
79.… Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission ...
The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have the evidence of assault accepted.
The issue of family violence and findings in regard thereto was considered by the Full Court in Sawant & Karanth [2014] FamCAFC 235 where the Full Court said:-
37.In Amador itself this Court referred to the fact that the trial Federal Magistrate had held that she was " ... unable to make a finding that the father perpetrated the specific acts of violence alleged by the mother upon her... ". Their Honours considered at some length what was said by the High Court in M v M (1986) 166 CLR 69 (a case involving serious allegations of a different type - child sexual abuse) and, having done so, said:-
87.The above passage from the High Court is sometimes quoted to support an argument that it is unnecessary for a trial judge to make positive findings in relation to allegations, inter partes, of assault and other serious matters of domestic violence. Consequently the Court is urged not to allow any exploration of any such allegations. A close reading of the decision makes it apparent that is not what fell from the High Court.
88.It is clear from the decision of the Full Court in A v A (1998) FLC 92-800 that, in appropriate cases, it may be important to make findings of this nature if they are available and necessary to determine what is in the best interests of the child. It is important to note that A v A was not a case where allegations of abuse of children was made. The allegation was that the father had attempted to murder the mother. The Full Court said in A v A:
3.22 We consider that his Honour's approach was inappropriate. Whilst it is correct to say that the Family Court is not a criminal court, and that its primary task is not to determine guilt or innocence, that is entirely different from an approach which declines to examine that issue at all. The whole emphasis of the decision of the High Court in M and M is its identification of the essential issues in cases of this sort as being whether the evidence establishes "an unacceptable risk".
(Emphasis as per original)
Later, the Full Court went on to say:-
44.… the High Court said in the following passage in M v M (above, at 76) noting that what was there said about allegations of child sexual abuse have been held by this Court to apply equally to allegations of violence (Amador, above; A v A, above). The resolution of the mother's allegation of family violence were:
... subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegations of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
The Briginshaw Principle
The Briginshaw principle is reflected in s 140 of the Evidence Act which provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
In the well-known passage from Briginshaw v Briginshaw (1938) 60 CLR 336 Dixon J stated at page 361-362:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or the facts to be proven. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by in exact proofs, indefinite testimony, or indirect inferences.
In considering the split decision in Fitzwater v Fitzwater (2019) 60 Fam LR 212 the Full Court in Isles & Nelissen [2022] FedCFamC1A 97 considered that the majority opinion was affected by error and summarised the position as follows:
47.Further, we accept that Austin J did not say s 140 of the Evidence Act has no role to play in a case where an unacceptable risk of harm is alleged; only that the civil standard of proof is not the measure by which an unacceptable risk of harm is to be assessed. The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternate finding about the existence of an unacceptable risk of harm.
To further emphasise the point, reference to the application of statutory provisions is emphasised as follows:
59.As the Full Court has previously counselled, the terms of the Act are of pre-eminent importance (Simmons & Kingley (2014) FLC 93-581 at [17]–[20]). The provisions of ss 60CC and 60CG of the Act are wide enough to embrace most, if not all, assertions of an “unacceptable risk” of harm to children and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act.
Wishes of the children
X and Y have given a clear indication to the report writer and via the credible evidence of the applicant that they do not wish to see the respondent. To the extent that there might be considered some ambivalence or uncertainty as to the strength of their expressed position by their distress at not having an ongoing relationship with Mr F, as between the children and the respondent, their position appears clear.
The evidence of the report writer enables a finding to be made that significant weight should be given to the children’s expressed wishes. It is not frivolous, or an expression underpinned by convenience but rather is likely a reflection of their entrenched involvement and lived experience of the applicant being a victim of ongoing family violence and coercive control perpetrated by the respondent.
There are two broad components to the applicant’s evidence of family violence. The first is her general evidence of the respondent’s behaviour involving ongoing aggression consisting of physical assault and behaviour intended to belittle and control the applicant and the second aspect relates to the applicant’s evidence which refers to the several incidents that resulted in the respondent being found guilty, by his own admission and by judicial determination, of serious criminal behaviour including violence, breach of an AVO and the inappropriate use of a carriage service to harass and disseminate an intimate image of the applicant.
It is an exacerbating feature of the family violence allegedly perpetrated by the respondent that for the most serious and egregious conduct, X and Y were likely present and Mr F, whilst now an adult, was nonetheless complicit in the distribution of an intimate image of the applicant.
Whilst I consider that it is open to find on the balance of probabilities that the respondent did assault and harass the applicant as she alleges by reference to the evidence arising from the transcript of the Local Court proceedings both as to the various hearings and the sentencing remarks of the Magistrate, the independent and separate evidence of the applicant was compelling. The denials by the respondent were fanciful and at times his evidence was both inconsistent and inherently improbable. I reject the contention of the respondent that the applicant was the perpetrator of family violence and that she had assaulted him.
The respondent’s evidence was redolent with inconsistency and was inherently improbable. There is scant evidence that could lend credible support to the allegations of the respondent.
The evidence of the report writer supports a finding that there is a good and proper basis for the children’s rejection of the respondent.
The nature of the relationship with the parties
X and Y have a primary attachment to the applicant whereas Mr F, although now an adult, remains committed to the respondent although this is likely as part of the respondent’s strategy of using Mr F as leverage to resume a relationship with X and Y.
The likely effect of any change in the children’s circumstances
X and Y have spent no time with the respondent now since 2022. A careful review of evidence consisting of the applicant’s observations of the children, the assessment made by the report writer, albeit in 2022, and other evidence in terms of their progress at school enables a finding that they are benefiting from stability and a removal from the domestic conflict they experienced prior to separation.
X is now at an age where she will determine the extent to which she has a relationship with the respondent, if any. Y, whilst likely to be significantly influenced by X’s position, is not yet at that stage.
Were X to spend time with the respondent, there is little evidence that would suggest the transition would be without distress or anxiety.
It must be remembered that Y remembers and has been significantly affected by the family violence that she witnessed. It would be overly simplistic and potentially emotionally damaging to Y to ignore or give little weight to her lived experience.
Family violence
I have found the respondent has perpetrated family violence having regard to the factors relevant in determining the best interests of the children and consider that the orders sought by the respondent would place the children, but in particular Y, in a position of unacceptable risk of psychological or emotional harm.
The advantages and disadvantages of the separate proposals of the parties
Given my finding that it would not be in X and Y’s best interests to resume spending time with the respondent, I remain concerned that other than by the children attaining an age where they can make their own decision to reengage with the respondent, the orders sought by the respondent are unlikely to be able to be achieved.
The advantage to the children of the applicant’s proposed orders is that they remain in her care and develop appropriately both academically and socially. Of significant importance is that their current living circumstance is without the spectre of family violence. The disadvantage is that they are not likely to have a fulsome relationship with Mr F. That consequence is as a result of the strategy of the respondent in terms of his intention to continue to control the applicant by direct involvement of the children.
Hopefully, X is able to make her own arrangements to communicate and/or spend time with Mr F and despite the respondent’s best efforts, the siblings may well reconcile their relationship.
The family violence perpetrated by the respondent does not enable a finding that he is a viable and safe parent. It is not to suggest that he represents a direct physical threat to the children but given his evidence and inability to accept the very serious consequences of his aggressive behaviour and coercive control, X and Y are at great risk.
Parental responsibility
Parental responsibility is to be informed by considering the best interests of the children. Given the findings of family violence, the only credible outcome would be for the applicant to have sole parental responsibility.
Given that the respondent does not present as a direct physical threat to the children, it is not unreasonable that he has information as to their education and any significant medical issues that may impact upon the children.
I do not propose to make orders that would enable the respondent to attend upon all school events to which parents are invited. There is little doubt on the evidence that the applicant remains fearful of the respondent and in any event, there is a final AVO in place. Significant and important events involving the children should not be diminished or marred by any potential for unnecessary conflict.
PROPERTY
The proceedings also relate to settlement of property arising from a relationship commencing in 2005 and concluding with the respondent moving out of the former matrimonial home in late 2018.
The parties reconciled in early 2019 and finally separated with the applicant leaving the home with the children in November 2019.
Relevant to the proceedings are the parenting orders which are to be made that provide for X and Y to remain in the primary care of the applicant. The time that X may spend with the respondent is subject to her wishes. Similarly, Mr F, who is the parties’ adult child, resides with the respondent and may spend time with the applicant.
The property of the parties is limited and principally comprised of the property at N Street, Suburb O (“the Suburb O property”) currently valued at $1,100,000. The parties agree that the Suburb O property is to be sold although there is disagreement as to the method and manner of sale. The mechanics of any order made is complicated by their likely inability to communicate.
I propose to ignore the bank accounts of the parties given that they fluctuate from time to time.
A further issue arises in respect of the applicant’s substantial legal fees incurred whereas the respondent is in receipt of s 102NA funding and has incurred no legal fees in relation to the final hearing. There is uncertainty as to the SMSF superannuation entitlements of each of the parties. If the respondent has separate superannuation, it has not been disclosed. For her part, the applicant has disclosed her interest in Superannuation Fund 1 of $36,954.
I do not propose to bring to account the superannuation interest of the parties and treat them as if they were notional assets.
I consider that given the age of the parties, any superannuation entitlement held by them should be retained without adjustment but given consideration under s 75(2) of the Act. The parties will not satisfy a condition of release for many years.
There is also considerable uncertainty as to the balance, if any, of their separate interests in the R Self-Managed Superannuation Fund.
It is entirely possible that there could be a residual liability rather than the fund being in credit.
The parties are agreed as to the assets and liabilities but there remains dispute as to addbacks principally arising from the evidence that shows the respondent redirected rental income from both the Queensland property and the Suburb T property into his personal CBA Bank account. The amounts are substantial. In respect of the Queensland property, for the period April 2021 to July 2023 the amount is $19,771 and for the Suburb T property for the period 16 August 2021 until its sale the rental money diverted was $31,521.
I have also considered whether it is just and equitable to embark upon the exercise of property settlement. As is required by s 79(2) of the Act I bring to account the legal and equitable interests of the parties in their property, the manner in which each of the parties, but in particular the respondent, has dealt with property and the broad factual circumstances of the history of the relationship.
Given the marital relationship, the three children of the parties and the separate orders sought by each of them for settlement of property, I consider that it is just and equitable to make orders that will bring finality to their financial circumstances.
The schedule of assets and liabilities are as follows:
Assets and Liabilities
Asset Ownership Amount N Street, Suburb O Joint $1,100,000 Jewellery Applicant $5,000 TOTAL $1,105,000 Liabilities
Westpac Home Loan Account ending #...07 Joint $190,082 Westpac Home Loan Account ending #...15 Joint $312,279 NAB SMSF Home Loan Account ending #...98 Joint $12,255 SMSF Compliance accounting fees Joint $2,750 TOTAL $517,366 Superannuation
R Self-Managed Superannuation Fund Joint Unknown Superannuation Fund 1 Applicant $36,954 TOTAL $36,954
The parties are in broad agreement as to the approximate net value of the assets and liabilities that comprise the pool given that there is agreement the Suburb O property is to be sold. The parties agree the approximate value of Suburb O having regard to a valuation report dated 8 March 2024 (exhibit “11”).
In addition, the applicant seeks to addback a notional amount being the total sum of rental payments from the Queensland investment property that was redirected by the respondent to his personal CBA bank account for the period April 2021 to 12 July 2023 in the sum of $19,771.16. A similar argument is raised in respect of rental payments from the Suburb T property held by the parties’ super fund and redirected by the respondent to his personal CBA account ending #...77 from 16 August 2021 until the property was sold in the sum of $31,521.
The applicant also seeks to be reimbursed by the respondent for his half share of the following fees and charges paid by her as follows:
Family Assessment Report $6,050 Further fees for Family Assessment Report $708 Hearing fees for the report writer $2,365 Further fees for the report writer $1,210 ASIC fees $1,576 Deposit paid to conveyancer for sale of Suburb T property $220 TOTAL $12,129 Addbacks
The applicant’s evidence is that the rent for the Queensland and Suburb T (super fund) properties would be deposited into the separate accounts pertaining to the properties. The Westpac Home Loan Account ending #...23 related to the Queensland property and the super fund account ending #...98 related to the Suburb T property.
Following enquiries by the applicant a subpoena was issued and revealed that the rental agents for each of the properties had received a request from the respondent to change the banking details to the respondent’s personal account ending #...39. Significant investigation has been conducted by the applicant and by detailed reference to the bank statements for each of the Queensland and Suburb T properties together with the respondent’s account, I am satisfied on the balance of probabilities that the respondent diverted $19,771 of rental receipts for the Queensland property and $31,521 for the Suburb T property.
The respondent did not include in his affidavit any comprehensive consideration of the rental withdrawals in respect of the Queensland and Suburb T properties.
As already considered, Murphy J in Watson & Ling (2013) FLC 93-527 (“Watson & Ling”) placed significant importance on the termination of the legal and equitable interests of each of the parties. The flow on effect has an implication in respect of the concept “add-backs”.
The position following Stanfordv Stanford [2012] HCA 52 is that the concept of an add-back being a notional item of property to the interests held by either of the parties, will have limited compass in the future.
In Watson & Ling (supra) Murphy J said as follows:-
33.First, consistent with existing authority, it can be recognised pursuant to Section 75 (2) (o) (c), for example Omacini & Omacini [2005] FamCA 195, Brown & Green (1999) FLC 92-873 and Sereni [1998] FamCA 143. Secondly, it might be contended that it might be recognised within the assessment of contribution. This Court has long eschewed the notion of "negative contributions" (see, for example, Antmann & Antmann (1980) FLC 90-908). It might be argued that the "non-dissipating party" can be seen to have made disproportionately greater indirect contribution to the existing legal and equitable interests (for example to their preservation) if it is established that, for the other party's unilateral dissipation, those existing and legal equitable interests would have been greater or of a greater value.
34.The assessment of the circumstances under discussion is, ultimately, a matter of discretion. Equally however, authority dictates that it will be the exception rather than the rule that a direct dollar adjustment equivalent to the amount of the alleged dissipation of the pool is made to the otherwise entitlement of a party.
In Truman & Truman [2013] FamCA 765 Fowler J had to consider the treatment of legal fees incurred by each of the parties. Both the husband and the wife had already paid approximately $200,000 in legal fees and the wife owed her solicitors and accountants over $350,000 in fees. At paragraph 54 his Honour said:-
54.This Court does not follow the practice of adding back and dividing non- existent assets. There is no warrant for doing so in the Act. That once fashionable practice was one which assisted in pointing perhaps a way to a just solution; however, there exists plenty of opportunity for the Court to come to a just and equitable assessment as to the source and application of funds in its consideration of contributions under Section 79 (4) and matters referred to in Section 75 (2) and also in particular 75 (2) (o).
In La Costa & La Costa [2007] FamCA 1176, the Full Court considered the treatment of add‑backs to the asset pool in NHC & RCH [2004] FamCA 633 and cited with approval the remarks of the Full Court in M & M (supra):-
2.10It is well settled that save in exceptional circumstances a trial judge should deal with the property as at the date of the hearing and make adjustments taking into account the various matters set out under Section 79 (Wells v Wells (1997) FLC 90-285; Wardman v Hudson (1978) FLC 90-466; in the marriage of Geyl 7 Fam LR 219. However, the particular justice of the case may make it appropriate to notionally add-back assets which have been demonstrated to have been dissipated either during the marriage or post-separation. Normally it is necessary to demonstrate an appropriate basis for doing so, for example by wastage such as gambling or extravagant living. Kowaliw v Kowaliw (1981) FLC 91-092…additionally, because of the requirement for each party to bear their own costs, it is generally appropriate to add back to the pool of assets notionally any legal costs that have been spent on the litigation and to deal with the costs as a separate issue at the end of the litigation (see Farnell (1996) FLC 92-681)
Following Stanford (supra), I consider that whilst it is still open to a Court to consider adding property back to the interests of each of the parties, such an outcome would be rare and may be restricted to those circumstances where there is a realistic possibility that the property may be retrieved. That is not the case here.
As considered, I am satisfied that the respondent intentionally diverted income from the accounts into which the respective rental agents for the Queensland and Suburb T properties were to deposit net rental, to the respondent’s own account. The further consequence of the respondent's actions is that at settlement there was insufficient funds to pay the Body Corporate fees in the sum of $3,939 for the Suburb T property and the council rates in the sum of $6,081 for the Queensland property.
There is some uncertainty as to what thereafter became of that money.
It is likely that the respondent utilised the funds for his own personal expenses, but I cannot discount the possibility that some were used for expenses relating to either the properties themselves or for household and family related expenses.
I acknowledge that the respondent’s conduct in keeping secret his direction to each of the agents to divert rental income to his account raises a significant suspicion as to his motive and intention. Nonetheless, I am satisfied that the funds do not exist and have been dissipated by the respondent.
In those circumstances I propose to treat the rental income received by the respondent as a matter that is best dealt with when considering the respective contributions of the parties.
CONTRIBUTIONS
At the commencement of the relationship neither of the parties had any significant savings. Money was borrowed from the applicant’s mother in 2005 to enable the respondent to attend university.
There is some uncertainty as to the financial arrangements as between the parties. The applicant paid her salary into a joint account with Westpac bank. The respondent maintained his own CBA account.
It appears from the relevant bank statements that the majority of household expenses were paid from the joint account. There is uncertainty as to the extent to which money retained by the respondent was used for his own personal circumstances or for the family.
The respondent concedes that expenditure prior to separation comprising of holidays, credit card expenses, car payments and house repayments came from the joint account.
The parties separated in November 2019.
Thereafter, the applicant had the primary care of the children although Mr F eventually remained living with the respondent in the Suburb O property from 26 November 2020.
Whilst there is some uncertainty, it would appear that during the period of the respondent’s occupation of the Suburb O property, the mortgage went into arrears.
The evidence does not allow a quantification of the consequence of the non-payment of arrears however, the fact of the respondent having the advantage of remaining in the Suburb O property in circumstances where the applicant and the two younger children were required to find other accommodation needs to be brought to account. The position of the applicant has been to seek the sale of the Suburb O property on the basis that she did not consider it was a viable option for the respondent to purchase her interest.
There is little doubt that the respondent wanted to retain the Suburb O property, but the belated revaluation received made it untenable for the Suburb O property to be retained.
Following separation, the respondent was required to fully maintain X and Y whereas from November 2020 the respondent was financially responsible for Mr F.
There is scant evidence as to the payment of child support however, it is likely to be only a minimal amount.
I am satisfied that the applicant had the overwhelming financial burden in respect of X and Y and did so without contribution or assistance from the respondent.
Noting that the net asset pool is modest in the sum of $587,634, I propose to apportion the contributions of the parties as to 55 per cent to the applicant and 45 per cent to the respondent.
I do so bringing to account the rent for the Queensland and Suburb T properties diverted by the respondent to his private account and likely predominantly for his own personal expenditure, the advantage occasioned to the respondent and the consequential financial disadvantage to the applicant of the respondent remaining in the Suburb O property and the significant financial obligation of the applicant in respect of the ongoing care of the three children following separation and from November 2020 initially for the three children but then for X and Y.
A 10 per cent differential amounts to $117,526 which considered holistically is within a reasonable exercise of my discretion.
SECTION 75(2) FACTORS
The applicant is currently employed as an educator with a modest income of $1,645 per week or about $85,540 per annum. She has total personal expenditure in the sum of about $1,000 per week including a modest rental commitment of $300.
It is not controversial that she receives child support for X and Y in the sum of $35 per month. It is a trite observation that the level of child support currently assessed and paid would be of minimal assistance in respect to the expenses for the children which the applicant assesses at $535 per week as set out in Part N to her Financial Statement filed 1 March 2024.
X is 15 years of age and there is approximately three child support years before she reaches majority and Y is currently 9 years of age with a further nine child support years before she reaches majority.
The evidence of the respondent is that he is currently a student with only modest income.
The respondent concedes that he pays an inadequate level of child support but argues that he has the expenses relating to Mr F even though he is now 18 years of age.
The respondent does not provide expenditure in respect of Mr F in his Financial Statement filed 6 March 2024.
The respondent was not convincing in his evidence as to his employment opportunities and intention. There is a history of the respondent being engaged in a professional industry and whether by reason of his incarceration or an intention to retrain himself, there is no credible evidence that would suggest he will be in a position to make an appropriate level of financial contribution to the expenses incurred by the applicant for X and Y.
I bring to account the attitude of the respondent towards the applicant in his evidence. I find on the balance of probabilities that the respondent remains openly hostile to the applicant, considers that notwithstanding his plea of guilty and the subsequent findings by the Magistrate, that he was not guilty. The respondent is not kindly disposed towards the applicant such that there is any likelihood child support being paid.
I note that the applicant has a modest superannuation entitlement. Given her age, there is potentially a minimum of twenty years before the applicant could satisfy a condition of release. As such, the appropriate treatment of the applicant’s superannuation entitlement is as a financial resource rather than it being treated as an asset.
An unfortunate aspect of the proceedings arises in respect of the legal fees of each of the parties. Ignoring the legal fees, costs and disbursements incurred by each of the parties prior to the commencement of the hearing, it is a significant observation that the applicant will likely incur legal fees in the sum of $65,842 whereas because the respondent was accepted under the s 102NA(2) family violence scheme, his fees in respect of the final hearing are zero.
I consider that outcome to be egregious. The basis for the acceptance of the respondent into the s 102NA(2) scheme arises because of the serious allegations of family violence corroborated for the purposes of the scheme by the Magistrates Court proceedings and the eventual convictions recorded but also as a matter of independent findings on the balance of probability by the Court.
The stark reality is that the respondent, found to be the perpetrator of family violence, receives funding for the proceedings whereas the applicant is liable for her fees.
I have decided that rather than bring to account the applicant’s fees as a liability of the parties, the preferred approach is that it be treated as a factor pursuant to s 75(2) of the Act.
Again, the exercise of my discretion is not to be an open-ended approach. I do not consider the separate components that are presented by each of the parties for consideration under s 75(2) of the Act as an arithmetical exercise but rather I must consider the matter holistically.
I bring to account the superior, albeit modest income of the respondent together with her financial obligation in respect of X and Y and the substantial costs that she will incur arising out of these proceedings and required to be paid from any settlement sum she ultimately receives.
I bring to account that the respondent is a student however this consideration is tempered by the skill set of the respondent which would likely enable him to find employment if he so chose to do so. There is considerable uncertainty as to what opportunities will flow to the respondent at the completion of his course.
The cost of financially maintaining X and Y in circumstances where they will remain in the sole care of the applicant is likely to be substantial.
In considering an appropriate adjustment, it is not the slavish focus on a percentage but rather what is the likely dollar value.
The various s 75(2) factors should be reflected by an adjustment in favour of the applicant of 15 per cent. In doing so, I note that the differential amount represented by such an adjustment is $176,290.
I consider it is necessary to then consider whether the overall proposed settlement of 70/30 in favour of the applicant is just and equitable in all the circumstances. I have specific regard to the presentation of each of the parties, the care arrangements for the children and the weight to be given to the evidence of the applicant as to the financial misconduct of the respondent in diverting rental income to his own account.
I consider that a 70/30 division is just and equitable.
I note that the principal asset for division will be the net proceeds of the sale of the Suburb O property. I propose that in circumstances where the only other item of property is the jewellery in the applicant’s possession, the applicant will retain 70 per cent of the net proceeds of sale after the payment out of liabilities, costs and charges with the respondent to receive 30 per cent of the net proceeds of sale less the sum of $12,129 to be paid to the respondent from his share for the disbursements as agreed with the applicant to pay $1,500 from her share being 30 per cent of the jewellery that she retains.
I propose to make orders as sought by the applicant in respect of the super fund to enable it to be rendered at compliant but then to be wound up with each party to receive their respective member entitlements paid to a separate fund as they may nominate.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and eighty-one (281) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 4 June 2024
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