Zemin & Kaba (No 2)

Case [2024] FedCFamC1F 377

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…

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AGLC
Zemin & Kaba (No 2) [2024] FedCFamC1F 377
Case
[2024] FedCFamC1F 377
Decision Date

CaseChat Overview and Summary

Ms Zemin and Mr Kaba have two children, X and Y. Ms Zemin seeks sole parental responsibility and for X and Y to live with her without spending any time with Mr Kaba. Mr Kaba does not oppose Ms Zemin having sole parental responsibility. The parties’ eldest child, Mr F, has reached adulthood and lives with Mr Kaba and does not wish to spend time with Ms Zemin. The court had to determine whether it was in the children's best interests to spend time with Mr Kaba and whether it would be safe for them to do so. Additionally, the court had to determine the division of the parties' property and liabilities.

The court considered the children's views, the history of family violence perpetrated by Mr Kaba, and the risk of harm to the children if they spent time with Mr Kaba. The court found that the children were at risk of psychological and emotional harm if they spent time with Mr Kaba. The court also considered the need to maintain a meaningful relationship between the children and Mr Kaba but found that it was not safe for the children to resume such a relationship. As a result, the court ordered that the children live with Ms Zemin and do not spend time with Mr Kaba. The court also ordered that the parties' property be divided in a 70:30 ratio in favour of Ms Zemin, taking into account the redirection of rental income by Mr Kaba and the dissipation of funds.

The court made orders for sole parental responsibility for Ms Zemin, for the children to live with her and not spend time with Mr Kaba, for the sale of the former matrimonial home, and for the division of the parties' property and liabilities.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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